Food Employers Council, Inc

FOOD EMPLOYERS COUNCIL Food Employers Council, Inc , for itself and its Member Companies and Charles C Cook, indi- vidually and as a trustee of the Teamsters and Food Employers Security Trust Fund Albertson's Inc , Alpha Beta Company, Certified Grocers of California, Ltd , Hughes Markets, Inc , Jerseymaid Milk Products Company, Safeway Stores, Inc, and Vons Grocery Compa- ny and Charles C Cook, individually and as a trustee of the Teamsters and Food Employers Security Trust Fund Cases 21-CA-24257 and 21-CA-24412 March 20, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 9, 1987, Administrative Law Judge Jerrold H Shapiro issued the attached decision The General Counsel and the Charging Party filed exceptions and supporting briefs The Respondents filed limited exceptions, a supporting brief, and an answering brief to the other parties' exceptions 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, as modified, and to adopt the recom- mended Order We agree with the judge that the parties' strike settlement agreement of December 23, 1985,1 does not preclude processing of the instant charges, but we also agree that by entering into the strike settle- ment agreement in conjunction with execution of the new collective-bargaining agreement the Unions clearly and unmistakably waived any rights to payments from the Respondent Employers of the November health and welfare contributions and that therefore the allegation concerning the Re spondent Employers' failure to pay those contribu- tions was properly dismissed 2 The judge also i All dates are in 1985 unless otherwise indicated 2 The Unions and the Respondents could not by agreement foreclose the right of a trustee of a trust fund to file a charge with the Board con cerning conduct alleged to violate the Act to the detriment of benefici anes of the trust fund See generally NLRB v Amax Coal Co 453 U S 693 (1981) The rights of the beneficiaries however are ultimately the creature of the agreement between the parties to the collective bargaining agreement and at least during the period after that agreement has expired and the parties are bargaining for a new agreement a union may waive rights to payments accruing in that postexpiration period in exchange for concessions in bargaining on the new agreement See Laborers Fund v Advanced Lightweight Concrete Co 108 S Ct 830 ( 1988) (employers uni lateral cessation of postcontract contributions raises issues under the NLRA but not issues under ERISA) Energy Cooperative 290 NLRB 635 (1988) (Board finds that it effectuates the policy of the Act to defer to clear and unmistakable waiver in strike settlement agreement of certain 333 found that by their conduct at the negotiating ses- sion of October 22 the Respondents did not threat- en employees in violation of Section 8(a)(1) of the Act Although we adopt the judge's conclusion that no threat occurred, we do so only for the rea sons set forth below and find it unnecessary to rely on the judge's rationale for the dismissal of this al legation 3 The facts pertaining to this alleged threat are fully detailed in the judge's decision and are briefly summarized as follows On August 21 the Re- spondents and the Unions commenced negotiations for successor contracts to replace their soon-to- expire 1982-1985 agreements 4 The 1982-1985 agreements required, inter alia, that monthly health and welfare benefit contribu tions be made to a trust fund on behalf of each reg- ular, full-time unit employee who was on the pay roll for the first day of the month and had complet ed at least 30 calendar days of continuous employ- ment The agreements further provided that the Respondent Employers make these contributions on or about the 20th day of each month during the term of the agreement The eligibility requirements adopted by the trustees of the trust fund provided, inter alia, that an employee's eligibility for benefit coverage terminated at the end of the second month following the month in which the last con tribution for that employee was paid by the em- ployer At the September 17 bargaining session, the Re spondents proposed changes in the health and wel- fare benefit provision of the 1982-1985 agreements One such proposed change involved no increase in the dollar amount of monthly contributions per em- ployee, i e , the Respondents proposed to keep con- tributions at the current level of $319 41 per month set by the 1982-1985 agreements At their bargaining session held on October 22, the Respondents submitted a complete contract offer conditioned on a peaceful settlement and ac- ceptance by November 3 and that included the September 17 proposal and added the following proposal on the same subject Thus, as further ex- plained in a cover letter, the Respondents included in their offer a proposal to make monthly health and welfare contributions for the period up to and employees accrued rights to sickness and accident benefits notwithstand ing claim that withholding of the benefits discriminated against those em ployees in violation of Sec 8(a)(3) of the Act) 3 The judge relied on NLRB v Great Dane Traders 388 U S 26 (1967) and concluded that the alleged threat to discontinue health and welfare contributions was not inherently destructive of important employee rights 4 These agreements were extended beyond their September 8 expira tion date and the employees continued to work under the contracts until November 5 when the stnke/lockout occurred 293 NLRB No 42 334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD including October 31, resuming on the Monday fol lowing ratification of the Respondents' October 22 contract offer 5 In presenting this offer to the Unions, Respondent Council made it plain that there was nothing in this contract offer that was not subject to negotiation, specifically invited dis- cussion and negotiation with respect to each sub- ject in the proposal, and stated that the proposal was "final" only in the sense that the Respondent Employers would have no choice but to make it a final proposal if the Unions refused to engage in negotiations The Unions caucused and, when the parties returned to the table, the Unions revised their contract offer Discussion at this bargaining session involved some aspects of the Respondents' offer The Respondents' specific proposal involving the discontinuation of the health and welfare con tributions after October 31, however, was not dis- cussed After several more negotiating sessions, on No- vember 5, the Unions, as anticipated , struck one of the employer members of Respondent Council and, in response, the Respondent Employers and the other employer members of Respondent Council engaged in a lockout of their unit employees The Respondent Employers also took the position that in accordance with their October 22 contract offer to the Unions they were not obligated to make any health and welfare contributions and they discon- tinued such payments in November Two days after the strike/lockout began, the parties resumed their contract negotiations and, on December 23, they entered into successor collective bargaining agreements and executed a strike settlement agree- ment The General Counsel contends that the Respond- ents' October 22 proposal to discontinue the health and welfare contributions interfered with the em- ployees' statutorily protected right to reject an em- ployer's contract proposals and adhere to the bar- gaining demands of their collective bargaining rep- resentative without economic reprisal Contrary to the General Counsel, we find that the record does not support her theory of a violation The record establishes that, outside the presence of employees and in a context free of any allegation of bad faith bargaining, the Respondents merely submitted a "proposal" to the Unions for their consideration The record further shows that this proposal was 5 The Respondents reasonably believed that based on the current state of the negotiations and in light of past practice the Unions would strike on November 5 when the Respondents collective bargaining agreements with the Meat Cutters Unions expired The Respondent realized that if the terms of the 1982-1985 agreements continued in effect a strike on No vember 5 would mean that November health and welfare contributions would be due because employees would have been on the payroll as of November 1 not a fait accompli in that the Respondents stated that the matter was open to discussion and negotia- ble in all respects Cf Campo Slacks, 266 NLRB 492, 496-499 (1983) Moreover, the record is clear that the Unions never put to the test the Respond- ents' statement that the matter was open Further, unlike the situation presented in United States Pipe & Foundry, 180 NLRB 325, 327-328 (1969), a case relied on by the General Counsel, the Respondents' conduct occurred in circumstances not alleged to constitute bad faith bargaining and was not intend ed to provoke a strike but rather was considered a safeguard against an anticipated strike We, there fore, conclude that the preponderance of the evi- dence does not establish that the Respondents threatened employees with a unilateral change as alleged in the complaint See Peoria Journal Star, 242 NLRB 928 (1979) Accordingly, we adopt the judge's dismissal of this alleged threat 6 ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed 6 Member Cracraft agrees that the Unions waived any rights the em ployees had to November contributions to the trust funds when they en tered into the strike settlement and collective bargaining agreements in December 1985 However she would find that the Unions have also thereby waived the employees rights with regard to the Respondents proposal to refrain from making those payments Thus she does not ad dress whether the proposal constituted a threat and as such is violative of Sec 8(a)(1) In sum in Member Cracraft s view because the Unions waived any right to the November health and welfare contributions the Respondents were not obligated to make them and cannot have violated the Act by proposing to withhold them See Texaco 291 NLRB 613 614 at 6-7 (1988) (in which strike settlement agreements clearly and unmis takably waived employees right to certain benefits the respondents an nouncement of the suspension of such benefits did not violate Sec 8(a)(1)) William J McCauley Esq for the General Counsel William B Irvin Esq (McLaughlin & Irvin), for the Re spondents Lionel Richman for the Charging Party DECISION STATEMENT OF THE CASE JERROLD H SHAPIRO Administrative Law Judge This proceeding in which a hearing was held on 2 De cember 1986 is based on unfair labor practice charges filed by Charles C Cook (Cook) in Cases 21-CA-24257 and 21 -CA-24412 on 30 October 1985 and 9 January 1986, respectively The charge states they were filed by Cook in his capacity as an individual and as trustee of Teamsters and Food Employers Security Trust Fund On 30 May 1986 the General Counsel of the National Labor Relations Board (Board) on behalf of the Board issued an order consolidating these cases and issued a consolidated complaint alleging that Food Employers FOOD EMPLOYERS COUNCIL Council, Inc (Respondent Council) and Albertson s Inc, Alpha Beta Company, Certified Grocers of California, Ltd, Hughes Markets, Inc, Jerseymaid Milk Products Company, Safeway Stores, Inc, and Vons Grocery Company (Respondent Employers) violated Section 8(a)(1) of the National