IMTT-Bayonne

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 476 (N.L.R.B. 1991)

476
304 NLRB No. 58
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 For example, in his August 28, 1990 letter to the Union, Respondent’s di-
rector of employee benefits stated that, unlike the old plan, the new plan con-
tained catastrophic coverage for claims exceeding $25,000. In another docu-
ment supplied by Respondent to employees, Respondent refers to the new plan
as containing ‘‘some additional enhancements.’’ Further, Respondent’s counsel
at the hearing conceded that the Blue Cross/Blue Shield component of the old
plan was not identically matched by the Travelers’ plan and that ‘‘in fact there
are differences.’’
2 Although the judge erred in stating that it was not until the filing of its
posthearing brief that Respondent suggested the Union was not entitled to cost
information, this error does not affect our adoption of the judge’s conclusion
that Respondent had a duty to furnish the cost information requested by the
Union.
In adopting the finding that the Respondent had a duty to provide the cost
information, Member Oviatt notes in particular that the Respondent repeatedly
told the Union that the Respondent did not yet have the cost information, but
that it would be provided to the Union as soon as possible, or when the Re-
spondent had ‘‘satisfactory actuarial experience’’; and further, that ‘‘if there
was a savings, it would be passed on to the employees.’’ It was not until sev-
eral months later, at the hearing, that the Respondent first asserted that the
Union was not entitled to any cost information (based on the contention it
would be irrelevant under the Respondent’s then interpretation of the contract).
IMTT-Bayonne and Oil, Chemical and Atomic
Workers International Union, Local 8–406.
Case 22–CA–17286
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On April 8, 1991, Administrative Law Judge Elea-
nor MacDonald issued the attached decision. The Gen-
eral Counsel and Respondent filed exceptions and a
supporting brief. The National Labor Relations Board
has delegated 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 de-
cided to affirm the judge’s rulings, findings as modi-
fied, and conclusions as modified and to adopt the rec-
ommended Order as modified.
The judge found that Respondent violated Section
8(a)(5) and (1) of the Act by refusing to furnish to the
Union a description of Respondent’s new insurance
plan, commencing in April 1990 and ending in No-
vember 1990. We find merit to the General Counsel’s
exception to the judge’s finding that Respondent’s un-
lawful refusal to furnish the plan description ceased in
November 1990.
The judge found, based on Respondent’s representa-
tions to the Union, that the old and new insurance
plans mirror each other in coverage. We conclude that
the record evidence, including Respondent’s own testi-
mony and documents, shows that the two plans are not
identical.1 Moreover, the undisputed evidence indicates
that in November 1990, Respondent received from
Travelers a description of the Travelers’ portion of the
new plan. Respondent has refused to provide this doc-
ument to the Union and gives no lawful justification
for its refusal.
Accordingly, it is clear that Respondent’s oral state-
ment to the Union in November 1990 that the old plan
booklets could be used to describe the new plan be-
cause the coverage under the two plans were the same
did not satisfy its duty to provide all the relevant infor-
mation needed for the Union to compare for itself both
the coverage and costs of the plans.2 We therefore
conclude that Respondent’s unlawful refusal continued
after November 1990 and that it is required to furnish
a detailed description of the new plan to the Union.
See Ideal Corrugated Box Corp., 291 NLRB 247, 248
(1988).
AMENDED CONCLUSIONS OF LAW
Delete the judge’s Conclusions of Law 3 and sub-
stitute the following:
‘‘3. By failing to provide the Union with exact and
detailed information about the coverage of the new
medical insurance plan, Respondent violated Section
8(a)(5) and (1) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, IMTT-
Bayonne, Bayonne, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Furnish the Union, in timely fashion, the infor-
mation related to the cost and coverage of the medical
insurance plan adopted on April 1, 1990.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
477IMTT-BAYONNE
WE WILL NOT refuse to bargain in good faith with
the Oil, Chemical and Atomic Workers International
Union, Local 8-406, by refusing to furnish the Union
with information necessary and relevant to the Union’s
performance of its collective-bargaining functions.
