E. I. du Pont & Co.

National Labor Relations Board - Board Decisions

Aug 27, 1984

271 N.L.R.B. 1245 (N.L.R.B. 1984)

E. I. DU PONT & CO.
E. I. DuPont de Nemours & Co. and United Work-
ers, Inc. Case 5-CA-14540
27 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 25 March 1983 Administrative Law Judge
Peter E. Donnelly issued the attached decision.
The Respondent filed exceptions and a copy of its
brief to the judge. The Charging Party filed cross-
exceptions and a supporting brief and the Respond-
ent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, E. I.
DuPont de Nemours & Co., Waynesboro, Virginia,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. The
charge herein was filed by United Workers, Inc.,'
(Union or Charging Party) on July 22, 1982. A com-
plaint thereon was issued on August 31, 1982, alleging
that E. I. DuPont De Nemours & Co. (Employer or Re-
spondent) violated Section 8(a)(1) and (5) of the Act by
refusing to furnish certain information concerning the
cost of major medical health insurance premiums. An
answer thereto was timely filed by Respondent. Pursuant
to notice, a hearing was held before me at Waynesboro,
Virginia, on November 10, 1982. Briefs have been timely
filed by Respondent, Charging Party, and the General
Counsel which have been duly considered.
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICE
Respondent employs some 2000 employees at its fiber-
producing plant in Waynesboro, Virginia. The collective-
bargaining relationship between the Union and Respond-
ent goes back some 37 years. The Union presently repre-
sents in separate units under separate contracts about
1500 employees. The two units represented are the pro-
The Union's name appears as amended at the hearing.
271 NLRB No. 204
duction and maintenance employees and the clerical,
office, and technical employees.
Both contracts contain identical provisions dealing
with hospital and medical-surgical coverage with the
Blue Cross of Virginia and Blue Shield of Virginia2
which provides that Respondent will provide basic hos-
pital and medical-surgical benefits, as set out in the con-
tract, and further that major medical coverage will be
available at the option of the employee, and at the ex-
pense of the employee, by way of a payroll deduction of
the premium. a
Sometime prior to June 11, 1981, Respondent was ad-
vised by Blue Cross/Blue Shield that a premium increase
for major medical coverage would be necessary to pro-
vide the same coverage for the contract year beginning
August 1, 1981. At that time, Respondent advanced four
options, generally providing various coverages and de-
ductibles for various premium amounts.4
On June 11, 1981, a meeting was held between repre-
sentatives of the Union and Respondent to consider these
four proposals.
Respondent and the Union stipulated that Respond-
ent's written minutes of this meeting, as well as those of
other meetings held on June 16, 24, and 28 all in 1982,
and distributed to the Union are true and accurate ac-
counts of those meetings. The four options, as they
appear in the minutes of the June 11, 1981 meeting, read:
Option #1-Family premium from $6.34 to
$ 13.18. Remain community rated. Retain present
$100 deductible.
Option #2-Family premium from $6.34 to
$10.30. Increase deductible from $100/individual,
' Since April 1, 1982, Blue Cross/Blue Shield of Virginia has been a
single corporate entity, herein called Blue Cross/Blue Shield.
3 The relevant portions of both contracts (art. XXVIII of the produc-
tion and maintenance contract and art. XV of the clerical and office tech-
nical employees contract) read:
Hospital and Medical-Surgical
Coverage
Section 2. Basic Hospital and medical-surgical coverage shall be
that provided by the Blue Cross of Virginia and the Blue Shield of
Virginia in their Group Hospital-Medical Surgical Contract No. X-
4202 with the COMPANY.
Section 3. If an employee enrolls for the additional coverage of-
fered jointly by the Blue Cross of Virginia and the Blue Shield of
Virginia under their Group Major Medical Service Contract, and au-
thorizes the deduction from his wages of the amount of the premium
for the additional coverage, the COMPANY will deduct that
amount from his wages. Former employees who have been terminat-
ed for lack of work for no more than six (6) months beyond the end
of the month in which termination occurred may qualify for the ad-
ditional coverage if they enroll for such coverage and pay the premi-
um. No portion of the premium for such additional coverage is to be
paid by the COMPANY
The premium rate is reviewed annually by Blue Cross/Blue Shield
and normally increased. In June of each year representatives of Respond-
ent meet with Blue Cross/Blue Shield representatives in Richmond, Vir-
ginia, where they examine certain data to determine Blue Cross/Blue
Shield's reasonableness in requesting the increases. In addition, various
rate projections and benefits levels are discussed and these options are
made available to Respondent. If benefits remained the same, there is usu-
ally an increase in the premium which is not negotiable. Respondent does
have the option of terminating the contract upon 60 days' written notice.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$200/family to $200/individual, $400/family. Re-
main community rated. Just as with auto or home
insurance, raising the deductible lowers the premi-
um. Also, the higher deductible puts the greater
burden where it belongs, on those who use it most.
