Advertiser'S Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 7, 1989

294 N.L.R.B. 740 (N.L.R.B. 1989)

740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Advertiser's- Manufacturing Company and Teamsters
General Local No. 200 , affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO. Cases 30-CA-6882, 30-CA-6928, 30-
CA-6985, and 30-CA-7155
June 7, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND DEVANEY
On January 7, 1983, Administrative Law Judge
Walter H. Maloney 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,' and
conclusions, as modified.
1. The Respondent contends that certain allega-
tions of the consolidated complaint are time-barred
under Section 10(b) of the Act because the acts al-
leged were not alleged specifically in a timely filed
charge.2 The judge rejected this contention on the
basis that the initial charge filed in this proceeding
alleged violations of Section 8(a)(1), (3), and (5)
and, therefore, was "broad enough to encompass
any violation of any of these sections," irrespective
of the substantive allegations set forth as the basis
of the charge. The Respondent contends that the
judge erred in focusing virtually exclusively on the
categories of the Act alleged. We find merit in this
exception. However, for the reasons below, we
find that the complaint allegations are not time-
barred under Section 10(b).
It is well settled that a complaint may issue
under Section 10(b) alleging matters not set forth
with specificity in the underlying charge, provided
the complaint allegations assert matters closely re-
lated to the allegations of a timely filed charge.
NLRB v. Fant Milling Co.,' 360 U.S. 301 (1959).
This requirement of relatedness is not confined
' The Respondent has excepted to some of the fudge'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
2 The allegations alleged by the Respondent to be time-barred are (1)
the 8(a)(l) failure to pay striking employees holiday pay for Independ-
ence Day 1981, (2) the 8(a)(1) and (5) failure to furnish to the Union re-
quested insurance information , and (3 ) the 8(a)(1) and (5) unilateral imple-
mentation of incentive piece rates
only to the categories of the Act alleged, as the
judge found. Rather; Section 10(b) requires a factu-
al and legal nexus between the charge allegations
and the otherwise untimely allegations that looks
toward the class of violations alleged in the pend-
ing timely charge, the sequence of events, and the
nature of the defenses raised. See Davis Electrical
Contractors, 291 NLRB 115- (1988) (Chairman Ste-
phens concurring), citing Redd-I, Inc., 290 NLRB
1115 (1988). Applying these principles, we note the
following.
On January 19, 1981, the Union was certified to
represent the Respondent's production and mainte-
nance employees. As detailed by the judge, several
Board and court proceedings ensued, including ,a
finding by the Board and the United States Court
of Appeals for the Seventh Circuit that, the Re-
spondent unlawfully refused to bargain with the
Union following certification.3 On July 6, 1981, the
Union began a prolonged 'strike to protest the Re-
spondent's refusal to comply with the Board's bar-
gaining order. On December 21, 1981, during the
course of the ongoing strike, the Union filed the
initial charge in this proceeding (Case 30-CA-
6882) alleging that the Respondent discriminated
against striking employees in violation of Section
8(a)(1) and (3) and breached its duty to bargain in
violation of Section 8(a)(1) and (5) by "amongst
other things" imposing requalification periods for
insurance coverage solely for striking employees.
Subsequent charges filed by the Union alleged,
inter alia, that the Respondent awarded bonuses for
discriminatory reasons, unilaterally changed work
schedules, unilaterally implemented a wage in-
crease, unilaterally changed its method of paying
employees for work performed, directly ' solicited
employee grievances, and directly bargained with
bargaining unit employees.4
The Respondent contends initially that the com-
plaint allegation pertaining to the failure to pay
holiday benefits for July 4, 1981, discussed below,
is time-barred. We find no merit to this contention
as we find this allegation is closely related to a
timely filed charge. The charge allegation in Case
30-CA-6882, filed December 21, 1981, pertains, in
part, to the alleged 8(a)(1) and (3) denial of insur-
ance benefits to strikers as a result of their partici-
pation in the strike. The allegation pertaining to the
denial of the July 4, 1981 holiday benefit, asserted
to be untimely by the Respondent, raises the identi-
cal sections of the Act, the same legal theory as to
a 256 NLRB 644 (1981), enfd 677 F 2d 544 (7th Cir 1982) See also
280 NLRB 1185 (1986), enfd 823 F 2d 1086 (7th Cir 1987) _
4 The charge in Case 30-CA-6928 was filed January 22, 1982; Case
30-CA-6985 was filed February 24, 1982, and Case 30-CA-7155 was
filed June 8, 1982
294 NLRB No. 51
ADVERTISER'S MFG CO
whether the benefits were discriminatorily denied,
the same sequence of events brought on by the un-
lawful failure to bargain and the ensuing strike, and
similar defenses pertaining to business justification,
as do the issues raised by the timely filed insurance
requalification allegation. Thus, this holiday pay al-
legation is timely under the December 21, 1981
charge5 as it is closely related to the allegations
raised therein.
The Respondent also alleges that an 8(a)(1) and
(5) complaint allegation that the Respondent re-
fused to furnish insurance information to the Union
on December 14, 1981, is time-barred because it
was never specifically alleged in a, charge. The
charge in Case 30-CA-6882, however, raises alle-
gations pertaining to medical, life, and disability in-
surance benefits. This is the same subject matter
raised in the insurance information request alleged
to be untimely. Moreover, that charge, as well as
the remaining charges alleging violations of Section
8(a)(1), (3), and (5), arise from a single sequence of
events brought on by the Respondent's refusal to
bargain with the Union. Indeed, the Respondent's
defense to the information request is that the Union
is not the established bargaining representative.
That is the same untenable position that caused the
strike and, in turn, formed the basis for the acts
toward striking employees alleged to be violative
in Case 30-CA-6882.
Finally, the Respondent contends that 8(a)(1)
and (5) allegations pertaining to incentive piece
rate changes are time-barred. The Respondent
admits that the charge in Case 30-CA-7155, filed
June 8, 1982, raises allegations pertaining to incen-
tive piece rate changes, but it asserts that any
changes in piece rates that may have occurred
prior to December 8, 1981, 6 months before the
filing of that charge, are time-barred.
The Respondent stipulated at the hearing that
between July 6, 1981, and May 10, 1982, without
prior notice to or bargaining with the Union, it es-
tablished or assigned incentive piece rates and that
the application of these piece rates for new or ex-
isting products affects the wages of unit employees.
Consistent with the Respondent's admissions, it is
evident that changes occurring between December
8, 1981, and June 8, 1982, are timely, pursuant to
the charge in Case 30-CA-7155.
In addition, we find that these 8(a)(1) and (5) al-
legations pertaining to incentive piece rate changes
are closely related to allegations raised in the
charge filed in Case 30-CA-6928, filed January 22,
1982. That charge alleges, in part, that the Re-
5 In his decision, the judge inaccurately calculated the 10(b) period for
this charge as relating back to events as early as May 21, 1981, rather
than June 21, 1981
741
spondent violated Section 8(a)(1) and (5) by-unilat-
erally instituting a wage increase. Clearly that alle-
gation is broad enough to encompass any type of
wage increase given, regardless of the method used
to bring about the particular increase and, indeed,
the record establishes, and the judge found, that
the Respondent unilaterally gave a 3-percent in-
crease in wage rates as well as piece rates. Thus, it
is evident that the charge in Case 30-CA-6928
raises the subject of unilateral changes pertaining to
wage and piece rates. As that charge was filed on
January 22, 1982, it is sufficient to raise allegations
pertaining to incentive piece rate changes com-
mencing July 22, 1981.
Accordingly, we find that the 8(a)(1) and (5) al-
legations pertaining to piece rate changes in this
proceeding derive from a sequence of events that
were brought on by the Respondent's refusal to
bargain with the Union following certification and
continuing through a series of unlawful unilateral
changes occurring soon thereafter, including unilat-
eral changes pertaining to piece rates and methods
of payment implemented earlier. In these circum-
stances, the December 21, 1981 charge in Case 30-
CA-6882, raising yet another allegation that the
Respondent violated Section 8(a)(1) and (5),
"amongst other things," is sufficient to raise the al-
legations of incentive piece rate changes considered
herein.
2. The complaint alleged, and the judge found,
that the Respondent violated Section 8(a)(3) and
(1) by denying holiday pay to striking employees
and by imposing on striking employees requalifica-
tion periods for medical, disability, and life insur-
ance coverage. For the reasons discussed below,6
we find that the Respondent violated Section
8(a)(3) and (1) only insofar as it imposed requalifi-
cation periods for life and disability insurance.