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 furnish the Union with information relat-
ing to the cost and coverage of the medical plan adopt-
ed April 1, 1990.
IMTT-BAYONNE
Julie Kaufman, Esq. and Bert Dice-Goldberq, Esq., for the
General Counsel.
Francis T. Coleman, Esq. (Keck, Mahin & Cate), of Wash-
ington, D.C., for the Respondent.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in Newark, New Jersey, on January 16, 1991.
The complaint alleges that Respondent, in violation of Sec-
tion 8(a)(1) and (5) of the Act, refused to furnish certain in-
formation requested by Oil, Chemical and Atomic Workers
International Union, Local 8-406. Respondent denied the ma-
terial allegations of the complaint. In its posthearing brief,
Respondent raised for the first time the defenses that the
matter should be deferred to arbitration and that the com-
plaint was time barred under Section 10(b). Further, Re-
spondent filed a motion on March 5, 1991, requesting dis-
missal in accordance with the Board’s policy of deferral to
arbitration.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent in February
1991, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with a facility in Bayonne,
New Jersey, is engaged in the storage and distribution of oil
and gases. Respondent admits, and I find, that it is an em-
ployer 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
The Union represents the following employees of Re-
spondent in an appropriate unit for the purposes of collective
bargaining:
Employees in all classifications except administrative,
executive, supervisory, professional, clerical, and facil-
ity protection employed at the Bayonne, New Jersey
terminal.
The Union has represented employees at the Bayonne fa-
cility for many years. Respondent assumed ownership of the
facility in September 1983, and since then it has been a party
to successive collective-bargaining agreements with the
Union. The most recent contract has a term from June 21,
1989, to June 20, 1992.
Article X, sections B and C, provide in pertinent part:
The Company agrees to contribute the sum of Two
Dollars and Twenty-One Cents ($2.21) per hour, not to
exceed a maximum contribution of Eighty Eight Dollars
and Forty Cents ($88.40) per week for any and all of
its regular full time employees, and their dependents,
covered by this agreement to the O.C.A.W., Local 8-
406 Welfare Fund. However, for any increases beyond
the $2.21 per hour and a maximum of $88.40 per week,
the Company will pay only 75% of the increase, with
the remaining 25% to be paid by the covered employee.
The Company shall have the right, within twelve
(12) months from the execution of this agreement, to
adopt another plan with corresponding benefits limited
to employees of this bargaining unit and their depend-
ents.
At the time the collective-bargaining agreement was exe-
cuted, the unit employees were covered by the Union Wel-
fare Fund and no contributions were required of them toward
the cost of their medical insurance. The Union Welfare Fund
was composed of two components: one consisted of a Blue
Cross/Blue Shield portion and the other was a major medical
and dental portion funded and self-insured by the Union
Welfare Fund. However, in February 1990, there was a 35-
percent increase in rates by Blue Cross/Blue Shield. The unit
employees were obliged to pay 25 percent of the cost of the
increase; this amounted to $.16 per hour or $6.30 per week
per employee.
On April 1, 1990, the Company exercised its right under
the collective-bargaining agreement to adopt another plan.
The new plan consisted of a component supplied by the
Travelers Insurance Company supplemented by a component
self-funded and self-insured by the Employer. A few weeks
before the change in medical plans became effective, Termi-
nal Manager Richard R. Fisette held a meeting with the
Union committee to inform it that the change would be tak-
ing place. The meeting was attended by the Union’s chief
steward, John Kryzkowski, and several other committee
members. Fisette stated that representatives of the Travelers
Insurance Company would come to the facility to answer any
questions the employees might have about the plan. Fisette
also said that printed manuals describing the new plan would
be distributed to the employees as soon as the Company re-
ceived them from the print shop. Fisette stated that the new
plan would provide coverage corresponding to that provided
under the old plan.
On April 6, 1990, Kryzkowski wrote to Fisette stating:
As of April 5, 1990, we still have not received full
information on the Travelers Health Care Package. . . .
It is of great concern that we have full disclosure of
what exactly our coverage will cost, and exactly what
will be covered.
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Weaver works at the Company’s home office in New Orleans.
