Dial Tuxedos, Inc.

National Labor Relations Board - Board Decisions

Jul 9, 1980

250 N.L.R.B. 476 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dial Tuxedos, Inc. and New York Joint Board,
Amalgamated Clothing and Textile Workers
Union, AFL-CIO, CLC. Case 29-CA-7063
July 9, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On March 14, 1980, Administrative Law Judge
Russell M. King, Jr., issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order which has been
mofified in certain respects.
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(5) and (1) of the Act
by refusing to bargain with New York Joint Board,
Amalgamated Clothing and Textile Workers
Union, AFL-CIO, CLC, which represents all
pressers and tailors employed by Respondent, and
by unilaterally discontinuing contributions to the
Union's health plan and insurance fund. No excep-
tions were taken to these findings. The Administra-
tive Law Judge found no merit, however, to the al-
legation that Respondent had further violated Sec-
tion 8(a)(5) and (1) of the Act by granting unit em-
ployees Blue Cross and Blue Shield insurance bene-
fits in order to induce them to withdraw their sup-
port from the Union. The General Counsel excepts
to that finding and further argues, inter alia, that
the granting of such benefits constituted a unilater-
al change in the terms and conditions of employ-
ment in violation of Section 8(a)(5) and (1) of the
Act. We agree with the General Counsel's latter
contention. The record reveals, and indeed the Ad-
ministrative Law Judge found, that no bargaining
impasse had been reached in this case and that the
Union had not waived its right to bargain "on the
health and insurance issue." Furthermore, Re-
spondent's unilateral change in the employees' in-
surance benefits was not consistent with any previ-
ously rejected offer. Under these circumstances, we
find that the granting of such benefits constituted
an unlawful unilateral change in the terms and con-
ditions of employment and violated Section 8(a)(5)
and (I) of the Act. See Peerless Roofing Co., Ltd.,
247 NLRB No. 72 (1980), and Allen W. Bird, II,
250 NLRB No. 64
227 NLRB 1355 (1977).' The Order shall be modi-
fied to conform to our finding 2 herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Dial Tuxedos, Inc., Franklin Square, New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the
New York Joint Board, Amalgamated Clothing
and Textile Workers Union, AFL-CIO, CLC, as
the representative of its employees in the appropri-
ate unit described as follows:
All pressers and tailors employed by the Re-
spondent at its Hempstead store, exclusive of
all clerical employees, all other employees,
guards, and all supervisors as defined by the
Act.
(b) Unilaterally discontinuing contributions to
the Union's health plan and insurance fund and uni-
laterally instituting its own Blue Cross/Blue Shield
plan with respect to employees in the above-de-
scribed appropriate unit.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
Union as the exclusive representative of employees
in the above-described unit and, if an understanding
is reached, embody such understanding in a signed
agreement.
In view of our conclusions here, wve find it unnecessary to pass on
the General Counsel's contention, rejected by the Administrative Law"
Judge, that Respondent granted the Blue Cros,/Blue Shield benefits in
order to induce its employees to ilthdraw their support from the Union.
2 Nothing in our Decision and Order shall be construed as requiring
Respondent to rescind the Blue Cross/Blue Shield benefits. the granting
of which. we find, violated the Act
:' The Administrative L aw Judge recommended in his remedy and
Order that Respondent pay interest on any moneys Respondent owed the
Union's health and insurance plan and fund However, because the provi-
sions of employee benefit fund agreements are variable and complex, the
Board does not provide at the adjudicatory stage of the proceeding for
the addition of interest at a fixed rate on unlawfully withheld fund pay-
ments. We leave to the compliance stage the question whether Respond-
ernt must pay any additional amounts into benefit funds in order to satisfy
our "mnake-wxhole" remedy These additional amounts may be determined.
depending upon the circumstances off each case. by reference tio provi-
sions in the doc uments governing the funds at issue and, where there are
no goernilng proi sions. to cridence of any loss directly attributable to
the unlawfil w ithholding aclion. shich might include the loss of return
on investment of' the portion iof funds wAithheld. additional administrative
oists, elc hl it1(1n collateral o,,sses , errvwcuiahr Optical C'oelputty, 240
Nl RB 1213 (197'J) VWe have nmodified the remedy and the recommended
Order aiccordingly
476
I)IAI. ITLXF)()S. IN(C
(b) Restore making payments to the union health
plan and insurance fund as it did prior to the dis-
continuance of said payments on September 30,
1978, for the employees in the aforesaid unit.