The pertinent facts are as follows. From July 6,
1981, to May 10, 1982, the Respondent's employees
engaged in a strike. It is undisputed that the Re-
spondent denied holiday pay to strikers for July 4,
1981, July 4, 1982, and Memorial Day 1982. It did
so on the basis of governing employee handbook
provisions containing eligibility requirements for
the payment of holiday pay. The handbook provi-
sions are as follows:
All employees who have been actively in
our employ during the 3 months immediately
preceding any holiday are eligible to be-paid
for that holiday. The amount of pay the em-
ployee receives will be directly proportionate
to the length of time he is working per day. In
B In agreement with the judge, we find that the Respondent violated
Sec. 8 (a)(5) and ( 1) as alleged
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other words, an individual whd is working
only seven hour days will receive only seven
hours pay for the holiday.
Also, regardless of the length of service, an
employee, to earn the holiday pay must be on
duty the working day before and the working
day after the holiday. Exception may be taken
to the above rule upon prearranged agreement
with management and the Superintendent's
office.
People whose vacations include paid holi-
days will be paid for those holidays only if
they are on duty here on the working day pre-
ceding and the working day following their
vacations.
Employees with at least two years of contin-
uous service, and not on the Loss List, who
have not been actively employed during the
six months immediately preceding any holiday
because of illness, but continue to be consid-
ered employees in good standing, will be paid
for one holiday. If the illness and resultant ab-
sence continue to a second holiday, neither
that holiday or any subsequent holidays will
be paid.
Employees on a Personal Leave of Absence
will receive no holiday pay for any holiday
that occurs during their leave.
The Respondent denied holiday pay for July 4,
1981, based on the handbook provision that em-
ployees "must be on duty the working day before
and the working day after the holiday" to be paid
for ' that holiday.'' Further, the Respondent denied
holiday pay to strikers for Memorial Day and Inde-
pendence Day 1982 based on the handbook provi-
sion that employees must be "actively in our
employ" during the 3 months immediately preced-
ing any holiday.
With regard to coverage of life insurance, dis-
ability insurance, and medical insurance benefits,
the Respondent notified striking employees of the
following change of conditions relevant to the
strike. By letter of July 6, 1981, the Respondent in-
formed striking employees that they could continue
existing medical insurance coverage during the
strike, for a maximum period of 6 months, by
paying the insurance premium. By letters of No-
vember 23 and December 15, 1981, the Respondent
informed strikers that medical insurance coverage
would terminate on December 31, 1981, and that
striking employees returning after that date would
have to meet an eligibility requalification require-
7It is undisputed that the strike encompassed the first working day
after July 4, 1981 As to those employees already paid for that holiday,
the Respondent recouped such payment thereafter by docking either ac-
crued vacation pay 'or 1 day's pay
ment of 60 days of continuous employment from
the date of their return to work. As to disability in-
surance and life insurance coverage, the Respond-
ent notified employees that they would have to sat-
isfy an eligibility requalification requirement of 2
years of continuous service after returning to work.
On January 25, 1982, the Respondent informed
striking employees that the requalification require-
ment for medical insurance coverage, as specified
in its previous letters, was no longer in effect and
that any strikers returning to work in the future
would be eligible to 'participate immediately on
their return. It noted, however, that returning strik-
ers would have to fulfill requalification conditions
for life insurance and disability insurance.
On May 10, 1982, the strike terminated and
former strikers returned to work. The requalifica-
tion conditions for life insurance and disability in-
surance remained in effect. On July 12, 1982, how-
ever, the Respondent notified employees that the
requalification requirement for disability insurance
coverage had been "mistakenly applied" and that,
effective immediately, all employees who already
had fulfilled the initial eligibility requirement were
"now" covered. No employees responded affirma-
tively to the Respondent's inquiry as to whether
any former strikers had, in fact, been denied dis-
ability benefits pursuant to the abandoned requalifi-
cation requirement.
The life insurance requalification requirement re-
mained in effect. The Respondent imposed this re-
quirement pursuant to the following provisions of
its life insurance agreement with its insurance carri-
er, Safeco Life Insurance Company.
When an Employee Becomes Eligible-
Each employee in an eligible class shall
become eligible as of . . . the day following
completion of 2 years of employment.
When an Eligible Employee Becomes In-
sured-Each eligible employee shall become
insured on the date he becomes eligible for in-
surance. However, if , he is not actively at
work on the day he is scheduled to become in-
sured, he shall become insured on the day he
returns to active work. Each insured employee
shall be required to execute an enrollment
card, on forms furnished by SAFECO Life In-
surance Company.
TERMINATION OF EMPLOYEE'S
INSURANCE
Except as provided in the 31 Days Continu-
ance of Death Benefit and Waiver of Premium
Provisions (which provisions apply only to
Employee Life Insurance), an employee's in-
ADVERTISER'S MFG CO.
surance will terminate on whichever of the
following dates occurs first:
1. Termination of employment in the classes
of employees eligible for insurance; or
2. Termination of the policy; or
3. Termination of employment.
Cessation of active work by an employee
shall be deemed termination of employment;
except that if an employee is absent on ac-
count of sickness or injury, or is temporarily
laid off, or granted leave of absence, employ-
ment shall be deemed to terminate when pre-
mium payments for such employee's insurance
are discontinued, but in any event employment
shall be deemed to terminate not later than
two months following cessation of active work
when a layoff or leave of absence exceeds a
two-month period. Upon request by the Em-
ployer, SAFECO Life Insurance Company
may, however, agree in writing to allow the
insurance of an employee to be continued for
an additional number of months during layoff
or leave of absence.
In determining whether an employer's refusal to
pay benefits during a strike violates Section 8(a)(3)
and (1) of the Act, we have recently, in Texaco,
Inc.," applied the principles articulated in NLRB v.
Great Dane Trailers, 388 U.S. 26 (1967). In Texaco,
supra at 245-246, the Board set forth the following
analytical approach for application of the Great
Dane test in this context:
Under this test, the General Counsel bears
the prima facie burden of proving at least
some adverse effect of the benefit denial on
employee rights. The General Counsel can
meet this burden by showing that (1) the bene-
fit was accrued and (2) the benefit was with-
held on the apparent basis of a strike. . . .
Once the General Counsel makes a prima
facie showing of at least some adverse effect
on employee rights the burden under Great
Dane then shifts to the employer to come for-
ward with proof of a legitimate and substantial
business justification for its cessation of bene-
fits. The employer may meet this burden by
proving that a collective-bargaining represent-
ative has clearly and unmistakably waived its
employees' statutory right to be free of such
discrimination or coercion. . . . If the employ-
er does not seek to prove waiver, it may still
contest the disabled employee's continued enti-
tlement to benefits by demonstrating reliance
on a nondiscriminatory contract interpretation
8 285 NLRB 241 (1987) See also Bil-Mar Foods, 286 NLRB 786 (1987),
applying Texaco to an employer's refusal to pay benefits to strikers
743
that is "reasonable and . . . arguably correct,"
and thus sufficient to constitute a legitimate
and substantial business justification for its
conduct. Moreover, as under Great Dane, even
if the employer proves business justification,
the Board may nevertheless find that the em-
ployer has committed an unfair labor practice
if the conduct is demonstrated to be "inherent-
ly destructive" of important employee rights
or motivated by antiunion intent. [Footnotes
omitted.]
Applying this analysis to the facts here, we find
that the General Counsel has made a prima facie
showing of a violation of Section 8(a)(3) and (1) by
denying holiday pay to strikers for July 4, 1981,
and July 4, 1982, and Memorial Day 1982. The
governing provisions in the Respondent's handbook
provide that eligible employees "will be paid" for
designated holidays including Memorial Day and
July 4. Although this provision contains an active
"on duty" requirement, this requirement is modi-
fied, on its face, by an exception pursuant to prear-
ranged agreement with management. Further, the
provision contains an additional exception for med-
ical absences and, therefore, provides for payment,
in certain circumstances, to employees notwith-
standing their absence from work on eligibility
dates. Accordingly, we find that the General Coun-
sel has shown that holiday benefits were due and
payable to the striking employees and had accrued.
Further, it is undisputed that the Respondent
denied holiday pay to strikers while paying holiday
benefits to employees who did not withhold their
services. The benefits, therefore, were withheld on
the apparent basis of the strike. Consequently, the
burden shifts to the Respondent to prove a legiti-
mate and substantial business justification for the
denial of holiday pay benefits to the strikers.
Turning to the Respondent's defense, we find
that the Respondent has established a legitimate
and substantial business justification for its denial of
holiday benefits by demonstrating its reliance on a
nondiscriminatory interpretation of the governing
handbook, which is reasonable and arguably cor-
rect. Thus, with regard to the July 4, 1981 holiday,
the handbook provision expressly provides for an
active on-duty work requirement on the working
day before and the working day after the holiday.
