Comau, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 20, 2010

07-CA-052106 (N.L.R.B. May. 20, 2010)

JD–32–10
Southfield, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
COMAU, INC.
and Case 7-CA-52106
AUTOMATED SYSTEMS WORKERS LOCAL
1123, A DIVISION OF MICHIGAN REGIONAL
COUNCIL OF CARPENTERS, UNITED
BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA
and Case 7-RD-3644
WILLIE RUSHING, An Individual
Sara Pring Karpinen, Esq.,
for the General Counsel.
Thomas G. Kienbaum, Esq.
and Theodore R. Opperwall, Esq.
(Kienbaum, Opperwall, Hardy & Pelto, P.L.C.)
Birmingham, Michigan,
for the Charging Party.
Willie Rushing, Pro Se,
for the Petitioner.
DECISION
Statement of the Case
PAUL BOGAS, Administrative Law Judge. This case was tried in Detroit, Michigan, on
November 17, 18, and 19, 2009. The Automated Systems Workers Local 1123, A Division of
Michigan Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of
America (the Union) filed the original charge in case 7CA–52106 on May 19, 2009, and the
amended charge on July 28, 2009. The Regional Director of Region 7 of the National Labor
Relations Board (the Board) issued the Complaint on August 28, 2009. The Complaint alleges
that Comau, Inc. (the Respondent or the Company), has failed to bargain in good faith in
violation of section 8(a)(5) and (1) of the Act by: making unilateral changes to the healthcare
benefits provided to bargaining unit employees without the Union’s consent and without
bargaining to a good-faith impasse; failing to cloak its representatives with the authority to make
proposals or enter into binding agreements; submitting written proposals to the Union without
attempting to gain authority to do so; and introducing a new demand that the Union absorb the
Respondent’s liability for previously accrued health insurance “trailing costs.”
On April 14, 2009, Willie Rushing, an individual, filed the petition in case 7–RD–3644
seeking an election to determine whether the Union should be decertified as the exclusive
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collective-bargaining representative of unit employees. The Regional Director has determined
that substantial and material issues of fact exist as to whether the unfair labor practices alleged
in case 7–CA–52106 bear a causal relationship to the employee disaffection reflected in the
filing of the decertification petition. The Regional Director ordered that the hearings on cases 7–
CA–52106 and 7–RD–3644 be held at the same time and place and requested that, in addition
to serving as the administrative law judge in case 7–CA–52106, I perform the functions of
hearing officer in case 7–RD–3644. As requested by the Regional Director, I conducted the
consolidated hearing and, as further requested by the Regional Director, I directed that, upon
the closing of the record, case 7–RD–3644 be severed from case 7–CA–52106, and a true and
complete copy of the transcript and exhibits be forwarded to the Regional Director. My decision
does not include a determination regarding case 7–RD–3644.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following findings of fact and conclusions of law.
Findings of Fact
I. Jurisdiction
The Respondent, a corporation with an office in Southfield, Michigan, and various plants
in the metropolitan Detroit area, has been engaged in the design, sale, and installation of
automated industrial systems. In conducting those business operations the Respondent
annually derives gross revenues in excess of $1,000,000 and sells goods and provides services
valued in the aggregate in excess of $50,000 from its metropolitan Detroit plants and offices
directly to customers. The Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background Facts
The Respondent, a division of the Fiat automotive company, builds assembly lines and
specialty tools for the automobile industry. Since at least 2001, the Automated Systems
Workers (ASW) has represented a bargaining unit1 of the Respondent’s production employees,
maintenance employees, field service employees, inspectors, and machinists.2 There were
over 200 employees in the unit as of early 2009. In about March 2007, the ASW affiliated with
the Michigan Regional Counsel of Carpenters (MRCC), United Brotherhood of Carpenters and

1 The record indicates that the bargaining unit was established at the Company by 1961,
Transcript at pages (Tr.) 382-383, but does not show whether the ASW was the bargaining
representative prior to 1981.
2 The bargaining unit consists of:
All full-time and regular part-time production and maintenance employees, inspectors,
and field service employees, employed by Respondent at and out of its facilities located at
20950, 21000, and 21175 Telegraph Road, Southfield, Michigan; and 42850 West Ten Mile
Road, Novi, Michigan; and machinists currently working at its 44000 Grand River, Novi,
Michigan, facility who formerly worked at its facility located at 21175 Telegraph Road,
Southfield, Michigan; but excluding all office clerical employees, and guards and supervisors
as defined in the Act.
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Joiners of America. The most recent collective-bargaining agreement between the Union and
the Respondent was effective by its terms from March 7, 2005, until March 2, 2008. Prior to the
expiration date, the parties entered into an agreement that extended the effective period of the
contract indefinitely, but gave either party the right to cancel the extension with 14 days notice.
Officials of the Respondent and the Union began negotiations for a successor contract in
January 2008. The Respondent’s chief negotiator was Edward Plawecki – vice-president and
general counsel of the Company.3 Fred Begle, the Respondent’s director of labor relations was
also a primary spokesperson at the negotiating sessions, and led the Respondent’s bargaining
committee when Plawecki was not present.4 The other members of the Respondent’s
bargaining committee were Jim Sheldon (finance department), Tim Withey (manufacturing
department) and Brad Pelachyk (purchasing department). Ozell Freeman and Bill Poland
attended some of the early negotiating sessions, but both left the Respondent in early 2008, and
neither attended any sessions after April 2008. Lisa Minjares (human resources) attended
meetings of a subcommittee on healthcare, and on February 20, 2008, attended what may have
been a meeting of the full committee. The Union’s chief negotiator was Peter Reuter, an
employee of the Union. Other members of the Union negotiating committee were Darrell
Robertson (president of the Union local), Daniel Malloy (vice president of Union local),
David Baloga (recording secretary of the Union local), Harry Yale (treasurer of the Union
local), Jeff Brown (trustee of Union local), and Lonnie McCorvey.5 The meetings
continued in 2008 and 2009, although the parties suspended negotiations for much of the
summer of 2008 while the Respondent attempted to reach a contract with a union that
represented another group of employees.
Early in the 2008–2009 negotiations with the Union, Plawecki stated that the new
contract would have to be “concessionary” and that the Respondent would not provide the
employees with anything that increased the Company’s costs unless the employees
provided the Company with savings in return. According to Plawecki, this meant that any
new agreement would have to be “cost-neutral” or create savings as compared to the
expired collective-bargaining agreement. Tr. 358-359. Among the major concessions
sought by the Respondent were reductions in the employees’ company-provided benefits for
hospitalization, medical treatment, dental care, and vision care (referred to collectively in this
decision as “healthcare” benefits). Under the previous collective-bargaining agreement,
incumbent unit employees were not required to pay any premiums for their company-provided