(c) Make employees in the aforesaid unit whole
for any losses or expenses they may have suffered
as a result of the unilateral discontinuance, with in-
terest in the manner described in the section of the
Administrative Law Judge's Decision entitled "The
Remedy," and pay into said insurance fund all
those contributions it has failed to pay as a result of
said unilateral change.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all personnel records and reports, and all other
records necessary to analyze and determine the
amount of losses and expenses due under the terms
of this Order.
(e) Post at its Franklin Square (Hempstead), New
York, facility copies of the attached notice marked
"Appendix." 4 Copies of said notice, on forms pro-
vided by the Regional Director for Region 29,
after being duly signed by Respondent's authorized
representative, shall be posted immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 29,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
4 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to bargain collectively
with the New York Joint Board, Amalgamat-
ed Clothing and Textile Workers Union,
AFL-CIO, CLC, as the representative of our
employees in the appropriate unit described as
followv s:
All pressers and tailors employed by the
Employer in its Hempstead store, exclusive
of all clerical employees, all other employ-
ees, guards, and all supervisors as defined in
the Act.
WE Wl I. NOT, without bargaining with the
Union, discontinue making contributions to the
Union's health plan and insurance fund or
make other unilateral changes in your working
conditions without first bargaining with the
Union.
WE WILL. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILl., upon request, bargain collectively
with the Union as the exclusive representative
of employees in the above-described appropri-
ate unit and, if an agreement is reached,
embody such agreement in a signed contract.
WE Wll l NOT resume making payments into
the Union's health and insurance funds as ex-
isted prior to our discontinuance of such pay-
ments on September 30, 1978, and WE WIll.
pay into said funds all those contributions we
have failed to pay as a result of unilateral ac-
tions.
WE WII.L NOT make employees in said unit
whole for any losses or expenses they may
have suffered as a result of said unilateral dis-
continuance, with interest.
DIAl. TUXEIDOS, INC.
DECISION
STATEIMEN OF I'HE CASE
RUSSEiL M. KING, JR., Administrative Law Judge:
This case was heard by me in New York, New York, on
September 13 and 27, 1979.1 The charge was filed on
The complaint and notice of hearing in this case originalls set the
case for hearing in Brooklyn, New York. on August 27. 1979 Prior to
that date and at the Respondent's request, the case was continued to 10
a.m on September 13. 1979. On that date and at that time the Respond-
ent, by counsel or otherwise. failed to appear. Howeser. present was em-
ployee Natalie Marcos, who indicated that her purpolse sas to deliver a
message from the Respondent's president and owner. Jerry Parness After
being placed under oath, Marcus related that at 7:45 that morning she
received a long-distance telephone call from Parness who stated that he
was ill, was somewhere in Rhode Island. and was not able to, appear that
day, further requesting a continuance to the following week 'This was
the first notification Ito other parties concerned that Mr Parness was
unable to appear that morning Counsel for the General Counsel had also
subpenaed certain materials. and that suhpena was returnable at the open-
ing of the hearing on September 13 Under the circumstalnces, and wlth
all counsel consenting, the case was contiinuied to September 27. 1979.