Labor Relations Act (Act) More specifically, the complaint which alleges Respondents and several local labor unions affiliated with the Interna tional Brotherhood of Teamsters, Chauffeurs, Warehou semen and Helpers of America were parties to a collec tive bargaining contract scheduled to terminate 8 Sep tember 1985, further alleges Respondents violated Sec tion 8(a)(1) of the Act, as follows On 22 October 1985, during the negotiations for a successor collective bar gaining contract, Respondent Council, on behalf of the Respondent Employers, submitted to the Unions a pro posed contract and advised the Unions that the Respond ent Employers would continue to make the contractual health, welfare, and pension contributions on behalf of the employees represented by the Unions until 31 Octo ber 1985 and would not resume making these contribu tions until the Monday following the ratification by the employees of the Respondents 22 October 1985 contract offer Respondent Employers failed and refused to make the health, welfare, and pension trust fund contributions on behalf of the employees represented by the Unions for the month of November 1985 Respondents threat ened they would not make the November 1985 health, welfare, and pension contributions on behalf of the em ployees represented by the Unions and carried out this threat as a reprisal against these employees for their failure, through the Unions, to accede to the bargaining demands of Respondents" Respondents filed an answer denying the commission of the alleged unfair labor prac tices 1 On the entire record 2 from my observation of the de meanor of the witnesses, and having considered the posthearing briefs, I make the following FINDINGS OF FACT I THE ALLEGED UNFAIR LABOR PRACTICES A The Evidence Respondent Employers are in the retail grocery buss ness in southern California They are employer members of Respondent Council, an association of employer mem bers that exists for the purpose, inter alia, of representing its employer members in negotiating collective bargain ing contracts with 11 local unions affiliated with Interna tional Brotherhood of Teamsters, Chauffeurs Warehou semen and Helpers of America (Unions), which represent certain employees of the Employers In negotiating with Respondent Council, the Unions are represented by a single union bargaining committee Respondent Council I In their answer to the complaint Respondents admit that each is an employer engaged in commerce within the meaning of Sec 2(6) and (7) of the Act and meet the Board s applicable discretionary jurisdictional standard Likewise Respondents admit that each of the Unions involved is a labor organization within the meaning of Sec 2(5) of the Act 2 The Charging Party s motion to amend the transcript by changing the word bulwark to Boulwansm is granted 335 and the Unions bargaining committee negotiate 11 sepa rate collective bargaining contracts, one contract for each local union, which in the aggregate encompass a single consolidated and combined multiemployer, mul bunion bargaining unit Since at least 1970 Respondent Council, on behalf of its employer members including Respondent Employers, has been a party to successive collective bargaining contracts with the Unions in the above described multiemployer, multiunion bargaining unit, the most recent of which were effective from 6 September 1982 to 8 September 1985 (the 1982-1985 agreements) The 1982- 1985 agreements required, inter alia that certain monthly fringe benefit contributions, including health and welfare contributions, be made to the Team sters and Food Employers Security Trust Fund (Trust Fund) on behalf of each regular, full time employee cov ered by the 1982-1985 agreements who was on the pay roll for the first day of the month and had completed at least 30 calendar days of continuous employment The agreements further provided that the Employers pay to the Trust Fund the health and welfare contributions for each regular, full time employee on or before the 20th day of each month during the term of the agreements The eligibility requirements adopted by the Trust Fund s trustees provided, inter alia, that employee eligibility for benefit coverage terminated at the end of the second month following the month that the last contribution was paid by the Employer On 21 August 1985 Respondent Council and the Unions bargaining committee met and began negotia tions for collective bargaining contracts to succeed the 1982-1985 agreements Joseph McLaughlin, Respondent Council's president, was the Council's chief negotiator and spokesperson during the negotiations Jerry Ver cruse, the secretary treasurer for Teamsters Union Local 630 was the chairman of the Union s bargaining commit tee Herman Sperling the director of the statistical de partment for Teamsters Joint Council 42, was the spokes person for the committee until mid November 1985 when Vercruse replaced him as spokesperson Historically in the southern California retail food store industry the Unions' collective bargaining contracts with Respondent Council in the multiemployer unit here have expired in the same years as the Employers contracts with the Meat Cutters Unions, the contracts with the Unions in September and the contracts with the Meat Cutters Unions in early November In 1985 the Meat Cutters Unions' contracts in the multiemployer unit rep resented by the Respondent Council expired 4 Novem ber Therefore, in 1985 during the same period that Re spondent Council, on behalf of Respondent Employers, was negotiating with the unions bargaining committee for successor agreements to the 1982-1985 agreements, it was also negotiating with the Meat Cutters Unions on behalf of the Respondent Employers for successor agreements covering the employees represented by the Meat Cutters Unions The record also establishes that in the past the Unions on several occasions have engaged in strikes in connection with their contract negotiations in the multiemployer unit here which did not occur until 336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the contracts in the Meat Cutters bargaining unit had ex pired in early November, at which time both the Unions and the Meat Cutters Unions struck one or more of the Employers in the multiemployer bargaining unit In con nection with the 1985 negotiations, the Unions repre sentative, Vercruse, indicated to the Council's represent ative, McLaughlin, that the Unions intended to wait until the Meat Cutter Unions agreement had expired before engaging in economic activity in support of the Unions bargaining position On 21 August 1985,3 the Unions bargaining commit tee, during the first bargaining session, submitted a coin plete contract proposal The Unions proposal was not discussed Rather, the negotiators spent the session dis cussing the mechanics of the negotiations i e , dates for the negotiating sessions and the Respondent Council s proposal to combine several of the agreements into one driver agreement This proposal, sometimes referred to by the parties as the driver is a driver proposal, pro posed in substance that truckdnvers be treated uniformly under all the agreements, rather than being treated differ ently under the various agreements even though they performed identical work Thereafter, during the subse quent negotiating sessions held on 27 and 29 August, and 3, 6, 10, and 12 September, the only matter of substance discussed was Respondent Councils above described bargaining unit proposal The negotiators also discussed, without reaching agreement, the possibility of entering into an agreement to extend the term of the 1982-1985 agreements, which were scheduled to expire 8 Septem ber On 17 September, at the next bargaining session, Re spondent Council informed the Unions bargaining com mittee in writing that the Employers would continue to maintain and give effect to the provisions of the expired 1982-1985 agreements until the fourth day following the Unions receipt of the Employers final offer for presen tation to the Unions membership but that this commit ment would terminate immediately in the event any of the Employers was subject to economic action by any of the Unions In addition, Respondent Council submitted in writing its initial contract proposals for 8 of the 11 agreements 4 Two of these contract proposals involved combining several of the agreements into one driver agreement, the driver is a driver proposal, and the other involved the following provisions of the recently expired 1982-1985 agreements management rights griev ance and arbitration successor and assigns subcontract ing of work health and welfare pension picketing and boycotting, and new locations McLaughlin, Council s representative informed the Unions bargaining commit tee that the Employers considered these proposals to be the most important items that would have to be ad dressed by the negotiators during the negotiations before any kind of agreement was reached Respondent Councils 17 September health and welfare proposal changed the health and welfare provision con tained in the 1982-1985 agreements, as follows The old All dates refer to 1985 unless otherwise specified ° Respondent Councils initial proposals for the remaining three agree ments were submitted at the next bargaining session contract defined a regular full time employee as one who among other things, had completed at least 30 cal ender days of continuous employment, whereas the Councils proposal changed this to 60 calendar days for continuous employment The old contract provided for increased employer health and welfare contributions during each of the contracts 3 years, whereas the Count cil's proposal read as follows B Contributions Each employer will contribute $319 41 per month for each regular, full time em ployee to the trust fund for the term of this collec tive bargaining agreement Such monthly contribu tion shall constitute the sole and complete obliga tion of each Employer during the term of this col lective bargaining agreement and no additional monies of any kind whatsoever shall be payable or required The $319 41 proposed as an employers monthly contri bution was the amount of money that employers were obligated to contribute to the Trust Fund under the re cently expired 1982-1985 agreements, as of the date of the agreements termination Following the 17 September bargaining session, the parties next met for negotiations on 19 September and 1, 3, 8, and 10 October During these sessions the Unions bargaining committee continued to propose contract pro posals it had advanced at the outset of the negotiations Respondent Council did not offer the Unions a complete contract proposal but continued to press the Unions to discuss and agree to its major or so called core proposals that had been made at the 17 September session The Unions bargaining committee however did not engage in any meaningful discussions with the Councils negotia tors about the 17 September proposals McLaughlin the Councils chief negotiator described these discussions, as follows There had been a stonewall in the sense that we had not really had any meaningful discussion Our dis cussions went this way Well we 11 talk to you about it explain it And then you d explain it but you d never, never was there anything forthcoming that would indicate that there was going to be some true negotiation That s what I was talking about [refer ring to his testimony that there had