It is [the Union’s intention] to have an expert com-
pare the two coverages and let us know if they are cor-
responding in all aspects or not.
I request an extension on the grievance filing time,
until the both coverages are compared.
By letter of April 6, 1990, Fisette responded that the ‘‘for-
mal printed manual for the new Travelers-based health pro-
gram is still with the printer.’’ The letter referred to a two-
page summary document circulated to the employees on
April 1, 1990, which purported to describe the new plan.
Fisette promised that the detailed health plan description
‘‘will be distributed as we receive them from the printer.’’
In response to the Union’s request to extend the time for fil-
ing a grievance, Fisette wrote:
Since nothing the Company has done concerning these
benefits falls within the criteria of Article VIII, the re-
quest to extend the grievance filing time is neither justi-
fied nor appropriate and therefore need not be ad-
dressed.’’
Charles Horvath, president of the Union, testified that on
about April 26, 1990, he met with management and re-
quested information about the new medical plan which the
Company had just adopted. The meeting took place in
Fisette’s office; besides Horvath and Fisette, members of the
Union committee were present. Horvath requested a copy of
the medical plan so that the Union Welfare Fund could com-
pare it with the former Union Welfare Fund plan and make
sure that the new plan was comparable in accordance with
the requirements of the collective-bargaining agreement.
Horvath also asked management officials for figures showing
the cost of the plan; employees were still being asked to con-
tribute $6.30 per week and he wanted to be certain that the
contribution was still necessary under the new plan. Horvath
knew the cost of the old medical plan under the Union Wel-
fare Fund; it was $3.84 per hour. He wanted to know the
exact cost of the new plan to see if the employee contribu-
tion was justified by the cost of the new plan. Fisette replied
that he did not have the information requested but that he
would get it to the Union as soon as possible. According to
Chief Steward Kryzkowski who was also present at the meet-
ing, Fisette stated that the insurance booklets were still at the
printers.
Horvath testified that throughout the summer of 1990 he
met personally with Fisette to discuss grievances and other
matters and renewed his request for the information.
Kryzkowski testified that around July 1 at a grievance meet-
ing, the Union asked for the plan description and the cost
figures for the insurance. Fisette stated that ‘‘as far as the
costs were concerned, . . . they were waiting for quarterly
statement from the insurance carrier.’’
On August 9, 1990, Kryzkowski wrote to Fisette remind-
ing him that the Union had not received ‘‘financial disclo-
sure on the Travelers Health Care Coverage regarding the
hourly contribution rate of which we are responsible for a
copayment of 25% of all increases over $2.21 per hour.’’
On August 28, 1990, Robert C. Weaver, vice president and
director of risk management for Respondent wrote to
Kryzkowski, stating, in part:1
Detailed costs of our program will be made available
to you when satisfactory actuarial experience and relat-
ed actual costs become identified. If, after all the costs
are accounted for, there is a savings, it will be passed
on to the men.
On October 3, 1990, the Union filed its unfair labor prac-
tice charge herein alleging that the Company had refused to
provide the information about the medical plan.
In November 1990, according to Kryzkowski, Dennis
Barbarise, benefits coordinator at the Bayonne facility told
him that unit members could use their old union health plan
booklets as pamphlets for the new plan because ‘‘it would
be a mirror coverage.’’
On December 13, 1990, Horvath wrote to Fisette to re-
quest some information not relevant to the instant case. His
letter reminded Fisette:
Also to date this office has not received any of the
information requested on your medical plan.
To avoid any legal recourse which could be costly
to both parties I hope you will cooperate and furnish
the information requested above.
On January 7, 1991, Fisette responded that since the
Union’s informational request regarding the medical plan
was before the NLRB as a result of the filing of the unfair
labor practice charge ‘‘we are now dealing with that agency
in the resolution of this matter.’’
Weaver testified that Travelers had agreed to draw up a
booklet describing both the Travelers portion of the insur-
ance plan and the self-insured portion, but that it did not do
so. Eventually, the Company decided that the employees
should simply use the old booklet issued by the Union Wel-
fare Fund as a guide to insurance coverage.
