Mail Contractors of America, Inc.

National Labor Relations Board - Board Decisions

Dec 28, 2005

346 N.L.R.B. 164 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 16
164
Mail Contractors of America, Inc., Kansas City Ter-
minal and American Postal Workers Union, Des
Moines Area Local, AFL–CIO. Case 17–CA–
21836
December 28, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 9, 2004, Administrative Law Judge
Thomas M. Patton issued the attached decision. The
Charging Party, American Postal Workers Union, Des
Moines Area Local, AFL–CIO, filed exceptions and a
supporting brief, and the Respondent filed an answering
brief. The Respondent filed cross-exceptions and a sup-
porting brief, and the Charging Party filed an answering
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to adopt the
judge’s rulings, findings, and conclusions and to adopt
the recommended Order.1
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Naomi L. Stuart, Esq., for the General Counsel.
Jeffrey W. Pagano, Esq. and Herbert I. Meyer, Esq. (King,
Pagano & Harrison), of New York, New York, for the Re-
spondent.
Anton Hajjar, Esq. (O’Donnell, Schwartz & Anderson, PC), of
Washington, D.C., for the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS M. PATTON, Administrative Law Judge. A hearing
was held in these cases at Overland Park, Kansas, on August
26–27 and November 4–6, 2003.1 The charge was filed on
August 22, 2002, by Des Moines Area Local, American Postal

1 In adopting the judge’s decision, we find on the record before the
Board that the requirements of RBE Electronics of S. D., Inc., 320
NLRB 80, 82 (1995), with respect to “an economic exigency compel-
ling prompt action short of the type relieving the employer of its obliga-
tion to bargain entirely,” were met here.
Although Chairman Battista agrees that the “economic exigency”
exception in RBE Electronics applies here, he does not wish to suggest
that this is the only possible exception to the general rule that an em-
ployer may not make unilateral changes in the absence of a general
impasse. See, e.g., Bottom Line Enterprises, 302 NLRB 373 (1991),
enfd. mem. 15 F.3d 1087 (9th Cir. 1994); TXU Electric Co., 343 NLRB
1404 (2004).
1 In a posthearing motion the General Counsel and the Charging
Party moved to correct p. 89, L. 18 of the transcript from “. . . desig-
nated the one local . . .” to “. . . designated the Des Moines local . . .
.” The motion is granted.
Workers Union, AFL–CIO.2 The complaint issued on October
30, and was amended at the hearing.
The General Counsel, the Charging Party, and the Respon-
dent each filed posthearing briefs that have been carefully con-
sidered.
On the entire record, including my observation of the de-
meanor of the witnesses and after considering the probabilities
and the briefs filed by the parties I make the following
I. FINDINGS OF FACT
A. The Employer
Mail Contractors of America, Inc. (the Respondent or Em-
ployer) transports mail by over-the-road truck under contract
with the United States Postal Service (the USPS). The Em-
ployer’s corporate headquarters are located in Little Rock, Ar-
kansas. Respondent admits and I find that it meets the Board’s
standards for asserting jurisdiction based on its operations and
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
B. The Labor Organizations
The complaint alleges, the answer admits, and I find that Des
Moines Area Local, American Postal Workers Union, AFL–
CIO (the DM Local) is a labor organization within the meaning
of Section 2(5) of the Act. The DM Local is an affiliated local
of the American Postal Workers Union.
The American Postal Workers Union, AFL–CIO (the
APWU) is a national union with headquarters in Washington,
D.C. The record evidence and reported Board and court deci-
sions show that the APWU primarily represents a nationwide
unit of employees of the United States Postal Service with
whom it negotiates a national contract that is administered by
affiliated local unions. I find that the APWU is a labor organi-
zation within the meaning of Section 2(5) of the Act.
C. Background
The complaint alleges that the Respondent violated Section
8(a)(1) and (5) of the National Labor Relations Act (the Act) by
making unilateral changes in a health benefit plan for a unit of
employees at the Employer’s terminal in Kansas City, Kansas,
without affording the exclusive representative of the employees
prior notice and an adequate opportunity to bargain. The Re-
spondent acknowledges that changes in a health benefit plan
were made, but denies any violation of the Act. No other viola-
tions are alleged or urged.
