253 N.L.R.B. 1090 (N.L.R.B. 1981)

Warehousemen's Local 334

National Labor Relations Board - Board DecisionsJan 8, 1981

253 N.L.R.B. 1090 (N.L.R.B. 1981)

1090 a/k/a & 1 PENELLO 3(b) 302(c)(5) "Taft-Hart- prescription procedures i.e., entities i l l maiu- bar - i l l thc- TI-ust. participatctl I I I I:III ployers crcaticl~l vlllr I I I ~ 1 I I * I ~ I the I I ~ U assis~rtl 111 thc plrt~~ DECISIONS O F NATIONAL LABOR RELATIONS BOARD Warehousemen's Union Local 334 Driver Salesmen, Warehousemen, Food Handlers, Clerical and Industrial Production Teamsters Union, Local No. 582, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and The Crescent, Division of The Halle Brothers Company (A Subsidiary of Marshall Field Company) Driver Salesmen, Warehousemen, Food Handlers, Clerical and Industrial Production Teamsters Union, Local No. 582, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and its Agents Inland Empire Teamsters Trust and its Trustees and Genuine Parts Company, d/b/a NAPA Driver Salesmen, Warehousemen, Food Handlers, Clerical and Industrial Production Teamsters Union, Local No. 582, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Co- lumbia Lighting, Incorporated. Cases 19-CB- 2954, 19-CB-3065, and 19-CB-3074 January 8, 198 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND On January 31, 1979, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, Respondent and Inland Empire Teamsters Trust (herein called the Trust) each filed exceptions and supporting briefs; the Charging Parties (herein also called the Employers) filed a brief in support of the Administrative Law Judge's Decision and, later, a brief in opposition to the exceptions; the General Counsel also filed a brief in support of the Administrative Law Judge's Decision and cross-exceptions and a supporting brief; the Charging Parties joined in the cross-ex- ceptions; and Respondent and the Trust filed sepa- rate briefs in response to the cross-exceptions. Pursuant to the provisions of Section 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, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. Respondent has maintained a collective-bargain- ing relationship with Associated Industries of the Inland Empire, a multiemployer bargaining group, 253 NLRB No. 109 for many years. One product of that relationship has been the Trust, a Section lev" trust established in 1966 and modified in 1976 to conform to the provisions of the Employee Re- tirement Income Security Act of 1974 (ERISA). In 1976 the Trust administered three separate employ- ee benefit plans for health and welfare, dental care, and drugs. Its governing body consists of six Trustees. Three are union-selected Trustees, all of whom were officers of Respondent during times relevant herein, and the other three are man- agement-selected Trustees. Trustee authorization for certain Trust actions require a unanimous "unit vote"; approval by a majority of both the union and management trustee units. The three Employers, The Crescent, Genuine Parts, and Columbia Lighting, are separate business which utilize certain employee relations services of the Associated Industries but maintain individual collective-bargaining relationships with Respondent. Since 1974 each Employer's contract with Respondent has contained explicit provisions for contributions to and unit employees' participa- tion in the three aforementioned fringe benefit plans administered by the Trust. The Employers have also executed identical declarations of trust, agreeing thereby that they will be bound by the acts of the Trustees. None of the Employers has any role in the selection of management Trustees for the Trust. During 1976 contract negotiations between Re- spondent and each of the Employers, the establish- ment of a new vision care employee benefit plan was proposed and rejected. Consequently, the three contracts ultimately executed continued to reflect the Employers' agreement to the operation of health and welfare, dental care, and prescription drug plans only, with provisions for increases employer contributions where necessary "to tain present benefits." Notwithstanding this gaining history, the Trustees of the Trust voted December 1976, with only one management Trust- ee objecting, to create a vision care benefit plan for the employees of all employers participating in Trust and to fund the plan initially with a portion of the unallocated reserves built up in the A union Trustee who had previously Respondent's contract negotiations with the suggested the vision care plan's All three union Trustees participated in the authorizing the plan and expressed their unani approval of it. Afterwards, these same Trusters. their roles as union officers, publicized plan to the Employers' employees and the actual July 1, 1977, implementation of for those and other employees. 8(b)(3) w;iCh contracts.% agreed- disseminat[ed] information credit- 8(b)(3) WAREHOUSEMEN'S The Administrative Law Judge has found, in agreement with the General Counsel, that the Trustees acted as Respondent's agents and violated Section of the Act by unilaterally changing the Employers' employee benefit plans to include vision care. Respondent and the Trust have each excepted to this finding. They support their excep- tions with the contention that, by executing a dec- laration of trust and through the participation of management Trustees, the Employers have con- sented to abide by the Trustees' discretionary cre- ation of a vision care plan. Respondent Union and the Trust further contend that the Administrative Law Judge erred in finding that the Trustees acted as Respondent's agents with respect to the vision care plan. We find no merit in these contentions. We agree with the Administrative Law Judge that the Employers are bound to the Trust only for the benefits they had agreed upon contractually during negotiations with Respondent, and that they have contracted to make contributions only to the Trust plans covering health and welfare, dental care, and prescription drug expenses. Not only have they not contracted to contribute to the new vision care benefit plan Respondent seeks to impose upon them, but they specifically rejected that plan during negotiations Respondent for their most recent no occasion have the Employers executed any Trust document dele- gating unlimited agency to the Trust, or empower- ing the Trust to implement benefit plans other than those specified in their collective-bargaining agree- ments, nor have they otherwise agreed to be bound by any Trust provisions beyond their collective- bargaining agreement commitments. Therefore, while those agreements clearly state that the Em- ployers agree to be bound by the decision of the Trustees, the extent of any discretionary authority thereby granted is equally clear-it extends only to decisions related to the benefit plans specifically agreed upon. This conclusion is underscored by evidence that the bargaining agreements earmark contributions for specific benefits and that the Trust individually accounts for, funds, and adminis- ters separate Trust benefit plans. The only other usual communications between the Employers and the Trust about benefit plans are notices of in- creases in required contributions. The Employers' acceptance of the Trust agree- ment did not authorize the Trustees to establish new benefits not provided for in existing collective- bargaining agreements. The Employers' required contributions to the Trust were made to fund only those agreed-upon benefits, and any surplus for such contributions was obligated to be applied by the Trust only toward such benefits, whether UNION LOCAL 334 1091 through a reduction in the Employers' future con- tributions, maintenance as a reserve for the upon benefits, or some other method. It is plain, therefore, that the new vision care program contra- vened the authority granted the Trust and the Trustees, and was contrary to the Employers' col- lective-bargaining agreements with Respondent. It is equally plain that Respondent was responsi- ble for the breach