Parkview Furniture Manufacturing Co. And Park-View Occasional Seating

National Labor Relations Board - Board Decisions

Jul 13, 1987

284 N.L.R.B. 947 (N.L.R.B. 1987)

PARKVIEW FURNITURE MFG. CO . 947
Parkview Furniture Manufacturing Co. and Park-
view Occasional Seating and Upholsterer's
International Union of North America, Local 15
Joint Board, AFL-CIO and UIU Health and
Welfare Fund; UIU Pension Trust, Express
Trust. Cases 21-CA-22499, 21-CA-22889, 21-
CA-23074, and 21-CA-23075
13 July 1987
DECISION AND ORDER
BY MEMBERS BABSON, STEPHENS, AND
CRACRAFT
On 23 April 1986 Administrative Law Judge
Jesse Kleiman issued the attached decision. The
Respondent filed exceptions and a supporting 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 brief and has
decided to affirm the judge's rulings, findings, 1 and
conclusions as modifieds and to adopt the recom-
mended Orders as modified.
The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings.
We also find no merit to the Respondent's allegations of bias and preju-
dice on the part of the judge On our full consideration of the record and
this decision, we find no evidence that the judge prejudged the case,
made prejudicial rulings, or demonstrated a bias against the Respondent
in his analysis or findings, including his credibility resolutions.
Finally, we note that in par. six in the portion of the judge's decision
entitled, "3 The Withdrawal of Recognition," the judge referred to "4
April 1983" as the date of the meeting between the union representatives
and the Respondent's cutting and sewing employees. The correct date of
this meeting, as stated elsewhere in the judge's decision, is 4 August 1983
2 We find it unnecessary to rely on the judge's drawing an adverse in-
ference from the Respondent's failure to call the employee named
"Frank" to testify about the alleged August decertification petition, but
we do rely on his drawing suCh an inference from the Respondent's fail-
ure to call supervisor Mope concerning the petition.
We adopt the judge's findings that the Respondent violated Sec 8(a)(1)
and (5) by denying the union representatives access to its facilities The
record evidence shows that the Union's right of access to the Respond-
ent's facility has been contractually prescribed and, further, has been es-
tablished by the Respondent' S past practice See Tom's Ford Inc. 253
NLRB 888, 893, (1980); R. C Cobb, Inc., 231 NLRB 99, 104 (1977)
3 The judge ordered that backpay due employees as a result of the Re-
spondent's refusal to execute the collective-bargaining contract be deter-
mined in accordance with the formula set forth in E W. Woolworth Ca,
90 NLRB 289 (1950) The correct method for computing backpay in this
case as that stated in Ogle Protection Service, 183 NLRB 682 (1970), with
interest to be computed in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987) In accordance with our decision in
New Horizons for the Retarded, interest will be computed at the "short-
term Federal rate" for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.0 § 6621
284 NLRB No. 105'
AMENDED CONCLUSIONS OF LAW4
1. Substitute the following for Conclusion of
Law 9, delete Conclusion of Law 10, and renum-
ber the remaining paragraphs.
"9. By unilaterally and without notice to or bar-
gaining with the Union ceasing to make health and
welfare and pension contributions as provided in
the contract and replacing the contractually pre-
scribed insurance plans with its own plan, the Re-
spondent has engaged in and is engaging in unfair
labor practices within the meaning of Sections
8(a)(5) and (1) and 8(d) of the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Parkview Furniture Manufacturing Co.
and Parkview Occasional Seating, Compton, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1(g),
delete paragraph 1(h), and reletter the remaining
paragraphs.
"(g) Failing and refusing to make contributions
to the Union's fringe benefit funds, as provided for
in the collective-bargaining agreement, and replac-
ing the contractually prescribed insurance plans
with its own plan."
2. Substitute the attached notice for that of the
administrative law judge.
4 The Conclusions of Law have been amended to more closely con-
form with the complaint allegations and with the express findings set
forth in the text of the judge's decision. We shall modify the judge's rec-
ommended Order and provide a new notice to reflect these changes.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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.
WE WILL NOT refuse to bargain with the Union
by refusing to execute a collective-bargaining con-
tract negotiated and agreed on with the Union and
to give effect to its provisions.
WE WILL NOT withdraw recognition of the
Union as the exclusive bargaining representative of
the unit employees or inform unit employees that
they no longer are represented by the Union.
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT refuse to bargain collectively with
the Union concerning rates of pay, wages, hours,
and other terms and conditions of employment as
the exclusive bargaining representative of our em-
ployees in an appropriate unit.
WE WILL NOT deduct in a lump-sum manner any
assessment contrary to the Union's instructions and
make any remarks denigrating the Union in order
to encourage employee disassociation with the
Union as their exclusive bargaining representative.
WE WILL NOT unilaterally implement changes in
terms and conditions of employment without notice
to the Union or affording the Union the opportuni-
ty to bargain thereon.
WE WILL NOT fail and refuse to make contribu-
tions to the Union's fringe benefits funds as provid-
ed for in the collective-bargaining agreement and
WE WILL NOT replace the contractually prescribed
insurance plans with our own plan.
WE WILL NOT fail and refuse to withhold union
dues from unit employees and to remit the dues
and any union dues already withheld to the Union.
WE WILL NOT deny the Union's representatives
access to our facility.
WE WILL NOT unilaterally and without notice or
bargaining with the Union grant and distribute
Christmas bonuses to our employees.
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, on request of the Union, execute and
give retroactive effect to the collective-bargaining
contract on which agreement was reached on 31
March 1983 or, if the Union does not request such
execution, WE WILL bargain collectively in good
faith, on request, with the Union, as the exclusive
collective-bargaining representative of our employ-
ees in the unit found appropriate, with respect to
rates, wages, hours, and other terms and conditions
of employment, and embody in an agreement any
understanding reached. The bargaining unit is:
All production employees in the upholstery
and allied departments, excluding woodwork-
ers, teamsters, full-time inspectors, office em-
ployees and foremen not working more than
sixty-five percent of their time on production
during any given week, guards and supervisors
as defined in the Act.
WE WILL make whole, with interest, our em-
ployees in the bargaining unit described above for
any loss of wages and other benefits they may have
suffered by reason of our failure to sign, effectuate,
and adhere to all terms of the above agreement.
WE WILL make whole our employees by trans-
mitting our contributions to the union health and
welfare and pension insurance funds, as required by
the collective-bargaining agreement, and by reim-
bursing our employees for any expenses ensuing
from our failure to make such contributions.
WE WILL make whole the Union for any loss
suffered as a result of our failure to withhold union
dues from unit employees and remit them to the
Union.
WE WILL, on request, bargain with the Union re-
garding the terms and conditions of Christmas bo-
nuses for unit employees.
PARK VIEW FURNITURE MANUFAC-
TURING CO. AND PARK VIEW OCCA-
SIONAL SEATING
Ira Sandron, Esq., for the General Counsel.
Michael K. Schmier, Esq. (Schmier & Schtnier, Esqs.) of
Los Angeles, California, for the Respondent.
Jeffrey L. Cutler, Esq. (Davis, Frommer & Jesinger, Esqs.),
of Los Angeles, California, for the Charging Party
Union.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. On the
basis of charges and amended charges filed in Cases 21-
CA-22499 and 21-CA-22889 from August 1983 through
February 1984 by Upholsterer's International Union of
North America, Local 14 Joint Board, AFL-CIO (the
Union and/or the Charging Party), the General Counsel
of the National Labor Relations Board, by the Acting
Regional Director for Region 21, Los Angeles, Califor-
nia, issued an order consolidating these cases, a consoli-
dated amended complaint, and an amended notice of
hearing on 2 March 1984 against Parkview Furniture
Manufacturing Co. and Parkview Occasional Seating
(the Respondent), alleging that the Respondent engaged
in certain unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act). On 9 March 1984, the Respondent filed an
answer to the consolidated amended complaint, denying
in substance the material allegations therein. Thereafter,
on the basis of charges filed in Cases 21-CA-23074 and
21-CA-23075 on 21 March 1984 by UIU Health and
Welfare Fund; UIU Pension Trust (the Trusts), the Gen-
eral Counsel of the Board, by the Regional Director for
Region 21, issued an amended order consolidating all the
above cases, an amended consolidated complaint and
amended notice of hearing on 5 April 1984 against the
Respondent, alleging that the Respondent had engaged
in various unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act. The Respondent filed
its answer and amended answer on 18 and 23 April 1984,
respectively, denying, in substance, the material allega-
tions contained in the amended consolidated complaint.
In its answers to the amended consolidated complaint,
the Respondent raised the following affirmative defenses:
PARKVIEW FURNITURE MFG. CO 949
At all relevant times during which no collective
bargaining agreement was extant;
(1) the Union did not represent a majority of any
unit of Respondent's employees;
(2) Respondent had a reasonabl[y] grounded
good faith doubt that the Union represented a ma-
jority of Respondent's employees in any unit based
upon objective considerations;
(3) the Trusts lack any standing to file charges in
this matter and thus this Amended Consolidated
Complaint is fatally flawed and on the basis of this
improper consolidation, Respondent moves that
these charges be severed and that all charges be dis-
missed.
The Respondent also moved in its answers for a continu-
ance of the hearing date on the grounds that the amend-
ing of the consolidated complaint regarding charges filled
by the Trusts was improper and "involve new parties,
and greatly expanded new issues," and therefore the Re-
spondent needed additional time to properly prepare its
case for trial.
By Order dated 20 April 1984, the Acting Regional
Director for Region 21 denied the Respondent's motion
for a continuance for the following reason:
Contrary to Counsel for Respondent's contention
that the amendments involved "greatly expanded
new issues", no substantive allegations were added
to the Consolidated Complaint as a result of the
amendments. Rather, the only change was the addi-
tion of the Trusts, as Charging Party, to the cap-
tion, and the addition of paragraphs 2(e) and 2(f) re-
lating to the filing of charges in Cases 21-CA-23074
and 21-CA-23075 and service thereof on Respond-
ent. Therefore, I conclude that Counsel for the Re-
spondent's "Motion For Continuance of Hearing
Date" lacks merit.
This Order also denied the Respondent's motion to sever
Cases 21-CA-23074 and 21-CA-23075 from Cases 21-
CA-22499 and 21-CA-22889 on the following grounds:
Section 102.79 of the Board's Rules and Regula-
tions, Series 8, as amended, provides, inter alia, that
"A charge that any person has engaged in or is en-
gaging in any unfair labor practice affecting com-
merce may be made by any person." Sec. 2(1) of
the Act provides that:
The Term "person" includes one or more indi-
viduals, labor organizations, partnerships, associa-
tions, go 222 corporations, legal representatives,
Trustees, trustees in bankruptcy, or receivers [em-
phasis supplied].
Therefore, it is clear that the Trusts have requisite
standing to file charges against Respondent
A hearing was held before me in Los Angeles, Califor-
nia, on 24, 25, and 26 April 1984. 1 All parties were af-
By Order dated 11 April 1984, the Acting Regional Director for
Region 21 referred the Respondent's "petition to revoke subpoena duces
forded full opportunity to appear, to introduce evidence,
to examine and cross-examine witnesses, to argue orally
on the record, and to file briefs. At the opening of the
hearing the Respondent moved for a continuance of the
hearing and for severance of the cases consolidated
herein as set forth above. I denied the motions. The Re-
spondent failed to renew these motions at any other
stage of the hearing. At the close of the General Coun-
sel's case the Respondent moved for dismissal of the
amended consolidated complaint on the grounds of fail-
ure of proof. I denied this motion. No further dispository
motions were made at the hearing. Thereafter, the Gen-
eral Counsel, the Respondent, and the Union all filed
briefs. The Respondent in its brief did not renew or dis-
cuss its motions for a continuance and for severance,3
but it did request dismissal of the amended consolidated
complaint in its entirety on the merits of the case.
On the entire record and the briefs of the parties, and
on my observation of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, at all times material herein, has been
a California corporation with its principal office and
place of business at 17707 South Santa Fe Avenue,
Compton, California, engaged in the business of manu-
facturing upholstered furniture. 3 In the course and con-
duct of its business operations during the preceding 12
months, these operations being representative of its oper-
ations at all times material herein, the Respondent pur-
chased and received goods and products valued in excess
of $50,000 directly from suppliers located outside the
State of California. The amended consolidated complaint
alleges, the Respondent admitted at the hearing, 4 and,
therefore, I find that the Respondent is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. The amended consolidated complaint also
alleges, the Respondent admitted at the hearing, and I
find that Larry Brooks, the Respondent's president,
David Thomas, its vice president, and Larry Domaracki,
the Respondent's plant manager, at all times material
herein, have been, and are now, supervisors within the
meaning of Section 2(11) of the Act and agents of the
tecurn . . . to the Administrative Law Judge for ruling." At the
hearing the Respondent amended its answers to admit the supervisory
status of certain employees, obviating the need for the subpoena duces
tecum, which was then withdrawn by the General Counsel, as was the
petition to revoke by the Respondent
2 Based on the above, and concurring with the reasoning of the Acting
Regional Director for Region 21 in denying the Respondent's motion for
severance, I find and conclude that the Trusts are a proper party in this
proceeding. See Teamsters Local 449 (Universal Liquor), 265 NLRB 1539
(1982).
3 The Respondent's facility consists of a main large plant budding and
a smaller one
4 Although the Respondent amended its answers at the hearing to
admit the jurisdictional allegations in the amended consolidated com-
plaint as fact, it continued to deny the legal conclusion that the Respond-
ent is an employer withm the meaning of Sec. 2(2), (6), and (7) of the
Act
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent within the meaning of Section 2(13) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The amended consolidated complaint alleges that Up-
holsterer's International Union of North America, Local
15 Joint Board, AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act. The Respondent
in its answers denies this allegation on the basis of lack
of sufficient information to form a belief thereon. As will
be set forth hereinafter in more detail, there exists a prior
history of a collective-bargaining relationship between
the Respondent and the Union, during which the Re-
spondent acknowledged the Union as the exclusive bar-
gaining representative of its employees in an appropriate
bargaining unit for purposes, in whole or in part, "of
dealing with [the Respondent] concerning grievances,
labor disputes, wages, rates of pay, hours of employment,
or conditions of work."5 Moreover, the Union has col-
lective-bargaining agreements with other employers, has
a constitution and bylaws, admits employees to member-
ship, holds regular membership meetings, allows mem-
bers to elect the Union's officers, represents employees in
their grievances against employers, represents employees
in collective bargaining with their employers, and is af-
filiated with the Upholsterer's International Union of
North America. I therefore find and conclude that the
Upholsterer's International Union of North America,
Local 15 Joint Board, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.6
III. THE APPROPRIATE BARGAINING UNIT
The amended consolidated complaint alleges that the
following employees of the Respondent constitute a unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All production employees in the upholstery and
allied departments, excluding woodworkers, team-
sters, full-time inspectors, office employees and
foremen not working more than sixty-five percent
of their time on production during any given week,
guards and supervisors as defined in the Act.
The Respondent denies this allegation. The 1979-1982
collective-bargaining agreement between the Respondent
and the Union describes a similar unit as covered therein
and the Respondent offered no evidence to refute the ap-
propriateness of this unit for purposes of collective bar-
gaining.
Therefore, I find and conclude that the above-de-
scribed unit constitutes a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
5 See Sec 2(5) of the Act
6 Photo Drive Up, 267 NLRB 329 (1983), Michigan Bell Telephone Go,
182 NLRB 632 (1970) Moreover, the Respondent faded to produce any
evidence at the heanng contradicting this or supporting its denial of the
Union's status as a labor organization within the meaning of the Act
IV. THE ALLEGED UNFAIR LABOR PRACTICES
The amended consolidated complaint alleges that,
since about 15 August 1983, the Respondent has failed
and refused, and continues to fail and refuse, to execute a
written collective-bargaining agreement embodying all
terms and conditions of employment agreed on between
the Respondent and the Union about 31 March 1983, al-
though requested to do so by the Union; that, about 19
August 1983, the Respondent withdrew its recognition of
the Union as the exclusive bargaining representative of
its employees in an appropriate unit, and told its employ-
ees that it no longer recognized the Union; that the Re-
spondent unilaterally made changes in employee health
insurance benefits and told its employees that it was
making such changes; that the Respondent ceased
making health and welfare and pension contributions to
the trust funds as required by the collective-bargaining
agreement, ceased withholding and remitting to the
Union the union dues as required by the employees'
dues-checkoff authorizations, and distributed Christmas
bonus checks to employees, all without prior notice to
the Union and without affording the Union an opportuni-
ty to negotiate and bargain as the exclusive representa-
tive of the Respondent's employees with respect thereto;
that, about 15 and 17 August 1983, the Respondent re-
fused to allow union representatives access to its facility;
and that the Respondent, about 12 August 1983, deduct-
ed the Union's requested strike assessment from its em-
ployees' paychecks in a lump-sum manner, contrary to
the Union's request and to undermine employee support
for the Union, all in violation of Section 8(a)(1) and (5)
of the Act. The Respondent denies these allegations.
A. Background
The record evidence herein shows a prior longstand-
ing collective-bargaining relationship between the Re-
spondent and the Union whose history thereof dates
back to 1966. Beginning in that year and continuing
through April 1979, the Respondent was a member of a
multiemployer association known as the Upholstered
Furniture Manufacturers Association of California,
which represented approximately 40-50 furniture manu-
facturers in collective-bargaining negotiations with the
Union. After negotiating the latest collective-bargaining
agreement between its members and the Union, effective
from 1 April 1979 through 31 March 1982, the Associa-
tion disbanded in April 1979. Thereafter, the Respondent
and the Union mutually agreed to extend the 1979-1982
agreement for another year to expire on 31 March 1983.
By letter dated 25 January 1983, the Union notified the
Respondent that it "proposes to reopen the existing
agreement" according to the terms thereof and offered to
meet with the Respondent to negotiate a new collective-
bargaining agreement. Because there were some 20-25
bargaining agreements with other furniture manufactur-
ers in southern California also set to expire in or about
March/April 1983, the Union sent similar letters to each
of these companies requesting negotiations. The Re-
spondent by letter dated 8 February 1983 agreed to meet
with the Union to negotiate a bargaining agreement. On
9 February 1983 the Union forwarded its initial contract
PARKVIEW FURNITURE MFG. CO 951
proposals to the Respondent and to the other companies
it had contacted regarding the negotiation of new agree-
ments. Subsequently, after contact between Alfonso
Fierro, a business representative for the Union, and
Larry Brooks, the Respondent's president, had laid the
groundwork for the commencement of negotiations be-
tween the Respondent and the Union, a meeting was
scheduled at the Respondent's facility in the conference
room for 28 February 1983.7
B. The Evidence
The record evidence shows that the Respondent and
the Union held several negotiation sessions beginning on
28 February 1983 and ending on 31 March 1983 regard-
ing a new collective-bargaining agreement. 8 These meet-
ings all took place in the conference room of the Re-
spondent's plant facility. Present at the meetings on
behalf of the Respondent were Lawrence Brooks, David
Thomas, and Larry Domaracki, the Respondent's presi-
dent, vice president, and plant manager, respectively;
while representing the Union therein were Raymond
Valdez and Alfonso Fierro, the Union's business manag-
er and business representative, respectively, and an em-
ployee negotiating committee comprised of four of the
Respondent's hourly employees. The members of both
negotiating teams were present at all the bargaining ses-
sions held, except for Valdez, who missed one or two
meetings in early March 1983 while he was away on va-
cation.