(C'oitlrnued
477
DECISI()NS ()t NArIONAI. I .A()R RFLATIONS H()ARD
March 7, 1979, by the New York Joint Board, amalga-
mated Clothing and Textile Workers Union, AFL-CIO,
CLC (the Union), 2 and the complaint was issued by the
Regional Director for Region 29 of the National Labor
Relations Board (the Board), on behalf of the Board's
General Counsel, on April 17, 1979, alleging that the Re-
spondent improperly and unilaterally discontinued pay-
ments to existing and union employee health and insur-
ance plans, and refused to bargain collectively with the
Union in its representative capacity of these employees,
in violation of Section 8(a)(l) and (5) of the National
Labor Relations Act, as amended (the Act).3 The Re-
spondent, through and by its president, Jerry Parness,
filed a telegraphic answer on August 21, 1979.4 The
answer generally denies the allegations in the complaint
and also disputes the status of the Charging Union as a
labor organization within the meaning of Section 2(5) of
the Act. Prior to the issuance of the charge in this case
on March 7, 1979, a decertification petition had been
filed by employee Walter Gates on February 21, 1979
(Case 29-RD-310). The day after the charge was filed
and on March 8, 1979, a hearing was held on that decer-
tification petition, and on April 19, 1979 (2 days subse-
quent to the issuance of the complaint) the Regional Di-
rector dismissed the decertification petition, granting
leave to "make application for reinstatement" of the peti-
tion after disposition of this case. 5
The Respondent entered into a contract with the
Union on September 1, 1976, and this contract expired
with instructions to employee Marcos to inform Parness of the continu-
ance, and to further impress upon him that the case would go forward on
the new date, with or without his presence.
2 The name of Joel Ronald Ax, Esq., was on the brief for the Charging
Union. No briefs were filed on behalf of the General Counsel or the Re-
spondent.
a The pertinent parts of the Act provide as follows:
Sec 8 (a) It shall be an unfair labor practice for an employer-(I)
to interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed in Section 7 ...
Sec. 7. Employees shall have the right . to engage in other
concerted activities for the .. . purpose of collective bargaining or
other mutual aid or protection .. .
[Sec. 8.(a)1(5) to refuse to bargain collectively with the representa-
tives of his employees ....
4 The Charging Union moved to strike this answer because of its delin-
quency, and because a copy was not originally certified to or forwarded
to the Charging Union. Although the answer was substantially late and
no copy was originally sent to the Charging Union, this motion was
denied and a copy of the answer was promptly furnished to the Charging
Union at the commencement of this proceeding. The result requested in
this motion was for summary judgment on the complaint itself. There
being no provisions in the Board's Rules and Regulations governing these
proceedings for such a Summary Judgment, and further considering the
pro se representation by Parness, I felt the most expedient course of
action was to conclude that the Answer did meet the issue, the General
Counsel having the burden of proving the allegations in the Complaint
regardless of any response from the Respondent.
s This dismissal was in the form of a letter to employee Gates. This
petition alleged that the Union no longer represented a "substantial
number of employees" in the bargaining unit. The letter advised employ-
ee Gates that "no question concerning representation can be raised and
further proceedings are not warranted at this time." as a result of the is-
suance of the complaint in this case.
on September 30, 1978. There had been no Board-con-
ducted election and the unit involved consists of only
two employees." This contract contained no renewal
clause and thus no "Notice of Opening" clause. Prior to
the expiration of the contract and on June 9, 1978, the
Union wrote to the Respondent advising of its intent to
"modify certain terms and provisions of the . . . agree-
ment and accordingly the agreement shall terminate by
its terms on September 30, 1978." Upon the expiration of
the contract the Respondent ceased to contribute to the
health plan and insurance fund provided for in the con-
tract, whereupon the two unit employees involved
became anxious about the lack of their health insurance
coverage and the Respondent thereafter obtained cover-
age for these two employees under a Blue Cross-Blue
Shield plan. Several negotiating sessions were held in-
cluding one on November 15, 1978, and another on Janu-
ary 9, 1979. The lack of subsequent sessions was the sub-
ject of blame by both the Union and the Respondent in
this case, and after the new insurance coverage was ob-
tained and the employee decertification petition was
filed, the charge in this case was ultimately filed by the
Union on March 7, 1979.