The strikers did not work on the working day after
the July 4, 1981 holiday and thus, under its terms,
it was reasonable for the Respondent to construe
this provision in a manner denying holiday pay for
that date. Although the provision provides for ex-
ceptions on arrangement with management, there is
no record evidence of any discriminatory past
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
practice or use of this exception in a manner that
discriminated against strikers. With regard to Me-
morial Day and July 4, 1982, the Respondent rea-
sonably relied on the handbook provision requiring
employees to be on active work status during the
3-month period preceding the holiday. As the em-
ployees were on strike until May 1982, and thus
not on "active" work status until that time, the Re-
spondent was arguably correct in denying holiday
pay for Memorial Day and July 4, 1982.
Additionally, we find no basis to conclude that
the failure to pay holiday benefits for these three
holidays was "inherently destructive" of statutory
rights. The denial of these benefits would not
create continuing obstacles to the exercise of em-
ployee rights or impede the collective-bargaining
process. See Bil-Mar Foods, supra, 286 NLRB 789.
Further, there is no evidence that application of
the handbook provisions to the denial of holiday
pay was undertaken in a discriminatory manner or
was motivated by antiunion intent.
Accordingly, we find that the Respondent did
not violate Section 8(a)(3) and (1) by denying holi-
day benefits to striking employees and did not vio-
late Section 8(a)(1) by informing them of that deci-
sion.9
With regard to allegations pertaining to the im-
position of requalification periods for medical in-
surance and disability insurance benefits, we note
the following. As the 6-month requalification
period for medical insurance was rescinded while
the strike still was in progress and, therefore,
before it took effect on returning strikers, the com-
plaint alleged this conduct only as a violation of
Section 8(a)(1) and not as a violation of Section
8(a)(3). The Respondent concedes that the an-
nouncement of the waiting period as to medical in-
surance was in "error" and, therefore, it asserts no
contractual basis for the requalification period. -In
these circumstances, we adopt the judge's fmding
that the announcement of the requalification_ period
for medical insurance to returning strikers tended
Chairman Stephens joins his colleagues in finding that the denial of
holiday benefits did not violate the Act He would find, however, that
the General Counsel did not meet her prima facie burden of showing that
the holiday benefits were accrued In order for employees to be "eligi-
ble" for such benefits in the first instance, the Respondent's handbook
provisions specify that an active , on-duty working requirement be satis-
fied Because they were not actively on duty as a result of the strike, the
strikers did not satisfy the eligibility requirements for accrual as to any of
the holidays at issue Because the General Counsel has not established a
prima facie case under Texaco, Chairman Stephens would dismiss the
8(aX3) allegations without pursuing the Texaco analysis further Howev-
er, assuming that the holiday benefits can properly be regarded as having
accrued , Chairman Stephens agrees with his colleagues that the Respond-
ent set forth a legitimate and substantial business justification for denying
those benefits to the strikers and that the denial was not inherently de-
structive of the strikers ' Sec. 7 rights See his concurring footnotes in
Amoco Oil Co, supra, 285 NLRB 918, 919-920 (1987), and in Johns-Man-
ville Sales Corp., 289 NLRB 358, 365 (1988)
to interfere with the exercise of Section 7 rights in
violation of Section 8(a)(1), but we do not adopt
the judge's fmding that the Respondent also violat-
ed Section 8(a)(3).
The requalification period for disability insurance
benefits, however, was not rescinded until July 12,
1982. As the disability requalification remained in
effect on the strike's termination, the complaint al-
leged the imposition of the requalification period
for disability insurance benefits to be a violation of
Section 8(a)(3) and (1). The Respondent's defense
to these allegations is identical to its defense to the
allegation concerning the medical insurance requa-
lification period. Thus, it concedes that the waiting
period for disability benefits was erroneous. Unlike
the medical insurance waiting period, however, the
disability requalification period remained applicable
to returning strikers, for a time, after termination of
the strike. Accordingly, as there is no factual con-
tention disputing that these established benefits
were accrued, that the requalification period was
implemented on the apparent basis of the strike,
and that the period was announced and implement-
ed without a contractual basis and without a busi-
ness justification, we adopt the judge's findings that
the Respondent violated Section 8(a)(3) and (1).
With regard to the 2-year life insurance requalifi-
cation period, the insurance plan provides that an
eligible employee who has met the initial 2 years of
employment requirement is fully eligible for cover-
age and "shall become insured on the date he be-
comes eligible for insurance." Thus, as to such em-
ployees, we fmd that the insurance benefits were
accrued at the time of the strike. It is also clear
that the requalification period was applied to strik-
ers who were absent as a result of the strike and
was not applied to employees who did not strike.
Accordingly, we fmd that the requalification
period was imposed on the apparent basis of the
strike.
Under the Texaco analysis, once the General
Counsel has met her prima facie burden, as here,
the Respondent must come forward with evidence
of a legitimate and substantial business justification
for the imposition of the requalification period. The
Respondent contends that its conduct was justified
by a desire to avoid increased costs that would
have arisen by "having to shop for and obtain sub-
stitute insurance." As the judge noted, however,
the life insurance requalification waiting period was
established by the Respondent and not by the in-
surance carrier. Most importantly, the waiting
period was subject to waiver by the carrier under
the express terms of the plan, on the Respondent's
request. As the judge found, there is no evidence
that the Respondent made any attempt to pursue
ADVERTISER'S MFG. CO.
such a waiver even though the insurance carrier in-
dicated that a waiver was indeed possible. In these
circumstances, the Respondent's reliance on the
desire to avoid seeking "substitute" insurance is
pretextual as it could have requested a waiver
under the express terms of the existing plan. Ac-
cordingly, we find that the Respondent has not es-
tablished a substantial business justification for an-
nouncing and implementing the 2-year requalifica-
tion period for life insurance, and thereby violated
Section 8(a)(1) and (3).
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
We shall order the Respondent to rescind the in-
crease in health insurance premiums paid by em-
ployees, to rescind requalification requirements for
the reinstitution of life insurance benefits, to make
whole its employees for any loss of earnings or
benefits they may have sustained by reason of the
discrimination practiced against them, to make
them whole for any increases in health insurance
premiums that were imposed after January 1, 1982,
and that were not negotiated in good faith with the
collective-bargaining representative, and to make
them whole for any decreases in piece rates or
changes in job content of piece-rated bargaining
unit jobs that were not negotiated in good faith
with the collective-bargaining representative, as
prescribed in Ogle Protection Service, 183 NLRB
682 (1970), and New Horizons for the Retarded, 283
NLRB 1173 (1987).1° As the announcement, and
imposition of requalification periods for life and
disability insurance may have caused losses in
fringe benefits payments that are more difficult to
calculate than refunds of excessive health insurance
premiums, we shall leave the determination of such
payments to the compliance stage of the proceed-
ing. Merryweather Optical Co., 240 NLRB 1213
(1979). Finally, we shall order the Respondent to
provide the Union with requested information con-
cerning the changes in piecework rates and job
content of bargaining unit piece-rated jobs.I I
10 Interest on and after January 1, 1987, shall be computed at the
"short-term Federal rate" for the underpayment of taxes as set out in the
1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior
to January 1, 1987 (the effective date of the 1986 amendment to 26
U S C § 6621), shall be computed in accordance with Florida Steel Corp,
231 NLRB 651 (1977)
11 The record establishes that the Respondent already has supplied the
Union with requested insurance information Accordingly, in remedying
this violation, we shall not affirmatively require the Respondent to again
provide such information Further , under the circumstances presented in
745
ORDER
The National Labor Relations Board orders that
the Respondent, Advertiser's Manufacturing Com-
pany, Ripon, Wisconsin, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to supply the Union in a timely
fashion with requested information that is relevant
to the Union's responsibility as bargaining agent for
the Respondent's production, maintenance, and
janitorial employees.
(b) Unilaterally changing piece rates and job
content of piece-rated bargaining unit jobs without
notifying and bargaining with the Union concern-
ing such changes if requested to do so; provided
that nothing here shall be construed to require the
Respondent to reduce any piece rates .that it has
heretofore granted.
(c) Unilaterally increasing employee health insur-
ance premiums, unilaterally increasing wage rates
of bargaining unit employees, or making any other
changes in the wages, hours, and terms and condi-
tions of bargaining unit employees without first no-
tifying the Union and bargaining with the Union in
good faith concerning such changes if requested to
do so; provided that nothing here shall be con-
strued to require the Respondent to reduce any in-
creases in wages which it has heretofore granted.
(d) Bypassing the Union and dealing directly
with employees concerning grievances or any
other term or condition of employment.
(e) Informing employees that they have suffered
the forfeiture of fringe benefits or threatening em-
ployees with the loss of fringe benefits because
they are engaging in or have engaged in a strike.
(f) Discouraging membership in or activities on
behalf of Teamsters General Local No. 200, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL-CIO or any other labor organization by
instituting requalification requirements depriving
strikers of their previous insurance coverage.