Weaver testified that the cost of the new health insurance
plan adopted by the Company on April 1, 1990, was the sum
of the amount paid to Travelers and the amount required to
make supplemental payments on a self-insured basis. The
cost of the self-insured component varies from month to
month. According to Weaver, he would regard 3 years’ expe-
rience for the self-insured component as an adequate actuar-
ial base from which to calculate the monthly cost of the self-
insured portion. He stated that the information compiled by
the Company so far was not statistically sufficient to assess
the average cost of the self-insured component over the life
of the contract. However, he acknowledged that from a sta-
tistical point of view, ‘‘you’re better off after one year than
you are after six months.’’ Further, Weaver stated, he would
be able to make use of whatever information he had for the
next contract negotiations with the Union in 1992. Weaver
also testified that the Company is billed monthly by Travel-
ers for the cost of the Travelers portion of the health insur-
ance plan.
Dennis Barbarise, manager of administration for the Com-
pany, is responsible for the administration of benefits under
the new medical insurance plan. Barbarise testified that in
November 1990, he and Kryzkowski discussed the fact that
the Union did not have a booklet that set forth medical insur-
ance coverage under the new plan. Barbarise stated that he
told Kryzkowski that the unit members had the exact cov-
erage that was described in the Union Welfare Fund booklet
that had been in use previously. Barbarise does not person-
479IMTT-BAYONNE
ally handle all the claims for medical insurance, but he is
consulted on claims that are questionable. When a question
arises whether a claim for medical insurance is covered
under the new plan, Barbarise or the company claims admin-
istrator call the Union Welfare Fund medical insurance plan
administrator and ask if the claim at issue would have been
covered under the old Union Welfare Fund plan. If the claim
would have been covered under the union plan, then the
Company covers the claim through the self-insured portion
of the new plan.
There is no evidence that since the institution of the new
medical insurance plan any employee claims have been re-
jected that would have been paid under the old Union wel-
fare fund medical insurance plan.
The record shows that before April 1, 1990, the Company
issued a two-page summary description of the new insurance
plan. The Company said the new plan would ‘‘match’’ the
services and costs provided in the Union Welfare Fund plan.
The evidence does not establish that this description was sent
to the Union. Further, Weaver conducted several meetings
with unit employees to explain the new plan; apparently,
union officials were not actually invited to attend these meet-
ings.
B. Positions of the Parties
Counsel for the General Counsel maintains that the Union
has a right to information that may be relevant and reason-
ably necessary to represent employees in the bargaining unit
with respect to terms and conditions of employment. Infor-
mation about group insurance is presumptively relevant. Gen-
eral Counsel argues that the fact that the Union Welfare
Fund plan description provides information about the Com-
pany plan ‘‘does not defeat the Union’s right to have . . .
a description of the plan.’’ The Union is not obliged to se-
cure its information from an alternative source, that is, the
Union Welfare Fund plan booklet. Concerning the cost infor-
mation, counsel for the General Counsel urges that the infor-
mation currently available to the Company is relevant even
though it may not be complete for all purposes which the
Company could cite. Further, the information is readily avail-
able to the Company through its own books and records. At
the instant hearing, Respondent took the position that the
cost information sought by the Union was not available in
a statistically significant form. Respondent’s brief argues that
the collective-bargaining agreement gives it the right to col-
lect employee contributions for medical insurance costs
based solely on the cost of the union plan; this is so regard-
less of the actual costs of the plan which the Company has
properly elected to substitute for the union plan. Thus, Re-
spondent concludes, the actual costs of the company plan are
irrelevant to the Union’s performance of its function as the
representative of the unit. In any event, Respondent urges,
the interpretation of the contract should be left to an arbitra-
tor. The language of the contract, according to Respondent,
is clear and unambiguous and there is no need for the Union
to seek information because there cannot be any dispute as
to the meaning of the contract. If such a dispute did exist,
however, in the view of Respondent it should be submitted
to arbitration and the Board should defer to that process; the
arbitrator would have the power to order production of the
information sought. Further, Respondent asserts, the new
medical plan was adopted April 1, 1990: the instant charge
was filed more than 6 months after that date and it is there-
fore time barred under the Act. Finally, Respondent argues,
it does not have any description of the medical plan coverage
other than the Union Welfare Fund booklet; this information
is already in the possession of the Union. The cost informa-
tion sought is also not available because ‘‘the cost informa-
tion available to the Employer at this time is not statistically
meaningful nor representative of the Employer’s ‘per hour
cost,’ its contribution or its total costs involved.’’
