245 N.L.R.B. 1205 (N.L.R.B. 1979)

Richmond Homes

National Labor Relations Board - Board DecisionsSep 28, 1979

245 N.L.R.B. 1205 (N.L.R.B. 1979)

RICHMOND HOMES Richmond Homes, Inc. and Zimmer Motor Van-Zim- mer Homes Corporation and Zimmer Homes Cor- poration and Laborers International Union Of North America, Local Union No. 1047. Case 25- CA-10219 September 28, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On May 1, 1979, Administrative Law Judge Rob- ert W. Leiner issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting brief, Respondent filed an answering brief, cross-exceptions and a supporting brief, and a brief in opposition to the exceptions of the Charging Party. The Charging Party filed excep- tions and a supporting brief and a brief in opposition to Respondent's cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. I The Charging Party has excepted to certain credibility findings made by the Adrministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard DO' Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. The Charging Party has requested oral argument. This request is hereby denied as the record, the exceptions, and briefs adequately present the issues and the positions of the parties. DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge: Upon a charge filed by Laborers International Union of North America, Local Union No. 1047, herein called the Laborers or the Charging Party, on September 28, 1978, against Richmond Homes, Inc., herein called Respondent, a com- plaint and notice of hearing was issued on October 31, 1978, alleging violation of Section 8(a)( 1) and (5) of the Act. by virtue of Respondent allegedly having instituted a uni- lateral change in the contractual terms and conditions of employment of employees represented by their collective- bargaining representative, the Charging Party. Respondent filed its timely answer on November 9, 1978. At the hearing the General Counsel amended its complaint, without objec- tion, alleging the participation as Respondent of Zimmer Homes Corporation, through its Zimmer Motor Van Divi- sion (herein called Respondent Zimmer Homes), in the un- fair labor practices alleged above. The hearing was held in Richmond, Indiana, on four dates between February 8 and 28, 1979. After the conclusion of the receipt of evidence counsel for all parties waived oral argument and thereafter filed timely and helpful briefs. Upon the entire record in the case, including my observa- tion of the demeanor of the witnesses and with due consid- eration of the briefs. I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENTS The original complaint alleges, Respondent admits, and I find that Richmond Homes, Inc., Respondent herein, is an Indiana corporation maintaining an office and factor in Richmond, Indiana, where it is engaged in the manufac- ture, sale, and distribution of prefabricated housing. The complaint as amended also alleges and Respondent admits that Zimmer Motor Van Division, is an unincorporated di- vision of Zimmer Homes, Inc., an Ohio corporation whose principal office and place of business is in Pompano Beach, Florida, nevertheless maintains offices and a place of busi- ness for Zimmer Motor Van Division in Richmond, Indi- ana. Respondent at hearing asserted without contradiction that Zimmer Van Motor Division, unlike Respondent Rich- mond Homes, is not engaged in the business of manufac- ture of prefabricated housing but is engaged in the recon- version and construction of custom van interiors and related products. Proof adduced at the hearing fully sup- ports Respondent's assertion. In any event, the complaint as amended alleges and Respondent admits that Richmond Homes' operations produced direct outflow across state lines on a regular annual basis of products valued in excess of $50,000. Similarly, Respondent Zimmer Homes admits that on an annual basis it receives more than $50,000 worth of goods transported to its Richmond, Indiana, facility di- rectly across state lines. I conclude that Respondent Rich- mond Homes, Inc., and Respondent Zimmer Homes Cor- poration are and each of them is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act based, respectively, on direct inflow (Zimmer Homes) and outflow (Richmond Homes). The complaint as amended also alleges, Respondents Zimmer Homes and Richmond Homes admit, and I find that Respondent Richmond Homes at all material times has been a wholly owned corporate subsidiary of Respondent Zimmer Homes. 245 NLRB No. 154 1205 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The amended complaint also alleges and General Coun- sel adduced evidence at the hearing to prove that Rich- mond Homes, Inc., and Zimmer Homes Corporation, Van Division, are affiliated businesses sharing a common labor policy affecting the employees of the two Respondents em- ployed at the Richmond, Indiana, facility, which constitute a single integrated business enterprise: and that an overall unit of the production and maintenance employees em- ployed by the two Respondents at the Richmond, Indiana, plant constitutes an appropriate bargaining unit. Respon- dents deny these two allegations. Under the disposition of this case, below, it is unnecessary to reach or decide either of these issues. Finally, I find as Respondents admitted at the hearing that John C. Lombard, an attorney, Arnold (Arnie) Dietz, and Paul Zimmer are supervisors of Richmond Homes within the meaning of Section 2(11) of the Act and/or agents thereof acting within their authority. II. THE LABOR ORGANIZATIONS INVOIVFD The complaint alleges and Respondents deny sufficient knowledge and information to affirm or deny that the Charging Party is a labor organization within the meaning of the Act. On the basis of the undisputed evidence that the Charging Party actually represents the employees of both Zimmer Homes Corporation, Van Division, and Richmond Homes, Inc., for purposes of collective bargaining in the Richmond. Indiana, plant and, indeed, has executed succes- sive collective-bargaining agreements with Richmond Homes, Inc., relating to employees' wages, hours, and other conditions of employment, I conclude and find that the Charging Party, Laborers International Union of North America, Local Union No. 1047, at all material times is a labor organization within the meaning of Section 2(5) of the Act. Similarly I conclude on the basis of undisputed asser- tions and testimony adduced by Respondents and the Charging Party that Local 912 of the United Brotherhood of Carpenters and Joiners of America is a labor organiza- tion within the meaning of Section 2(5) of the Act. (See Resp. Exh. 7.) III. THE ALLEGED UNFAIR LABOR PRACTICES Except for certain conversations between the negotiating agent of the Charging Party, Charles R. Morris (secretary- treasurer and business manager of Laborers' International Union, State of Indiana, district council), and John C. Lombard, Esq., agent of and attorney for both Zimmer Homes Corporation, Van Division, and Richmond Homes, Inc., Respondents herein, the underlying facts herein are undisputed, as General Counsel concedes. At least since 1953 a predecessor of Richmond Homes, Inc., had employees who were represented by the Laborers. In or about 1967 the Laborers' International Union, the Charging Party's present, created a series of pension funds including the Laborers' International industrial pension fund, contributions to which are in issue herein. About 500 employers contribute to and 30,000 employees participate in this fund, the employers being "industrial" employers rather than those engaged in the construction industry. In or about 1969 Zimmer Homes Corporation purchased the operation known as Richmond Homes and incorporated it. Thereafter, Richmond Homes. Inc., a wholly owned subsid- iary of Zimmer Homes Corporation engaged in operations in the construction industry until 1969. After 