(g) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Rescind the increase in employee health in-
surance premiums that was announced about Janu-
ary 1, 1982, and bargain collectively in good faith
with the Union concerning the amount of employ-
ee health insurance premiums.
this case , we shall substitute a narrow cease -and-desist provision for the
broad order recommended by the judge
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Rescind any requalification requirements de-
priving returning strikers of their previous insur-
ance coverage.
(c) Rescind any decreases in piece rates or en-
largement of job duties of piece-rated bargaining
unit jobs that were instituted without first notifying
and bargaining collectively in good faith with the
Union, and bargain collectively in good faith con-
cerning changes in piece rates and job content of
piece-rated bargaining unit jobs.
(d) Supply to the Union in a timely fashion all
requested information concerning the changes in
piecework rates and job content of bargaining unit
piece-rated jobs that were instituted during the
strike.
(e) Make whole employees for any loss of pay or
benefits that they have suffered by reason of the
discrimination found, in the manner described
above in the remedy section.
(f) Rescind in writing all announcements of life
insurance requalification requirements.
(g) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(h) Post at the Respondent's Ripon, Wisconsin
plant copies of the attached notice marked "Ap-
pendix."12 Copies of the notice, on forms provided
by the Regional Director for Region 30, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(I) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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 unilaterally change wage rates,
piece rates, or the job content of piece-rated bar-
gaining unit jobs, and WE WILL NOT increase health
insurance premiums without first notifying the
Union and bargaining collectively with it, if re-
quested, concerning such changes.
WE WILL NOT bypass the Union and deal direct-
ly with bargaining unit employees concerning
grievances or any other term or condition of em-
ployment.
WE WILL NOT inform employees that they have
suffered a forfeiture of fringe benefits or impose in-
surance requalification requirements on returning
strikers or discriminate against employees in order
to discourage their membership in or activities on
behalf of Teamsters General Local No. 200, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL-CIO, or any other labor organization.
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 rescind the increases in health insur-
ance premiums that were instituted about January
1, 1982. WE WILL rescind any requalification re-
quirements that deprive returning strikers of their
previous insurance coverage. WE WILL rescind any
decreases in piece rates or enlargement of job
duties of piece-rated bargaining unit jobs that were
instituted during the strike. WE WILL rescind in
writing any notification that employees may or
have suffered the loss of insurance benefits because
they engaged in a strike.
WE WILL supply the Union in a timely fashion
with requested information that is relevant to the
Union's function as bargaining agent.
WE WILL make whole employees for any loss of
pay or benefits that they may have suffered by
reason of the discrimination they have suffered in
this case, with interest.
12 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 "
ADVERTISER'S MANUFACTURING COMPANY
George Strick, Esq., for the General Counsel.
Russ R. Mueller, Esq., of Milwaukee, Wisconsin, for the
Respondent.
ADVERTISER'S MFG CO 747
Donald F. Wetzel, Business Representative, of Fond du
Lac, Wisconsin, for the Charging Party.
DECISION
FINDINGS OF FACT
STATEMENT OF THE CASE
WALTER H. MALONEY, JR., Administrative Law
Judge. This case came on for hearing before me at Fond
du Lac, Wisconsin, upon a consolidated unfair labor
practice complaint,' issued by the Director of the
Board's Region Thirteen and amended at the hearing,
which alleges that Respondent Advertiser's Manufactur-
ing Company2 (sometimes called Admanco) violated
Section 8(a)(1), (3), and (5) of the Act. More particular-
ly, the consolidated complaint' alleges that the Respond-
ent told striking employees that, if they did not return to
work before a stated date, their health insurance and
their disability and life insurance would expire and there
would be extended periods of lack of coverage after any
subsequent return to work because of insurance requalifi-
cation requirements The consolidated complaint goes on
to allege a further violation on the part of the Respond-
ent for telling striking employees that it was waiving re-
qualification requirements of health insurance coverage
for striking employees who would return to work but
that it would still insist upon requalification requirements
for disability income and life insurance for returning
strikers. The consolidated complaint also alleges that the
Respondent implemented a 2-year requalification require-
ment for disability income and life insurance coverage
after strikers returned to work; that it withheld holiday
pay for Memorial Day and July 4, 1982, from returning
strikers; that it withheld 8 hours' pay or the equivalent
from the pay of strikers representing holiday pay for
July 4, 1981; that it refused to supply the Union, in a
timely fashion, with requested information relative to its
self-insured health plan; that it also refused to supply the
Union with requested information concerning changes
made in piece rates and job content during the strike,
that it unilaterally changed incentive rates and instituted
different job content in existing jobs without bargaining
i The principal docket entries in this case are as follows
Charge filed by Teamsters General Local No 200 (formerly Local
126), affiliated with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America (the Union) against Respondent
in Case 30-CA-6882 on December 21, 1981, charge filed by the Union
against Respondent in Case 30-CA-6928 on January 22, 1982, charge
filed by the Union against Respondent in Case 30-CA-6985 on February
24, 1982, charge filed by the Union against Respondent in Case 30-CA-
7155 on June 8 , 1982, consolidated complaint issued by the Director, for
Region 30, on July 22, 1982, Respondent's answer filed August 16, 1982,
hearing held in Fond du Lac, Wisconsin, on October 4 and 5, 1982, briefs
filed with me by the General Counsel and the Respondent on or before
November 15, 1982
2 Respondent admits, and I find, that it is a Wisconsin corporation
which maintains its principal place of business in Ripon, Wisconsin,
where it is engaged in the manufacture and sale of cloth specialty prod-
ucts In calendar year 1981, it sold and shipped from its Ripon, Wiscon-
sin, plant directly to points and places located outside the State of Wis-
consin goods and materials valued in excess of $50,000 Accordingly, Re-
spondent is an employer engaged in commerce within the meaning of
Sec 2(2), (6), and (7) of the Act See Advertiser's Mfg Co, 256 NLRB
644 (1981)
with the Union concerning such changes; that it dealt di-
rectly with employees on wages, hours, and terms and
conditions of employment when it instituted a "Quality
of Work Life" program and used this program as a vehi-
cle for directly soliciting and adjusting employee griev-
ances; that it instituted a wage rate adjustment for 1982
without notifying the Union or offering to bargain with
it; and that it did the same for changes in the family
medical insurance when it increased premiums by $12 a
month for unit employees. Respondent denies that it had
any obligation to bargain with the Union while it was
engaged in litigation testing the validity of the Union's
certification as bargaining representative. It seeks to jus-
tify the withholding of holiday pay on the basis of the
fact that the strikers claiming such pay had not complied
with certain related attendance requirements set forth in
the Respondent's personnel manual, and claims that it
had not provided the information to the Union alleged in
the consolidated complaint either because the Union had
not requested this information or had not made a clear
and specific request for the data. Respondent also argues
that many of the allegation in the consolidated complaint
are time barred. On these contentions the issues were
joined.
1. THE UNFAIR LABOR PRACTICES ALLEGED
The consolidated complaint gives rise to the fourth
Board or court case in the past 3 years involving the ef-
forts of this Union (or its predecessor) to organize and
represent the production and maintenance employees at
the Respondent's Ripon, Wisconsin plant. Respondent
has been in business at this location for many years and
manufactures a variety of cloth products, such as caps,
aprons, and handbags, on which it imprints advertising
and promotional emblems and messages On September
12, 1980, when a representation election was conducted
at the Respondent's plant, it employed about 150-160
employees (Case 30-RC-3809).
The Union won that election by better than a 2 to 1
margin and was certified on January 19, 1981 The Re-
spondent refused to bargain to test the certification. On
June 17, 1981, it was directed by the Board to recognize
and bargain with the Union (256 NLRB 644) It declined
to do so On April 27, 1981, the Board's Decision and
Order was upheld by the United States Court of Appeals
for the Seventh Circuit (677 F 2d 544). (This Board case
is referred to herein as Advertiser's I) While Advertiser's I
was in litigation, the Regional Office sought and ob-
tained a temporary injunction against the Respondent
pursuant to Section 10(j) of the Act, in which the U.S.
District Court for the Eastern District of Wisconsin di-
rected the Respondent to refrain from making unilateral
changes in the wages, hours, and working conditions of
bargaining unit employees without first notifying and
bargaining with the Union. Squillacote v. Civil Action No
81-C-343 (E.D. Wis. 1981), Advertiser's Mfg. Co., herein
called Advertiser's II. The district court injunction in Ad-
vertiser's II was upheld by the Seventh Circuit in the
same decision in which enforcement was granted in Ad-
vertiser's I (Advertiser's Mfg. Co. v. NLRB, 677 F.2d 544
(7th Cir. 1982).