3 In July 2009, Plawecki ended his employment with the Respondent. Nevertheless, at the
time of his testimony in November 2009, Plawecki was still being paid by the Respondent.
4 I reject Plawecki’s testimony that the Respondent’s bargaining committee did not meet
when he was absent. Tr. 374. Begle, another witness for the Respondent, testified that he was,
in fact, present when the full committee met without Plawecki. Tr. 405. Begle stated that he was
in charge of running the meeting for the Respondent and receiving the Union’s proposals when
Plawecki was not present. Tr. 491-492. Begle’s account is lent support by the Respondent’s
minutes of bargaining sessions, which list Begle, but not Plawecki, among the attendees at
number of meetings of the full committee. Respondent’s Exhibit (R Exh.) 16. Based on the
evidence, I credit Begle’s testimony that the Respondent’s full negotiating committee met during
the 2008 to 2009 time period even when Plawecki was not present, and that Begle led the
Respondent’s negotiating team on those occasions.
5 At the start of the negotiations in 2008, the Union was bargaining as part of a two-union
coalition. Officials from the other union – referred to in the record as “the Wisne Employees
Association” – attended some of the early negotiating sessions, but in about August 2008 the
two unions disbanded the coalition and began separate negotiations with the Respondent.
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healthcare coverage. Although the Respondent used a “self-insured” health plan, the coverage
was provided through Blue Cross/Blue Shield (Blue Cross). Under the Respondent’s proposed
contract, the Respondent would still be self-insured and coverage would still be provided
through Blue Cross, but the unit employees would be required to pay health insurance
premiums for coverage. The amounts of the employee premiums were significant. The
Respondent’s last best offer6 provided that each employee’s premium payment would be
between $57.28 and $453.05, per month depending on the level of benefits chosen, the type of
coverage (individual, two-person, or family), and the extent of cost increases during the term of
the contract. Respondent Exhibit 3 at Page 20.7 The employees could also pay an additional
$321.04 to $507.26 per month to obtain coverage for a child between 19 and 25 years of age.
The Respondent’s new plan also reduced the employees’ coverage in some respects.
The healthcare issue became a sticking point between the parties. The unit employees
were opposed to paying health insurance premiums unless they received increased
compensation in return.8 The Respondent declined to increase the unit employees’
compensation. In an effort to resolve the healthcare issue, the Union, on August 22, 2008,
suggested an alternative approach under which the Respondent would cease providing the
Company’s own healthcare insurance to unit employees, and the Union would offer health
insurance to the unit employees through an MRCC plan. The hope was that, because the
MRCC had a large number of members, using the MRCC plan would allow the Respondent to
realize adequate savings without requiring the employees to pay premiums. Under this
proposal the Respondent, instead of paying to finance its own self-insured health insurance plan
for unit employees, would make contributions to the MRCC healthcare plan on a per-employee
basis to help cover the cost of insuring those employees under the MRCC plan. In order to
reach agreement on such an arrangement, the parties would have to agree on, inter alia, the
amount the Respondent would contribute to the MRCC plan. From the point of view of unit
employees, the most notable advantage of the MRCC health insurance plan was that little or no
insurance premiums would be required for participating. Like the Respondent’s health
insurance plans, the MRCC insurance was provided through Blue Cross.
In August 2008, the Respondent’s negotiators indicated that the Company was
interested in the Union’s idea of switching the unit employees to the MRCC health insurance
plan. The Respondent’s primary condition was that the switch had to adequately reduce the
Company’s health insurance costs as compared to its health costs under the prior contract.
One factor the parties took into account when calculating the amount the Respondent would
save by switching was that, even after the unit employees were moved to the MRCC plan, the

6 For convenience, I refer to this proposal as the “last best offer” because that is the title the
Respondent placed on the written proposal. By referring to it in that matter, I do find, or imply a
finding, that the Respondent had reached the end of its rope in negotiations.
7 Initially, the premiums the Respondent was seeking from employees had been higher, but
the amounts were reduced during negotiations in 2008.
8 During negotiations in 2005 for the prior contract, the Union had chosen to forgo pay
increases and bonuses in exchange for retaining the no-premium healthcare benefit. At about
the same time, a bargaining unit of the Respondent’s employees who were represented by a
different union – the Novi Industries Employees’ Association (NIEA) –- accepted the premium-
required healthcare benefit and received pay increases and bonuses in exchange. During
negotiations in 2008-2009, the Union’s position was that it would not agree to the diminished
healthcare benefit that the NIEA-represented employees were receiving, unless the Respondent
provided the Union’s members with the same raises and bonuses that the NIEA-represented
employees had received for agreeing to the reduction in healthcare benefits.
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Respondent would have to finish paying off remaining costs for the coverage that it had
previously provided under the Company’s plan. More specifically, if the Respondent
discontinued the self-insured plan, it would, for a period of approximately 3 to 6 months,
continue receiving bills for healthcare services that unit employees had used during the period
when they were covered by the Respondent’s plan.9
In 2008, the Respondent did not attempt to obtain an estimate from Blue Cross of the
amount of the “trailing costs.” During negotiations with the Union in 2008, the Respondent
guessed, Tr. 491, that such costs would total $1 million or more, often using a figure of
$1,172,280. The Union discussed the Respondent’s trailing costs liability with Blue Cross, and,
based on those discussions, contended that trailing costs would be substantially less—about
$500,000. Plawecki told the Union that it was very feasible that the parties could reach
agreement on moving to the MRCC plan if the trailing costs were, in fact, less than $500,000. In
February 2009, the Respondent for the first time asked its own Blue Cross contact to estimate
the trailing costs the Company would be responsible for if it terminated the self-insured plan.
The figures that Blue Cross provided to the Respondent were far lower than what the
Respondent had, during negotiations, been contending the switch would cost the Company.
The Respondent’s Blue Cross contact first estimated the total amount of the trailing costs at
$183,000, and later adjusted its estimate upward to $240,000 and then to $440,000.
B. Declaration of Impasse and Implementation
The parties met more than 20 times in 2008 to negotiate for a new contract. A federal
mediator participated in the negotiating sessions on December 2 and 3, 2008. At the December
3 bargaining session, the Respondent declared that the parties were at impasse, gave 14 days
notice that it was canceling the contract extension, and stated that it would impose its last best
offer on December 22 when the prior contract ceased to apply. The Respondent informed the
Union that, despite these actions, management was “prepared to continue negotiations in order
to agree upon and reach a successor Labor Agreement to replace the Labor Agreement . . .
which was extended through December 21, 2008.”
In a letter to unit employees, the Respondent set forth what it called the “key changes”
that it intended to impose on December 22. R Exh. 6. Those changes included new rules
regarding: seniority; tardiness; possession of various prohibited items; employee use of a co-
worker’s “scan card”; the notice required from night shift employees in advance of absences; the
mileage reimbursement rate; and, the standards for obtaining “double time” and “overtime” pay.
The Respondent also notified employees that, effective March 1, 2009, it would no longer offer
the existing health insurance plans, but would instead offer healthcare coverage through other,
premium-required, medical plans. The imposed last best offer contains a notation that the new
medical plans would be “Effective March 1, 2009.”
Between the Respondent’s announcement of the new insurance in December 2008, and
the effective date of that insurance on March 1, 2009, the Respondent took a number of steps to

9 Witnesses for the Respondent testified that, if the Company proceeded with its proposal to
switch employees to another self-insured plan, the Company would not, at that time, be billed
for trailing costs. They indicated that the Respondent would, however, still incur the trailing
costs at such time as the Company terminated the self-insurance arrangement for any reason,
including because it had discontinued, or moved, the operation. This testimony was
uncontradicted.
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make it possible to switch the unit employees from one plan to the other.10 From January 23 to
31, 2009, the Respondent held meetings to provide employees with information about the
healthcare benefits described in the Respondent’s last best offer. By January 31, 2009, the
Respondent obtained completed enrollment forms for the new Company plan from every unit
employee. The Respondent reviewed the enrollment forms submitted by employees to ensure
that they were properly completed. Then, the Respondent entered the information regarding the
new healthcare insurance into the Company’s payroll system so that, if the new insurance
became effective, the proper deductions could be made from employees’ paychecks. In
addition, Blue Cross prepared new health insurance cards for the employees.
None of the actions taken by the Respondent prior to March 1 constituted a “point of no
return” for switching employees to the Respondent’s new healthcare plan. Begle, the
Respondent’s labor relations director, testified that at any point prior to March 1, the
Respondent could have chosen to continue providing the unit employees’ old healthcare
insurance, and cancel the plan to switch those employees to the Company’s premium-required
insurance. Tr. 504-505. Indeed, Union officials continued to hope that an agreement would be
reached to provide insurance through the MRCC plan, without the employees ever being
switched over to the Company’s premium-required healthcare plan. Union officials helped the
Respondent to sign up employees for the Company’s new plan, but only because of concerns
that there could otherwise be a gap during which employees would be left without any
healthcare insurance.
As of March 1, 2009, the parties had not reached an agreement on using the MRCC
plan. On that date, the Respondent discontinued the Company’s existing healthcare plan, and
switched unit employees to the Company’s new, premium-required, healthcare plan.
C. Healthcare Insurance Subcommittee Meetings
On December 3, when the Respondent declared impasse and notified the Union that it
would impose its last best offer, the Respondent stated that it was prepared to continue
negotiations. Beginning on December 8 and continuing through March 20, 2009, the parties
met on approximately 10 occasions for negotiations regarding healthcare insurance. In nearly
all instances, the parties did not meet with their full bargaining committees to do this, but rather
with subcommittees comprised of the persons who were knowledgeable about insurance. The
Respondent’s subcommittee was led by Begle. Sheldon and Minjares were also members. The
Union’s healthcare insurance subcommittee was composed of Reuter, Robertson, Baloga and
Molloy. Each party’s subcommittee had the authority to enter into tentative agreements
regarding healthcare, but not into binding agreements. The Union’s subcommittee would have
to take any tentative agreement to the membership for final approval. The Respondent’s
subcommittee would have to obtain approval for tentative agreements from the Respondent’s
full negotiating committee and/or the Respondent’s upper management. During the
subcommittee meetings, Begle stated that he could not make a decision at a meeting, but rather
would have to discuss the matter with the large bargaining group. Each written proposal from
the Respondent’s subcommittee included the statement that all prior proposals were “null and
void.” Although the Respondent now claims that it never considered the subcommittee
meetings to be negotiations, Begle, the head of its subcommittee, repeatedly identified the
subcommittee meetings as “negotiations” and “healthcare negotiating session[s]” in his