1969 Rich- mond Homes, Inc., manufactured and is manufacturing prefabricated housing. At least since 1969 varying percentages of the production and maintenance employees of Richmond Homes, Inc., have been separately represented by two labor organiza- tions: the Charging Party and Local 912 of the United Brotherhood of Carpenters and Joiners of America. (See Resp. Exh. 7.) In the period of' 1971 74, and again in 1974 1977, the Richmond Homes employees (in essentially a pro- duction and maintenance unit), being represented by the two labor organizations, had their wages, hours, and terms and conditions of employment governed by separate collec- tive-bargaining agreements running between Richmond Homes and the two unions. The collective-bargaining agreements, according to Morris' undenied testimony, were bargained for by a single committee of the two unions' agents and are identical with regard to classification.' wages, hours, and conditions of employment. The employ- ees, regardless of their union affiliation, work interchange- ably in all skills in the Richmond Homes production and maintenance unit. The only substantive and substantial dif- ferences in the two agreements are the names of the labor organizations and the destination of the moneys paid to the two labor organizations.- With the expiration of the 1971 -74 collective-bargaining agreements Richmond Homes negotiated the 1974-77 col- lective-bargaining agreements with the committee repre- senting the Laborers and Carpenters whose chief spokes- men was Charles R. Morris (as noted above, an officer of the district council for the State of Indiana Laborers, the agency which collectively bargains for all participating La- borers locals in the State). The bargainer for Richmond Homes, Inc., was attorney Lombard. Thus, effective March 1, 1974, the Charging Party (and separately the Carpenters), and Richmond Homes, Inc., en- tered into two 3-year collective-bargaining agreements which expired February 28, 1977. The agreement with the Laborers recognized the Laborers in the following unit: RECOGNITION Section 1: For the purposes of collective bargaining with respect to wages, hours, and other conditions of employment, the employer recognizes the Union as the sole and exclusive bargaining agent of all its Employ- The classifications are not actually the same. However, as noted in the text, the classifications describe no actual differences. The union members work interchangeably in all classifications without changes in rates of pay. duties, or other elements. 2 The collective-bargaining agreements of both the Laborers and Carpen- ters (G.C. Exh. 2 and 4 and Resp. Exh. 7), require membership in the par- ticular labor organization as a condition of employment under a 31-day union-security clause and provide for checkoff of union dues. In fact, new employees are given a choice of joining one of the two labor organizations upon their becoming employees. Both agreements contain identical pension fund contribution clauses. Thus, checkoff dues and pension contributions go to separate union recipients. 1206 RICHMOND HOMES ees in a unit, consisting of Laborers who are employed by the Employer on all work and classifications set forth in this Agreement. The two collective-bargaining agreements,' however. contain union-security clauses requiring, inter alia, both maintenance of membership (existing employees) and mem- bership in the Union as a condition of employment after 31 days (for new employees). The 1974 agreements (G.C. Exh. 2 and Resp. Exh. 7) also contain in article VII identical provisions relating to "Pen- sions": PENSIONS Section 1.- Effective March 1, 1976, the company will contribute five cents (.05¢) per straight time hour worked for all employees who have completed their probationary period to the Laborers' International Union of North America (National Industrial Pension Fund).' Thus, the pension provisions were effective commencing only with the last year (March 1976-February 1977), of the two 3-year collective-bargaining agreements. Pursuant to the terms of the Laborers' agreement and the anticipated first pension contributions, in or about January 1976 Charles Morris visited the Richmond Homes Indiana plant and presented for execution to its chief operating offi- cer, Arnold Dietz, a series of documents of which two are significant: (1) "A Standard Form of Participation of Agreement" in the Laborers' International Union of North America (national industrial) pension fund (G.C. Exh. 3(d): and (2) an agreement and declaration of trust (G.C. Exh. 3(c)). Morris also circulated among unit employees certain cards which, when executed by the employees, would de- note their participation in the Laborers' pension fund. Al- though employees executed the cards, neither Dietz nor any of the representatives of Richmond Homes or Zimmer Homes ever executed either of the two above-described documents. Indeed, the failure of Respondents to execute these two documents is the basis of the Laborers' charge and the present amended complaint. In August 1976, about 4 or 5 months after Morris had given the two pension documents to Dietz for execution, Morris contacted Lombard because of this same problem: the papers relating to the pension fund had not been ex- ecuted by Richmond Homes, Inc. The Richmond Homes contributions to the pension fund, forwarded to the fund pursuant to the collective-bargaining agreement, had origi- nally been held by the Charging Party and, thereafter, when sent to the pension fund itself were not acceptable to the pension fund.5 3By art. VI in each collective-bargaining agreement (G.C. Exh. 2 and Resp. Exh. 7), the classifications are referred to as, respectively, Laborers' and Carpenters. In fact, however, as noted above, the parties agree that all employees in the Richmond Homes production and maintenance unit, re- gardless of union affiliation, do the same work in the production of prefabri- cated housing. 4The only difference between this clause and that in the Carpenters' agreement is the latter agreement's use of the phrase "to the Indiana State Council of Carpenters' Pension Fund" Under the terms of the above declaration of trust (G.C. Exh 3(c)) "con- On August 17. 1976. Lombard and Morris met at a local motel with respect to a solution to this problem. Morris told Lombard that the trust papers had not been executed, and that the pension fund refused to accept Respondent's con- tributions absent execution of the two documents. As understood the arguments of counsel for the Charg- ing Party, although Morris did not, on this record, expressly advance the reason for the refusal (apart from limitations in the trust indenture), the Charging Party actually refused to accept such contributions because it believed to do so would violate Section 302(c)(5) of the Act. which requires that contributions be made to a "jointly administered" trust fund. and 302(c)(5)(B), which requires, inter alia, the exis- tence of a "detailed" written agreement. It is clear in any case that by March 8, 1978, the Charging Party had notified Richmond Homes that one of the reasons that it could not accept Respondents' continued attempted contributions to its pension fund was the unlawfulness under ERISA.v When Morris asked Lombard to have Respondents ex- ecute the trust documents so that the pension fund could accept the employer contributions. Lombard, as Morris tes- tified, told him that Respondents had never agreed to sign any such documents but had agreed only to contribute 5- cent-per-hour payments to the pension fund. Either then or at a subsequent time Lombard supplied the rationale for Respondents' refusal: if' Respondents executed the trust documents then Respondents' obligations as a "maintain- ing" employer under ERISA would be clear, whereas if Respondents did not sign and only contributed money Re- spondents might arguably avoid the statutory status and obligation of a "maintaining" employer.' Morris told Lom- tributions" can be received by the trustees only from an "employer" (G.C. Exh. 3(c), sec. Ill), and an "employer" is defined as an employer who not only has a collective-bargaining agreement with the Union but one who "in wrnt- ing agrees to be bound by the terms and provisions of this [Trust] agree- ment." 6ERISA (Employment Retirement Income Security Act of 1974) 29 U.S.C. 1001. 