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
While these two cases were in litigation , the General
Counsel issued an unfair labor practice complaint against
the Respondent which was heard by Administrative Law
Judge Richard A . Scully in the spring of 1981 . In a deci-
sion which was issued on December 29, 1981, Judge
Scully found the Respondent guilty of a host of unfair
labor practices , including threats to impose more onerous
working conditions on employees if they selected the
Union as their bargaining agent , discharging a supervisor
because she or her relatives supported the Union , issuing
disciplinary warnings against union adherents , instituting
changes in working conditions such as discontinuing em-
ployer telephone privileges, prohibiting the taking of
breaks in the loading dock area , tightening up its tardi-
ness policy and its policy concerning taking leave for
personal reasons , and reducing the workweeks of several
employees and changing their piece work rates and
methods of payment See Advertiser 's III [200 NLRB
1185 (1986)]. As of this writing this case is pending
before the Board on exceptions . The present case in-
volves actions on the part of the Respondent which
began shortly after the hearing before Judge Scully in
Advertiser 's III. For the most part , these events occurred
during a strike which lasted from about July 6, 1981,
until about May 10, 1982. A few of the alleged violations
occurred immediately following the conclusion of that
strike.
A. Actions of the Respondent During the 1981-1982
Strike
The 9-month strike which the Union called in the
summer of 1981 was undertaken to protest the Respond-
ent's refusal to honor the Board's bargaining order,
which was issued on June 17, 1981. The Respondent ad-
mitted in its pleading that the strike was an unfair labor
practice strike The strike began just after the conclusion
of the annual summer shutdown of the plant, which takes
place each year during the week which includes the In-
dependence Day holiday, All but about 5 of the Re-
spondent's production and maintenance employees sup-
ported the strike, although about 20 strikers returned to
work before it ended. The Union called off the strike in
May, 1982, shortly after the Seventh Circuit issued its
decision in Advertiser's I and the Respondent agreed to
recognize the Union and bargain with it. During this in-
terim, the Respondent attempted to operate the plant
with supervisors, clerical employees, and a large number
of temporary employees that it hired from outside. At
the conclusion of the strike, at least some of the tempo-
rary strike replacements were terminated to make room
for returning strikers.3
In the early summer of 1981, the Respondent anticipat-
ed that a strike might soon take place, so Plant Superin-
tendent Don Debow posted a notice, dated June 25,
1981, which stated in part:
In view of the information that some employees
may engage in a strike against the company some-
3 During the course of the strike Respondent hired an aggregate of
about 230 new employees, although it had no more than 109 employees
on its payroll in the production and maintenance unit at any given time
time after the plant shutdown for vacation, an ex-
planation of the upcoming paycheck is in order.
The paychecks for vacation and holiday pay were
prepared prior to knowledge of the information re-
garding the strike. This check, in accordance with
Company policy which will be handed out Friday,
June 26, 1981, along with your regular paycheck
for the week ending June 20, includes pay for four
vacation days and holiday pay for those eligible.
However, entitlement to the holiday pay requires
that you work the day before and the day after,
namely Friday, June 26 and Monday, July 6. Those
who fail to meet the requirements as outlined in the
company handbook will owe the Company eight
hours of pay. The floating vacation day, for the em-
ployees that are eligible, may be used to take care
of this overpayment. Other arrangements for this
repayment will subsequently be made for those who
are not eligible for one week's vacation and did not
meet the entitlement requirements for holiday pay.
The entitlement requirements referred to above in the
plant superintendent's notice are found in the Admanco
Employee Handbook and state that, in order to be eligi-
ble for holiday pay on any of the seven paid holidays, an
employee must have been "actively in our employ"
during the 3 months preceding the holiday and must be
on duty the working day before and the working day
after the holiday. If an employee's vacation includes a
paid holiday, holiday pay will be given only .if he is on
duty on the working day preceding and the working day
following the vacation. The handbook further provides
that exceptions to this rule "may be taken . . . upon pre-
arranged agreement with management and the Superin-
tendent's office."
Because the vast majority of the Respondent's employ-
ees began to strike on July 6, they did not fulfill the
above-stated requirement of being "actively in (the)
employ" of the Respondent on the day following the In-
dependence Day holiday and were not, in the estimation
of the Respondent, entitled to the holiday pay which
most of them had already received. Accordingly, the Re-
spondent docked the accrued vacation time of most of
the strikers by 8 hours in order to make up for the pay-
ment for the July 4th holiday Because of clerical errors
or because 13 employees did not have 8 hours of accrued
vacation pay, Respondent docked the pay of these em-
ployees after they returned from the strike by 8 hours, at
1981 wage rates, in order to recoup holiday payments
made to them for July 4, 1981 In the case of three indi-
viduals who had left the Respondent's employ, it was
unable either to dock their accrued vacation or their cur-
rent paychecks, so the Respondent remains unreimbursed
for payments made to them.
Since 1971, the Respondent has provided its employees
with a noncontributory policy of life insurance and dis-
ability insurance which is issued by the Safeco Life In-
surance Company of Seattle, Washington. This policy, as
well as a partially contributory program of medical and
hospitalization insurance, are administered by Wisconsin
Pension and Group Services located in Milwaukee. The
medical and hospital plan covering Respondent's em-
ADVERTISER'S MFG CO
ployees is, in large part, self funded by the Respondent.
Wisconsin Pension and Group Services handles claims
under the plan and also provides the Respondent with an
umbrella policy covering unusually large aggregate or
individual claims.
For the first 6 months of the strike, the Respondent
continued to make payments into the health insurance
fund to maintain coverage for striking employees. On
November 23, 1981, Respondent 's personnel director, Jill
Cartier Chatterson, sent a letter to all strikers reminding
them that their health insurance would expire on Decem-
ber 31. She went on to tell them that, if an employee did
not return to work until after January 1, "1982, he would
not be covered by medical insurance during the first 60
days of his reinstatement and would not be covered by
disability income and life insurance policies for a period
of 2 years following reinstatement because of requalifica-
tion requirements found in those respective policies. She
repeated this message in another letter to strikers dated
December 15, 1981.
On December 9, 1981, the Union Business Agent,
Donald F Wetzel, wrote to the Company Counsel Russ
R. Mueller , requesting a copy of the Company' s insur-
ance plan "to determine (1) if in fact, Advertiser's is self-
insured and (2) just exactly what the provisions of the
plan are." By letter dated December 14, Mueller replied
by telling that such a request would be appropriate in an
established collective-bargaining relationship but, because
the validity of the Union's certification was still being re-
viewed by the Seventh Circuit, the request was being re-
fused Mueller also expressed the opinion that the terms
of the outstanding District Court injucntion did not
impose upon him any obligation to comply with Wetzel's
request. Later, after the Respondent agreed to comply
with the decision of the Seventh Circuit, Mueller fur-
nished the requested information by letter to Wetzel
dated August 9, 1982.
Respondent has maintained the policy over a period of
years of granting an annual wage revision beginning in
January. It followed this policy in January, 1982, by in-
creasing "wage rates and piece rates by 3%." At the
same time, it increased the employee contribution to the
health insurance plan from $38 to $50 per month. There
is no suggestion that the Respondent either notified the
Union of these proposed changes or offered to bargain
concerning them. They were first brought to the atten-
tion of employees by means of a notice, posted on De-
cember 29, 1981, and signed by Edward W. Bumby. The
notice, entitled "Wage Revisions for 1982," read as fol-
lows:
The following revision will be made in the pay
scales for 1982 which will be effective January 4,
1982, except for employees working any hours on
January 2 or 3 will be paid at the new wage scale.
January 1, 1982, holiday pay will be based on the
1981 hourly wage scale and 4th quarter average for
incentive workers.
1. All hourly straight-time rates of pay will be in-
creased 3% unless employees are otherwise notified.
All hourly employee now earning $5.86 per hour or
749
more, except supervisors, will be increased 18% per
hour.
2 All piece rates will be increased by 3%.
3. Some rates of pay will be adjusted individually
as deemed necessary by management.
Additionally, the Hospital/Medical Insurance, for
which the Company pays a single premium, will in-
crease in cost approximately 1-1/2%. This extra ex-
pense will be paid for by the Company as a fringe
benefit provided to qualifying employees.
Employees participating in the Family Hospital-
Medical plan will be paying $50 per month as op-
posed to $38 per month which was paid in 1981.
Employees utilizing the family plan will be paying
approximately 1/2 of the additional premium for de-
pendent coverage as the Company will pick up the
balance.
The guaranteed minimum wage for all incentive
employees will continue to be $3.35 per hour.
After the strike, another notice was posted on June 15
which reiterated to returning strikers the fact that their
monthly health insurance deduction had been increased
by $12
In January 1982, faced with the presence in the plant
of a large number of new employees who had been hired
during the strike, the Respondent instituted what it
called a Quality of Work Life Program. Under this pro-
gram, management representatives conducted hour long
meetings with groups of about 15 or so employees to dis-
cuss the operations of the plant. A notice, dated January
14, 1982, was placed on the bulletin board and read, in
part.