I. The 28 February 1983 meeting
The first formal bargaining session between the Re-
spondent and the Union occurred on 28 February 1983
and ran from 2 p.m. until 4 p.m. Valdez, Fierro, and
Brooks all testified to the friendly nature of the negotia-
tions at this first meeting. At this meeting the parties
evolved certain procedures and "ground rules" for gov-
erning the negotiations. Valdez, testifying as a witness
for the General Counsel, stated:
[I]t was a late meeting, a preliminary meeting. . . I
believe some ground rules we tried to lay out. I'm
Fierro and Brooks discussed the membership of their respective ne-
gotiating committees, indicating those who would be attending the nego-
tiation sessions, and Brooks requested that Raymond Valdez, the Union's
business manager, attend the negotiations as a member of the Union's ne-
gotiating team.
Brooks testified that there were 6 negotiation meetings between the
Respondent and the Union, Valdez stated that there were "five to seven"
bargaining sessions held, and Fierro related that at least 10 meetings took
place at which negotiations occurred between the parties. Moreover,
Valdez was unsure as to the chronology of these meetings because they
had occurred about a year ago and the Union had been engaged, at the
same time, in negotiating collective-bargaining agreements with 20-40
other employers in the furniture manufacturing industry whose contracts
were about to expire. Regarding Fierro's recollection of the number of
meetings held, he had held preliminary meetings with Brooks to lay the
groundwork for the commencement of negotiations between the parties
and had also met separately with the members of the employees' negoti-
ating committee to plan the Union's bargaining strategy, and he may
have confusedly mcluded these meetings in his count thereof, notwith-
standing his testimony to the contrary. The above circumstances, consid-
ered along with Brooks' seemingly clear recollection as to the actual
dates of the negotiation meetings, establishes that there were actually six
formal bargaining sessions held between the Repondent and the Union.
trying to refresh my memory. It's pretty hard to re-
member a year back. Like I said before, it was a
very informal negotiation, a lot different than we've
ever negotiated before . . . they tried to make it
like [homey]/ and everybody was friends, and we
wouldn't need to go through all this formal stuff
. . . . The employer made a statement that he was
more concerned with money and fringe benefits
than he was with the language of the contract. That
the contract would probably stay as it was and
there [were] a few items in there that would have
to be negotiated.
Valdez testified that he proposed using the "old work-
ing contract as a guideline," along with the Union's con-
tract proposals sent to the Respondent on 9 February
1983, with the parties reviewing each provision of the
contract to "sign off each article that was not in issue."
According to Valdez:
[Brooks] said that's going to take too long, they
didn't have time for that . . . . He said that we
can—I don't know the exact words, but the way it
was put that this wasn't going to be much of a ne-
gotiation for this contract because most of the lan-
guage shouldn't be—doesn't need to be changed.
There were a few items that—And that he was a
man of his honor, and his word, in that his word
was his bond, whatever we agreed on would be his
bond. These people have known me for years, he
said . . . . They've worked with me for years, and
they know that Larry Brooks' word is his bond.°
Valdez related that Brooks strongly emphasized that
most important to the Respondent were the "money
issues and the health and welfare issues." 1 ° Moreover,
Valdez denied that the parties had reached any proce-
dural agreement that day which required that "all pro-
posals and counterproposals were to be put into writing
and exchanged before they were to take effect . . . that
before anything was agreed to at all, or regarded as
being agreed, it had to be reduced into typewritten form
and signed off by each side."
Valdez continued that the parties also discussed pre-
liminarily such issues as the term of the new collective-
bargaining agreement, with the Union seeking a 2-year
contract and the Respondent insisting on 3 years, and the
effective date of any wage increase negotiated, with the
Union requesting retroactivity of wage increases, while
the Respondent sought a 1-year current wage freeze.
Valdez recounted that the Union also requested that the
Respondent continue to give effect to and abide by the
terms and conditions of the old bargaining contract
should negotiations extend beyond the expiration date of
that agreement, 31 March 1983. 'Valdez added that
9 Brooks admitted having "probably" made the latter statement.
1 ° Valdez testified that Brooks had stated at this meeting that "half of
the furniture manufacturers that were negotiating three years ago were
no longer m business because of tough economic times" Moreover,
Valdez maintained that he had advised the Respondent's negotiators that
"everything's important," in the contract, as part of the Union's bargain-
ing strategy
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Fierro was charged with negotiating the language of the
new collective-bargaining agreement for the Union,
while Valdez was responsible for handling the wage,
health and welfare, and pension insurance provisions to
be negotiated therein.
Alfonso Fierro 1 1 testified that, at the 28 February
1983 negotiation meeting, the parties initially agreed that
"tentative agreement on any subject of the negotiation
would be signified after it had been reduced in writing
and initialled off on both sides." Fierro related that "sev-
eral things were negotiated" at this meeting and David
Thomas was delegated to type up the language agreed
upon on "strips of paper" and Fierro would "paste"
these changes onto his "working copy of the old agree-
ment," or the Union's proposals, wherever applicable,
which would then be reviewed and initialed by the par-
ties. 12 Fierro stated that the Respondent and the Union
agreed that, "until . . . the whole package came togeth-
er, there would be no contract." Fierro added that al-
though it was the "agreement in the beginning" that the
parties initial or "sign off" all provisions of the bargain-
ing contract which had been agreed upon, this was soon
"relaxed" and discontinued by the parties.
Lawrence Brooks testified" that at this first meeting
the Respondent and the Union agreed to the following
"ground rules" applicable to these negotiations: "all
items that were agreed upon and language completed we
would sign off," there would be "no recriminations" for
statements made by any of the negotiators at the bargain-
ing sessions, and either negotiating team could caucus
with its members in private at any time during the nego-
tiations. Brooks related that any issue that was not fully
agreed on would be considered "tabled" or "in discus-
sion" and marked accordingly until it was subsequently
reconsidered, agreed upon, and "signed off." Those items
in the agreement that were "dropped" or "deleted" were
also to be initialed. 14 Brooks continued that the parties
used the provisions of their 1979-1982 collective-bargain-
ing agreement as a guide to rewriting the new contract.
Items therein which were agreed upon were typed up
and placed "right next to the contract [provision]" they
" When Fierro testified at the hearing as a witness for the General
Counsel, he was no longer employed by the Union as a business repre-
sentative, having been "laid off' by the Union in February 1984.
52 Fierro testified that, when Valdez attended the negotiation session,
Valdez and Brooks initialed changes made in the bargaining agreement
on behalf of the Union and the Respondent, respectively. However,
Brooks testified that Valdez had never initialed any changes for the
Union and that only Fierro had done so
13 Brooks was the sole witness for the Respondent called in its behalf
14 Although Brooks acknowledged that the negotiations were "less
formal" than in the past wherein the Respondent and the Union were
represented by attorneys, he denied that there was any relaxation of the
procedure the parties had agreed upon at the first negotiation meeting on
28 February 1983 to govern the bargaining sessions However, Brooks
did admit that in some instances when agreement between the parties had
been reached, and the language of the provision of the contract had been
completed and typed, the parties did not initial it as "signed off" In re-
viewing Fierro's "working copy of the old agreement," this seems espe-
cially true of provisions of the bargaining agreement which remained un-
changed and items which were deleted or withdrawn. For example, the
parties had agreed to remove the provision covering absenteeism and tar-
diness from the agreement and handle it as part of the Respondent's
"Shop Rules." This provision, although deleted, was not initialed by the
parties
replaced, then initialed by the parties and put aside until
the completed new bargaining agreement was "proofed."
Brooks stated that Valdez had requested "retroactivity
and extension of the contract," if the negotiations contin-
ued past the 31 March 1983 expiration date of the old
collective-bargaining agreement, which request the Re-
spondent refused." Brooks continued that the Union
also requested a 2-year contract, but the Respondent in-
sisted on a 3-year term for the new bargaining agree-
ment, this issue being "temporarily tabled" for further
consideration. Brooks testified that he told the Union's
negotiators that the furniture manufacturing industry was
facing some tough times and fierce competition and that
the Respondent had to remain competitive price wise or
face closing down its business, as had 24 other furniture
manufacturing companies who had gone out of business
since the last collective-bargaining agreement was negoti-
ated with the Union. Valdez requested that the Respond-
ent present its list of demands and proposals in writing at
the next bargaining session and Brooks agreed to do this.
Brooks testified that there was a brief discussion at this
meeting about the Union's health and welfare and pen-
sion insurance plans and the cost thereof and he realized
that this issue would present a "big problem" in the ne-
gotiations. 16 Brooks advised Valdez that the Respondent
had received numerous complaints from its employees
regarding the Union's current health and welfare plans,
i.e., if the Respondent was late in forwarding the insur-
ance plan contributions to Philadelphia, Pennsylvania,
these fringe benefits were cut off, and at times the carri-
er's computers were not working properly causing some
distress and inconvenience to the employees, etc. Brooks
told the Union that the Respondent wanted to investigate
an alternative outside health and welfare and pension
plans to see if it could secure the same or better fringe
benefit coverage for less money. According to Brooks,
Valdez was receptive to this idea and said that the Re-
spondent should conduct its own research into various
fringe benefit plans, and report its findings at a future ne-
gotiation meeting, and the Union would bring in its ex-
perts in this area to explain the advantages and worth of
the Union's fringe benefit plans. The meeting was then
concluded.
15 Metro testified that Brooks' response to Valdez' request for an ex-
tension of the terms and conditions of the expiring bargaining agreement
was that "there was no need of it because we'd get it resolved." Brooks
stated that among the reasons he had for refusing the extension request
was that he believed an extension would allow the parties to slow down
the negotiations; there would be no pressure to complete the negotiations.
16 The evidence shows that when the Respondent and the Union nego-
tiated the 1-year extension of the 1979-1982 collective-bargaining agree-
ment, although it is unclear as to how this was arranged contractually,
the health and welfare and pension insurance costs remained the same as
under the old contract, $98.50 or $99 monthly per employee However,
the Union, in negotiating 1-year extensions of that agreement with other
employers in the industry, bargained for an increase in these premiums to
$120 monthly In the current negotiations with these employers, includ-
ing the Respondent, the Union was seeking to bring all the new bargain-
ing agreements into line, with the fringe benefit insurance costs amount-
ing to $144 monthly This would translate into a one-step, substantial nn-
mediate increase in premium costs for the Respondent which could
present a problem, while the other employers would experience the in-
crease m two steps, mitigating its impact on these companies.
PARKVIEW FURNITURE MFG. CO 953
2. The 3 March 1983 meeting
Brooks testified that the next bargaining session took
place on 3 March 1983 starting at 1 p.m. and lasting
about 3 hours. Valdez did not attend this meeting and,
because the Respondent was aware that Valdez was the
Union's main negotiator concerning "wage and insur-
ance" issues, the parties agreed to consider provisions of
the contract other than "economics, and in health, wel-
fare and pension." Using the "old working agreement"
and the Union's new contract proposals as guidelines, ac-
cording to Brooks' testimony, 17 he and Fierro discussed
the following items at this meeting: changes in the
method of numbering "Article Headings" in the bargain-
ing agreement from "Roman numerals" to "regular num-
bers" (agreed to by the parties); seniority and layoffs
(tabled for further discussions); subcontracting (language
to be revised); report and discharge (the parties agreed
to minor language changes); grievance and arbitration
(Union wanted to increase time allowed for filing griev-
ance and arbitration notices, which the Respondent op-
posed, and this issue was tabled for further discussion);
noncontract wage practices (language to be rewritten by
Fierro to reflect agreement of the parties); holidays
(some language changes agreed to and initialed); manage-
ment-rights clause (agreed to between the parties and ini-
tialed); vacations (changes in Union's proposals with-
drawn and deleted and signed off/initialed); and sick
leave (not discussed because this issue was considered
"economic")."
Regarding this second negotiation meeting, Fierro tes-
tified that the same procedure used by the parties at the
first meeting on 28 February 1983 was continued,
namely, that any agreement between the Respondent and
the Union as to language changes were typed up by
Thomas and Fierro would attach them to the old agree-
ment or the Union's proposals, where applicable, and
then he and Brooks would initial these changes as
"signed off" to show agreement by the parties thereto.
Also initialed and "signed off" were some provisions of
the agreement and the Union's proposals which needed
no language or other change or which were deleted or
withdrawn.
3. The 17 March 1983 meeting
The third negotiation meeting was held on 17 March
1983. All the members of both negotiating teams were
present, including Valdez, and the meeting lasted 6 or 7
hours. The Union also had brought its two fringe benefit
17 Brooks' testimony concerning the bargaining sessions held between
the first negotiation meeting on 28 February 1983 and the last meeting on
31 March 1983 is more precise and detailed than that given by Valdez or
Fierro as regards dates and the specific subjects discussed at these meet-
ings. Both Valdez and Fierro testified m a general and overall way about
these meetings albeit tymg this m with their more detailed statements of
what happened at the 28 February and 31 March 1983 meetings Not-
withstanding this tendency to generalization, I note that their testimony
has a certain continuity to it winch presented a cohesive rendition of
what occurred at the negotiating sessions as a whole, and I therefore do
not discredit their testimony out of band because of its generality. A full
and detailed discussion of the credibility of the witnesses in this case
be set forth hereinafter because this issue has a bearing on the outcome of
the case
is See R. Exh. 10 and G.C. Exh 4.
insurance plan experts, Harold Franklin and Sanford
Goldner (Ph.D) to this meeting. Brooks testified that he
told the Union's negotiators that the Respondent was dis-
satisfied and unhappy with the cost, benefit coverage,
and administration and operation of the Union's current
health and welfare insurance plan and felt confident that
it could secure a better plan for the same cost on its
own. Franklin and Goldner then discussed the merits of
the Union's insurance plan and maintained that the Re-
spondent would be unable to find as good a plan for the
same money anywhere else. Brooks stated that he re-
quested that the Union provide the Respondent with the
Union's insurance plan cost projections for 1983, 1984,
and 1985, which the Union agreed to do when Franklin
and Goldner appeared at a subsequent negotiation ses-
sion. 19 Brooks added that the Respondent presented its
contract counterproposals to the Union at this meeting,
which were considered that afternoon because the entire
morning session of the negotiations that day was spent
on the fringe benefit insurance plan discussion.
The testimony of Franklin and Goldner as to what had
occurred at this meeting regarding the Union's health
and welfare insurance plan was generally similar to what
Brooks had testified to. Both related that the Respondent
was unhappy, primarily with the cost of the Union's
plan, and insisted that it could purchase the same cover-
age for less money from another insurance carrier or
obtain more and better coverage for the same amount.
Franldin and Goldner then reviewed the Union's health
and welfare insurance plan for the Respondent's negotia-
tors and attempted to convince them that it would be im-
possible for the Respondent to match the Union's plan,
providing the same benefits and coverage for the same
amount of money. Franklin related that, at the end of the
discussion regarding the health and welfare insurance
plan, the parties remained far apart on this issue.
Valdez testified that on his return from vacation
Fierro had reported to him that the language portion of
the agreement "was all taken care of, and they were
ready to get into the health and welfare and economics."
Valdez continued that, when he returned to the negotia-
tion meeting, at the next bargaining session (17 March
1983):
[T]he company made a point of it to ask me that
they had negotiated language, and was I going to
come in now and reject that language? I said no, as
long as the committee and Al Fierro agree to that
language, then it was acceptable to me because I
left him in full charge, to do whatever he saw fit,
with the committee. In fact, that question was asked
directly to me by Larry Brooks.
19 Regarding the Respondent's assertion at the negotiations that it
could obtain a better health and welfare insurance plan at an equal or
lesser cost than the Union's proposed plan, the parties agreed that the Re-
spondent would submit the details of different insurance plans it could
obtain from other insurance carriers to the Union at a subsequent bar-
gaining session to support its contentions The Union was then to have
Franklin and Goldner attend this later meeting to compare the various
plans offered with the Union's insurance plan and explain the advantages
of the Union's plan over the others
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Valdez continued that, perhaps at this meeting or at
the first negotiation meeting held on 28 February 1983,
he submitted to the Respondent "new language that the
health and welfare and pension at the International
wanted negotiated in the agreement." Valdez acknowl-
edged that the Union was aware from the outset of the
formal negotiations that the Respondent felt that it could
obtain a better welfare insurance plan at less cost from
an outside insurance carrier than the Union's plan, and
the Respondent therefore "wanted to look elsewhere for
insurance." Valdez added that, although the Union was
willing to give the Respondent the opportunity to secure
a better insurance plan if it could do so, during the nego-
tiations the Respondent "never did deliver" and failed to
present at the negotiation table any insurance plan at all
to compete with, match, or better the coverage and price
of the Union's health and welfare insurance plan.
Fierro testified that, beginning with the 17 March 1983
meeting, the formal requirement of having the parties ini-
tial (sign off) any further changes in the old bargaining
agreement, the Union's contract proposals, and the Re-
spondent's counter proposals submitted to the Union at
this meeting was "relaxed" and discontinued and the ne-
gotiations became less formal. Fierro related that, al-
though the parties continued the procedure of having
Thomas type up any changes in language and Fierro at-
taching the typewritten strip to its appropriate place in
the agreement or proposals, it was no longer required
that the parties initial the change, as before, to evidence
their agreement. However, Brooks disputed this, testify-
ing that both he and Fierro continued to initial all lan-
guage changes agreed to, and deletions or withdrawals
of proposals, etc., at all the negotiating sessions from 28
February through 17 March 1983.
4. The 24 March 1983 meeting
The fourth negotiation meeting occurred on 24 March
1983 commencing at 2 p.m. and lasting for 2 hours until
4 p.m. Brooks stated that the parties continued their dis-
cussion of the health and welfare insurance issues.
Brooks recounted that Valdez reminded him about the
"new language that Philadelphia wanted in. . . . Gener-
ally, punative language for delinquencies and all of that
kind of stuff," including "liquidated damages." Brooks
related that the Respondent rejected this language and
the matter "was again tabled. We were not getting very
close on that issue." Brooks continued that they also dis-
cussed the issue of pension and then "continued work
toward getting some of the language, in particular, the
tougher ones out of the way." In this connection Brooks
testified:
The company was not about to give on grievance
and arbitration. We discussed some of our requests,
and these are pretty tough, and each one of them
kind of ran into a stone wall. And we discussed
them . . . we have a tardiness—an absenteeism
problem, and eventually it was decided that that
could go into the shop rules rather than into the
contract, which we did, and everybody agreed to.
We wanted to tighten up productivity clause. We
had originally asked for a ten percent reduction in
all piece work rates. That of course nobody wanted
to touch with a 50 foot pole. And we just generally
hassled back and fourth.2°
Brooks continued that at this meeting "there were no
issues resolved."21 He summarized the procedure used
when the parties reached agreement on a particular issue
or provision of the collective-bargaining agreement as
follows: Using the old bargaining agreement and the
Union's contract proposals, and later in the negotiations
the Respondent's counterproposals, Brooks and Fierro
would initial the item agreed upon:
Then what happens is, either Al or myself would
take that home, type it out into what we thought
the language should be, bring it back, paste it in a
single book we had, and then when it was all over,
we were supposed to go over that to make sure that
that's the language that we agreed to even though
we had initialled it.
