Beitler-Mckee Optical Co., Inc.

National Labor Relations Board - Board DecisionsFeb 29, 1988

287 N.L.R.B. 1311 (N.L.R.B. 1988)

BEITLER-MCKEE OPTICAL CO 1311 Beitler -McKee Optical Co., Inc. and Pittsburgh Op- tical Workers Local 18820 a/w Retail , Whole- sale and Department Store Union , AFL-CIO- CLC. Cases 6-CA-16769 and 6-CA-17009 29 February 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On 16 October 1984 Administrative Law Judge Thomas A Ricci issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions only to the extent consistent with this Decision and Order For many years the Union, Pittsburgh Optical Workers Local 18820, has been the certified collec- tive-bargaining representative of a unit of laborato- ry technicians at the Respondent's eyeglass manu- facturing facility in Sharon, Pennsylvania. At the time of the events in question there were only three employees in the unit. The latest signed col- lective-bargaining agreement between the parties expired in February 1983, at which time the parties were still negotiating a new agreement. In Septem- ber 1983 the parties apparently thought they had reached an agreement and the Respondent drafted a contract reflecting its understanding of the agree- ment. The Union refused to sign this contract, however, because it did not conform to the agree- ment that the Union believed the parties had reached. Although the Union and the General Counsel contended that the Respondent violated Section 8(a)(5) and (1) by refusing to execute and sign an agreed-upon contract, the judge found that the contract drafted by the Respondent conformed with the agreement reached by the parties during negotiations and he therefore dismissed the allega- i The General Counsel has excepted to some of the fudge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings In adopting the judge's findings based on his dis- crediting of Union Business Agent Daniel Coffman, however, we do not rely on the judge's speculations that the Union must have been notified of the decertification petition on the same day it was filed in the Board's Regional office and that Coffman would have brought the collective-bar- gaining agreement to the Regional Office's attention immediately if it had contained terms with which he agreed tion.2 We adopt the judge's dismissal of the allega- tion. On 28 September 1983 one of the three unit em- ployees filed a petition to decertify the Union. Pre- viously, beginning in July 1983, the Respondent had ceased making pension fund payments called for by the expired contract. In November 1983 the Respondent brought its pension payments up to date, but it has made no further payments since then. Also in July or August 1983, the Respondent unilaterally changed the group health insurance coverage for its employees as prescribed in the ex- pired contract, by switching the employees from a policy providing family coverage to one providing only individual coverage.3 In June 1984 the Re- spondent refused to process a grievance alleging that in May 1984 it had reduced employee hours in violation of the expired agreement. After denying the grievance at the second step of the contractual grievance procedure, the Respondent refused to proceed to the third step, a presentation to the manager. The Respondent's president told the Union's representative that he would not talk to him about the grievance because it was the Re- spondent's position that the parties did not have a contract. The changes concerning pension payments, in- surance, and the refusal to process the grievance are all alleged as refusals to bargain in violation of Section 8(a)(5) and (1). The judge found that the Respondent was relieved of any bargaining obliga- tion with respect to the pension payments and the grievance because the old contract had expired and because of the pendency of a valid decertification petition. He found no violation in the change of in- surance policies because all three employees, being "single" at the time of the change, could not have been affected by the change to individual coverage. We cannot accept these findings. An employer's obligation to comply with and give effect to the terms and conditions of employ- ment embodied in a collective-bargaining agree- ment continues, after the agreement expires, until the employer has fulfilled or been relieved of its duty to bargain about changing such terms and conditions. Crest Floors & Plastics, 274 NLRB 1230 at fn. 2 (1985), enfd. mem. 785 F 2d 314 (9th Cir. 1986). No contention has been made that the par- ties bargained to impasse (and that the changes were consistent with any bargaining proposal pre- viously advanced by the Respondent) or that the 2 The Union was not charged with refusing to execute a contract em- bodying the terms to which the Respondent contended, and the judge found, the parties had agreed 3 The employees could continue family coverage only by paying for it themselves 287 NLRB No. 142 1312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union waived its right to bargain with the Re- spondent on these matters. Nor did the filing of the decertification petition relieve the Respondent of its duty to bargain, absent evidence that the peti- tion was supported by a majority of the unit em- ployees. Dresser Industries, 264 NLRB 1088 (1982). Moreover, at no time during the events under dis- cussion did the Respondent advance a belief that the Union had lost its majority status, as a basis for its refusal to bargain. See Hilton Inn North, 279 NLRB 45 fn. 1 (1986), enfd. 817 F.2d 391 (6th Cir. 1987). Payment to a contractual pension fund is the type of term or condition of employment that sur- vives