of the Trust agreement and, through it, a unilateral change in its contracts with the Employers. That breach was initiated at a De- cember 7, 1976, Trustees' meeting by Trustee Clouse who, in his dual capacity as Respondent's secretary-treasurer, "explained the desire of [Re- spondent] to establish a Vision Care Plan." Trustee Warner, who is also Respondent's business repre- sentative, proposed that the Trust establish the new plan effective January 1, 1977, and all three union Trustees and two employer Trustees voted in favor of the proposal. Although the plan did not become operative until July 1977, Clouse, prior to any fur- ther action by the Trustees, entered into contrac- tual negotiations with third parties in which he was instrumental in establishing a timetable for imple- menting the Trustees' creation of the plan. Respondent then implemented the plan by print- ing informational pamphlets concerning the plan under their union designation. Warner then went to the Employers' places of business and distributed to employees there the pamphlets and other informa- tion pertaining to the plan. While so engaged, he identified himself and his business as being that of Respondent, not of the Trust. As the Administra- tive Law Judge aptly stated, Respondent "enthusi- astically it as a new feature of union membership even as the employers chorused their protest." Consistent with the implementation of the plan, Respondent then administered the plan by main- taining a file of all employees participating therein and assisting employees in completing their claims forms, by printing and distributing to employees, at its own expense, about the plan, and by establishing a clinic in its offices for vision care services. These facts clearly show that Respondent instigated and caused the creation of the new plan, and then claimed credit for it by holding itself out to employees as being responsible for it. In our view, this is a unilateral change in benefits-a new benefit for which Respondent openly took and thus a plain violation of Section of the Act. If such unilateral changes can be made after spe- cific rejection in collective bargaining, then bar- gaining is undermined. Taken to its logical conclu- sion, even agreed-upon benefits have no certainty DEClSlONS 90- employer- g.. Inc.. 8'0. AFL- C IO, Inc) . 161 /. /. Hagerty. Inc.. Asxxiation J. Corlough. (Centrol Florida Controctors Association.. Inc.), Issue vis~on dissenting Turner-Brook. 8(b)(3) ant1 Enl- ployers i n t e r e ~ t , ~ T r u ~ t . ~ 10(c) affiliated 1. Corporation, Isis & Heot- ing 3 legal exer- c~sing make poss~ble Muc~a ry any 1092 OF NATIONAL LABOR RELATIONS BOARD of constancy during the contract term if such bene- fits can be modified by means of the ploy used here. We find no sanctuary for Respondent in the Trust as our colleague does. The inference is clear, and we draw it, that Respondent's representatives were speaking with a union voice while simulta- neously seeking to cloak themselves with the im- munity of their fiduciary status when they engaged in conduct intended to promote union, not Trust, goals. To remedy the violation found, the Administra- tive Law Judge recommended that the vision care benefit program for the Employers' employees be terminated 90 days after the recommended notices to employees and members had been posted. Ac- cording to the Administrative Law Judge, the day waiting period would serve to prevent undue hardship to employees faced with a potential loss of benefits. He did not recommend any reimburse- ment remedy for additional expenses incurred by the Employers as a result of the unilateral imple- mentation of the vision care plan. The General Counsel contends in his cross-ex- ceptions that the Administrative Law Judge erro- neously failed to make whole the Employers by or- dering the restoration to original Trust funds or ac- counts of any money transferred or borrowed therefrom for use in connection with the vision care plan. The remedy requested by the General Counsel fails to distinguish between funds traceable to the Employers' contributions to the Trust and funds traceable to contributions by other participants who have either agreed to vision care plan coverage for their employees or at least have not challenged the plan in this proceeding. Under these circumstances, we regard such a reimburse- ' The Board has, of course, found on numerous occasions that trustees of a Taft-Hartley trust have performed certain acts as agents for either o r both of their joint settlors. See, e Jacobs Transfer. 227 NLRB 1231 (1977); Local Sheet Metal Workers International Association. and its Agents. etc. (Turner-Bmokr NLRB 229 (1966); 139 NLRB 633 (1962). Neither the cited cases nor our agency analysis herein contravenes Board law that trustees d o not exer- cise the specialized agency powers of a "collective-bargaining representa- tive." See Sheet Metal Workers' International and Edward President Sheet Metal 234 NLRB 1238 (1978). The issue in this case is not whether the Trustees have engaged in collective bargaining inter se. The is whether the Trustees' care plan is consistent with the terms and conditions of employment already negotiated by the recognized collec- tive-bargaining representatives of Respondent and the Employers. If in- consistent, then a further issue, resolved through an agency analysis, con- cerns to whom the change wrought by the Trustees may be attributed. As indicated, we would find that Respondent is responsible for the change. We note in this regard that our colleague joined in a similar finding in supra, wherein the Board unanimously found a respondent union responsible for an violation committed by its agents who were trustees in the act of administering benefit trust funds ment remedy as excessively overbroad. We shall, however, amend the recommended remedy modify the recommended Order and notice to pro- vide that Respondent alone make whole the by reimbursing them, with for whatever the new benefit plan has directly cost them in additional contributions to the In addition, although we share the Administrative Law Judge's concern for the plight of employees who may be abruptly deprived of vision care cov- erage, we do not believe such concern can justify forestalling the Employers' entitlement to restora- tion of the status quo prior to the unlawful unilat- eral institution of the vision care plan. According- ly, we shall order both Respondent and the Trust- ees as its agents to rescind the vision care plan im- mediately upon the request of any of the Employ- ers. The employees of any Employer so requesting must seek relief for lost benefits through the mech- anism of collective bargaining or in legal actions before forums other than the Board. ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied and set out in full below, and hereby orders that: A. The Respondent, Driver Salesmen, Warehou- semen, Food Handlers, Clerical and Industrial Pro- duction Teamsters Union, Local No. 582, with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, its officers, agents, and representatives, includ- ing Inland Empire Teamsters Trust and its Trust- ees, shall: Cease and desist from: (a) Unilaterally creating and implementing a vision care program for employees of The Cres- cent, Genuine Parts, and Columbia Lighting in derogation of the Union's statutory duty to bargain collectively with these Employers. Interest shall be computed in the manner prescribed in Florida Steel 231 NLRB 651 (1977). See. generally. Plumbing Co., 138 NLRB 716 (1962). Member Jenkins would compute interest in accord with his partial dissent in Olympic Medical Corporation. 250 NLRB 146 (1980). Although there is a tenablr basis for holding the Trustees sec- ondarily liable for any monetary reimbursement due, the Board in its discretionary remedial authority does not find such a holding necessary to whole the Employers. Moreover, it is that a Board order assessing liability against the Trustees would open the door to multiple litigation of issues under ERISA and the Act and thereby actually impede compliance. Member Jenkins, however, would run the reimbursement order against the Trustees individually as agents of Respondent and would further hold the Trustees personally but sec- ondarily liable for monetary reimbursement due. (b) affirmative A."' officm, 1. ' Statea Labor B."5 I 8(b)(3) opera t i~n .