5. The 30 March 1983 meeting
The fifth negotiation meeting took place on 30 March
1983. Brooks stated that this bargaining session possibly
occurred in the afternoon of that day. Brooks related
that Valdez suggested that "we better start working on
the economics" because the expiration of their current
collective-bargaining agreement was to occur on 31
March 1983. Brooks testified:
I agreed with him and we devoted the next two full
days to economics, both the 30th and the 31st meet-
ing . . . . [W]e left [sic] everything else go and we
started with insurance and wages. Yeah on the
31st—we went through the 30th with not a heck of
a lot being done. I think it was a kind of a wasted
day in a sense, very frustrating . . . . [A]ll that
meeting was on insurance. We were really holding
out hard, because it was such an expensive item.
And of course, the Union had to resolve that.
Valdez also recalled that the meeting held on 30
March 1983 was devoted to economic issues remaining
unresolved, with the parties making proposals and coun-
terproposals regarding wages, health and welfare, and
pension. Valdez testified that Brooks alleged that the Re-
2 Whether it occurred at this negotiation meeting or a subsequent one
and with regard to the grievance and arbitration provision of the bargain-
ing agreement, Valdez testified that the Umon's contract proposal con-
tamed an extension of the time limitation requirement within which
grievance and arbitration requests or notices were to be giVen. When
Brooks rejected this change on behalf of the Respondent, the Union
withdrew its proposal and agreed to accept the grievance and I arbitration
provision as it was set forth m the old bargaining agreement and as the
Respondent had wanted it to remain.
21 As did Valdez, Brooks admitted to being unable to remember all
that happened at the bargaining sessions.
Q Mr. Brooks, did anythmg else happen on that March 24 meet-
ing, or have you concluded your comments in telling us about—
A. I just can't remember. There may have been I don't know.
There were six full hard negotiating sessions, and I just can't remem-
ber what happened at each one—everything.
Also, Brooks mistakenly testified that Franklin and Goldner had attended
the 30 March 1983 meeting to present material and to discuss the Union's
health and welfare insurance plan and the costs thereof '
PARKVIEW FURNITURE MFG. CO 955
spondent could not afford to give the Union an increase
in the health and welfare insurance premiums to be effec-
tive 1 June 1983 and a wage increase as well on 1 April
1983; therefore, the Respondent requested a freeze on
wages at the current level for 1983. However, according
to Valdez' notes taken at this meeting, this was not re-
solved on 30 March 1983. Furthermore, either at this
meeting or the 31 March 1983 negotiation session, the
Respondent presented its second set of proprosals to the
Union,
6. The 31 March 1983 meeting
The last negotiation meeting between the Respondent
and the Union occurred on 31 March 1983 beginning at
8:30 a.m. and lasting until 5 p.m. With the exception of
an employee on the Union's employee negotiating com-
mittee who was absent, all other members of the respec-
tive parties' negotiating teams were present. Valdez testi-
fied that the only bargaining contract issues remaining to
be resolved by the parties were "[h]ealth and welfare
and wages." As related hereinbefore, the Respondent
had maintained early in the negotiations that it could
obtain equal or better health and welfare insurance cov-
erage at lower rates than the Union's insurance plan and
would submit details thereof at a subsequent bargaining
session as a counteroffer to the Union's proposal. Valdez
related that the Union therefore brought Franklin and
Goldner to the 31 March 1983 meeting to compare the
advantages of the Union's insurance plan with any health
and welfare insurance plan proposed by the Respondent
and to assist in resolving this issue. Valdez continued
that the Respondent failed, however, to present its own
health and welfare plan at this meeting, and, after Frank-
lin and Goldner explained in detail the scope of the
Union's insurance plan, the Respondent agreed to accept
it.22 Valdez added that, after this issue was settled, the
parties discussed the "economic package" wage rates for
various categories of employees, effective dates of such
wage increases, fringe benefit plans, etc.
Valdez recounted that during the afternoon bargaining
session on 31 March 1983, the Respondent made its "last
and final offer" on wages, health and welfare, and pen-
sion, which the Union accepted." Valdez added that all
bargaining contract issues had been resolved by the end
of negotiations that day, with the parties shaking hands
at its conclusion and with the understanding that the
Union would now prepare the final written agreement
for signature of the parties and would present the bar-
22 According to the evidence herein, this occurred durmg the morning
session held on 31 March 1983 and, after Franklin arid Goldner had made
their presentation, they left the meeting. Goldner testified that Brooks
had told them at the meeting that the Respondent "had no longer any
disagreement and would go along with the UIU plan" Franklin testified
similarly.
23 The parties agreed to the following wage increases- Commencing
on 1 December 1983 (25 cents hourly), on 1 April 1984 (35 cents hourly),
and on 1 April 1985 (45 cents hourly) As to its frmge benefit insurance
plan the monthly costs per employee were to be. Commencing on 1 June
1983 ($144), on 1 June 1984 ($169), and the third year was to be left open
for negotiation, with the Respondent having the option to obtain its own
health and welfare plan if it matched the Union's plan as to employee
coverage.
gaining agreement to its membership for ratification on 4
April 1983.
Fierro's testimony concerning what occurred at the
last negotiation meeting on 31 March 1983 was similar in
nature to that given by Valdez. In substance, Fierro testi-
fied that during the previous negotiation meetings, and
after some "hard bargaining" between the parties, the
Union agreed to various "language" changes proposed
by the Respondent in the collective-bargaining agree-
ment. According to Fierro, remaining unresolved for ne-
gotiation at this meeting were the "economic issues,"
wages, health and welfare, pension, and cost-of-living in-
creases. Fierro related that, during the morning bargain-
ing session, the Union brought back its fringe benefit in-
surance experts, Franklin and Goldner, to review and
compare any insurance program produced by the Re-
spondent at that meeting, and explain to the Respond-
ent's negotiators the advantages of the Union's plan.
Fierro recounted that the Respondent failed to produce
its own health and welfare and pension insurance plans,
and after negotiation between the parties the Respondent
finally agreed to accept the Union's insurance plan.24
Fierro continued that, by the end of the bargaining ses-
sion on 31 March 1983, the parties had come to full
agreement on a new bargaining contract. Fierro ex-
plained that he had used a copy of the old bargaining
agreement as a working guide, and, as David Thomas
prepared the changes in contract language agreed upon
by the parties as typewritten notations, Fierro would
attach these to the old agreement in their respective
places where applicable. Moreover, Fierro also used a
yellow marker pen to "yellow out" provisions of the old
contract agreed upon to be deleted or omitted from the
new bargaining contract.
Fierro stated that at the conclusion of this last meeting
the Respondent offered to prepare and type up the final
bargaining agreement, but Valdez said that the Union
would do it, using Fierro's copy with the changes there-
in as the model. Fierro continued that all that remained
to be done regarding the agreement was the ratification
vote by the Respondent's employee-members of the
Union and the execution of the new collective-bargaining
agreement by the parties. Fierro related that he advised
the Respondent's negotiators that the Union believed it
could "sell" this agreement to the employees. Fierro
added that the Respondent agreed to have Thomas help
Fierro prepare a letter to the employees explaining the
highlights of the new bargaining agreement being sub-
mitted for ratification on 4 April 1983, agreed to have
management representatives present at the ratification
voting, and offered its facility for use by the Union for
that purpose.
Brooks version of what occurred at the last bargain-
ing session on 31 March 1983 between the Respondent
and the Union differed substantially from that given by
24 Fierro testified that with regard to health and welfare insurance, the
Respondent agreed to accept the Union's insurance plan for the first 2
years of the new bargaining agreement's existence with the option m the
third year thereof to obtain its own health and welfare insurance plan,
provided the same level of benefits was maintained
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Valdez and Fierro. Brooks testified that at this meeting
Valdez told the Respondent's representatives:
[The Union] simply had to have something to take
out to those people as of 1st of April or he was
going to ask for a strike vote, and none of us
wanted that to[o] eagerly. . . we're going to have
to get something that I can take out there in the
way of a wage package and insurance, and the rest
of it there'll be no problem with . . give the
people something and get that portion of it rati-
fied.25
Brooks stated that by 5 p.m. the parties had reached
agreement on a wage offer and a health and welfare and
pension insurance package: "I understood there was an
insurance agreement . . , [and] an agreement on the in-
crease of wages."
Brooks related that the parties also agreed that Fierro
and Thomas would prepare the bargaining agreement in
typed final form either the next day, Friday, or the fol-
lowing Monday, 4 April 1983. According to Brooks, it
was his understanding that the next step in the negotia-
tions would require him and Fierro to review the final-
ized bargaining agreement, "sign off' (initial) all the pro-
visions agreed upon, make any changes required therein,
and then have the parties execute the contract. Brooks
added that, because he was leaving the next day on a
business or vacation trip for 1 week, the final stage of
the negotiations would have to await his return. Not-
withstanding this, no new negotiation meetings were
scheduled thereafter by the parties at the conclusion of
this meeting, although that had been the procedure at the
end of each prior bargaining session; the Respondent
agreed to, assisted in, and supported a contract ratifica-
tion vote by its employees on 4 April 1983; and the re-
spective parties' negotiators shook each others' hands, a
gesture generally made at the end of negotiations to sig-
nify agreement between the parties and a successful con-
clusion to negotiations for a collective-bargaining con-
tract.
As a general statement Brooks testified that many of
the provisions of the bargaining agreement had not been
agreed to by the parties because these items were not ini-
tialed or "signed off' on Fierro's working copy of the
old collective-bargaining agreement and because he and
Fierro had not met to compare and review their respec-
tive "working copies" of the old agreement on which
had been recorded any changes so as to finalize a new
bargaining contract." Specifically, Brooks stated that
there remained several items in the proposed new bar-
gaining contract which had not been resolved as of the
close of the last negotiation meeting on 31 March 1983,
such as pension, the effective date of the health and wel-
fare insurance plan, grievance and arbitration, noncon-
tract wage practices, layoff procedure, cost-of-living in-
creases, etc. Although Brooks maintained that all the
25 Valdez denied that he made any such statement at this meeting
26 This appears to be another step in the process of finalizing a new
bargaining agreement which, according to Brooks, was required and nec-
essary before agreement could be considered to have been reached there-
on, although this was disputed by Valdez and Fierro
provisions of the "working copy" of the old bargaining
contract had to be initialed and "signed off' to show
agreement thereon, whether it was changed or modified
in any way, was deleted or withdrawn therefrom, was a
new addition to be included in the contract, or merely
remained the same without any alteration, he admitted
that this was not always done "because we didn't get
back to it the second time to initial it," although the par-
ties understood that the issue had been resolved and "put
to rest" without any further steps being required.27
Brooks recounted, for example, that the Respondent and
the Union had agreed to delete the tardiness and absen-
teeism provisions of the old agreement and to treat this
as part of the Respondent's "shop rules" rather than as a
provision of the new collective-bargaining contract, and,
although agreement thereon had been negotiated at a
prior meeting, it had not been initialed by the parties for
the reason, according to Brooks, that it was not being in-
cluded in the new agreement.
7. The 4 April 1983 ratification vote
According to the testimony of Valdez, at the close of
negotiations on 31 March 1983, the Union agreed to
present the terms of the new collective-bargaining agree-
ment to the Respondent's employees in the bargaining
unit for ratification on 4 April 1983. A ratification meet-
ing was therefore held on that day in the lunch area of
the Respondent's main building immediately following
the employees' lunch period. Fierro testified that he and
the Respondent's vice president, David Thomas, had pre-
pared the language for a "flyer," which set forth the
wage increases negotiated, and guaranteed employee
health and welfare benefits at current levels and cost-of-
living adjustments during the term of the new agree-
ment." Fierro related that this "flyer" was distributed to
the employees prior to their voting, and Fierro explained
the "main issues" contained in the new bargaining agree-
ment to the employees, both in English and Spanish,
after which the employees cast their ballots for or
against ratification thereof." Fierro stated that present
during most of the ratification meeting were Thomas,
plant manager Larry Domaracki, and plant superintend-
27 As part of his cross-examinations, Brooks reviewed Fierro's "work-
ing copy" of the old bargaining contract containing "paste-on" new lan-
guage presumably prepared and typed by Thomas and "yellowed out"
changes in various other provisions therein and, upon his being ques-
tioned about these, Brooks either denied that the language change had
been agreed upon or finalized (the cost-of-living clause) or he could not
tell or recall whether the item had been agreed upon because it had not
been initialed (vacation), etc I found Brooks' testimony on cross-exami-
nation regardmg this to be unsatisfactory, defensive, and guarded
28 This "flyer" was physically prepared by the Respondent on its own
letterhead and was distributed to the employees by Fierro and a few of
the employees themselves Valdez testified that he had also observed "su-
perintendent" Larry Domaracki distributing these "flyers" to employees.
29 Fierro testified that he began explaining the new language changes
in the bargaining agreement, but the employees were more interested in
the wage increases and the health and welfare insurance plan. Fierro con-
tinued.
[T]hat's where I got into some trouble because I took such a long
time explaining it in English and in Spanish. . I explained it m
detail to the point of ticking everybody off.
PARKVIEW FURNITURE MFG. CO 957
ent Sal Mope. 3 ° Fierro added that a majority of the em-
ployees voted for ratification of the new bargaining
agreement at this meeting.31
Fernando Loya, an employee" and the Union's shop
steward at the Respondent's facility at the time the
events set forth herein took place, testified that Fierro
had told the employees at this meeting that their negoti-
ating committee felt that they had "got a pretty good
package," that this package was the Respondent's "last
and final offer," and that "all the language was going to
be the same, except for a few changes," as was contained
in the old bargaining agreement. Loya continued that
Fierro had "explained it out more or less" to the em-
ployees. He added that some of the employees were
upset because they did not want to accept the new bar-
gaining agreement as negotiated. Valdez related that, al-
though the "economic" provisions of the new bargaining
agreement were read and explained to the employees
before the ratification vote was taken, not all the "lan-
guage" changes in the agreement were discussed with
the employees.
8. What occurred in July 1983
Valdez testified that sometime in July 1983 he was in-
formed by Fierro that Thomas had been inquiring as to
when the Respondent would receive the completed type-
written collective-bargaining agreement. Valdez stated
that he then telephoned Brooks and told him that the
Union was "running late typing the contract up" because
Valdez' secretary was on vacation and there was an inex-
perienced "new girl in the office." Valdez related that
during this conversation Brooks asked him how the
Union "was doing with the Landmark [Furniture] strike
and . . . Jerry Bertram." According to Valdez, Brooks
then said:
[H]e had to give Jerry Bertram credit for having
balls to take the Union on and checking them out.
And that somewhere down the line, that was going
to happen between Parkview and the Union, be-
cause he would be damned if he was going to be
the biggest union shop in town in which he
wouldn't be able to compete with the non-union
shops, paying the exhorbitant benefits."
3° Brooks was out of town when the ratification vote occurred, but he
acknowledged that Thomas had reported the event fully to him on his
return. Brooks testified that he considered the ratification vote important
and assumed that Thomas had authorized the use of the Respondent's
premises for th* purpose. Brooks added that he believed that the ratifica-
tion vote would apply only to the economic package agreed to, wages
and health and welfare insurance. Fierro testified that he asked Thomas
and the other supervisors to leave while the employees questioned him
about the bargaining agreement.
31 Brooks tstified that the bargaining umt contained approximately
140 employees Valdez testified that 137 employees voted on 4 April
1983, "70-something" for ratification and "50-something" against. The
rest of Valdez' testimony regarding this occurrence was similar to that
given by Fien-o and employee Loya.
32 When he testified as a witness for the General Counsel, Loya was
no longer employed by the Respondent, having been discharged on 3
March 1984 for fighting.
33 Brooks denied ever making such a statement. In fact, he denied
having any conversations with Valdez in July 1983 because he was away
from the RespOndent's facility most of that month, either on business or
on vacation
Valdez added that at no time after 31 March 1983 until
the Union's receipt of Schmier's letter on 8 August 1983
had "anyone from the company" contacted him with re-
spect to further negotiations between the parties.34
Fierro testified that during his regular business visits to
the Respondent's facility in July 1983 he had "two or
three" conversations with Thomas wherein Thomas kept
asking him when the Union was going to provide the
Respondent with a completed copy of the new collec-
tive-bargaining agreement. Fierro related that during one
of these conversations he reminded Thomas that the Re-
spondent was "delinquent on the health and welfare" and
Thomas responded by asking Fierro "where the agree-
ment was." Fierro recounted that he told Thomas that
he "was waiting for our business manager, Ray Valdez,
to complete it."
9. The Union's strike assessment
At a special membership meeting held on 7 June 1983,
a majority of the Union's membership voted to assess all
union members $3 a week, to be deducted from their
paychecks beginning with the pay week of 13 June 1983,
as a strike assessment "for your fellow union members
and their families of Landmark Furniture who have been
on strike since April 7, 1983." By letter dated 8 June
1983, setting forth the details of the strike assessment and
sent to all its shop stewards employed by employers with
whom it had existing collective-bargaining agreements or
were in the process of negotiating a new agreement, the
Union instructed the shop stewards to post these letters
on their respective employer's bulletin boards. Addition-
ally, the Union informed the payroll departments of all
these employers, by letter also dated 8 June 1983, that
pursuant to the checkoff provisions of their current col-
lective-bargaining agreements the $3 special assessment
was to be deducted from employee paychecks "weekly
beginning with the pay week of June 13th 1983," and
sent to the Union. With specific regard to the Respond-
ent, these letters were sent, respectively, to Shop Stew-
ard Loya for posting at the Respondent's facility" and
to the Respondent's payroll department.
Valdez testified that, approximately 6 weeks after this
letter had been mailed to the Respondent, he was in-
formed by Loya that Brooks had denied ever receiving
the letter and, therefore, by letter dated 27 July 1983
Valdez sent Brooks a copy of the Union's special assess-
ment letter dated 8 June 1983, stating in the covering
letter therewith:
Due to the fact you claim you or your Payroll de-
partment never received a copy, your employees
are now well behind in their contributions to this
special assessment. In order not to prove a hardship
34 However, Brooks testified that, after the parties' last bargaining ses-
sion on 31 March 1983, he had verbally asked Fierro "on many occa-
sions" to arrange additional negotiation meetings and that Fierro had said
that the Union was very busy with lots of "other problems" and he was
trying to get "what we had done together, and typed up"
33 Loya testified that he received the Umon's 8 June 1983 letter about
"two or three" days after it was mailed by the Union and posted it the
very next day on the bulletin board in the lunch area of the main building
at the Respondent's facility.
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on them, I suggest you deduct ten ($10.00) dollars
per week per employee until they are paid up cur-
rent.
