281 N.L.R.B. 1288 (N.L.R.B. 1986)

M. J. Santulli Mail Services, Inc.

National Labor Relations Board - Board DecisionsOct 17, 1986

281 N.L.R.B. 1288 (N.L.R.B. 1986)

1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M. J. Santulli Mail Services , Inc. and Local 318, United Paperworkers International Union, AFL-CIO and Local 318, Health and Welfare Fund , United Paperworkers International Union , AFL-CIO. Cases 2-CA-20588, 2-CA- 20500, and 2-CA-20903 17 October 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 20 August 1985 Administrative Law Judge Joel P. Biblowitz issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order. i In his decision , the judge notes that in the answer to the complaint counsel for the Respondent denied knowledge or information sufficient to form a belief concerning the truth or falsity of the complaint allegation that the Union is a labor organization within the meaning of Sec 2(5) of the Act The judge also notes that in support of this complaint allegation the General Counsel at hearing adduced evidence clearly establishing the Union's labor organization status According to the judge , notwithstand- ing the production of such evidence, counsel for the Respondent, who called no witnesses on this issue, litigated this issue by attempting to elicit testimony regarding, e g , the Union's ownership of property, a matter wholly unrelated to labor organization status , asked purely argumentative questions, and requested the production of documents which could have been, but were not, subpoenaed months before the hearing Moreover, the judge notes that the Union has represented a large majority of the Respondent's employees for approximately 15 years In light of this conduct, the judge has recommended the Board take action against counsel for the Respondent , pursuant to its Rules and Reg- ulations, Sec 102 21, which states that an attorney may be subject to dis- ciplinary action where he has willfully violated the rule that statements contained in an answer to a complaint be made in good faith and not be interposed as an attempt to delay case proceedings . In so recommending, the judge concludes that counsel for the Respondent could not have en- tertained a good-faith doubt about the status of the Union, the certified collective -bargaining representative of the Respondent 's employees We have carefully considered the judge's recommendation in light of the record and agree that counsel for Respondent appears to have acted contrary to the strictures of Sec 102 21 of the Board's Rules and Regula- tions As our attention has not been called to other instances where coun- sel for the Respondent has engaged in similarly inappropriate conduct, in the circumstances of this case the Board will limit its disciplinary action to expressing our strong disapproval of such conduct and cautioning counsel for the Respondent against similar conduct in future appearances before the Board The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 Chairman Dotson would dismiss the trust fund payments allegation because the unfair labor practice charge was filed more than 6 months after the Respondent ceased making fund payments ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, M. J. San- tulli Mail Services, Inc., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Polly Chill, Esq., for the General Counsel. Evan J. Spelfogel, Esq. (Burns, Summit, Rovins & Feldes- man), for the Respondent. James J. Khani, Esq. (Cohen & Khani), for the Charging Party. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITz, Administrative Law Judge. This case was tried before me in New York, New York, on 8 May 1985. On 2 August 1984 and 10 September 1984 re- spectively, Local 318 Health and Welfare Fund, United Paperworkers International Union, AFL-CIO (the Fund), filed a charge and first amended charge alleging that M. J. Santulli Mail Services, Inc. (Respondent), vio- lated Section 8(a)(1) and (5) of the Act by failing to pay in excess of $300,000 in employer contributions to the Fund, pursuant to its contract with Local 318, United Paperworkers International Union, AFL-CIO (the Union). On 11 September 1984 the Union filed an identi- cal charge against Respondent. On 27 February 1985 the Fund filed a charge against Respondent alleging that it violated Section 8(a)(1) and (5) of the Act by failing to bargain in good faith to execute a contract to replace one that expired on 30 September 1984. On 5 March, the Union filed a first amended charge of the 27 February 1985 charge, also alleging that Respondent violated Sec- tion 8(a)(1) and (5) by failing and refusing to bargain in good faith with the Union since about 30 September 1984. On 1 April 1985, an order consolidating cases and notice of hearing issued, consolidating all the above-cap- tioned cases, and alleging that since about 15 February 1984 Respondent has failed to make the required health and welfare payments to the Fund, and that since about September 1984 the Respondent failed and refused to ne- gotiate with the Union regarding the wages and other terms and conditions of employment of its employees, in violation of Section 8(a)(1) and (5) of the Act. On the entire record, including my observation of the demeanor of the witnesses and the briefs received, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a New York corporation with an office and place of business located in New York, New York (the facility), is engaged in the intrastate transportation of materials for banks and other commercial customers. Annually, Respondent provides services valued in excess of $50,000 for enterprises located within the State of 281 NLRB No. 170 M. J. SANTULLI MAIL SERVICES New York which enterprises , themselves , each are en- gaged in interstate commerce and meet a Board standard for the assertion of jurisdiction , excluding indirect inflow or outflow . Respondent admits, and I find , that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION STATUS The Union has been the collective -bargaining repre- sentative of Respondent 's drivers for a period of about 15 years; the last collective -bargaining agreement be- tween the parties was for the period 1 October 1982 through 30 September 1984.1 In his answer, counsel for Respondent denied knowledge or information sufficient to form a belief about the truth or falsity of the allega- tion in the consolidated complaint alleging that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act . To prove this allegation , the Gener- al Counsel produced two witnesses , Frank Sciorra, secre- tary of the Union and an administrator of the Fund, and H. Rowland Carter , an International representative of United Paperworkers International Union (the Interna- tional), whose duties include assisting various locals in the International (including the Union) in organizing, ne- gotiating contracts , handling grievances and arbitrations, and, generally , servicing their shops . I found Carter and Sciorra to be articulate and credible witnesses whom I credit; Respondent called no witnesses on this issue or any issue herein . Their testimony establishes that the pur- pose of the Union is to bargain collectively on behalf of its members regarding wages and other conditions of em- ployment . The member-employees participate in the Union through union meetings , negotiating committees, shop committees , and OSHA committees. Members serve as shop stewards , run for office, vote in union elections, and participate in the grievance procedures . Sciorra and Carter testified to eight named employers with whom the Union had collective -bargaining agreements and tes- tified that the Union has collective-bargaining agree- ments with in excess of 100 different employers . Carter testified that in September 1984 he met with approxi- mately 40 of Respondent 's employees at which time they drew up their demands for a new agreement and elected a negotiating committee to meet with Respondent's rep- resentatives. In addition to this evidence , the General Counsel placed in evidence the Union 's charters and the Interna- tional 's constitution which states that its purpose is "to improve their wages, hours of work , job security, and other conditions of employment " and "to engage in col- lective bargaining." Respondent produced no evidence to refute this testi- mony and these documents ; rather counsel for Respond- ent cross-examined Sciorra with the following questions, inter alia: "Does Local 318 own or rent any property?" and "Does Local 318 pay any rent, fuel , utility or other similar types of bills?" I sustained objections to each of these questions . Counsel then asked Sciorra to produce i The preamble to this agreement states that the Union was certified as the exclusive collective-bargaining representative of Respondent's em- ployees in a Board-conducted election. 