the expiration of a contract, and the Re- spondent therefore violated Section 8(a)(5) and (1) by unilaterally discontinuing such payments in the instant case. Buck Brown Contracting Co., 272 NLRB 951, 953 (1984). We recently held that a contractually established grievance resolution system also survives the contract's expiration and may be changed only by mutual agreement or ade- quate bargaining. Indiana & Michigan Electric Co., 284 NLRB 53, 54 (1987). We find that the Re- spondent's refusal to process a grievance constitut- ed a unilateral abandonment of the contractual grievance procedure in violation of Section 8(a)(5) and (1) under the rationale of Indiana & Michigan.4 See also Litton Business Systems, 286 NLRB 817,818 (1987). We also find that the Respondent violated Sec- tion 8(a)(5) and (1) by its unilateral change in em- ployee group health insurance policies, a benefit clearly constituting a term and condition of em- ployment whether established pursuant to a collec- tive-bargaining agreement or not. See, e.g., Geriat- rics, Inc., 242 NLRB 795, 798 (1979). The judge's observation that the employees were unaffected by a change to individual coverage because they were single misses the mark. A benefit previously avail- able to the employees at no cost to them was taken away without bargaining. Had they come to need the family coverage they either would have to pay for it while attempting to have the benefit restored, or gone without it. One can hardly doubt that the employees are worse off in this respect than they were before. That is a change of substance, and its unilateral effectuation constituted an unlawful re- fusal to bargain.5 4 Neither the question of the Respondent's obligation to arbitrate the grievance nor the question of whether the conduct complained of in the grievance constituted an unlawful unilateral change in terms or condi- tions of employment is before us 5 In rejecting the judge's reasoning that the charges were not detri- mental to the employees, we do not imply that the Respondent's unilater- al changes violated the Act only because they were detrimental to the unit employees Rather, the Respondent violated the Act in effecting uni- lateral changes without bargaining with the Union Finally, the General Counsel excepts to the judge's failure to address and find an independent violation of Section 8(a)(l) alleged in the com- plaint. According to the uncontradicted testimony of employee Muriel Russell, she telephoned Daniel Driscoll, the Respondent's president, about 29 De- cember 1983 concerning whether the employees who were union members would be off on the Friday before or the Monday after an upcoming holiday, presumably New Year's Day. Russell had the impression that the nonunion workers were to be off on Monday, but that the (expired) contract provided that unit employees would be off on Friday instead. Driscoll said they would have to go by the contract.6 He added that he wished Rus- sell would "drop it," by which he explained that he meant the Union. He further told Russell that "this was all [her] fault; that if we didn't have this [con- tract . . . the employees] could be off whatever day they wanted to." Driscoll also told Russell that he would like to speak to her off the record, but he would not because Russell would go to the NLRB. Driscoll did not deny the accuracy of this testi- mony by Russell. In fact, although Driscoll testi- fied at length, he was not asked anything about it. In its brief to the judge, the Respondent argued that the statements attributed to Driscoll did not constitute a violation of Section 8(a)(1). It did not raise an issue concerning the credibility of Russell's testimony on this allegation. The judge made no mention of the allegation or the evidence and, of course, made no findings on the subject. In response to the General Counsel's exception the Respondent now argues, along with its argu- ment on the merits, that the Board may not find a violation without remanding this issue to the judge for a credibility finding. We reject this belated ar- gument. The Respondent's position up to now, evi- denced by its failure either to have its president deny Russell's testimony or to attack its credibility before the judge, was that there was no dispute as to its credibility. In these circumstances, we do not invade the judge's province by accepting Russell's testimony, which is internally consistent and not in- herently improbable. Cf. El Rancho Market, 235 NLRB 468, 470 (1978), enfd. 603 F.2d 223 (9th Cir. 1979) (listing factors other than demeanor used in resolving conflicts in testimony). The statements thus credibly attributed to Dris- coll constituted an unlawful inducement to employ- ee Russell to abandon the Union and forgo her right to file charges with the Board. In telling her 6 Curiously , both appear to have been mistaken about the contract pro- vision, which gives unit employees a paid day off on the next working day after a covered holiday that falls on a weekend BEITLER-MCKEE OPTICAL CO. that he would "go by the contract," Driscoll was not in this instance honoring his obligation to bar- gain with the Union, an obligation he had freely breached in other respects. Rather, his message was that the employees would benefit if they aban- doned the Union because he would then let them select their holiday schedule. See Daisy's Originals, 187 NLRB 251, 254-256 (1970), enfd. in pertinent part 468 F.2d 493 (5th Cir. 1972); Foodway, 234 NLRB 72, 79 (1978). He further implied that he would take Russell into his confidence, an action which might be in her interest, but for his suspicion that she would file a charge. These