10 I refer to the Respondent’s premium-required healthcare plan as “new” because it was
new to the unit employees. That plan was not new to the Respondent, which was already
providing it to some employees.
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contemporaneous communications with the Union. See, e.g., General Counsel’s Exhibit (GC
Exh. 9), GC Exh. 19, and GC Exh. 22.
The subcommittee discussions focused largely, although not exclusively, on the amount
that the Respondent would pay to the MRCC plan for the employees’ healthcare. The record
shows that both parties presented multiple written proposals that moved them progressively
closer to agreement on a figure for what the Respondent would pay to the MRCC plan. The
Union’s first subcommittee proposal, made on December 8, provided for the Respondent to pay
$1000 per month to the MRCC for each unit employee enrolled in the MRCC plan.11 This was
approximately $214 less than the Respondent’s monthly, per employee, cost for the more
generous healthcare benefit it was providing under the most recent collective-bargaining
agreement. On December 8, the Respondent proposed to make contributions to the MRCC
plan that had a “weighted average” of $766 per employee/per month. The Respondent’s
proposal actually set forth three different per-employee contribution levels depending on the
type of coverage the employee chose (individual, 2-person, or family). However, in order to
make discussions easier, the Respondent reduced those figures to the single “weighted
average” figure of $766. Begle told the Union’s subcommittee that the $766 figure was
“negotiable.”
At a meeting of the healthcare insurance subcommittee on December 15, the
Respondent made a new proposal in which it increased the weighted average amount it was
offering to pay the MRCC plan to $800 per employee/per month. On December 18, the
Respondent increased its weighted average figure again, now to $820 per employee/per
month.12 The parties met next on January 7, 2009, after taking time off during the year-end
holiday season. On January 7, the Respondent significantly increased the amount that it was
proposing to pay to the MRCC plan.13 The Union reacted by moving towards the Respondent’s
proposal on January 15—reducing the amount it was seeking from the Respondent to $880
monthly for each employee. In its February 5 offer the Respondent made a proposal with a
weighted average of $835 per month for each covered employee. On February 20, the Union
presented a healthcare proposal that met the Respondent’s $835 contribution figure. Over the
course of the contract, switching to the MRCC plan at that contribution level would result in
significant savings for the Respondent as compared to its costs under the old healthcare plan,
even when one considered the Respondent’s obligation to pay the trailing costs from the old

11 The Respondent submitted its bargaining notes, including those for the healthcare
subcommittee. R Exh. 16. As was subsequently revealed under cross examination, Begle had
altered those notes many months after the meetings. Tr. 476-477; see also GC Exh. 38
(attachment is earlier version of some of the bargaining notes). Only a few of the alterations
made by Begle were identified at trial, but those alterations tended to favor the Respondent’s
litigation positions. Begle did not explain why he changed the notes, but it appears likely that
the changes were made in order to provide documentation more favorable to the Respondent.
For these reasons I do not credit the Respondent’s notes of the meetings regarding any
disputed matter.
12 This weighted average was apparently based on the Respondent paying $392 for each of
the employees who had individual coverage, $881 for each of the employees who had two-
person coverage, and $1060 for each of the employees who had family coverage. GC Exhs. 16
and 17.
13 On January 7, the Respondent was offering to pay $398 per month for each employee
with individual coverage, $900 per month for each employee with 2-person coverage, and
$1078 per month for each employee with family coverage. It is not clear that the Respondent
calculated a weighted average for its January 7 proposal.
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insurance. At the end of the February 20 meeting, the Respondent’s negotiators said that they
would review the Union’s proposal and “get back to” the Union.14 It was not until March 20, that
the Respondent told the Union whether or not the proposal was acceptable to management.
The Union’s agreement to the $835 figure did not resolve all the issues that divided the
parties regarding healthcare insurance. To begin with, although the Respondent’s “weighted
average” figure was $835 for purposes of the negotiations, the Company still wanted the figure
broken down into different contribution rates depending on whether the enrolled employee had
individual, two-person, or family coverage. That apparently meant that if the distribution of
employees enrolled in the various types of coverage changed, the Respondent’s average per-
employee payments to the MRCC plan would change as well. Under the Union’s single-figure
proposal, changes in that distribution would not affect the amount of the Respondent’s per-
employee payments to the MRCC plan. Second, the parties had not reached agreement on a
system for adjusting the Respondent’s payments to the MRCC plan in response to increases in
the cost of healthcare insurance. Third, the parties had not reached agreement on the duration
of the contract. The Respondent proposed that the new contract remain in effect for 3 years
beginning on the date when it was signed, whereas the Union proposed that the new contract
run for 3 years from the expiration date of the prior contract. 15
The Respondent contends that a difference also remained regarding some of the
language used in a “hold harmless” provision that the Company had proposed to relieve itself of
liability for unit employees’ healthcare coverage or healthcare costs if the employees were
switched to the MRCC healthcare plan. The record shows that there was no genuine
disagreement regarding this provision. The Union agreed to the language that the Respondent
had proposed through most of the negotiations. Late in the negotiations, the Respondent
deleted some wording from its version of the provision, but the Union neglected to include that
change in its proposal of February 20. Begle, in a February 23 email communication to Reuter
and Robertson, asked whether the Unions’ failure to use the Respondent’s most recent wording
was “by design or simply an omission.” Later that day, Robertson responded with an email
communication stating that the version of the provision the Union had used was the last