1289 the contracts that the Union has with employers; I in- formed counsel for Respondent that without a properly served subpoena a witness cannot be ordered to "produce" documents .2 Counsel for Respondent then moved to strike Sciorra's testimony because he failed to produce these documents ; I denied this request . Counsel then asked Sciorra : "Isn't it a fact that Local 318 doesn't have any collective bargaining agreements?" and the answer was "no ." Counsel then asked : "Do you have any documentation whatsoever to corroborate your self serving testimony" that he conducted a meeting with Re- spondent 's employees where they drew up a list of bar- gaining demands and elected a negotiating committee. I pointed out to counsel that it was Carter, not Sciorra, who testified about the meeting . When Sciorra testified that he attended the meeting , counsel asked if he had any documentation to establish that the meeting took place; when he said that he did not , counsel for Respondent stated : "So all we have at this point is Mr. Carter's9 and your self-serving testimony that there was a meeting." Counsel for Respondent then asked Sciorra : "Can you produce any document at all that shows that there is something called Local 318 in existence?" I sustained an objection to this question. Initially it should be stated that it is abundantly clear that the Union is a labor organization within the meaning of Section 2(5) of the Act, and I so find . The testimony of Carter and Sciorra plainly establishes this, tracking the language of Section 2(5). It is just as abundantly clear that Respondent 's denial of this allegation was not well- founded . The Union has represented a large majority of Respondent 's employees for approximately 15 years. It was certified by the Board and its status was clear to Re- spondent and its counsel . Even if it was not, however, when the Union's charter and the International constitu- tion were received into evidence that should have clear- ly settled that matter and allowed the parties to litigate the substantive allegations of the consolidated complaint. Not so; rather , counsel for Respondent attempted to elicit testimony that was totally unrelated to labor orga- nization status (whether the Union owns or rents proper- ty, or pays utility bills), asked purely argumentative questions and requested the production of documents that could have been , but were not, subpoenaed 8 months earlier. Rule 11 of the Federal Rules of Civil Procedure pro- vides that all pleadings must be signed by an attorney of record . The rule also states: The signature of an attorney constitutes a certificate by him that he has read the pleading ; that to the best of his knowledge , information , and belief there is good ground to support it; and that it is not inter- posed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this rule, 8 The initial consolidated complaint , which also alleged that the Union was a labor organization within the meaning of Sec. 2 (5) of the Act, issued on 14 September 1984, counsel for Respondent never subpoenaed these documents, or any documents, prior to the hearing 9 On rebuttal , the General Counsel introduced through Carter a confir- mation from Loew's Summit Hotel of a reservation for a meeting room for the morning of 8 September 1984 M. J. SANTULLI MAIL SERVICES 1291 The payments so made to the Fund shall be used by it to provide benefits for eligible employees in ac- cordance with the plan of benefits as determined by the Trustees of said Fund , to be applied to the eligi- ble employees based on the amount of Employer contribution. If the Employer becomes delinquent in its contribu- tions, the Trustees may assess the Employer with (a) interest at such reasonable rate as the Trustees may fix, (b) payroll auditors fees, and (c) all costs of collection (including, without limitation, attorneys fees and disbursements). The agreement also provides: B. The party that wishes to open the Agreement to changes after its anniversary date shall be required to give notice to the other party in writing not less than sixty (60) days prior to the expiration date of its election to terminate this Agreement and to ne- gotiate a new agreement. C. Within ten (10) days after receipt of a notice of termination as provided herein above, the parties shall confer jointly for the purpose of negotiating a new agreement. The union-security clause provides: The Employer agrees in the future not to employ or to retain in its employ any person in the above men- tioned bargaining unit who shall not be or shall not become a member of the Union on or after ninety (90) days from the date of hiring or from the effec- tive date of this agreement , whichever is later. Prior agreements between Respondent and the Union also contained the health and welfare provisions requir- ing Respondent to make payments to the Fund, although the percentage paid may have been lower. Prior to 1983, Respondent had a spotty record of compliance with these provisions , at best . Respondent made some pay- ments in 1981 and 1982, but even these were inadequate. In addition , during the period , Respondent simply sent a check together with its employees ' names, rather than listing the employees ' earnings as well . In May 1982 counsel for the Union and the Fund sent the following letter to Respondent: This office represents the abovenamed Trust Fund. I had written to you previously regarding your past due employer contributions . To date your account is still very seriously in arrears. Please be advised by this letter that you are in breach of your contract and accordingly suit is being commenced against you forthwith to collect all past due sums. I must insist at this time that your good check be sent in order to forestall and withdraw our prospec- tive action . I trust that you will give this matter your immediate attention . Kindly make your check payable to the Local 318 Health and Welfare Trust Fund and mail same directly to our clients. In November 1982 counsel for the Union sent the fol- lowing letter to then counsel for Respondent: This office represents the Local 318 Health and Welfare Trust Fund. Our accountants Shustek and Stella, P.C. of 280 Madison Avenue , New York, N.Y. telephone number (212) 686-3212 have conducted an audit of your client for the period January 1, 1981 to Septem- ber 30, 1982. The results of the audit have revealed that M.J. Santulli Mail Service , Inc., has underreported sever- al million dollars in reportable wages resulting in a shortfall of $242,403.55 payable in dues to our client. Kindly have your client send to our client a bank or certified check for that amount so that our ac- counts will be reconciled. Should you fail to take care of this within 10 days of this letter will shall commence another action in the Supreme Court to enforce payment. In March 1984 counsel for the Union sent the follow- ing letter to Respondent: This office represents the abovenamed Trust Fund. It has come to our attention that your company is over $280,000.00 in arrears in contributions. This intolerable situation cannot continue and please be advised that we shall reinstate our judg- ment rights and commence enforcement proceed- ings as allowed by law on March 9, 1984. We regret having to take this action but formal legal requirements mandate the above . You can forestall this action by mailing one bank or certified check for $280,000.00 as a good faith payment until we can finalize the higher figure due. Please mail this check directly to our office. In July 1983, Carter , Sciorra, and Union President James Dassaro met with Respondent's president , Michael Santulli . They informed him that they had received no payments to the Fund from Respondent recently and they could not allow that situation to continue. The union representatives and Santulli agreed that Respond- ent would pay to the Fund a sum of $3500 a week-"as a good faith gesture on his part ." At a subsequent time, the parties would meet to decide how much of this amount would be applied to Respondent 's arrears and how much would be applied to the continuing payments due. (At the time an obligation of approximately $15,000 a month to the Fund was accruing .) Sciorra testified that the Union was aware of Respondent 's difficult financial situation, and "We didn 't want to go overboard with him." Respondent made approximately 20 payments to the Fund pursuant to this agreement and then ceased such payments without agreement of the Union. Since that time , Respondent has made no further payments to the Fund. From about July 1983 to about March 1984, Carter visited the facility approximately twice a month to serv- M. J. SANTULLI MAIL SERVICES 1291 The payments so made to the Fund shall be used by it to provide benefits for eligible employees in ac- cordance with the plan of benefits as determined by the Trustees of said Fund , to be applied to the eligi- ble employees based on the amount of Employer contribution. If the Employer becomes delinquent in its contribu- tions, the Trustees may assess the Employer with (a) interest at such reasonable rate as the Trustees may fix, (b) payroll auditors fees, and (c) all costs of collection (including, without limitation , attorneys fees and disbursements). The agreement also provides: B. The party that wishes to open the Agreement to changes after its anniversary date shall be required to give notice to the other party in writing not less than sixty (60) days prior to the expiration date of its election to terminate this Agreement and to ne- gotiate a new agreement. C. Within ten (10) days after receipt of a notice of termination as provided herein above, the parties shall confer jointly for the purpose of negotiating a new agreement. The union-security clause provides: The Employer agrees in the future not to employ or to retain in its employ any person in the above men- tioned bargaining unit who shall not be or shall not become a member of the Union on or after ninety (90) days from the date of hiring or from the effec- tive date of this agreement , whichever is later. Prior agreements between Respondent and the Union also contained the health and welfare provisions requir- ing Respondent to make payments to the Fund , although the percentage paid may have been lower . Prior to 1983, Respondent had a spotty record of compliance with these provisions , at best . Respondent made some pay- ments in 1981 and 1982, but even these were inadequate. In addition, during the period , Respondent simply sent a check together with its employees' names, rather than listing the employees ' earnings as well. In May 1982 counsel for the Union and the Fund sent the following letter to Respondent: This office represents the abovenamed Trust Fund . I had written to you previously regarding your past due employer contributions . To date your account is still very seriously in arrears. Please be advised by this letter that you are in breach of your contract and accordingly suit is being commenced against you forthwith to collect all past due sums. I must insist at this time that your good check be sent in order to forestall and withdraw our prospec- tive action . I trust that you will give this matter your immediate attention . Kindly make your check payable to the Local 318 Health and Welfare Trust Fund and mail same directly to our clients. In November 1982 counsel for the Union sent the fol- lowing letter to then counsel for Respondent: This office represents the Local 318 Health and Welfare Trust Fund. Our accountants Shustek and Stella, P.C. of 280 Madison Avenue , New York, N.Y. telephone number (212) 686-3212 have conducted an audit of your client for the period January 1, 1981 to Septem- ber 30, 1982. The results of the audit have revealed that M.J. Santulli Mail Service , Inc., has underreported sever- al million dollars in reportable wages resulting in a shortfall of $242,403 .55 payable in dues to our client. Kindly have your client send to our client a bank or certified check for that amount so that our ac- counts will be reconciled. Should you fail to take care of this within 10 days of this letter will shall commence another action in the Supreme Court to enforce payment. In March 1984 counsel for the Union sent the follow- ing letter to Respondent: This office represents the abovenamed Trust Fund. It has come to our attention that your company is over $280,000.00 in arrears in contributions. This intolerable situation cannot continue and please be advised that we shall reinstate our judg- ment rights and commence enforcement proceed- ings as allowed by law on March 9, 1984. We regret having to take this action but formal legal requirements mandate the above. You can forestall this action by mailing one bank or certified check for $280,000 .00 as a good faith payment until we can finalize the higher figure due. Please mail this check directly to our office. In July 1983, Carter, Sciorra, and Union President James Dassaro met with Respondent's president , Michael Santulli . They informed him that they had received no payments to the Fund from Respondent recently and they could not allow that situation to continue. The union representatives and Santulli agreed that Respond- ent would pay to the Fund a sum of $3500 a week-"as a good faith gesture on his part ." At a subsequent time, the parties would meet to decide how much of this amount would be applied to Respondent 's arrears and how much would be applied to the continuing payments due. (At the time an obligation of approximately $ 15,000 a month to the Fund was accruing.) Sciorra testified that the Union was aware of Respondent's difficult financial situation , and "We didn't want to go overboard with him." Respondent made approximately 20 payments to the Fund pursuant to this agreement and then ceased such payments without agreement of the Union. Since that time, Respondent has made no further payments to the Fund. From about July 1983 to about March 1984, Carter visited the facility approximately twice a month to serv- 1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ice the shop . He was not very clear in his testimony about whether he had conversations with Santulli during this period regarding Respondent 's delinquency to the Fund ; he testified that he thought he spoke to Santulli about it prior to October 1984 and that he told him to make the payments . Carter testified , though, that during this period, on an "ongoing" basis, he informed Respond- ent's office manager , Ernie Cappobello (Cappy), that Re- spondent was not paying its obligations to the Fund, and that they should attempt to make these payments. Cap- pobello answered that it was not his department. Since Respondent became delinquent in its obligations to the Fund , the Union or the Fund has sent to Respond- ent, on a monthly basis, the following letter (with the blanks filled in): Your remittance reports and contributions for the months of thru was due by the 15th day of each following month but has not yet been received . We must ask you to make this remittance immediately . Your failure to do so may result in serious consequences. Failure to make contributions when due is a breach of your collective bargaining agreement and can result in the same action as would be taken for failure to pay wages when due. Furthermore, Section 406 (a)(1)(B) of the Em- ployee Retirement Income Security Act of 1974, specifically prohibits the lending of money or other extension of credit between the plan and a party in interest. The failure to make timely collections of contributions due and the failure to take legal action in the event of the delinquencies is deemed to be such a prohibited transaction. If full reports and payments are not received promptly , we shall be required to refer this matter, without further notice , to our General Counsel for collection , and report this delinquency to the Union for appropriate action under the terms of the collec- tive-bargaining agreement. By law , we have no alternative but to cancel Health and Welfare Benefits, in which case you will be liable to pay all Hospital , Surgical and Medical Claims, etc. Sometimes these letters were sent regular mail and other times they were sent by certified mail. Since about early 1984 , the letters sent certified have been returned to the Union with the word "refused" on the envelope. In addition , on about 50 occasions (both before and after July 1983) Sciorra has called the facility and asked to speak to Santulli ; on each occasion he was told that San- tulli was not there , he asked to speak to Cappobello, and told him that he wanted to speak to Santulli about Re- spondent 's delinquency with the Fund . Cappobello said that he would inform Santulli; Santulli has never re- turned any of these calls . On one occasion, when Sciorra was told that Santulli was not present , he asked