~ supra. B(b)(?) Sec. 8(d) "parties" ' 3. ~ t s WAREHOUSEMEN'S UNION LOCAL 334 1093 Engaging in any like or related conduct in derogation of the Union's statutory duty to bar- gain. 2. Take the following action designed to effectuate the policies of the Act: (a) Upon request of any of the aforementioned Employers, rescind the vision care plan as to em- ployees of that Employer. (b) Post at its business offices and all meeting halls wherever located in the State of Washington copies of the attached notice marked "Appendix Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's authorized representa- tives, shall be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Furnish the Regional Director for Region 19 with signed copies of such notices for posting by The Crescent, Genuine Parts, and Columbia Light- ing, if willing, at all places where they customarily post notices to employees. (d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. B. The Respondent, Driver Salesmen, Warehou- semen, Food Handlers, Clerical and Industrial Pro- duction Teamsters Union, Local No. 582, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, its agents, and representatives, shall: Cease and desist from refusing to bargain col- lectively with The Crescent, Genuine Parts, and Columbia Lighting by unilateral implementation of' a vision care program for employees of these Em- ployers. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request of any of the aforementioned Employers, rescind the vision care plan as to em- ployees of that Employer. (b) Reimburse The Crescent, Genuine Parts, and Columbia Lighting, with interest, for whatever the vision care plan has cost them in additional contri- butions to the Inland Empire Teamsters Trust in the manner set forth in the section of this Decision and Order entitled "Amended Remedy." In the event that this Order is enforced by a Judgment of a United Court of Appeals, the words in the notice reading "Posted by Order o f the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order o f the National Relations Board." (c) Post at its business offices and all meeting halls wherever located in the State of Washington copies of the attached notice marked "Appendix Copies of said notice, on forms provided by the Regional Director for Region 19, after being . duly signed by Respondent's authorized representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily , posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Furnish the Regional Director for Region 19 signed copies of such notice for posting by The Crescent, Genuine Parts, and Columbia Lighting at all places where they customarily post notices to employees. (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. CHAIRMAN FANNING, dissenting: My colleagues adopt the Administrative Law Judge's conclusion that Respondent Teamsters Local 582 and the Inland Empire Teamsters Trust and its board of trustees, acting as Respondent's agents, violated Section of the Act by uni- laterally implementing a vision care program for employees of the Charging Parties. In my judg- ment, there is no basis here for finding unilateral conduct that falls within the proscriptions of the Act. Rather, on this record, the majority and the Administrative Law Judge have reached a result that is damaging to the trust fund concept and its Accordingly, I dissent. The facts generally are undisputed. Respondent represents certain employees of the three Charging Parties (The Crescent, Genuine Parts, and Colum- bia Lighting) and has had separate collective-bar- gaining agreements with each of these Employers.' In accordance with their respective agreements, the Charging Parties have made periodic, predeter- mined payments into fringe benefit plans adminis- tered by the Inland Empire Teamsters Trust. Each agreement contains virtually identical sections re- quiring that each Employer make contributions for See fn. 4, The violation found by the Administrative Law Judge is linked with failure to comply with the requirements of of the Act to give notice of intent to bargain collectively, a section that applies to to a contract. not trustees. Respondent's agreement with The Crescent expired on November 1978, its most recent agreement with Genuine Pans expired on June 30, 1979, and agreement with Columbia Lighting expired on September 21, 1979. dental plan. ~ "acknowledges by $100,000 O proposal. was A g o c u t 4 is board Trustea collectivebargaining purpaes. * meeting. e-4 SI unallo- caked Michael 5400,000 wm unoficially SM0.000 l o vision benefits employ- acs employers, Partia, cumntly punuant collective-hrgnining Sec. Trustees"--of 1, provides "mhere votes: Trustem Trustees action Trustas. 06Brien's k' w u t i o n management trust- as Sec. 8@)(I)(B) act fiduckies Workem' ciation Edwnnl Carlough (Cfntral Asmciotion. Inc.). l a agreemmt is sec. l4 otherwise (1977). places reliance. In the B m d carlier Jam& Trans/er, (1973), Sec. 8(a)(3) concert- 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the provisions of a health and welfare plan, a care plan, and a prescription drug For each of the various plans for which contri- butions were negotiated, as reflected in the agree- ments, each Charging Party signed an identical document designated an acceptance of trust. In pertinent part, these documents all provide that the Employer receipt of the attached Trust instrument" and "consents to and accepts the terms, conditions and provisions of the Trust." The acceptance of trust further provides that the Em- ployer agrees that the Trustees serving pursuant to the terms of the trust instrument "are and shall be his or its representatives and consent to be bound by the acts of said Trustees, successor Trustees and altenative Trustees, pursuant to the provisions of said Trust." It is almost inconceivable that this lan- guage could be more clearly drawn to reflect that the Employer accepted in advance any discretion- ary decisions made the Trustees under the terms of the Trust agreement. Nevertheless, it is just such a decision by the Trustees that is the center of dis- pute. At a regular meeting of the Trust8 on December 7, 1976, the union Trustees proposed establishment of a vision care plan for employees and their de- pendents to be funded by borrowing about from the Trust's unallocated reservess and from payments to be made by employers who had agreed to pay for such benefits for their own employees. Of the six Trustees, only one employ- er Trustee, Michael O'Brien, objected to the vision care In accordance with the Trust's "unit vote" principle, with a majority of the employer Trustees and all of the union Trustees voting for the plan, it was approved. The significance of the plan's approval by a ma- jority of the employer Trustees is given scant at- tention by the Administrative Law Judge and my colleagues. Nonetheless, I deem it significant that there is no evidence that the approving employer Trustees acted on any basis other than their good- ' The Trust established on July 21, 1966, by Respondent and the Industries of the Inland Empire (hereinafter the Association). The Trust directed by a of trustees. Three are selected by the Union and three by employers who are represented by the Associ- ation for As of November 30, 1976. just before this Trust reserves million. of which over S700.000 was categorized as reserves. According to employer Trustee J. O'Brien, of the S700.000, about allocated as a "backstop for ca- tastrophe" while the other had no s t a t 4 purpose. The care were also to be made available to of all such as the Charging who paid into any of the Trust Funds to agreements. 