14 The Respondent contends that the Union’s offer had an expiration date. I find that
contention is not supported by the record. At trial, the Respondent presented a copy of the
Union’s February 20, 2009, proposal on the cover of which was printed “expires Tuesday,
February 23, at noon.” R Exh. 12. Later the Respondent conceded that the Respondent itself
had added those words to the Union’s proposal, and that the words did not appear on the
proposal when it was presented by the Union. Tr. 263-264. I credit the testimony of union
witnesses who stated that, on February 20, Reuter opined that it was important for the parties to
reach an agreement soon, but that the Union negotiators did not state that the February 20
proposal had an expiration date. The Respondent’s claim that its negotiators believed the
Union’s February 20 proposal expired at noon on February 23 is inconsistent with some of the
Respondent’s actions. For example, subsequent to the supposed expiration of the Union’s
proposal, the Respondent made email inquiries to the Union regarding the February 20
proposal, GC Exh. 30, R Exh. 10 at 10-52, and discussed it with the Union at a meeting on
March 20.
15 The record also shows that the parties had not come to agreement on a minor issue that
was unrelated to healthcare insurance. The Union proposed to deduct ten cents per hour from
employees’ pay and use that money for a training fund. The Respondent had not agreed to that
provision. Since the training fund contribution was to be paid by the unit employees, it does not
appear that the Union’s proposal imposed any costs on the Respondent. During negotiations,
the Respondent never raised the training funds deduction as an impediment to agreement.
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electronic version it possessed, and that the Union would consider any alternative wording that
the Respondent provided. Robertson spoke to Begle by phone later that day, and stated that
the Union did not have a problem with the Respondent’s modified hold harmless language.
The Respondent also contends that the parties had a disagreement about which party
would pay the Respondent’s leftover bills—its “trailing costs”—for the healthcare insurance that
the Company had been required to provide under the last collective bargaining agreement. As
discussed above, the Respondent would continue to receive such bills for 3 to 6 months after
switching to the MRCC plan. The Respondent asserts that it was always management’s position
that the Union would have to take responsibility for paying those leftover bills. The Union’s
officials, on the other hand, testified that those costs were treated as the Respondent’s
responsibility until March 20 when Plawecki unexpectedly added a demand that the Union pay
the leftover bills. Plawecki was not a member of the Respondent’s healthcare subcommittee,
and had not participated in the subcommittee discussions.
The record shows that the healthcare subcommittees of both parties negotiated with the
understanding that the Respondent would be responsible for its own leftover bills from the prior
insurance. For the reasons discussed below, I find that it was not until March 20 that the
Respondent introduced a demand that the Union pay the Respondent’s trailing costs. Reuter,
Baloga, and Robertson, were very clear and certain when testifying that, prior to Plawecki’s
March 20 announcement, the Respondent had never suggested that the Union take over
responsibility for paying the Respondent’s trailing costs. Tr. 79, 223, 241-242. The union
witnesses stated that these leftover bills were discussed, but only as a cost to the Respondent
that would have to be out-weighed by the savings the Respondent would realize by switching
from the old employer-provided plan to the MRCC plan. Tr. 195-196 (Reuter), 241-242, 249-
250 (Robertson). On the other hand, Begle, the only subcommittee member who the
Respondent called to testify, was vague and somewhat evasive when asked whether, prior to
March 20, the Respondent had ever stated that the Union would have to pay those costs. See,
e.g., Tr. 420 (“Q. Did you mention to the Union that you expected the Union to pay for these
[trailing costs] during these meetings? A. What we said was we cannot agree to anything
unless we have a savings to the company . . . .”); Tr. 421 (Begle is asked whether, prior to
March 20, the Respondent had mentioned that it expected the Union to pay the trailing costs,
and answers “Again we told them we can’t have anything that’s going to result in something that
doesn’t give the savings over the implemented offer.”). Indeed, Begle conceded that on March
20, when Plawecki demanded that the Union pay the Respondent’s trailing costs, “it was a
shock to the Union.” Tr. 452. Based on the demeanor and testimony of the witnesses, and the
record as a whole, I credit the testimony of Reuter, Baloga, and Robertson that prior to March
20 the Respondent had not indicated that it expected the Union to pay the Company’s trailing
costs, or that such a concession by the Respondent was a condition of reaching agreement.
Rather the trailing costs were treated by both parties as an expense to the Respondent that
would have to be outweighed by the savings from switching from the old healthcare plan to the
MRCC plan.
The documentary evidence supports the testimony of union negotiators that, before
March 20, the Respondent had never demanded that the Union agree to pay the Company’s
leftover bills from the old healthcare plan. The record contains multiple written contract
proposals made by the Respondent on the subject of switching employees to the MRCC plan,
but the Respondent never included language requiring the Union to take over responsibility for
paying the Respondent’s trailing costs. Even Plawecki testified that if the Union took on such a
responsibility, he would expect that the responsibility would be set forth in the contract. In
addition, on the spread sheets that the Respondent and the Union used prior to March 20 to
calculate how much the Respondent would save by switching to the MRCC plan, both parties
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added the Respondent’s trailing costs from the prior insurance (referred to on those forms as
the “run-out cost”) to the Respondent’s monthly MRCC payments in order to arrive at the total
monthly cost to the Respondent. It is implausible that the parties would have presented the
figures this way if, as the Respondent now claims, it was the Company’s position before March
20 that the Union would have to pay those leftover bills. Indeed, the mere inclusion of the “run-
out” costs on the spread sheets suggests that those were costs to be paid by the Respondent,
since the spreadsheets do not list costs to be paid by the Union or its members—such as Union
contributions to the MRCC plan, and employee co-payments and deductibles. One of the
spreadsheets includes a notation that the Respondent’s total monthly savings from switching
from the employer’s old insurance to the MRCC insurance would outweigh its “run out” costs as
of the end of April 201016—after which time the Respondent would begin to realize net savings
of $73,652 per month. The underlying assumption of this notation is that the Respondent would
be paying those run out costs. Finally, Begle, in a list that he provided to the Union regarding
the logistical and other issues relating to a switch to the MRCC plan, made no mention of any
payments from the Union to cover the Respondent’s trailing costs. GC Exh. 8.
Based on my consideration of the record, I also reject the Respondent’s claim that its
position throughout negotiations was that switching to the MRCC healthcare plan would have to
provide the Company with savings as compared to the new employer plan set forth in the
Respondent’s last best offer. Rather, the evidence shows that the Respondent’s position was
that switching to the MRCC plan would have to provide the Company with adequate savings as
compared to the more expensive plan required by the last contract, but not as compared to the
far-less-generous plan that the Respondent proposed in its last best contract offer. The
Respondent’s claim to the contrary is rebutted by the fact that the Respondent’s own proposals
called for Employer contributions to the MRCC plan that were greater than the Employer’s cost
for the plan in the Company’s last best offer. Specifically, although the Respondent calculated
its monthly cost for the new company plan at somewhere between $766 and $790 per
employee, it made successive proposals for contributing $800, $820, and $835 per employee to
the MRCC plan. These were the Respondent’s own proposals, and its willingness to make such
proposals is incompatible with the subsequent assertion that its position was that switching to
the MRCC plan had to create a savings over the Company’s proposal for a plan that would cost
the Company $766 to $790 per employee. When asked about this, Begle testified that the
employer must have increased its proposed MRCC contribution figures above $790 per
employee upon discovering that the cost of the Company’s new plan was higher than initially
thought. However, Begle did not claim to be certain regarding this, and could not say what the
higher cost estimate was for the new company plan. The Respondent did not present a single
document to substantiate the notion that it had revised its estimate of the per-employee cost of
the new employer-provided plan to a figure in excess of the $800, $820, or $835, even after I
queried whether such documentation existed. Indeed, the spreadsheet that the Respondent
provided to the Union on December 16, 2008, reports that the Respondent was offering to
contribute $800 per employee/per month to the MRCC even though the same spreadsheet
reports that the cost for the new company plan was only $767 per employee/per month. GC
Exh. 17 (attachment to 12/19/08 email); R Exh. 4, at p. 4-000013 (attachment to 12/16/08
email).
Moreover, the Union’s officials credibly testified that the Respondent’s position during