Starting next week, we are starting a program
which we call QUALITY OF WORK LIFE
(Q W L.). This program will afford you the oppor-
tunity to share your suggestions, criticisms, ques-
tions, problems, compliments , etc., with manage-
ment personnel during a group meeting. The idea of
these meetings is to get your input so that we can
develop a better working atmosphere for every em-
ployee. [Emphasis in the original ]
There was no suggestion that union representatives
would be invited to any of these meetings and in fact
none were present.
Approximately nine meetings took place from January
18 through January 29. Shortly thereafter, the Respond-
ent prepared and published detailed resumes of the dis-
cussions which took place, the suggestions which were
made, and management responses to employee requests.
These resumes are to be found in the record. A partial
summary of the items contained indicate that the discus-
sions dealt in large part with employee complaints. For
instance, at the meeting of the printing and cutting de-
partments, the employees complained about safety fea-
tures of the presses and made specific suggestions for re-
vision of these machines. The Respondent's reply was
that "these things are being looked into and the mechan-
ics are designing options at this time." Employees com-
plained about the ventilation in the silk screen depart-
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
merit and the Respondent replied that it had contracted
material suppliers and individuals responsible for the ven-
tilation system to see if they could improve ventilation.
Respondent also stated that it had assigned engineers to
examine the problem. Employees complained that the
cutting department needed another employee. Printing
department employees asked to be placed on piece rate.
In other departments, employees requested a 4-day
workweek, reported that oven belts needed to be fixed,
complained that piece-rated screen printers did not have
long enough break periods and that piece rates were
needed for the production of printed towels. Other em-
ployees voiced other complaints and suggestions running
the gamut from radio announcements of plant closings
during inclement weather to objections that material dye
was coming off on clothing while goods were being
sewn. In each instance, the Respondent provided a writ-
ten response, in some instances promising remedies and
in other instances rejecting the complaint or suggestion.
On January 25, 1982, Minch wrote a letter to all em-
ployees in which he stated that the Company had re-
quested its insurance company to waive the eligibility re-
qualification condition for coverage under the health
protection plan and that the carrier had agreed to do so.
Accordingly, any employee who reported back to work
after that date would not have to wait 60 additional days
to renew his health insurance coverage but would be eli-
gible for these benefits immediately on return. However,
the renewed coverage would not extend to expenses in-
curred between December 31, 1981, the date on which
the Respondent ceased to make health insurance pay-
ments for strikers, and the date on which any employee
might abandon the strike. The letter also recited the fact
that the requalification period for disability income and
life insurance for returning strikers would continue to be
2 years, during which time no returning striker would be
entitled to enjoy these benefits.
The parties stipulated that, during the strike, the Re-
spondent established or assigned incentive piece rates
pursuant to its preexisting incentive system. The changes
in production methods or modifications in existing jobs
that came about could result in the application of a pre-
existing ant previously used piece rate for the same or
similar products, and the application of these rates to
new or existing products could affect the wages of incen-
tive employees who were working in the bargaining unit
during the strike. The Respondent admits that it did not
negotiate any of these changes with the Union.
When the Respondent agreed to comply with the Sev-
enth Circuit's decision, the Union agreed to abandon the
strike. The parties met on May 3 to discuss initiation of
bargaining and the resumption of production with strik-
ing employees. By May 10, all strikers who wished to
return to work were back on the job. Since that date the
Respondent and the Union have had numerous meetings
to discuss both terms and conditions of a collective-bar-
gaining agreement and the resolution of a large number
of problems and specific grievances which were inciden-
tal to the return of striking employees to the plant. I
credit Wetzel's testimony that, at a meeting on June 2, he
requested from the Respondent a list of piece rate
changes and job content changes which occurred in the
bargaining unit during the strike. The purpose of the re-
quest was to permit the Union to formulate bargaining
demands and possibly to negotiate any grievances which
might arise out of those changes. While admitting that
such changes took place during the strike, the Respond-
ent has failed to come forth with most of the requested
information.
After the strikers returned, they were informed that
they would not receive any holiday pay for the Memori-
al Day and Independence Day holidays in 1982. The
reason for this decision was a provision, recited above, in
the Employee Handbook requiring an employee to be in
the active service of the Respondent for 3 months imme-
diately preceding the receipt of holiday pay. Since strik-
ers did not return to work until May 10, this requirement
could not be fulfilled pertaining to holidays falling on
May 30 and July 4. On July 12, 1982, the Respondent
notified its employees that the 2-year requalification pro-
vision for eligibility for disability insurance coverage had
been waived for returning strikers but also informed
them that this limitation for life insurance coverage still
remained.
II. ANALYSIS AND CONCLUSIONS
A. The Defense of Limitations
Respondent contends that any violations growing out
of its refusal to pay striking employees pay for July 4,
1981 (either by docking accrued vacation entitlement or
the wages of returning strikers), its slowness in providing
the Union with copies of its medical, disability insurance,
and life insurance plans, and its unilateral changes of in-
centive rates and products during the strike may not be
prosecuted by the General Counsel because these acts or
omissions occurred more than 6 months before the filing
of the last of the four charges in this consolidated case.
The contention is without meet.
The earliest of the four charges involved in this case
was filed on December 21, 1981, and, under Section
10(b) of the Act, is timely enough to reach violations
which occurred as early as May 21, 1981. None of the
events litigated in this case took place until a month or
more after that date. Under the ruling of the Supreme
Court in NLRB v. Fant Milling Co., 360 U.S. 301 (1959),
cited by the Respondent in its brief, once a charge has
been filed, the General Counsel is entitled, on the
strength of that charge, to prosecute unfair labor prac-
tices which take place after the filing date as well as vio-
lations occurring before the charge was filed. The charge
in Case 30-CA-6882 alleges, in paragraph 1(h), that the
Respondent violated Section 8(a)(1), (3), and (5) of the
Act. This allegation is broad enough to encompass any
violation of any of these sections, irrespective of the
specifications contained in the following paragraph.
There is nothing in Section 10(b) of the Act which re-
quires that a charge be particularized. Such is the func-
tion of a complaint. The underlying statutory purpose re-
quiring the filing of a charge is to prevent the Board
from initiating investigations sua sponte in the same
manner in which other law enforcement agencies are oc-
casionally disposed to operate. Once the statutory ma-
ADVERTISER'S MFG CO
chinery has been set in motion by the charge, the Gener-
al Counsel is not limited by the niceties of common law
pleading in formulating and issuing a complaint. He may
address whatever the investigation of the charged re-
spondent turns up and whatever occurs while the investi-
gation is in progress. See Teamsters Local 705 (Associated
Transport), 209 NLRB 292 (1974), and cases cited at 302-
304, enfd. sub nom . Kesner v. NLRB, 532 F.2d 1169 (7th
Cir. 1976), cert. denied 429 U.S. 1022 (1976). According-
ly, I conclude that the charge filed by the Union against
the Respondent in Case • 30-CA-6882 is broad enough
and timely enough to support each and every substantive
allegation in the consolidated complaint.
B. The Obligation of the Respondent to Bargain While
Testing the Certification
The Board and courts have long held that one who re-
fuses to bargain with a certified union does so at his
peril. If the certification is found to be valid, then any
infringements of Section 8(a)(5) which occur while a test
case is sub judice constitute separate violations of the
Act for which a Board remedy is appropriate There is
absolutely no legal basis for the position which the Re-
spondent arrested at the hearing that a Board certifica-
tion does not mean anything until a court of appeals says
it does. Ample authority to the contrary was cited both
in Judge Scully's decision in Advertiser's III and in the
Seventh Circuit's opinion upholding the District Court
injunction in Advertiser's II. It is unlikely that a repetition
of case citations on this point will afford the Respondent
further enlightenment Persistence by the Respondent in
this error only gives rise to the inference that it is at-
tempting to substitute litigation for good-faith bargaining.
Certain dicta in the Katz case, infra, quoted by the Re-
spondent in its brief, can afford no support for its ac-
tions, inasmuch as the unilateral changes in wages and
working conditions undertaken by the Respondent
during the strike were wholly discretionary on its part.
Accordingly, the Respondent was not free to adjust
employee wage rates and piecework rates unilaterally in
January 1982, without bargaining with the Union con-
cerning this subject The fact that this employer had a
past history of making across-the-board wage adjust-
ments in January for the ensuing year is no defense.