1104(aXlX(D) relates to the obligation of trustees to administer the trust fund in accordance with fund rules. Sec 302, a cnminal provision of the Taft-Hartley Act, generally prohibits the payment of anything of value from an employer to a labor organization but provides in Sec. (c) certain exceptions. Sec. 302(c) of the Act was in- tended to both permit the continuation of legitimate payments by an em- ployer to a labor organization, such as contrinbutions to employees health and welfare funds, and to remove such payments and funds from the exclusive control of union officers. Subsec. (c) is the mechanism Congress devised to achieve both these ends. It provides. in sum, that such payments can only he made to a trust fund, equally administered by both the employer and the union, and also provides that the proceeds of the funds be used to the sole and exclusive benefit of the employees. See Harald W Himnson, dbh/l Hen House Market No. v. N.L.R.B., 428 F.2d 133. 138 (8th Cir. 1970), Moglia v. Geoghegan. 403 F.2d 110 (2d Cir. 1968). cert. denied. 394 U.S. 919 (1969). The interpretation of Sec. 302 of the Act is vested solely, under Board prec- edent, with the Federal district courts of the United States. See, generally. Sheet Metal Workers' Internarional Association and Edward J. Carlough. President (Central Florida Sheet Metal Contractors Association, Inc ), 234 NLRB 1238., 1244 (1978). In particular, Sec. 302(c(5XB) permits payments made to a trust fund establish by a union for the benefit of the employees provided that there is a "detailed basis on which such payments are to be made ... specified in a written agreement with the employer .... " It should be observed that in Hinson v. N.LR B, supra, the court held only that a trust fund agreement. separate and apart from a collective-bargaining agreement, would satisfy the statutory requisite of a "detailed written agreement." ? As counsel for Respondent notes. 29 U.S.C. 1362. 1364 (ERISA §4062, 4064), provides for "maintaining" employer liability as high as 30 percent of the maintaining employer's net worth upon "termination" of a plan 1207 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hard that he would have to consult with the Charging Par- ty's attorney. Lombard's August 1976 refusal to execute the trust docu- ments did not come as a complete surprise to Morris. Three months before, in April 1976, Richmond Homes, pursuant to the collective-bargaining agreement, commenced sending checks covering the amounts of the contributions to the Charging Party (Resp. Exh. 8). By June 1976 the Laborers declined to accept the further checks from Richmond Homes until it had executed both the trust and participa- tion agreements (Resp. Exh. 10). Thereafter, the Charging Party agreed to accept the checks but directed that they be forwarded to the pension fund office in Washington, D.C. Respondents thereafter sent the checks to the pension fund. None of the checks, however, was ever cashed by the Charging Party or the pension fund. On June 22, 1976, Lombard wrote to the Laborers: "At no time did we ever agree [in the 1974-77 collective-bargaining agreement to become a participant in such fund with all the problems that it entailed." Respondents insisted, to the contrary, that its contractual obligation to the Laborers was solely to "... make a contribution to the Laborers' pension fund." (See Resp. Exh. 10.) Thus, the August 17, 1976, meeting was merely a subsequent face-to-face rejection by Respondents of the Charging Party request for the execution of the trust documents. Bargaining for the New Contract, Effective March I, 1977 In January 1977 Lombard and Morris met again in Rich- mond, Indiana, to resolve the same issue. Morris again asked Lombard to have Respondents execute the docu- ments in order to permit the pension fund to accept the checks, but Lombard again refused and again told him the reasons: if Respondents signed the agreement Richmond Homes would become "maintaining employer" under ERI- SA, whereas if they did not sign the documents but merely contributed the monies it was arguable as to whether, under ERISA, Respondents would become a maintaining em- ployer.' The January 1977 meeting ended when Lombard refused to sign. Morris testified that Lombard said that the execu- tion of the trust documents was a "negotiable item."9 Lom- I Both at the hearing and in brief counsel for the Charging Party persua- sively argues that attorney Lombard is clearly mistaken with regard to his legal conclusion that mere contributions to the pension fund do not make the contributing employer a "maintaining" employer under ERISA. Assuming. arguendo, that the Charging Party is legally correct, that does not bear on attorney Lombard's good-faith assertion, commencing at least as early as 1976, and his desire not to be put in the position of a maintaining employer by actually executing the trust documents. Thus. as I understand the Charg- ing Party, the legal position that attorney Lombard advances is clearly wrong but has not been advanced in bad faith. I do not credit Morris. Lombard had indeed used the word "negotiable" but only to indicate why he was refusing to sign: that as a nonsigner Respon- dents' status as a "maintaining" employer under ERISA was a "topic of negotiations" with the Federal Government. To credit Morris on this point (execution of the trust documents), would fly in the face of Lombard's deni- als and the entire record. I do not doubt that from time to time over the years Lombard may have stated that everything was bargainable, but I am unable to conclude that he specifically said that Respondents would bargain on the execution of the trust documents. However, assuming arguendo, that at one time Lombard did make this statement, under no circumstances would I find, as Morris suggested. that Lombard said that the execution of bard, denying making such a statement, alleges that in the 1977 meetings the two principal matter discussed were Zim- mer Homes' economic problem with its subsidiary, Rich- mond Homes, Inc., whose continued operations would re- quire both a favorable contract from the Laborers' and the establishment in the Richmond, Indiana, plant of a van conversion operation to help keep the entire Richmond plant afloat; and when Morris demanded of Lombard that Respondents sign the trust documents Lombard refused, again telling Morris that the only thing that Respondents obligated themselves to do was to contribute money, and that they would not sign the documents. The Collective-Bargaining Session of Monday, April 1, 1977 The last collective-bargaining session prior to the execu- tion of the new collective-bargaining agreement for the pe- riod 1977-80 (G.C. Exh. 4), was held on April 11, 1977. Present for Richmond Homes, Inc., were Lombard and Dietz; for both the Carpenters and Laborers, Charles Mor- ris. At that meeting, according to Lombard, Morris again demanded that Respondents sign the trust documents, and Lombard refused. In particular, it was undisputed that Morris, on behalf of Charging Party, submitted a Charging Party "counteroffer" containing the following proposed lan- guage for the pension provisions in the prospective collec- tive-bargaining agreements (Resp. Exh. 5): ARTICLE VII Pension Section 1: Effective March 1, 1977, the company will contribute six (.06¢) cents per hour for straight time hour worked by all Employees covered by this Agree- ment, who