Upon the entire record including my observation of
the demeanor of the witnesses,7 and after due considera-
tion of the brief filed herein by the Charging Union, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
The pleading and admissions herein established the fol-
lowing jurisdictional facts. The Respondent is, and has
been at all times material herein, a corporation duly or-
ganized under and existing by virtue of the laws of the
State of New York, maintaining its principal office and
place of business in Franklin Square, in the town of
Hempstead, county of Nassau, State of New York,
where it is engaged in the wholesale rental and distribu-
tion of tuxedos and related products. During a repre-
sentative I-year period, in the course and conduct of its
business, the Respondent rented and distributed products
valued in excess of $50,000, which products valued in
excess of $50,000 were shipped from the Respondent's
facility in interstate commerce directly to States outside
the State of New York. Thus, and as admitted, I find and
conclude that the Respondent is now, and has been at all
times material herein, an employer engaged in commerce
At the hearing on the decertification petition on March 8. 1979, the
Respondent was represented by counsel and the transcript of that hearing
reflects that the unit description was stipulated by counsel. The unit is
also described in the contract in itself.
I The facts found herein are based on the record as a whole and upon
my observation of the witnesses. The credibility resolutions herein have
been derived from a review of the entire testimonial record and exhibits
with due regard for the logic of probability, the demeanor of the wit-
nesses, and the teaching of N.L.R.B. v. Walton Manufactunng Company
and Loganville Pants Company, 369 U.S. 404. 408 (1962). As to those testi-
fying in contradiction to the findings herein, their testimony has been dis-
credited either as having been in conflict with the testimony of credible
witnesses or because it was in and of itself incredible and unworthy of
belief. All testimony has been reviewed and weighed in light of the entire
record.
47X
I)IAI. TUX.EII)OS. INC
within the meaning of Section 212). (6). and (7) of the
Act.
The Respondent denied that the Union involved was a
labor organization within the meaning of Section 2(5) of
the Act. I find and conclude, without question, that the
Union is a labor organization within the meaning of the
Act. This finding is supported by the substantiating and
unrebutted testimony of Murray Goldstein who testified
in this case as a co-manager of the New York Joint
Board and also as a national vice president of the Amal-
gamated Clothing and Textile Workers Union. In my
opinion, the issue was so clearly resolved through this
testimony that further comment on the subject is unnec-
essary.
II. ALL.EGI D: UNFAIR I ABOR PRAC CES
A. Summary of the Eviden ce
Murray Goldstein testified in his official capacity with
the New York Joint Board and with the National Union,
as earlier indicated. The initial contract was executed on
September 1, 1976. for a term of 2 years. In early June
1978, the Union wrote to the Respondent, as a matter of
course, noting that the contract would expire on Septem-
ber 30, 1978, and further indicating the Union's inten-
tions to modify certain terms of the contract. The New
York Joint Board then commenced negotiations with a
number of employer associations in New York City
which represented the various facets of the clothing busi-
ness. The Respondent was an independent employer and
not a member of any employer association. After the
Union had negotiated a so-called master or model con-
tract with and among the employer associations in mid-
October, the Union then commenced to contact the var-
ious independent employers involved. The master or
model contract was to be generally retroactive to the
various individual expiration dates.9 Goldstein testified
that, after several attempts to contact the Respondent's
president, Jerry Parness. regarding the negotiation of a
new contract, he finally reached him the first week of
November and a meeting was set for and held on No-
vember 15, 1978. By this time, Parness had stopped
making payment to the Union's health plan and insurance
fund on behalf of the two unit employees. At the No-
vember 15 meeting, Goldstein indicated that he explained
to Parness that an industrywide agreement had been con-
cluded, and that he gave Parness a copy and asked Par-
ness at that time to enter into the new agreement. They
then discussed some of the terms, whereupon Parness in-
dicated that he wanted to take the contract with him for
further consideration and consultations with his attorney.