to speak to the bookkeeper, but Cappobello informed him that only Santulli could help him with the problem. Counsel for Respondent at the hearing and in its brief objected to the fact that the General Counsel did not place in evidence the Fund 's underlying trust agreement. The General Counsel argued that she did not have the agreement in her possession at the hearing and that it was not necessary to establish her case . In addition, the uncontradicted testimony is that Santulli had been given a copy of the trust agreement . Counsel for Respondent contended that this trust agreement is essential to the General Counsel in sustaining her burden and, at the hearing, issued a subpoena for this document . Because the hearing had been pending for 8 months, during which time Respondent did not subpoena this document even though the issues were obvious, I sustained the General Counsel 's oral motion to quash this subpoena. Sciorra testified that Respondent 's delinquencies "put a drain on the Fund and resulted in the fund cutting the dental and optical plan in half , and raising the major medical deductible from $50 per family to $ 150 per indi- vidual ." However , Sciorra later testified that until April 1985, when the Fund 's trustees decided to cut benefits, the Fund continued to cover the employees for all their benefits, and until April 1985 the employees did not suffer due to Respondent 's delinquency. As stated , supra, the last collective-bargaining agree- ment between the parties expired on 30 September 1984. On 27 June 1984, the Union sent a registered letter to Respondent , stating that the International and Local "wish to discuss with you or your representative certain changes in the Collective Bargaining Contract now in effect between us which has its Anniversary date on Sep- tember 30, 1984." Cappobello , apparently , signed for the receipt of this letter on 29 June 1984. Respondent never responded to this letter. Carter routinely receives these letters that are sent out by the Union and the other local unions of the International that he services . Sometime in July, Carter rented a meeting room at Loew's Summit Hotel for 8 September 1984; on that date he conducted a meeting with approximately 40 of Respondent 's employ- ees. At this meeting Carter and the employees drew up bargaining proposals to be sent to Respondent and elect- ed a negotiating committee . A letter dated 10 September 1984 from Carter to Respondent , stated: Enclosed are the contract proposals of the member- ship of Local 318 employed by M.J . Santulli Mail Service, Inc. We are requesting an immediate meeting to com- mence negotiations for a new collective bargaining agreement. May I remind you that our present contract expires on September 30, 1984. Attached to this letter were 13 contract proposals from a $40-a-week wage increase to "No wearing of ties." This was sent registered mail and the receipt was apparently signed by Cappobello on 18 September 1984. Carter received no response from Respondent to this letter. Carter services the facility for the Union once or twice a month ; during July , August, and September and there- after, while he was at the facility, he told Cappobello and Gregory Pepe, the day dispatcher , that he wished to M. J. SANTULLI MAIL SERVICES 1293 speak to Santulli . On each of these occasions he was told that Santulli was not in , and he left a message for San- tulli to call him ; he never did. In addition , on two or three occasions each week during July, August , Septem- ber, and October he called the facility and asked to speak to Santulli . On each of these occasions he was told that Santulli was not in ; Carter left messages for Santulli to call him when he returned . Santulli never called Carter, nor has Respondent ever offered to meet and ne- gotiate with the Union. A procedural matter remains to be determined. The hearing herein was originally scheduled for 4 January 1985; on 20 December 1984 the General Counsel sent a subpoena ad testificandum to Santulli , c/o Respondent, and a subpoena duces tecum to Respondent for the pro- duction of numerous documents , books and records, and other articles . Both subpoenas were sent certified mail to Respondent, and both were returned to the Board marked "Refused" and dated 26 December 1984. By letter dated 6 March and 11 April 1985, the General Counsel informed Respondent that the hearing had been rescheduled to 8 May 1985 and that the previously served subpoenas were still in effect. Copies of both of these letters were also sent to counsel for Respondent. At the hearing Respondent produced neither Santulli nor any of the subpoened documents ; counsel for Respond- ent stated : "to my knowledge there has been no valid subpoena served ." Counsel for Respondent also stated that although he did receive courtesy copies of the 6 March and 11 April 1985 letters , since "in his view" there had been no valid service of the subpoenas, "I ig- nored those letters as representations of a Board Agent with respect to service which had never been made." The General Counsel , in her brief, requests on the grounds that Respondent did not produce either witnesses , including subpoened witness, or records, to controvert General Counsel's prima facie case, General Counsel requests that an adverse inference be drawn, to the effect that, if any wit- nesses or any records had been produced by Re- spondent they would have supported General Counsel's case, or conversely, that there are no wit- nesses or documents which would exonerate Re- spondent. 4 Respondent defends on the ground that the subpoenas were improperly addressed. Both were sent in Board en- * Although Respondent called no witnesses at the hearing, he refused to say that he had no witness after the General Counsel rested I initially asked counsel for Respondent if he had any witnesses to call ; he made a motion to dismiss I informed him that I would reserve judgment on the motion due to the mandate of the Administrative Procedure Act and the Board 's Rules and Regulations I again asked if he had any witnesses whom he wished to call and he answered "I respectfully request that at the appropriate time if and when our motion to dismiss is denied we then be given an opportunity to proceed with our case ." He reiterated that the complaint be dismissed I told him that I had already denied that motion and again asked if he had any witnesses . He answered - "I have witnesses but I don 't intend to put them on unless and until my motion to dismiss is upheld by the Board ." Again , I asked counsel if he had any witnesses and he said . "I will reserve the right to produce witnesses if and when the Board denies my motion or sustains your ruling on my motion to dis- miss." velopes; the subpoena duces tecum was addressed prop- erly except for the zip code which was corrected, pre- sumably, by the post office prior to delivery. The sub- poena ad testificandum was addressed to Santulli, c/o Respondent with no street address, only New York, New York, with the incorrect zip code; the correct ad- dress was handwritten on the envelope. Therefore, al- though there may initially have been some infirmity in the addressing of the envelopes , this infirmity was cor- rected prior to delivery, and the subpoenas were deliv- ered . It is equally clear that Respondent refused to accept these subpoenas . Although counsel for Respond- ent, in its brief, alleges that there was no proof that the subpoenas were delivered to, and refused by, Respond- ent, the Board and administrative law judges do not close their eyes to reality. These subpoenas, and the Union 's certified letters to Respondent , were all returned to the senders marked "refused" this was no coincidence; rather it was a determination by Respondent in late 1984 to refuse any certified mail from the Union or the Board. In Pasco Packing Co., 115 NLRB 437 (1956), the Board ruled that "Willful refusal to accept registered mail" will not be permitted to "thwart service of process." Sheet Metal Workers Local 49 (Driver-Miller Plumbing Corp.), 124 NLRB 888 , 890 (1959), stated : "Willful and negligent refusal or failure to receive or call for registered or certi- fled mail, obviously can not serve to defeat the purposes of the Act." As Respondent produced no record evi- dence denying that it refused the delivery of these sub- poenas, I find that proper service was made on Respond- ent. Sears Roebuck & Co., 117 NLRB 522 (1957). In addi- tion to these subpoenas , the General Counsel sent two letters by regular mail to Respondent, with copies to counsel