have completed their probationary period .... Payment shall be made on the dates, in the man- ner, form and in accordance with the rules and regula- tions of the National Industrial Pension Plan. Section 3: The Employer agrees to be bound by the Agreement and Declaration of Trust entered into and dated February Ist, 1967, establishing the Laborers' International Union of North America National Pen- sion Fund and participating Employers and by any amendments to said Trust Agreement. Section 4. The Pension Trust Fund shall be adminis- tered in accordance with all provisions of applicable law. 0l the trust documents was "negotiable" as late as their April 11, 1977. meeting, at which the terms of the current collective-bargaining agreement were agreed upon. See infra. I credit Lombard's recollection. ' Morris testified under direct examination that all handwriting, except for certain writings appearing on this typewritten Laborers' Pension Plan "counteroffer," was his handwriting. This obviously included the date "4- 11 77" under the words "counterproposal union" which, at all times, Morris admitted to be his handwriting. In rebuttal, however, Morns testified that he was not sure whether it was he who put the date "4 11 77" on the docu- ment. I conclude, without evidence to the contrary and on the basis of Mor- ns' direct testimony and inspection of the document, that it is his handwrit- ing, that it was he who placed the date there, and that he placed it there on that date. 1208 RICHMOND HOMES Whereas Morris testified that Lombard's response to Morris' request that Respondents accept the Union's "counteroffer" language was merely that there was ". . . too much language"; and that this, in any event, occurred at the first meeting when the proposal was submitted, I never- theless credit Lombard's testimony that regardless when the document (drawn and typed by the Charging Party) was first submitted to Lombard, that on April 11, 1977, Lom- bard specifically refused to execute section 3 of the "coun- teroffer" and did so saying that he had always refused to enter into such an obligation. I credit Lombard's denial and do not credit Morris' contrary testimony that Lombard said that the execution of the trust documents was always "open to discussion," and that Lombard never specifically refused to execute the agreements. In this regard, to the extent that Respondents' other witnesses (Resp. Brief, page 1i; Galaviz and Gabbard), testified that Lombard never said that he refused to sign the documents, I also discredit such testi- mony. In confirmity with the many writings in evidence in this proceeding which writings are letters and documents by Lombard to the Laborers, I credit Lombard, who testified that on April II he specifically refused Morris' request to execute or agree to the execution of any document which would obligate Respondents to membership in or obligation under the trust agreement. It is undisputed that the existing collective-bargaining agreement, not actually executed until May 22 or 23, 1977, provides only, with regard to pension provisions (G.C. Exh. 4): ARTICLE VII PENSIONS Section 1: Effective March 1, 1977, the company will contribute six (.06¢) cents per hour for straight time hours worked by all Employees covered by this Agree- ment, who have completed their probationary period, to the Laborers' International Union of North Amer- ica, National Industrial Pension Plan, in addition to wages herein set forth. Payment shall be made on the dates, in the manner, form and in the accordance with the rules and regulations of the National Industrial Pension Plan. Section 2: The Pension Trust Fund shall be adminis- tered in accordance with all provisions of applicable law. Morris testified that at the final (April Il 1), meeting Lom- bard told him that the agreed upon language would "take care of our problem." I credit Morris' testimony in this regard. However, I do not credit his statement that neither Dietz nor Lombard at that time told him that Respondents would not be a participant in the trust plan. I credit Arnold Dietz, who corroborated Lombard's testimony that Re- spondents refused to become obligated under the pension plan. It is undisputed that the pension fund administrator, in January 1978 (8 months after execution of the current agreement), suggested to Morris that Morris "try and nego- tiate further with Richmond Homes in connection with their executing the agreement and declaration of trust and participation agreement" (Resp. Exh. 11). Commencing February 1978, rather than to vainly con- tinue to send its contract pension contributions to the pen- sion fund, Respondents established an interest bearing bank account in trust for the Laborers' pension fund, continued to make deposits therein, and notified the Charging Party and the fund thereof (Resp. Exh. 13-19). Respondents did so because the fund returned all of Respondents' checks to Respondents as unacceptable to the fund. The amended complaint, as noted above, alleges and Re- spondents deny the appropriateness of the collective-bar- gaining unit in which Respondents allegedly refused to bar- gain. That unit (complaint par. 5(a)), is said to consist of and is described as the employees of Respondents"' who are members of the Laborers Union; i.e., the Charging Party. Moreover, General Counsel and Charging Party urge that Richmond Homes, Inc., and Zimmer Homes Corporation not only constitute a single integrated employer, but that the employees employed by Zimmer Motor Van Division and Richmond Homes, Inc., in the Richmond, Indiana, plant (which employees work apart and without inter- change on van conversion and prefabricated homes), con- stitute this single overall appropriate unit by virtue of the commonality of their terms and conditions of employment and by virtue of the fact that these employees except Rich- mond Homes production and maintenance employees who are members of the Carpenters are all covered by the same collective-bargaining agreement and are all subject to the same union security and checkoff clauses. Respondents deny the appropriateness of the overall unit and the Rich- mond Homes unit. In view of the disposition of this case and notwithstand- ing that the employees have different supervision, work areas, and work on different products, I find it unnecessary to reach or resolve the issues of the appropriateness or con- figuration of the unit or the liability of Zimmer Homes l In fact, 95 percent of Richmond's 45 production and maintenance em- ployees are currently members of the Laborer's 5 percent are members of the Carpenters. All 40 of the Zimmer Homes van production and maintenance employees are members of the Laborers. 12 Some observations, however, seem necessary. As noted above, the cur- rent collective-bargaining agreement (G.C. Exh. 4), by article I, sec. 1. thereof defines the recognized unit (and the Union's position as "exclusive bargaining agent" therein) as ". . all its Employees in a unit, consisting of Laborers who are employed by the Employer in the work and classifications set forth in this agreement." A similar definition of unit appears in the Car- penters' contract. The complaint, par. 5(a) and (b), alleges this unit as one constituting a unit appropriate for bargaining in which the union is the "exclusive bargaining agent." The evidence shows that the Carpenters repre- sents about five to eight production unit employees in the Richmond Homes production and maintenance unit who work interchangeably with employees represented by the Laborers in Richmond's production of prefabricated housing. They do no van conversion. The Carpenters have a separate collec- tive-bargaining agreement, a separate pension fund, and separate union-se- curnty and checkoff provisions. The two labor organizations have accepted this strange situation wherein each represents its own members who disre- gard