16 See GC Exh. 21 (Cost Run Out Breaks Even End of April 2010). This was based on the
estimate that the total trailing costs would be $1,172,280. Obviously the net savings would
begin much earlier than April 2010 given that the trailing costs were subsequently found to be
well under half that amount.
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the subcommittee discussions was that switching to the MRCC plan did not have to create
savings over the new employer plan, but rather over the old employer plan required by the
expired collective-bargaining agreement, see, e.g., Tr. 194, 243, and even some statements by
company officials undercut the Respondent’s claim to the contrary. For example, Plawecki
testified that the Respondent’s position was that any new agreement would have to be “cost
neutral” or create savings as compared to the expired collective bargaining agreement. Tr. 358-
359. Based on all the record evidence on the subject, I conclude that both parties understood
that they were negotiating for an MRCC plan that would be a compromise between the cost of
the Respondent’s old health plan and the cost of the much-less-generous plan that the
Respondent had proposed, not for an MRCC plan that would exceed even the Respondent’s
proposal in terms of the employee concessions it afforded the Company.
D. Meeting on March 20, 2009
Prior to March 20, 2009, the Respondent did not tell the Union whether it would accept
the Union’s February 20 proposal. By the time the parties met again, on March 20, the March 1
effective date for the employer’s new healthcare plan had passed, and the Respondent had
switched the unit employees to that plan. The Union asked to meet earlier than March 20, but
the Respondent was unavailable. Shortly before the March 20 meeting, Plawecki began to hear
rumors that some employees were interested in decertifying the Union. During meetings around
this time, the Respondent urged the Union to reach a new collective-bargaining agreement and
tried to motivate the Union by stating that a new contract would nullify the decertification effort.
Tr. 80, 181 (Reuter). The Respondent told the union committee to take a contract to the
membership, even if it was not the Respondent’s last best offer, and bring the member-ratified
proposal back to the Respondent. Tr. 234 (Baloga).
On March 20, at the Union’s request, the parties met with their full bargaining
committees. Given that on February 20 the parties had essentially reached agreement
regarding the level of the Respondent’s contribution to MRCC plan, Robertson hoped that the
Union would leave the March 20 meeting with a tentative agreement to present to the
membership for a vote. However, shortly after that meeting started, Plawecki announced that
the Respondent had a problem with the Union’s February 20 proposal. Plawecki stated that the
Respondent wanted to know how the Union was going to go about paying the Respondent’s
trailing costs from the old healthcare plan. There would be no agreement, Plawecki stated,
unless those costs were paid by the Union. The Union negotiators were surprised by this new
demand, and even Begle testified that it “was a shock to the Union.” Reuter responded to
Plawecki, “[W]ait, why would the Union have to pay this because the trailing costs was [the
Respondent’s] old bills.” The March 20 meeting lasted only about 10 minutes, and essentially
ended after the exchange between Plawecki and Reuter regarding the trailing costs.
Subsequent to the March 20 meeting, the Union requested that the Respondent meet
with it to discuss a contract, see, e.g., GC Exh. 39, but no further meetings have been held.
E. Prior Related Charges
Prior to filing the charge that underlies the complaint in this case, the Union filed other
charges (numbers 7–CA–51886 and 7–CA–51906) challenging the Respondent’s December 22
unilateral implementation. On May 29, 2009, after an investigation, the Regional Director
dismissed those charges. The Union appealed the dismissal to the General Counsel’s Office of
Appeals, and on August 31, 2009, the General Counsel denied that appeal, stating:
Regarding the Employer’s December 22, 2008 implementation of terms and conditions
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of employment for unit employees represented by the Union, the evidence established
that the parties were at a lawful impasse when the implementation occurred. Further,
the Employer’s conduct at, and away from, the bargaining table was not indicative of
bad faith or an unlawful intent not to reach agreement.
R Exh. 14 at 14-9.
Before the action by the General Counsel’s Office of Appeals, the Union filed the new
charge that underlies the complaint in this case, and amended that charge to add an allegation
that the Respondent violated the Act by unilaterally implementing a new health insurance plan
on March 1, 2009, in the absence of a bona fide impasse.17 Prior to the trial in this matter, the
Respondent made a motion for partial summary judgment on the grounds that the dismissal of
the prior charges, and the General Counsel’s denial of the appeal of that dismissal, precluded
the allegation in the instant proceeding that the Respondent’s new healthcare plan was
unlawfully implemented. In an Order dated November 16, 2008, the Board denied that motion,
stating that the Respondent had “failed to establish that there are no material issues of fact and
that it is entitled to judgment as a matter of law.” GC Exh. 1(n). In a footnote, the Board stated,
“The Respondent may renew all of its arguments at the hearing before the administrative law
judge.”
F. Complaint Allegations
The complaint alleges that the Respondent violated Section 8(a)(5) and (1) on about
March 1, 2009, by changing the hospitalization, medical, dental, and vision care benefits of
bargaining unit employees without the Union’s consent and without bargaining to a good-faith
impasse. The complaint further alleges that the Respondent violated Section 8(a)(5) and (1)
during negotiations for a successor collective-bargaining agreement by: failing to cloak its
representatives with the authority to make proposals or enter into binding agreements;
submitting written proposals to the Union without attempting to gain authority to do so; and on
about March 20, 2009, by introducing a new demand that the Union pay the Respondent’s
accrued health insurance trailing costs.

17 The Union filed the amendment to the charge on the advice of the Board agent
investigating the charge. The Board agent’s action in providing that advice was consistent with
the General Counsel’s Casehandling Manual (Unfair Labor Practices), which instructs Board
agents, in consultation with their supervisors, to revise allegations to adjust to developments in
the case, and provide the charging party with an opportunity to amend the charge in order to
pursue additional allegations. Casehandling Manual Sections 10052.6, 10052.7, and 10062.5. I
reject the notion, forwarded by the Respondent, that by complying with these requirements of
the Casehandling Manual, the Board agent demonstrated that “[s]he obviously had become an
advocate for the Charging Party” or had in any way acted inappropriately. See Brief of
Respondent at page 21, fn.7.
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III. Analysis and Discussion
A. Respondent’s Unilateral
Implementation of New Healthcare Plan
The Board has held that when “parties are engaged in negotiations for a collective-
bargaining agreement,” the employer's obligation to refrain from unilateral changes regarding
mandatory subjects “‘extends beyond the mere duty to provide notice and an opportunity to
bargain about a particular subject; rather it encompasses a duty to refrain from implementation
at all, absent overall impasse on bargaining for the agreement as a whole.”’ Register-Guard,
339 NLRB 353, 354 (2003), quoting RBE Electronics of S.D., Inc., 320 NLRB 80, 81 (1995);
Bottom Line Enterprises, 302 NLRB 373, 374 (1991), enfd. sub nom. Master Window Cleaning
v. NLRB, 15 F.3d 1087 (9th Cir. 1994) (Table). The employer's obligation to refrain from such
changes survives the expiration of the contract, and failure to meet that obligation is a violation
of Section 8(a)(5) and (1) of the Act. Newcor Bay City Division, 345 NLRB 1229,1237 (2005);
Made 4 Film, Inc., 337 NLRB 1152 (2002).
In this case, there is no dispute that the Respondent unilaterally changed the employees’
healthcare benefits and that such benefits are a mandatory subject of bargaining.18 The
disagreement centers on the Respondent’s contention that the parties were at a bona fide
impasse in negotiations when the Company made the unilateral change. An employer generally
may implement some or all of the terms and conditions of employment that are reasonably
comprehended by the employer’s pre-impasse proposals if the parties have reached an overall
impasse. Richmond Electrical Services, 348 NLRB 1001 1003 (2006); Lihli Fashions Corp., 317
NLRB 163, 165 (1995). The General Counsel argues that the Respondent was not entitled to
unilaterally implement the new healthcare plan for two reasons. First, the General Counsel
contends that the parties never reached a bona fide impasse in negotiations for a new
healthcare plan, even though they had reached impasse regarding other elements of the
Respondent’s last offer. Second, the General Counsel argues that even if the parties were at
impasse regarding healthcare benefits when the Respondent implemented various non-
healthcare provisions of its last best offer on December 22, 2008, that impasse had been
broken by March 1, 2009, when the Respondent implemented the terms relating to healthcare.
As the Board has held, unilateral implementation violates Section 8(a)(5) even when the parties
have reached impasse, if at the time of implementation the impasse no longer exists. Jano
Graphics, Inc., 339 NLRB 251 (2003); see also Richmond Electrical, 348 NLRB at 1003-1004 (if
impasse is broken, the parties’ duty to bargain is revived). For the reasons discussed below,
the second of the General Counsel’s arguments is persuasive, and I find the Respondent
violated Section 8(a)(5) and (1) when it unilaterally implemented a healthcare proposal.19
“As a recurring feature in the bargaining process, impasse is only a temporary deadlock
or hiatus in negotiations ‘which in almost all cases is eventually broken, through either a change
of mind or the application of economic force.’” Charles D. Bonanno Linen Service v. NLRB, 454