for Respondent , advising them of the resched- uled hearing date and of the fact that the subpoenas were still in effect. There can be no doubt that Respondent was aware of the outstanding subpoenas , but was deter- mined to resist them by claiming to have never received them . More troubling , however, is the statement by counsel for Respondent that he ignored these subpoenas because "in my view and as per Ms. Chill 's representa- tion to me in mid-February there had been no valid serv- ice." If Chill (counsel for the General Counsel) had made that representation to counsel for Respondent in mid-February, as he alleges , and subsequently received copies of the letters sent to his client referring to the "subpoenas served," it should have placed some uncer- tainty in counsel for Respondent 's mind to call the Gen- eral Counsel to inquire whether she felt the subpoenas were properly served; instead , he simply "ignored" these letters. While normally I would find the adverse infer- ence requested by the General Counsel, I find it unneces- sary to decide such a determination herein considering my findings discussed, infra, and the fact that Respond- ent presented no witnesses or evidence. The collective-bargaining agreement effective 1 Octo- ber 1982 , states : "The Employer agrees to recognize the Union as the sole and exclusive bargaining agency for all drivers . Those excluded shall be all supervisors , execu- tives, guards as defined in the Act." The complaint al- leges the following as the appropriate unit : "All full-time 1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and regular part-time drivers employed by Respondent at its New York, New York facility excluding all other em- ployees, executives , guards and supervisors as defined in the Act." Counsel for Respondent , in its answer , denied knowledge or information sufficient to form a belief about the truth or falsity of this allegation . No evidence was adduced at the hearing on this subject , except for the receipt into evidence of the contract. As the Com- plaint's unit description is consistent with that described in the agreement, I find it correct and appropriate. "Such unit is consistent with that recognized by the parties in their collective bargaining agreements and these agree- ments described the bargaining unit with sufficient clar- ity." Cauthorne Trucking, 256 NLRB 721 (1981). It requires no case citations to establish that Respond- ent's failure and refusal to meet and negotiate with the Union violates Section 8(a)(1) and (5) of the Act. The Union's letter to Respondent in June, Carter's 10 Sep- tember 1984 letter with the attached demands, and all the attempted telephone calls to Santulli went unan- swered and unreturned . Clearly, Respondent had no in- terest in , or intention to, meet and negotiate in good faith with the Union. Counsel for Respondent, in its brief, de- fends on two grounds : that "General Counsel has offered no evidence that the Union continues to enjoy majority status," and that since the collective-bargaining agree- ment contained "unlawful provisions" Respondent was under no duty to negotiate with the Union. As for the initial defense , the Board, in Stratford Visiting Nurses, 264 NLRB 1026 ( 1982), stated: It is well established that upon expiration of a collective-bargaining agreement a union enjoys a re- buttable presumption that its majority representative status continues . This presumption is rebutted if an employer affirmatively establishes either ( 1) that its refusal to bargain was predicated on a good-faith doubt, based on objective considerations , or (2) that at the time of the refusal to bargain a majority of the unit employees in fact did not wish to have the union as their collective -bargaining representative. In Pennco, Inc., 250 NLRB 716 at 717 (1980), the Board referred to the employer's burden as a "heavy one." As Respondent introduced no evidence whatso- ever to sustain its burden that the Union no longer en- joyed majority status, or that a majority of its employees no longer wished to be represented by the Union, this defense falls. As regards Respondent's remaining defense, the Board law was set forth in Chemical Workers Local 112 (Ameri- can Cyanamid Co.), 237 NLRB 864 at 865 (1978): "We have long held that a union -security clause may not be applied retroactively . It is also well established that the date of execution , not the effective date of the collective- bargaining agreement, governs the validity of such a clause ." See also Typographical Union 16 (Continental Composition), 268 NLRB 347 (1983). Respondent , in its brief, alleges that the union-security clause herein is unlawful for the following reason: The Written Agreement requires that new hires join the Union "on and after 90 days from hiring or from the effective date of this Agreement." The Written Agreement, however, was executed on July 11, 1983 and made retroactive to October 1, 1982. Thus, those hired between the effective date and the date of execution , October 1, 1982 through July 11, 1983, were denied their statutory right to have 30 days in which to decide if they wish to join the Union. Therefore, this clause is unlawful. This argument is totally specious in that counsel for Respondent (whether done inadvertently or as an at- tempt to obfuscate the truth) fails to mention the last three words of this clause: "whichever is later." In fact, the latter part of this clause is almost verbatim taken from the proviso to Section 8(a)(3) of the Act, except that the contract clause gives the employees 90 days rather than 30 to join the Union: "to require as a condi- tion of employment membership therein on or after the thirtieth day following the beginning of such employ- ment or the effective date of such agreement, whichever is the later." The last collective-bargaining agreement between the parties provided, inter alia that Respondent pay 9 per- cent of its payroll to the Fund on a monthly basis. Both before and after the execution of this agreement, Re- spondent was substantially delinquent in its contributions, and supporting bookkeeping to the Fund. As of July 1983, Respondent had failed to make payments to the Fund for a year or two and was in arrears in an amount of approximately $250,000. At that time, Respondent and the Union executed the 1 October 1982 through 30 Sep- tember 1984 agreement and further agreed that Respond- ent would pay the sum of $3500 a week to the Fund, which it did for approximately 20 weeks; since that time (approximately 1 December 1983) it has made no pay- ments to the Fund. Counsel for Respondent, in its brief, refers to this July agreement as "an accord and satisfac- tion in compromise and full settlement of all past due Fund contributions" and an agreement "to discontinue Santulli's obligation to make future Fund contributions." There is no evidence, whatsoever, to support this con- tention. Although Carter and Sciorra were uncertain whether Respondent's payments were to cover past or present Fund obligations, this confusion is understand- able as the Union was anxious to have some contribu- tions from Respondent, rather than none, and the Union may therefore have left the agreement somewhat vague, with the understanding that they would work out the de- tails later. Sciorra's testimony that "We didn't want to go overboard with him" is logical as Respondent em- ployed almost one hundred union members and the Union wanted Respondent to make the payments to the Fund without causing its insolvency with the resulting job loss for the union members. Counsel for Respond- ent's contention is further belied by the monthly delin- quency letters the Union sent Respondent and the regu- lar unsuccessful attempts Carter and Sciorra made to contact Santulli about the delinquency. Also unexplained, and totally unsupported by the record, is the statement in Respondent's brief that article 4, section C of the con- tract "which on their face restrict the health and welfare M. J. SANTULLI MAIL SERVICES 1295 benefit to union members , are patently unlawful 'mem- bers only' provisions." The record is thus clear that in 1981 , 1982, early 1983, and, again , in about December 1983, Respondent unilat- erally discontinued making its contractually obligated Fund payments, without previously negotiating with the Union about it. The law is clear that an employer may not alter the terms and conditions of employment con- tained in a collective-bargaining agreement by unilateral- ly changing mandatory subjects of bargaining (like fund contributions) without prior