The Respondent has about 2000 employees and operates 18
terminals in various States, including a terminal in Kansas City,
Kansas (the KC terminal). The Employer has approximately
180 USPS point-to-point transportation contracts. The con-
tracts are subject to competitive bid and are governed by the
Service Contract Act, 41 U.S.C. §351 et seq. (the SCA). The
USPS contracts have staggered expiration dates and are typi-
cally for a 4-year term. There are some 50–60 drivers at a

2 All dates are 2002, unless otherwise indicated. The charge is date
stamped as received in Region 27 on August 22, and served the same
day.
MAIL CONTRACTORS OF AMERICA, INC. 165
number of satellite terminals. Each satellite driver is adminis-
tratively assigned to 1 of the 18 terminals.
The KC terminal was formerly operated by another em-
ployer, Kasbar, Inc. In 1999, the Respondent acquired Kasbar
and assumed a collective-bargaining agreement Kasbar had
with a Teamsters local that covered drivers at that terminal.
When the Teamsters contract expired on March 24, the Team-
sters disclaimed interest in representing the unit. The Employer
discontinued a health insurance that Kasbar had provided and
the drivers at the KC terminal were brought under an employer-
wide group health benefit plan.
The employerwide plan was in effect at all other terminals at
the time the Teamsters contract expired, other than four termi-
nals that were subject to collective-bargaining agreements
(CBA terminals). Those units (the CBA units) were at Des
Moines, Iowa (the DM unit); West Memphis, Arkansas (the
WM unit); Jacksonville, Florida (the JAX unit); and Greens-
boro, North Carolina (the GB unit). The APWU had organized
the drivers at those terminals in 2001, and negotiated separate
collective-bargaining agreements for each terminal that expired
in 2003.3 A discrete APWU affiliated local union was a named
party to each of the four agreements.
In 2002, the APWU organized a unit of drivers at the KC
terminal, plus drivers at satellite locations who were assigned to
the KC terminal. There were approximately 80 employees in
the unit (the KC unit). Based upon an agreement between the
Employer and the APWU, voluntary recognition was granted
on April 16, following a card check conducted by a commis-
sioner of the Federal Mediation and Conciliation Service (the
FMCS).
The recognized KC unit is as follows:
All regular drivers (full-time and extra board drivers) em-
ployed by the Employer who report to its Kansas City termi-
nal located at 250 South 59th Street Lane, Kansas City, Kan-
sas or any replacement facility thereof, but excluding all other
employees, office clerical employees, mechanics, servicemen,
casual drivers, seasonal drivers, guards and supervisors as de-
fined in the Act.
The complaint was amended at the hearing to allege this de-
scription of the KC unit, which is admitted by the Respondent.
D. The Collective-Bargaining Representative
The complaint alleges that the DM Local has been the exclu-
sive 9(a) representative of the KC unit since April. The answer
denies this allegation and affirmatively alleges that it recog-
nized the APWU.4 The positions of the General Counsel and
the Respondent were reiterated in the remarks of counsel at the
opening of the hearing.
The Employer contends that the APWU designated the DM
Local as the bargaining agent and that the APWU appointed
Mark Dimondstein to be the chief spokesperson for the DM

3 The terms of those agreements were: DM Unit and WM unit—May
25, 2001, to September 30, 2003; JAX unit—April 30, 2001, to Sep-
tember 30, 2003; GB unit—May 29, 2001, to May 31, 2003.
4 The attorney for the DM Local, stated at the hearing that he also
represented the national APWU and would represent the APWU in this
proceeding if became material.
Local at the bargaining table. Dimondstein held the position of
lead field organizer for the APWU at all relevant times. In
contrast, the General Counsel contends that the DM Local
alone was recognized as the 9(a) representative of the KC unit
and that the DM Local appointed Mark Dimondstein individu-
ally to be an agent of the DM Local and to serve as lead nego-
tiator for the DM Local in collective bargaining with the Em-
ployer. The significance of the distinction is that the General
Counsel contends that Phil Tabbita, a high-level APWU official
who had transactions with the Employer regarding health insur-
ance plans, was not an agent of the collective-bargaining repre-
sentative of the KC unit.