On November 22, 1979, Parness wrote Goldstein propos-
ing numerous changes or modifications, and indicating
that if these suggested changes were acceptable he
I The following includes a summary of the testimuony of the witnesses
appearing in the case. The testimony will appear normally in narralive
form. although Ion oclcasion some testimony will appear as actual quotes
from the transcript. The narrative only and merely represents ;t summary
of what the witnesses themselves stated or related. and doecs not necessar-
ily renect my ultimate findings and conclusions in this case
" The Respondent. at this point, was not bound by the master or model
contract, or by any existing indixidual contract
would enter into a modified contract.' " G(oldstein ,uenl
on to relate that, after receipt of Parness' letter (of' No-
vember 22, he or his office attempted to reach Parness.
without success once or twice a .week, usually by calling
and leaving messages. Contact was finally made and a
meeting was set and held on January 9. 1979. According
to Goldstein. at the conclusion of that meeting some of
the provisions had been agreed to and some remained yet
to be settled. Goldstein indicated that Parness v as to
contact him in 2 days (January 11), but failed to do so.
Goldstein further testified that thereafter he again at-
tempted to reach Parness but these attempts were unsuc-
cessful, and on February 21, 1979. he received a letter
from the Board indicating that an employee had filed a
decertification petition."
The Respondent's president, Jerry Parness, testified
that the tuxedo rental company was not his "main slay of
operation" and that he ran this business "absentee." using
a supervisor. The business consisted of the rental of tux-
edos to other retail rental stores, and according to Par-
ness the business was extremely seasonal, resulting in the
number of employees ranging from 8 to 20, including
office employees, sales personnel. shipping. pressing. tai-
loring, drivers, and "pickers." Parness explained that the
facility is basically a drycleaning plant, with related ma-
chinery, occupying approximately 5,(XX) square feet. In
the unit involved, which include tailors and pressers,
there are two employees; namely, Walter Gates and
Jeanette Lamons. Parness testified that he stopped
making payments to the Union's health and insurance
fund on September 30, 1978, when the contract expired.
and that the unit employees involved are presently cos-
ered by Blue Cross-Blue Shield, which was commenced
sometime during March 1979. This coverage was ob-
tained at the employees' request, but Parness could not
remember whether the requests were received before or
after the contract expired on September 30. 1978. Par-
ness indicated that the two employees involved had ex-
pressed dissatisfaction with the Union and its health in-
surance coverage since sometime in June 1978, and that
he felt constrained to grant the request for alternative
coverage in order to actually keep the employees. Par-
ness further related that he discussed the employee dis-
satisfaction with Union Manager Goldstein sometime
after the June complaints started, but that "it just went
on, nothing was done." Parness then related that, in
early 1979, the two employees involved threatened to
quit because of dissatisfaction over the health insurance
situation and he was forced to take action as the busy
period of his business was due to commence in March. 2
Parness acknowledged attending the November 15 meet-
'I According to Goldstein. Parness, in drafting his suggested modifica-
tions. used the old or expired contract as a guide or a base i'arness, in his
testimony. related that he did not receive a cops of the new and pro-
posed contract at the November 15 meeting Union Business Agent
Hyman l.uks, who a, present al Ihe mretingl, Itstifled that Parniess was
il fact given al copy of it new model contract. as related ha Cyoldtciln
The discrepancy proves to he essentially unllimplrtllt ill ihis case
' Case 29-RD 310, its discussed earlier
i2 What this "dissatlisfactlin" I .olx ed A, , is n1xs er Ceplhiniled hs Parnesi
hut during this period (f titic the cmployees .were ohviously not coxvered
by alily insurail e plirl
DI)tlCSI()NS ()F NA'II()NAI. I AHO()R REI.A 'I() ONS BO()ARI)
ing with Goldstein and other union representatives, and
further acknowledged the November 22 letter with sug-
gested modifications or changes, but he neither remem-
bered nor denied the subsequent January 9 meeting.