With regard thereto, Brooks related that sometime
around the end of July 1983 the Respondent received a
letter from the Union notifying it about the special as-
sessment deduction to be made from its employees'
wages. 36 Brooks stated that he directed the Respondent's
comptroller to comply with the Union's suggested de-
duction schedule of $13 on 5 August 1983, $14 on 12
August 1983, and $3 on 19 August 1983 and each weekly
pay period thereafter.37
Subsequent to the posting of its strike assessment letter
on the Respondent's plant bulletin board, the Union re-
ceived several phone calls from "upset" employees in the
Respondent's "sewing and cutting department," who de-
nounced the assessment as too burdensome, especially in
view of the Respondent's having reduced their hours of
work. Therefore, in late July or early August 1983,
Valdez and Fierro met with approximately 20 of these
employees at their workplace at the Respondent's facili-
ty" to discuss this problem. Valdez testified that the em-
ployees voiced their hostility to the assessment, where-
upon Valdez explained that the Landmark Furniture em-
ployees on strike needed help to survive and that the Re-
spondent's employees should realize that they could be
placed in a similar position of need some day. Valdez
stated that he told these employees that the union mem-
bership had duly voted to impose this assessment and
there was nothing he could do about it at the time, al-
though he would seek another membership vote to re-
scind the assessment as soon as possible. Valdez related
that the employees remained adamantly opposed to the
strike assessment, contending that they could not afford
to support the Landmark Furniture employees, but
needed the money instead for themselves. Valdez re-
counted that the employees were angry and threatened
to sign a petition against any deductions being made by
the Respondent from their wages for strike assessment
purposes and asserted that the Union did not have their
best interest at heart. Valdez continued that, when some
of the employees became "boisterous" and started to
"boo" the union officials, he left the meeting and "went
out in the parking lot, and I cooled off and I came back
into the plant."" According to Valdez, the employees
who had created the disturbances came over and apolo-
gized to him and he then left the meeting. 4 ° Valdez
36 On cross-examination, Brooks also testified that the first time he
heard anything about a special assessment deduction was in late July
1983, when the Respondent's comptroller brought this to his attention.
Brooks denied ever having seen a copy of the Union's strike assessment
letter to the employees posted on the plant bulletin board
37 See R. Exh. 13. Interestingly, on the basis of this exhibit, Brooks
denied that the Respondent had deducted the assessment arrears in a
lump sum amount of $27 from the employees' 12 August 1983 paychecks
38 The "sewing and cutting department" is housed m the "smaller
buildmg" at the Respondent's facility.
32 Fierro testified that he remained behind when Valdez left the meet-
ing to try to "calm things down"
Fierro's account of what had occurred at this meeting was similar to
Valdez', although it did differ in one respect Although Valdez at first
denied, and then could not recall, whether he had also asked the employ-
added that he immediately went over to the main build-
ing where he met with Loya and the employees who
worked there and "There I had no problem. They asked
me questions. I answered them about the assessment and
we had no problem at all."
Brooks testified that on 4 August 1983 he was "ap-
proached by a couple of my supervisors," William
Seavers and Andrew Wallace, who asked Brooks if he
had heard that a "strange meeting between the Union
and our cutting and sewing employees occurred across
the street."' According to Brooks, he was told:
[A] meeting had been held of all the cutting and
sewing employees with Mr. Fierro and Mr. Valdez,
and that it was over the assessment, and that there
was an awful lot of voices being raised and arguing
back and forth, and Mr. Valdez raised his voice,
and everybody was shouting, and finally Mr.
Valdez gets up and says, well damn it, do you want
a union or don't you? And then everybody in
unison hollers out, no. And at that time, Mr. Valdez
got mad and stomped out of the meeting. That was
reported to me by those two individuals.
Fierro testified that about 12 August 1983 he received
several telephone calls from employees, advising him
that a petition was being circulated among the employees
to stop the assessments and that the Union had better
take steps to take such action on its own volition." On
16 August 1983 "at a special membership meeting the
members of Local 15-A voted to discontinue the three
($3.00) dollars per week assessment effective August 19,
1983." By letter dated 17 August 1983, the Union ad-
vised the payroll departments of the employers who had
received assessment notices previously, including the Re-
spondent, that "[t]he last deduction should be for the
payroll week ending August 19, 1983." Valdez related
that the Union never received any of the assessment
moneys withheld from employees' wages by the Re-
spondent.
10. What occurred in August 1983
Fierro testified that, because of Thomas' persistent re-
quests for a copy of the new collective-bargainmg agree-
ment, he advised Valdez in late July 1983 that, if Valdez
did not accompany him on his next visit to the Respond-
ent's facility and explain to Thomas the reason for the
Union's delay in forwarding the completed agreement to
the Respondent, "we're going to have a problem."
Therefore, about 4 August 1983, Valdez and Fierro met
with Thomas at the Respondent's facility and Thomas
again requested a copy of the new bargaining agreement.
Fierro stated that Valdez told Thomas that the agree-
ment was in the process of being typed, that four or five
ees, "Do you want a union or not?" Fierro testified that Valdez had
posed this to the employees and that their answer had been, "No."
41 Seavers and Wallace had been working near where this meeting
took place and overheard what was said
42 Fierro denied that he had heard rumors being circulated that the
employees' petition mvolved employee action to rid themselves of the
Union as their collective-bargaining representative rather than to protest
against the strike assessment.
PARKVIEW FURNITURE MFG. CO 959
bargaining agreements were being worked on at the
same time, and that the particular agreement between the
Respondent and the Union would be completed and sent
to the Respondent in "a week or two." Valdez related
that he reminded Thomas at this meeting that the new
increase in health and welfare insurance premiums had
commenced on 1 June 1983 under the terms of the new
bargaining agreement, but that the Respondent had failed
to make the required payments to the Trusts, to which
Thomas responded, "[T]here would be no problem with
that except that he was not going to pay it until he had a
signed agreement in his hand."
By letter dated 2 August 1983, received by the Union
on 8 August 1983, the law firm of Schmier & Schmier,
Esqs., notified the Union that it represented the Re-
spondent as "labor counsel" and, in view of the expira-
tion of the old collective-bargaining agreement, had ad-
vised the Respondent to discontinue forwarding moneys
deducted from employees paychecks for union dues, etc.
to the Union, instead depositing these amounts in a
"bank trust until this matter is resolved." The letter also
suggested that the Union contact Michael K. Schmier,
Esq., to arrange "another collective bargaining meeting
in order to conclude the negotiations and execute a col-
lective bargaining contract forthwith." Valdez testified
that he attempted to contact Schmier after receiving the
above letter, but was unable to do so. Valdez continued:
[The Respondent] paid the July health and welfare.
That would cover the employees through the end
of August. On the pension . . . they sent the June
pension in and we received it in July. The last time
they paid the pension was June.
Valdez added that the Respondent discontinued making
employee dues remittances to the Union after July 1983.
Schmier contacted Valdez, by letter dated 11 August
1983, suggesting various dates between 17 August and 26
August 1983 as possible meeting dates for the resumption
of negotiations and execution of a collective-bargaining
agreement.
Brooks testified that on 12 August 1983 two of the Re-
spondent's employees, Sal Mope and Frank "something,"
a cutter, came to his office around 9-9:30 a.m. and
handed him several sheets of yellow lined paper headed
by the following statement in both English and Spanish:
[W]e the employees of Parkview Furniture Compa-
ny wish to dismember ourselves from Local 15 of
the International Upholsterer's Union.
Brooks stated that he counted 75 employee signatures
thereon, and continued:
I asked the young man what was going on. He said
they were still collecting more names out in the fac-
tory, but they were having some problems. I asked
him what he was going to do with the petition. I
thought, then, he'd give it to me. He said no, he
was going to put it in his pocket and take it with
him. In which case, I told both of them to go back
to work and to stop all the tomfoolery and that's
the last I saw—the two of them went out.43
Brooks added that 2 minutes later the plant manager,44
Domaracki, came in and advised him that "it was getting
pretty ugly out there, and I better get out there and talk
to the people."
Brooks related:
So I walked out, and I stopped everybody at work,
and I had all the supervisors call all the employees
from both buildings together in the lunch room of
the big building. I got up then, and I talked to
them. . . . I said, I understand, I have seen, and I
have seen that there is a petition that is being circu-
lated in this plant. I want you to know that [neither]
myself, the management nor the supervisors can be
involved in that sort of thing . . . Cannot be in-
volved in this sort of thing. It's creating a work
stoppage, you're creating a problem. I want you to
stop this nonsense and go back to work.45
Brooks testified that then Fernando Loya and Jerry
Pontod, union shop stewards, and a few other employees
"jumped up" and were very angry and upset, and Loya
shouted at Brooks:
[Y]ou're trying to take our union away, but you
can't. We've got two and a half years or something
on a contract, and you're not going to win, we are,
and it started to get a little ugly.
Brooks added that because the employees were shout-
ing and very boisterous and there was some shoving and
pushing between those employees for and those against
"the petition" and because this had been scheduled by
the Respondent as a "short work day" anyway and the
employees had already been given their weekly pay-
checks, he told them to go home."
Loya's testimony as to what occurred at the 12 August
1983 meeting differs significantly in certain aspects from
Brooks' version. Loya testified that the employees were
given their paychecks early that morning, at 8:30, which
was very unusual. He stated that the employees became
aware that the amount of $46 had been deducted from
their wages, $19 for union dues and $27 for the special
strike assessment arrears, which made the employees
very upset and angry indeed. Loya related that later that
morning the employees were instructed by their supervi-
43 The employees' "petition" was never produced at the hearing, nor
did the Respondent call Sal Mope, its supervisor, and especially employ-
ee Frank "something" to testify as to the specifics thereof
44 Brooks at first testified that it was a plant "superintendent" who had
reported this to him.
43 Loya denied that Brooks had told the employees that he had seen
the employees "petition" and that the "Company and its supervisors"
could not get involved in any way with it.
46 Brooks testified that he had informed his supervisors by written
memorandum (not produced at the hearing) that Friday, 12 August 1983,
would be a "short day," with the employees scheduled to work only
from 6 to 10 a m. He stated that it was not unusual for the Respondent to
send employees home when they had completed their scheduled work.
However, Loya denied that the employees were notified that 12 August
1983 was a "short day." He testified that, in fact, that the employees
"had work on the line."
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sors to attend a meeting with management held in the
lunch area of the main building at the Respondent's facil-
ity. Loya recounted that Brooks addressed the employ-
ees and told them that he had heard that they were upset
about the $46 deducted from their wages, but that the
Union had directed him to do so, and that he could do
nothing about this because "his hands were tied until two
and a half years when the contract was up." According
to Loya, Brooks advised the employees that "if we no
longer want the union, then he could do something
about the union. We could vote the union out."
Loya continued that he accused the Respondent of de-
liberately instigating this situation to rid itself of the
Union by deducting a substantial lump sum amount from
their paychecks that week knowing it would engender a
great deal of hostility toward the Union, which would be
blamed for this. Loya also accused Brooks of distributing
the paychecks for that week unusually early in the day
to inflame the employees against the Union and then rec-
ommending to the angry and upset employees that they
should get rid of the Union. 47 Loya asked Brooks why
the Respondent had not deducted the strike assessment
previously so that only $3 per week would have been
taken out, and Brooks answered that the Respondent had
never received the Union's letter to its payroll depart-
ment until late in July 1983. Loya added that at this time
"people were getting angry" and some of the employees
asked Brooks why, in fact, he had not deducted lesser
amounts from their salaries that week. Brooks fmally
told the employees to "punch out" and to go home and
"cool off" and the meeting was concluded.
Valdez testified that he and Fierro visited the Re-
spondent's facility again on August 1983, bringing with
them four copies of the completed collective-bargaining
agreement. Valdez related that at the reception area they
asked to see Brooks, but instead Domaracki appeared
and told them to leave the facility, that they were no
longer allowed on the Respondent's premises because
they had "caused too much trouble" when they visited
there. Domaracki stated that he had been ordered by
Brooks to deny them "access to the shop." Valdez gave
Domaracki three copies of the bargaining agreement and
asked him to deliver these to Brooks, and Domaracki
said that he would do so. Fierro testified that Domaracki
had refused to allow them to speak to either Brooks or
Thomas. According to Fierro, Domaracki told them that
the Respondent no longer recognized the Union as the
collective-bargaining representative of its employees in
the appropriate unit, and if they had any further ques-
tions, to contact the Respondent's attorneys. He added
that they left copies of the bargaining agreement for the
Respondent with Domaracki.
Brooks testified that he received a copy of the typed
and completed proposed collective-bargaining agreement
from the Union sometime in August 1983 when Fierro
delivered it to the Respondent's facility, although he did
not see or speak to Fierro personally when this occurred.
Brooks stated that it was his impression that Fierro had
dropped off a copy of the agreement for him "to look at
47 Loya testified that the weekly paychecks were usually distributed to
employees Just before they left work on payday
to further negotiate." Brooks related that, even though
this bargaining agreement "didn't reflect the language"
that the parties had agreed upon at the negotiation meet-
ing, he did not contact the Union. Brooks gave as the
reason for his failure to do so that he had become aware
of the employees' petition to get rid of the Union as their
bargaining representative prior to his receipt of the
agreement and, on contacting the Respondent's attorneys
as to how to proceed, he was advised that he should not
negotiate with the Union any further.
Loya testified that approximately 1 week after it held
the first meeting with employees the Respondent's man-
agement called a second meeting, which was held in the
lunch area of the main building about 9:15 a.m. Present
were all the employees and Brooks, Thomas, Domaracki,
Brooks' son-in-law, and all the supervisors and foremen
at the facility Loya stated that Brooks requested that he
be allowed to speak to the employees and finish his re-
marks before Loya spoke up, and Loya agreed. Brooks
told the employees:
[The Respondent] no longer [recognized] the union,
that he is bringing in an insurance guy for us, that
we're not going to be covered after August, the
ending of August, for us to be insured. So he's
going to bring in an insurance guy and for us to
sign up if we want to be covered.
Loya related that he then told the employees, both in
English and Spanish, that they were in fact covered by
the Union's health and welfare insurance plan, where-
upon Brooks requested that he and Loya "stay neutral.
Let our attorneys handle it." Loya recounted that then
the Respondent's "insurance guy . . . started signing up
everybody individually," and the meeting ended. 48 Loya
added that he had one of the employees contact Valdez,
who came to the Respondent's facility that day at 11
a.m.
Valdez testified that he and Fierro appeared at the Re-
spondent's facility on 19 August 1983 to talk to the em-
ployees. Valdez stated that, while they were outside the
plant buildings, Domaracki came over and asked them to
leave the grounds and told them that "he didn't want
any trouble and if I didn't leave, he was going to call the
authorities." He and Fierro then left the premises.
Valdez stated that the Respondent had not advised the
Union that it intended to secure its own health and wel-
fare insurance plan for its employees, as it did on 19
August 1983, except as regards the negotiation meeting
on 31 March 1983 as set forth hereinbefore. Nor did the
Respondent discuss its actions on 19 August 1983 with
the Union prior thereto.
Loya testified that on 22 August 1983 Ramiro Flores,
his foreman, gave him a copy of a notice to all employ-
ees, on the Respondent's letterhead, which stated:
48 In evidence as G.C. Exh. 16 is an insurance form and list of benefits
in Spanish, which Loya testified were similar to the forms distributed to
and filled out by employees at this meeting regarding health and welfare
insurance coverage Interestingly, the "insurance guy's" business card
lists "Sam H Brooks" as president of the firm handling this insurance,
Amalgamated Insurance Brokers Corp.
PARKVIEW FURNITURE MFG. CO 961
Effective August 22, 1983, this Company will put
money aside each month for each employee. The
amount of money will be based on your earnings
and will be distributed to you before Christmas of
each year in the form of a bonus. Not one dime of
this money will be withheld from your own earn-
ings. Based on our calculations you could receive
anywhere from $200 to $600 each year depending
on how much money you have earned that year.
The Company will assist an employee who choses
to have this money put in a tax free IRA account."
Loya stated that this was the first time the Respondent
had granted a Christmas bonus while he was an employ-
ee there. Valdez also testified that the Respondent had
never given such a bonus to its employees previously.
Valdez added that the Respondent had not notified the
Union of its intent to issue its employees a Christmas
bonus and had never discussed this with the Union.
Loya continued that on 29 August 1983 the Respond-
ent's supervisors and foremen distributed a notice dated
that day, on "Parkview Furniture Mfg. Co." letterhead,
which stated:
The Petition that was signed by a majority of
employees at Parkview asking to remove Local 15
has required this Company, by law, to no longer
recognize Local 15 as representing our employees.
As a result of that the Company wants you to know
that we will maintain the following practices:
1.All pay increases that have been promised will
take effect as scheduled.
2.All seniority rights will remain in effect.
3. All piece work and hourly rates will remain
the same.
4. All holiday and vacation benefits will remain
the same.
5. AU other fringe benefits will remain the same.
6. The Company has given you a fine health and
life insurance plan that we will pay for completely.
7. The Company has instituted a very generous
bonus plan for each employee.
8. No further union deductions of any kind will
be taken out of your earnings.
Please believe me when I tell you nothing, as far
as you are concerned, will change. Our attitude will
always be that we want good harmonious relation-
ships between all of us. We need this to survive in
this very difficult business.
This letter was signed by Brooks, and was also distribut-
ed in a Spanish version thereof.
This notice, G.C. Exh. 17, is also translated into Spanish therein.
Loya testified that when he received it the document was unsigned and
undated. However, after employees started "making a joke out it," its
being unsigned, subsequently brooks signed and dated a copy of the
notice which had been posted on the bulletin board Loya at first related
that he had taken the copy of the notice signed by Brooks off the bulletin
board and given it to the Union. He then testified that he had received it
instead from one of the employees, who had removed it from the bulletin
board
11. What ocurred thereafter
Loya testified that on 2 September 1983 along with
their regular paychecks the employees received an addi-
tional check in the amount of $46 which comprised the
Union's assessment amount of $27 and the union dues
amount of $19 that the Respondent had deducted from
their wages on 12 August 1983 and that it was now re-
turning to the employees, never having forwarded these
moneys to the Union. Loya stated that, when he re-
ceived these checks from Flores that payday, the fore-
man "just laughed and said, we got a bonus, or some-
thing. He was just joking around." Moreover, Loya testi-
fied that on 23 December 1983 his foreman, Ramiro
Flores, gave him the following notice addressed "To All
Parkview Employees":
As you were promised by this Company, Parkview
has put money aside for you based on your earnings
since August 1, 1983. As you were promised by this
Company, this money would be given to you before
Christmas in the form of a bonus. This bonus would
come to you without any of the money coming out
of your regular earnings. The time has now arrived
for the payment of the promised bonus and Park-
view is happy to enclose a check to you in the
amount of. . . to cover the period from August 1,
1983 through December 23, 1983.5°
12. The collective-bargaining agreement
As set forth hereinbefore, Valdez and Fierro both tes-
tified that the Respondent and the Union reached full
and final agreement on the terms and conditions of a
new collective-bargaining contract by the time the last
negotation meeting ended on 31 March 1983. The sub-
stance of their extensive testimony, given on direct and
cross-examination, was to the effect that the parties had
agreed on the "economic issues," negotiated several
other provisions of the agreement as to language and
content, and agreed to adopt, as is, various other provi-
sions of the old collective-bargaining agreement as appli-
cable to the new bargaining contract, except for a few
other provisions which were deleted or withdrawn. On
the other hand, Brooks maintained that mutual agree-
ment was never reached between the parties on many es-
sential provisions of the new bargaining contract, such as
the effective date of the health and welfare insurance
plan, the grievance and arbitration procedure, the terms
and language of the cost-of-living, 51 noncontract wages,
and pension provisions of the bargaining agreement.