The FMCS card check for the KC unit was based on a March
24 written agreement between the APWU and the Employer.
The agreement was signed by Dimondstein, acting as an
APWU agent, and Jeff Hitt, the Employer’s vice president of
operations. The card check agreement includes the following
provision:
If the Union produces signed union cards representing 55% of
the bargaining unit [the Employer] shall recognize the Ameri-
can Postal Worker’s Union or its designated Local Union.
The card check agreement provided for up to 45 days for un-
ion cards to be obtained followed by the selection of a disinter-
ested party to review the cards. Dimondstein testified, “I had
informed Jeff Hitt that we hadn’t decided yet, which local Un-
ion would necessarily have the jurisdiction, but that it would be
a local Union.”
Employee authorization cards were thereafter submitted by
agreement to an FMCS Commissioner. The record does not
disclose the wording of the cards and the dates the cards were
signed. The record does not establish when the cards were
tendered to the FMCS.
Dimondstein testified that the designation of a local union
that would have jurisdiction of the KC unit was a decision to be
made by him as the APWU organizer and that he designated the
DM Local “in coordination with the locals involved.” No de-
tails regarding any such coordination were provided. The evi-
dence does not show that the DM Local participated in the or-
ganizing effort in Kansas City, that employees in the KC unit
participated in the decision to designate the DM Local or that
the unit employees knew that a local union would be desig-
nated.
On an unspecified date prior to the FMCS Commissioner’s
determination Dimondstein spoke by telephone with Hitt.
Dimondstein testified, “I informed Mr. Hitt that we had desig-
nated the Des Moines local, and Lance Coles would be in-
volved, and that he would either be there or have somebody
there . . . .” Hitt did not object. Lance Coles was president of
the DM Local.5 Hitt did not testify. There is no evidence that
the question of the status of the DM Local or the process of
designation was otherwise addressed prior to the announcement
of the results of the card check.

5 The record does not disclose by whom Coles was employed. Tony
Olson, an employee in the KC unit and a member of the negotiation
committee for the KC unit, testified that Coles was not an employee of
the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD166
On April 16, the FMCS Commissioner sent a letter to the
Employer and to Coles advising them of the outcome of the
card check. The FMCS letter states, in relevant part, “Upon
completion of this card check I find that there are 76 valid ap-
plications for union representation. This represents a sufficient
number for the union to be recognized as the bargaining agent
for the employees of Mail Contractors of America.” Dimond-
stein testified that he could not recall whether he gave any di-
rections to the FMCS regarding where the confirmation letter
should be sent. Dimondstein testified that Coles had conversa-
tions with the FMCS, but there is no evidence regarding the
content of any such conversations. There is no other evidence
on the issue of why the FMCS letter was sent to Coles.
After April 16 and prior to the initial bargaining meeting,
both Coles and Dimondstein sent letters to the Employer re-
questing information regarding existing health insurance and
benefits. Coles’ letter indicates that Dimondstein and Phil Tab-
bita, an APWU representative in Washington, D.C., were cop-
ied. Tabbita had negotiated with the Employer regarding the
units at the CBA terminals and had expertise regarding health
insurance. Dimondstein testified that Hitt called him and asked
who was in charge and to whom he should send the requested
information. Dimondstein testified:
A. I told Mr. Hitt that the Local had asked me to be
the chief spokesperson, and I was in charge, and to send
both of the answer[s] to my request and Mr. Coles’ re-
quest, to me.
Q. And did you clear that with Mr. Coles?
A. Yes, I did.
MR. PAGANO: Objection; “Did you clear that with Mr.
Coles?” . . . that is totally leading.
