Electronic Die Corp.

National Labor Relations Board - Administrative Judge Opinions

Nov 15, 2007

29-CA-028293 (N.L.R.B. Nov. 15, 2007)

JD(NY)–48—07
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
NEW YORK BRANCH OFFICE
DIVISION OF JUDGES
ELECTRONIC DIE CORP.
and Case Nos. 29-CA-28293
29-CA-28422
UNITED STEELWORKERS, DISTRICT 4, AFL-CIO
Ashok Bokde, Esq., Counsel for the General Counsel.
Anton Joro, President and Owner, for the Respondent.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on October
18, 20071 in Brooklyn, New York. The Consolidated Complaint herein, which issued on October
3, and was based upon unfair labor practice charges that were filed on May 10, May 30 and July
30 by United Steel Workers, District 4, AFL-CIO, herein called the International Union, alleges
that Electronic Die Corp., herein called Respondent, violated Section 8(a)(1)(5) of the Act by
unilaterally modifying the terms and conditions of employment as set forth in the collective
bargaining agreement with United Steelworkers, Local 4-107, herein called the Union, by failing
to make contributions to the Trust Fund covering its employees’ health insurance, and further
violated the Act by unilaterally instituting a different health insurance plan for its employees.
Findings of Fact
I. Jurisdiction
Respondent admits, and I find, that it has been an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. Labor Organization Status
Respondent admits, and I find, that the International Union and the Union have each
been labor organizations within the meaning of Section 2(5) of the Act.
III. The Facts
The most recent collective bargaining agreement covering the employer’s manufacturing
employees was executed on March 21, 1998 and was effective for the period April 1, 1997
through March 31, 2000. Excluded from the unit were executives and supervisory employees,
salesmen, office employees and construction employees. Since April 13, 2000 there have been
a number of memoranda and extensions of agreements executed by the parties, the latest of
which extended the agreement until January 12, 2007. Anton Joro became the president and

1 Unless indicated otherwise, all dates referred to herein relate to the year 2007.
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owner of the Respondent in about March 2004. On January 12, 2005, he and the Union
executed a Memorandum of Agreement which, inter alia, increased the Respondent’s
contribution to the Union’s Labor Management Trust Fund (the health insurance for the
employees) to $150 monthly per employee effective June 1, 2005, to $180 monthly, effective
June 1, 2006, and to $200 monthly, effective December 1, 2006. On February 22, 2006, Joro
and the Union executed another Memorandum of Agreement providing for a $.35 cent per hour
wage increase for all employees, retroactive to January 13, 2006, and stating that the
agreement will remain in effect until January 12, 2007.
Marian Rice, president of the Union, testified that she called Joro in December 2006
saying that they should arrange for dates to meet to negotiate a new contract. Joro told her that
as far as he was concerned, he didn’t have to negotiate with the Union and could let the
contract expire. Rice told him that he couldn’t do that; he had to negotiate with the Union. The
last contribution the Respondent made to the Trust Fund was in December 2006, and by letter
dated March 29, the Union wrote to Joro advising him that he was delinquent in his Trust Fund
contributions. Respondent did not respond to this letter. Joro testified that he began looking for
another health insurance plan in mid-December 2006 and purchased health insurance coverage
for his employees from Atlantis Health Plan on January 15. Of the three employees who were
employed at that time, one declined coverage on December 20, 2006 because he elected to
use his wife’s medical coverage. Joro testified that after speaking with Rice in late December
2006,
…when it became apparent that there was not going to be a renewal on time, I could not
risk having that lapse of health insurance, because to the best of my knowledge
expiration of contract means the expiration of health insurance, and I couldn’t allow that.
When questioned if he asked the Union whether health insurance would continue after the
contract expired, he testified that he called the Union, but there was “no answer.” He was asked
on cross examination:
Q But I think my question was, did you ever contact the Union to ask them when the
health insurance would expire? And, judging by your answer, can I assume that’s a
“no?”
A You can assume it’s a “no.”
He also testified that he called somebody “who handles the pension for the workers” and asked,
if he continued making pension payments after the expiration date, would they return the
payments or accept them. He was told, “Yes, go ahead and send the payments.” He testified
that he asked Rice the same question, and received no answer, although Rice told him that he
couldn’t get new health insurance, although she did not explain why.
IV. Analysis
It is alleged that the Respondent violated Section 8(a)(1)(5) of the Act by failing to make
the required contribution to the Union’s Trust Fund for its employees’ health insurance
coverage, beginning in January, and by instituting a different health insurance plan for its
employees at about the same time. As medical insurance for employees is a mandatory subject
of bargaining, the failure to make required payments to the Union’s Trust Fund for the
employees’ health insurance coverage constitutes a unilateral modification of the terms of the
collective bargaining agreement, and therefore violates Section 8(a)(1)(5) of the Act. A.T.
Electric Construction Corp., 338 NLRB 340 (2002); The R.T. Jones Lumber Company, Inc., 313
NLRB 726 (1994). The Respondent substituted the Atlantis Health Plan for the Union’s Trust
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Fund health plan, during the term of the agreement and without the Union’s consent. The Board,
in Mead Corp., 318 NLRB 201, 202 (1995), stated: “Section 8(d) of the Act provides that a party
which seeks to modify a term or condition of employment ‘contained in’ a current collective
bargaining agreement must obtain the consent of the other party before implementing the
change.” See also Hospital Episcopal San Lucas, 319 NLRB 54 (1995); NLRB v. Hardesty
Company, Inc., 308 F.3d 859 (8th Cir. 2002). Respondent did not obtain the Union’s consent to
the change, nor did it negotiate, or offer to negotiate, with the Union about the change in
coverage. Joro testified that he made the change in health insurance coverage for his
employees because he was unable to obtain a satisfactory answer from the Union as to whether
the coverage survived the expiration of the contract. Even if I were to credit this testimony,
which I do not2, this would not be a valid defense to the unilateral change involved herein. I
therefore find that by failing to make the Trust Fund payments beginning in January, and by
substituting the Atlantis Health Plan for the Union’s health plan, at the same time, without prior
negotiation or agreement with the Union, the Respondent violated Section 8(a)(1)(5) of the Act.
Conclusions of Law
1. The Respondent has been an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The International Union and the Union have each been labor organizations within the
meaning of Section 2(5) of the Act.
3. By discontinuing its payments to the Union’s Trust Fund, and by substituting new
medical coverage for its employees, rather than the Union’s coverage as provided for in its
contract with the Union, without agreement or bargaining with the Union, the Respondent
violated Section 8(a)(1)(5) of the Act.
The Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I
recommend that it be ordered to cease and desist from engaging in these activities and that it
be ordered to take certain affirmative action designed to effectuate the policies of the Act. In that
regard, I recommend that the Respondent be ordered, upon request of the Union, to discontinue
its participation in the Atlantis Health Plan and to resume contributing to the Union’s Labor
Management Trust Fund (the health insurance plan maintained by the Union), with the
understandings that the Respondent will not be required to make payments to the Union plan
retroactive to January, since it was covering its employees’ health costs through Atlantis during
that period, and will not be subject to a penalty for the time it was not participating in the Union’s
plan. Because the record herein does not disclose the benefits of the Atlantis plan as compared
to the Union’s health plan in effect as of January, I further recommend that the Respondent be
ordered to reimburse any employee who suffered a loss beginning in January due to the