Brooks' testimony thereon was also quite extensive.52
5° This notice, G.C. Exh 18, is also set forth in Spanish therein A
check accompanied the notice
Si The Respondent in its brief asserts. "Nor was the Company's re-
quest for a wage freeze on the cost of living provision completely re-
solved "
52 With regard to the above, reference will be made in the "Analysis
and Conclusions" section of this decision to various provisions of the col-
lective-bargaining agreement, discussed in the light of the specific testi-
mony of the witnesses given thereon, the credibility thereof, and the
other evidence in the record, in determining whether the parties herein
came to full agreement on the terms and conditions of a new bargaining
contract.
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Moreover, Valdez stated that, using Fierro's "working
copy" of the old bargaining agreement, with the inserts
of new contract language, "yellowed out" deleted provi-
sions or changes, etc. therein, he gave written instruc-
tions to the Union's secretary-typist regarding the prepa-
ration of the new contract. Valdez testified:
Well, we had a new typist, a new girl in the office
which was a temporary help, and she was very un-
familiar with typing contracts. So what I would do
is I would prepare a sheet for her to make it easier
for her showing her the changes in that agreement
which she should look for, and what should be de-
leted, and what should not be changed, or call me
when she needs special instructions.
Valdez added that he also used "a handwritten wage
page of classifications that was submitted by Fierro," in
preparing the new bargaining agreement.
Valdez continued that the copy of the 1983-1986 col-
lective-bargaining agreement delivered to the Respond-
ent on 15 August 1983 contained errors in the wage,
health and welfare, pension, and grievance and arbitra-
tion provisions thereof." Valdez related that these
errors were occasioned by the inexperience of the
Union's new typist, her having to type various bargain-
ing agreements with different employers almost at the
same time, and his failure to discover these errors when
he "proofread" the agreement before delivering it to the
Respondent. Valdez stated that he was unaware that the
new bargaining agreement contained any errors until
after the Union filed its charges at the Board "when I
was reviewing it with counsel." He recounted that, at a
preheating conference held by the Board at which repre-
sentatives of the Respondent and the Union appeared,
the Union notified the Respondent of the errors con-
tained in the new agreement and proposed to correct
them Valdez added that at no time prior thereto "had
anyone from the company notified [him] that there was
any errors in the collective bargaining agreement," nor
had the Respondent ever returned the agreement, signed,
to the Union.
At the hearing the parties stipulated:
[T]he document delivered to the company, G.C.-12,
(1983-1986 Collective bargaining agreement), did
not accurately reflect the . . . agreement between
the parties. . . in all terms and conditions.
53 These included: the agreement failed to "leave open" for renegoti-
ation the third year regarding health and welfare insurance, it erroneous-
ly included dental insurance in fringe benefit coverage although this was
not discussed or agreed to between the parties, it changed time require-
ments in the grievance and arbitration clause of the contract although the
parties had agreed to leave the item as it was in the old agreement, it
included a "liquidated damages" clause when the parties had agreed to
omit this from the agreement, and the wage provision language of the
agreement was considerably changed and does not reflect what was actu-
ally negotiated.
C. Analysis and Conclusions
1. Credibility
The resolution of some of the issues presented in this
case requires a determination of the credibility of the re-
spective witnesses herein. Moreover, after carefully con-
sidering the record evidence, I have based my findings
on my observation of the demeanor of the witnesses, the
weight of the respective evidence, established and admit-
ted facts, inherent probabilities, and reasonable inferences
which may be drawn from the record as a whole. 54 I
tend to credit the account of what occurred herein as
given by the General Counsel's witnesses, although I did
note some minor inconsistencies in the testimony of
Valdez and Fierro, and, in some respects, their testimony
was less detailed than that of Brooks, the Respondent's
sole witness. Their testimony was given in a forthright
manner, was generally corroborative and consistent with
each other's, and, most importantly, apparently consist-
ent with the other evidence in the record and therefore
most believable. Although I do not discredit all of the
testimony of the Respondent's witness, Brooks, 55 and
admit that I was not unimpressed by his demeanor as a
witness, I find that his testimony at times was guarded,
defensive, and unsatisfactory, especially on cross-exami-
nation, and contained inconsistencies with regard to
other uncontradicted evidence in the record, as will be
more particularly set forth hereinafter. Furthermore, of
compelling significance in discrediting Brooks' testimo-
ny, when it conflicts with the testimony of the General
Counsel's witnesses, was the Respondent's failure to call
its vice president, David Thomas, as a witness to rebut
any of the testimony given herein or to corroborate
Brooks' testimony, although Thomas had been present at
most of the relevant events which occurred, was admin-
istratively most active in these events, must have had
first-hand and perhaps crucial knowledge thereof, and
might well have been able to specifically detail and/or
clarify what had occurred."
2. The Respondent's refusal to sign an alleged
agreed-upon collective-bargaining agreement
The General Counsel and the Union allege that, since
about 15 August 1983, the Respondent has failed and re-
fused to execute a written collective-bargaining contract
embodying all the terms and conditions of employment
agreed upon between the Respondent and the Union on
54 Gold Standard Enterprises, 234 NLRB 618 (1978); V & W Castings,
231 NLRB 912 (1977); Northridge Knitting Mills, 223 NLRB 230 (1976).
55 It is not unusual that, based on the evidence in the record, the testi-
mony of a witness may be credited in part, while other segments thereof
are discounted or disbelieved. Jefferson National Bank, 240 NLRB 1057
(1979).
56 From the failure of a party to produce material witnesses or rele-
vant evidence obviously within its control without satisfactory explana-
tion, the trier of the facts may draw an inference that such testimony or
evidence would be unfavorable to that party. 7-Eleven Food Store, 257
NLRB 108 (1981), Publishers Printing Co, 233 NLRB 1070 (1977); Martin
Luther King, Sr., Nursing Center, 231 NLRB 15 (1977), Broadmoor
Lumber Co., 227 NLRB 1123 (1977) For much the same reasoning, I
note the failure of the Respondent to call Plant Manager Larry Dornar-
acki as a witness to support its allegations herein
PARKVIEW FURNITURE MFG. CO 963
31 March 1983, although requested to do so by the
Union, thereby violating Section 8(a)(5) and (1) of the
Act. The Respondent denies that it violated the Act,
contending that the parties never reached full and com-
plete agreement on the terms of a bargaining contract. It
is well established that an essential prerequisite to the
formation of a contract is agreement between the parties
regarding the terms of the contract. 57 The evidence
herein establishes that the Respondent and the Union did
reach full and complete agreement on the terms of a col-
lective-bargaining agreement by the end of their last ne-
gotiation meeting on 31 March 1983.
In support of its contention that the parties never
reached mutual agreement on all of the terms of the "al-
leged contract which the Union is seeking to enforce,"
the Respondent asserts:
At the first session on February 28, the parties
agreed on the ground rules for the negotiations.
These rules were the same as those followed in the
1979 negotiations. Once tentative agreement was
reached on a certain area of the contract, the lan-
guage would then be drafted and typed by one of
the parties and inserted into the old (1979-1982)
contract at the proper place. The parties would
then review this typed draft at a later meeting. No
agreement would be achieved until both parties had
initialled, or '!signed off' on each negotiated contract
term. It was further agreed, and testified to by
Union representative Fierro, that until the entire
contract had been signed off there would be no
final agreement (Tr. 507). While the parties did sign
off on a few minor contract terms, agreement was
never reached on the majority of the contract nor
was this signing off process completed. The ground
rules established by the parties clearly manifested
their intention that the agreement should be formal-
ized and that they would not be bound unless and
until a completed formal document was executed
(emphasis added).
The Respondent continues that because these "ground
rules" remained in full force and effect throughout the
negotiations between the parties, as testified to by
Brooks, the fact that various provisions of the Union's
"working copy" of the old collective-bargaining agree-
ment were not initialed and "signed off" evidences and
supports the Respondent's contentions that no agreement
was reached thereon.58
However, the testimony of both Valdez and Fierro is
to the contrary and there is other evidence in the record
that contradicts the Respondent's above contentions.
Valdez testified that, although "some grounds rules" had
been promulgated by the parties at the first bargaining
57 H. K Porter Co. v NLRB, 397 U S. 99, 102 (1970)
68 The Union's "working copy" of the 1979-1982 collective-bargaimng
agreement was used by the parties during the negotiations as the primary
document upon which to record any changes in contract language, any
withdrawals or deletions, and any additions to the items set forth therein.
This agreement is also referred to herein as the old collective-bargaining
agreement or contract The Union's wntten contract proposals to the Re-
spondent were also used in this regard, but as an adjunct to the old bar-
gaining agreement.
session on 28 February 1983, Brooks sought to informa-
lize the negotiations, i.e., to make them friendly and
"homey." According to Valdez, "[lit was a very infor-
mal negotiations, a lot different than we've ever negotiat-
ed before." 58 Valdez stated that Brooks had declared as
unnecessary and too time consuming the practice of
"signing off' (initialing) each item in the bargaining con-
tract agreed upon. Valdez related that Brooks made it
clear that the Respondent was mostly concerned with
the economic issues of the contract, such as wages,
health and welfare, and pension insurance cost, rather
than the noneconomic ones and the language thereof be-
cause the Respondent was satisfied with and could
accept as is many of the existing provisions in the old
bargaining agreement in their present form. Fierro also
testified that the procedure requiring the "signing off' of
provisions of the bargaining contract agreed upon by the
parties was soon "relaxed" or discontinued after the first
or second negotiation meeting.
Further, although Brooks protested that the "sign off'
system was never relaxed or discontinued, his own testi-
mony shows that with respect to the tardiness and absen-
teeism provisions of the bargaining agreement, which
were also once part of the Respondent's contract coun-
terproposals to the Union, there was no required initial-
ing or "sign off." Moreover, Brooks' admitted statement
to the Union's negotiators that "his word was his bond,
whatever we agreed upon would be his bond," made
particularly and significantly at the first bargaining ses-
sion and in the context of the negotiations procedural
considerations, supports the testimony of Valdez and
Fierro and indicates that Brooks was mistaken about the
"ground rules" being relaxed.
Brooks testified as to several bargaining contract items
which the Respondent alleges were not resolved or
agreed upon. Brooks related that the Respondent refused
to accept a "liquidated damages" clause in the pension
provision of the new agreement as proposed by the
Union and, therefore, the parties failed to agree on pen-
site. However, Valdez credibly testified that the Union
finally agreed to withdraw its proposed penalty provi-
sions on late pension contributions. Brooks asserted that
there also was no agreement on grievance and arbitra-
tion, layoff, seniority, and noncontract wage provisions
of the bargaining agreement. Again Valdez testified that
the Union agreed to withdraw its proposed changes on
these items and leave the provisions as they were set
forth in the prior contract consistent with the Respond-
ent's demands." The Respondent contends that the cost-
of-living increase issue was not resolved. Yet, as part of
the ratification vote informational notice, which the Re-
spondent helped prepare and distribute to its employees,
the cost-of-living increase is set forth therein as resolved,
59 The Respondent's prior contract negotiations with the Union had
been conducted through an employers association, with legal counsel rep-
resenting both sides. Brooks admitted that the Respondent's current nego-
tiations with the Union individually were less formal than if the parties
had been also represented at the bargammg sessions by attorneys.
60 Certainly the Respondent has no grounds to complam about the
lack of agreement on any bargaining contract item when the Union ad-
mittedly acquieces to the Respondent's position regarding the provision
and accedes to its demands thereon.
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
presumably just as Valdez had testified it was agreed
upon. 61 Brooks also maintained that there was never full
agreement on the health and welfare insurance provision
because the effective date of the plan, among other
things, was not agreed to by the parties. However, aside
from Brooks' own testimony that the Respondent be-
lieved the parties had reached agreement on the insur-
ance plan, Valdez, Fierro, Franklin, and Goldner all tes-
tified that the Respondent had agreed to accept the
Umon's insurance plan as part of the agreement on an
"economic package" arrived at on 31 March 1983.62
Furthermore, at the conclusion of the last negotiation
meeting on 31 March 1983 the parties shook hands and
the Union's bargaining representatives remarked that the
Union felt that it could "sell" the new bargaining agree-
ment to the Respondent's employees." The Respondent
requested no date for further negotiations, nor did the
Union, presumably as had been done at the end of each
of the prior bargaining sessions when agreement on a
bargaining contract had not as yet been reached. The
parties also agreed to present the new contract for ratifi-
cation on 4 April 1983, which Brooks admittedly felt
was an important part of the making of a complete
agreement. Significantly, Fierro testified uncontradicted-
ly that he addressed the employees on 4 April 1983, in
the presence of the Respondent's representatives, and ex-
plained the contents of the new collective-bargaining
agreement almost in its entirety. 64 Moreover, between 4
April 1983 and early August 1983, there was no attempt
made by either party to resume negotiations."
61 The Umon agreed to the Respondent's maintaining cost-of-living in-
creases at the then current level throughout the term of the new bargain-
mg contract.
62 Moreover, although Valdez did testify that he or Fierro might have
told the Respondent that they would try to get some delay on the health
and welfare insurance plan premiums due to commence on 1 June 1983,
the starting date itself had been agreed to by the parties It Is obvious
from the evidence herein, despite Brooks denial thereof, that agreement
on the date was part Of the give and take bargaining between the patties
which resulted in a freeze on wage increases until 1 December 1983, a
freeze on cost-of-living increases at current levels during the life of the
contract, and acceptance of the Union's health and welfare plan by the
Respondent for the first 2 years of the new agreement with an option in
the third year to seek its own insurance coverage for employees with an-
other carrier so long as the same level of benefit coverage was main-
tained.
63 The Respondent in its bnef states
Although the parties shook hands at the end of the March 31 meet-
ing, this gesture did not signify that a final agreement had been
reached, as the Union would postulate. Rather, handshaking was a
natural part of most of the meetings.
However, there is no evidence in the record which shows that this was
done at the conclusion of the prior bargaining sessions as a "natural part"
thereof. Moreover, note the similarity between the instant case and that
of Shawn's Launch Service, 261 NLRB 836 (1982)
The record leaves no doubt that, by April 22, the negotiators had
resolved all differences between them. At the meeting on that date
. . the matters remaining in issue were disposed of, the parties
shook hands, and, in words acceptable to Counselman at the hearing,
he "felt [he] had an agreement." Union Representative Avery said
that he would prepare the contract and submit it to Counselman
64 Thomas and Domaracki, who were present at the employees' ratifi-
cation vote, did not testify herein. See fn 56.
65 Although Brooks testified that he had repeatedly attempted to set
up further negotiation meetings with the Union during this penod, this
does not ring true. Aside from Valdez' denial thereof, it would seem in-
credible that the Union would do nothing when apprised by Brooks that
full agreement had not been reached on a bargaining contract, when it
beheved that an agreement had been negotiated in full and ratified Also,
The Respondent appears to argue that the length of
time expended in the 1983 negotiations supports its con-
tention that the parties never reached full agreement on
the terms of the new collective-bargaining agreement.
The Respondent asserts in its brief:
During late February and March, 1983, a few rela-
tively short negotiation meetings were held between
the parties just prior to the expiration of the previ-
ous collective bargaining agreement. Both parties
had participated in contract negotiations in the past
and were well aware of the substantial amount of
time and effort required in order to arrive at a mu-
tually satisfactory agreement. For example, the par-
ties met for at least eight hours a day on thirty-nine
different occasions over a three to four month
period during the 1979 negotiations (Tr. 183-184).
The 1983 negotiations, by contrast, consisted of six
meetings most of which lasted only two to four
hours.
However, the 1979 negotiations involved an employer
association unlike the 1983 negotiations involving only
the Respondent as employer, and association negotiations
are certainly of a different character and nature. More-
over, the parameters of the 1983 negotiations, defined by
the breadth of proposals, determined the amount of bar-
gaining necessarily required. The negotiations out of
which the collective-bargaining agreement arose dealt
primarily with concession bargaining from the prior col-
lective-bargaining agreement, with "economic issues" ad-
mittedly of paramount importance in the eyes of the par-
ties. Thus the negotiated bargaining agreement consisted
of a wage and fringe benefit "package," several enumer-
ated provisions with language changes, a few entirely de-
leted or withdrawn provisions, plus a substantial number
of unchanged provisions from the prior bargaining con-
tract. 6 6
The Respondent also argues that its management had a
right to read, review, and sign the new bargaining con-
tract and that, until this was done, no agreement had
been consummated. In NLRB v. Donkin's Inn, 532 F.2d
138, 141 (9th Cir. 1976), the court stated:
In the context of labor disputes, and particularly
section 8(a)(5) violations, however, the technical
question of whether a contract was accepted in the
traditional sense is perhaps less vital than it other-
wise would be. Rather, a more crucial inquiry is
whether the two sides have reached an "agree-
ment," even though that "agreement" might fall
short of the technical requirements of an accepted
contract. 6 7
Fierro testified without contradiction that he visited the Respondent's fa-
cility at the least two or three tunes during this period, and that Thomas
had only asked him for copies of the new bargaining contract which the
Union was preparing and was late in delivering, and had not requested
any renewal of bargaining or additional negotiation meetings.
66 See the testimony of Valdez, Fierro, and Brooks Also see "Appen-
dix 'A" of the Union's brief
67 Shawn's Launch Service, supra
PARKVIEW FURNITURE MFG. CO 965
Moreover, as the Board stated in Penasquitos Gardens,
Inc., 236 NLRB 994, 995 (1978), enfd. 603 F.2d 225 (9th
Cir. 1979):
[Moth the Board and the courts have made clear
that the Board is not strictly bound by the technical
rules of contract law when it decides whether, in
the circumstances, the employer and the union have
arrived at an agreement which must be reduced to
writing and executed by the parties.68
The Respondent contends in its brief:
Moreover, considering the long-standing practice of
having collective bargaining agreements signed by
the parties, and the parties' own admission that no
agreement would be deemed complete until final
agreement had been reached on all contract terms,
there can be no finding that any contract existed
until such time as these conditions were fulfilled.
Genesco, Inc. v. Joint Council 13, United Shoe Work-
ers of America, 341 F.2d 482 (2nd Cir. 1965).
However, as the United States Court of Appeals, Second
Circuit stated in Genesco, supra at 486:
That the parties plan later to sign an agreement
does not preclude prior formation of the contract
by signifying assent to an unsigned paper; the issue
is one of intention. . . . Considering the importance
attached to signed contracts in the field of collec-
tive bargaining . . . the longstanding practice here
of having contracts signed by the individual em-
ployers, the fact that the instant contracts were to
be an extension and modification of contracts so
signed, and the doubtful enforceability of a two-
year oral contract, we think no one really believed
that the parties would be bound until the contracts
were fully executed and delivered. . . . Once this is
decided, it is clear that delivery to Seligman of the
forms signed by the Union officers on condition
that the contracts 'With Genesco should not be con-
summated until resolution of the Act II issue, did
not permit formation of a contract unless the condi-
tion was met.
Thus, the Genesco case is distinguishable. If the formation
of a contract was conditioned on anything in the instant
case, it was that "no agreement would be deemed com-
plete until final agreement had been reached on all con-
tract terms." As found herein, agreement was actually
reached by the parties on all the contract terms of the
new collective-bargaining agreement.