In determining the agency of Dimondstein and what the
status of the DM Local was in relation to the KC unit, Dimond-
stein’s out-of-court, hearsay declaration to Hitt has been given
little weight. The conclusory and uncorroborated hearsay tes-
timony that Dimondstein “cleared” his instructions with Cole,
elicited with a leading question, has been given little weight in
determining the relative status and authority of the APWU and
the DM Local in representing the KC unit.
Dimondstein also testified,
I called Lance [Coles], and I told him that Mr. Hitt had called
me. I said, “In the future, since you asked me to be the chief
spokesperson, let all of that information come through me,”
and Lance said, “That makes sense, and that is fine.”
This account seems contrived and was not convincingly of-
fered. In any case, the uncorroborated and otherwise unsup-
ported hearsay account that Coles asked Dimondstein to be
chief spokesperson has little probative value on the issue of the
status and authority of the APWU and the DM Local or on
Dimondstein’s authority. Moreover, it falls short of unequivo-
cal evidence that Coles and Dimondstein considered the DM
Local to be the exclusive representative. As discussed infra,
there is evidence consistent with the two labor organizations
later seeking to be jointly recognized. The designation of a
single spokesperson would not be inconsistent with joint recog-
nition.
I draw an adverse inference from the failure of the General
Counsel to call Coles. Dimondstein testified that Coles was the
president of the DM Local at the time of the hearing and no
sufficient explanation was offered for his nonappearance.
When a party fails to call a witness, who may reasonably be
assumed to be favorably disposed to the party, an adverse infer-
ence may be drawn regarding any factual question on which the
witness is likely to have knowledge. See Auto Workers v.
NLRB, 459 F.2d 1329 (D.C. Cir. 1972); International Auto-
mated Machines, 285 NLRB 1122, 1122–1123 (1987). I infer
that had he testified, Coles would have testified contrary to
Dimondstein regarding the claim that the DM Local appointed
Mark Dimondstein to be an agent of the DM Local as lead ne-
gotiator in collective bargaining with the Employer and the
claim that the DM Local controlled the negotiations regarding
the KC unit.
There are a number of general principles that are relevant to
the issue of whether the General Counsel has proven that the
DM Local became the 9(a) representative of the KC unit as a
result of the card check.
A collective-bargaining representative has the right to choose
whomever it wishes to represent it in negotiations and may
confer upon an agent authority to act on its behalf. Rath Pack-
ing Co., 275 NLRB 255, 256 (1985); General Electric Co. v.
NLRB, 412 F.2d 512, 516 (2d Cir. 1969). The 9(a) representa-
tive of employees does not, however, have the right to transfer
its representational responsibilities to another labor organiza-
tion and the employer is not required to extend recognition
based upon such an attempted transfer. Goad Co., 333 NLRB
677 fn. 1 (2001).
It is well settled that for purposes of the Act a local union is
a separate legal entity apart from the parent union with which it
is affiliated and that it is not a mere branch or administrative
arm of the latter. Electrical Workers Local 5 (Franklin Electric
Construction Co.), 121 NLRB 143, 146 (1958).
In an initial organizing context, the Board has found in a
number of cases that a parent national or International union
had the right to name an affiliated local union to be the repre-
sentative of a newly formed collective-bargaining unit, where
there is evidence that such a designation was contemplated by
the terms of the authorization cards or that the card signers
were otherwise aware that a local would be designated. See
Cam Industries, 251 NLRB 11 (1980); Kosher Plaza Super-
market, 313 NLRB 74 (1993); Norfolk Southern Bus Corp., 76
NLRB 488 (1948); Nubone Co., 62 NLRB 322 (1945); Jerry’s
United Super, 289 NLRB 125 (1987). Thus, the circumstances
of the execution of authorization cards must show that card
signers know the identity of the union being designated as the
bargaining representative. See Le Marquis Hotel, LLC, 340
NLRB 485 (2003), and cases cited therein; World Wide Press
Inc., 242 NLRB 345, 365 (1979). Otherwise, when a national
or international union designates a local union, the status of the
local union is generally that of a servicing agent. See Rath
Packing Co., supra, General Electric Co. v. NLRB, supra.