Once a union has achieved bargaining rights, these mat-
ters must be negotiated, regardless of what the past prac-
tice has been. NLRB v. Katz, 369 U.S. 736 (1962), Oneita
Knitting Mills, 205 NLRB 500 (1973); St. Elizabeth Com-
munity Hospital, 240 NLRB 937 (1979). Respondent was
not free unilaterally to impose upon bargaining unit em-
ployees a larger contributory fee for health insurance
coverage without first meeting and discussing this pro-
posal with the Union. Its defense of economic necessity
is inapplicable to a refusal to bargain in good faith.
Massey Ferguson, Inc. v. NLRB, 78 LRRM 2289 (7th Cir.
1971). In the context of a bargaining obligation, econom-
ic necessity is an issue for the negotiating table, not for a
Board proceeding.
Respondent was not free to withhold from the Union
information requested by the Union concerning the exist-
ence and substance of company insurance plans for bar-
gaining unit employees, information which was not sup-
751
plied until about 9 months after it was requested. Fry
Foods, 241 NLRB 76 (1979). It was under an obligation
to bargain with the Union concerning changes in produc-
tion methods, modifications in job content, and the impo-
sition of or changes in piece rates which took place
during the strike. It was under an obligation to inform
the Union, upon request, as to what, if any, new or
changed piece rates or changes in job content were es-
tablished during the strike. Womac Industries, 238 NLRB
43 (1978); Brooklyn Union Gas Co, 220 NLRB 189
(1975); Barney Mfg., 219 NLRB 41 (1975). I credit Wet-
zel's testimony that, on June 3, he requested such infor-
mation from the Respondent and that it has, to date,
failed to supply it. The request was clear and definite on
its face and the Respondent expressed no doubt as to its
meaning until the Board case arose. Moreover, it pro-
duced no evidence beyond a naked assertion about why
it would be impossible to tell the Union specifically what
it did in these areas during the strike By each of the
above recited actions and by its failures to supply infor-
mation to the Union which is relevant to the latter's re-
sponsibilities as bargaining agent and to do so in a com-
plete and timely fashion, the Respondent violated Sec-
tion 8(a)(1) and (5) of the Act.4
It is an independent violation of Section 8(a)(1) of the
Act for an employer , during an organizing campaign, to
solicit grievances from employees with a view toward
adjusting them. After a union has been certified as bar-
gaining agent, it is a violation of Section 8(a)(5) of the
Act for an employer to do the same thing without per-
mitting the Union to be present and without negotiating
such matters with the Union, because such actions
amount to bypassing the collective-bargaining agent and
dealing directly with employees conceining wages,
hours, and terms and conditions of employment. Dow
Chemical Co., 215 NLRB 910 (1974), and on remand 227
NLRB 1005 (1977) As recited above, the Respondent
had hour long meetings with groups of 15 employees,
most of whom were new hires, during the last 2 weeks in
January No union representatives were present or were
invited to be present. The notice which was posted to
announce these meetings stated that "this program will
afford you the opportunity to share your suggestions,
criticisms, questions, problems, compliments, etc. with
management personnel. The idea of these meetings is to
get your input . . . ." In short, the announcement was a
written invitation to unit employees to voice their griev-
ances directly to management without the intervention of
their bargaining agent As noted before, many of the
grievances so presented were later adjusted and, in those
cases in which management thought the grievance was
without merit or beyond its ability to resolve, it still re-
sponded to the employees in question, in many instances
offering explanations as to why the complaint or sugges-
4 Respondent argues in its brief that no Board order should be issued
concerning the request for insurance information since the information
was ultimately supplied The gravamen of the Respondent's misbehavior
in this regard is the delay which it caused in supplying the information
As Board orders are prospective in character and are designed to dis-
courage future violations as well as to remedy previous ones, an order
addressed to this violation should be issued
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion could not be favorably acted upon. Hence, the moti-
vation for the Quality of Work Life Program was to so-
licit and, where possible, to adjust employees grievances,
thereby dealing directly with unit employees and bypass-
ing their union representative. Accordingly, the Re-
spondent violated Section 8(a)(1) and (5) of the Act by
instituting and implementing this program. St Mary's
Home, 258 NLRB 1024 (1981).
C. The Withholding of Benefits Because of Strike
Activity
It is well settled that an employer has no obligation to
compensate striking employees in any way, whether by
wage payments or the continuation of fringe benefits
during the strike. However, employees may not be sub-
jected to a forfeiture of rights and benefits which they
would otherwise enjoy because of their strike activity.
This basic policy has been applied in a number of situa-
tions similar to the ones found in the instant proceeding.
In Moore Business Forms, 224 NLRB 393 (1976), enfd. in
part 574 F.2d 835 (5th Cir. 1978), the employer treated
returning strikers as new employees for purposes of
health insurance, thereby forcing them to wait 90 days
before resuming coverage. Its policy applied even to re-
turning strikers who had converted their previous cover-
age from the employer's group policy to individual poli-
cies during the strike. There was record evidence in that
case that the insurance carrier did not seek to impose a
waiting period and that, under normal circumstances,
any defaulting employees who failed to pay his monthly
contribution would be immediately reinstated simply by
payment of the premium that was due. The Board and
the court held that this treatment of strikers was inher-
ently destructive of protected rights, was not justified by
any legitimate business purpose, and violated Section
8(a)(1) and (3) of the Act.
In Textron, Inc., 257 NLRB 1 (1981), the employer
maintained for its employees a noncontributory plan of
life, accident, and medical insurance which, by its terms,
ceased to cover any employee when he ceased active
work, except for sickness, injury, temporary layoff, leave
of absence, pensioned, or retired. In these instances, they
could resume coverage immediately on returning to
work. In other circumstances, including a strike, an em-
ployee who ceased active work would not be covered
during the first sixty days should he return to work. The
Board held that this provision of the plan, as it applied to
returning strikers, violated Section 8(a)(3) of the Act,
since there was no substantial evidence of a business jus-
tification for the waiting time provision. There are other
insurance coverage cases in accord, as well as cases ap-
plying the same principles to prestrike probationary em-
ployments and to accrued vacation pay.'
In this case, the Respondent, having paid its employees
the July 4th holiday pay before the commencement of
the 1981 strike, sought to recoup the payment, either by
docking accrued vacation benefits of each striker some 8
hours or by deducting from the paychecks of 13 striking
6 Freezer Queen Foods, Inc, 249 NLRB 330 (1980)
e Elmac Corp, 225 NLRB 1188 (1976), Frick Co, 161 NLRB 1089
(1966).
employees the equivalent of 8 hours' pay. Its justification
was that unit employees, by going on strike on July 6,
the first working day immediately following the holiday,
forfeited previously paid holiday pay to which they
would otherwise be entitled. In support of this position,
Respondent cites the provision of the company hand-
book which sets forth the not unusual requirement that
an employee must work the day immediately before and
the day after a holiday in order to qualify for holiday
pay. Had the employees in question worked on July 6
and commenced their strike on July 7, they would have
been entitled to the holiday pay at issue. In this situation,
the decision of employees to strike on July 6 brought
about a forfeiture of a fringe benefit, not merely nonpay-
ment for time not worked. No business justification was
established in the record to justify the forfeiture. Ac-
cordingly, the action of the Respondent in withholding
these benefits violated Section 8(a)(1) and (3) of the Act.
Similarly, when employees returned to work, they did
not receive holiday pay for Memorial Day or for Inde-
pendence Day 1982, because the strike had ended less
than 3 months before these holidays and the company
personnel handbook requires all employees to be em-
ployed 3 full months before a holiday in order to be eli-
gible to receive holiday pay. There is no business justifi-
cation in this record to warrant the application of this
provision to returning strikers, many of whom had been
employed by the Respondent for periods of many years
before the strike and who retained their status as employ-
ees throughout the course of the strike. In this case, as in
the case of the recoupment of 1981 holiday payments,
the Respondent was imposing a forfeiture on employees
because of their decision to go on strike. It was not
merely failing to pay them for time not wor,)ed. As no
business justification appears in the record for this action,
I conclude that it violated Section 8(a)(1) and (3) of the
Act.
A variation on the same theme occurred by the action
of the Respondent in telling its employees that they
could be or would be subjected to a period of loss of
health insurance coverage, disability insurance, and life
insurance on their return to work by virtue of their
strike activity. In the case of health insurance, striking
employees were told that, if they did not come back to
work before January 1, 1982, they would not have health
insurance coverage for the first 60 days of their reem-
ployment, if and when they finally did decide to abandon
their strike and start working. They were also told that
the period of time they would be without disability and
life insurance on return to work would be 2 years. On
January 25, 1982, while the strike was still in progress,
employees were informed that the Respondent had re-
quested the insurance carrier to waive health insurance
requalification requirements, that the insurance company
had agreed to do so, and that henceforth any returning
striker could resume health insurance coverage immedi-
ately on reporting for work. In July 1982, the 2-year dis-
qualification was removed from the disability insurance
and this coverage was again extended immediately to all
returning, strikers. However, the requalification require-
ment of 2 years of additional service still extended to all
ADVERTISER 'S MFG. CO
returning strikers , regardless of the extent of their service
with the Respondent before the strike.