been no mean ingful discussions by the parties about the Councils 17 September contract proposals] McLaughlin also testified that the unions were well aware that this [referring to the Councils 17 September contract proposals] was not a complete proposal and that during this period and at the 10 October bargaining session the unions had been urging me as a spokeman and the employer committee as a bargaining group to get on with it and give them the rest of the industry propos als As of the 10 October negotiating session not a single agreement had been reached The Unions had not agreed in whole or in part to any of the Councils 17 September proposals and the Council had not agreed in whole or in FOOD EMPLOYERS COUNCIL part to any of the Unions contract proposals During the 10 October session McLaughlin informed the Unions bargaining committee that he felt negotiations were at an impasse because the parties had been unable to agree on anything He also stated as he had stated during previ ous negotiating sessions, that there was not going to be a settlement unless the Councils 17 September core pro posals were addressed and addressed satisfactorily to the industry and asked the Unions bargaining commit tee to engage in meaningful discussions about those pro posals On 22 October, at the next bargaining session Re spondent Council submitted a complete contract propos al 5 The cover letter from the Council to the Unions bargaining transmitting this proposal stated it was a final proposal which was conditioned on a peaceful settlement and acceptance by 3 November, and stated if any of the Unions engaged in economic action against any of the Employers in the multiemployer unit that the Employers might lock out or take other lawful collective economic action against all the Unions The letter further stated if the proposal was accepted that all the modifica tions and amendments to the 1982-1985 agreements it contained would be effective as of the first Monday fol lowing ratification, and requested the Unions bargain ing committee to present this full and final proposal to your membership with your recommendation that this offer be accepted In addition to advising the Unions bargaining committee of the foregoing, the Council s letter of transmission stated that the Employers health and welfare contributions would be made through 31 October and would not recommence until the Monday following ratification of the Councils 22 October con tract offer 6 The portion of the Councils 22 October contract proposal that dealt with health and welfare con tributions reads as follows B Contributions Notwithstanding anything con tamed herein to the contrary each Employer will contribute $319 41 per month for each regular full time employee to the Trust Fund up to and includ ing October 31 1985 and thereafter shall not re commence such contribution until the Monday fol lowing ratification of this agreement Thereafter, each Employer will contribute $319 41 per month for each regular, full time em ployee to the Trust Fund for the term of this collec tive bargaining agreement Such monthly contribu tion shall constitute the sole and complete obliga tion of each Employer during the term of this col lective bargaining agreement and no additional monies of any kind whatsoever shall be payable or required 5 This proposal was submitted for 8 of the 11 agreements The Coun cil s proposals for the other three agreements were apparently submitted shortly thereafter 6 The exact language as set forth in the transmission reads You are further advised that the current health and welfare and pen Sion contributions shall be made up to and including October 31 1985 Such contributions shall not recommence until the Monday fol lowing ratification of this offer 337 On 22 October when McLaughlin on behalf of the Council presented the Councils bargaining proposal to the Unions bargaining committee, he made it plain there was nothing in the proposal that was not subject to ne gotiation He invited discussion and negotiation with re spect to each subject contained in the proposal and stated that the proposal was final only in the sense that the Employer would have no choice but to make it a final proposal if the Unions refused to engage in negotia tions The negotiators then discussed some of the Coun cil s proposals But, most of the time was spent by the Unions bargaining committee caucusing in order to revise the Unions' contract proposal now that the Unions had seen the Councils complete contract proposal After caucusing, the Unions bargaining committee informed the Councils negotiators that the Unions were with drawing several of the provisions included in their con tract proposal and were revising several of their other proposals that dealt with economic matters However at the conclusion of this session no agreement had been reached on a single bargaining proposal advanced by either of the parties The next bargaining sessions were held 24, 29 and 31 October at which times the negotiators discussed virtu ally all the Councils 23 October contract proposals The negotiators also spent a great deal of time discussing the Councils proposal to consolidate several of the agree ments into a single driver agreement During the 29 Oc tober session, the Council revised four of its proposals after discovering they had been misworded or were mis understood by the Unions bargaining committee By the end of this series of bargaining sessions not a single agreement had been reached The Unions had not agreed to any of the Councils contract proposals and the Coun cil had not agreed to any of the Unions contract propos als There was apparently only one provision of sub stance, the contractual grievance and arbitration proce dure on which the negotiators were even close to reach ing agreement On the subject of Employers health and welfare con tributions the parties stipulated that at all times material subsequent to 1 November, Respondent Council in its negotiations with the Unions bargaining committee took the position that Respondent Employers were under no obligation to tender the health and welfare trust fund contributions on behalf of those employees represented by the Unions who worked on the first day of November and who had completed at least 30 days of continuous employment On 2 November the negotiations resumed During this bargaining session which lasted until the early morning hours of 3 November, the Unions submitted a contract proposal entitled Union Requirements For Employer Final Offer The Unions bargaining committee stated if Respondent Council accepted this proposal the Unions were prepared to recommend its approval by their mem bership In this proposal the Unions proposed that the 1982-1985 agreements be renewed for another 3 years with revisions only in the agreements provisions dealing with health and welfare pension wages grievance and 338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD arbitration and picketing 7 The proposal also provided for the inclusion of the truckdrivers employed by one of the Employers Lucky Stores in the delivery drivers agreement and the inclusion of Lucky Stores San Diego and Escondido dairy facility employees in the Captive dairy agreements Lastly , the Unions, with respect to the Councils proposal that several of the agreements be combined into a single driver agreement , proposed that this matter be resolved by impartial arbitration It is undisputed that a comparison of the Unions 2 November contract proposal with the Council's contract proposal reveals that , other than in the area of grievance and arbitration, the parties were still far apart on each one of the provisions set forth in the Unions contract proposal (Tr 171) As a matter of fact , by the end of the 2-3 November negotiating sessions , the Unions and Re spondent Council had not reached agreement on any one of their proposals In an effort to break the bargaining deadlock, the Unions and Meat Cutters Unions, who, as described supra were also negotiating with Respondent Council for an agreement covering the meat cutters in the retail food industry , submitted to the Council during the 2-3 November sessions a so called baseball arbitra tion proposal This proposal provided in substance for the parties to submit their best and final offers of settle ment to a panel of impartial arbitrators who would select which of the contending final offers would be imple mented Respondent Council rejected this proposal On 3 November the Unions held a meeting of the bar gaining unit employees to vote on whether to accept or reject the Respondent Councils 22 October final con tract offer The employees voted to reject the contract offer On 4 November, at the next bargaining session, the Unions bargaining committee stated they were deleting from the Unions 2 November proposal the provision calling for the inclusion of the Lucky Store truckdnvers and were also deleting their grievance and arbitration provision and would accept the Respondent Council s proposed grievance and arbitration provision provided that the Council accept the Unions 2 November propos al as so modified Respondent Council rejected this offer The record reveals that at the end of the 4 November bargaining session the state of the negotiations was as follows On the positive side both the Unions and Re spondent Council had withdrawn a number of their pro posals in favor of existing language in the recently ex pired agreements, which these proposals had sought to modify 8 Also at the 4 November bargaining session the Unions agreed to accept Respondent Councils grievance and arbitration proposals, provided that the Council accept the Unions 4 November bargaining proposal in all other respects except for the inclusion of the Lucky Store truckdrivers On the other hand , agreement had 7 The Unions proposed to revise the health and welfare provisions by incorporating the maintenance of benefit language from 1979-1982 agree ments or in the alternative to increase the required health and welfare contributions by $34 60 per month effective 1 December 1985 with adds tional increases of a like amount effective 1 June 1986 and 1 June 1987 8 No evidence was presented concerning the date or dates when these proposals were withdrawn and the existing contractual language substi tuted in their place not been reached on a single one of the Unions other bargaining proposals or on any of Respondent Council s 17 September core proposals, which were still on the bargaining table The parties were still far apart on such significant economic and noneconomic items as health and welfare, pensions, wages, picketing and boycotts, and the inclusion of most of the unit s truckdrivers in a single driver agreement Commencing 5 November the employees of the em ployer members of the Respondent Employers, com menced an economic strike against one of the employer members In response, on 5 November, the remaining employer members of Respondent Council, including Re spondent Employers engaged in a lockout of their unit employees represented by the Unions Following the 5 November strike/lockout, the parties held bargaining sessions on 7 8, 12, 13, and 18 Novem ber and thereafter on several other dates during Novem ber and December Commencing on or about 1 Decem ber the parties began to reach agreements on or other wise resolve some of the issues that had been blocking agreement on a collective bargaining contract