The Respondent further alleges in its brief:
The fact that the Union did not deliver the alleged
agreement until a petition to cease Union represen-
tation was circulated, almost five months after the
agreement was supposedly reached, and that the
parties did not conform their conduct to the terms
68 Ellis 'Mae Co, 229 NLRB 1296 (1977); Summer Home for the Aged,
226 NLRB 976 (1976), NLRB v. Donkin's Inn, supra, Lozano Enterprises
v. NLRB, 327 F.2d 814 (9th Cir. 1964).
of the alleged agreement is evidence that the parties
did not intend to reach a contract on March 31. Ca-
porale v. Mar Les, Inc., 656 F.2d 242 (7th Cir. 1981).
However, again the facts in the instant case differ sub-
stantially from those present in Caporale. In Caporale v.
Mar Les, Inc., supra at 244-245, the United States Court
of Appeals for the Seventh Circuit stated:
The union never demanded that defendant post
bonds required under the collective bargaining
agreement. . . Mar Les employed casual laborers
with no union affiliation and no complaint was ever
made by the union. A shop steward was never ap-
pointed, nor did any representative of the union
even discuss defendant's obligations under the col-
lective bargaining agreement. . . . It is long settled
law that mutual assent is the first requisite to forma-
tion of a contract. . . . The Court listed several fac-
tors upon which he relied in reaching his conclu-
sion: the plaintiffs inability to establish the date the
alleged contract came into being; the failure to de-
liver to defendant the documents incorporated by
reference in the memoranda; and the failure to con-
form their conduct to terms of the collective bar-
gaining agreement. . . . In the instant case the
terms of the agreement were not spelled out, either
verbally or in writing, at the time the agreements
were signed. No collective bargaining agreement or
trust agreement was ever delivered to the defend-
ant. . . . There was never mutual assent to the
terms sought by the plaintiffs.
Herein, the parties agreed to the terms of the new bar-
gaining agreement, the terms thereof were clear, the
Union requested that the Respondent commence pay-
ment under the health and welfare insurance plan, and
the Union explained with some reasonability its delay in
forwarding a copy of the bargaining agreement to the
Respondent.
The Respondent continues in its brief:
Nor did the parties ever sign off on most of the
contract terms, thus signifying the absence of an
agreement. The key union witness admitted that the
ground rules established the procedure for signing
off, which was required to indicate tentative agree-
ment. The policy behind collective bargaining re-
quires that the parties to the bargaining process
reach an agreement on the terms of the contract.
The contract must also be sufficiently explicit so
that the obligations of the parties are clearly de-
fined. Soar v. NFL Players' Assn., 550 F.2d 1287 (1st
Cir. 1977).
However, the United States Court of Appeals, First Cir-
cuit stated in Soar v. NFL Players' Assn., supra at 1289-
1290:
It is fundamental that for a contract to be en-
forceable it must be of sufficient explicitness so that
a court can perceive what are the respective obliga-
tions of the parties. . . . The court listed the follow-
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing as examples of questions left unanswered and
unanswerable by the terms of the purported con-
tract . . . . The purported oral contract provides
no answer to these questions. It is clear that any
agreement which leaves unanswered such critical
questions cannot by any reasonable stretch of the
imagination be said to represent a real meeting of
the minds. While an enforceable contract might be
found in some circumstances if one or more such
questions were left unanswered . . . the accumula-
tion in the instant case of so many unanswered
questions is convincing evidence that there never
was a consensus ad idem between the parties.
As previously found herein, the procedure for "signing
off" was relaxed by the parties and I therefore disagree
with the Respondent's conclusion that the fact that
"most of the contract terms" were not "signed off" signi-
fies the absence of an agreement. Moreover, the Soar
case is distinguishable from the instant case in that the
new collective-bargaining agreement negotiated herein is
sufficiently specific in all its terms and leaves no "critical
questions" unanswered or unanswerable.
From all of the above, I fmd and conclude that the
Respondent and the Union had resolved all differences
between themselves at the last bargaining meeting on 31
March 1983, and had reached full agreement on the
terms and conditions of a new collective-bargaining con-
tract. 6 9
It is well settled law that, when an employer and a
union have reached agreement as to the terms and condi-
tions of employment covering the represented employ-
ees, either party is required by law, on request of the
other party, to sign a written collective-bargaining agree-
ment embodying such understanding. 7 ° At the hearing
the parties herein stipulated, "[T]he document delivered
to the company, GC-12, did not accurately reflect the
agreement . . . that we assert is the agreement between
the parties." The General Counsel's brief alleges:
Certainly, comparing the written contract to the
Union's characterization of what the agreement be-
tween the parties was, one can immediately discern
the disparities between the two. The contract is
filled with typographical errors and inaccuracies.
. . . The Union admits that the contract is inaccu-
rate and has offered an explanation." However, the
Union witnesses testified that all provisions of the
contract were resolved by March 31 thus, even
though the written embodiment of the agreement
itself is not accurate, the fact that an agreement was
reached and the parties are bound by it, has not
changed . . . The Union in the instant case, had
voluntarily offered to correct the errors in the con-
69 Timber Products Co, 277 NLRB 769 (1985), Shawn's. Launch Service,
supra; Monument Printing Co., 231 NLRB 1215 (1977).
7° H. J. Heinz Co. V. NLRB, 311 U S. 514 (1941); Worrell Newspapers,
232 NLRB 402 (1977), Monument Printing Co., supra; Adams Potato Chips
v. NLRB, 430 F.2d 90 (6th Or. 1970)
tract. However, the Respondent has not afforded
the Union an opportunity to do so.
10 Valdez explained that he and Fierro gave their temporary
secretary a compilation of their notes which were "cut and pasted"
to the old contract. He showed the secretary the changes that
were to be made and instructed her to call him if she had any
problems. During this time, the new secretary was typing several
agreements. However, the temporary secretary, inexperienced with
typing agreements of this nature, consequently, confused the old
and new agreements or several different agreements and typed an
maccurate contract. Because Thomas from Parkview had been
badgering Valdez to produce a contract, Valdez hastily proofread
the document and did not catch the errors 77
The Respondent contends in its brief: "Mlle document
which the Union contends Constitutes the alleged agree-
ment between the parties does not even conform to the
Union's version of what the contract should have con-
tained."'" The Respondent continues therein:
These discrepancies are so apparent that General
Counsel and the Union stipulated at the hearing that
the alleged contract does not accurately reflect an
agreement between the parties. Thus, it is undis-
puted that there is no accurate written reflection of
any agreement and that the Company never re-
ceived a document which contained any agreement.
This was because no agreement either verbal or
written, existed between the parties. The Union's at-
tempt to hastily slap together a makeshift document
purporting to be an agreement in order to thwart
the sentiments of the majority of the unit employees
as evidenced by the petition must fail.
As found by me hereinbefore, the Respondent and the
Union reached agreement on the terms and conditions of
a collective-bargaining agreement on 31 March 1983.
The Respondent was therefore legally obligated to sign a
written collective-bargaining contract embodying such
understanding or agreement on request by the Union to
do so." Although it is clear that the discrepancies con-
tained in the bargaining contract prepared and submitted
by the Union to the Respondent did not reflect the
agreement reached by the parties and that all the errors
were not relatively insignificant changes in wording, yet,
based on the record evidence herein, there can be no
71 The Union in its brief concurs therewith, stating:
Upholsterers' Local 15 does not contend that Parkview Funiture
should execute the agreement delivered in error. It is undisputed that
the agreement did not reflect the parties agreement. Review of Ray
Valdez' typist notes confirms that delivery of wrong agreement was
not made in bad faith. Rather it was an unfortunate error occasioned
by the rush to deliver and problems with the clerical staff. Rather
the obligation is to execute an agreement which consists of the Arti-
cles contained in Al Fierro's working copy which accurately reflects
the parties' agreement . Once there is a willingness to correct the
problem the obligation matures In the present case, the Company
failed to disclose the error until the time of the hearmg. Upon learn-
ing of the error, Ray Valdez offered to make the corrections without
hesitation
72 Valdez testified that the bargammg agreement delivered to the Re-
spondent on 15 August 1983 contained errors m the following provisions
therein: health and welfare, wage scales, pension, and grievance and arbi-
tration The General Counsel's brief adds thereto "cost of living, insur-
ance and noncontract wage practices."
72 See cases cited at Si 70.
PARKVIEW FURNITURE MFG. CO 967
question that they were merely inadvertent errors in
transcription by the Union and in no wise indicated that
the minds of the parties had not met in agreement. The
record shows, and I fmd, that these discrepancies result-
ed from clerical error on the part of the Union's inexpe-
rienced secretary who typed the contract and were the
result of typographical error or other inadvertence. Al-
though it is, of course, true that an employer is not obli-
gated to execute a contract which does not reflect the
agreement reached, the Board has held that when the
parties have reached full agreement on the terms and
conditions of a collective-bargaining contract yet the
written embodiment of the agreement contains inadvert-
ent errors, then the parties are bound by the agreement
should the party in error voluntarily offer to correct the
mistakes. 74 In the instant case, the Union, on learning of
the errors in the agreement delivered to the Respondent,
offered to make the corrections without hesitation. How-
ever, the Respondent has not afforded the Union an op-
portunity to do so.76
Besides the Respondent's contentions herein that no
agreement was reached by the parties on all the terms
and conditions of a collective-bargaining contract, which
I have discussed and discounted hereinbefore, the Re-
spondent bases its failure and refusal to afford the Union
an opportunity to present a corrected bargaining con-
tract which incorporates the terms and conditions of em-
ployment agreed upon and to execute the contract there-
after, on its "good faith doubt" as to the majority status
of the Union. The Respondent argues inferentially that
under such circumstances it was relieved of its duty and
obligation to execute a collective-bargaining agreement.
However, the legal obligation to sign and execute a con-
tract arises when the parties have reached full agreement
on the terms and conditions of employment to be set
forth therein. Actions and conduct on issues raised by an
employer regarding its good-faith doubt as to a union's
majority status after the parties have reached full agree-
ment are irrelevant. The critical inquiry surrounds the
Union's support at the time the parties reached agree-
ment and not when the parties formalize their under-
standing. The Respondent's reliance on events which
took place in August 1983 does not negate the obligation
to execate a bargaining contract the terms of which were
fully agreed upon on 31 March 1983 and ratified by its
employees on 4 April 1983.76
From all the above, I find and conclude that the Re-
spondent and the Union reached full and complete agree-
ment on the terms and conditions of a collective-bargain-
ing agreement on 31 March 1983 and that the Respond-
ent thereafter, by failing and refusing to afford the Union
the opportunity to submit a written bargaining contract
which 'encompassed such agreement and by failing and
74 Shawn's Launch Service, supra; Reppel Steel & Supply Co., 239
NLRB 358 (1978).
75 Both the General Counsel and the Union maintain that Fierro's
"working copy" of the old collective-bargaining agreement (Union's Exii.
"relleMs the parties' agreement m rough form" and forms the basis for
a correct contract which would be submitted by the Union to the Re-
spondent for execution
76 Utility Tree Service, 215 NLRB 806 (1974), enfd 539 F.2d 718 (9th
Cir. 1974
refusing to execute any such agreement, has failed to
meet its duty to bargain in good faith and has thereby
violated Section 8(a)(5) and (1) of the Act.
3. The withdrawal of recognition
The Board has long held that an employer is free to
withdraw recognition from an incumbent union if (1) the
union has actually lost majority support or (2) the em-
ployer has a reasonable doubt, based on objective consid-
erations, about the union's continued majority status.77
The Board's principles concerning an employer's burden
of rebutting an incumbent union's presumption of majori-
ty status are well settled. A certified union, on expiration
of the first year following certification, enjoys a rebutta-
ble presumption that its majority representative status
continues. An employer may rebut the presumption by
demonstrating either that the union in fact no longer en-
joyed majority status or that its refusal to bargain or to
recognize the union as the collective-bargaining repre-
sentative of its employees in an appropriate unit is predi-
cated on a good-faith, reasonably grounded doubt of the
union's majority status. Further, to sustain the second of
these defenses, the employer must show that its asserted
doubt is based on objective considerations and that it
was not advanced for the purpose of gaining time in
which to undermine the union." In sum, any doubt as to
the continuing majority status must rest on a reasonable
basis and may not depend solely on unfounded specula-
tion or a subjective state of mind."
Moreover, as the Board stated in Cartwright Hardware
Co., 229 NLRB 781 (1977), enfd. as modified 600 F.2d
268 (10th Cir. 1979):
It is well settled that the existence of a prior con-
tract, lawful on its face, raises a dual presumption of
majority—a presumption that the union was the ma-
jority, representative at the time the contract was
executed, and a presumption that its majority con-
tinued at least through the life of the contract. 2 Fol-
lowing expiration of the contract, as here, the pre-
sumption continues and, though rebuttable, it is suf-
ficient to establish, prima facie, a continuing obliga-
tion on the part of the employer to bargain with the
union. 3 Following expiration of a collective-bar-
gaining agreement, therefore, an employer violates
Section 8(a)(5) and (1) by repudiating its collective-
bargaining relationship with the union unless it can
show reasonably based doubt as to the continuing
majority support for its employees' representative.4
2 Bartenders, Hotel, Motel and Restaurant Employers Bargaining
Association of Pocatello, Idaho and its Employer-Members, 213
NLRB 651, 652 (1974), citing Shamrock Dairy, Inc., et al., 119
NLRB 998 (1957), and 124 NLRB 494 (1959), enfd. 280 F.2d 665
(C.A.D C 1960), cert. denied 364 U S. 892 (1960)
3 Bartenders Association of Pocatello, supra; Barrington Plaza and
Tragniew, Inc., 185 NLRB 962, 963 (1970), enforcement denied on
77 American Mirror Co., 277 NLRB 1626 (1986); Terrell Machine Co.,
173 NLRB 1480 (1969), enfd 427 F.2d 1088 (4th Cir. 1970).
78 Ries Vending Services, 272 NLRB 1336 (1984); Bennington Iron
Works, 267 NLRB 1285 (1983); Terrell Machine Co., supra.
79 NLRB v Gulfmont Hotel Co., 362 F 2d 588 (5th Cir. 1966).
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other grounds sub nom. N L R.B. v. Tragmew, Inc. and Consolidated
Hotels of California, 470 F.2d 669 (C A 9, 1972), Terrell Machine
Company, 173 NLRB 1480, 1480-81 (1969), enfd. 427 F 2d 1088,
1090 (C A 4, 1970), cert denied 398 U.S. 929 (1970).
United States Gypsum Company, 221 NLRB 530, 537 (1975),
Salina Concrete Products; Inc , 218 NLRB 496, 498 (1975), Cantor
Bros., Inc., 203 NLRB 774, 778 (1973).85
The Respondent asserts that its refusal to continue to
recognize the Union as the bargaining representative of
its employees in an appropriate unit was based on its
"good faith doubt of the Union's majority status substan-
tiated by objective considerations, and therefore not vio-
lative of the Act." Both the General Counsel and the
Union contend that the Respondent's withdrawal of rec-
ognition was unlawful and violated Section 8(a)(5) and
(1) of the Act.
As the Board stated in Celanese Corp., 95 NLRB 664,
673 (1951):
By its very nature, the issue of whether an em-
ployer has questioned a union's majority in good
faith cannot be resolved by resort[ing] to any simple
formula. It can only be answered in the light of the
totality of all the circumstances involved in a par-
ticular case.
Thus, even when a particular factor considered alone
would not be sufficient to support a good-faith doubt of
a union's majority status, the "cumulative force of the
combination of factors" may be adequate to support such
a doubts ' In this regard, a respondent does not bear the
burden of proving that an actual numerical majority op-
poses the union. 82 However, it must demonstrate that it
had objective reasons for doubting the union's majority
status, 83 and such doubt must be raised in a context free
of unfair labor practices.84
The Respondent bases its "good faith doubt" of the
Union's majority status on an alleged "petition" signed
by 75 of the Respondent's approximately 146-150 em-
ployees containing the legend thereon, "We the employ-
ees of Parkview Furniture Company wish to dismember
ourselves from Local 15 of the International Upholster-
er's Union," viewed by Brooks briefly on 12 August
1983, and the events which preceded the "petition."
Sometime in July 1983, Valdez called Brooks to explain
why the Union had failed to forward the completed bar-
gaining contract to the Respondent for execution, where-
upon Brooks remarked that "somewhere down the line"
the Respondent would have to "take the Union on" as a
competitor furniture company had done in refusing to
reach agreement with the Union on a new collective-bar-
gaining contract because Brooks "would be damned if he
was going to be the biggest union shop in town in which
22 Also see H & H Pretzel Ca, 277 NLRB 1327 (1985), Stratford Visit-
ing Nurses Assn, 264 NLRB 1026 (1982).
25 Sofco, Inc. 268 NLRB 159 (1983), Golden State Habilitation Center v.
NLRB, 566 F 2d 77 (9th Cir 1977), denying enf 224 NLRB 1618 (1976),
National Cash Register Co. v. NLRB, 494 F 2d 189 (8th Cir 1974).
22 Laystrom Mfg. Co., 151 NLRB 1482 (1965), enf. denied on other
grounds 359 F 2d 799 (7th Cir. 1966), NLRB v. Randle-Eastern Ambu-
lance Service, 584 F.2d 720 (5th Cir. 1978)
25 Sofco, Inc., surpa; Laystrom Mfg. Co., supra
24 Guerdon Industries, 218 NLRB 658 (1975); Nu-Southern Dyeing, 179
NLRB 573 fn 1(1969), enfd in part 444 F.2d 11 (4th Cir. 1971).
he wouldn't be able to compete with non-union shops,
paying the exhorbitant benefits." 83 Thereafter, by letter
dated 2 August 1983, the Respondent's attorney notified
the Union that, in view of the expiration of the old bar-
gaining agreement, the Respondent would discontinue
forwarding moneys deducted for union dues from its em-
ployees' paychecks and instead deposit these amounts in
a "bank trust until this matter is resolved" and requested
a renewal of negotiation meetings for the purpose of
continued collective bargaining.
After receiving several complaints from employees re-
garding their dissatisfaction with the Union's assessment
to support striking employees at another furniture com-
pany, in early August 1983 Valdez and Fierro met with
approximately 20 employees of the Respondent's
"sewing and cutting department" located in the smaller
building at the Respondent's facility. These employees
voiced their anger and resentment at the Union's strike
assessment and, when Valdez asserted that there was
nothing he could do about it because a majority of the
Union's membership had voted for it, they threatened to
sign a petition to the Respondent protesting any deduc-
tions made from their wages for this purpose. Moreover,
when the employees refused to accept the assessment
and Valdez asked them, "Do you want a union or not?"
the employees responded, "No," and they thereafter
"booed" the union representatives, causing Valdez to an-
grily leave the meeting to "cool off." When Valdez re-
turned to the meeting shortly thereafter, the employees
who had created the disturbances came over to him and
apologized for their prior behavior. Valdez testified un-
contradictedly that disapproval of and demonstrations
against the Union's assessment were confined to these
employees in the "sewing and cutting department" be-
cause, on leaving this meeting, he had gone to the Re-
spondent's main building to speak to the employees there
and, "There I had no problem." The Union's assessment
was subsequently revoked effective "the payroll period
ending August 19, 1983."