Community rated means our Major Medical
claims go into a pool for our district (20 in Virginia)
with about 300,000 other contracts. If our experi-
ence is worse than the average of the pool (which it
is), we benefit through lower premiums. If it is
better we lose.
Option #3-Family premiums from $6.34 to
$14.06. Retain $100 deductible but go Waynesboro
Plant experience rated. Same as OPTION #1 but ex-
perience vs. community rated. Higher premium cost
shows we're a bad risk vs. the other contract hold-
ers.
Option #4-Family premium from $6.34 to $X -
a negotiated rate. Go to Waynesboro Plant experi-
ence rated. This option would be attractive short
term but could be a real problem later because pre-
miums would have to be increased-perhaps drasti-
cally-to make up any losses or shortfalls during
the low premium period. Based upon what the
BC/BS people are telling us and we've checked
their figures, we need to act now as it will cost us
even more out-of-pocket later on.
Management suggested the second option, providing
for an increased deductible and a retention of the com-
munity-rated premium over the experience-rated premi-
um.
Management spokesman R. R. Barker also observed
that major medical premiums had increased at other
plant locations. The minutes read:
Waynesboro Du Pont Major Medical subscribers
are not the only ones feeling the increases. BS/BC
is working with virtually all subscribers on rate in-
creases as a result of rising health care costs across
the country. Within Du Pont, Kinston's Major
Medical cost went from $9.50 to $14.55/family
2/1/82. Old Hickory is at $14.05/family with a $300
deductible. Martinsville just went from $9.48 to
$15.38/family and retained the $100 deductible.
Richmond, which has basically the same coverage
we do, is still considering their situation.
As the minutes also reflect, Barker summarized man-
agement's position by stating that "the increased costs
are real, a premium increase is in order and that on bal-
ance Management feels that the increased deductible
option [Option #2] is the most reasonable." The Union
agreed and the increase was put into effect.
Approximately a year later, on June 16, 1982, 5 another
union-management meeting was held, at the request of
Respondent, to discuss major medical premiums. At this
meeting Respondent presented new rates which Blue
Cross/Blue Shield had determined were necessary to
maintain the existing benefits level. Respondent's spokes-
5 All dates refer to 1982 unless otherwise indicated.
man, Walker Norford, announced that Blue Cross/Blue
Shield had "established a new corporate policy whereby
contract with more than 2,000 subscribers will be experi-
enced-rated rather than community-rated. This will be a
change in our current Major Medical contract which
covers both employees and Pensioners." However, Nor-
ford stated that experienced rated was actually cheaper
than community rated. 6 During this meeting, Union
President Alfred Berry said that he understood that
Wayne-Tex Company, another Waynesboro corporation,
had a $50 deductible and said that he would like to have
information as to whom the carrier was and what their
premiums were. Norford said that management would
check on it. Berry also asked for the premiums on major
medical at all of Respondent's plants in Virginia. Nor-
ford agreed to consider this request and respond later in
the day.
After a recess, Norford, directing himself to the
Union's latter request, stated that such information was
not relevant to Waynesboro. As the minutes of that
meeting disclose:
Following a break, Mr. Norford commented on
the Union's request for rates at other Du Pont
plants. He pointed out that such information is not
relevant to the discussion of a necessary premium
increase at Waynesboro. Factors that create plant-
to-plant differences are:
Contract vary from plant to plant
Contract periods vary from plant to plant
Age of the Plant
Number and age of pensioners/survivors
Average age of employees
Hospital, medical, surgical cost in that area
Cost will vary year to year
Berry stated that in view of Respondent's position, the
Union would need some time to consider the matter.
On June 22, Berry sent Norford the following letter:
We are writing regarding our meeting on June 16
pertaining to the proposed Major Medical premium
increase. In this meeting we requested the premium
cost of the other four Virginia DuPont plants,
which we thought was very reasonable. We were
refused this information at this meeting, but to be
able to effectively represent our members, we must
have the following:
Information on the same plants we were fur-
nished in 1981.