By 22 De cember they had reached agreeements on most of these issues, so that it was only their disagreement involving approximately six issues that prevented them from reach ing a final contractual agreement One of the six was health and welfare On 22 December Respondent Coun cil presented the Unions bargaining committee with a contract proposal for successor collective bargaining agreements to the 1982-1985 agreements This proposal consisted of the following All the contractual provisions on which the parties had previously reached agreement, Respondent Councils proposals dealing with the ap proximately six items that were still unresolved and a strike settlement agreement Regarding health and welfare, Respondent Council s 22 December contract offer proposed that paragraph G' of the 1982-1985 agreements health and welfare pro vision be deleted and replaced with the following 9 G Contributions Notwithstanding anything con tamed herein to the contrary each Employer will contribute $319 41 per month for each regular full time employee to the Trust Fund up to and includ ing October 31 1985 Commencing January 1 1986 or the first day of the month following ratification whichever is later each Employer will increase the monthly contribu tion from $319 41 to $354 01 or an additional $34 60 per month to the Trust Fund for each regular full time employee Effective January 1 1987, each Employer will in crease the monthly contribution from $354 01 to $388 61 or an additional $34 60 per month for each regular, full time employee 8 Par G of the 1982-1985 agreements was entitled maintenance of benefits and in substance provided for increased employer contributions to the trust fund of 39 cents per hour effective 1 December 1982 16 cents per hour effective 1 June 1983 and 15 cents per hour effective 1 June 1984 FOOD EMPLOYERS COUNCIL 339 Effective January 1, 1988, each Employer will in crease the monthly contribution from $388 61 to $405 91 or an additonal $17 30 per month, for each regular, full time employee Such monthly contributions shall constitute the sole and complete obligation of each Employer during the term of this collective bargaining agree ment and no additional monies of any kind whatso ever shall be payable or required It is understood and agreed however that if any additional increases in Employer contributions are assessed by the Trustees in addition to those set forth above, they will be deducted from employees hourly rates of pay The Trustees are directed to give each Em ployer a sixty (60) day advance written notice of any such increase The language contained in the strike settlement agree ment which was a part of the Respondent Council s contract proposal, had been previously negotiated by the parties and had been acceptable to the Unions provided that an agreement on an overall contract was reached After stating it was an intergal part of the settlement between ' the parties the strike settlement agreement set forth certain obligations on the part of the parties, one of which dealt with the disposition of any litigation that had resulted or might result in the future from the par ties labor dispute In this regard, the strike settlement agreement, paragraph 5 reads as follows 5 The benefits contained in the Agreement now reached between Food Employers Council Inc, on behalf of its affected members, and the Unions and including specifically the wages and economic bene fits provided have been bargained in consideration of all parties releasing each other from any and all actions claims complaints or liability of whatever kind of nature arising from the labor dispute and in consideration of these agreements and releases being binding on all parties and on all persons represent ed by the Unions The parties do hereby release and forever dis charge each other and any agent employee or rep resentative of any party from any and all manner of claims and grievances known or unknown actions cause or causes of action or liabilities whatsoever arising out of, from or in connection with the labor dispute and agree to withdraw and seek the with drawal of any charges now filed or which may be filed in the future with the National Labor Rela tions Board or any other agency, whether the liabil ity concerns, or the charge is filed by, the party itself a member of the party, or a person represent ed by a party or anyone else All litigation mclud ing contempt proceedings claims grievances ac tions, cause or causes of action, or unfair labor practice charges, of every kind and nature arising out of or in connection with the labor dispute against the Union or any Employer shall be dis missed and withdrawn, with prejudice and shall not be reinstated in any forum Neither shall there be filed or instituted any new litigation unfair labor practice charges, or any other claims, actions causes or causes of action in any forum arising out of from, or in connection with the said labor dis pute, and none of the parties shall directly or indi rectly participate or assist in any way with the bringing of or prosecution of any such claims, grievances complaints, actions, charges, or litiga tion Nothing in this Agreement, however, shall affect the prosecution of criminal acts On 23 December Respondent Council and the Unions entered into successor collective bargaining agreements to the 1982-1985 agreements, when the Unions on that date accepted Respondent Councils above described 22 December contract proposal The strike settlement agreement, even though it was a part of Respondent Councils contract proposal, was set forth in a self con tained document entitled Strike Settlement Agreement, which was signed on 23 December by Vercruse, for the Unions, and McLaughlin, for Respondent Council As described supra, under the terms of the 1982-1985 agreements, Respondent Employers were obligated to pay to the Trust Fund the health and welfare contribu tions for each regular, full time employee covered by the 1982-1985 agreements who were on the payroll on the first day of the month and had completed at least 30 cal endar days of continuous employment These monthly payments were due on or before the 20th of each month Respondent Employers failed to make such payments for November despite the fact that there were bargaining unit employees on their payrolls on the first day of that month who had completed at least 30 calendar days of continuous employment 10 Following the execution of the successor agreements on 23 December, Respondent Employers in January 1986 resumed making health and welfare benefit contributions to the Trust Fund on behalf of the employees represented by the Unions As de scribed supra under the eligibility requirements adopted by the Trust Fund's trustees, eligibility for benefit cover age terminates at the end of the second month following the month for which the last contribution was paid by an employer Thus under ordinary circumstances the em ployees, represented by the Unions employed by Re spondent Employers would not have been eligible in January 1986 to receive health and welfare benefits when with the settlement of the labor dispute, they re turned to work However, the trustees waived the usual eligibility rules inasmuch as it is undisputed that Re spondent Employers employees represented by the Unions, received health and welfare benefits for January 1986, as well as for the following months i i 10 Respondent Employers also failed to make health and welfare con tnbutions for December however it is undisputed that due to the stnke/lockout there were no employees represented by the Unions on Respondent Employers payroll on the first day of December who had completed at least 30 calendar days of continuous employment i l The Charging Party s contention that an undisclosed number of Re spondent Employers unit employees lost their eligibility for January 1986 health and welfare benefits because they were not recalled to work in January until some time after 1 January is not supported by any record evidence 340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In including as a part of the Councils 22 October final contract offer, the proposal that current health and welfare contributions be made up to and including 31 October and would not resume until the Monday after the employees ratified the offer, the representatives of the Council were motivated by the following consider ations (Tr 149) They believed that effective 5 Novem ber all the employees represented by the Unions would not be at work due to a labor dispute 12 They realized that if the terms of the 1982-1985 agreements continued in effect the Employers would have to contribute to the Trust Fund for November on behalf of all the employees represented by the Unions who were on their payrolls as of 1 November even though because of the labor dispute the employees would have worked only 1 or 2 days that month In view of this, Council President McLaughlin testified, What we decided was that we were not going to spend $3,000,000 00 plus [the amount of the Novem ber health and welfare contributions involved here] in the face of what we thought was a certain strike [and] we therefore refused to do it The result was the Coun cil s contract proposal, which is the subject of the instant litigation As described supra, the parties negotiators in Decem ber were finally able to reach agreements on several con tract issues so as to reduce the issues that had been divid mg the parties to approximately six one of which was the amount of the Employers health and welfare contri buttons The Unions had proposed a substantial increase in the Employers contributions whereas the Council had proposed contributions remain at the same level as they had been at the expiration date of the 1982-1985 agreements $319 41 per month per eligible employee In December, however the Council offered to increase contributions by $17 30 per month effective January 1986, by another $17 30 per month effective January 1987 and by an additional $17 30 per month effective January 1988 Finally in its 22 December contract offer as described supra, the Council proposed a monthly in crease of $34 60 effective January 1986 another increase of $17 30 effective January 1988 During the aforesaid December negotiations concern ing the health and welfare contributions according to McLaughlin s credible testimony, the Unions demanded that Respondent Employers make their November health and welfare contributions to the Trust Fund Vercruse, although his testimony on this subject is somewhat in consistent, admitted that during the period from 4 to 22 December he and McLaughlin discussed the subject of 12 This belief that the employees represented by the Unions would most likely all be absent from work effective 5 November due to a labor dispute was a reasonable one Based on the current state of the contract negotiations what had occurred during previous food industry contract negotiations with the Unions and Vercruse s statement to McLaughlin that the Unions consistent with their past practice intended to wait until the Meat Cutters Unions contracts had expired before engaging in eco nomic activity in support of their bargaining position Respondent Coun cil reasonably believed that on 5 November when the Employers con tracts with the Meat Cutters Unions expired the Unions with the sup port of the Meat Cutters Unions would strike one of the Employers of the multiemployer