inducements, all tantamount to promises of benefit, at least when viewed together, constitute interference with Sec- tion 7 rights in violation of Section 8(a)(1).7 CONCLUSIONS OF LAW 1. At all times material to this proceeding, Pitts- burgh Optical Workers Local 18820 a/w Retail, Wholesale and Department Store Union, AFL- CIO-CLC has been the exclusive collective-bar- gaining representative of the employees in the fol- lowing appropriate unit: All laboratory technicians employed by the Beitler-McKee Optical Co., Inc. at its Sharon, Pennsylvania, facility, excluding stockroom employees, office clerical employees, wash-up help, salesmen, messengers, and guards, profes- sional employees and supervisors as defined in the Act. 2. By unilaterally changing certain terms and conditions of employment, specifically by ceasing its payments to a pension fund, by changing its em- ployees' insurance benefits, and by unilaterally abandoning the established grievance procedure, the Respondent, Beitler-McKee Optical Co., Inc. has committed unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 3. By promising employees benefits if they would abandon the Union or refrain from filing charges with the Board, the Respondent has com- mitted unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The unfair labor practices found above affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative ' Member Johansen would not find that Driscoll's comment to Russell, that he would like to speak with her off the record, but was afraid if he did that she would go to the Board, was an 8(a)(1) violation 1313 action designed to effectuate the policies of the Act. ORDER The National Labor Relations Board orders that the Respondent, Beitler-McKee Optical Co., Inc., Sharon, Pennsylvania, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively within the meaning of the Act with Pittsburgh Optical Work- ers Local 18820 a/w Retail, Wholesale and Depart- ment Store Union, AFL-CIO-CLC, as the exclu- sive bargaining representative of its employees in the appropriate unit, by unilaterally discontinuing payments to the Union's pension fund on behalf of its unit employees. (b) Refusing to bargain collectively within the meaning of the Act with Pittsburgh Optical Work- ers Local 18820 a/w Retail, Wholesale and Depart- ment Store Union, AFL-CIO-CLC, as the exclu- sive bargaining representative of its employees in the appropriate unit, by unilaterally changing its employees' group health insurance coverage. (c) Refusing to bargain collectively within the meaning of the Act with Pittsburgh Optical Work- ers Local 18820 a/w Retail, Wholesale and Depart- ment Store Union, AFL-CIO-CLC, as the exclu- sive bargaining representative of its employees in the appropriate unit, by unilaterally abandoning the grievance procedure that had been established by the 1980-1983 Sharon, Pennsylvania, collective- bargaining agreement after that agreement expired. (d) Promising its employees benefits if they aban- doned the Union or refrained from filing charges with the Board. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Resume contributions to the Union's pension fund on behalf of the employees in the appropriate unit and remit to that fund whatever contributions the Respondent may have failed to transmit since November 1983, when such contributions were uni- laterally discontinued, together with interest to be computed in the manner prescribed in Merry- weather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). (b) Restore the group health insurance coverage provided to unit employees before it was unilateral- ly changed, and make the employees whole for any losses which they may have suffered, and for any 1314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD direct expenses which they may have been re- quired to bear as a result of the unilateral change. (c) On the Union's request, process the grievance at issue in this proceeding through "Step 3" as de- fined in the 1980-1983 collective-bargaining agree- ment. (d) Post at its facilities in Sharon, Pennsylvania, copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Re- gional Director for Region 6, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. fi If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Unilaterally discontinuing payments to the Union's pension fund on behalf of the unit em- ployees; Unilaterally changing the employees' group health insurance coverage; Unilaterally abandoning the grievance proce- dure in the 1980-1983 collective-bargaining agreement after that agreement expired. WE WILL NOT promise employees benefits if they abandon the Union or refrain from filing charges with the National Labor Relations Board. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL resume contribution to the pension fund and transmit to the fund all contributions we have withheld since November 1983, with interest. WE WILL restore the group health insurance coverage provided to unit employees before it was unilaterally changed, and make the employees whole for any losses which they may have suf- fered, and for any direct expenses which they may have been required to bear as a result of the unilat- eral change. WE WILL, on the Union's request, process the grievance of Muriel Russell through "Step 3" as defined in the 1980-1983 collective-bargaining agreement. BEITLER-MCKEE OPTICAL CO., INC. The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join , or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to bargain with Pittsburgh Optical Workers Local 18820 a/w Retail, Whole- sale and Department Store Union , AFL-CIO- CLC, as the exclusive representative of the em- ployees in the