C. Discussion and Conclusions
There are well established tests applicable for determining
whether an employer must furnish information to the collec-
tive-bargaining representative of its employees. The Supreme
Court has held that an employer must ‘‘provide information
that is needed by the bargaining representative for the proper
performance of its duties’’ and that ‘‘the duty to bargain un-
questionably extends beyond the period of contract negotia-
tions and applies to labor-management relations during the
term of an agreement.’’ In deciding whether information
must be turned over, it is only necessary to find that it is
probably relevant; a ‘‘discovery-type standard’’ is applied.
NLRB v. ACME Industrial Co., 385 U.S. 432, 435–437
(1967). Information relating to wages and group insurance is
presumptively relevant. East Dayton Tool Co., 239 NLRB
141, 143 (1978). ‘‘In this connection it is not necessary that
the information be shown to be accurate or even admissible
in court, so long as there is some relationship to a subject
of collective bargaining.’’ Stephen Oderwald, Inc., 284
NLRB 277, 279 (1987). Further, ‘‘[t]he fact that more or
other information may be necessary to give meaning to the
information sought does not make that information irrele-
vant.’’ E. I. Dupont & Co., 271 NLRB 1245, 1248 (1984).
Respondent and the Union are signatories to a collective-
bargaining agreement which provides for medical insurance
coverage under the Union Welfare Fund plan and gives the
Company the right ‘‘to adopt another plan with correspond-
ing benefits.’’ Manifestly, the Union is entitled to informa-
tion about the new plan so that it may enforce the rights of
employees to ‘‘corresponding benefits’’ under any new plan
adopted by the Company. Such information is presumptively
relevant to the performance of the Union’s duty to enforce
and administer the collective-bargaining agreement. Without
information about the coverage of the new plan, the Union
could not properly represent the employees. Indeed, until the
filing of its brief herein, Respondent had never taken the po-
sition that the Union was not entitled to the information: be-
fore the plan was adopted, Fisette told Kryzkowski that print-
ed manuals would be available soon, and when Kryzkowski
requested disclosure of ‘‘exactly what will be covered’’ on
April 6, 1990, Fisette quickly responded that a detailed
health plan description would be distributed as soon as it was
received from the printer. When Horvath asked for a copy
of the medical plan on April 26, 1990, Fisette told him that
booklets were still at the printers. Various union officials re-
newed the request for the information throughout the summer
of 1990. The testimony of company witnesses shows that far
from telling the Union that they would not provide the infor-
mation, they kept putting the Union off with stories about the
‘‘printers.’’ In fact, as the testimony of company witnesses
shows, the Company wanted the Travelers to provide the in-
formation but it eventually became apparent that Travelers
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The two-page summary description of the new insurance plan issued to
employees before April 1, 1990, is not a complete description of the coverage
and would not satisfy the Company’s obligation to provide information to the
Union.
refused to provide a complete plan description. The result
was that from April 6, 1990, until after the Union filed the
instant charge on October 3, 1990, the Company did not give
the Union the information it had repeatedly requested in
order to ascertain exactly what coverage the new medical in-
surance plan provided.
I note that the Union did not begin its search for informa-
tion by asking for a plan booklet; the Union asked for ‘‘in-
formation’’ about ‘‘exactly what will be covered.’’ It was the
Company that referred initially to the preparation of a book-
let. There was no reason, except the convenience of the
Company, for the information to be given to the Union in
the form of a booklet. The Company could have given the
Union a copy of its contract with Travelers showing that por-
tion of the medical coverage provided by Travelers and it
could have supplemented this with a statement of what
would be covered by the self-insured portion of the coverage.