unit in support of the Unions bargaining position As had been the practices in the past negotiations the other Employers in the unit would engage in a defensive lockout in support of their bargain mg position Indeed this is what in fact took place the Employers November health and welfare contribu tions Vercruse also testified he told McLaughlin that as a part of the Unions bargaining demands the Unions wanted the Employers to make the November contribu tions and also explained to McLaughlin that the Unions believed the Employers were legally obligated to make those payments (Tr 78, LL 5-22) The parties stipulated that during this period and at all times material the Council took the position that the Employers were not obligated to make such contributions and would not do so In the face of the Councils adamant position that the Employers would not make the November health and welfare contributions, the Unions at some point stopped raising the issue In this regard, McLaughlin testified They [referring to the Unions demand for the Novem ber contributions] just were abandoned Nobody stood up and said, forget it, don t worry about it anymore It [was] just like so many things in collective bargaining It just was not there at the end One of the reasons the Council increased the Employ ers health and welfare contributions by an additional $17 30 per month to $34 60 per month in its 22 Decem her contract offer was the Councils belief that without this increase there would not be sufficient money in the Trust Fund s reserve account for the trustees to pay the January 1986 health and welfare benefits of the unit em ployees whose employers had not paid their November contributions 13 By increasing the Employers contribu tions during the first 2 years of the contract as provided for in its 22 December contract offer the Council, based on a study done by its health and welfare consultant felt there would be sufficient moneys in the Trust Fund s re serve account for the trustees to pay the January 1986 health and welfare benefits of the unit employees whose employers had not paid the November contributions McLaughlin, the Council's president and chief negotia tor testified that in the past what had occurred in situa tions where employers failed to pay contributions there by making employees ineligible to receive benefits for certain months was the Trust Fund s trustees used funds from the Trust Fund s reserve account to pay the em ployees health and welfare benefits for the months in question McLaughlin also testified with respect to the issue involved in this case that the Councils negotiators anticipated if there were sufficient moneys in the Trust Fund s reserve account that it was possible the trustees in this instance would agree to do this with respect to the unit employees whose Employers had not paid their November contributions McLaughlin further testified it was this thinking that partly influenced the Council on 22 December to propose an additional $17 30 increase in the Employers' contributions for the first and second years of the contract It is undisputed however, that the Council did not inform either the Unions representatives 13 As I have found supra Respondent Employers had made their last contribution to the Trust Fund in October for that month thus employ ees were ineligible to receive health and welfare benefits for January even if the stnke/lockout ended They were back working 1 January 1986 inasmuch as the Trust Fund s eligibility rules provided for the ter mination of benefit coverage at the end of the second month following the month for which the last contribution was paid by an employer FOOD EMPLOYERS COUNCIL or the Trust Funds trustees that one of the Council s considerations in proposing the additional increases in the Employers contributions contained in the 22 Decem ber contract offer was the Councils anticipation that the Trust Fund s trustees would use this money to pay unit employees January 1986 health and welfare benefits even though the employees would not be eligible for benefits under the usual eligibility rules Regarding paragraph 5 of the parties 23 December strike settlement agreement, the paragraph dealing with the withdrawal of unfair labor practice charges filed with the Board, the record reveals that in addition to the charges filed in this case there were other charges filed with the Board in connection with this labor dispute, which were pending at the time of the strike settlement agreements execution The record also reveals that in negotiating the language contained in paragraph 5 there was no mention of the charges filed by Cook in this pro ceeding nor was there any mention of the Employers failure and refusal to pay the November health and wel fare contributions Vercruse, the chairman of the Union s bargaining committee and the person who executed the strike settlement agreement for the Unions, did not learn about Cook s charge in Case 21-CA-24257, which had been filed on 30 October, until after the execution of the strike settlement agreement Vercruse did not speak to Cook about withdrawing that charge, nor did he speak to Cook about withdrawing the charge filed by Cook on 9 January 1986 in Case 21-CA-24412 As described supra the charges in this case state on their face they were filed by Charles Cook in his capac ity as an individual and as a trustee of the Trust Fund, the Teamsters and Food Employers Security Trust Fund During the time material Cook, a member of Teamsters Union Local 630, one of the several Team sters local unions that are included in the multiunion, multiemployer bargaining unit involved here, was em ployed by Teamsters Local 630 as a business representa tive and was one of the Trust Funds six trustees 14 Cook was not a member of the Unions bargaining com mittee He did however attend a few of the negotiating sessions at the request of the Unions bargaining commit tee for the purpose of providing it with research data cost projections and explanations with respect to the Trust Fund, and to assist the Unions full time consultant on those matters Cook was not authorized by the Trust Fund s trustees to file the charges in this case Quite the contrary, when the matter was put to a vote the trustees specifically re fused to authorize legal action against Respondent Em ployers to collect the November contributions, the trust ees deadlocked Cook and the two other union appointed trustees voted for and the three employer appointed trustees voted against taking legal action It is undisputed that during the times material to this case Cook spoke to Vercruse, the chairman of the Unions bargaining committee and to McLaughlin the 14 The 1982-1985 agreements and the successor agreements negotiated by the parties provide for the appointment of an equal number of trustees by the Respondent Council and the Unions Cook was one of the three trustees appointed by the Unions 341 spokesperson for the Councils negotiators and advised them it was his opinion that the Unions and Council did not have authority to enter into an agreement excusing the Respondent Employers from making their November health and welfare contributions to the Trust Fund Cook also warned them that if in fact they entered into such an agreement that Cook, acting in his capacity as a trustee of the Trust Fund, would take whatever action was necessary to require the Employers to make those contributions Cook had previously been told that the Unions were demanding the Employers pay the Novem ber contributions and that the Council was taking the po sition that the Employers would not make the payments for that month B The Question of Whether Respondent Council and the Unions Bargaining Committee Bargained to an Impasse During the Time Material Although the concept of impasse eludes precise defini tion, it has been held that an impasse exists when good faith negotiations have exhausted the prospects of con cluding an agreement or when there [is] no realistic possibility that continuation of discussion[s] would be fruitful Television Artists AFTRA v NLRB 395 F 2d 622 624, 628 (D C Cir 1986) The Board has established general criteria for deter mining whether an impasse exists Some of the relevant factors are the parties bargaining history, the good faith of the parties in negotiations, the length of negotia tions the importance of the issue or the issues as to which there is disagreement, [and] the contemporaneous understanding of the parties as to the state of negotia tions Taft Broadcasting Co, 163 NLRB 475 478 (1967) affd 395 F 2d 622 (D C Cir 1968) In this case, in agreement with Respondents, I am persuaded that when all the evidence is examined in the light of the Taft Broadcasting criteria, it establishes the negotiations were at an impasse on 5 November when in support of their bargaining positions the parties commenced their strike/lockout, and that the impasse continued for at least the remainder of the month The first Taft Broadcasting factor-the parties bargain ing history-is consistent with an impasse finding The parties have been negotiating collective bargaining con tracts with one another in the southern California food industry for at least 30 years During this period they have always engaged in hard bargaining-each party at tempting to secure the best possible contract terms for their constituents-and there is no evidence that Re spondent Council has ever engaged in bad faith bargain ing Second an impasse finding is consistent with the fact that as described in detail supra although Respondent Council during the current negotiations engaged in hard bargaining it bargained in good faith with a sincere desire to reach a successor collective bargaining con tract Third an impasse finding is supported by the parties failure prior to the 5 November strike/lockout to make any substantive movement toward a real agreement on any issue, other than grievance/arbitration, and by the 342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fact that a significant number of the issues over which the parties remained far apart were considered to be of overriding importance to a final agreement Throughout this period the parties failed to reach agreement on a single contractual provision, let alone being able to reach an agreement on even one of the significant economic and noneconomic issues they regarded as essential to a final agreement I recognize that the Unions had with drawn some of their initial contract proposals , revised others, and on 2 November submitted a revised contract proposal There is no evidence however , that the Unions by engaging in this conduct made any concession or con cessions from which they could have reasonably expect ed to receive a quid pro quo from Respondent Council Fourth, the length of the parties negotiations here is entirely consistent with an impasse finding As the record here shows, the parties had been bargaining for over 2 months and had held approximately 19 negotiat ing sessions before they engaged in a strike/lockout on 5 November in support of their respective bargaining post tions Fifth the parties contemporaneous understanding of the status of the negotiations establishes the negotiations were at an impasse During the 10 October negotiating session McLaughlin stated the Employers felt the negoti ations had reached an impasse because the parties had been unable to agree on anything During the 2-3 No vember negotiating