appropriate unit by doing any of the following: Leone P. Paradise, Esq., for the General Counsel. John S. Brendel, Esq., of Pittsburgh , Pennsylvania, for the Respondent. Daniel Coffman, Staff Rep., of Pittsburgh , Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge. A hear- ing in this proceeding was held at Pittsburgh, Pennsylva- nia, on July 16, 1984 , on complaint of the General Coun- sel against Beitler-McKee Optical Co ., Inc. (the Re- spondent or the Company). The complaint issued on February 17, 1984, on charges filed on September 29, 1983, and on January 3, 1984, by Pittsburgh Optical Workers Local 18820 a/w Retail , Wholesale and Depart- ment Store Union, AFL-CIO-CIO (the Union or the Charging Party). The principal issue presented is wheth- er the Respondent refused to sign and execute a regular- ly negotiated collective-bargaining agreement with the Union and thereby violated Section 8(a)(5) of the Act Briefs were filed after the close of the hearing by the General Counsel and the Respondent. BEITLER-MCKEE OPTICAL CO On the entire record, and from my observation of the witnesses , I make the following' FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY This Company, a Pennsylvania corporation , is engaged in the manufacture and nonretail sale of eyeglasses, oper- ating in a number of locations including Sharon , Pennsyl- vania. During the 12-month period ending August 31, 1983, it purchased and received at the Sharon facility products , goods, and materials valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania . During the same period in the course of its operations it shipped from this one location products, goods, and materials valued in excess of $50,000 directly to out -of-state locations I find that the Respondent is an employer within the meaning of the Act. Ii. THE LABOR ORGANIZATION I find that Pittsburgh Optical Workers Local 18820, a/w Retail , Wholesale and Department Store Union, AFL-CIO-CLC is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Case in Brief This Company operates in a number of cities , but this case is concerned only with the three employees who to- gether constitute the entire bargaining unt that the Union, Local 18820, represented at this Company's loca- tion in Sharon , Pennsylvania . It had been their bargain- ing agent since 1973, and the last contract covering these three employees was in effect from 1980 to February 4, 1983. Throughout that period there were no other em- ployees working for the Company within the coverage of the contract. With the agreement about to expire the parties met for the purpose of negotiating renewal . They held four bar- gaining sessions , on January 9, 11, 26, and 27. Many written proposals and counterproposals were exchanged, in writing , there was much talking and give and take. Unable to reach agreement the parties called in a Federal mediator , and on February 2 and 10 two more bargain- ing sessions took place with his assistance , always with no results. This local union also represented the Respondent's em- ployees at another of its locations in Pittsburgh , Pennsyl- vania, where a contract had also expired and where ne- gotiations , it would appear , were also in progress at the time of the events. As Muriel Russell , one of the three employees involved here and one of the two witnesses who testified in support of the complaint , said . "Febru- ary 10th was the breaking off of the negotiations because Mr. Coffman couldn't negotiate both meetings at the same time." At that point negotiations were just broken off and nothing else happened until 7 months later, as will be explained below. i A posthearing motion filed by the General Counsel to correct a few inadvertent errors in the transcript of testimony, unopposed , is granted 1315 Meanwhile , the bargaining that took place at Pitts- burgh was also unproductive and on June 1 the Union called those employees out on strike The strike contin- ued until sometime in July, by which time the strikers, union members all, had been replaced by the Company. The picketing there apparently ceased and the Union just walked away from the place and gave up all claim to representation Sometime in August, Daniel Coffman, the Union's business agent who had participated with Russell in the January and February meetings , called the owner of the Company, Daniel Driscoll , and asked to meet again. They did meet and talked, twice, Coffman again accom- panied by employee Russell On September 28 a decerti- fication petition was filed with the Board to remove the Union from the picture . Surely it was filed by at least one of the two other employees in the bargaining unit In the talking that went on between Driscoll, Coffman, and Russell during those two September meetings, there was discussion of the items in dispute , of which there were many, for all the meetings of 7 months earlier had not accomplished anything of substance . At the last meeting, on September 21, the union agent unexpectedly reversed his position and said flatly he would yield to all Driscoll 's demands and sign the contract just as the Em- ployer wished . The reason for this sudden change of mind , as both Coffman and Russell testified, was Rus- sell's personal concern about her pension rights, which she feared might be cut off if there were no contract. Driscoll was satisfied with this and agreed to have the final agreement written up and sent to the Union 's office for signature. It is at this point in the story that the record reveals a conflict in testimony on which virtually the entire case must turn . Indeed , in his brief the General Counsel calls it "the heart of this case." The two Government