3-"Voting by the Trust's most recent modifica- tion. effective January 1976, in pertinent part: shall be but two the Union shall have one vote among them and the Employer shall have one among them." Any taken by the Trustees requires the approval of both groups of faith independent judgment. The lone dissenting employer Trustee, Michael O'Brien, was called as a General Counsel witness. own testimony evidences that the employer Trustees as a group could deny any action proposed by the union Trustees by a simple vote of "no." O'Brien further testified that there have been no instances during the life of the Trust where a proposal by the union Trustees was implemented over a negative vote of the employer Trustees. Absent any evidence that this action of the employer Trustees was controlled in any way by the union Trustees or by Respond- ent, I find that implementation of the vision care plan is attributable solely to the proper exercise of independent judgment by the Trustees as a group. Nor is there any basis for concluding that the vision care plan was an impermissible subject under the terms of the Trust. T o the contrary, the Trust Agreement's statement of purpose includes "pro- viding and maintaining any employee benefit, except pension, including but not by way of limita- tion, life and accident, health and welfare benefits, including dental, vision, drugs and pharmaceutical supplies [emphasis supplied]." The section enti- tled "Purpose of Trust" adds: "The Trustees shall, in their sole discretion, determine which benefits shall be provided." It thus appears clear that imple- mentation of a vision care plan is within the con- templated purposes of the Trust. Especially in light of the acceptances of trust, the Charging Parties are therefore bound by the Trustees' decision to ef- fectuate such a plan. Oral testimony expressing the Charging Parties' opposition to the vision care lan is not sufficient to negate or alter the written t rms of either the acceptances of trust or the Trust doc- ument itself. Against this background, I perceive no basis for concluding that Respondent, simply because of its Trustees' interest in and urging of the vision care plan, acted unilaterally regarding effectuation of the vision care benefit, a benefit that entailed no In recognizing that a trustee designation clause, denying an employ- er the right to select directly trustees, is a man- datory subject of bargaining, the Board has found that management are not. in fact, collective-bargaining representatives under of the Act, but solely as who consider all rec- ommendations but are bound to exercise their independent judgment in administering the trust fund. See Sheet Metal International A- and /. Resident Florida Sheet Metal Contracton 234 NLRB 1238 (1978). This statement is on the first page of the Trust and repeated in 2-"Purpose of Trust." Nor am I persuaded by Jambs Transfer. Inc., 227 NLRB 1231 upon which the Administrative Law Judge consider- able Jambs, was confronted with a very limited question. An Board decision. Inc.. 201 NLRB 210 had found that the employer violated and (I) of the Act by unlawfully discharging employee Daniel George for his Continued :ontract, individ- la1 negoti- ~tions. alia, iould eflactuating le 8(b)(I)(A) refusal contribu- lat gainst See me Loco1 8Q International Arroeiation. FL-CIO, erc. Inc.). trustas ~nds le , a indepmdent em- 'toyer trustees, TO ORDER you TO POSTED ORDER WILL HEILBRUN, 582, Re- WAREHOUSEMEN' tdditional employer expenditure during the existing and was subject to revocation by employers at the next round of contract Accordingly, I would dismiss the complaint. d activities. A make-whole order provided, inter that the employer make contributions to the health and pension trusts on George's ehalf. At the union's direction, however, the trusts refused to accept the mployer's contributions. The Board simply found that, for the purpose f compliance with its order, the trusts were agents of both employer and the union and that the union and the trusts violated ec. and (2) of the Act by their to accept the ons on behalf of George. In reaching this conclusion, the Board found the union "did control the Trusts for the purpose of discriminating George." 227 NLRB at 1232, fn. 3. Contrary to my colleagues' suggestion, moreover, I do not view this as similar to Sheet Metal Workers' and its Agents (Turner-Brooks 161 NLRB 229 966). As the Board recognized in that case, the of various trust were "not free to exercise their discretion" in refusing to accept payments tendered by the employer "but rather were acting pursuant specific limitation of authority contained in the contract." 161 NLRB 234. Unlike this case, therefore. an action involving the proper exercise f judgment by the trustees, including a majority of the was not at issue. APPENDIX A NOTICE EMPLOYEES AND MEMBERS POSTED BY OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unilaterally create and imple- ment a vision care program for employees of The Crescent, Genuine Parts, and Columbia Lighting in derogation of the Union's statutory duty to bargain collectively with these Em- ployers. WE WILL NOT engage in any like or related conduct in derogation of the Union's statutory duty to bargain. WE WILL, if requested by the above-named Employers, or any of them, terminate the vision care program announced to you about July 1, 1977, as participants in the Inland Empire Teamsters Trust by virtue of your em- ployment by one of said Employers. WE ADVISE that your Employer has merely followed the law in charging us with this unfair labor practice, and that said Em- ployers, The Crescent, Genuine Parts, and Co- UNION LOCAL 334 1095 lumbia Lighting, have not agreed to this pro- gram. DRIVER SALESMEN, WAREHOUSE- MEN, FOOD HANDLERS, CLERICAL AND INDUSTRIAL PRODUCTION TEAMSTERS UNION, LOCAL NO. 582, AFFILIATED WITH THE INTERNATION- AL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AND ITS AGENTS INLAND EMPIRE TEAMSTERS TRUST AND ITS TRUSTEES APPENDIX B NOTICE EMPLOYEES AND MEMBERS BY OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE NOT refuse to bargain collectively with the Crescent, Genuine Parts, and Colum- bia Lighting by unilateral implementation of a vision care program for employees which we represent at these Employers. WE WILL, upon the request of any of the above-named Employers, rescind the vision care program for employees which we repre- sent at these Employers. WE WILL reimburse The Crescent, Genuine Parts, and Columbia Lighting, with interest, for whatever the vision care plan has cost them in additional contributions to the Inland Empire Teamsters Trust. DRIVER SALESMEN, WAREHOUSE- MEN, FOOD HANDLERS, CLERICAL AND INDUSTRIAL PRODUCTION TEAMSTERS UNION, LOCAL NO. 582, AFFILIATED WITH THE INTERNATION- AL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA DECISION DAVID G. Administrative Law Judge: This case was heard before me in Spokane, Washington, on July 11 and 12, 1978, based on an amended consolidated complaint alleging that Driver Salesmen, Warehousemen, Food Handlers, Clerical and Industrial Production Teamsters Union, Local No. affiliated with the In- ternational Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called spondent,' 8(b)(3) 8(d) FINDINGS RESULTANT conce~ t 'a 1978.2 was Halle S500.000, $50,000 sales S50,000 purcham excess $50,000 $50,000 Genuine Sec. 2(6) 2(5) & ofice, sufices & 1, XIX-Dental 1, Ofice (10th) 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violated Section of the National Labor Relations Act, as amended, by unilaterally changing the wages, hours, and working conditions of certain collec- tive-bargaining agreements to which it is (or was) a party without complying with the requirements of Section of the Act. The collective-bargaining agreements in- volved exist (or existed) with respect to service building employees of The Crescent, a general merchandise retail- er, with respect to both warehouse and clerical employ- ees of Genuine Parts, an automobile parts distributor, and with respect to shipping, receiving, and related em- ployees of Columbia Lighting, a manufacturer of