session the Unions, after observing that the parties had still not been able to reach a single agreement, submitted its offer of baseball arbitration which provided in substance that a panel of impartial ar bitrators would impose an agreement on the parties The nature of this proposal when considered in context, war rants the inference that the Unions made it because they believed negotiations were hopelessly deadlocked with no realistic prospect that continuation of discussions would be fruitful And when the Unions baseball arbi tration proposal was rejected , the Unions on 5 Novem ber commenced an economic strike against one of the unit Employers in support of their bargaining position The Council rather than make a bargaining concession, responded to the Unions strike action by engaging in a defensive lockout of the remaining unit employees in support of the Councils bargaining position The 5 November strike/lockout did not break the bar gaining impasse inasmuch as the record reveals that while the parties met for negotiations on several occa sions during November after 5 November , it was not until some time in December that they made any signifi cant movement toward reconciling their differences over the issues that had prevented them from reaching an agreement In sum all the Taft Broadcasting factors-including the parties bargaining history and good faith negotiations the critical importance of the several issues that kept them from reaching agreement the lack of movement in negotiations the length of negotiations and the under standing of the parties-either supports or are consistent with the Council's contention that the parties had reached a bargaining impasse no later than 5 November, when they resorted to economic weapons in support of their bargaining positions In the instant case , good faith bargaining had not resolved the multitude of critical issues that had kept the parties from reaching agreement, and there were no definite plans for further efforts to break the deadlock Rather the parties on 5 November in an effort to break the deadlock, chose to resort to eco nomic weapons, but despite their use of economic weap ons the bargaining impasse continued until some time in December C Discussion and Conclusions On 22 October Respondent Council, on behalf of Re spondent Employers, submitted a proposed collective bargaining contract to the Unions' bargaining committee which provided that the Employers contractual health and welfare contributions be made up to and including 31 October and not be resumed until the Unions accept ed the contract offer The Unions bargaining committee rejected this offer and Respondent Employers, after having bargaining to an impasse, implemented the offer's aforesaid health and welfare contribution provision by failing and refusing to make their health and welfare pay ments to the Trust Fund for November, even though the terms of the expired 1982-1985 agreements had required such payments for those employees who were employed 1 November The complaint here alleges Respondent Councils con tract proposal to discontinue Respondent Employers health and welfare contributions starting in November if the Unions did not accept the Councils contract offer, and Respondent Employers implementation of that pro posal for November violated Section 8(a)(1) of the Act because Respondent engaged in this conduct as a repris al against those employees for their failure through the Unions to accede to the bargaining demands of Re spondents The theory of the complaint as further enunciated in the General Counsels posthearing brief is that the alleged illegal conduct adversely affected em ployees statutory rights, at least to some extent, because it constitutes unlawful interference with the employees statutorily protected activity of rejecting Respondents' contract proposals and adhering to their Unions bargain ing demands Respondents contend that the conduct in dispute was not inherently destructive of employee statutory rights that it was merely a collective bargaining proposal which was made for legitimate business reasons and im plemented only after the parties bargained in good faith to an impasse and further contends that even if the con duct had a comparatively slight effect on employee statu tory rights it did not violate Section 8(a)(1) of the Act because Respondents had substantial and legitimate bust ness justifications for making and implementing the chal lenged contract proposal, and there is no evidence of an tiunion motivation Respondents further contend that even if their conduct violated the Act, as alleged that the Unions by agreeing to the health and welfare contra button provision in the current collective bargaining con tract, have agreed Respondent Employers were not obli gated to make the November contributions to the Trust Funds Therefore the Unions have waived any statutory rights of the unit employees that may have been in FOOD EMPLOYERS COUNCIL 343 volved in this case Lastly, Respondents urge that the 23 December strike settlement agreement entered into by and between the Unions and Respondents constitutes a non Board settlement in which the Unions have agreed that the unfair labor practice charges, on which this case is based would not be pursued Under the circumstances Respondents argue it would be an abuse of the Board s discretion to fail to defer to this settlement and dismiss the complaint 15 My evaluation of the parties' conten tions follows I I reject Respondents argument it would effectuate the policies of the Act for me to dismiss the complaint in deference to the terms of the 23 December strike settle ment agreement This argument is based on the conten tion that the Unions in that settlement agreed to the withdrawal of the charges here The record, however, does not establish that the 23 December strike settlement agreement encompasses the charges filed in this case The charges were not filed by the Unions, nor by em ployees represented by the Unions, but were filed by Charles Cook in his individual capacity as a trustee of the Trust Fund There is no evidence, or even the slight est suspicion in the record that in filing the charges here Cook acted as the Unions agent Quite the opposite, the record shows that in his individual capacity as a trustee of the Trust Fund, Cook had significant and substantial obligations as a fiduciary, which made it especially ap propriate for him, as a trustee, to have filed the charges Nor is there any evidence that Cook, expressly or by im plication, authorized the Unions or the Council to enter into an agreement precluding him from filing or main taming his charges in this case Quite the opposite prior to entering into the 23 December strike settlement agree ment the Unions and Councils representatives had been advised by Cook, on more than one occasion, that Cook believed it would be illegal for the Unions and Council to enter into an agreement that provided for the nonpay ment of the November health and welfare contributions Cook also warned them that if they did enter into such an agreement that he intended to take whatever action was necessary to challenge the agreement in order to ful fill his obligations as a trustee In assessing the scope of the 23 December strike settle ment agreement it is also relevant there is a lack of evi dence that during the negotiations which resulted in this agreement the parties to the argreement said anything that indicated they intended the agreement to encompass Cook s charges This is especially significant in light of the fact that the wording of the strike settlement agree ment does not preclude Cook from filing or maintaining his charges All the settlement requires is that the Unions `seek the withdrawal of charges filed by third parties It does not require such charges be withdrawn, presum ably because the Unions have no control over the con duct of third parties, other than those third parties who act as the Unions' agent or who the Unions represent In view of these circumstances, where, as here, the third party involved Cook, did not file the charges as an agent of the Unions, was not one of the employees repre rented by the Unions, and had substantial reasons for filing his charges in his individual capacity as a trustee of the Trust Fund, it would be inappropriate for me to find that in entering into the 23 December strike settlement agreement the parties to that agreement intended it would preclude Cook from filing the charges here Based on the foregoing considerations, I find that the 23 December strike settlement agreement did not encom pass the charges filed by Cook in this proceeding 16 It is for this reason that I have rejected Respondents' conten tion that I dismiss the complaint in deference to the terms of the parties strike settlement agreement II As urged by Respondent, I am of the opinion, for the reasons set forth that the Unions, in agreeing to the health and welfare contribution provision in the current collective bargaining contract agreed that Respondent Employers were not obligated to make the November 1985 health and welfare contributions to the Trust Fund and by doing so waived any statutory rights of the unit employees, which may have been involved in this case A party may agree to contractual provisions waiving statutory rights, however, such a waiver must be estab lished by clear and unmistakable evidence that the party intentionally yield its right Metropolitan Edison Co v NLRB, 460 U S 693, 708, 709 (1983) As the Board stated in Gem City Ready Mix Co 270 NLRB 1260 1261 (1984) As a general rule, in order to establish a waiver of a statutory right there must be a clear and unmistak able relinquishment of that right Whether there has been such relinquishment is to be decided on the basis of all the facts and circumstances surrounding the making of the contract in question More pre cisely waivers of statutory rights must be clearly and unmistakably evidenced either in the terms of the parties bargaining contract or in the nature of the prior contract negotiations However, while waivers of rights are indeed not likely to be in ferred they need not on the other hand be evi denced by an express statement of waiver By these standards, the Unions have waived the statuto ry rights of the employees here The clear and unmistakable language contained in the current contract entered into between the Unions and Respondent Council indicates the Unions agreed that Re spondent Employers were not obligated to make the No vember 1985 health and welfare contributions on behalf 15 Respondents do not contend that under the principles enunciated in Collyer Insulated Wire 192 NLRB 837 (1971) and United Technologies Corp 268 NLRB 557 (1984) the issues raised by the complaint in this case should be deferred to the grievance arbitration provisions of the par ties current collective bargaining contract 16 In view of this conclusion I have not decided whether as contend ed by Respondents that in the circumstances of this case the Unions and the Council had the authority to enter into a strike settlement agreement which precluded Cook from filing the charges here in his individual ca pacity as a trustee of the Trust Fund 344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the unit employees who were employed 1 November As described in detail supra on 23 December 1985 the Unions bargaining committee 'ccepted Respondent Councils 