18 In its amended/supplemental answer, the Respondent admitted that the unilaterally
implemented hospitalization, medical, dental and vision care benefit is a mandatory subject of
bargaining. GC Exh. 1(j).
19 I need not decide whether the parties were at impasse regarding healthcare on December
22, 2008, when the Respondent implemented much of its last best offer, since even if there had
been an impasse at that time, I find, for the reasons discussed below, that there was no legally
cognizable impasse on March 1, 2009 – the date when the Respondent unilaterally
implemented its healthcare plan. See Jano Graphics, Inc., 339 NLRB at 251.
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U.S. 404, 412 (1982); McClatchy Newspapers, 321 NLRB 1386, 1389 (1996), enfd. 131 F.3d
1026 (D.C. Cir. 1997), cert. denied 524 U.S. 937 (1998). Anything that creates a new
possibility of fruitful discussion breaks an impasse, even if it does not create a likelihood of
agreement. Pavilions at Forrestal, 353 NLRB No. 60, slip op. at 1 (2008); PRC Recording Co.,
280 NLRB 615, 640 (1986), enfd. 836 F.2d 289 (7th Cir. 1987); see also AMF Bowling Co., 314
NLRB 969, 978 (1994), enf. denied, 63 F.3d 1293 (4th Cir. 1995) (Impasse exists when both
parties believe they are at the end of their rope and that further bargaining would be futile). The
record in this case reveals that, far from being at impasse, the parties were in the midst of
productive discussions regarding a compromise at the time the Respondent unilaterally
implemented its healthcare plan on March 1, 2009. In January and February 2009, there were
approximately five subcommittee meetings during which the parties presented written proposals
that moved them progressively closer to agreement on the subject of healthcare. Any prior
impasse regarding healthcare ceased to exist as of January 7, 2009, when the Respondent
made a written proposal that significantly increased the per-employee contribution the Company
was offering to make to provide coverage under the MRCC healthcare plan.20 The positions of
the parties continued to converge after that, and, on February 20, the Union made a proposal
that essentially agreed to the amount the Respondent had offered to contribute towards
coverage under the MRCC plan. Although that proposal did not resolve all issues regarding
healthcare, it did bring the parties the closest they had yet been to agreement on a compromise.
At the end of the February 20 session, the Respondent’s negotiators told the union negotiators
that they would review the Union’s proposal and “get back to” the union negotiators. When the
Respondent unilaterally implemented its own healthcare plan on March 1, the Company’s
negotiators had not yet responded to the Union’s proposal, or provided the Union with any
indication about whether the Company would accept that proposal. Given the above, it is clear
that any impasse that may have existed when the Respondent implemented most of its
proposed contract on December 22, 2008, had been broken as of the time the Respondent
unilaterally implemented its own healthcare proposal on March 1, 2009. At that point neither
party, and certainly not the Union, was shown to be at the end of its rope, and the parties’
proposals had left them positioned for further fruitful negotiations.
The Respondent argues that I should not find its unilateral implementation of the

20 The Respondent suggests that these sessions were something less than “negotiations.”
That claim is dubious, given, inter alia, that, during those subcommittee meetings, agents of
both sides presented, and discussed, multiple written proposals for provisions of a labor
contract. Moreover, as stated above, in contemporaneous communications to the Union, Begle
repeatedly referred to the subcommittee meetings as negotiations. The Respondent’s own
witnesses stated that the subcommittee had authority to enter into “tentative agreements,”
although such agreements would require further approval before becoming final. Even
assuming that Begle did not have actual authority to negotiate on behalf of the Respondent
during these sessions, it is clear that he had “apparent authority.” Such authority exists when,
as here, “‘the principal does something or permits the agent to do something which reasonably
leads another to believe that the agent had the authority he purported to have.”’ Cablevision
Industries, 283 NLRB 22, 29 (1987) (quoting Hawaiian Paradise Park Corp. v. Friendly
Broadcasting Co., 414 F.2d 750, 756 (9th Cir. 1969)); see also Contemporary Guidance
Services, 291 NLRB 50, 64 (1988). At any rate, even were I to accept that the subcommittee
meetings were something less than negotiations, it would not affect my conclusion since
impasse is broken not only by negotiations, but by anything that creates a new possibility of
fruitful discussions. Pavilions at Forrestal, 353 NLRB No. 60, slip op. at 1; PRC, 280 NLRB at
640. Whatever one calls the subcommittee meetings in January and February 2008, it is clear
that they created and advanced the possibility of future fruitful discussions.
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healthcare plan unlawful for a number of reasons. First, the Respondent contends that while its
new healthcare plan was not “effective” until March 1, 2009, the Company had already
“implemented” that plan on December 22, 2008, along with the rest of its last best offer.
According to the Respondent, since the parties were at impasse on December 22 when the plan
was implemented, it does not matter whether the parties were at impasse on March 1 when the
plan was made effective. The semantic distinction upon which this argument relies—i.e.,
between when a unilateral change is implemented and when a unilateral change is effective—
fails not only as a matter of semantics, but also under the facts of this case and the applicable
law.
To begin with semantics, Webster’s Dictionary defines “implement” as “1. To put into
effect. . . .” Webster’s II, New Riverside University Dictionary (1984). Thus, it would seem fair
to say that a change is generally not implemented until it has been put into effect. The
Respondent provides no contrary citation indicating that a change can be implemented without
being put into effect.
Even assuming that the definition of “implement” is broad enough to encompass a final
action that has not yet been given effect, the evidence in this case shows that the Respondent
did not take any final action on December 22, 2008, regarding the announced change in
healthcare benefits. Begle, the head of the Respondent’s healthcare subcommittee, testified
that prior to the March 1 effective date of the new healthcare benefits, the Respondent had not
taken any steps that would have prevented the Company from abandoning its plan to make the
change. In addition, prior to March 1, not a single unit employee was covered by the
Respondent’s new healthcare plan. Indeed, according to the Respondent’s own claims, it did
not even mail enrollment forms to unit employees until January 14, 2009—after the
Respondent’s January 7 proposal bringing the parties closer to a compromise on healthcare
insurance. A change in terms of employment cannot reasonably be viewed as “implemented”
for unit employees at a time when that change is not being applied to a single one of those
employees and the employer has not passed a “point of no return” committing it to make the
change at all.21 To put it succinctly, what the Respondent did in December 2008 regarding
healthcare amounted to an announcement of intent to implement the new plan on March 1—not
the implementation of such a plan.
The Respondent has not cited any legal authority showing that the rule permitting an
employer to unilaterally implement changes at impasse, also permits an employer to proceed
with a change that its officials announced at impasse, but had not yet implemented when
impasse was broken. What indications I find in the reported decisions suggest that, to the
contrary, the employer must refrain from taking further action to implement a change under such
circumstances. In PRC Recording Co., supra, the employer claimed that the parties had
reached impasse and that management was, therefore, entitled to unilaterally change its job
composition system. The Board affirmed the administrative law judge’s conclusion that the
change was unlawful because, even if impasse existed at the time the employer initiated the
change, that impasse was subsequently broken before the change was completed. “[E]ven if
the initiation of unilateral action would be protected” by the existence of impasse, the