contract classifications. work interchangeably on jobs with members of the other union, and upon first employment as employees with Richmond Homes choose either union. Dispositively, I believe, neither labor organiza- tion ever asserted a position as statutory collective-bargaining representative in the entire Richmond Homes, Inc. (prefabrication manufacturing). unit It would appear that this unit alleged in the complaint to be appropriate for bargaining. and that the above contractual units are and each is a "members (Continued) 1209 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Corporation as part of a single-integrated employer. But cf. Local 627, International Union of Operating Engineers, AFL CIO [Peter Kiewit Sons', Inc.] v. N.L.R.B., 100 LRRM 2792 (D.C. Cir. 1979). Discussion and Conclusions What is clear in the evidence and arguments of counsel is that this dispute and the complaint herein arise from two areas. First, the Laborers asserts that Respondents, in agreeing to the pension language as it presently appears, have expressly agreed to execute the participation and trust agreements. Second, the Laborers argue that implicit in the agreed language, in any case, is Respondents' obligation to execute the two documents because failure to do so would frustrate what the law would require Respondents to do in order to perfect its pension contributions which it has clearly agreed to make. On the other hand, Richmond Homes, Inc., argues that it is making payments or attempt- ing to make payments to the pension fund under what it believes to be its obligation under the collective-bargaining agreement with the Laborers, solely to make contributions of monies and not to become a participant in or signatory of the trust agreement. The Laborers is refusing to accept only" unit, and that the Board, independent of the other merits of this case disposed of above, would not issue a bargaining order directing bargaining of any such unit. See Don Mendenhall, Inc., 194 NLRB 1109, 1110 (1972); Manufacturing Woodworkers Association of Greater New York, Inc., 194 NLRB 1122 (1972). 1 have never seen a "members only" contract with a union-security device requiring membership therein as a condition of em- ployment as such clauses exist in these collective-bargaining agreements. While "members only" agreements are not illegal per se, no case has been cited to me which would in any way suggest that the Board would issue a certification, much less a bargaining order, based on a "members only" unit. Such a contract-defined unit, obviously, is not a collective-bargaining unit relating to all employees in the unit but is a product only of the "extent of organization" of each of the unions. Certainly, neither Respondents nor any of these employees are engaged in the construction industry, and such con- tract provisions are not insulated by the terms of Sec. 8(f) of the Act. See Los Angeles Building and Construction Trades Council, AFL CIO (Church's Fried Chicken, Inc.), 183 NLRB 1032, 1036 (1970). It seems to me that General Counsel's brief citation (page 4) of Burlington Roadbuilders, Inc., 149 NLRB 791 (1964), misses the mark. No doubt the fact that there are two unions in the prefabricated homes department of Richmond Homes, Inc., does not make the unit inappropriate; but in Bur- lington Roadbuilders, Inc., supra, the unit descriptions related to employees' functions ("all drivers" and "all employees engaged in the operation and maintenance of hoisting and portable machinery") rather than, as here, all "Laborers" and all "Carpenters." See Schorr Stern Food Corp., 227 NLRB 1650 (1977). Furthermore, since the contributions to the pension fund herein are limited to "Employees covered by this Agreement." i.e., members of the Laborers Union, it would appear that the payment of pension contributions under the terms of the contract only to Laborers is discriminatory and vio- lates Section 8(aX3) of the Act. In Prestige Bedding Company, Inc., 212 NLRB 690, 700 (1974), the Board rejected parole evidence showing that a "members only" insurance clause in the contract actually had been applied to all employees. See Schorr Stern Food Corp., supra at 1653. There is no pretense here that any contract provision related to all unit employees. whether the unit be Respondents' employees or those in an overall unit. Thus, the fact that here identical pension monies are contributed to the Carpenters' pension trust would not make the contract contributions to the Laborers' fund lawful. Moreover, a requirement directing compulsory union membership would appear to be unlawful. In short, independent of my sub- sequent recommendation, above, to dismiss the complaint based upon a con- struction of the collective-bargaining agreement, I would if required hold that no Sec. 8(aX5) violation can be made out because of the inappropriate- ness of the alleged overall unit and even of the Richmond Homes unit re- stricted to members of the Laborers. those payments because it believes that Respondents failure to execute the participation in the agreement and the decla- ration of trust prevents it from accepting such payments. To do so, according to the Laborers, not only violates the terms of the trust indenture but would permit the acceptance of payments from an employer in violation of Section 302(c)(5)(B) of the Act and 29 U.S.C. 1104(a)(l)(D) of ERI- SA. Respondents having stated their defense that they nev- er agreed to do anything except to contribute money, ad- vance their supporting rationale, their objection to becoming a "maintaining employer" pursuant to ERISA and hence become, in substance, a potential guarantor should the fund terminate. As noted above, the Laborers, at various times, belittle the fears of Respondents, but Re- spondents nevertheless maintained the position as a genu- ine objection.' Put another way, the chief theory of General Counsel and the Charging Party appears to be that be virtue of executing the present (1977 80) collective-bargaining agree- ment Respondents, by the terms of that agreement, have obligated themselves to execute the two documents (thereby permitting the Charging Party to accept the Respondents' payments); and that by failure to actually execute those documents has unlawfully, unilaterally varied its statutory obligation under Section 8(a)(5) of the Act. Further, the General Counsel and the Charging Party argue that even if the specific terms of the 1977 80 collective-bargaining agreement pension provisions do not obligate the Respon- dents to execute the two documents, such an obligation nevertheless arises as a matter of law because to fail to obligate Respondents to do so would undermine Respon- dents' admitted obligation to make payments to the pension fund. Respondents, in their basis defense, deny that their obli- gation extends to the execution of the documents (which necessitates participation in the pension fund), but rather is restricted only to the making of payments thereto. In addi- tion, Respondents deny that the unit alleged to be appropri- ate by the General Counsel is a unit appropriate for bar- gaining, deny the single integrated nature of Zimmer Homes Corporation and Richmond Homes, Inc., and also allege four affirmative defenses." 13 Charging Party (at brief, p. 19 et seq.) charactenres Respondent's fear of becoming an ERISA "maintaining employer" as a "defense" to executing the documents. It is clearly not a defense. Rather, it is merely a reason for not executing the documents. Respondent's chief legal defense, in fact, is that they never agreed to execute the documents. 