22 December proposed contract and as a result the parties entered into a collective bargaining contract, which included a provision dealing with the Employers health and welfare contributions to the Trust Fund The first paragraph of this provision provides in pertinent part that each Employer will contribute $319 41 per month for each regular, full time employee to the Trust Fund up to and including 31 October 1985 The second, third, and fourth paragraphs, respectively, provide in substance that commencing 1 January 1986 or the first day of the month following the ratification of the Coun cil s 22 December contract proposal, whichever date was later, each Employer would increase its monthly contra butions by $34 60 Effective 1 January 1987 each Em ployer would increase it by an additional $34 60 per month, and effective 1 January 1988 increase it by an ad ditional $17 30 per month The fifth and final paragraph of the provision provides in pertinent part that such monthly contributions [referring to the first four para graphs] constitute the sole and complete obligation of each Employer during the term of this collective bar gaining agreement and no additional monies of any kind whatsoever shall be payable or required By using such language, the first paragraph of the provision clearly in dicates that the purpose of the provision was to ensure that the Employers would not be obligated to make the health and welfare contributions for November or De cember 1985, but that their obligation to make contribu tions during the months in 1985 which postdated the ex piration of the 1982-1985 agreements was limited to Oc tober Thereafter, the provisions last paragraph explicit ly confirmed the first paragraphs intent by stating that such monthly contributions [referring to the provision s first four paragraphs] shall constitute the sole and com plete obligation of each Employer during the term of this collective bargaining agreement and no additional monies of any kind whatsoever shall be payable or required In short these two paragraphs of the provision itself read in conjunction with each other, clearly and unmistakably confirm that one of the purposes of the provision was to ensure that Employers would not be obligated to pay health and welfare contributions to the Trust Fund for either November or December 1985 In addition to the plain language of the contractual health and welfare contribution payment provision agreed to by the Unions, the entire bargaining history which led up to the Unions acceptance of this provision reenforces the inference that when the Unions accepted it they must have known they were agreeing that Re spondent Employers were not obligated to pay the No vember 1985 health and welfare contributions to the Trust Fund A description of the negotiations concerning the November health and welfare contributions which occurred prior to the Unions acceptance of the Re spondent Councils 22 December proposal has been set forth in detail supra, and can be briefly summarized as follows On 22 October Respondent Council submitted a health and welfare contribution proposal that in sub stance provided in pertinent part that if the Unions did not accept the Councils final contract offer made that day, that starting in November 1985 Respondent Em ployers would stop making their health and welfare con tribution payments to the Trust Fund When the Unions failed to accept the Councils final contract offer and negotiations reached an impasse on 5 November, Re spondent Employers, consistent with the health and wel fare proposal embodied in their final offer did not make the November contribution payments to the Trust Fund Thereafter during the ensuing contract negotia tions, the Unions' bargaining committee took the position that Respondent Employers were legally obligated to make the November contributions and demanded, as a part of their bargaining demands, that the Employers make these contributions The Councils chief negotiator on behalf of the Employers, responded by taking the po sition that the Employers were not legally obligated to make the November health and welfare contribution pay ments and would not do so This was the context in which the 22 December health and welfare contribution proposal was made by Respondent Council and accepted by the Unions Under the circumstances, in view of the plain language of the proposal itself, it must have been abundantly clear to the Unions bargaining committee that consistent with the Councils previously stated bar gaining position, the Council, in submitting its 22 De cember health and welfare contribution proposal, was asking the Unions to agree to waive the November health and welfare contributions I also note that while Respondent Councils 22 December proposal was con sistent with its past bargaining position in that it did not provide for the payment of the November health and welfare contribution payments and affirmatively indicat ed that the Employers were not obligated to make the payments that the proposal differed substantially from the Councils previous bargaining position It provided for substantially higher monthly employer contributions in each of the 3 years of the contract (1986 1987 and 1988) than the Council had previously been proposing In view of the substantial increase in the employer monthly contributions being proposed by the Council in its 22 December health and welfare proposal it is not surprising that the Unions were willing to agree to that proposal even though it clearly and unmistakably indicat ed that Respondent Employers would not be obligated to make the disputed November health and welfare contri bution payments to the Trust Fund It is for all the foregoing reasons that I find the Unions, in agreeing to accept the health and welfare con tribution provision contained in the parties current col lective bargaining contract, knowingly intended to agree that Respondent Employers were not obligated to make the November 1985 health and welfare contribution pay ments to the Trust Fund for the unit employees em ployed on 1 November and thereby waived the statuto ry rights of the unit employees that were involved in this case 17 17 I reject the Charging Party s contention that the Unions could not as a matter of law bargain away the November health and welfare con tnbutions See Mine Workers Health & Retirement Funds v Robinson 455 U S 562 (1982) FOOD EMPLOYERS COUNCIL 345 III The General Counsel contends, as alleged in the com plaint, that Respondents violated Section 8(a)(1) of the Act by proposing to the Unions bargaining committee on 22 October, as a part of Respondent Councils 22 Oc tober contract proposal, that starting in November Re spondent Employers would stop making health and wel fare contributions to the Trust Fund, on behalf of the employees represented by the Unions, if the employees rejected Respondent Councils 22 October contract offer Respondents further violated Section 8(a)(1) by imple menting this proposal for the month of November when the employees rejected Respondent Councils 22 October contract offer The General Counsel contends that the reason this conduct violated Section 8(a)(1) is that it interfered with the employees' exercise of their Section 7 right to act free from employer coercion in deciding whether to reject Respondent Councils 22 October con tract proposal or to support the Unions bargaining posi tion Phrased another way, the Respondent Council's proposal and its implementation penalized the employees because of their Unions bargaining position in an effort to compel submission to the Respondent Employers bar gaining position I am of the opinion, which is apparently shared by counsels for the General Counsel and Respondents, that the legality of the conduct at issue in this case should be determined by the principles set out by the Supreme Court in NLRB v Great Dane Trailers, 388 U S 26, 34 (1967) First, if it can reasonably be concluded that the em ployer s discriminatory conduct was inherently de structive' of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employ er introduces evidence that the conduct was moti vated by business considerations Second, if the ad verse effect of the discriminatory conduct on em ployee rights is comparatively slight,' an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct Thus, in either situation once it has been proved that the employer engaged in discrimi natory conduct which could have adversely affect ed employee rights to some extent the burden is upon the employer to establish that he was motivat ed by legitimate objectives since proof of motiva tion in most accessible to him Great Dane involved a claimed 8(a)(3) violation Howev er, NLRB v Fleetwood Trailer Co, 389 US 375 380 (1967) indicates that the above principles are applicable as well in determining whether an 8(a)(1) violation exists See Inter Collegiate Press, 486 F 2d 837, 844 (8th Cir 1973), but see PRC Recording Co, 280 NLRB 615 fn 2 (1986) Applying these principles to the issue presented here I conclude Respondents did not violate Section 8(a)(1) of the Act Respondents' alleged illegal conduct was not inher ently destructive of important employee rights As the result of Respondent Council's proposal to discontinue making health and welfare contribution payments to the Trust Fund and the implementation of that proposal, there was no adverse impact on employees terms and conditions of employment The employees did lose one penny in health and welfare benefits or otherwise suffer adverse enonomic effects from this proposal and its im plementation Thus Respondents' conduct cannot be said to have created a visible and continuing obstacle to the employees' future exercise of their statutory rights More specifically, Respondents conduct cannot be said to have significantly dampened the employees' future willingness to support the Unions', rather than Respondents, bar gaining position during collective bargaining negotia tions I realize when Respondent Council made its 22 Octo ber contract offer, which included the proposal to dis continue making the health and welfare Trust Fund con tribution payments starting in November, that the em ployees did not know they would not be penalized if they supported the Unions' bargaining position and re jected Respondent Councils contract offer However, it is instructive to note that the Councils proposal concern ing the health and welfare contributions did not deter the employees from supporting the Unions' bargaining post tion and rejecting the Councils contract offer But even of greater significance is the fact that what is involved here is not simply the employees right to be free from employer economic coercion in the exercise of their Sec tion 7 rights Rather, the employees right placed in issue is the right to be free from employer economic coercion that occurs during the collective bargaining process and is an integral part of that process This is not a case where an employer has bypassed the employees union and dealt directly with the employees in an effort to un dermine the union or has merely threatened employees with economic reprisals if they exercised their Section 7 rights The alleged illegal conduct is the Respondent Councils 22 October collective bargaining proposal made by the collective bargaining negotiations Respond ent Council was engaged in good faith bargaining and in furtherance of its bargaining