Or the Company could have done what it did in November,
1990, after the filing of the charge herein; it could have sim-
ply told the Union that anything that was covered under the
old Welfare Fund plan would be covered by the new plan
and that the old plan booklets could be used to describe fully
and in every particular the new plan adopted by the Com-
pany as of April 1, 1990. The testimony in the record con-
vinces me that until November, 1990, the Company had
never told the Union that the new coverage was a ‘‘mirror’’
of the old Welfare Fund coverage; until then Company had
limited itself to assurances that the new coverage had ‘‘cor-
responding benefits,’’ a conclusory statement that provided
no information to the Union.2
Thus, I find that the Respondent violated Section 8(a)(5)
and (1) of the Act when it failed to provide the Union with
exact and detailed information about the coverage of the
medical insurance plan adopted on April 1, 1990, in response
to the Union’s written and oral requests, beginning on April
6, 1990, and continuing on April 26, July 1, and through the
summer of 1990.
General Counsel argues that requiring the Union to use the
old Welfare Fund plan description does not satisfy Respond-
ent’s obligation to supply information. General Counsel urges
that this amounts to requiring the Union to conduct an inde-
pendent investigation. I do not agree. The Union has copies
of the Welfare Fund plan description already in its posses-
sion and it would not be burdensome to be required to refer
to those documents. Compare Borden Chemical, 261 NLRB
64, 80 (1982). Once the Employer had told the Union, in
November 1990, that the old Welfare Plan description was
an exact description of the new coverage, the Respondent
had satisfied its duty as to that portion of the Union’s request
that dealt with a description of the new medical insurance
plan. Thus, Respondent’s violation of the Act occurred from
April 6, 1990, until November 1990.
With respect to the Union’s request for information re-
garding the cost of the new medical insurance plan, the anal-
ysis undertaken above shows that cost information concern-
ing insurance coverage of the unit employees is presump-
tively relevant. Indeed, until the filing of its brief herein, Re-
spondent did not suggest that the Union was not entitled to
the information it sought; rather, Respondent maintained that
the cost data available had not accumulated over a sufficient
length of time to be accurately averaged. Weaver himself
wrote in August 1990, that details concerning the cost of the
new medical plan would be furnished to the Union when he
had ‘‘satisfactory actuarial experience.’’ He added that if
there was a savings it would be passed on to the employees.
This last statement makes it clear that Weaver’s interpreta-
tion of the contract agreed with that of the Union; that is,
that the $6.30 per week paid by the employees had to be jus-
tified by the cost of the new medical insurance plan insti-
tuted by Respondent. Although Respondent’s brief adopts a
new reading of the collective-bargaining agreement and ar-
gues that employees must contribute based on the cost of the
Union Welfare Fund plan and not based on the cost of the
plan in which the employees participate, it is not necessary
for me to interpret the collective-bargaining agreement. It is
sufficient that the Union is seeking information that is rel-
evant to its own reading of the contract language. That the
Union’s interpretation of the language is not unreasonable is
shown by the fact that until very recently Respondent agreed
with the Union’s reading of the contract. The Union needs
the cost information in order to decide if, in its view, the
contract provisions relating to employee contributions are
being adhered to. Whether the Union will eventually file a
grievance and whether an arbitrator may ultimately agree
with the Union’s view of the contract is not of concern in
determining whether, under the very broad discovery-type
standard applicable herein, the Union is entitled to the cost
information it has demanded.
Having determined that the cost information sought by the
Union is necessary to the performance of its duties and pre-
sumptively relevant, I turn to Respondent’s argument that the
cost information available to it at this time is not statistically
meaningful nor representative of the per hour cost. It is clear
from the totality of Weaver’s testimony that Respondent is
in possession of information relating to the cost of the new
medical insurance plan. Respondent is billed regularly by
Travelers for the cost of providing coverage and Respondent
maintains records of the sums it disburses monthly for the
self-insured component of the new plan. For information to
be properly disclosable to the Union it need not be admissi-
ble in court nor need it even be accurate; it must only relate
to a subject of collective bargaining. Clearly, Respondent has
an obligation to give the Union the cost information it has
on hand. The fact that the information is open to interpreta-
tion or that, in the view of Respondent, it may not be for
a statistically significant length of time is not controlling.