When Parness was asked if the Union thereafter "got
hack in contact with [him] regarding a new contract," he
responded, "Not to my recollection." Parness testified
that he called the Union once and talked to one Murray
Cohen who stated that the Union was still considering
his suggested changes. t Parness was further asked if he
would have signed an agreement had the Union contact-
ed him, to which he replied "I would have signed an
agreement if the employees in my place wanted it."
Employee Jeanette Lamons testified that she had
worked for the Respondent for 12 years as a presser, and
that fellow employee Walter Gates left the Respondent's
employ in early or mid-September 1979. Lamons related
that a "couple of months" after the contract expired she
started receiving the Blue Cross-Blue Shield coverage
obtained by Parness. She added that she was not "sure"
when the coverage started, "whether it was November
or when." She indicated that sometime in October she
became worried about the lack of coverage and called
Union Representative Luks who stated that "he didn't
know what was going on with the Union." Lamons testi-
fied that she then went to Parness and asked for Blue
Cross-Blue Shield coverage, but that the Union was not
discussed, nor was it discussed with Parness at any other
time. Lamons went on to testify that both she and em-
ployee Gates became dissatisfied with the Union because
Union Representative Luks ignored them and they
"never saw him." She stated that she did not know who
Luks was until "they told [her she] had to join the
Union." She reiterated that she never told Parness him-
self of her feelings but that she did tell the secretary in
the office "the hell with the Union," and requested that
the secretary convey her feelings about the Union to
Parness. Lamons further indicated that she also told the
secretary she would quit if the insurance coverage was
not straightened out.'4 Lamons testified she also joined
employee Gates in his efforts to expel the Union by use
of the decertification petition.
B. Evaluation of Law and Evidence and Initial
Conclusions
The complaint charges the Respondent with improper
and unilateral changes in employee benefits without
notice to the Union by discontinuing contributions to the
union's health and insurance plans on September 30,
1978, further resulting in improperly inducing the two
employees involved to abandon their union support or
membership. The complaint also charges the Respondent
with the unlawful refusal to meet and bargain with the
Union after January 9, 1979 (the date of the last negotiat-
ing session), all in violation of Section 8(a)(1) and (5) of
the Act. The basic facts are essentially undisputed in this
D:' Murray Cohenll as identified by Goldtecin in his lestimlony as an
"adminlisratile asistant" whose re'porisibility it was to "keep up with
the e'ents regarding c.ntlracts " Cohen was not called Io testify in this
Case
'4 Neither former employtee (Jats nor the secreiarN wai, called Io les-
tify in his case
case. In the fall of 1976, the Respondent recognized the
Union as the collective-bargaining representative of the
Respondent's tailors and pressers (two employees) and
entered into a collective-bargaining agreement with the
Union on September 1, 1976. With this recognition and
contract came the legal duty or responsibility for the Re-
spondent to notify and bargain with the Union regarding
contemplated changes in conditions of employment, in-
cluding changes in health insurance plans and payments,
and this duty or responsibility continues even after the
expiration of the contract unless a bargaining impasse
occurs. ' There was no bargaining impasse here as, in
fact, bargaining itself commenced long after the expira-
tion of the contract and the discontinuance of payments
by the Respondent to the Union's insurance plan on Sep-
tember 30, 1978. This discontinuance without notification
vwas readily admitted by Respondent President Jerry Par-
ness. I ' The foregoing principals and undisputed facts
serve as the basic foundation of the General Counsel's
case and, in the main, shall prove to be insurmountable
for the Respondent in this case.