position in an effort to reach agreement with the Unions on the terms of a new collective bargaining contract made the bargaining pro posal which is challenged in this case The 22 October proposal was to discontinue making health and welfare contribution payments to the Trust Fund starting in No vember if the Unions rejected the Councils 22 October contract offer The complaint significantly does not allege Respondents refused to bargain within the mean mg of Section 8(a)(5) of the Act by making and imple menting this bargaining proposal i 8 The record shows that in making and implementing this proposal Respond ents did not breach their bargaining obligation under Section 8(a)(5) of the Act, inasmuch as Respondent Em ployers implemented the challenged proposal only after 1B Although the unfair labor practice charges here alleged in substance that Respondents conduct violated its duty to bargain within the mean mg of Sec 8(a)(5) of the Act the complaint contains no such allegation Presumably this part of the charges was found to have been without merit by the General Counsel and dismissed 346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD having bargained in good faith to an impasse concerning that proposal and the other proposals contained in its 22 October contract offer 19 When, as here, the alleged ei- ployer economic coercion occurred in the form of a col lective bargaining proposal made by Respondents nego tiators to the Unions bargaining committee during the course of good faith bargaining in an effort to reach agreement on the terms of a new contract, I am of the view that it is not the type of coercion which falls within the ambit of Section 8(a)(1) of the Act 20 The record re veals that in making the proposal, which exerted the at leged economic pressure on the employees, Respondents were motivated by legitimate and substantial business jus tification 21 In summation, as described above, the lack of any ad verse impact by Respondents conduct whatsoever on the employees and the unimportance of the employee statutory right involved, when balanced against the sub stantial justification for Respondents conduct and when viewed in the light of the Act s policy which favors col lective bargaining free from outside interference so long as the bargaining was good faith bargaining, as was the case here, persuade me that Respondents alleged illegal conduct was not inherently destructive of important employee rights ' I also find that even if some slight ad verse effect on employee statutory rights might be found so as to require proof of antiunion motivation, that an tiunion motivation has been neither shown nor asserted Respondents have come forward with evidence of legiti mate and substantial business justification for their con duct,22 which outweighs any such possible impact on employees, particularly when one considers that the at leged illegal conduct was an integral part of the collec tive bargaining process and was a part of Respondents good faith bargaining effort to reach a new agreement with the Unions For the above described reasons I find no grounds for concluding that Respondents alleged illegal conduct interfered with, restrained, or coerced employees in the exercise of their Section 7 rights Accordingly I find 19 Respondent Employers duty to bargain under the Act required they continue their health and welfare contribution payments after the expira tion of the 1982-1985 agreements until bargaining reached impasse or a new agreement NLRB v Cauthorne 691 F 2d 1023 1025 (Cir 1982) NLRB v Cardli 648 F 2d 1206 1213-1214 (9th Cir 1981) The law is settled that after bargaining to an impass an employer does not vio late the Act by making unilateral changes that are reasonably compre hended within his pre impasse proposals Television Artists AFTRA V NLRB 395 F 2d 622 624 (Cir 1968) 20 Cf Chevron Oil Co 182 NLRB 445 449-450 (1970) (the Act ac cords employees no right to insist upon their bargaining demands free from economic disadvantages and an employers use of economic pres sures solely in support of a bargaining position cannot be held unlawful for that reason alone ) 21 Respondents reasonably believed that effective 5 November all em ployees represented by the Unions would not be working because of a labor dispute between Respondents and the Unions To avoid having to pay $3 million in health and welfare contributions to the Trust Fund for November on behalf of the employees who would only work 1 or 2 days that month due to the labor dispute Respondents made their 22 October contract proposal to discontinue making the contributions starting in No vember if the employees rejected Respondents contract offer 22 The reference to substantial justification in Great Dane Trailers does not mean anything more than nonfrivolous See Harter Equip ment 280 NLRB 597 fn 9 (1986) that by engaging in this conduct Respondents did not violate Section 8(a)(1) of the Act as alleged In concluding Respondents conduct did not violate Section 8(a)(1) of the Act, I considered the Board s deci sions in United States Pipe & Foundry and PRC Recording Co ,23 relied on by the General Counsel and for the rea sons set forth below believed these cases are factually distinguishable from the instant one in significant re spects In United States Pipe & Foundry 180 NLRB at 327- 328, an employer while negotiating for a new agree ment, temporarily lowered wages and reduced benefits in order to put pressure on the union to accept his latest contract offer The union protested but did not strike over these changes Shortly after implementing these changes the employer locked out its employees Ac knowledging the Courts admonition in NLRB v Insur ance Agents, 361 U S 477 (1960), that the Board may not judge the particular choice of economic weapons, the Board adopted the trial examiners reasoning that noth ing therein suggests that interdiction of conduct deliber ately calculated to promote a strike is beyond the Board s powers It found that the employers motive in unilaterally reducing wages and benefits was to precipi tate a strike Therefore, the employers conduct violated Section 8(a)(5) of the Act because its actions were incon sistent with its duty to bargain in good faith and inter fered with the employees protected rights in a manner violative of Section 8(a)(1) and (3) The Board rejected the argument that the changes in benefits were a legiti mate exercise of economic pressure and as such analo gous to a lawful lockout The Board reasoned that unlike the situation involving a lockout the employees were being forced either to strike and thus risk replacement or to continue working under terms inferior to those re cently enjoyed United States Pipe & Foundry is inapposite for these reasons There the employers conduct was motivated by its desire to interfere with the employees statutory right to strike and not by a legitimate and substantial business justification Here Respondents conduct was motivated by a legitimate and substantial business justifi cation and not by a desire to interfere with its employ ees statutory rights There the employers conduct had an adverse impact on the employees terms and condi tions of employment whereas here Respondents con duct had no adverse impact on the employees terms and conditions of employment In United States Pipe & Foundry, the employers conduct was not shown to have been an integral part of the collective bargaining process and a part of an employers good faith effort to reach agreement with the union but was found to have been inconsistent with good faith bargaining in violation of Section 8(a)(5) of the Act Whereas here there is no evi dence or allegation that Respondents conduct violated Section 8(a)(5) and the record establishes Respondents conduct was an integral part of the collective bargaining 23 United States Pipe & Foundry Co 180 NLRB 325 327-328 (1969) enfd 442 F 2d 742 (D C Cir 1971) PRC Recording Co 280 NLRB 615 fn 2 (1986) FOOD EMPLOYERS COUNCIL 347 process and was a part of Respondents good faith effort to reach agreement with the Unions In PRC Recording an employer told the union s bar gaining committee during a contract negotiating session that the employer would retract its last contract offer and substitute a less desirable one if the employees re jected the offer and struck The Board (Chairman Dotson dissenting) adopted the administrative law judge s finding that this statement violated Section 8(a)(1) of the Act because it was not merely an eco nomic forecast, but constituted a threat of retaliation if employees exercised their right to strike (280 NLRB 615 at fn 2) In so concluding, the Board majority noted that it agreed with the administrative law judge s conclu sion that was not a part and parcel of the bargaining process or an integral part of a good faith bargaining effort to reach agreement with the union, but was a blatant threat not subject to the bargaining process whereas here the con tract proposal of Respondents being challenged was a part and parcel of the collective bargaining process and was an integral part of Respondents good faith effort to reach agreement with the Unions' bargaining committee It is for all of these reasons, especially because Respond ents alleged illegal conduct was part and parcel of the collective bargaining process and an integral part of its good faith bargaining effort to reach agreement with the Unions, that I am persuaded Respondents conduct was not reasonably calculated to restrain or coerce the em ployees in the exercise of their statutory rights the touchstone of finding a violation of Section 8(a)(1) is not to be determined by inquiring into the employers motive, intent, or effect rather the test for "restraint and coercion under Section 8(a)(1) of the Act depends on whether the conduct may re sasonably be said to have a tendency to interfere with the free exercise of employee rights under the Act [Case cited ] (280 NLRB at 646 ) PRC Recording is inapposite for these reasons There the employer expressly threatened to penalize the em ployees if they exercised their statutory right to strike, whereas here Respondents 22 October contract proposal was not expressly tied to employees foregoing the exer cise of their statutory rights In PRC Recording the em ployer's statement was made to a union s bargaining committee that included several bargaining unit employ ees whereas here there is no showing that the 22 Octo ber contract proposal was offered to the Unions bargain mg committee or discussed with the Unions bargaining committee in the presence of a single unit employee, or otherwise brought to the employees attention by Re spondent In PRC Recording, the employers conduct IV Having found the General Counsel has not established that Respondents alleged illegal conduct interfered with, restrained, or coerced employees in the exercise of their Section 7 rights, so as to violate Section 8(a)(1) of the Act and having found , in the alternative, that by agree ing to certain provisions contained in their current agree ments with the Respondents, that the Unions waived whatever statutory rights of the unit employees who may have been involved in this case, I therefore shall recommend the dismissal of the complaint in its entirety On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed24 ORDER The complaint is dismissed in its entirety 24 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