lighting fixtures. Upon the entire record, my observation of witnesses, and consideration of the post-hearing briefs, I make the following: OF FACT AND CONCLUSION OF LAW The three firms that are individual Charging Parties to this consolidated proceeding each utilized certain em- ployee-relations services of Associated Industries of the Inland Empire without subsuming their labor-manage- ment relations to the of Association-wide bar- gaining. Each such firm has collective-bargaining rela- tionship with Respondent, and the singly negotiated con- tracts referred to above were in each case of a 3-year du- ration to expire later this year or, in the case of The Crescent, on November 3, Since at least late 1974 the collective-bargaining agreements of each employer have contained fringe benefit plans for employees mani- festing themselves as health and welfare, prescription drug coverage, and dental care. Each such provision is based on a trust fund cognizable under Section 302 of the Act as a jointly administered program for the sole and exclusive benefit of employees and their dependents. Insofar as is material here, the plans were administered by the Inland Empire Teamsters Trust, herein called the Trust. The composition of this bipartite body was at no time influenced by any action of the Charging Parties, nor officials on their behalf, with the only significant re- lationship to the Trust being monthly remittances due under the terms of the collective-bargaining agreements It stipulated that Warehousemen's Union Local 334 no longer exists, having been absorbed by merger into Local No.582. The Crescent. Division of The Brothers Company, engages in its described business in Spokane. Washington, where it annually makes retail sales in excess of while purchasing and receiving goods and materials valued in excess o f directly from outside Washing- ton. Genuine Parts Company, d/b/a NAPA engages in its described busi- ness in Spokane. Washington, where it annually makes retail in excess of S500.000, while purchasing and receiving goods and materials valued in excess of directly from outside Washington. Columbia Lighting. Incorporated, engages in its described business in Spokane. Washington, where it annually goods and materials valued in of directly from outside Washington, while selling goods and providing services valued in excess of directly to customers located outside Washington. On these facts I find that The Crescent, Parts, and Columbia Lighting are each employers engaged in commerce within the meaning of and (7) of the Act. I further find, as is admitted, that Respondent is a labor organization within the meaning of Section of the Act, and that Local 334, at all material times prior to its merger with Respondent in September 1976. was simi- larly a labor organization as defined in the Act. as originally formulated by contractual language or as from time to time adjusted through discretionary action taken to maintain benefits. The Trust itself performs or- ganic functions by a "unit vote" procedure between its labor and management trustees (each a group of three). An administrative agent, A. W. Rehn Associates, Inc., maintains the Trust conducts its daily business, re- ceives employer contributions, banks these into appropri- ate accounts, and operates a claims service. The revenue of the Trust is apportioned to accounts for claims, oper- ating costs, administrative expense, and "breakage" as the excess that may be accumulated into reserves. Phra- seology in the current collective-bargaining agreement between Genuine Parts and Respondent to illus- trate what this case is about in terms of contract lan- guage. It reads: Article XVIII-Health Welfare Effective September 1976, based on August hours, the Employer shall pay into the Inland Empire Teamsters Trust the sum of Fifty-One Dol- lars and Seventy Cents ($51.70) for each employee who was compensated for eighty (80) hours or more in the preceding month. The Employer fur- ther agrees that, if, during the life of this Agree- ment, the Insurance Carrier proves a need for in- creased premiums to maintain the present benefits, the Employer will pay the required increase upon notification from the Trustees of said Trust. Article The Employer shall continue to pay into the Inland Empire Teamsters Dental Trust the sum of Fourteen Dollars and Fifty-Five Cents ($14.55) per month for each employee who worked eighty (80) hours or more during the preceding month. The Employer agrees to pay such additional cost deter- mined by the Trustees as necessary to maintain present benefits. Effectiw August 1977, based on July hours, the Employer shall pay into the Inland Empire Team- sters Dental Trust, the provisions of which he agrees to be bound by, the amount of Twenty-One Dollars and Forty Cents ($21.40) to purchase the improved Plan for each employee who worked eighty (80) hours or more during the preceding month. The Union agrees that during the life of this Agreement they will not request any additional benefits and the Employer agrees that during the life of this Agree- ment the Company will pay any increase in contri- bution rates if required by the Trustees to maintain the benefits of the Teamsters Dental Plan. The above payments shall be made to the Admin- istrative by the tenth day of each month and in the event the Trust Fund is required to take legal action to collect any Employer contri- butions due under this contract, the Employer shall be liable for all necessary legal and court costs. I 1, (54.90) originally Upton, 5100,000 unallocated startup implementati~n.~ Upton Upton, ' O'Brim o f i - cials 1 1. O'Brien. amxiationwide em- ployen 5100,000 Care Trust 5100,000 in- WAREHOUSEMEN'S UNION LOCAL 334 1097 Article XXI-Prescription Drug Plan Effective August 1977, based on July hours, the Employer shall pay into the Inland Empire Team- sters Trust (Prescription Drug Plan) the sum of Four Dollars and Ninety Cents per month for each employee who worked eighty (80) hours or more during the preceding month. The Employ- er agrees that if, during the life of this Agreement, the Union Trustees of the Fund prove the need for increased contributions to maintain the present benefits, the Employer will pay the required in- crease upon notification from the Union. The Trust was established in 1966 for dental care, and expanded over succeeding years to add the fur- ther benefits. In 1973 a conversion to "self-funded"status was rendered, and subsequently, effective January 1, 1976, an amending and superceding declaration of trust was executed with the primary purpose of conforming to the Employee Retirement Income Security Act of 1974 (ERISA). By late 1976. the union Trustees were Oscar former secretary-treasurer of Local 334 and a continuing office holder with Respondent, Donald Clouse, Respondent's secretary-treasurer, and Lloyd Warner, a full-time business representative for Respond- ent. At a regular meeting of the Trust on December 7, 1976, the union Trustees proposed establishment of a vision care plan for employees and their dependents by borrowing (later increased to 5112,500) from reserves of the Trust as financing for such a feature. It was contemplated at the time that em- ployers of the major industry groups with contracts about to expire would be pressed to agree to it, and make appropriate contributions for its operation into the future. Of the six Trustees present only Michael O'Brien, association president, objected, so by unit vote the idea passed in principle with January 1, 1977, as the target date for The following fuller descrip- tion of this action appeared in official minutes: Date: December 7, 1976 Time: 10 a. m. Place: Red Lion Motor Inn, Spokane The meeting was called to order by Chairman with the following persons in attendance: Employer Trustees Robert L. Francis, Wesley An- derson, and Michael J. O'Brien; Union Trustees Oscar Donald L. Clouse, and Lloyd Warner, Jr.; and Others in Attendance Archie understood at the time that employers of the wholesale baking industry had already