The Union of course knew of the discontinuance im-
mediately, yet voiced no real objection until the actual
charge was filed on March 7, 1979, which charge was
primarily prompted by employee Gates' decertification
petition (filed on February 21, 1979). The Union was also
in no posture to bargain or negotiate with the Respond-
ent until after the contract expired and in mid-October
when the industrywide master or model agreement had
been consummated. The Union's letter to the Respondent
regarding contractual changes went out in June 1978, yet
4 months passed before the Union's next contact with the
Respondent, and after the contract's expiration. This
delay naturally portrayed what Parness and the two em-
ployees conceived to be a lack of concern on the part of
the Union. Parness also knew of the employees' dissatis-
faction with the Union and its insurance plan, and the
danger of losing one or both on the heels of a busy
season if the matter of the insurance was not straightened
out. Although one could empathize with Parness in this
situation, his actions contrary to controlling legal princi-
ples cannot be overlooked in this case, regardless of the
practical consequences unique to his situation. Parness
simply took matters into his own hands. To put it his
way, "I would have signed an agreement if the employ-
ees in my place wanted it.' 7 The significance of this
" Pelrhlei Roofing (Co, Ltd. 247 Nt RB No. 72 (1980i); ttrold I
lsonon. d/b/a lhen Itoue MarAit No. 3. 175 NL RH 596 (I69), enfd 428
F2d t13 (8th Cir 1970) laji Bradcauing Co WD1F 41M-F-. h163
Nl RH 475 (1967), cnrd 395 F 2d 622 (DC Cir 1968) NLRB
Binne Kati. etc., d/h/ a Willamvhurg Srtel Produor Co. 369L U S 716
(1 6,2).
"I I)uring the negotiations iand mi his Nornember 22, 1979. letter Iof re-
questled changes. 'Parness agreed Il the prior health arid insurance plans
and onl ly requested a reductilon in the employer's contrihution to lone of
the I, o plans that had been in effect The Unlioin thus did not ,aive bar-
gaminig on the health and illsurance issue. nor was the change or discon-
linuallce essentiillly conisisten t vith a rejected iffer .Ilen W Bird. 11. 227
NI RH I 155 (1977). lht' R uul lilnmmel Dirdlling C'ompuney. 203 N. RIt
144 (1973); , L.R.B. (Crompton lighland Mil/R. 1n1., 337 L.S 217.
" Ithe complaint charges the Respondent with, inter alu. a refusal to
bargain after Ihe last negotiating sessio on n, January q. 1979q. but does nIot
C ontinu ed
48X()
DIAl -I UXEI)OS. INC'
remark by Parness in his testimony contributes substan-
tially to his downfall in this case. Parness, I find, had
concluded firmly by mid-January that employees Gates
and Lammons, who about this time had threatened to
quit, no longer wanted the Union. Thereafter, in my
opinion, he took a calculated risk of future litigation and
decided to remain away from the bargaining table. He
reasoned that the risk was worthwhile due to the small
size of the unit involved and his perception of the
Union's lack of interest. He further conceived that his
decision was supported by the two employees, as ,was
eventually reflected in their decertification petition,'l
and he was thus further hopeful that the Union would
abandon the unit without further action.
Accordingly, I find and conclude that the Respondent.
through and by Parness, unilaterally and thus improperly
discontinued the health and insurance benefits of the two
unit employees, and after January 9, 1979, improperly
failed and refused to meet and bargain with the Union, in
violation of Section 8(a)(1) and (5) of the Act as alleged
in the complaint. However, I do not find that the late ac-
quisition of Blue Cross-Blue Shield insurance for the two
unit employees was to induce them to abandon their sup-
port for the Union, as further alleged in the complaint
The employees had expressed dissatisfaction with the
Union's health benefits even prior to the expiration of
the contract on September 30, 1978. Thereafter, they
themselves again acknowledged disinterest in the Union
and requested Blue Cross-Blue Shield coverage, which in
fact was not obtained until March, after Parness with-
drew from bargaining and after the decertification peti-
tion was filed.19 In obtaining the new insurance, I find
and conclude that Parness was motivated solely by the
possible loss of one or both employees just prior to the
beginning of a busy season, and I shall thus recommend
that the "unlawful inducement" allegation in the com-
plaint be dismissed
C. The Unit
The unit description alleged in the complaint is as fol-
lows:
All pressers and tailors employed by Respondent at
its Hempstead store, exclusive of all clerical em-
ployees, all other employees, guards, and all super-
visors as defined by Section 2(11) of the Act.