negotiations with the union representing its employees . In Farmingdale Iron Works, 249 NLRB 98, 99 fn. 5 (1980), the Board stated, "It is well settled that an employer is obligated to maintain the status quo during both initial negotiations and, as here, the term of an existing collective bargaining agreement." In that case , the Board also stated : "the unilateral deci- sion to discontinue making benefit fund contributions, like the failure to make periodic wage increases , consti- tutes a violation of Section 8(a)(5) of the Act." See also NLRB v. Katz, 369 U.S. 736 (1962), and Abbey Medical/Abbey Rents, 264 NLRB 969 (1982). The law is equally clear that this obligation does not cease on the expiration of the contract. In Sacramento Union, 258 NLRB 1074, 1075 (1981), the Board stated: The Board has held that an employer's duty to bargain over changes in established terms and con- ditions of employment is not relieved by the expira- tion of a collective-bargaining agreement . Although the expiration of a contract may permit an employ- er to negotiate new and different terms, it may not, absent an impasse or waiver by the Union, unilater- ally change established practices with respect to mandatory subjects or bargaining. In Peerless Roofing Co. v. NLRB, 641 F.2d 734, 736 (9th Cir. 1981), the court stated: If the employer 's obligation to make trust fund pay- ments were terminated by the expiration of the agreement , the union would never have an opportu- nity to bargain over those contributions . This result would not advance national labor policy as articu- lated in the National Labor Relations Act. The Board, in Hen House Market No. 3, 175 NLRB 596 (1969), stated : "The pension, health, and welfare plans provided for by the expired contract constituted an aspect of employee wages and a term and condition of employment which survived the expiration of the con- tract and could not be altered without bargaining." In Cauthorne Trucking, the Board stated: Thus, an employer may not unilaterally alter pay- ments into such plans unless : ( 1) the changes are made subsequent to the parties' reaching a bargain- ing impasse and the union has rejected the changes prior to the impasse, (2) the employer demonstrates that, at the time the changes were made, the union did not represent a majority of the unit employees or that the employer had a good -faith doubt, based on objective considerations , of the union 's continu- ing majority status, (3) the union waived its right to bargain regarding the changes. Respondent satisfied none of these requirements and its unilateral discontinuance of Fund payments therefore violated Section 8(a)(1) and (5) of the Act. Respondent has numerous defenses to this finding; principal among them is that as the underlying trust agreement is not in evidence , the complaint in this regard must be dismissed . However, the underlying trust agreement is not an essential part of the General Coun- sel's case, and the Board has found that employers have violated Section 8(a)(5) of the Act without the underly- ing trust agreement in evidence . See, for example , Taurus Waste Disposal, 263 NLRB 309 (1982). Counsel for Re- spondent is correct, however, when he states that the terms and provisions of the trust agreement may provide a defense for Respondent in such a matter ; e.g., that the trust agreement provides that the employer 's obligation to pay into the Fund ceases on the expiration of the con- tract, or that provisions of the Fund are inenforceable because they are not in compliance with the Act, ERISA, or any other applicable statutes . However, once the General Counsel has proven the contractual require- ments of payment into the Fund , and the unilateral dis- continuance of these payments , it is Respondent 's burden to establish that these payments need not be made, and any such waiver "must generally be clear and unmistak- able." American Distributing Co. v. NLRB, 715 F.2d 446 (9th Cir. 1983). Spector Freight System, 260 NLRB 86 (1982); Artim Transportation System, 264 NLRB 139 (1982). See also Geriatrics, Inc., 242 NLRB 795 (1979). Respondent is in no position to complain herein, as the uncontradicted testimony is that Santulli was given a copy of the underlying trust agreement ; in addition, ERISA requires that these funds file plan descriptions and annual reports with the Secretary of Labor, who is then required to make these documents available for in- spection at the Labor Department ; therefore counsel for Respondent could have obtained an additional copy of the trust agreement in that manner . Finally , counsel for Respondent, in his brief, alleges that my action in grant- ing a motion to quash his subpoena was prejudicial and constituted reversible error . As stated, supra, the orginal complaint in this matter issued on 14 September 1984, almost 8 months prior to the hearing herein . That com- plaint alleged , inter alia , that Respondent's refusal to make its contractually obligated payments to the Fund violated Section 8(a)(5) of the Act . Rather than obtaining a copy of the trust agreement , at that time, from his client, the Department of Labor, the Union or requesting a subpoena for this document , he waited until the hear- ing was in progress, at which time he requested this doc- ument . On the basis of these facts , I sustained the Gener- al Counsel's motion to quash rather than further delay the hearing. Counsel for Respondent , at the hearing and in his briefs, cited Cauthorne Trucking, supra, to support its ar- gument that the General Counsel 's failure to produce the underlying trust agreement necessitates that the com- plaint must be dismissed . In that case , the employer exe- cuted agreements with the union in 1972 and 1973, to- 1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gether with the union 's trust fund agreements, and made the required contributions . In 1975 he signed an interim agreement with the union , but never executed the final agreement between the union and the association of em- ployers for the period 1975 through 1978; however, he continued to make the specified payments to the trust fund for his employees (including the increase provided by the contract) during this period and also dealt with the union regarding grievances . In 1978, he told the union that he would not sign a contract and at the expi- ration of the 1975-1978 contract he unilaterallly ceased making payments into the trust funds . The Board reject- ed his arguments that he was not bound by the terms of the 1975-1978 contract and that he was not obligated to make the trust fund payments during this period, and found that he violated Section 8 (a)(1) and (5) of the Act by unilaterally ceasing such payments in 1978. The Board found , however, that because the trust agreement expressly provided for the termination of the obligation to contribute to the trust on the expiration of the con- tract and the absence of a new contract , he was privi- leged to cease making payments into the fund on the ex- piration of the contract . This case does not stand for the proposition espoused by counsel for Respondent that the General Counsel has the burden of placing the underly- ing trust agreement in evidence ; rather, it holds, inter alia, that the terms of the trust or the union 's loss of ma- jority status may excuse the employer 's delinquency at the contract 's conclusion, as stated , supra. Counsel for Respondent also presents a number of de- fenses under Section 10(b) of the Act. Initially , he alleges that Respondent has made no contributions to the Fund since at least 1982 (restating his "accord and satisfaction" theory rejected , supra) and therefore Section 10(b) total- ly bars this action . In actuality, the last payments to the Fund were made in about November 1983, more than 6 months prior to the filing of the initial charge herein. However, the Board law, as stated in Farmingdale Iron Works, supra, is clear: The Board further has held that the unilateral de- cision to discontinue making benefit fund contribu- tions, like the failure to make periodic wage in- creases, constitutes a violation of Section 8(a)(5) of the Act . Accordingly , we conclude that each failure to make the contractually required monthly benefit fund payments constituted a separate and distinct violation of Respondents ' bargaining obligation. See also Abbey Medical/Abbey Rents, supra , and Campo Slacks , 266 NLRB 492 ( 1985). The initial charge herein was filed by the Fund 2 August 1984 and served on Respondent 6 August. It al- leges a violation of Section 