Respondent attempts to place the blame for these shift-
ing requirements on its insurance company, ignoring the
fact that its policy or plan of medical and hospital insur-
ance is largely one of self-insurance . Respondent also
avoids the fact that any obligations owed to its employ-
ees, including returning strikers , are direct obligations be-
tween employer and employee , not obligations owed by
an insurance company to Respondent 's employees. The
fact that one insurance company had, or may still have,
some qualms about reinsuring returning strikers does not
mean that all insurance companies have similar misgiv-
ings or that the Respondent could not cover the various
requalification periods at its own risk . The Respondent
may not establish a business justification by simply laying
off its liability for complying with the Act on an insur-
ance carrier.
The establishment and announcement of requalification
periods for returning strikers is an imposition of a forfeit-
ure due to strike activity . The Respondent had no obliga-
tion to continue health insurance coverage for its striking
employees during the strike. Its decision to do so was a
matter of grace, not a legal requirement . However, its
decision to impose requalification periods on returning
strikers is another matter . In point of fact , Respondent's
insurance carrier did not persist in any demand for re-
qualification periods before reinstituting health insurance
coverage and disability insurance coverage . The insur-
ance company failed to extend such coverage to return-
ing strikers for short periods of time simply because the
Respondent had not requested waivers of requalification
periods When the Respondent requested waivers, the in-
surance company agreed and two of the three requalifi-
cation periods were dropped . Health insurance was rein-
stated immediately upon a striker 's return as of January
25 and disability income insurance was reinstated with-
out a waiting period , as of July 12. The onus for the an-
nouncement and imposition of requalification periods for
these policies lies wholly upon the Respondent, not its
insurance carrier
With respect to the group life insurance policy, the
carrier informed the Division of Advice during the con-
sideration of this case in its investigation stage that the
waiting period under the life insurance policy was estab-
lished by the employer , not the insurance company, and
that the carrier would typically waive this period if em-
ployees were to be rehired within 6 months after the
strike began It went on to state that, if employees were
absent from work from 6 to 12 months, it would be pos-
sible but less likely that the insurance company would
agree to waive the requalification period but that it
would not consider such a waiver unless the employer
requested it and furnished the underwriting department
with information covering the health of "rehired" em-
ployees It should be noted that no such requalification
period is imposed upon employees who are out of work
because of temporary layoff or on leave of absence. The
Company's reason for reinstating disability insurance on
July 12 without a waiting period is that the announce-
ment of the requalification period occurred as a result of
a "misunderstanding " with the insurance company and
753
that the waiting period for that policy was there and
then discountinued . The record is silent as to what ef-
forts, if any, Respondent took to obtain a similar waiver
for life insurance coverage or to furnish its carrier with
information which would assist the latter in evaluating a
waiver request and to clear up any "misunderstanding"
regarding this policy. In light of any plausible explana-
tion for announcing and imposing on returning strikers
requalification periods for health , disability , and life in-
surance, and in maintaining this disability as to life insur-
ance, I conclude that this action on the part of the Re-
spondent constituted reprisal for strike activity and, as
such , violated Section 8(a)(1) and (3) of the Act.
What the Respondent was not at liberty to do with re-
spect to insurance policies it was not at liberty to threat-
en to do Hence, when it wrote to strikers threatening
and later informing them of a suspension of insurance
benefits when they returned to -work , the Respondent
was simply attempting to intimidate strikers from exercis-
ing rights guaranteed to them by Section 7 of the Act.
Such threats violate Section 8(a)(1) of the Act.
On the foregoing findings of fact and on the entire
record considered as a whole, I make the following
CONCLUSIONS OF LAW
1. Advertiser 's Manufacturing Company is now and at
al times material has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Teamsters General Local No. 200 , affiliated with
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO is a
labor organization within the meaning of Section 2(5) of
the Act.
3. All regular full-time and regular part -time produc-
tion , maintenance , and janitorial employees employed by
the Respondent at its Ripon , Wisconsin plant, excluding
managers , office clerical employees , guards, and supervi-
sors as defined in the Act constitute a unit appropriate
for collective bargaining within the meaning of Section
9(b) of the Act.
4 Since September 12, 1980, the Union herein or its
predecessor has been the exclusive bargaining representa-
tive of all of the employees in the unit found appropriate
in Conclusions of Law 3 for the purpose of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By failing and refusing to supply the Union in a
timely fashion with a requested copy of the Company's
insurance plan; by unilaterally changing piece rates and
job content of piece-rated bargaining unit jobs without
notifying the Union and bargaining with it concerning
such changes; by failing and refusing to supply the Union
with requested information concerning changes in piece-
work rates and job content of bargaining unit piece-rated
jobs which had been unilaterally instituted during a
strike; in bypassing the Union and dealing directly with
employees concerning grievances and the adjustment of
grievances through the Quality of Work Life Program;
by unilaterally instituting hourly wage increases and
piecework rate increases for 1982 without notifying the
Union and bargaining with it concerning such increases;
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and by unilaterally increasing monthly contributions of
employees for health insurance, the Respondent violated
Section 8(a)(5) of the Act.
6. By docking accrued vacation pay or docking pay-
checks of striking employees in order to recoup payment
of holiday pay previously advanced for Independence
Day 1981; by refusing to pay returning strikers holiday
pay for Memorial Day and Independence Day 1982; by
imposing on returning strikers requalification periods
during which they would not be covered by health, dis-
ability, and life insurance-all in order to discourage em-
ployees from engaging in union activities-the Respond-
ent violated Section 8(a)(3) of the Act.
7. By engaging in the unfair labor practices set forth
above in Conclusions of Law 5 and 6; by threatening
striking employees with suspension or loss of insurance
benefits through requalification requirements unless they
immediately returned to work; and by telling employees
that they had lost insurance benefits through requalifica-
tion requirement because they had engaged or were en-
gaging in a strike, the Respondent violated Section
8(a)(1) of the Act.
8. The strike of Respondent's employees, which com-
menced on or about July 6, 1981, was caused or pro-
longed by unfair labor practices committed by the Re-
spondent.
9. The unfair labor practices set forth above in Con-
clusions of Law 5, 6, and 7, have a close, intimate, and
adverse effect on the free flow of commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has committed vari-
ous unfair labor practices, I will recommend that it be
required to cease and desist therefrom and to take other
affirmative action designed to effectuate the purposes
and policies of the Act. Since the violations of the Act
found herein and in previous cases are repeated and per-
vasive and evidence an attitude on the part of this Re-
spondent to behave in total disregard for the rights of its
employees, I will recommend to the Board a so-called
broad 8(a)(1) remedy designed to suppress any and all
violations of that section of the Act. Hickmott Foods, 242
NLRB 1357 (1979). The recommended Order will pro-
vide that the Respondent be required to rescind the in-
crease in health insurance premiums paid by employees,
to rescind requalification requirements for the reinstitu-
tion of health, disability, and life insurance benefits, to
make whole its employees for any loss of earnings or
benefits they may have sustained by reason of the dis-
criminations practiced against them, to make them whole
for any increases in health insurance premiums which
were imposed after January 1, 1982, and which were not
negotiated in good faith with the collective-bargaining
representative, and to make them whole for any de-
creases in piece rates or changes in job content of piece-
rated bargaining unit jobs which were not negotiated in
good faith with the collective-bargaining representative.
Inasmuch as the failure of the Respondent to pay holiday
pay and its unnegotiated increases in health insurance
will result in awards of liquidated sums which are easily
determined, I will recommend that such amounts be
paid, with interest, computed at the adjusted prime rate
used by the Internal Revenue Service for the computa-
tion of tax payments. Olympic Medical Corp., 250 NLRB
146 (1980); Isis Plumbing Co., 138 NLRB 716 (1962). In-
asmuch as the announcement and imposition of requalifi-
cation periods for various policies of insurance may have
caused losses in fringe benefits payments which are more
difficult to calculate than losses in holiday pay and re-
funds of excessive health insurance premiums, I will
leave the determination of interest on such payments to
the compliance stage of the proceeding. Merryweather
Optical Co, 240 NLRB 1213 (1979). I will also recom-
mend that the Respondent be required to post the usual
notice advising its employees of their rights and of the
results in this case.?
[Recommended Order omitted from publication.]
' I will not recommend an additional' bargaining order of general
import against this Respondent, since it is already under such an order in
Advertiser's I and that order has been enforced by a court decree If the
Respondent will not bargain in good faith pursuant to a court decree it
will avail the Union and the employees nothing to reiterate the same
order in a subsequent Board case