The record evidence in the present case does not show that
the authorization cards submitted to the FMCS Commissioner
referred to representation by a local union. The presence of
such a provision would support the General Counsel’s position
MAIL CONTRACTORS OF AMERICA, INC. 167
regarding the identity of the 9(a) representative. Based upon an
adverse inference I draw from the failure of the General Coun-
sel to place the authorization card language in evidence, I con-
clude that the cards did not refer to the naming of a local union
by the APWU. The evidence does not otherwise show that the
card signers were aware that a local union could be designated.
The record discloses no internal union policies or regulations
that might clarify the relationship between the APWU and the
DM Local in this respect. No one identified as having a leader-
ship position in the DM Local testified.
Based on all the foregoing, I conclude that the General
Counsel has not established by a preponderance of the evidence
that the employees chose to be represented by a local union.
The weight of the evidence is that as a consequence of the card
check the employees selected the APWU as their exclusive
collective-bargaining representative on April 16. The evidence
is consistent with the DM Local being designated by the
APWU to be a servicing agent.
There was an initial bargaining meeting on June 4. Those
present included APWU Agent Dimondstein and DM Local
President Coles. The Employer representatives included Hitt
and the Employer’s general counsel, David Bachman. Dimond-
stein presented a written contract offer on non-economic issues.
The cover page of the union proposal did not refer to the DM
Local. It appears as follows:
Proposed
“Non-Economic” Provisions of the
COLLECTIVE BARGAINNING AGREEMENT
BETWEEN
MAIL CONTRACTORS OF AMERICA, INC.
AND
AMERICAN POSTAL WORKERS UNION (APWU),
AFL–CIO
Representing Kansas City, Terminal
Various clauses in this noneconomic proposal were tenta-
tively agreed to, including the preamble and a recognition
clause.
The preamble and recognition article read in pertinent parts:
Preamble
This Agreement [is] made . . . by and between [the
Employer] . . . and The American Postal Workers Union
(APWU), AFL–CIO, Des Moines Iowa Area Local,
APWU, hereinafter known as the “Union.”
Article 1. Union Recognition
The Employer recognizes the Union as the exclusive
bargaining agent for [the KC unit].
Thus, the cover page identifies only the APWU as the con-
tracting union. The APWU and the DM Local are separately
identified in the preamble. The full name of the APWU pre-
cedes that of the DM Local and the name of the DM Local
includes its APWU affiliation. A fair reading of the preamble
is that it identifies both the national APWU and the DM Local
as parties to the contract. The record does not show that there
was any discussion of the naming of both labor organizations in
the preamble. The evidence is insufficient to establish that at
the June 4 meeting it was agreed that the DM Local would be
substituted for the APWU. Rather, the weight of the evidence
is that at the initial bargaining meeting the APWU and the DM
Local were recognized as the joint representatives of the KC
unit.
Alternatively, the evidence is consistent with the DM Local
being recognized as a servicing agent for the APWU on June 4.
If the DM Local was a servicing agent, that would not affect the
decision in this case. Where a parent union is the Section 9(a)
representative of a unit and appoints a local union as a servicing
agent, the Board finds that the servicing agent shares the 9(a)
status of the parent union. See Saint-Gobain Industrial Ceram-
ics, 334 NLRB No. 60 (2001) (not reported in Board volume).
Whether the DM Local was recognized on June 4 as a joint
representative of the KC unit or as a servicing agent for the
APWU, the DM Local acquired 9(a) status and the APWU
retained its 9(a) status.
E. The Alleged Unfair Labor Practice
1. Kansas City health insurance changes in 2002
The alleged unfair labor practice is that the Respondent
changed the health insurance benefits of the KC unit on Sep-
tember 1, 2002, without notice to the employees’ collective-
bargaining representative and without affording the representa-
tive an opportunity to bargain regarding the change, in violation
of Section 8(a)(1) and (5) of the Act. As amended at the hear-
ing the complaint specifically alleges that the changes alleged
as violative include changing the health insurance provider
from Corporate Benefit Services of America to Blue Cross Blue
Shield of Arkansas; changing from a partially self-insured to a
fully insured plan; changing coverage, deductibles, and benefit
levels; increasing the amount of employees’ premium contribu-
tions; eliminating $15,000 in term life insurance previously
included with health insurance; and implementing a new re-
quirement that all employees participate in Respondent’s group
health insurance plan.6
The employees in the KC unit were covered by the em-
ployer-wide health plan in place at the time of recognition until
September 1. The employerwide plan was a self-insured plan.