Information on the other four plants in Virginia.
Information on all DuPont plants that have
Major Medical Insurance.
Copy of Major Medical Contract between Blue
Cross and DuPont.
6 This was just opposite of the representation made by Barker at the
June 11, 1981 meeting.
1246
E. 1. DU PONT & CO.
Copy of Blue Cross/Blue Shield basic contract
between Blue Cross and DuPont.
As stated above, this information is very much
needed to enable us to do a respectable job for our
constituents. We must have better Management co-
operation and good faith bargaining to improve the
bargaining atmosphere at this point.
We are requesting a meeting at your earliest con-
venience to discuss the above.
On June 24, another meeting was held between repre-
sentatives of the Union and Respondent for the purpose
of, inter alia, discussing the request for information made
by the Union in the June 22 letter. By way of clarifica-
tion, Berry defined the "Virginia" plants as the two
plants in Richmond, one in Martinsville, and one in
Front Royal, and that the request for information meant
the premiums paid for major medical at "other" locations
(besides Virginia) as well as the number of employees
employed at those locations since Blue Cross/Blue
Shield was now requiring all plants with 2000 or more
subscribers to become experienced rated as to premiums.
Berry said that they needed this information to assist the
Union in developing counterproposals. Norford main-
tained that many factors at the other plants concerning
type of contract, utilization, contract periods, age of
work force, number of pensioners/survivors and medical
costs for various areas upon which the premiums were
based, varied at the different locations and that the infor-
mation would not be relevant to Waynesboro since the
Waynesboro premium is based solely on the experience
of Waynesboro employees and pensioners/survivors.
Norford stated, "In fact, information concerning premi-
ums at various locations could confuse rather than clarify
questions raised by employees." Berry pointed out that
the premium information had been provided in 1981, as
reflected in the minutes of the June 11, 1981 meeting,
and Norford replied that the information was not provid-
ed pursuant to request, but presented by Respondent to
emphasize the point that premium costs were increasing
throughout the country.
Again, with respect to the relevancy of the informa-
tion requested by the Union, the minutes of the June 24
meeting states:
Mr. Norford further states he did not understand
how the UWI's request for premiums and size of
plants could have any relevancy that would contrib-
ute to preparing a counterproposal. As previously
stated, management is willing to consider any
counter-proposal the Union might present such as
an increase or decrease of the deductible amount,
etc. Mr. Berry said they need this information
before making a counterproposal. He understands
there are Major Medical contracts that cover 100%
rather than 80%. In the past they have gotten infor-
mation about other plants and feel this request is
reasonable.
Berry also requested a copy of the legal contracts for
hospital and medical-surgical coverage between Re-
spondent and Blue Cross/Blue Shield.7
Norford advised the Union that Respondent would
answer the Union's letter of June 22 at a later date.
The next and last meeting was held on June 28 at Re-
spondent's request to respond to the Union's June 22
letter. Upon inquiry by Norford, the Union said that the
information sought in item three of the June 22 letter
subsumed the information sought in items one and two
and was requesting major medical premium rates and
number of covered employees at all of Respondent's
other plants. Norford advised the Union that these pre-
mium rates would not be provided since first, Respond-
ent at Waynesboro did not have them, and second, they
were not relevant to premium rates at Waynesboro since
the various factors which determine premium costs vary
from plant-to-plant and have no bearing on the premium
costs at the Waynesboro plant.
Norford also stated that the premium's increase needed
to be communicated to the employees because the Blue
Cross/Blue Shield contract year began on August I and
the payroll deduction would have to begin in July in
order to continue current coverage.
Berry objected to Respondent's position not to furnish
the information requested since he felt that Respondent
was failing to follow past practice and policy because
premium rate information as to some of Respondent's
other plants was provided in 1981. Norford responded
that the information being sought was not relevant and
that it was provided in 1981 only to emphasize increased
costs for major premiums, and not to compare rates.
The premium rates for major medical insurance were
raised effective August 1 as shown in the minutes of the
meeting of June 16, with payroll deductions beginning in
July 1982.
II. ANALYSIS AND CONCLUSION
When a union requests information from an employer
for the purpose of enabling it to discharge its bargaining
obligation on behalf of the unit employees, the employer
is obliged as a matter of law to provide such information.