The Union has a right to the information so that its own ex-
perts may advise it concerning the per hour cost as defined
in the collective-bargaining agreement and so that it may de-
cide on an appropriate course of action pursuant to its read-
ing of the agreement. I note that Weaver acknowledged that
even the earlier cost figures had some meaning and that the
accuracy increased as time went on. It is up to the Union and
its expert to decide what meaning the Union will give to the
figures in its own analysis.
I find that Respondent violated Section 8(a)(5) and (1) of
the Act from April 6, 1990, to the present, by failing to give
the Union the cost information it was seeking.
With respect to Respondent’s argument that the requests
for information should be deferred to arbitration, I note that
481IMTT-BAYONNE
3 Respondent’s motion cites Sinclair Refining Co. v. NLRB, 306 F.2d 569
(5th Cir. 1962), as authority for its position. In 1967, this case was specifically
disapproved by the Supreme Court in Acme, supra at 437. P.R. Mallory Co.,
411 F.2d 948, 956 (7th Cir. 1969).
4 The grievance challenges the right of the Company to collect any contribu-
tions from the employees unless they are for the Union Welfare Fund and it
challenges the right of the Company to include unit members in a company
wide plan.
5 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 objec-
tions to them shall be deemed waived for all purposes.
6 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
under the Board’s clear precedents, Respondent should have
raised this issue earlier than in its posthearing brief submitted
on February 19, 1991, or the motion made in March.3 United
Technologies Corp., 274 NLRB 504 (1985). However, I need
not decide this aspect of the case on a procedural basis only.
It is manifest that under established Board law, allegations
that an employer has refused to furnish information requested
by an exclusive collective-bargaining representative are not
deferred to arbitration. United Technologies, supra at 505.
This conclusion is not affected by the fact that on February
22, 1991, the Union filed a grievance relating to the adoption
of the new medical insurance plan.4 United Technologies,
supra at 506. Respondent’s posthearing motion must be de-
nied.
Respondent’s argument that this proceeding is barred by
Section 10(b) of the Act is similarly without merit. As found
above in greater detail, the Union’s requests for information
and the Company’s failure to comply began on April 6,
1990, and continued regularly through the summer of that
year. It was not clear until Weaver’s letter of August 28 that
the Company was no longer willing to provide the cost infor-
mation and even on that date the Company had not told the
Union that a description of the coverage would not be forth-
coming. Thus, the charge filed on October 3, 1990, was well
within the 6-month period specified in the Act. Respondent’s
argument is premised on the fact that the new health insur-
ance plan was instituted on April 1, 1990. However, in urg-
ing that the effective date of the new plan is significant in
counting the limitations period, Respondent misreads the in-
stant charge. The Union has not alleged that the adoption of
the new plan was an unfair labor practice; rather, the Union
is complaining of Respondent’s failure to furnish certain in-
formation it requested.
CONCLUSIONS OF LAW
1. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
Employees in all classifications except administrative,
executive, supervisory, professional, clerical, and facil-
ity protection employed at the Bayonne, New Jersey
terminal.
2. At all times material, the Union has been the exclusive
representative of all employees within the appropriate unit
described above for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
3. By failing to provide the Union with exact and detailed
information about the coverage of the new medical insurance
plan from April 6, 1990, until November 1990, Respondent
violated Section 8(a)(5) and (1) of the Act.
4. By failing to provide the Union with the information
available to it about the cost of the new medical insurance
plan, Respondent violated Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, 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.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, IMTT-Bayonne, Bayonne, New Jersey,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to provide the Union with infor-
mation relating to the coverage of the medical insurance plan
and with information relating to the cost of the plan.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish the Union, in timely fashion, the information
concerning the cost of the medical insurance plan adopted on
April 1, 1990.
(b) Post at its facility in Bayonne, New Jersey, copies of
the attached notice marked ‘‘Appendix.6 Copies of the no-
tice, on forms provided by the Regional Director for Region
22, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall 10 be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.