An outside contractor handled the administration of employee
claims and the Employer carried reinsurance to limit a portion
of its self-insurance exposure. The plan also provided $15,000
in term life insurance that was bundled with the health insur-
ance. The Employer had a contract with Corporate Benefits
Services of America (CBSA) for health insurance services for
the employerwide plan. The CBSA contract expired on August
31. There is no evidence indicating that other entities provided
health insurance services for the employerwide plan during the
term of the Employer’s contract with CBSA. I infer that the
claims administration services, reinsurance, and life insurance
were provided by or through CBSA.7 The parties referred to

6 There has been no motion to amend the complaint to allege any
other violation. The General Counsel does not contend and the record
does not show that other violations not specifically alleged were fully
litigated.
7 If, in fact, the Employer arranged for reinsurance or other health
insurance services independently of CBSA, it would not affect my
decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD168
the employerwide health and life insurance plan as the CBSA
plan. The Employer paid an amount for the CBSA plan consis-
tent with the requirements of the Service Contract Act (SCA).
The Employer also paid an additional amount for the insurance
as part of the drivers’ compensation, referred to as a subsidy.
The drivers could choose self-only, self and spouse, or family
coverage. Each driver paid insurance premiums that varied
depending on the coverage chosen. Because the CBSA plan
was self-insured, the amount of the Employer subsidy varied
depending on the total claims at all the covered terminals dur-
ing the plan year.
On August 12, the Employer issued a memorandum to em-
ployees in the KC unit that announced changes in insurance
effective September 1. On July 31, a similar memorandum had
been sent to all other employees, excluding the KC unit and the
drivers at the CBA terminals. The memoranda announced that
the Employer would no longer offer the CBSA plan and that a
Blue Cross-Blue Shield of Arkansas plan (BCBS) would be
available instead. Information and forms for enrolling in the
BCBS plan were provided. The announced changes in health
insurance were implemented on September 1.
This BCBS differed significantly from the CBSA plan. The
BCBS plan was a fully insured health plan. The BCBS plan,
unlike the CBSA plan, had two levels of coverage, a basic plan
and a buyup plan, with different employee premiums. The
coverage, deductibles, and benefit levels of the BCBS plan
were different and in some respects less favorable to the em-
ployee. The employee premiums were different and the Em-
ployer subsidy was sharply reduced. The BCBS plan mandated
that all new employees enroll, while the CBSA plan permitted
an employee to opt out in some circumstances. The term life
insurance benefit provided with the CBSA health insurance
plan was not provided with the BCBS plan.
It was agreed at the hearing that any losses to individual em-
ployees in the KC unit caused by the changes should be ad-
dressed in a backpay proceeding, if a violation was found and a
make-whole remedy was ordered.
2. Health insurance prior to 2002
The Employer has historically provided a companywide
group health insurance plan available to all employees, except
those covered by a union contract that specified a different
plan. The companywide health insurance plans each had a plan
year and the employer was free to change the plan and carrier at
the end of each plan year. The Employer’s practice has been to
annually solicit vendors of health insurance plans before select-
ing the companywide plan for the next plan year. An annual
open season gave employees an opportunity to make permitted
changes in their health insurance.