The Respondent's answer denied the above description,
but the unit subject or controversy was given no atten-
tion by the Respondent during the hearing. The subject
was addressed by the General Counsel, in evidence
allege "surface bargaining" (superficial or spetious bargaining); which
this remark may imply) he remark definitely is, I conclude. indicatise of
Parness' thinking. at least from Januar) '. 1979 forward
'" Although Ihere is ahsolutely no esidence In the record Io support
Ihe conclusion that P'arness suggested or urged the decertificalion peti-
lion, ii is inconceivable that he lacked knoewledge of the Inellts of the
two employees
t! Employee .amons was unlcrtain as, to e.all, \hen the Blue
Cross-Blue Shield coverage started. indictaling ion, Ihal it started "a
couple of months" after ihe contracl cxpired P'arlies. appeared cerltirl It
was in March 1979. and Ihis was nlot disputed hby coutl for the General
Counsel. through records oIr olher isc
during the hearing, but was not addressed by the Union
in its brief. The original contract (September 1976) and
the Union's proposed new contract describe the unit as
"all bushelmen, pressers, finishers, fitters and assistant fit-
ters" employed by the Respondent. The transcript of the
March 8, 1979, hearing on the decertification petition
(Case 29-RD-310) reflects that the Respondent's counsel
proposed a stipulation that the unit include all "tailors
and pressers" employed by the Respondent. This stipula-
tion was accepted. That transcript further reflects that
the unit description was so limited due to the fact that
the Respondent only employed the two stated categories
(tailors and pressers), and the contracts were "master"
contracts containing additional categories to fit many re-
lated businesses. Accordingly, I find that the correct unit
description is that alleged in the complaint, and as set out
above.
Upon the foregoing findings of fact and initial conclu-
sions, and upon the entire record, I hereby make the fol-
lowing:
CON( I SIONS Ot L XW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2). (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All pressers and tailors employed by the Respond-
ent at its Hempstead store, exclusive of all clerical em-
ployees, all other employees, guards, and all supervisors
as defined by Section 2(11) of the Act. constitute a unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act
4. The Union is now and at all times material herein
has been the exclusive representative of all the employ-
ees of the Respondent in the aforesaid unit for the pur-
pose of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. By unilaterally discontinuing contributions to the
Union's health and insurance plans on September 30,
1978, and by failing and refusing to meet with the Union
after January 9 for the purpose of bargaining collectively
with it as the exclusive bargaining representative of the
employees in the unit described in paragraph 3, above,
the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act.
6. The Respondent has not otherwise violated the Act.
7. The unfair labor practices found in paragraph 5.
above, affect commerce within the meaning of Section
2(6) and (7) of the Act.
THi RiMi I)\
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
X(a)(l) and (5) of the Act, I shall recommend that it be
ordered to cease and desist therefrom, 2" and take certain
"' I shall also reconmmnitlid that the addlnionlt ",ica e sed l de1s'" pro l-
sionis of the ()rder he of thle tlairrnl ' arlte!. hlch I feel to he lmore p
propriate it t its cae See IiAtlnot Imdi /ni, 242 NI Rit Ni 17
(Iq7g)
481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affirmative action to effectuate the policies of the Act.
Accordingly, having found that the Respondent, on Sep-
tember 30, 1978, unilaterally discontinued making contri-
butions to the Union's health plan and insurance fund to
provide health and medical services and other insurance
benefits for the employees in the aforesaid unit, it shall
be ordered to restore making such payments and make
whole the unit employees for any losses or expenses they
may have suffered as a result of the unilateral discontinu-
ance and, further, to pay into said insurance fund all
those contributions it has failed to pay as a result of said
unilateral change, with interest.2"
[Recommended Order omitted from publication.]
21 Since backpay is not a factor in this case, any interest which may be
due would be payable under the "other monetary remedies" category as
mentioned and set forth in Florida Steel Corporation, 231 NLRB 651
(19771
482