21 This distinguishes the instant circumstance from one in which a new wage plan is put into
effect, but some of the raises scheduled under that wage plan will not be triggered until later
dates. In that instance, if the employer has implemented the new wage plan it has passed the
point of no return and cannot simply choose to ignore its obligation to provide the raises when
the triggering dates arrive. See, e.g., Daily News of Los Angeles, 315 NLRB 1236, 1238
(1994), enfd. 73 F.3d 406 (D.C. Cir. 1996), cert. denied 519 U.S. 1090 (1997).
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administrative law judge explained, that unilateral action “must cease when, as here, the
impasse is immediately broken.” 280 NLRB at 640.22 In Bryant & Stratton Business, the
employer argued that it was entitled to continue with a change to employees’
retirement/termination benefits that the employer announced at impasse, even though impasse
was broken between the time when the employer began to implement the change and the time
when the change actually became effective for employees. The administrative law judge found
that the union proposals breaking the impasse were not “too late” to preclude the Respondent
from unilaterally implementing the previously announced change in benefits. 327 NLRB 1135,
1149 (1999), enfd. 140 F.3d 169 (2d Cir. 1998). The Board affirmed the judge’s conclusion, but
did not pass on the reasoning discussed above. Id. at 1135 fn. 2. Similarly, since there was no
impasse on March 1, the Respondent was not free to unilaterally implement a change to
healthcare benefits on that date, even assuming the parties had been at impasse when the
Respondent announced the change and began to prepare for implementation.
Consideration of the reasoning behind the rule that permits an employer to unilaterally
implement changes at impasse also weighs against applying that rule to the facts of this case.
In its decision in McClatchy Newspapers, Inc., the Board explained that “the impasse doctrine
allowing implementation of employer proposals is legitimated only as a method for breaking the
impasse.” 321 NLRB at 1389–1390. When the Respondent finally implemented the new
healthcare plan on March 1, there was no impasse that needed to be broken. Rather
negotiations were ongoing and making progress towards a compromise. Under these
circumstances, the March 1 implementation cannot be seen as “a method for breaking
impasse,” and therefore the only basis on which such an implementation could be “legitimated”
was lacking. If anything, the Respondent’s action had the opposite effect by interrupting
progress towards a compromise.
The Respondent argues that the General Counsel’s decision affirming the dismissal of
prior charges by the Union, precludes a finding in the instant case that the healthcare plan was
implemented on March 1, 2009, rather than, as the Respondent asserts, on December 22,
2008. According to the Respondent, I am bound by the General Counsel’s decision upholding
the charge dismissal, and that decision necessarily encompasses a finding that the Respondent
lawfully implemented all elements of its last best offer, including the new healthcare plan, on
December 22, 2008.23 This argument fails on two accounts. First, the General Counsel’s
authority not to file a complaint on a particular charge “does not bind the ALJ or the NLRB in a
separate but related case.” Cox Publishing of Ohio v. NLRB, 402 F.3d 651, 668 (6th Cir. 2005);
Bryant & Stratton Bus. Inst., Inc. v. NLRB, 140 F.3d 169, 185 (2d Cir. 1998); see also B.A.F.,
Inc., 302 NLRB 188, 193 (1991) (administrative dismissal or refusal to proceed on a charge is
not an adjudication on the merits, and does not preclude further litigation of the subject matter of
that charge), enfd. 953 F.2d 1384 (6th Cir. 1992); Kelly’s Private Car Service, 289 NLRB 30, 39
(1988) (same), enfd. 919 F.2d 839 (2d Cir. 1990). Therefore, litigation regarding the subject
matter of the earlier charges is not precluded.