informally committed themselves with of Respondent for such a plan. As also then known. employers of the dairy industry and wholesale grocery industry would soon begin ne- gotiationa to renew contracts expiring on April and June 1977. re- spectively, while the soft drink bottling industry agreement of the Spo- kane vicinity was to expire in February 1978. who resigned as Trustee immediately after this meeting, perceived a general intention by union Trustees to broadly seek such benefits through the mechanism of bargaining with the several industries involved, and should negotiations on the point not prove productive as to given or industries this would terminate or limit the scope of coverage with respect to their employees. Rehn-administrator, Russel Reid-trust attorney, and Gary Jenkins-consultant. The minutes of the meeting of September 30, 1976, were approved as read. New Business: 2. Clouse explained the desire of Teamsters Union Locals 334 and 582 and Laundry Workers Union Local 49 to establish a Vision Care Plan for all enrollees in the Trust effective January 1, 1977. He also requested that be utilized from the Unallocated Reserve of the Trust to establish the Vision Care Plan since the majority of the employ- ers were not committed by a labor agreement to contributions for a Vision Care Plan. O'Brien ob- jected to this procedure for the following reasons: That this was an improper use of the Unallocated Reserve since the money in this fund had been con- tributed for other purposes; that since there was a maintenance of benefits clause in the various labor contracts employers could later object [by] the in- voking of the maintenance of benefits clause if the Unallocated Reserve funds were utilized for Vision benefits rather than [for] maintaining the bene- fits for Plans provided in the labor agreements; and that Vision Care was an entirely new benefit which the majority of employers had not agreed to pro- vide in the labor agreements. After discussion it was moved by Warner that the Trust establish a Vision Care Plan for the benefit of all enrollees effective January 1, 1977, with the provision that if the em- ployer in the next individual labor contract negotia- tions does not agree to contribute to the Vision Care Plan the Vision Care Plan will be revoked for employees of that individual employer, and that the use from the Unallocated Reserve to establish the Vision Care Plan with the intent being to reimburse the Unallocated Reserve Fund if funds later become available from the contributions to the Vision Care Plan. Anderson asked the Trust Attor- ney if the establishment of a Vision Care Plan on this basis was legal and the Trust Attorney stated that in his opinion it was legal for the Trust to do so. Francis seconded the motion. All Trustees except O'Brien voted for the motion. O'Brien voted against the motion. The motion was passed by a unanimous vote of the Union Trustees and by a ma- jority vote of the Employer Trustees. January 1, 1977, came and went without further action on the subject, and O'Brien, now an outsider to the Trust but chiefly active for industry negotiations through his role as association president, met for contract settle- ment purposes with Clouse about mid-February 1977. From this a series of agreements ensued: The dairy in- dustry would commence vision care benefits for its em- ployees effective April 1, 1977, the wholesale grocery informa- - ~ hours 15, $12,500 Rigas, Rigas Fenton, informational Eflcctiw 1, h prtici- Inland Empim Tamsterr JUI) 1, and Booklcw Teamstcrr Fkgmm, Virfon Optiml Tmmster Providing 109% cowmge. Clouac 2qa) Rigas, Hooper, #582 Fenton sufficiently Rigas' E(bX3) 1977? 'i a c c o ~ n t . ~ S1,145,000.8 ap- & tnuts official, must O'Brien chainnan Upton Continued 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dustry would commence vision care benefits on July 1, 1977, (based on June hours), and soft drink bottling em- ployees would receive these benefits starting July 1, 1977, with the industry to have the option during early 1978 negotiations of whether to accept the plan. Over the Rrst half of 1977, the Trust's administrative agent maintained liaison with the broker-consultant de- signing this particular benefit, and devised an tional for employees, internal procedures, em- ployer remittance forms, plus a vision care claim proce- dure. In an operating sense this benefit was effective July 1, 1977, as participating employers contributed on the basis of worked by employees during June with amounts supplementing the original six-figure seed money. Necessary confirmation of these events occurred during formal trustee meetings held March 11, June 7, and July 1977, at which time an additional amount of was transferred from the unallocated reserves of the Trust to cover initial outlay for vision care claims in excess of available funding. As this was occurring, Respondent printed informa- tional sheets to members on the vision care plan,' and Warner made certain direct distributions of these as well as the comprehensive informational pamphlet and claim forms prepared by the Trust's administrative agent. During June, Warner went to both service buildings of The Crescent and handed material directly to employees, while at Genuine Parts he contacted Dennis the Spokane general manager, and advised him that vision care was being extended to all members. promptly transmitted this information to his Georgia-based superi- or for personnel matters. Still around late June 1977, Warner visited Columbia Lighting for the same purpose, but was parried by its plant manager, who preferred a home mailing to the small portion of Teamsters members employed there. Respecting these contacts. David warehouse manager for The Crescent, testified that Warner remarked to him while at service building 1 that "the Union was donating [vision care] at no cost to [its] members." In claimed support of such notion, the The sheets read as follows: N. 1912 Division Street Spokane, Washington 99207 Phone: 3269504 July 1977, premium payments for a Vision Cam gmm will be made on your behalf as a result of your being a pant in the Trust. All Employees, who worked eighty (80) hours or more during the month of June 1977, will be covered 1977. This Program pro- vides benefits for you your dependents. explaining the Inland Empire Trust Vision Care and claim forms, will be distributed and available at your place of employment and at the Union Office. You are free to choose any provider of services; however, we want to bring to your attention that the Arts Clinic in your new Building-Division and Indiana-will provide the services for the allowance as described in your booklet, thereby you with For Appointments call-327-7753. Fraternally, Donald L. Secretary-Treasurer General Counsel introduced as Exhibit the de- scribed writing of in which he relayed to Hart Genuine Parts' assistant vice president for per- sonnel, his impression from conversing with Warner that "Local is now providing [new vision care coverage for employees] at 'no charge' until the expiration of our current contract." I credit the persuasive denial of Warner that he expressed matters this way, and believe instead that, as he testified, only the Trust itself was identified as the source of this change. I am not satisfied that was insightful to pick up nuances in Warner's remarks, and as to other "local unit employ- ees" within earshot they were equally available to the General Counsel for corroboration and I decline to draw any inference unfavorable to Respondent because these persons were not called as witnesses to support Warner's refutation. In view of demonstrated uncertainty on basic conceptual matters as to employee fringe bene- fits, I give no weight to his recording of past recollec- tion. It is established that each Charging Party, two through the medium of written bargaining proposals of Respondent and Columbia Lighting as a verbal demand made on Frank Lydon, its industrial relations manager, had rejected vision care as an identifiable demand during