This incident was brought to the Respondent's atten-
tion presumably on the same day that it occurred when,
on 4 April 1983, two of the Respondent's supervisors re-
ported to Brooks what had happened between Valdez,
Fierro, and "all the cutting and sewing employees." Ac-
cording to Brooks, they told him that "it was over the
assessments . . . . There was an awful lot of voices
being raised with arguing back and forth . . . . shout-
ing," and that Valdez had said, "[W]ell damn it, do you
want a union or don't you? And then everybody in
unison hollers out, no. And at that time, Mr. Valdez got
mad and stomped out of the meeting." Brooks testified
that thereafter, on 12 August 1983, two of the Respond-
ent's employees, Sal Mope, a supervisor in the "sewing
and cutting department," and Frank "something," a
cutter in that department, showed him an employee "pe-
tition," several sheets of yellow lined paper with the sig-
natures of 75 of the Respondent's employees thereon and
headed by the aforedescribed legend in English and
25 Although Brooks denied making this statement, for the reasons set
forth herembefore I credit Valdez' testimony thereon.
PARKVIEW FURNITURE MFG. CO

969
Spanish. After Brooks briefly reviewed the "petition,"
counted the names thereon, and Frank refused to give it
to him, Brooks directed these two employees to return to
work. 88 Immediately thereafter, the Respondent called a
meeting of all its employees wherein Brooks told the em-
ployees that he had seen the petition and that the Re-
spondent "could not be involved in this sort of thing"
and directed the employees to "stop this nonsense and go
back to work."
However, Fernando Loya, whose testimony I credit,87
testified that Brooks never mentioned anything about a
"petition" to the employees at this meeting. According
to Loya, who was present as an employee at the meet-
ing, the Respondent had distributed employee paychecks
unusually early that day, at 8:30 in the morning, and the
employees then became aware that the sum of $46 had
been deducted from their wages for that week's pay
period, $19 for regular union dues, and $27 for the spe-
cial strike assessment. 88 The employees became under-
standably angry and upset about this and later that morn-
ing the Respondent called a meeting of all its employees
at the facility. Brooks addressed the meeting and told the
employees that he had heard that they were uspet about
the amount deducted from their wages. He stated that
the Respondent could do nothing about this: "[Brooks]
hands were tied until two and a half years when the con-
tract was up . . . [but] if we no longer want the union,
[we] could do something about the Union. We could
vote the union out." Loya related that he then accused
the Respondent of instigating this problem by deducting
the strike assessment in a lump sum form from employ-
ees' paychecks to rid itself of the Union by fomenting
employee hostility towards the Union.
Loya continued that approximately 1 week later, at an-
other meeting called by the Respondent with its employ-
ees, Brooks announced that the Respondent no longer
recognized the Union as the bargaining representative of
its employees and that the Company was bringing in an
insurance representative so that the employees could sign
up for health and welfare insurance coverage to become
effective at the end of August 1983. Loya added that he
advised the employees that they were already covered
by the Union's health and welfare insurance plan, where-
88 Significantly, the Respondent never produced this "petition" at the
hearing nor did it call Mope or Frank as witnesses herein.
87 Loya impressed me as a truthful and forthright witness whose testi-
mony was generally consistent with the uncontradicted evidence in the
record and with the testimony of the General Counsel's other witnesses.
Although I am not unmindful that Loya was the Union's shop steward at
the Respondent's facility during the relevant time period and had been
discharged by the Respondent subsequent to these events, he candidly ac-
knowledged that the discharge was deserved because he had "foolishly"
engaged in a fight at the Respondent's premises, activity which is cause
for dismissal under the Respondent's rules for employee conduct. More-
over, as appears constantly herein, the Respondent failed to call material
witnesses and/or produce relevant documenting evidence which would
either corroborate Brooks' testimony or contradict that given by the
General Counsel's witnesses It should be noted that Thomas and Domar-
acki were present along with Brooks at this meeting. See fn. 56 herein.
8.0 This was contrary to written instructions sent by the Union to the
Respondent's payroll department regarding the payment of assessment ar-
rears. Although Brooks denied that the Respondent had deducted the ar-
rears in a lump sum form, the Respondent never produced any payroll
records, obviously within its possession, to substantiate Brooks' denial
thereof or to contradict Loya's testimony. See fn. 56 herein
upon Brooks requested that he and Loya maintain a
"neutral" stance and allow the attorneys for the Re-
spondent and the Union to resolve their differences.
Based on the evidence in this case as a whole, I find
and conclude that the Respondent has failed to rebut the
presumption of the Union's majority status. Nor do I find
that there is sufficient objective evidence in the record to
support the Respondent's assertion of a good-faith, rea-
sonably grounded doubt as to the Union's continued ma-
jority status. Furthermore, before discussing the reasons
for my above findings and conclusions, I note that
having found in this case that fmal agreement on the sub-
stantive terms of the collective-bargaining contract was
reached, regardless of the status of any written agree-
ment, the Respondent was not free to refuse to bargain
even if it then had lawful grounds for believing that the
Union had subsequently lost its majority status.89
The Respondent relies on "the anti-union sentiments of
the employees as expressed at the meeting with Union
representatives." The Respondent asserts in its brief:
In the instant case, the uncontradicted evidence
showing the employees' extreme dissatisfaction with
the Union and their hostility toward Union repre-
sentation, created by the Union's own actions in as-
sessing strike deductions, is in itself sufficient objec-
tive grounds for the Company's good faith doubt of
the Union's majority.
Although it is true that the Board has held that expres-
sions of antiunion sentiment can constitute sufficient ob-
jective evidence to support a good-faith and reasonably
grounded doubt of a union's continued majority status,9°
the Board has also held that such statements must
convey a clear intention by the employees not to be rep-
resented by the union.91
In this case, the evidence clearly shows that the
Union's strike assessment engendered anger and resent-
ment among some of the Respondent's employees. How-
ever, the record also shows by the credited testimony
herein that this dissatisfaction was neither concurred in
nor voiced by a majority of the Respondent's employees
in the appropriate unit. According to the uncontroverted
testimony of Valdez, only 20 employees were involved
in the meeting with the Union's representatives. More-
over, even though it may be assumed that all these em-
ployees had indicated a "No" response to Valdez' query
as to whether they wanted a union, it is not unreasonable
to infer from the circumstances surrounding this meeting
that their answers were given in the heat of anger and in
the midst of vociferous objection to the assessment
during their discussion with Valdez. Until this assessment
was voted and imposed, there is no evidence in the
record that employees were dissatisfied with the Union
as their collective-bargaining representative. In fact, the
evidence herein is to the contrary. Furthermore, Valdez
89 United States Gypsum Cc, 259 NLRB 1105 (1982); North Bros Ford,
220 NLRB 1021 (1975); Utility Tree Service, 215 NLRB 806 (1974), affd.
218 NLRB 784 (1975).
98 Sofco, Inc., supra.
91 Gregory's Inc., 242 NLRB 644 (1979)
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
told the employees that he would seek rescission of the
strike assessment as soon as possible because of their ve-
hement dissatisfaction with it, and, after tempers had
cooled between the employees and Valdez, those em-
ployees who had created a disturbance at the meeting
apologized to Valdez for their actions. 92 Additionally,
until the Respondent withheld the Union's strike assess-
ment from its employees' paychecks on 12 August 1983,
there was no evidence in the record that the employees
sought to rid themselves of the Union or had made any
additional antiunion statements to that effect after the
meeting on the assessment with the Union's representa-
tives. It may well be argued that, under the circum-
stances in this case, such antiunion sentiments as ex-
pressed herein constituted employee complaints and
unrest and did not constitute "objective considerations"
on which the Respondent can rely."
Moreover, the Respondent places particular reliance
on an alleged employee "petition" as evidence of a loss
of employee support for the Union. However, the Re-
spondent failed to produce the petition at the hearing,"
and it never called as a witness Frank, the employee
who had the "petition" in his possession, or Sal Mope,
the supervisor who had accompanied the employee to
Brooks' office when Brooks was allegedly shown the
document, nor were these omissions adequately ex-
plained." Therefore, as concerns the employees' "peti-
tion," the only evidence thereof in the record is Brooks'
own testimony." This is insufficient evidence for a rea-
sonably based good-faith doubt that the Union retained
majority status." However, even assuming the existence
of the "petition" without its production at the hearing,
there is insufficient evidence in the record to show un-
equivocally that a majority of the unit employees signed
92 The Respondent failed to call as witnesses William Seavers or
Andrew Wallace, the two supervisors who reported what had happened
at this meeting to Brooks, regarding the angry exchange of words and
actions between the employees and the Union's representatives. Unlike
the Sofco case, cited by the Respondent, wherein a plant manager testi-
fied as to many antiunion sentiments expressed by employees directly to
him, Brooks' testimony consisted of what he was told by two supervisors
who had overheard employees make such statements at that one meeting
and obviously not the full account of what had occurred. See In 56
herein.
93 Hermitage, Inc., 239 NLRB 216 (1978).
94 Consumat Systems, 273 NLRB 410 (1984)
95 Under the circumstances, I draw the inference that the testimony of
these employees would have been unfavorable to the Respondent and
would not have supported Brooks' testimony regarding the petition.
Tasman Sea, Inc., 247 NLRB 18 (1980), and cases cited therein.
96 Although Valdez testified that at the meeting with employees on 4
August 1983 the "sewing and cutting department" employees had threat-
ened to petition the Respondent not to deduct the strike assessment from
their weekly pay, and Fierro testified that he had heard a rumor, that a
petition was circulating to stop the assessment, they never saw an actual
employee petition, and this lends insufficient support to Brooks' testimo-
ny thereon
97 The Board has held that a petition signed by a majority of employ-
ees in an appropriate unit wherein they express their desire no longer to
be represented by a union may, in the absence of unfair labor practices
on the part of the employer, support a good-faith withdrawal of the em-
ployer's recognition of the union as the bargaining representative of its
employees. Pipe Line Development Co., 272 NLRB 48 (1984); Hemet Cast-
ing Co., 260 NLRB 437 (1982); Carolina American Textiles, 219 NLRB
457 (1975). Here, there was insufficient evidence to support the existence
of such an employee "petition"
it and the signatures were valid, 98 that the "petition"
was originated by the employees themselves without the
assistance of management or suprvisors,9 9 and that it un-
equivocally expressed the employees' desire and intent
not to be represented by the Union rather than employee
opposition to the Union's strike assessment.'°°
Additionally, as the United States Court of Appeals
for the Ninth Circuit, stated in Clear Pine Mouldings v.
NLRB, 632 F.2d 721, 730 (9th Cir. 1980):
Reasonable doubt as to the majority status must
only be asserted in good faith and may not be raised
in the context of an employer's activities aimed at
causing disaffection from the union.'"
In applying the above to the instant case, consider that
in a telephone conversation between Brooks and Valdez
in July 1983 Brooks told Valdez that "somewhere down
the line" the Respondent would have to "take the Union
on" because it could not afford to be a union shop
paying "exhorbitant benefits" and compete against non-
union shops. This occurred some 3 or 4 months after the
Respondent and the Union had reached full agreement
on the terms and conditions of a collective-bargaining
contract on 31 March 1983, and the Union had failed as
yet to deliver the completed typewritten agreement to
the Respondent although requested frequently to do so.
Moreover, Brooks had made clear to the Union during
the negotiations that many companies had gone out of
business in the fiercely competitive furniture manufactur-
ing industry and, therefore, the money issues were of
paramount importance to the Respondent for it to sur-
vive. In this somewhat charged atmosphere, the stage
was set for what occurred thereafter in the context of
the Respondent's surreptitious desire to rid itself of the
Union.
On 2 August 1983 the Respondent notified the Union
that it was requesting resumption of negotiations, in
effect thereby denying that full agreement had been
reached between the parties on the terms and conditions
of the new bargaining contract. On 4 August 1983,
Valdez and Fierro met with some of the Respondent's
"sewing and cutting department" employees in an angry
and stormy meeting in which the employees' dissatisfac-
tion with the Union's strike assessment, and unhappiness
with the Union because of it, was made demonstrably
clear. Brooks became aware of this that same morning
when what occurred at the meeting was brought to his
attention by two of the Respondent's supervisory em-
98 Brooks testified that he only saw the "petition" briefly and, al-
though he counted 75 signatures he admitted that he could not recognize
all the names as being those of the Respondent's employees. Again, the
failure of the Respondent to call Frank or Sal Mope as a witness serious-
ly weakens its contentions in this case. See fn. 95.
99 Mope, a supervisor, accompanied the employee with the petition,
Frank, when it was shown to Brooks Although Brooks testified that
Mope had nothing to do with the preparation and circulation of the peti-
tion, the Respondent's failure to call Mope or Frank as a witness, creates
some suspicion or uncertainty as to this. See fn 95. Also see Rogers of
Santa Clara, 261 NLRB 409 (1982).
1 °° Sahara-Tahoe Hotel, 241 NLRB 106 (1979), enfd. 648 F 2d 553 (9th
Cir 1980)
101 NLRB v. Mar-Len Cabinets, 659 F 2d 995,(1981).
PARKVIEW FURNITURE MFG. CO 971
ployees. 1 ° 2 Brooks met with the employees later that
morning and advised the employees that the Respondent
could not get involved in this matter.
Thereafter, on 12 August 1983, the Respondent de-
ducted a lump sum amount from the employees' wages
for the Union's strike assessment arrears. This amount
plus the union dues deduction normally withheld added
up to a substantial diminution of the employees' take-
home pay for that pay period and foreseeably caused
substantial anger, dissatisfaction, and consternation
among the workers, potentially dangerous and explosive.
Significantly, the lump sum strike assessment was made
contrary to written instructions from the Union to the
Respondent's payroll department, in which the Union
had sought lesser deductions from employees' wages
over more than one pay period to lessen the assessment
arrears impact and the burden and hardship thereof on
the employees. Also significantly, the paychecks reflect-
ing the substantial decrease in pay due to the amount
withheld were issued to the employees much earlier than
usual that day, even if Brooks is believed in his assertion
that he had scheduled 12 August 1983 as a half workday.
Later that morning, being apprised of the employees'
anger and dissatisfaction, the Respondent called a meet-
ing of all its employees. At this meeting Brooks told the
employees that the Respondent could do nothing about
the deductions and that this was the Union's responsibil-
ity. He told them that, if they no longer wanted the
Union, "[they] could vote the Union out."
Moreover, Brooks testified that he had seen an em-
ployees' "petition" shortly before the meeting, in which
a majority of the Respondent's unit employees had ex-
pressed their desire to "dismember" themselves from the
Union. Assuming the existence of the "petition," it is not
unreasonable to assume that the Respondent's lump sum
deduction from employee paychecks that morning could
have been the catalyst which brought the "petition" into
existence and had precipitated employee action in this re-
spect.'" This payroll week was the first in which the
Respondent had actually made any deduction for the
strike assessment, no employee had complained about the
normal dues deduction withheld from their paychecks
previously, nor had the "petition" surfaced until the Re-
spondent withheld the large lump sum strike assessment
arrears from the employees' wages, contrary to the
Union's instructions thereon.
From all the above, a strong inference arises that the
Respondent seized upon circumstances made possible by
1 °2 It is not unlikely that the Respondent knew about the Union's
strike assessment even before that date because the Union's notice thereof
to the employees was posted on the Respondent's facility bulletin board
in June 1983. Although it might also not be unreasonable to assume from
the evidence that the Respondent was also aware of some employee dis-
satisfaction with the strike assessment and therefore the Union itself
before 4 August 1983, on the theory that the Respondent's operations
constituted a "small plant," this might be considered as too conjectural.
Additionally, if Brooks was told all that transpired at the 4 August 1983
meeting between the employees and Valdez and Therm, he would have
become also aware that these employees had threatened the union repre-
sentatives with a petition to the Respondent not to withhold any strike
assessment amounts from their wages
1°3 The Respondent failed to call as a witness Frank, the employee
who would have had knowledge as to this, or even Mope, who might
have been able to explain what had occurred See fn 56 herein
the Union's delay in completing and delivering to the
Respondent the new collective-bargaining contract and
the Union's imposition of a strike assessment on its mem-
bership, including the Respondent's employees, and made
disparaging statements against the Union and created ani-
mosity through its lump sum deduction of the Union's
strike assessment arrears to orchestrate and create height-
ened animosity, dissatisfaction, and hostility towards the
Union and discourage support for, and cause disaffection
from, the Union.104
From all the foregoing and the record as a whole, I
find and conclude that the Respondent has failed ade-
quately to demonstrate a reasonably based good-faith
doubt of the Union's majority status. Accordingly, as the
Respondent was not privileged to refuse to bargain with
or to withdraw recognition from the Union, its actions in
so doing constituted violations of Section 8(a)(5) and (1)
of the Act. 1 ° 5
4. Unilateral changes in terms and conditions of
employment
The amended consolidated complaint alleges that the
Respondent unilaterally made changes in employee
health insurance benefits and told its employees that it
was making such changes and that the Respondent
ceased making health and welfare and pension contribu-
tions to the trust funds as required by the collective-bar-
gaining agreement, all in violation of Section 8(aX1) and
(5) of the Act. The Respondent denies these allegations.
As stated by the Board in SAC Construction Co., 235
NLRB 1211, 1218 (1978):1"
The law is well established that unilateral
changes of "wages, hours and terms and conditions
of employment" by an employer obligated to bar-
gain with the representative of its employees in an
appropriate unit violates Section 8(a)(5) of the Act.
Master Slack and/or Master Trousers Corp. et al., 230
NLRB 1054 (1974). Benefits, such as payments into
health, welfare, and pension funds on behalf of em-
ployees, constitute an aspect of their wages and a
term and condition of employment which, along
with wage rates, survive the expiration of a collec-
tive-bargaining agreement and cannot be altered
without bargaining. Harold W. Hinson, d/b/a Hen
House Market No. 3, 175 NLRB 596 (1969), enfd.
428 F.2d 133 (C.A. 8, 1970).
Furthermore, it is well settled that on the expiration of
a collective-bargaining agreement the law imposes a con-
tinuing duty on both parties to attempt in good faith to
104 The Respondent's undaterial action regarding the assessment and
its subsequent remarks against union representation serve no purpose but
to denigrate the union in the eyes of its employees and are violative of
Sec. 8(a)(1) of the Act. Lehigh Lumber Co., 230 NLRB 1122 (1977);
Daisy's Originals, Inc. 187 NLRB 251 (1970)
105 Moreover, when the Respondent notified its employees that it no
longer recognized the Union as the collective-bargaining representative
of its employees in an appropriate umt, it violated Sec 8(a)(1) and (5) of
the Act. S/S Research Corp., 272 NLRB No 151 (Nov 2, 1984) (not re-
ported in Board volumes)
506 Enf. denied 603 F.2d 1155 (5th Cir. 1979) (on the issue of the
union's majority status)
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reach a new agreement and therefore an employer may
not unilaterally alter the terms and conditions of employ-
ment set forth therein, as relates to mandatory subjects of
bargaining, in the absence of an impasse in negotia-
tions,'" the Union's loss of majority status,'" or a
waiver." 9
As previously found herein, the Respondent and the
Union reached full agreement on the terms and condi-
tions of a new collective-bargaining contract on 31
March 1983 and the contract was ratified by its employ-
ees on 4 April 1983. The Respondent was thereafter obli-
gated to execute and abide by that agreement. However,
the typewritten fmal contract delivered to the Respond-
ent contained numerous errors and mistakes so that the
Respondent did not have a written contract to execute
embodying the terms and conditions of employment
agreed upon. Nonetheless, in violation of Section 8(a)(5)
and (1) of the Act, the Respondent failed and refused to
bargain with the Union in good faith by executing a cor-
rected copy of the bargaining contract embodying the
terms and conditions of employment agreed upon, and
unlawfully withdrew its recognition of the Union as the
collective-bargaining representative of its employees in
an appropriate bargaining unit. Moreover, none of the
parties herein asserts that they bargained to impasse or
that the Union waived its right to bargain as the Re-
spondent's employees' representative. I also found herein
that the Respondent did not have a good-faith doubt,
based on objective considerations, of the Union's con-
tinuing majority status. Therefore, even assuming that
the parties had not reached full agreement on a new bar-
gaining contract, the Respondent still had a statutory
duty to recognize and bargain with the Union.