Obviously an employer is not obliged to furnish any in-
formation the union may request, but the Board has de-
termined that such information as is relevant and reason-
ably necessary for the Union to discharge its bargaining
obligation on behalf of the employees it represents must
be provided. NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956).
With respect to the instant case, Respondent first takes
the position that the collective-bargaining agreement
should be interpreted as vesting in Respondent the right
to pass on the premium increases to unit employees with-
out bargaining with the Union. While Respondent con-
cedes that it would be required to bargain concerning
"coverage," it contends that it was not obliged to bar-
gain over premium increases, and that its only responsi-
' Apparently this information was provided and it is not an issue in
this case.
1247
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bility was to inform the Union that the premium in-
creases were to take effect. I cannot agree.
There is nothing in Respondent's contractual right to
deduct the amount of major medical premiums from
wages under a payroll deduction authorization which
can be construed as giving Respondent a unilateral right
to pass on a premium increase without bargaining. The
matter has not been "pre-bargained" as the Respondent
contends. This is a gratuitous and unsupported interpre-
tation of the contract.
Nor can it be said that the amount of the premiums are
matters outside of the control of Respondent which ren-
ders useless any discussion with the Union. The record
makes it clear that representatives of Respondent and
Blue Cross/Blue Shield meet annually prior to the new
contract period to discuss various matters, including the
claims experience of the prior year, the reasonableness of
the Respondent's Blue Cross/Blue Shield projections,
and the various factors used to determine them. They
also discuss benefit modifications, including increased de-
ductibles, which are evaluated and priced. It is also con-
ceivable that if the premium options made available by
Blue Cross/Blue Shield were unreasonable, Respondent
could terminate the coverage with Blue Cross/Blue
Shield and obtain coverage elsewhere.
Although Respondent contends that in the past in-
creased major medical premiums were not negotiated,
but the Union merely "notified," this contention is not
supported by the record. A review of this record shows
that there were negotiations on the various options and
subsequently agreement as to the major medical premium
for 1981. Further negotiations on these matters took
place again in 1982 until Respondent refused to provide
the information which gave rise to the issuance of the
complaint herein.
In short, Respondent was obliged to negotiate with the
Union over the matter of increased premiums for major
medical coverage for the units' employees. Nestle Co.,
238 NLRB 92 (1978).
However, the larger question presented herein is
whether Respondent was required to furnish major medi-
cal premium information as to its other plants in the
nation.
In these circumstances the test as to relevance and rea-
sonable necessity still applies as to the information being
sought, but the seeker of the information has the burden
of showing, with more precision, the relevance and ne-
cessity. Respondent contends that since major medical
premiums at Waynesboro are based on experience-rate
criteria limited solely to those employees, premium costs
at other Respondent plants utilizing different criteria in
arriving at the premium cost are not relevant to the
matter of premium cost at Waynesboro. This is essential-
ly an oversimplification of the issue. It would appear rel-
evant to the Union's position to determine if other Re-
spondent plants with Blue Cross/Blue Shield plans cov-
ering more than 2000 employees are also experienced-
rated. Such comparisons might lead to modification in
the coverage at the Waynesboro plant or perhaps negoti-
ation with a view toward a change in insurance cover-
age.
Also, even assuming that the premium-cost informa-
tion is not meaningful in terms of its value to the Union
in negotiating major medical premiums for the unit em-
ployees, the value of the information to the Union must
not be confused with its relevance to the matter being
negotiated. The fact that the Union did not request infor-
mation concerning the underlying criteria used in deter-
mining major medical premiums at Respondent's other
plants does not make the requested information irrele-
vant; insufficient perhaps, in terms of its value to the
Union, but not irrelevant. The fact that more or other in-
formation may be necessary to give meaning to the infor-
mation sought does not make that information irrelevant.
Whether or not meaningful comparisions can be made
between the plants based on premium cost does not
privilege Respondent to withhold the information E. L
Du Pont & Co., 264 NLRB 48 (1982).8
With respect to Respondent's contention that the
matter should be left for resolution of the grievance pro-
cedures of the contract, it is clear that the issue to be re-
solved is whether or not Respondent is obligated under
the National Labor Relations Act to provide certain in-
formation to the Union as necessary and relevant to the
Union in representing the unit employees. It is not a
question of interpreting the provisions of the existing
contract. Nor has any grievance been filed as to this dis-
pute. Accordingly, any deferral of the matter pursuant to
Board law in inappropriate.
11. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's oper-
ations as described in section I, above, have a close and
intimate relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
III. THE REMEDY
The Union argues that Respondent also violated Sec-
tion 8(a)(5) of the Act by unilaterally instructing Blue
Cross/Blue Shield to implement an increase in major
medical premiums without the Union's agreement and
that a restoration of the status quo requires that Re-
spondent be ordered to pay to each employee the
amount of all moneys paid for that insurance from the
time that Respondent unlawfully allowed the increases to
take effect. Such relief is not appropriate.
First, in order to afford the relief sought by the Union,
an unfair labor practice finding as to the allegation must
be made. This contention of unlawful unilateral action by
Respondent is a separate and distinct allegation, not al-
leged in the complaint and thus no findings thereon are
made herein. The General Counsel has exclusive author-
ity with respect to the allegations of the complaint. Re-
' Nor is the requested information unavailable to Respondent. While
the Waynesboro plant of Respondent may not have the information at
that location, it would not appear to be unduly burdensome to obtain
since the information pertains only to Respondent's own plants.
1248
E. 1. DU PONT & CO.
spondent may not, sua sponte, in its brief, amend the
complaint to allege unfair labor practice violations not
alleged by the General Counsel.
Second, Respondent contends that the issue was fully
litigated and closely related to the "heart" of the com-
plaint. I disagree. As noted above, it is a conceptually
distinct type of violation. Nor can I conclude that the
matter was fully litigated at the hearing. While it appears
that the major medical premiums were increased, the cir-
cumstances of the implementation of the increases were
not fully litigated. According, I make no findings on the
increase as an unlawful unilateral change in violation of
Section 8(a)(5) of the Act.
However, having found that Respondent has engaged
in certain unfair labor practices I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. Spe-
cifically, I shall recommend that it be required to furnish
certain information to the Union which information is
necessary and relevant to the Union's administration of
its statutory obligation as collective-bargaining represent-
ative of the unit employees.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of Respondent constitute
units appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
Unit 1. All hourly wage roll employees of the
Waynesboro, Virginia Plant including the Benger
Laboratory in Waynesboro, VA., but excluding
all office clerical, techinical and professional sala-
ried employees, guards, supervisory trainees and
supervisors as defined in the Act.
Unit 2. All salary employees of the Waynesboro,
Virginia Plant except for employees exempt under
the Fair Labor Standards Act; secretaries or ste-
nographers and their relief assigned to the Plant
Manager and his Staff, the Benger Laboratory Di-
rector and his Staff; the Technical Superintendent,
Medical Supervisor, Personnel Supervisor, Em-
ployment Supervisor, Industrial Relations Super-
visor, Safety Supervisor, Industrial Engineering
Supervisor, Planning Supervisor, Industrial Engi-
neering Group Supervisor, Salary Records Clerks,
Plant Guards, Supervisory Trainees and all super-
visors.
4. At all times material herein, the Union has been the
designated exclusive collective-bargaining representative
of Respondent's employees in the respective units de-
scribed above.
5. By refusing to furnish the Union with the requested
information concerning major medical premium rates and
numbers of covered employees at all of Respondent's
other plants, Respondent has refused to bargain in good
faith with the Union and has interfered with, restrained,
and coerced its employees in the exercise of their rights
in Section 7 of the Act, thereby engaging in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) of the Act and Section 2(6) and (7) of
the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 9
ORDER
The Respondent, E. I. DuPont de Nemours & Co.,
Waynesboro, Virginia, its officers, agents, successors,
and assigns, shall
I. Cease and desist from
(a) Refusing to furnish the United Workers, Inc., with
information concerning major medical premium rates and
number of covered employees at all of Respondent's
plants.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Furnish the United Workers, Inc. with information
concerning major medical premium rates and number of
covered employees at all of Respondent's plants.
(b) Post at its plant in Waynesboro, Virginia, copies of
the attached notice marked "Appendix."10 Copies of the
notice, on forms provided by the Regional Director for
Region 5, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediate-
ly upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
I If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
'o 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Natioln-
al Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively and in
good faith with United Workers, Inc., by refusing to fur-
nish said Union with information necessary and relevant
to the Union's performance of its collective-bargaining
functions.
1249
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed under Section 7 of the Act.
WE WILL furnish the Union with information concern-
ing major medical premium rates and number of covered
employees at all of the Respondent's plants.
E. I. DUPONT DE NEMOURS & CO.
1250