negotiations that led to all current or recently expired agreements. Further, Respondent at no time offered to negotiate or bargain with any of these firms prior to adopting implementation of vision care benefits, instead enthusiastically disseminating it as a new feature of union membership even as the employers chorused their pro- test. This rounds out the essential facts from which the following issues arise: 1. Is the Trust an agent of Respondent relative to con- duct cognizable under Section of the Act? 2. Have the collective-bargaining agreements of any Charging Party been modified as a matter of law in on- sequence of vision care benefits being extended to t eir employees from and after July 1, 3. If modification arose, was it unilateral in nature leading to a violation of the Act that may be attributed to Respondent? Preliminarily before decisive discussion, some further description of the Trust is necessary. While several bene- fit plans are extant, overall excess revenue of the Trust is maintained in comingled fashion as an unallocated ("or uncommitted") reserve From a time prior to 1973 when the Trust operated with insurance carriers, and continuing beyond the conversion to self-insured status, it accumulated considerable unallocated reserves through the process of obligatory employer contributions exceeding claims experience. By December 1976 the amount of total reserves stood at Of this Rehn Associates serve as administrative agent to numerous other than the Inland Empire Teamsters Trust. This is significant in the sense that the chief administrative Archie Rehn. is involved with numerous trust entities, each of which (as contrasted to their own inter- nal affairs and accounting) be kept meticulously segregated within the workings of his own business office. testified without contradiction that at a Trustee meeting in October 1975 then raised the prospect of establishing $700,000 $400,000 O'Brien) sufficient carriers. $100,000 unallocated fums collective- 8(d) "sub- Trust further. >f w a g e r , >rice ' undersigned as c w Trust. effective unders~gned agreefs] Trustm successor Trustees selected consmt[s] acts definitiire Clouse's fnc., (1977), thereinS8 Inc., (1971), 8(b)(3) Trustm, Trustm, pursuant shall terminate and become Truatm har collective-hrgaining purpom also c w p r o c a Bmrhcrhood penren AFL-CIO. (Asscxiard Southern Calfornia). (1974). administration Jambs as expressed Carpenrers F.2d WAREHOUSEMEN'S UNION LOCAL 334 1099 proximate amount was unallocated, while stantial authority" on the Trust as to negate any unilater- was a committed reserve against incurred but al aspect to the action taken. unreported claims, and otherwise informally understood by the Trustees (or at least to constitute a fund to satisfy any respectable insurance company should the Trust again choose that form of coverage and shop for In this overall context, the General Counsel has pro- ceeded on the theory propounded in the underlying charges to the effect that diversion of over from reserves is tantamount to a cost item for contributing to the funds (which firms have not expressly agreed to the vision care benefits plan), thus constituting a mid-term modification of the bargaining agreements without, as is admittedly so, any manner of Section compliance. To the extent that Respondent obviously does not administer the plan, the General Counsel asserts further that the Trust here per- formed as its agent with the unwanted creation of em- ployee benefits attributable to Respondent as the alleged principal. The primary justification for this branch of case theory is the identity of persons simultaneously serving as responsible union functionaries and Section 302 plan trustees. The General Counsel argues that this is further colored by the obvious identity of interest in terms of predictable negotiation strategy whereby vision care benefits, once implemented, may be secured through collective bargaining with greater ease. This reasoning advances the common belief that employees, once accus- tomed to a benefit, would bristle at it being withdrawn, thus unfairly weakening the bargaining strength of em- ployers faced with such configuration. The Charging Parties emphasize that none of them endowed an agency relationship on the Trust, and that Respondent itself has been adequately affirmatively identified with the claimed unilateral change. Respondent argues that it is separate and independent of the Trust, while its functionaries serve in separable roles as union representatives and understandably ap- pointed Trustees for jointly administered plans. The Trust contends basically that a fiduciary duty mandated by the Employee Retirement Income Security Act of 1974 (ERISA) caused the Trustees to search for appro- priate disbursement of unreasonably excessive funds, which they chose to do in good faith through offering the vision care benefit plan, pointing out too that em- ployer execution of Trust acceptances7 conferred vision care benefits, but no action was taken at the time beyond directing the consultant to explore This relates also to the testimony James Argites, The Crescent's vice president and general operating that during contract negotiations in September 1975 Clouse alluded to vision care as a benefit not being sought. The following phraseology is typical of such acceptances: The undersigned acknowledges receipt of the attached Trust In- strument. The Employer or Union, the may be. by its execution of this instrument, consents to and accepts the terms. conditions, and provisions of the This acceptance shall be con- sidered and operative upon delivery to the Employer and Union Trustees and the written acceptance by such Trustees of this instrument. Accordingly, the that the named in the Trust and their elected pursuant to the provisions of said Trust and Alternate Trustees, if any, or elected pursuant to the provisions of said Trust are and shall be his or its representatives and to be bound by the of On the threshold issue of agency, the circumstances of this case are generally parallel to those in which the Board holds a Taft-Hartley trust to be the agent of a labor organization. Here the Trust was established and perpetuated pursuant to collective-bargaining agreements to which Respondent was a party with plenary authority to designate one-half of the board of trustees. At all ma- terial times the union Trustees were individuals fully aligned with Respondent's interests, and, although this expectable array does not automatically demonstrate control over the trust entity, such has been adequately shown here. Since the early 1976 declaration of amended trust, vision care has been an expressly contemplated fea- ture as shown from the preamble (p. 1) and statement of purpose (pp. 9 and 10). Coextensive with that, Clouse has been credibly shown to have voiced interest in the subject by remarks both internal and external to the Trust. It became a plain demand of Respondent later in 1976, but most importantly Clouse usurped the subject to himself in labor negotiations well preceding any action by the Trust's own governing body. confident establishment of a timetable for implementing the board of trustees' mere creation of the vision care plan is a telling indication that for purposes of enlarging on the labor contracts of members-employers of the As- sociation he was amply capable of dictating Trust affairs. Warner's role was consistent with this finding; however, his ministerial conduct in June 1977 shows only as collat- eral to what Clouse effectively settled the prior Febru- ary. See Jacobs Transfer, 227 NLRB 1231 and cases cited This concept of purpose is also treated in Nu-Car Carriers, 187 NLRB 850, 862, fn. 2 where certain pension plan filings, and the "ap- provals" that followed, were held to be "for purposes in- dependent of and unrelated to the National Labor Rela- tions Act," and where such filings were also held to create no "immunity . . . to utilize or participate in oper- atjons of the Fund so as to violate the Act." For these reasons, I find that, respecting the central allegation of conduct, the Trust and its board of trustees have at all material times concerning the establishment and im- plementation of vision care been the collective agent of Respondent. said successor and Alternate Trustees, to the provisions of said Trust. This acceptance inoperative as to any and all action taken by the thereafter from and after the date when he or it no agreement to which he or it is a party providing for payments into the Trust. The matter of what in the sense emphasized above, are attached to underlying dynamics is consistently tied to the collec- tive-bargaining by Board decisions. In United of Car- and Joiners of America. Local 11913. er ol. Conrracrors of America. 