The record evidence shows that the Respondent in-
formed its employees about 19 August 1983 that they
were no longer covered by the Union's health and wel-
fare and pension insurance plans and provided the em-
ployees with its own separate insurance coverage for
these fringe benefits. The Respondent also discontinued
making health and welfare and pension insurance premi-
um payments to the Union's trust fund. The Respondent
engaged in such conduct without prior notice to the
Union and without affording the Union an opportunity
to negotiate and bargain as the exclusive bargaining rep-
resentative of the Respondent's employees with respect
to such acts and conduct and the effects thereof.
107 Taurus Waste Disposal, 263 NLRB 309 (1982); S. Freedman Electric,
256 NLRB 432 (1981).
1" SAC Construction Co., supra; South Texas Chapter, AGC, 190
NLRB 383 fn. 5 (1971).
102 American Distributing Co v. NLRB, 715 F 2d 446 (9th Or 1983).
As stated by the Board in Cauthorne Trucking, 256 NLRB 721 (1981)
[T]he Board has held that health and welfare and pension fund plans
winch are part of an expired contract constitute an aspect of employ-
ee wages and a. term and condition of employment which survives
the expiration of the cOntract . Thus, an employer may not uni-
laterally alter payments into such plans unless (I) the changes are
made subsequent to the parties' reaching a bargaining impasse and
the union has rejected the changes prior to the impasse, (2) the em-
ployer demonstrates that, at the time the changes were made, the
union did not represent a majority of the unit employees or that the
employer had a good-faith doubt, based on objective considerations,
of the union's continuing majority status, or (3) the union has waived
its right to bargain regarding the changes.
Accordingly, and from all the above, I find and con-
clude that the Respondent has violated Section 8(a)(1)
and (5) of the Act by unilaterally making changes in em-
ployee health and welfare and pension insurance benefits
and by ceasing to make health and welfare and pension
contributions to the union's trust funds as required by the
collective-bargaining agreement. 10 Moreover, the Gen-
eral Counsel asserts in the brief that by its above conduct
the Respondent also violated Section 8(d) of the Act. I
agree."' It is well settled that an employer acts in dero-
gation of its bargaining obligation under Section 8(d) if it
unilaterally changes or otherwise repudiates terms or
conditions of employment contained in a collective-bar-
gaining agreement during the life of that agreement.'12
Therefore, by failing to make health and welfare and
pension contributions and by subsequently replacing the
contractually prescribed insurance plans with one of its
own choice, the Respondent also has violated Section
8(d) of the Act.
5. The withholding and remittance of union dues
The amended consolidated complaint alleges that the
Respondent violated Section 8(a)(1) and (5) of the Act
by ceasing to withhold and remit to the Union union
dues, as required by the employees' dues-checkoff au-
thorizations, without prior notice to the Union and with-
out affording the Union an opportunity to negotiate and
bargain as the exclusive representative of the Respond-
ent's employees with respect thereto. The Respondent
denies this allegation. As the evidence herein shows, by
letter dated 2 August 1983, the Respondent's attorney
notified the Union that the Respondent would no longer
forward the union dues withheld from its employees to
the Union, because the old collective-bargaining agree-
ment had expired on 1 April 1983. However, the Re-
spondent did remit the union dues deducted from its em-
ployees' wages until August 1983. Having found that the
Respondent and the Union had reached full agreement
on the terms and conditions of a new bargaining con-
tract, the Respondent was obligated to continue to remit
to the Union the union dues withheld from its employ-
ees' salaries during August 1983. It would appear that,
after the Respondent withdrew its recognition of the
Union on or about 19 August 1983, it ceased deducting
such union dues amounts from its employees' paychecks.
It is well established Board law that an employer's re-
fusal to properly tender dues withheld from an employ-
ee's paycheck under a valid dues-checkoff authorization
110 S/S Research Corp., supra, Buck Brown Contracting Ca, 272 NLRB
951 (1984).
111 Although violation of Sec. 8(d) of the Act was not alleged in the
amended consolidated complaint, all issues pertaining to the Sec. 8(d)
violation were fully litigated herein. Moreover, the addition of the 8(d)
allegation does not add any new substantive or remedial issues to the
case "The Board has repeatedly held that it is not precluded from find-
ing a violation of the Act based upon a failure to allege the conduct as
violative of the Act either in the complaint or at the hearing, as long as
the allegation was fully litigated at the hearing." Mertyweather Optical
Co., 240 NLRB 1213, 1215 (1979), and cases cited therein Also see Atlan-
ta Newspapers, 264 NLRB 878, 879 (1982), and cases cited therein.
112 S/S Research Corp., supra, Buck Brown Contracting Co., supra;
Valley Mfg, 264 NLRB No 171 (Sept. 30, 1982) (not reported in Board
volumes).
PARKVIEW FURNITURE MFG. CO 973
constitutes a unilateral change in the terms and condi-
tions of employment in violation of Section 8(a)(5) and
(1) of the Act.'" Additionally, by failing to withhold
union dues from the unit employees and to remit the
dues to the Union, the Respondent also violated Section
8(a)(1) and (5) and Section 8(d) of the Act."4
6. Denial of union representatives' access to the
Respondent's facility
The amended consolidated complaint alleges that the
Respondent, about 15 and 17 August 1983, refused to
allow union representatives access to its facility, which
allegation the Respondent denies. According to the un-
contradicted testimony of Valdez and Fierro, while visit-
ing the Respondent's facility on 15 August 1983 to deliv-
er copies of the new collective-bargaining agreement to
the Respondent, they were told by the Respondent's
plant manager, Larry Domaracki, that they were not al-
lowed in the plant on Brooks' orders because they
"caused too much trouble" when there. Valdez then
gave copies_ of the contract to Domaracki and he and
Fierro left the premises. Valdez and Fierro again visited
the Respondent's facility on 19 August 1983 to speak to
the Respondent's employees. While they were outside
the plant buildings, Domaracki came over and directed
them to leave or he would "call the authorities."5
Fierro testified that he had also been turned away an-
other time by Domaracki when he visited the Respond-
ent's premises alone and that he was told by Domaracki
that Respondent felt that the Union no longer represent-
ed its employees. It is well settled that a union which
represents employees has a right of access to the facility
in which those employees work so that it may perform
its duties properly as bargaining agent." 6 Accordingly, I
find and conclude that, when the Respondent denied
access to its facility by union representatives without
valid reason therefor, it violated Section 8(a)(1) and (5)
of the Act.
7. The Christmas bonus
The amended consolidated complaint alleges that the
Respondent unilaterally and without prior notice to the
Union and without affording the Union an opportunity
to negotiate and bargain as the representative of the Re-
spondent's employees, established and distributed to its
employees a Christmas bonus in violation of Section
8(a)(1) and (5) of the Act. The Respondent denies that its
action was violative of the Act. The evidence herein
shows that the Respondent, by written notice distributed
to its employees in August 1983, advised the employees
that effective 22 August 1983 it was "put[ting]\ money
aside each month for each employee. . . based on your
earnings and will be distributed to you before Christmas
of each year in the form of a bonus." The Christmas bo-,
"8 Merryweather Optical Co., supra; Supreme Equipment Corp., 235
NLRB 244 (1978); Western Block Co., 229 NLRB 482 (1977); Pacific
Grinding Wheel Co., 220 NLRB 1389 (1975).
/14 S/S Research Corp., supra.
i1 noted above, Larry Domaracki was not called as a witness to
testify herein.
118 Western Marine Electronics, 257 NLRB 361 (1981). Also see NLRB
v. Mar-Len Cabinets, 659 F 2d 995 (9th Cu- 1981).
nuses were given to employees on 23 December 1983.
No notification of the establishment or distribution of
this Christmas bonus was given to the Union, nor was
the Union given any opportunity to bargain regarding
this benefit. Moreover, Loya testified uncontradictedly
that this was the first time that the Respondent had
granted Christmas bonuses during his employment with
the Respondent and the first time ever as far as he knew.
Moreover, from the timing of the announcement of the
establishment of the Christmas bonus fund, it is obvious
that the Respondent's intention in so doing was to vitiate
the Union's support among it employees.
From all the above, I find and conclude that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
when it unilaterally established and subsequently distrib-
uted Christmas bonuses to its employees without notify-
ing or bargaining with the Union thereon.1'7
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
IV, above, found to constitute unfair labor practices oc-
curring in connection with the operations of the Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent on 2 August
1983" 8 repudiated and, since about that time, has re-
fused to execute a collective-bargaining contract which
was agreed on by the Respondent and the Union on 31
March 1983, I shall recommend that the Respondent be
required to execute a bargaining contract embodying the
terms and conditions of employment of the oral contract
agreed upon, and that, on request, it sign and execute the
collective-bargaining agreement forthwith and give effect
to all terms and provisions of that agreement retroactive-
ly to 1 April 1983." 9 Moreover, because the agreed-to
1 " Sevakis Industries, 244 NLRB 1122 (1979). With regard to the uni-
lateral discontinuance by an employer of a longstanding practice of
granting unit employees a Christmas bonus m violation of Sec 8(a)(5)
and (1) of the Act, see Radio Electric Service Co. 278 NLRB 531 (1986)
Also, contrast Harvstone Mfg., Corp, 272 NLRB 939 (1984).
118 The Respondent, by its attorney's letter to the Union dated 2
August 1983 and received by the Union on 8 August 1983, advised the
Union that it was seeking "another collective bargaining meeting in order
to conclude the negotiations and execute a collective bargaining contract
forthwith," thus, in effect, denying and repudiating the full agreement
reached by the parties on 31 March 1983 in seeking further negotiations,
Because the bargaining contract submitted by the Union to the Re-
spondent on August 1983 contained substantial, though inadvertent, typo-
graphical errors and mistakes and the Union has expressed its willingness
to prepare and deliver to the Respondent a corrected copy of the bar-
gammg contract based on the evidence of the parties' agreement reflected
in the Union's working copy of the 1979-1982 bargaining contract
(Union's Exh 2) and the "economic package" reached on 31 March 1983,
this would constitute the collective-bargainmg agreement to be signed
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
collective-bargaining agreement would have expired on
31 March 1986, if the Union does not request such exe-
cution of the agreed-upon contract, the Respondent
should be required to bargain collectively in good faith,
on request, with the Union, as the exclusive representa-
tive of its employees in the appropriate unit, and if an
understanding is reached, embody such understanding in
a signed contract. 12 ° Any loss of earnings and benefits
under the order recommended herein shall be computed
in the manner set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as set forth in Florida
Steel Corp., 231 NLRB 651 (1977). 12 ' Because the Re-
spondent unlawfully withdrew its recognition of the
Union, it is recommended that the Respondent be re-
quired to recognize and bargain, on request, with the
Union as the exclusive bargaining representative of its
employees in the unit found appropriate above.
Furthermore, having found that the Respondent has
made unilateral changes in certain terms and conditions
of employment in violation of Section 8(a)(5) and (1) of
the Act, I recommend that the Respondent be ordered to
make whole its employees 122 by paying all fringe benefit
contributions, as provided in the collective-bargaining
agreement, which have not been paid and which would
have been paid absent the Respondent's unlawful discon-
tinuance of or refusal to make such contributions,'" and
by reimbursing unit employees for any expenses ensuing
from the the Respondent's failure to make such contribu-
tions.'" In addition, I recommend that the Respondent
be ordered to make whole the Union for any loss of dues
suffered as a result of its failure to comply with the dues
provisions of the collective-bargaining agreement 125 plus
interest as prescribed in Florida Steel Corp., supra."26
Because of the nature of the unfair labor practices
herein found, and to make effective the interdependent
guarantees of Section 7 of the Act, I recommend that the
Respondent be ordered to refrain from in any like or re-
125 Round Hill Foods, 276 NLRB 1087 (1985); Worrell Newspapers, 232
NLRB 402 (1977).
121 See generally Isis Plumbing Go, 138 NLRB 716 (1962).
122 It is well established that a make-whole order restonng the status
quo ante is the normal remedy when an employer has made unlawful uni-
lateral changes in its employees' terms and conditions of employment.
Southwest Forest Industries, 278 NLRB 228 (1986), and cases cited therein.
122 Buck Brown Contracting Co., 272 NLRB 951 (1984).
Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide at the adjudicatory
stage of a proceeding for the addition of interest at a fixed rate on
unlawfully withheld fund payments. We must leave to the compli-
ance stage the question of whether the Respondents must pay any
additional amounts mto the fringe benefit funds in order to satisfy
our "make-whole" remedy. These additional amounts may be deter-
mined, depending on the circumstances of each case, by reference to
the provisions in the documents governing the funds at issue and,
where there are no governing provisions, to evidence of any loss di-
rectly attributable to the unlawful withholding action, which might
include the loss of return on investment of the portion of funds with-
held, additional administrative costs, etc., but not collateral losses."
S/S Research Corp. 272 NLRB No 151 (Nov 2, 1984) See Merryweather
Optical Go, 240 NLRB 1213 (1979). Also see Taurus Waste Disposal, 263
NLRB 309 (1982)
124 Reimbursement to be made as set forth in Kraft Plumbing & Heat-
ing, 252 NLRB 891 fn.2 (1980), enfd 661 F.2d 940 (9th Cit. 1981).
125 See S/S Research Corp, supra; J F. Swick Insulation Co., 247
NLRB 626 (1980), Ogle Protection Service, 183 NLRB 682 (1970).
156 See Ogle Protection Service, supra See generally Isis Plumbing Co.,
138 NLRB 716 (1962)
lated manner abridging any of the rights guaranteed em-
ployees by Section 7 of the Act.'" The Respondent
should also be required to post the customary notice.
CONCLUSIONS OF LAW
1. The Respondent, Parkview Furniture Manufactur-
ing Co. and Parkview Occasional Seating, is now, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union, Upholsterer's International Union of
North America, Local Joint Board, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act,
3. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production employees in the upholstery and
allied departments, excluding woodworkers, team-
sters, full-time inspectors, office employees and
foremen not working more than sixty-five percent
of their time on production during any given week,
guards and supervisors as defined in the Act.
4. At all times material herein, the Union has been and
is the exclusive bargaining repesentative of all the em-
ployees within the above-described appropriate unit for
the purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By failing and refusing to execute a written collec-
tive-bargaining agreement embodying the terms and con-
ditions reached with the Union on 31 March 1983 and
ratified by its employees on 4 April 1983, and to give
effect thereto, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. By informing the unit employees that they were no
longer represented by the Union, the Respondent has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the Act.
7. By withdrawing recognition from , the Union, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
8. By deducting in a lump-sum manner strike assess-
ment arrears contrary to the Union's instructions and
through remarks made to encourage employee disasso-
ciation with the Union as their representative, the Re-
spondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
9. 1 By failing and refusing to make payments to the
Union's health and welfare and pension insurance trust
funds, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
10. By unilaterally, and without notice or bargaining
with the Union, changing working conditions by inform-
ing its employees that they were no longer covered by
127 Utility Tree Service, 215 NLRB 806 (1974), enfd 539 F.2d 718 (9th
Qr. 1976).
PARKVIEW FURNITURE 'MFG. CO 975
the Union's health and welfare and pension insurance
plans and bypassing the Union and bargaining directly
with the unit employees in providing them with its own
separate insurance coverage for these fringe benefits, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Sections 8(a)(5)
and (1) and 8(d) of the Act.
11. By failing and refusing to properly tender dues
withheld from employees' wages and by failing and re-
fusing to withhold union dues from unit employees' sala-
ries and to remit the dues to the Union, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Sections 8(a)(5) and (1) and 8(d)
of the Act.
12. By denying the Union's representatives access to
its facility, the Respondent engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act.
13. By unilaterally, and without notice or bargaining
with the Union, granting and then distributing a Christ-
mas bonus to its employees, the Respondent engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
14.The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed' 2 8
ORDER
The Respondent, Parkview Furniture Manufacturing
Co. and Parkview Occasional Seating, Compton, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain by refusing to execute a collec-
tive-bargaining contract negotiated and agreed upon with
the Union on 31 March 1983 and to give effect thereto.
(b) Withdrawing recognition of the Union as the ex-
clusive bargaining representative of all its employees in
the appropriate unit.
(c) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with the Union as the exclusive bargaining rep-
resentative of all its employees in an appropriate unit.
(d) Informing its employees that they are no longer
represented by the Union as their exclusive bargaining
representative.
(e) Deducting in a lump-sum manner any assessment or
arrears therefor, contrary to the Union's instructions, and
making any remarks denigrating the Union in order to
encourage employee disassociation with the Union as
their exclusive bargaining representative.
(f) Unilaterally implementing changes in terms and
conditions of employment without notice to the Union
or affording it the opportunity to bargain thereon.
125 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(g) Bargaining directly with its employees and bypass-
ing the Union by informing its employees that they were
no longer covered by the Union's health and welfare and
pension insurance plans and implementing the Respond-
ent's own insurance plan coverage instead.
(h) Failing and refusing to make contributions to the
Union's fringe benefit funds as provided for in the collec-
tive-bargaining agreement.
(i) Failing and refusing to withhold union dues from
unit employees and to remit the dues and any union dues
already withheld to the Union.
(j) Denying the Union's representatives access to its fa-
cility.
(k) Unilaterally, and without notice to or bargaining
with the Union, granting and distributing Christmas bo-
nuses to its employees.
(1) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of all employees in the aforesaid appropri-
ate unit by executing forthwith the agreed-upon contract
and by honoring and complying with the provisions
thereof, or, if the Union does not request such execution,
bargain collectively in good faith, on request, with the
Union, as the exclusive representative of its employees in
the unit found appropriate above, and, if an understand-
ing is reached, embody such understanding in a signed
contract.
(b) On execution of the agreement, give retroactive
effect to the provisions thereof, and, in the manner set
forth in the remedy section of this decision, make whole
the employees, with interest, for any loss they have suf-
fered by reason of the Respondent's failure to sign and
effectuate all terms of the agreement.
(c) Make whole the Union for any loss suffered as a
result of the Respondent's failure to withhold union dues
from unit employees and remit them to the Union, in the
manner set forth in the remedy section of this decision.
(d) On request, rescind any and all unilateral changes
the Respondent has made in the terms and conditions of
employment under the collective-bargaining agreement.
(e) On request, bargain with the Union in regard to
Christmas bonuses and their formula, payment, eligibility
therefor, and the like for the employees in the bargaining
unit described above.
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(g) Post at its Compton, California place of business
copies of the attached notice marked "Appendix."129
129 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."
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Copies of the notice, on forms provided by the Regional
Director for Region 21, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.