witnesses said that , when agree- ing to all that Driscoll had been demanding, they asked him to exempt the three employees covered by the con- tract from application of a stringent condition of employ- ment that had been an issue in dispute from the start and, according to their story , Driscoll agreed to do that It was a new contract provision called SOP, short form for Specialty Occupation Program . For the moment, it is enough to say that the SOP proposal was read by the union people as meaning a very possible cut in pay and even layoff, loss of seniority in some situations that could endanger the jobs of the three employees involved Dris- coll testified the other way. According to him , Coffman and Russell said no more than that they would agree to all his demands and sign the contract exactly as he had been asking. Driscoll insisted there was no agreement to exclude all the employees covered by the contract from that critical provision . Driscoll had the contract typed up and sent it to the Union's office; it did not provide that the critical SOP provision should not apply to any of the three employees covered by the contract! The Union refused to sign it for that reason and the com- plaint alleges that because Driscoll did- agree to that ex- emption, and then reversed his position , the Respondent 1316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD violated Section 8(a)(5) of the Act by refusing to sign an agreed-on contract The complaint also alleges several other violations of Section 8(a)(5) of the Act They will be considered below. B. Evidence; Analysis In light of all the facts relevant to the main issue of this case, I credit Driscoll's denial that on September 21 he agreed to exclude all the employees covered by the contract from one of its most disputed provisions The union agent, Coffman, admitted he did agree to inclusion of the so-called SOP provision in the final agreement He did testify, as did he cowitness Russell, that in his opin- ion the SOP arrangement demanded by the Company was most undesirable to the union-member employees. It is impossible on this record to ascertain precisely how that SOP program was intended to work. One wit- ness spoke about it as a reduction-in-pay proposal-less pay for less skilled work. Another called it a seniority clause-meaning that when a particular job was finished, the employee doing that one could be sent home al- though he or she had been with the Company for years. Whatever the Company was proposing, it was not writ- ten clearly and precisely. But the question of just what it meant, or how it would one day be applied, is not impor- tant here. All that matters is that, as the conflicting wit- nesses agreed, the Company very much wanted the SOP in the contract, and the Union very much wanted it out. To say, as the General Counsel contends, that the Re- spondent insisted for 9 months on a particular contract clause directly involving a very important condition of employment, and then agreed that, although put in the contract, that clause was never to apply to any of the employees in the bargaining unit which is the very basis of the entire contract, simply does not make sense and I cannot so hold. If Driscoll had agreed to exempt all three of the employees involved, why would he put the SOP clause in the contract at all? Coffman argued at the hearing that he understood the Company would be free to use that program for any employee it might hire in the future. But the bargaining opened, 9 months earlier, with the Company presenting to the Union documentary evidence of its bad financial condition. The last thing the parties could have envisioned was more hiring of em- ployees. For a contrary finding now, the General Counsel, in brief, relies entirely and repeatedly on Driscoll's appar- ent poor credibility at the hearing. And it is true that as a witness Driscoll badly evaded direct question, argued back and forth, and made a very poor impression by his demeanor generally But none of this can affect the rea- soning dictated by logic here. Driscoll had gotten the better of Coffman just 2 months earlier, in Pittsburgh, when Local 18820 lost completely and disappeared Why should the owner yield, in the total applicability of one of his major demands, at the last minute to the Union in Sharon? Especially is that question very pertinent with the Union having been completely away from this loca- tion for over 7 months It was Coffman who called Dris- coll in August and asked to meet, not the other way round And both Coffman and Russell, the only one of the three workers really involved in this proceeding, said clearly their main concern that last day they met with Driscoll was protection of Russell's yet-unvested pension rights. And finally, during all the previous bargaining ses- sions, when proposals were exchanged the tentative deci- sions on this or that proposal were noted in writing on the margin of the written proposals. There is nothing in writing to indicate this particular concession by the Company on September 21, the critical one in this whole case. I find that the contract the Respondent had written up after the September 21 meeting with the Union, and sent to Coffman, conforms with the agreement that the par- ties reached when they last met It is not true the Re- spondent, as alleged in the complaint, refused to sign an agreed-on collective-bargaining contract. It was the Union, which, on reflection much later, changed its mind and dreamed up what became the basis of its charge here. There are other related facts to be kept in mind. Coff- man, too, left much to be desired as a witness. He equivocated at times ; he avoided