2 Joro testified that he obtained coverage from Atlantis in lieu of the Union’s coverage
because he was not certain that the Union’s coverage would survive the contract, and he could
not risk the loss of his employees’ medical coverage. Yet, when questioned as to whether he
ever called the Union to ask when the coverage would expire, he testified that he didn’t, and
when he asked the Union if they would accept his pension contributions after the expiration of
the contract, they said that they would. I therefore find that Joro knew, or should have known,
that his employees’ health insurance coverage would have continued after the expiration of the
agreement, if he continued making the required payments to the Union’s trust fund.
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transfer of coverage from the Union plan to Atlantis.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
ORDER
The Respondent, Electronic Die Corp., its officers, agents, successors and assigns,
shall:
1. Cease and desist from
(a) Unilaterally discontinuing its monthly contributions to the Union’s Labor Management
Trust Fund, covering health insurance for its employees, and unilaterally discontinuing its
participation in the Union fund and substituting different health insurance coverage for its
employees, without prior negotiations and/or the approval of the Union.
(b) In any like or related manner restraining or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the Act:
(a) Upon request of the Union, resume its participation in the Union’s Labor
Management Trust Fund together with the monthly payments per covered employee as set forth
in the latest collective bargaining agreement between the parties.
(b) Reimburse its employees, if any, who suffered a loss from January 2007 until the
Respondent resumes its participation in the Union’s Labor Management Trust Fund, due to the
Respondent’s failure to continue its participation in the Union’s fund during that period.
(c) Within 14 days after service by the Region, post at its facility in Brooklyn, New York,
copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by
the Regional Director for Region 29, 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 the facility 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 any time since
January 12, 2007.

3 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.
4 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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(d) 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.
Dated, Washington, D.C., November 15, 2007.
______________________________
Joel P. Biblowitz
Administrative Law Judge
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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 refuse to bargain with United Steelworkers, Local 4-107, AFL-CIO (“the Union”)
as the exclusive collective-bargaining representative of our unit employees by refusing to make
the monthly contributions to the Union’s Labor Management Trust Fund covering our
employees’ health insurance coverage as required in our contract with the Union.
WE WILL NOT implement a new health insurance plan for our unit employees without prior
notice to the Union and without affording the Union an opportunity to negotiate and bargain.
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 of the Union, resume making the required payments to the Union’s
Labor Management Trust Fund and WE WILL make whole any employee who incurred any
expenses ensuing from our failure to make these fund contributions.
ELECTRONIC DIE CORP.
(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.
One MetroTech Center (North), Jay Street and Myrtle Avenue, 10th Floor
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
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
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NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862.