213 NLRB 363 the purpose related to the acceptance and of surrogate contri- butions to a fund, while in Transfer the control manifested itself unlawful discrimination against an employee. On this point, the Board has its respectful disagreement with the Ninth Circuit's partial en- forcement of Local 11913 at 531 424 (1976). Jacobs Transfer, supra at 1232. 1 100 111, 10- Starbuck Star- Starco w ~ r k i n g . ~ eff2tuat;n "subsidize[d]" Workers "require[ment]" (Lathing aL. Seanor C m l Company, F.Supp. (1966), F.2d 1967). (1968), rationale, Restaumnt Bartenders Werare Rhodes, P.2d 1. (1978), was case as phrarr- ology Sec. 302(c)(5)(B) hm exprruly comparable doea agrerment." Auoeiation Edwrd I. (Centml Contmctors Association. Inc.). (1978). Sec. 8(b)(3) T-6 International 01. Telegmph Inc.), Transfer demonstrate[dIw 302(c)(5) 8(d) 8(b)(3) Employers 91st 90-day 60-day DECISIONS OF NATIONAL LABOR RELATIONS BOARD On this basis, the offering of vision care becomes a reward of employment effectively assured to employees of these Charging Parties. Increased visual acuity and comfort without cost to an employee or eligible depend- ent is a valuable benefit to those clustered within one of the collective-bargaining units that is here involved. It is a desirable and identifiable feature that is devoid of via- bility but for the accumulations from these remitting em- ployers under other benefit plans applicable to their em- ployees. Alluding again to the Trust's formal statement of purpose (and application), I note that such "plan or plans" as are established will "embody benefits to be pro- vided by the Employer Contributions." (Art. p. emphasis supplied.) Cf. Charles and Diane buck d /b /a Farmers Market, 237 NLRB 373 (1978). Further, it appeared abruptly during mid-term of the contracts with every characteristic of being a term and condition of employment that employees would in- stantly assume to be a remunerative aspect of why they were Respondent was deeply involved in tout- ing vision care as an aspect of union membership, its spokesmen were familiar with projected cost, and the feature was a widely sought concession during relevant collective-bargaining sessions. I therefore find that the deliberate of vision care benefits constituted unlawful modification of the contracts to which these Charging Parties were bound. In so finding, I reject ar- guments by the Trust that an embarrassment of riches triggered some mandate of ERISA for new ways to be devised in expending apparent surplus, or that failure to do so improperly the Employers. The first argument is speculative at best, disregards the obvious al- ternative of mere prudent investment of large reserves until contract renewal negotiations, and, most important- ly, is outside decisional purview here in light of Sheet Metal International Association, supra. The second argument is contrived as a semantic extension of the first, and I note here that respecting The Crescent a July 1977 by the Trustees for an in- creased rate of contribution to fund the prescription drug plan was routinely, though with reservation of rights, obeyed. Cf. Lathers Local No. 42 of the Wood Wire and Metal Lathers International Union Contmctors The notion of reliance by a hypothetical employee of average aware- ness is found in Lewis et Trustees v. 256 456 affirmed 382 437 (3d Cir. cert. denied 390 U.S. 947 where the court of appeals wrote, at 443. that employees "might be led to remain at their jobs in reliance on the [promised] bene- fits." This recently cited approvingly in Employees and Hotel Employees Fund, et al. v. 580 61 99 LRRM 2868 rendered in a nullifying an oral modification ineffective in the face of the "written agreement" of of the Act. The Board declined to make a interpretation, holding instead that it not pos- s e s jurisdiction to determine the "structural validity" of a "complex trust Sheet Metal Workers' International and Carlough. President Florida Sheet Metal 234 NLRB 1238 In contrast. where pure unilateral action allegedly violative of is involved, the Board shows itself will- ing to examine the "nature and impact of the parties' understanding" rather than the "precise wording of the contract itself." System Council Brotherhood of Electrical Workers AFL-CIO, CLC, et (New England Telephone and Company), 236 NLRB 1209 (1978). Association of Southern California, 223 NLRB 37 (1976). The final question is whether the resultant contract modification was unilateral by Respondent. This must be treated because Jacobs speaks of agency status running to both labor-management parties, and because these Charging Parties have executed acceptances with respect to each Trust plan in which consent to the acts of the Trustees is expressed. The Jacob Transfer branch of this issue is disposed of because, contrary to the fact situation there, these Employers have absolutely no role in the election of Trustees. As to the acceptances, they are strictly a traditional affirmation of settlor satisfaction with a trust arrangement. This is the further teaching of Sheet Metal Workers' International Association, supra at 24-33, and the "convincingly point that "a trust fund established pursuant to Section is merely a product of the collective-bargaining process and not an extension thereof." Accordingly, I render a conclusion of law that Re- spondent and its collective agents, by implementing vision care benefits for employees of the Charging Par- ties herein without complying with the notice require- ments of Section of the Act, have engaged, and are engaging, in unfair labor practices within the meaning of Section of the Act. The unique configuration of facts and the passage of time since July 1, 1977, requires a carefully fashioned remedy best suited to the Board's objective of restoring the status quo following a violation, yet avoiding undue hardship to innocent employees. The availability of eye examinations, lenses, and eyeglass frames for employees and their eligible dependents has now spanned 1-1/2 years. While I am not informed of the circumstances at The Crescent, the other two contracts have yet many months to run, and Respondent has seemingly gained in- sidious bargaining leverage by its unlawful conduct. I shall therefore establish a reasonably early time at which vision care benefits are to cease for employees of these Charging Parties (unless in conflict with newly negotiat- ed provisions by The Crescent, which in such instance, to the extent inconsistent, shall supercede the recom- mended Order and notice herein), and shall compose a "Notice To Members" that emphatically exonerates the affected from what is being withdrawn, while plainly stating that it may not necessarily apply again. In this sense, therefore, vision care benefits are to cease on the day following compliance with this Decision. Such date is to be computed from the commencement of the last notice posting at any place where notices to the members and employees of any Charging Party are cus- tomarily posted. I choose a full period to allow effective dissemination of this change to and among em- ployees during a customary notice posting period, plus an additional 30 days to cover delays in personal availability, arrangements for examination, and choice of eyeglasses. [Recommended Order omitted from publication.]