8(a)(1) of the Act, and states (in addition to the boilerplate "By these and other acts clause .") "The employer has failed to pay over $300,000 in employer contributions toward employees health and welfare benefits pursuant to the annexed contract." The amended charge filed by the Fund on 10 September 1984 repeats this allegation , verbatim , but alleges it as an 8(a)(1) and (5) violation . On the next day, the Union filed an 8(a)( 1) and (5) charge against Respondent , also recit- ing the Fund's charge allegation verbatim . Counsel for Respondent , in its brief, alleges that even if Section 10(b) is not a total bar to this action , the first valid charge herein was the one filed by the Union 11 September 1984, because the first charge, filed 2 August 1984 al- leged only an 8(a)(1) violation and that charge and the 10 September 1984 charge filed by the Fund were not ef- fective to commence the 10(b) period because "the Fund lacks standing to file a refusal to bargain charge." The law is not so restrictive; Operating Engineers Local 39 (Kaiser Foundation), 268 NLRB 115, 116 (1983), stated: "The simple fact is that anyone for any reason may file charges with the Board." And in NLRB v. Teamsters Local 364, 274 F.2d 19, 24 (7th Cir. 1960), the respond- ents alleged that the proceeding was a nullity because the charge was filed by the primary employer in the dis- pute, who was not an "innocent third party." The court stated : "The Act does not place such restrictions on the charging party, but provides, Section 10(b), 'Whenever it is charged ' the Board shall have power to investigate, etc. Anyone may file a charge." The law is also clear on Respondent 's remaining de- fense in this regard. In NLRB v. Central Power & Light Co., 425 F.2d 1318 (5th Cir. 1970), the court stated: The charge is thus not intended to be a detailed pleading or to specify the issues ultimately to be raised before the [administrative law judge]; the Board 's complaint serves that function . All that the requirement is really concerned about is that the in- stigation of an investigation and complaint proceed under a formal charge made by the party aggrieved and not from the Board 's own initiative . According, general allegations such as that the employer "by other acts and conduct . . . interfered with, re- strained and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act," ... are legally sufficient to cause inclusion of other acts if they are sufficiently related to the specific acts alleged . And sufficient relation has generally been found between acts that are part of the same course of conduct, such as a single campaign against a union. In NLRB v. Louisiana Mfg. Co., 374 F.2d 696, 704-705 (8th Cir. 1967), the court stated: Of course, there are limits to which the Board may expand the scope of the litigation outside of the allegations in the charge . However, technical wording of the charge is not required . The charge will normally be "sufficient if it informs the alleged violator of the general nature of the violation charged against him and enables him to preserve the evidence relating to the matter." N.L.R.B. v. Raymond Pearson, Inc., 243 F.2d 456, 458 (4 Cir. 1957) . . . . And , as generally noted in N.L.R.B. v. Kohler Company, 920 F.2d 3, 6 (7 Cir. 1955): "It has been said repeatedly that the charge is not a plead- ing, being intended , rather, as an administrative step necessary to set the Board's investigatory process in motion . The charge should, therefore be construed M. J. SANTULLI MAIL SERVICES 1297 broadly so as to allow any specific allegations in the complaint that are of 'the same general nature."' See also NLRB v. Dinion Coil Co., 201 F . 2d 484 (2d Cir. 1952). Teamsters Local 734 (ITT Continental), 238 NLRB 1354, 1357 (1978), stated : "However, it has long been es- tablished that the statutory six month period is to be cal- culated from the date of the filing of the original and not the amended charge, unless the 'amended ' charge is so drastic a departure from the substance of the facts orgin- ally charged as in effect to amount to a different case." The only addition on the 10 September 1984 charge was that it specified an 8(a)(5) violation , as well as an 8(a)(1) violation , this is not "so drastic a departure," from the 2 August 1984 charge . As the charge was mailed to Re- spondent on 6 August 1984, Respondent 's liability com- mences on 6 February 1984. Respondent's two remaining defenses are that this matter should be dismissed because the Union has insti- tuted a court action to collect the moneys due to the Fund , and that the complaint should be dismissed and the parties should be required to arbitrate the dispute under United Technologies Corp., 268 NLRB 557 (1983). As regards the former , the Supreme Court, in NLRB v. Strong Roofing, 393 U . S. 357 at 361 (1969), stated: Arbitrators and courts are still the principal sources of contract interpretation , but the Board may pro- scribe conduct which is an unfair labor practice even though it is also a breach of contract remedial as such by arbitration and in the courts. Respondent , in its brief, is correct that in Capitol City Lumber Co., 263 NLRB 784 (1982), then Chairman Van de Water , in a concurring opinion , recommended that the Board decline jurisdiction in actions "involving purely contract interpretation unless a serious statutory issue is involved," and leave such matters to the courts. However, the Board majority in that case did not join in the Chairman 's opinion and it is not existing Board law to defer or dismiss due to the pendency of a court action. In United Technologies, the Board overruled General American Transportation Corp ., 228 NLRB 808 (1977), and returned to the doctrine of deferral of Collyer Insu- lated Wire, 192 NLRB 837 (1971 ), thereby expanding the area of cases to be deferred to include Section 8 (a)(5). To be deferred , the contractual grievance -arbitration clause must "clearly encompass" the dispute (a grievance is defined in the contract as "any dispute concerning working conditions, interpretation and application of par- ticular clauses of this Agreement, and alleged violations of this Agreement by either party)" and the respondent seeking deferral must be willing to arbitrate the dispute and must be willing to waive any timeliness provision of the contract's grievance -arbitration clause (there is none). The dispute herein is clearly encompassed by the griev- ance-arbitration clause of the contract and there is no time limit in the agreement for the Respondent to waive. However , Respondent has never indicated a willingness to arbitrate ; in its brief he concludes: "the Charging Par- ties failure to exhaust their contract remedies requires dismissal of the Complaint." (Emphasis added .) Dismissal and deferral are distinct remedies ; by asking that the complaint be dismissed counsel for Respondent has re- jected the possibility of arbitration. In United Technologies, the Board stated (at 560) that deferral would be inappropriate "when the respondent's conduct constitutes a rejection of the principles of col- lective bargaining," quoting from the dissent in General American Transportation . The dissenters in that case cited three cases where deferral was found inappropriate on this ground . In Mountain State Construction Co., 203 NLRB 1085 (1973), the Board found Respondent 's posi- tion before and during the hearing , that it was not bound by the contract to be "a complete rejection of the princi- ples of collective bargaining ." In Joseph T. Ryerson & Sons, Inc., 199 NLRB 461 (1972) and North Shore Pub- lishing Co., 206 NLRB 42 ( 1973), the Board refused to defer to the arbitral process because the conduct com- plained of was designed to interfere with employee access to the grievance arbitration machinery: "We cannot trust such a complaint to a procedure the integri- ty of which is directly challenged by the allegations of the complaint itself." North Shore, supra at 43. In United Aircraft Corp., 204 NLRB 879 , 880 (1973), the Board discussed deferral under Collyer, supra: We continue to believe that an exploration of the nature of the relationship between the parties is rel- evant to the question of whether in a particular case we ought or ought not defer contractually resolv- able issues to the parties ' own machinery. Where the facts show a sufficient degree of hostility , either on the facts of the case at bar alone or in the light of prior unlawful conduct of which the immediate dispute may fairly be said to be simply a continu- ation , there is serious reason to