22 The Board affirmed the administrative law judge’s rulings, findings, and conclusions, and
adopted the recommended order as modified. Id. at 615; see also Id. at 616 (While dissenting
on other issues, Chairman Dotson makes clear that the Board unanimously concluded that the
judge was correct in determining that the unilateral implementation was unlawful.).
23 The Respondent pursued this same line of argument in its pre-trial motion to the Board for
partial summary judgment. As discussed above, the Board rejected the argument and denied
the motion, but stated that the Respondent could renew all of its arguments before the
administrative law judge.
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I considered precedent, cited by the Respondent, which provides that an administrative
law judge or the Board cannot make a decision that effectively reverses the General Counsel’s
exercise of prosecutorial discretion not to issue an unfair labor practices complaint. See, e.g.,
Service Employees, 211 NLRB 982, 984 (1974); Time Square Stores Corp., 79 NLRB 361, 365
(1948), Cox Publishing, supra. However, that precedent is inapplicable because, the General
Counsel’s action on other charges notwithstanding, the General Counsel decided based on this
charge and this investigation to authorize an unfair labor practices complaint alleging that the
Respondent unlawfully changed employees’ healthcare benefits on March 1. Therefore, action
by the Board or myself to find such a violation cannot reasonably be seen as an improper
usurpation of the General Counsel’s prosecutorial discretion.
Second, the General Counsel’s decision to affirm the dismissal of prior charges filed by
the Union does not encompass a conclusion that the Respondent implemented its healthcare
plan along with other portions of its contract offer on December 22, 2008. In the prior case, the
General Counsel found that the implementation on December 22 was lawful because the parties
were at impasse on that date. However, the General Counsel, did not specify which terms the
Respondent implemented on that date, did not state that the Respondent implemented the
entire contract proposal, and made no mention of the healthcare plan. Since at impasse an
employer is entitled to choose to implement some aspects of its prior proposal, even while it
chooses not to implement others, see Richmond Electrical Services, supra, Lihli Fashions,
supra, a conclusion that the implementation on December 22 was lawful (even if correct) does
not mean that the healthcare provisions of the Respondent’s last best offer were implemented
on that date. The evidence shows that, to the contrary, the Respondent did not implement its
new healthcare plan until March 1, 2009.
I find that the Respondent violated Section 8(a)(5) and (1) by changing employees’
healthcare benefits without the Union’s consent and in the absence of a bona fide impasse.
B. Respondent’s March 20 Demand
that Union Pay Trailing Costs
The General Counsel alleges that the Respondent intentionally created an impediment
to agreement when, on March 20, it introduced an onerous demand that the Union take over the
Respondent’s responsibility to pay the trailing costs for the insurance the Company had been
required to provide under the last collective-bargaining agreement. According to the General
Counsel, by intentionally creating this new impediment to agreement, the Respondent failed to
meet its duty to bargain in good faith with the Union and violated Section 8(a)(5) and (1).
The Board has stated that “Regressive bargaining . . . is not unlawful in itself; rather it is
unlawful if it is for the purpose of frustrating the possibility of agreement.” U.S. Ecology Corp.,
331 NLRB 223, 225 (2000), citing McAllister Bros., 312 NLRB 1121 (1993); see also Houston
County Electric Cooperative, 285 NLRB1214, 1214 (1987) (regressive bargaining tactics that
are “designed to frustrate bargaining” are “an indicium of bad-faith bargaining”).
The Respondent’s March 20 demand regarding the trailing costs is fairly characterized
as regressive. The record, and in particular the documentary evidence, makes clear that in
January and February 2009 the healthcare subcommittees of both parties bargained with the
understanding that, if the MRCC healthcare plan was implemented for unit employees, the
Respondent would pay its own trailing costs from the prior healthcare insurance. During that
period, the parties moved progressively closer to a mutually acceptable compromise on how
they would share the costs of switching to the MRCC insurance. Then, on March 20, Plawecki
attended the parties’ bargaining session and, for the first time, introduced a regressive demand
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that the Union take over the Company’s responsibility for paying leftover healthcare bills.
Although the Respondent bargained regressively, I find that the record does not
establish that the Respondent introduced the new demand for the purpose of creating an
impediment to agreement. Even before the Respondent introduced the new demand, there
were a number of issues about which the parties had been unable to reach agreement. The
areas of disagreement included: whether the Respondent’s per-employee contribution would be
the same regardless of the type of coverage the employee was enrolled for; the method by
which the Respondent’s payments to the MRCC plan would be adjusted to account for
increases in healthcare insurance costs; and the duration of the contract. These are significant
differences and while none of them were insurmountable the record does not show that their
resolution was imminent when the Respondent made the new demand regarding trailing costs.
Thus, the suggestion that the Respondent introduced the trailing costs demand in order to avoid
an agreement is not particularly compelling.
Moreover, Reuter and Baloga—members of the Union’s bargaining committee—both
testified that in March 2009 the Respondent was pressing the Union to reach a contract.
Indeed, the Respondent urged the Union to take a contract proposal to the membership and get
it ratified, even if it was inconsistent with the Respondent’s last best offer. The Respondent
argued that it would be in the Union’s best interest to reach a new collective-bargaining
agreement because doing so would nullify the decertification petition that was circulating among
employees. The fact that even the union witnesses called by the General Counsel remembered
that the Respondent was pressuring the Union to agree to a contract in March weighs heavily
against accepting the General Counsel’s contention that the Respondent was attempting to
avoid an agreement at that time. Moreover, the General Counsel produced no direct evidence,
such as statements by the Respondent’s negotiators, showing that the Respondent’s strategy
was to avoid an agreement, and certainly none showing that the Company inserted the trailing
costs issue on March 20 to further such a strategy.
In reaching my determination, I considered that the Respondent has not provided an
explanation for the introduction of the new demand. Instead, the Respondent asserts that it had
always maintained that the Union would have to pay the trailing costs—an assertion that, for the
reasons discussed above, is simply not credible given the record evidence. This weighs in favor
of finding that the Respondent introduced the new demand in an effort to avoid agreement. See
Mid-Continent Concrete, 336 NLRB 258, 260 (2001) (“Where the proponent of a regressive
proposal fails to provide an explanation for it, or the reason appears dubious, the Board may
weigh that factor in determining whether there has been bad-faith bargaining.”), enfd. 308 F.3d
859 (8th Cir. 2002). However, I conclude that in this case the evidence indicating that the
Respondent was attempting to reach an agreement—including union officials’ testimony that the
Respondent was pressing for a contract, and the state of negotiations generally—outweighs the
contrary inference arising from the Respondent’s failure to provide a reason for introducing the
new demand.
For the reasons discussed above, I find that the General Counsel has failed to show
that, on about March 20, 2009, the Respondent violated Section 8(a)(5) and (1) by introducing a
new demand that the Union absorb the Respondent’s liability to pay accrued health insurance
trailing costs. That complaint allegation should be dismissed.
C. Authority of Respondent’s Subcommittee
The complaint includes allegations that the Respondent violated Section 8(a)(5) and (1)
by “failing to cloak its representatives with the authority to make proposals and enter into
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binding agreements,” and by “submitting written proposals to the Charging Party without
attempting to gain authority to do so.” In its brief, the General Counsel discusses these matters
as facts bearing on the question of impasse, but does not make any argument or cite any
authority for finding that the limits on the subcommittee’s authority constituted an independent
violation of Section 8(a)(5) and (1). The record shows that the Respondent’s healthcare
subcommittee had authority to enter into tentative agreements, but that, like the union
subcommittee, it could not enter into final, binding, agreements. The General Counsel has not
shown that this circumstance constituted a violation by the Respondent, or even that it is
unusual in negotiations for a labor contract.
The allegations that the Respondent violated Section 8(a)(5) and (1) by “failing to cloak
its representatives with the authority to make proposals and enter into binding agreements,” and
by “submitting written proposals to the Charging Party without attempting to gain authority to do
so” should be dismissed.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(5) and (1) on March 1, 2009, by changing
employees healthcare benefits without the Union’s consent and in the absence of a bona fide
impasse.
4. The above unfair labor practice affects commerce within the meaning of Section 2(6)
and (7) of the Act.
Remedy
Having found that the Respondent engaged in an unfair labor practice, I find that it must
be ordered to cease and desist and to take certain affirmative action designed to effectuate the
policies of the Act. Upon the Union’s request, the Respondent should be required to
retroactively rescind the unilateral changes to the healthcare benefits of unit employees and
make whole its employees for all monetary losses they have incurred as a result of the unlawful
unilateral changes, as set forth in Ogle Protective Services, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (1971) and Kraft Plumbing & Heating, 252 NLRB 891 (1980), enfd. 661 F.2d 940 (9th
Cir. 1981), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
The General Counsel requests an order providing the unit employees with “quarterly
compound interest” for all monetary losses. It is the Board’s current practice to award simple
interest rather than compound interest. The Board has recently considered, and rejected,
arguments to alter this practice. Cadence Innovation, LLC, 353 NLRB No. 77, slip op. at 1 fn.1
(2009); Rogers Corp., 344 NLRB 504 (2005). I am bound to follow Board precedent on the
subject. See Hebert Industrial Insulation Corp., 312 NLRB 602, 608 (1993); Lumber & Mill
Employers Assn., 265 NLRB 199 fn. 2 (1982), enfd. 736 F.2d 507 (9th Cir. 1984), cert. denied
469 U.S. 934 (1984); Los Angeles New Hospital, 244 NLRB 960, 962 fn. 4 (1979), enfd. 640
F.2d 1017 (9th Cir. 1981).
On these findings of fact and conclusions of law and on the entire record, I issue the
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following recommended Order.24
ORDER
The Respondent, Comau, Inc., Southfield, Michigan, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Unilaterally and unlawfully changing the terms and conditions of employment of its
employees who are represented by the Automated Systems Workers Local 1123, a division of
Michigan Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of
America (the Union).
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Upon request by the Union, retroactively rescind any and/or all healthcare benefits
that the Respondent unilaterally implemented on March 1, 2009, and restore, honor and
continue the healthcare benefits that were set forth in the collective-bargaining agreement that
went into effect on March 7, 2005. Maintain the restored healthcare benefits until such time as
the parties complete a new agreement, good-faith bargaining leads to a bona fide impasse, or
the Union agrees to changes.
(b) Make bargaining unit employees whole for any monetary losses they suffered as a
result of the unlawful unilateral changes to their healthcare benefits, with interest, in the manner
set forth in the remedy section of the decision.
(c) On request, bargain with the Union as the exclusive representative of the employees
in the following appropriate unit concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed agreement:
All full-time and regular part-time production and maintenance employees, inspectors,
and field service employees, employed by Respondent at and out of its facilities located at
20950, 21000, and 21175 Telegraph Road, Southfield, Michigan; and 42850 West Ten Mile
Road, Novi, Michigan; and machinists currently working at its 44000 Grand River, Novi,
Michigan, facility who formerly worked at its facility located at 21175 Telegraph Road,
Southfield, Michigan; but excluding all office clerical employees, and guards and supervisors
as defined in the Act.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel

24 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of monetary relief due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at its facilities located at 20950,
21000, and 21175 Telegraph Road, Southfield, Michigan; 42850 West Ten Mile Road, Novi,
Michigan; and 44000 Grand River, Novi, Michigan, copies of the attached notice marked
“Appendix.”25 Copies of the notice, on forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has gone
out of business or closed any of the facilities involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at the closed facilities at any time since March
1, 2009.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. May 20, 2010
____________________
PAUL BOGAS
Administrative Law Judge

25 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 National 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.”
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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 Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT unilaterally and unlawfully change the terms and conditions of employment of
our employees who are represented by the Automated Systems Workers Local 1123, a division
of Michigan Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of
America (the Union).
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL upon request by the Union, retroactively rescind any and/or all healthcare benefits
that we unilaterally implemented on March 1, 2009, and restore, honor and continue the
healthcare benefits that were provided under the collective bargaining agreement that went into
effect on March 7, 2005. WE WILL maintain the restored healthcare benefits until such time as
the parties complete a new agreement, good-faith bargaining leads to a valid impasse, or the
Union agrees to changes.
WE WILL make you whole for any monetary losses you suffered as a result of the unlawful
unilateral changes to your healthcare benefits, plus interest.
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WE WILL, on request, bargain with the Union and put in writing and sign any agreement
reached on terms and conditions of employment for our employees in the bargaining unit:
All full-time and regular part-time production and maintenance employees,
inspectors, and field service employees, employed by us at and out of our facilities
located at 20950, 21000, and 21175 Telegraph Road, Southfield, Michigan; and 42850
West Ten Mile Road, Novi, Michigan; and machinists currently working at our 44000
Grand River, Novi, Michigan, facility who formerly worked at our facility located at 21175
Telegraph Road, Southfield, Michigan; but excluding all office clerical employees, and
guards and supervisors as defined in the Act.
COMAU, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union
representation and it investigates and remedies unfair labor practices by employers and unions. To find out more
about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any
agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
477 Michigan Avenue, Federal Building, Room 300
Detroit, Michigan 48226-2569
Hours: 8:15 a.m. to 4:45 p.m.
313-226-3200.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 313-226-3244.