4 The first affirmative defense alleges that Sec. 10(b) of the Act prevents attack on the instant alleged unfair labor practices. In fact, since Respon- dents' last refusal to execute the two documents occurred in April 1978 at the meeting between Moms and Lombard, it is clear under Board decisions that if the obligation to bargain here is a "continuing obligation" of Respondents, an act of refusal occurred within the 10(b) period. Respondents' argument that failure to execute occurred prior to this "continuing refusal" was effec- tively rejected in Robert L Boyle, et al., r/a John F. Boyle, Co., 222 NLRB 1309, 1312 (1976). The Board rule is that Respondents' duty to observe this type of obligation under Sec. 8(a)(5) is a continuing obligation. If any rejec- tion of that obligation occurred within the 10(b) period, as it did here in April 1978, then Sec. 10(b) is no par. The fact that, as Respondents note, the "trend" in various courts of appeal is to the contrary does not affect my obligation to apply the Board rule. Cf. N.L.R.B. v. McCready and Sons, Inc., and Metco Construction Inc., 482 F.2d 872 (6th Cir. 1973); N.L.R.B. v. Serv- All Co., Inc., 491 F.2d 1273 (10th Cir. 1974); and N.L.R.B. v. Field and Sons, Inc., 462 F.2d 748 (Ist Cir. 1972). Respondents further argue that the present matter constitutes a mere 1210 RICHMOND HOMES I agree with counsel for the Charging Party that although the Board, in Sheet Metal Workers International Association (Central Florida Sheet Metal Contractors Association, Inc.), supra, severally distinguished Robert L. Boyle, t/a John F. Boyle Co., supra, there is nevertheless no question that it remains well settled that pension and insurance benefits are "wages" within the contemplation of Section 9(c) of the Act; and that if Richmond Homes, Inc., is obligated not only to make contributions to the fund but has an obliga- tion to execute the two documents herein then the failure to do so in derogation of this alleged contractual obligation is, in effect, a unilateral change in the "wages" of its employ- ees who are the beneficiaries of the plan and thus a viola- tion of Section 8(aX5) of the Act. See Robert L. Boyle, t/a John F. Boyle Co., supra at 1313; and cases cited therein. Thus, the first issue presented for resolution is what Re- spondents agreed to do pursuant to the collective-bargain- ing agreement. 1. Respondent's obligation was to pay money rather than become a trust participant The significant sentence, as counsel for Laborers asserts, in the collective-bargaining agreement (G.C. Exh. 4) is: Payment shall be made on the dates, in the manner, form and in accordance with the rules and regulations of the National Industrial Pension Plan. Rather than as General Counsel and the Charging Party suggest, Respondents were not desirous insofar as this lan- guage goes in becoming participants in or becoming bound by the declaration of trust; rather, it is reasonably clear, and I conclude, that Respondents were obligating them- selves to make payments into the pension fund, and that the concern of the above sentence relates only to the nature of the payments, i.e., dates, form, and manner prescribed in the pension plan. Nothing, of course, is said regarding par- ticipating in the plan as a member. Thus, the subject and terms of the sentence relate to the minutiae of payment rather to the status of the payor. General Counsel and Charging Party desire to incorpo- rate into that language an obligation that Respondents be- come participants in the plan. That position is derived from breach of contract by Respondents and is outside the jurisdiction of the Board. The Board has long held to the contrary, since the contractual breach is merely coincidental with an inquiry into whether the breach of contract was also a statutory violation; see Oak Cliff-Golman Baking Company, 207 NLRB 1063, 1064 (1973); Robert L Boyle, supra. Respondents further argue that the decision as to whether Respondents' conduct constitutes a statutory violation would necessarily require an inquiry into and an interpretation of the terms of the pension fund which the Board has held is outside the Board's jurisdiction. See Sheet Metal Workers' International Association (Central Florida Sheet Metal Contractors Association, Inc.), supra at 1242. Such a position is factually incorrect. General Counsel and the Laborers merely desire a conclusion that Respondents are bound by a contractual agreement to execute the two trust documents. The substance of the docu- ments is merely incidental to that inquiry. Finally, Respondents interpose as an affirmative defense that the Board would be "unconscionable" in requir- ing Respondents to fund a pension fund to which it did not agree. If Respon- dents did not agree to be bound by the pension fund a Board order would not direct them to do so. If they did agree to be bound the Board has held that an employer's economic difficulties arising from such an agreement pro- vide no defense. See Oak Cliff-Golman Baking Company, supra. the phrase "in accordance with the rules and regulations of the National Industrial Pension Plan." But that phrase merely modifies, it seems to me, the minutiae of payment, for it relates on its face only to such things as dates, man- ner, and the form of payment. Contrary to General Counsel and Charging Party, the language itself seems to me to re- late in no way to the trust-imposed status of the payor- employer as a precondition of the Charging Party accepting payments under the trust indenture. To attempt to squeeze into the existing contract language the additional elephan- tine obligation of the terms of the trust (trust membership and participation) is to place unacceptable weight on such a fragile sentence. If Charging Party intended Respondents to shoulder such an additional obligation it could have reason- ably drafted such language into an instrument to which, by voluntary assent or economic coercion, Respondents would agree. Indeed, it attempted to do the very thing as this rec- ord amply shows but was unsuccessful. It consistently failed to get Respondents' agreement to such an obligation. I therefore conclude that the face of the collective-bar- gaining agreement, article VII, pensions, demonstrates that Respondents' obligation was to pay money rather than be- come a trust participant. 2. Even if the contract language is susceptible to the meaning suggested by the General Counsel and Charging Party, the suggested meaning is not the only meaning As noted above, I have construed the language of article VII in the existing agreement to relate only to the mode of payment, and I have rejected the meaning attributed to the language by General Counsel and Charging Party. If, how- ever, the language is reasonably susceptible to two or more meanings, including the meaning ascribed to it by General Counsel and Charging Party, then the contract language is necessarily ambiguous." At the hearing Respondents offered into evidence, over General Counsel's and Charging Party's objections based on the parole evidence rule, the Laborers' April I 11 counter- offer (Resp. Exh. 5). This counteroffer, concerning Respon- dents' contributions to the pension fund, explicitly contains the Laborers' request that the agreement contain the fol- lowing language: Section 3. The Employer agrees to be bound by the Agreement and Declaration Trust entered into and dated February Ist, 1967, establishing the Laborers' International Union of North America National Pen- sion Fund and Participating Employers and by any amendments to said Trust Agreement. The proffered section 3 language, as Charging Party ad- mits, was rejected by Respondents and, of course, does not appear in the instrument actually executed by all parties as their current (1977-80) collective-bargaining agreement (G.C. Exh. 4). While in the absence of ambiguity the Board has recog- nized the parole evidence rule as precluding contradictions '1 To the extent that counsel for Charging Party asserts that the contract pension language is so free from ambiguity that any conclusion finding the existence of ambiguity is a "boot strapping" argument concocted to permit the use of extrinsic evidence is rejected as a mere in terrorem argument. 