direct answer, he made some very implausible statements He said he received the written contract as prepared by the Respondent on November 23 but did not read it, or even look at it, until sometime in December. With a decertification petition in his hands-it had been filed with the Board's Regional Office on September 281-would not a union agent bring a signed collective-bargaining agreement to the Board's office right away if he really had a contract he cared to sign? If Coffman did not even bother looking at the agreement Driscoll had sent him, it can only mean he knew what it said and did not really like it. Coffman also said that on September 21, when he last met with Dris- coll, he had no knowledge of any decertification petition being considered by the other two employees-that is, aside from Russell. He may have been telling the truth about that, but I very much doubt his further statement that he first learned on October 5 of the petition that was filed on September 28. I know the first thing that hap- pens in a Board Regional Office when a decertification petition is filed is to notify the union involved, on the very same day it is filed. Coffman, too, was not a very credible witness. C. Further Allegations of Violations of Section 8(a)(5) With the bargaining sessions that took place in January and February proving futile, and with the resultant un- certainty as to what would happen thereafter, the Re- spondent stopped paying into the Union's pension fund in June, 4 months after the old contract had expired. When the Union learned of this-sometime later in July, the Company did pay all the money due through the month of November The Company has made no pay- ments into those funds since then The complaint alleges such unilateral action by the Respondent violated Sec- tion 8(a)(5) of the Act The filing of the decertification petition on September 28 raised a very definite question of representation, a positive doubt whether Local 18820 was still the bargain- BEITLER -MCKEE OPTICAL CO mg agent of these three employees. When the Union as- serted, to the Regional Director, that it had made a final, binding contract with the Company, the Board's office put the election petition aside and proceeded on the basis of Section 8(a)(5) against the Company instead. As it de- veloped, there was no contract signed between the par- ties. I think it is the Union that reneged on its agreement of September 21. But even if it be assumed that the Union had misunderstood exactly what had been agreed with Driscoll at that time, it would still be fact there was no contract in effect. With this, it means the decertifica- tion petition was perfectly proper, and raised the regular question concerning representation. What this also means is that the Company was not under any obligation to bargain with the Union. Indeed, had it done so, it would have been acting in complete disregard of the pending election petition. I shall therefore recommend dismissal of this element of the complaint also A final allegation in the original complaint is that in July or August 1983 the Respondent deprived these three employees of a health insurance benefit previously enjoyed without first discussing the change with their bargaining agent, and thereby also violated Section 8(a)(5). The fact is they did not lose any benefits they had ever had It will be recalled that this Company oper- ates in a number of cities It therefore had a health insur- ance policy covering all its employees, referred to at the hearing as a Blue Cross-Blue Shield policy. In July the Company switched its insurance policy to another insur- ance company. Under the first policy the employees, without contributing to the cost of the insurance policy, could have medical bills paid for members of their fami- lies as well as themselves. Under the new policy, while the employees were still themselves covered if they took 1317 sick, without payment, they had to pay a certain amount if they chose to have family members also covered by the insurance policy. All three employees involved in this unit are single , never had, and still do not have, any family members who could possibly be covered by the old or the new insurance coverage This means that the change made by the Respondent in 1983 did not and could not have affected them at all Unfair labor practices involve matters of substance, not a play on words. The truth is that the employees in- volved in this case were no way affected by the action taken by the Company then. I therefore find no merit in this particular allegation of the complaint. After all this happened, the complaint was amended in June 1984 to add a further allegation of violation of Sec- tion 8(a)(5) It says that in May 1984 the Respondent re- fused to process a grievance, through the Union, based on a reduction in hours that violated "the terms of the collective bargaining agreement ." It is a fact Respondent did refuse to process that grievance, or to deal with the Union on behalf of the employee, Russell, who had filed the grievance This allegation, too, fails for the same reason as does the basic allegation that the Respondent refused to sign an agreement in 1983 The fact is there never was a contract in effect between the parties after the spring of 1983. Whatever the Company did in 1984 therefore was not in conflict with any "collectve bar- gaining agreement." It had no obligation to recognize the Union at that time. Rather, it had a right to wait the result of the decertification petition still then pending. Accordingly, I shall recommend dismissal of the com- plaint in its entirety. [Recommended Order for dismissal omitted from pub- lication ]