Food Employers Council, Inc

National Labor Relations Board - Board Decisions

Mar 20, 1989

293 N.L.R.B. 333 (N.L.R.B. 1989)

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