1211 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and alterations of the plain terms of the collective-bargain- ing agreement by recourse to extrinsic evidence, Interna- tional Brotherhood of Electrical Workers, Local 592 (United Engineers & Construction Co.), 223 NLRB 899, 901 (1976); Prestige Bedding, Inc., 212 NLRB 690, 700 (1974), ambigu- ity in the terms of the agreement permits recourse to extrin- sic evidence to show the intended meaning of the parties of terms contained in the agreement, Schorr Stern Food Corp., supra, at 1654; 4 Williston on Contracts, Sec. 631, et seq. (3d ed., 1961). Certainly of even greater significance is the fact that the Board, unlike the parties to the contract, has no mere contractual stake in the resolution of the problem of the parties intent but has an obligation to determine the existence of a statutory violation. For it is well settled that the Board may properly, in any event, evaluate contractual provisions against the background of bargaining negotia- tions in determining contractual intent. See International Union of Operating Engineers, Local Union No. 12 (Tri- County Association of Civil Engineers and Land Surveyors), 168 NLRB 173 (1967); C & C Plywood Corporation, 148 NLRB 414 (1964).'6 Since the terms of that agreement, arguendo (if the Charging Party and General Counsel's assertion is ac- cepted), maybe interpreted not only to relate to the manner of Respondent's payment but also to the terms governing Respondents' status as a trust-imposed precondition of Charging Party accepting the payments under the trust plan, then extrinsic evidence under the above Board rule may surely be entertained to ascertain the intent of the am- biguous language presently existing in the collective-bar- gaining agreement. The testimony and documents intro- duced into evidence by Respondents covering the periods before, after, and during the negotiations of the current (1977-1980), collective-bargaining agreement demonstrate beyond cavil that Respondents consistently refused to be- come trust participants or agree to be bound by the declara- tion of trust; and that their refusal is based on objection to becoming a guarantor of trust payments under ERISA (a "maintaining" employer) in the event of trust termination. Among the particular unequivocal manifestations of Re- spondents' refusal of participation was its rejection of the Charging Party's last session (April 11, 1977), counteroffer which contained in section 3 (Resp. Exh. 5), the very lan- guage the Charging Party desired and which would have expressly imposed the obligation." To the extent that Mor- 1" Third-party strangers to the contract are not bound by the parole evi- dence rule. See American Crystal Sugar Co. v. Nicholas, 124 F.2d 477, 479 (1941). In Brasserr v. Clark, 162 F.2d 967 (2d Cir. 1947), Judge Learned Hand stated that the parole evidence rule does not prevent the entire intent of the parties from appearing-so far as it has been actually expressed- when the intent becomes relevant in a transaction between either party and a third party. If third parties are not bound by the parole evidence rule it would seem, afortiori, that the Board, in executing its statutory obligation, is in no way merely asserting a claim derived through or from either party to the agreement, American Crystal Sugar Co. v. Nicholas, spra. For all the above reasons, both in the text and the footnote, I have rejected the General Counsel's and Charging Party's objections to the receipt of extrinsic evidence under the parole evidence rule regarding the meaning of the pension lan- guage. I continue in that ruling. 17 Charging Party alluded to this rejected counteroffer as being only one of *many pieces of paper" exchanged with Respondents during negotiations. However, Charging Party produced no other evidence which would show any contrary respondents intent in rejecting that language. Similarly, where Charging Party's secretary-treasurer, Morris, testified that Lombard stated ris testified that Lombard did not also orally reject the La- borers' demand that Respondents become participants, in view of Lombard's contrary testimony and the other evi- dence of record, I have rejected Morris' testimony. In short, both the express terms of the instant collective- bargaining agreement and the extrinsic evidence demon- strate that Respondents never intended to enter into and were under no contractual obligation to become partici- pants in the pension fund; that they consistently and re- peatedly refused to do so; that Respondents' failure and refusal to execute the declaration of trust and the participa- tion agreement under the terms of the current collective- bargaining agreement was not a violation of its collective- bargaining agreement; and that no unilateral change in wages or refusal to bargain in violation of Section 8(a)(5) and (1) occurred thereby. Just as Respondent's refusal to be bound because of its fears of ERISA obligations does not constitute a defense to the alleged unfair labor practice but constitutes merely a rationale for their continuous refusal to agree to be bound, similarly, the Charging Party's assertion that it could not agree to accept Respondents' proffered payments under the pension plan obligation in the collective-bargaining agree- ment because of the criminal sanctions of Section 302(c)(5)(B) of the Act and 29 U.S.C. 1104(a)(1)(D) et seq. of ERISA does not constitute evidence in favor of Charging Party's position that Respondents are bound by the terms of the collective-bargaining agreement to execute the trust documents, but merely constitutes a rationale for Charging Party's refusal to accept the payments. Thus, where Charg- ing Party and General Counsel argue that because Respon- dents were not parties to the declaration of trust its accept- ance of payments from Respondents would constitute receipt of criminally proscribed funds in no way affects the question of whether Respondents agreed to be bound. Simi- larly, assuming that Respondents in no way bound them- selves to become trust participants, Charging Party's fur- ther argument that the Board should so construe the collective-bargaining agreement as will nevertheless have the Board direct and order Respondents to execute the documents falls to similar fate. Notwithstanding my belief that Charging Party's argu- ments regarding the criminality of accepting payments un- der Section 302(c)(5)(B) are irrelevant to this proceeding and to the analysis of whether Respondents intended or in fact actually were obligated to execute the trust agreement, certain further remarks may be pertinent. In the first place, Section 302(c)(5)(B) is entirely satisfied if a writing delimits the nature, purpose, terms and recipient of trust contributions and payments. See Moglia v. Geoghe- gan, 403 F.2d 110 (2d Cir. 1968), cert. denied 394 U.S. 919 (1969); Charles Starbuck and Diane Starbuck dib/a Starco Farmers Market, 237 NLRB 373 (1978). In addition, Sec- during the negotiations that all elements relating to their relationship were open for discussion, I conclude that Lombard was seeking to avoid any assertion of bargaining with a closed mind, To the extent that Morris (and Charging Party's other witnesses) testified that Lombard said during negotia- tions that Respondents' trust participation was a "subject for negotiation" as late as the last collective-bargaining session of April II, 1977, I have rejected such testimony as inconsistent both with Lombard's contrary testimony and particularly with Respondents' prior, contemporaneous, and subsequent wntten and oral rejections of the same offer. 1212 RICHMOND HOMES tion 302(c)(5)(B) requires that their be a "detailed basis" on which payments into the trust fund are to be made, that this detailed basis appear in a "written agreement." and that this agreement be with the employer. Finally, Section 302(c)(5)(B) requires that employers and employees be equally represented as trustees. When read together the pre- sent collective-bargaining agreement between the parties and the Charging Party's declaration of trust comport with all these requirements. Thus, whatever other decretal limi- tations are imposed by the settlors in the Laborers' declara- tion of trust regarding the question of who may be donors to the fund, the statute requires no such limitations and Charging Party may not rely on the criminal provisions of Section 302(c)(5)(B) to reject payments from Respondents, it seems to me, on the basis of its declaration of trust. In- deed, Harold W. Hinson d/b/a Hen House Market No. 3 v. N.L.R.B., 428 F.2d 133, 139 (8th Cir. 1970), in describing the requirement of a "written agreement with the em- ployer" specifically states that a "trust fund agreement separate and apart from the collective-bargaining agree- ment would surely satisfy the statutory prerequisite." Hin- son, concerned with the question of whether an expired col- lective-bargaining agreement is a "written agreement," distinguishes Moglia v. Geogheagan, supra, on the ground that in that decision, at 115, there employer] never has been a written collective-bargaining agreement 'or any other written agreement ... detailing the basis upon which payments were to be made by [the employer] on behalf of its employees, into the trust fund.' " Thus, as I read Hinson, in order to meet the statutory requirements of Section 302(c)(5)(B) the "written agreement" requirement may be satisfied if all the statutory requisite are contained in two written agreements rather than in one. In other words, the statute requires merely a writing detailing the bases on which the contributor's payments are to be made on behalf of the employees. Either a trust agreement or a collective- bargaining agreement is sufficient, as noted in Hinson v. N.L.R.B., supra. Here, the collective-bargaining agreement detailed how much, too whom, and for what purpose the money is to be contributed. The Laborers' trust agreement related the fiduciary duties of the trustees, equal representa- tion of employers and employees, the rights and obligations of trustees making investments, etc. Read together, the stat- ute appears to be satisfied. No loose use of the contributed funds is possible. If the Laborers construe the trust inden- ture as adding the further limitation on accepting contribu- tions that employers contributing to the trust must be bound thereby, that is not a statutory matter required un- der 302(cX5)(B) but is rather a contractual restriction im- posed by the settlors of the trust indenture. Furthermore, if the Charging Party would violate the statute by receiving Respondents' payments because Re- spondents are not parties to the trust agreement then that unhappy predicament is not to be solved by requiring, un- der the guise of "construction" of language, that Respon- dents shoulder an obligation they have not only not agreed to but have in fact rejected. See H. K. Porter v. N.L.R.B., 397 U.S. 99. Respondent relies on Robert Boyle, et al. t/b John F. Boyle Co., supra. Nothing in Boyle is to the contrary. There the Board left untouched the Administrative Law Judge's ruling that a presumption existed "[that the parties] intended to enter into a valid agreement providing for the establish- ment of [a] valid person [fund]." The Board, however, held that notwithstanding such a presumption in that particular case the unlawfulness of certain terms in the trust fund would create a valid defense to the alleged violation of Sec- tion 8(a)(5) and (1) of the Act. On the question of whether in the case at bar a similar presumption should exist and prevail, there are numerous dispositive distinctions. In Boyle, the employer refused to contribute to the pension fund and the employer's refusal to execute the declaration of trust would permit him to escape the payment of the contributions. The excuse was that he had not agreed to execute the documents. Under the facts of that case the Administrative Law Judge held that not to erect such a presumption would mean that the employer bargained in bad faith because he never intended to make the contribu- tions into the pension fund by the simple expedient of not executing the necessary documents to enable such pay- ments to be made. Contrary to the Bovle case, here Respon- dents, the Employer. at all times have tendered the monies sufficient to execute their financial obligations to the pen- sion fund: and here Respondents' motive in refusing to ex- ecute the declaration of trust, while based on the claim that they had not agreed to do it. cannot be described to a desire to break their promise to make contributions but it is rather based on the undenied assertion that they never agreed to become trust members because they refused to risk becom- ing ERISA gaurantors. Thus, since here, unlike Boyle. Re- spondents at all times desired to pay the money, the very reason for the creation of the presumption in Boyle disap- pears. Here, the Employer desires to pay and the fund re- fuses to accept; in Boyle, the fund wanted the money and the employer refused to pay. In view of the clear evidence in the instant case that the Employer did not intend to become bound by the trust agreement, Charging Party's persuasive arguments, based on the canons of construction of contracts, which argu- ments demonstrate that the instant agreement should be construed as showing Respondents' intent to execute the documents, are beside the point. Finally, even assuming that Respondents, as Charging Party asserts, during the negotiations made ambiguous oral statements to Charging Party (everything is "negotiable" and suggesting that the agreed upon contractual language, particularly the pension language, "solves the problem"), does not bear on what Respondents actually did. At the last collective-bargaining session they explicitly rejected the counteroffer (Resp. Exh. 5), as Morris admitted, which con- tained the language Morris desired in order to create the very obligation which is the subject matter of this unfair labor practice proceeding. I therefore conclude that Respondents' failure to execute the trust documents constituted neither a contract violation not a statutory violation of Section 8(a)(5) and ( I ) of the Act. CONCLLSIONS OF LAW 1. Respondents, Richmond Homes, Inc., and Zimmer Homes Corporation, and each of them, is an employer en- 1213 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaged in commerce within the meaning of Section 2(2), Upon the foregoing findings of fact, conclusions of law, 2(7), of the Act. and the entire record, and pursuant to Section 10(c) of the 2. Laborers International Union of North America. Lo- Act, I issue the following recommended: cal Union No. 1047, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Richmond Homes, Inc's., failure to ex- ORDER'8 ecute the "Agreement and Declaration of Trust" and the "Standard Form of Participation Agreement" does not con- stitute an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. amended, be dismissed in its entirety. 4. The allegations of the complaint are not barred by Section 10(b) of the Act. ' In the event no exceptions are filed as provided by Sec. 102.46 of the 5. It is unnecessary to reach or decide, inter alia, the Rules and Regulations of the National Labor Relations Board, the findings,appropriateness or co figuration of the bargaining or onclu ions, and recommended Order herein shall, as provided in Sec. 102.48 appropateness or conguraon of te arganng unit or of the Rules d Regulations, be adopted by the Board and become its the status of single integrated employer of the above Re- findings, conclusions, and Order, and all objections thereto shall be deemed spondents. waived for all purposes.