question whether we ought to defer to arbitration. The Board then stated that it must look at factors such as the parties ' collective-bargaining relationship and whether the grievance-arbitration machinery is effective. "Upon a totality of those facts, it must then be deter- mined whether the parties agreed-upon grievance and ar- bitration machinery can reasonably be relied on to func- tion properly and to resolve the current disputes fairly." Finding "positive evidence of maturation of the collec- tive bargaining relationship ," the Board deferred. This question also arose in two more recent cases. In Postal Service , 270 NLRB 1022 (1984), the General Coun- sel argued that deferral was not appropriate because after the parties settled a grievance by the employer's accept- ance of the union 's position on the grievance, the em- ployer, basically, repeated his prior action . The General Counsel alleges that this constituted a rejection of basic collective-bargaining principles . The Board found, how- ever, that the employer's action was not "a broad rejec- tion of the applicability of the grievance -arbitration proc- ess." The Board also stated : "We note that there is no contention that the parties are not continuing to process and resolve grievances on other matters ." In United Beef Co., 272 NLRB 66 (1984), a grievance was filed alleging that a shop steward was harassed and discharged for processing grievances. The Board deferred, citing lan- guage from United Technologies that this alleged miscon- 1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duct "does not appear to be of such character as to render the use of [the grievance-arbitration] machinery impromising or futile ." In its brief, counsel for Respond- ent states : "the parties have continued to use the griev- ance machinery productively." There is no record evi- dence to support this allegation. Carter testified that there were one or two arbitrations under the contract, sometime prior to its expiration in 1984; there was no testimony of any grievances or arbitrations subsequent to that time . The record establishes that since mid-1984, Re- spondent has refused to meet or bargain with the Union, has refused to make any payments to the Fund , has failed to accept registered mail from the Union and the Board, and has failed to return any of the many phone calls, or personal requests made by Carter and Sciorra. This action by Respondent constitutes a rejection of its obliga- tion to bargain , meet or , at least, talk to the Union. I therefore find that deferral is not appropriate herein as set forth in the Board 's United Technologies decision. I therefore find that Respondent 's failure and refusal to make payments to the Fund on behalf of its employees, since 6 February 1984, violates Section 8(a)(1) and (5) of the Act. CONCLUSIONS OF LAW 1. Respondent M. J. Santulli Mail Services , Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of the Act. 3. All full-time and regular part-time drivers employed by Respondent at its New York, New York facility, ex- cluding all other employees , executives , guards and su- pervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since about 1970, the Union has been the exclusive collective-bargaining representative of the employees de- scribed above. 5. By refusing , since June 1984 to meet and bargain with the Union as the collective -bargaining representa- tive of its employees in the appropriate unit described above, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 6. By unilaterally ceasing its payments to the Union's Health and Welfare Trust Fund, commencing, for the purpose of this proceeding, since 6 February 1984, Re- spondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 7. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices , I shall recommend that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In this regard I shall recommend that Respondent repay the Union's Health and Welfare Trust Fund for all moneys due to that Fund, as provided in the expired collective- bargaining agreement , from 6 February 1984 until such time as Respondent negotiates in good faith with the Union to the point of entering into a new collective-bar- gaining agreement or an impasse . As a necessary part of this, I shall recommend that Respondent be ordered to open all its corporate books to the Board and the Union, its accountants , or other representatives, to determine the amount owed to the Fund from 6 February 1984. I leave for the compliance stage of this proceeding , the interest to be paid by Respondent and the amount Respondent must pay to the Fund or, ultimately , to Respondent's em- ployees to satisfy a "make-whole" remedy. Taurus Waste Disposal, supra, appearing from Sciorra 's testimony that prior to 1 April 1985 the Fund did not cut the employee- member's benefits; after that date, Respondent will be liable to the Fund , as well as to employee-members for any loss suffered , plus interest. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed5 ORDER The Respondent , M. J. Santulli Mail Services, Inc., New York, New York, its officers , agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to meet and bargain collectively with Local 318, United Paperworkers International Union, AFL-CIO, as the exclusive representative of its employ- ees in the appropriate unit described as follows: All full-time and regular part-time drivers employed by Respondent at its New York facility excluding all other employees , executives , guards and supervi- sors as defined in the Act. (b) Unilaterally ceasing payments to the Union's Health and Welfare Trust Fund as provided for in the collective-bargaining agreement , which expired 30 Sep- tember 1984 between Respondent and the Union. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Bargain in good faith with the Union as the exclu- sive representative of its employees in the appropriate unit described above. (b) Make its employees and the Fund whole by paying to the Fund , with interest , the amount as provided in the collective-bargaining agreement which expired 30 Sep- tember 1984. The obligations shall commence beginning 6 February 1984 and continue until such time as Re- spondent negotiates in good faith to a new agreement or to an impasse . Respondent shall also make its employees whole, with interest, for any loss they suffered due to Respondent 's unlawful discontinuance of its payments to the Fund commencing 6 February 1984. S 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. M. J. SANTULLI MAIL SERVICES 1299 (c) Open all its corporate books, including , but not limited to, its payroll register , to acccountants or other representatives of the Union and/or the Board , in order to determine the amount Respondent owes the Fund and its employee-members due to Respondent 's nonpayment to the Fund since 6 February 1984. (d) Post at its New York, New York facility copies of the attached notice marked "Appendix."6 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent 's author- ized representative , shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 6 If this Order is enforced by a judgment of a United States court of appeals , the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX WE WILL NOT unilaterally cease making payments into the Local 318 Health and Welfare Trust Fund. WE WILL NOT refuse to meet and bargain collectively with Local 318, United Paperworkers International Union, AFL-CIO, the exclusive bargaining representa- tive of our employees in the following appropriate unit: All full-time and regular part-time drivers employed at our New York, New York facility, excluding all other employees , executives , guardas and supervi- sors as defined in the Act. WE WILL NOT in any like or related manner interfere with , restrain , or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL make the Fund whole by paying to them the amount that we should have paid them since 6 February 1984, plus interest , absent our unilateral discontinuance of the payments and WE WILL continue such payments until such time as we negotiate in good faith to a new agreement or to an impasse. WE WILL make whole our employees, with interest, for any loss they suffered as a result of our unilateral dis- continuance of payments to the Fund. WE WILL bargain collectively with the Union as the exclusive representative of our employees in the above- described unit. NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government M. J. SANTULLI MAIL SERVICES, INC. The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice.