The Sawmill Restaurant & Lounge

National Labor Relations Board - Board Decisions

Mar 31, 1987

283 N.L.R.B. 537 (N.L.R.B. 1987)

SAWMILL RESTAURANT
Coos- .Bend, Incorporated, d/b/a The Sawmill ' Res-
taurant & Lounge and Culinary, Bartenders,
Hotel & Motel Union Local 828, affiliated with
Hotel and Restaurant Employees and Bartend.
ers International Union, Cases `36-CA-4857
and 36-CA-4860
31 March 1987
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND, MEMBERS
STEPHENS AND CRACRAFT
On 21 October 1986 Administrative Law Judge
Jerrold H. Shapiro issued the attached supplemen-
tal decision. The Respondent filed an exception and
a supporting brief and the General Counsel filed a
brief in support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board -has considered the decision and the
record in light of the exceptions-and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
The Respondent contends that it is obligated to
make contributions to the Union Trust for employ-
ees only when they become eligible to receive ben-
efits from the Trust, rather than from the beginning
of their employment. Its contention-, is based on its
interpretation of the phrase "eligibe for benefits"
in the following pertinent contract provision:
The employer agrees to pay the Hotel, Res-
taurant and Beverage Employees Trust or its
successor the sum of fifty (.50) cents per com-
pensible [sic] hour for employees, covered by
this Agreement and eligible for benefits here-
under exceptions therefore [sic] all supervisory
employees, (part-time being defined as either
less than 30 hours per week of 60 hours per
month, the Employer agrees, however not to
replace any frill-time employee with such part-
time employees.)
The judge found that pursuant to the language of
an addendum to the contract-"The Employer
shall pay the [Trust] .. for each employee cov-
ered by the terms of the labor agreement"-the
Respondent agreed to contribute to the Trust on
behalf of all the employees covered by the contract
without, regard to their eligibility to receive bene-
fits from the Trust. He concluded that the adden-
dum, was intended to supersede the contract provi-
sion, the parties recognizing that the contract
phrase, "eligible for benefits," was incompatible
with, the parties' intent to provide trust, fund bene-
fits. This incompatibility existed because the Trust
283 NLRB No. 78
537
would not pay benefits to any employee for whom
1000 hours of employer-paid fund contributions
had not been made, and under the Respondent's
reading of the contract provision (a reading which
the judge appeared to accept, at least for the sake
of argument), the Respondent would never make
contributions on behalf of an employee who was
not already eligible for benefits. Hence, virtually no
employees would ever qualify for benefits.
In its sole exception, the Respondent argues that
the judge's finding-that the Respondent's interpre-
tation of the contract language "eligible for bene-
fits" would result in an "impossible situation" be-
cause most employees would not receive benefits-
requires application of the contract law doctrine of
mutual mistake. For the reasons stated by the judge
and for the following reason, we find no merit to
the Respondent's claim. The judge found the lan-
guage of the provision and of the addendum to be
incompatible, the latter being clear and unambig-
uous and the former leading to an untenable result
in this situation. However, there is another reasona-
ble interpretation of the phrase "eligible for bene-
fits" that is consonant with the language of the ad-
dendum: that it refers to that kind of employee
who will, at the appropriate time, become eligible
to receive benefits from the Trust, as opposed to
certain ineligible part-time employees, apprentices
or supervisors, who will never become eligible to
receive benefits. Under either view of the meaning
of the phrase, the contract, read as a whole, re-
quires Trust contributions for all employees other-
wise covered by the terms of the contract, except
those' specifically excluded.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Coos-Bend,
Incorporated, d/b/a The Sawmill Restaurant and
Lounge, North Bend, Oregon, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
Gail M. Streicker, for the General Counsel.
Patrick M. Kilby, for the Respondent.
Darrell L. Cornelius, for the Union.
SUPPLEMENTAL DECISION
JERROLD H. SHAPIRo, Administrative Law Judge. On
5 November 1985 the National Labor Relations Board
(Board) issued an unpublished Order in this proceeding
adopting the findings and conclusions of its administra-
tive law judge contained in his decision issued 4 October
1985 in which the judge concluded that Respondent
Coos-Bend, Incorporated, d/b/a The Sawmill Restaurant
& Lounge (Respondent) violated Section 8(a)(1) and (5)
538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the National Labor Relations Act (Act) by, among
other things; failing and refusing to execute a written
collective-bargaining contract, containing terms which
had been verbally agreed to by Respondent and Culi-
nary, Bartenders , Hotel & Motel Union Local 828
(Union). On 5 March 1986 the Court of Appeals for the
Ninth Circuit issued an unpublished judgment enforcing
the Board's Order. ^
The Board's Order, as enforced by the court, remedied
Respondent's unlawful refusal to execute the collective-
bargaining contract it had reached with the Union by,
among other things, requiring Respondent to make the
contractually required payments to the Hotel, Restaurant
& Beverage Employees Trust (Trust) on behalf" of the
union-represented employees. A dispute having arisen
over the amount of contributions owed by Respondent
to the Trust under -the` Board's Order; the Regional Di-
rector for Region 19 of the Board, on 21 May 1986,
issued a backpay specification, which was amended at
the-hearing, alleging the amount of Trust contributions
due under the Board's Order. On 5 June 1986 Respond-
ent filed its answer to the backpay specification, and on 2
July 1986 filed a supplemental answer. The issues pre-
sented- by the pleadings are twofold: (1) whether Re-
spondent's contract with the Union obligates Respondent
to make contributions to the Trust on behalf of all em-
ployees covered by the contract, except apprentices and
part=time employees, from the moment of their employ-
ment, as contended -by 'the General Counsel and Union
or, as contended by Respondent, whether the contract
obligates Respondent to make these contributions on
behalf of employees, only when employees become. eligi-
ble to receive health and welfare benefits from the Trust;
and, (2) whether the part-time employees on, whose
behalf Respondent is not obligated to contribute to the
Trust are limited to three who work no more than 60
hours a month, as contended by the General Counsel and
Union, or constitute all employees who work less than
either 30 hours a week or 60 hours a month, as contend-
ed by Respondent.
On 17 July 1986 1 conducted a hearing in this proceed-
ing.
On the entire record, from my observation of the de-
meanor of the witnesses, and having considered the par-
ties' posthearing briefs, I make the following
FINDINGS AND CONCLUSIONS
A. The Facts
Respondent operates a restaurant and lounge. The
Union represents a unit of Respondent's employees. Im-
mediately prior to the time material herein, the Respond-
ent , and - Union were parties to a collective-bargaining
contract, covering these employees. Under the terms of
the contract, which was effective from 1 June 1983 to 1
June 1984, Respondent was obligated-to contribute -to the
Trust on behalf-of the. unit employees. The sole provision
in the contract, dealing with this subject was entitled
1 No. 85-7110.
"Health and Welfare" and read, in pertinent part, -as fol-
hows:2 -
1. The employer agrees to pay the Hotel, Restau-
rant and Beverage Employees Trust or its successor
the sum of 38 cents per compensible [sic] hour ef-
fective with May 1, 1983 hours for all employees
covered by this Agreement. The Employer shall in-
crease its contribution rate by 12 cents per compen-
sible [sic] hour commencing with hours worked on
or after August 1, 1983. ' The Employer's contribu-
tion shall not be increased above 50 cents per com-
pensible [sic] hour during the term of the Agree-
ment.
Under the terms of this provision Respondent contribut-
ed to the Trust on behalf , of the employees covered by
the contract as soon as they were employed, i.e., from
their first compensable hour, even though they were not
eligible under the Trust's eligibility rules to receive con-
tractual health insurance benefits until they worked 1000
compensable hours, hours for which an employer con-
tributed to the Trust.
In April 1984 the negotiators for Respondent and the
Union ,commenced bargaining for a contract to succeed
the 1983-1984 contract which, was,scheduled to expire 1
June 1984 . Respondent's president, Bruce Brandt, was
Respondent's, negotiator and the Union 's financial
secretary/business representative, Phyllis Wright, who
was accompanied by an employee committee , was the
Union's negotiator . In the underlying unfair labor prac-
tice proceeding the Board affirmed the judge's conclu-
sion that these negotiations resulted in the parties -
reach-ing a verbal agreement on all the terms of collective-bar-
gaining contractdon -
8(a)(5) and (1) of the Act by failing and refusing since
December 1984 to execute a written collective-bargain-
ing contract containing the terms of this verbal agree-
ment. In the instant ' supplemental proceeding the parties
agreed that General Counsel 's Exhibit 2 is the written
collective-bargaining contract that the Board found con-
tained the terms that had been verbally agreed to by Re-
spondent and -the Union and that Respondent was obli-
gated, under the , Board's Order, , to execute and give
effect to retroactively. -
General Counsel's Exhibit 2, which for the sake of
convenience is referred to herein as the 1984-1985 con-
tract, consists of eight pages and two addenda. The
1984-1985 contract is effective from- 1 June 1984 to 1
June 19853 - and' covers a bargaining unit consisting of-
chefs, cooks, cooks helpers, dishwashers, hostesses, wait-
ers, waitresses, bus persons ; bartenders , and banquet
waiters/waitresses; but excluding persons employed as a
kitchen supervisor, waiter/waitress supervisor , bar super-
visor, banquet supervisor, and cocktail supervisor.
2 Unlike the 1984-1985 contract, which is described infra, the 1983-
1984 contract , R. Exh 1, does not include an addendum which deals
with Respondent's obligation to contribute to the Trust on behalf of its
employees.
8 The contract is subject to being automatically renewed for an addi-
tional period of 1 year if notice of modification or termination is not
given prior to 1 June 1985. _
SAWMILL RESTAURANT
The 1984-1985 contract contains three separate provi-
sions dealing with Respondent 's obligation to contribute
to the Trust; one provision at page 8 and the other two
are attached to the contract as addenda . The provision at
page 8 of the contract has no title and reads as follows:
The employer agrees to pay the Hotel ; Restau-
rant and Beverage Employees Trust or its successor
the sum of fifty (. 50) cents per compensible [sic]
hour for employees covered by this Agreement and
eligible for benefits hereunder exceptions therefore
all supervisory employees , all apprentices and the
part-time employees (part-time being defined as
either less than 30 hours per week or 60 hours per
month, the Employer agrees, however not to re-
place any full-time employee with such part-time
employees).
The first addendum, entitled "Part-Time Employees,"
reads as follows:
Three Employees To Work Not More Than Sixty
(60) Hours Per Month Without Paying Health And
Welfare Payments On Such Employees . Part-Time
Employees Shall Not Replace Existing Union Rep-
resented Positions.
The second addendum , entitled "Agreement," is a print-
ed form which in pertinent ' part reads as follows:
I
The Employer shall pay to the Hotel, Restaurant &
Beverage Employees trust , or its successor, the sum
of (50) Fifty cents per , compensable hour xxxxxxx for
each employee covered by the terms of the Labor
Agreement, said payments to become effective on
the first day of August 1984 for employees who
worked or were paid for xxxxxxxxxxx hours in the
previous of August 1984 . The undersigned employer
agrees to be bound by all of the terms and condi-
tions of the trust agreement establishing said Trust
Fund or its successor, together ' with any `amend-
ments thereto.4
II
The Employer hereby grants Power of Attorney to
the Employer Trustees or their successors of said
Trust, or its successor, to administer said fund as
their representatives in the ' administration of said
funds.
General Counsel's Exhibit 8, the "trust agreement" in
effect during the time material, referred to in the above-
described second addendum, reads in pertinent part, as
follows:
Each Employer shall have an obligation to con-
tribute to the Fund the amount of benefit contribu-
a The italicized language refers to either handwritten or typed nota-
tions which were inserted in blank spaces on the printed form The series
of x's refers to where language on the printed form has been x'd out by a
typewriter.
539
tions specified in its applicable Collective Bargain-
ing Agreement or such other written agreement
adopted pursuant to regulations of the Board of
Trustees . [art. IV, sec. 4.1;]
The Trustees shall have the power to construe
the provisions of this Trust Agreement and the eli-
gibility requirements established by the Trustees and
any such construction adopted by it in good faith
shall be binding upon any and all parties and per-
sons affected thereby subject to the appeal proce-
dure set forth herein. [art. V , sec. 5.2.]
Pursuant to the authority granted to them in the
above-described Trust Agreement, the Trust's trustees
promulgated eligibility requirements which were in
effect during the time material and which were printed
for distribution in the form of a booklet . The eligibility
requirements pertinent to this case , which are set forth in
the booklet , General Counsel 's Exhibit 9, read as follows:
INITIAL ELIGIBILITY for benefits will be at-
tained on the first day of the month following accu-
mulation of at least 1000 hours of paid contributions
as reported by one or more employers within NOT
MORE than 12 consecutive months AND with
NOT LESS than 62 hours in any month during ac-
cumulation of the 1000 hours of paid contributions.
If less than 62 hours of paid contributions is report-
ed by your employer(s) in one or more months of
the initial qualifying period you will start a new ini-
tial qualifying period when you once again are re-
ported for 62 hours or more of paid contributions.5
You will remain eligible during each succeeding
calendar month if your employment for one or
more participating employers totaled at least 62
hours during the preceding calendar month and
contributions are paid for those hours.
If you cease to be eligible and fail to re-establish
your eligibility within 6 months, the initial eligibility
will again be imposed.
It is undisputed that Respondent 's negotiator , Brandt,
was not shown and was not given a copy of the above-
described trust agreement either prior to or during the
contract negotiations . In dispute, however, is whether
Union Negotiator Wright during the negotiations gave
Brandt the booklet containing a description of the above-
described eligibility requirements. Brandt testified he was
not given the booklet during the negotiations. Wright
testified that during the time material she had a stack of
the booklets, that it was her practice to distribute book-
lets to the several employers whom she was negotiating
with, and that pursuant to this practice she gave a book-
let to Brandt at the start of the negotiations for the 1984-
1985 agreement . I credit Wright's testimony and reject
Brandt's because of Wright's testimonial demeanor which
was better than Brandt's.
5 G.C. Exh . 10 shows that effective 1 May 1985 the Trust 's trustees
amended the above-described eligibility requirements so that "qualifying
hours for eligibility shall be reduced to 500 hours over, not more than, an
eight-month period and no less than 62 hours in any one month."
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It -is undisputed- that Brandt , during the negotiations
for the 1984-1985 contract, on more than one occasion
stated emphatically that he did not want to continue
making contributions to the Trust on behalf of employees
who were not eligible to receive benefits and stated that
he wanted to contribute only on behalf of the employees
who were eligible to receive benefits. Brandt testified
that in response Wright,replied by stating she did not
think Brandt should have to make contributions on
behalf of employees who were not eligible to receive
benefits. Wright, on the other hand, testified she re-
sponded by telling Brandt that virtually every employer
she negotiated with complained about having to contrib-
ute on behalf of employees who were not eligible to re-
ceive benefits, and also informed Brandt that when
Wright had worked in the trade that Wright, herself, had
problems with this system, but explained to Brandt that
the way the Union's health and welfare program operat-
ed, was that an employee had to work a certain number
of hours before he or she became eligible to receive
health insurance benefits and that the employer was re-
quired to contribute to the trust for those hours even if
the employee was not at the time eligible to receive ben-
efits. I have credited Wright's testimony because her tes-
timonial demeanor was better than Brandt's.
Regarding the language set -forth at page 8 of the
1984-1985 contract which, states in substance that Re-
spondent agrees to pay the Trust the sum of 50 cents per
compensable hour for employees covered by the Agree-
ment and eligible for benefits, "neither Brandt nor Wright
were, able to remember the circumstances surrounding
the drafting of this language. When asked whether he
was responsible for it, Brandt testified: "It was 'a combi-
nation. You know, Ms. 'Wright drafted some; I drafted
some; and I don't remember exactly who drafted this
paragraph." Wright testified she felt she would never
have worded the paragraph the way it was set forth in
the 1984-1985 contract, but testified she had no inde-
pendent recollection of who was responsible for its
wording:
Regarding the language set forth at page 8 of the
1984-1985 contract which refers to part-time employees
and defines them as employees employed for less than 40
hours a week or ` 60 hours a month and states that Re-
spoindent agrees-not to replace full-time employees with
part-time employees,' Brandt testified that this language
was negotiated under the following circumstances.
Brandt and Wright were attempting to draft' contractual
language to excuse Respondent from paying trust contri-
butions on behalf of part-time employees who were not
eligible to receive benefits. Wright informed Brandt that
she thought that if employees worked less than 30 hours
per week or less than - 60 hours per month that they
would not be eligible to receive health insurance bene-
fits. Wright, however, accepted the language with re-
spect to part-time employees only after Brandt agreed to
the addition of the proviso whereby Respondent agreed
not to replace any full-time employees with part-time
employees, which Wright told Brandt she felt was
needed to make sure Respondent did not replace all of
its full-time employees with part-time employees in an
effort to avoid making contributions to the Trust.
No evidence was presented during the instant hearing
about the circumstances surrounding -the addition of the
first addendum to the 1984-1985 contract, the addendum
which - states Respondent may employ three part-time
employees to work not more than` 60 hours a month
without contributing to the Trust. However, in 'the un-
derlying unfair labor practice proceeding the administra-
tive law judge, whose findings were adopted by the
Board, found that with respect to the Respondent's
health and welfare contributions that the "main focus of
bargaining" during the contract negotiations "was the
employer's proposal to exclude three part-time employ-
ees from coverage" and further found that during the ne-
gotiations Brandt explained to Wright that he wanted
this addendum to be a part of the contract because "he
did not feel he wanted to pay into [the trust for] these
employees that did not work [but] only a few hours a
month."
No evidence was presented during the instant hearing
nor were any findings made by the judge in the underly-
ing unfair labor practice proceeding about the circum-
stances,surrounding the addition of the second addendum
to the 1984-1985 contract, the one dealing generally
with Respondent's obligation to contribute to the Trust.
B. Discussion and Conclusionary Findings
The General Counsel's position is that under the terms
of the 1984-1985 contract the employees covered by the
contract on whose behalf Respondent does not have to
contribute to the Trust are the apprentices and three
part-time employees, who work not more than 60 hours
per month. 6 Respondent's position is that the employees
covered by the contract on whose behalf Respondent
does not have to contribute to the Trust are apprentices,
part-time employees who work less than 30 hours per
week or 60 hours per month, and employees who have
not completed "1000 hour of uninterrupted non part-time
employment." I am. of the opinion, for the -reasons set
forth hereinafter, that the position of the General Coun-
sel has merit. ,
Pursuant to the plain and unambiguous language of an
addendum to the 1984-1985 contract-`"The Employer
shall pay to the [Trust] the sum of (50) fifty cents for
compensable hour for each employee covered by the
terms of the Labor Agreement"-Respondent agreed to
contribute to the Trust on behalf of all of the employees
covered by the contract, without exception. Also, as de-
scribed in detail supra, the language of this addendum re-
quires Respondent to abide by the terms of the Trust
Agreement, any amendments to the Trust Agreement,
and to designate the Trust's trustees as Respondent's rep-
resentative in the administration of the Trust. The trust-
ees, pursuant to the authority vested in them by the
Trust Agreement, promulgated certain "eligibility for
benefit" requirements which employees must meet to
qualify for benefits, including the requirement that, "INI-
6 All the parties to this proceeding agree that employees employed as
kitchen supernsor, waiter/waitress supervisor, bar supervisor, banquet
supervisor, and cocktail supervisor are not covered by the contract and
that Respondent is not ' obligated to contribute to the Trust on their
behalf.
SAWMILL RESTAURANT
TIAL ELIGIBILITY for benefits will be attained on the
first day of the-month' following accumulation of at least
1000 hours of paid contributions as reported by one or
more employers . . . ." Respondent, when it reached
agreement with the Union on the terms of the 1984-1985
contract, knew about this eligibility requirement inas-
much as it was in effect during the term of the parties'
previous agreement and, at the start of the negotiations
for the 1984-1985 contract, Respondent' s negotiator was
given a booklet by the Union's negotiator which set
forth -the eligibility requirements promulgated by the
trustees.
In other words, when they reached agreement on the
terms of the 1984-1985 contract, the Respondent and the
Union added to the contract an addendum dealing solely
with the subject of Respondent's obligation to contribute
to the Trust. The addendum obligated Respondent to
abide by the terms of the Trust agreement and any
amendments thereto, designated the Trust's trustees as
Respondent's representatives, and obligated Respondent
to contribute 50 cents per compensable hour to the Trust
on behalf of each employee covered by the contract,
commencing with the employee's first compensable hour
of employment. This latter obligation is consistent with
the eligibility rules promulgated by the Trust's trustees
which required "at least 1000 hours of paid contribu-
tions" before an employee was eligible to receive bene-
fits. Thus, under the terms of the eligibility rules, which
Respondent knew about when it reached agreement on
the terms of the 1984-1985 contract,- virtually no one
would ever become eligible to receive health insurance
benefits from the Trust,' if, as Respondent urges, Re-
spondent was only obligated to contribute to the Trust
on behalf of those employees who had completed "1000
hours of uninterrupted non part-time employment."7
For, the only employees who would receive health in-
surance benefits under Respondent's interpretation of the
contract are those who before coming to work for Re-
spondent had already met the eligibility requirements by
virtue; of their employment With another employer or
employers. The aforesaid circumstances, viewed in their
entirety,, warrant the inference that when Respondent
and the Union reached agreement on the terms of the
1984-4985 contract that their intent was for Respondent
to contribute to the Trust on behalf of employees cov-
ered by the contract and for the contributions to begin
from an employee's first compensable hour of employ-
ment and not, as Respondent contends, only after the
7 See Restatement 2d, Contracts, sec. 203(a) ("an interpretation which
gives a reasonable . . . and effective meaning to all the terms [of a con-
tract] is preferred to an interpretation which leaves a part unreasonable
... or of no effect"); see also 3 Corbin, Contracts, sec 552 at 210 (1960)
("It is quite possible for two parties to make a valid contract that seems
unfair or unreasonable or even absurd to other people If, however, the
words of agreement can be interpreted so that the contract will be fair
and reasonable , the court will prefer' that interpretation "); 4 Williston,
Contracts, sec. 620 at 748-749 , (3d ed 1961 ) ("an interpretation which ren-
ders the contract or agreement valid and its performance possible will be
preferred to one which makes it void or its performance impossible or
meaningless ; an interpretation which makes the contract or agreement
fair and reasonable will be preferred to one which leads to harsh or un-
reasonable results ").
541
employee became eligible to receive health insurance
benefits.
All the parties to this supplemental proceeding agree
that Respondent is not obligated to contribute to the
Trust on behalf of employees covered by the contract
who are classified - as apprentices, inasmuch as contribu-
tions for this class of workers have been unambiguously
-and specifically excluded by the contractual provision
dealing with Trust contributions located at -page 8 of the
contract, which provision has been set out in detail
supra . Respondent contends that by virtue of certain ad-
ditional language in this provision ; Respondent, despite
the above-described ' addendum to the contract, was obli-
gated ,to contribute to the Trust on behalf of only those
employees eligible to, receive benefits , namely, those who
completed 1000 hours of uninterrupted part-time employ-
ment . However, the language relied on by Respondent-
"[t]he employer agrees to pay [the Trust ] the sum of 50
cents per compensable hour - for employees covered by
`this agreement and eligible for benefits hereunder"-does
not plainly and unambiguously state this . Respondent's
attorney concedes that the language , is ambiguous (Tr.
134, LL. 2-10, and p. 135, LL. 5-10). Respondent's at-
torney in fact describes this language as "idiotic , it means
nothing; it creates an impossible situation" (Tr. 135, LL.
5-10). The "impossible situation" referred to by Re-
spondent's attorney is that if the language , "eligible for
benefits hereunder," is interpreted to mean Respondent's
obligation to contribute to the Trust is limited , solely to
employees who are eligible to receive benefits , the effect
would be that virtually none of Respondent 's employees
would ever become eligible to receive benefits because
virtually none of them would be able to accumulate the
1000 hours of paid employer contributions necessary to
obtain eligibility. In other words, if this language is inter-
preted to limit Respondent 's obligation to contribute to
the Trust only on behalf of employees who are eligible
to receive the health insurance benefits provided by the
Trust, it would defeat the principal purpose for which
the provision was included in the contract; the furnishing
of health insurance benefits to employees covered by the
contract . 8 It is for all these reasons that I am persuaded
the phraseology, "and eligible for benefits hereunder," is
meaningless and that when Respondent and, the Union
agreed to add the above-described addendum to their
1984-1985 contract , that their intent was to have the lan-
guage of the addendum supersede this meaningless, or as
Respondent puts it, this "idiotic" phraseology.
Likewise, I am persuaded that by adding to their
agreement an addendum dealing solely and specifically
with Respondent's obligation to contribute to the Trust
on behalf of part-time employees, ' the Respondent and
Union intended to repudiate or supersede the previous
reference to this subject located at page 8 of the agree-
8 See Restatement 2d, Contracts, sec. 202(1)(1979) ("Words and other
conduct are interpreted in the light of all the circumstances , and if the
principal purpose of the parties is ascertainable , it is given great weight.")
See also 4 Williston, Contracts, sec. 619, at 732-733 (3d ed. 1961). (If it is
impossible to read together all of the provisions of an agreement so as to
give them a reasonable meaning, "an interpretation which gives effect to
the main apparent purpose of the contract is favored.")
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment.9 The language of the addendum-"[t]hree Em-
ployees to work not more than sixty (60) hours per week
without paying health and welfare payments, on such em-
ployees"-is part of a contractual provision which deals
solely with the subject of Respondent's obligation to
make Trust contributions for part-time employees,
whereas, the language at page 8 of the contract-"excep-
tions, therefore . . . the part-time employees,, ( part-time
being defined as either less, than 30 hours per week or 60
hours' per. month ...)"-is part of a provision dealing
with other matters besides Respondent's, obligation
toward the part-time employees. Moreover, the language
of the addendum, in a significant respect, is in harmony
with the part-time employee language set forth at page 8
of the contract. The language of page 8 of the contract
does not deliniate the number of part-time employees in-
volved, whereas, the addendum deliniates the exact
number of -part-time employees that the parties intended
to be encompassed by the limitation upon Respondent's
obligation to contribute to the Trust on behalf of part-
time employees.' ° It is for all these reasons that I find
when the Respondent and Union agreed to add to the
1984-1985 contract the addendum dealing with the sub-
ject of part-time employees, it was their intent to have
the language of this addendum supersede the previous
reference to part-time employees in the agreement.
Based on the foregoing, I find Respondent's obligation
to make the contractually required payments to the
Trust, as required by the Board's Order, will be satisfied
by paying to the Trust 50 cents-per compensable hour
for all employees covered by the 1984-1985 contract
who have been employed by Respondent at any time
since '1 August 1984, except for apprentices and three
part-time'employees who work not more than 60 hours
per month. I'further find that in addition to the aforesaid
Trust contributions that Respondent is obligated to make
on behalf of the employees, Respondent is also obligated
pursuant to the terms of the Trust agreement to pay to
the Trust liquidated damages of 10 percent of the delin-
quent contributions, plus interest thereon at the rate- of
12 percent per annum.
9 See Restatement 2d, Contracts, sec. 203(d)(1979) ("separately negoti-
ated or added terms are given greater weight than ... other terms not
separately negotiated").
10 See 4 Williston; Contracts, Sec. 624 at 820-821 (1961):
The better, rule, and the one recognized by the weight of authority,
where the clauses present irreconcilable inconsistencies , has been
well stated in these words:
When one intention appears in one clause in an instrument and a
different, conflicting intention appears in another clause in the
same instrument, that intention should be given effect which ap-
pears in the principal or more important clause [case cited].
If, 'however, the first clause is general in terms, and the latter is particu-
lar, or if the latter clause is repugnant only to part of the earlier, it
seems that the latter clause would be given full effect, and the earlier
subjected to such qualifications as the latter might make necessary. [Em-
phasis added]
The amended backpay specification alleges that for the
period ; from 1 August 1984, - the start of the backpay
period, through 31 March 1984, the last completed quar-
ter prior to the issuance of the backpay specification,
that Respondent's obligation herein will be discharged by
payments to the Trust of the sums of money set forth
aside of the names of the employees named in Appendix
A of the specification, and further alleges that this obli-
gation will be discharged by payments on behalf of these
employees to the Trust of $21,470 and liquidated dam-
ages of $2147, plus interest accumulated to the date of
payment. The specification, as amended, is accurate in all
respects except one," namely, it does not exclude from
Appendix A the three part-time employees employed not
more than 60 hours' per month (Tr. 33, LL. 2-6), on
whose behalf Respondent is not obligated to contribute
to the Trust. In view of this it is impossible for me to
accurately compute the amount of contributions Re-
spondent was obligated to make to the Trust during the
backpay period. I therefore shall recommend that the
parties resolve this matter by themselves, but if they are
unable to agree within a reasonable period of time about
the amount of trust contributions owed by Respondent
to the Trust from 1 August 1984 to the present date, the
Board's Regional Director should submit to me a revised
specification consistent with this Supplemental Decision
and Order.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed12
SUPPLEMENTAL ORDER
The Respondent, Coos-Bend, Incorporated, d/b/a The
Sawmill Restaurant & Lounge, North Bend, Oregon,_ its
officers, agents, successors, and assigns, shall consistent
with this supplemental decision make the required pay-
ments to the Hotel, Restaurant and Beverage Employees
Trust on behalf of the employees named in Appendix A
of the backpay specification's and any other employees
who since 31 March 1986 have been employed by Re-
spondent on whose behalf Respondent is -obligated to
contribute, plus liquidated damages of 10, percent of, de-
linquent contributions and interest thereon at 12 percent
per annum.
11 The specification alleges that due to illegible records and other rea-
sons, the number of compensable hours worked during the time material
by I I of the employees named in App. A of the specification has been
estimated . Respondent concedes that the estimated number of compensa-
ble hours worked by these 11 employees, as set forth in App. A, was a
"good estimate." (Tr. 16, LL. 14-18.)
12 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.
13 No contributions are required on behalf of any of these, employees
who are part of the group of three part-time employees on whose behalf
Respondent does not have to contribute.