At the time the initial APWU collective-bargaining agree-
ments were negotiated for the four CBA terminals there was a
companywide Great West health insurance plan, with a plan
year of August 1, 2000, through July 31, 2001. The collective-
bargaining agreements negotiated for the CBA units provided
for a fixed employer health insurance subsidy in addition to the
SCA mandated benefit and provided for the transfer of the rep-
resented employees out of the Great West plan and into the
health insurance plan selected by the Union. The Union se-
lected Union Labor Life Insurance Company (ULLICO). The
Union retained a contractual right to designate different health
benefit packages during the terms of the labor agreements, with
the same Employer contributions. Initially there was coordi-
nated bargaining for the DM, WM, and JAX units. A ULLICO
health plan group comprised of the DM, WM, and JAX units
was formed. The GB unit was separately negotiated because
Board certification was pending at the time of the coordinated
bargaining. The GB agreement was negotiated in three days.
The Union added the GB Unit to the ULLICO group plan.
APWU Representative Phil Tabbita played a major role in
negotiating and implementing the ULLICO group plan for the
CBA units. He was at the negotiating table and was the lead
negotiator of the economic terms of the DM, WM, and JAX
contracts. He was not at the negotiating table for the GB unit,
but he dealt with the Employer’s general counsel, David Bach-
man, regarding that unit and Tabbita approved the health insur-
ance plan for the GB unit. Tabbita arranged for the ULLICO
group plan for the DM, WM, and JAX units based upon the
group census and the claims data of the three units. He ar-
ranged for the GB Unit to be added to the group without claims
data for that unit.
Tabbita continued to handle insurance related issues for the
CBA terminals after the contracts were negotiated and there
were regular communications between Tabbita and Bachman
by fax, telephone, and e-mail regarding insurance issues. Issues
they addressed included the cancellation of a short-term disabil-
ity policy at the CBA terminals; a scheduled July 31 expiration
of a supplemental benefits plan for employees at all terminals,
including the KC unit; and the scheduled expiration of the
ULLICO plan on May 31. The ULLICO plan expiration was
extended to August and a new ULLICO plan was arranged with
an effective date of August 1.
The parties entered into a written stipulation regarding Tab-
bita. A portion of that stipulation, edited for conciseness, is set
forth in the following five paragraphs.
Starting around January 2001, to the dates of the col-
lective-bargaining agreements covering DM, WM and
JAX Units, effective in June or July 2001, Tabbita, an
APWU official and representative was authorized by
APWU to act, and he did in fact act, as the chief negotiator
with respect to all economic issues, including health bene-
fits and supplemental long-term disability, dental, vision,
and optional life insurance benefits for those units. A col-
lective-bargaining agreement was later negotiated for the
GB Unit effective on or about May 29, 2001.
Tabbita continued through September 1, 2002, to have
authority from the APWU to act as an agent of those four
locals, and those four local[s] continued to authorize Tab-
bita to deal with MCA on issues involving the implemen-
tation of health benefits and supplemental long-term dis-
ability, dental, vision, and optional life insurance benefits
for the DM, WM, GB and JAX Units.
The Employer offered and continues to offer supple-
mental long-term disability, dental, vision, and optional
life insurance benefits (Supplemental Benefits) on a volun-
tary basis to all employees, whether or not they are repre-
MAIL CONTRACTORS OF AMERICA, INC. 169
sented by a union. The collective-bargaining agreements
covering the DM, WM, GB and JAX Units provided that
the Supplemental Benefits offered company-wide would
apply to these four bargaining units.
On July 30, 2002, Bachman faxed Tabbita a document
indicating changes in company-wide Supplemental Bene-
fits. On July 31, 2002, the Employer’s benefits manager
Cathy Bradley sent Tabbita a copy of a memorandum to
“All Drivers reporting to Jacksonville, Greensboro, West
Memphis, and Des Moines Terminals” regarding enroll-
ment for Supplemental Benefits. On or about July 30,
2002, or within a few days of that date, Tabbita had com-
munications with Bachman, either by telephone or e-mail
or both, in which they discussed communications to em-
ployees. In the JAX, WM, GB and DM Units regarding
changes in Supplemental Benefits.
From in or about January 2001, through September 1,
2002, Tabbita was authorized by the APWU to act as an
agent of the APWU affiliated locals for the DM, WM and
JAX Units and from on or about May 29, 2001, for the GB
Unit with respect to health insurance and Supplemental
Benefits. As such, Tabbita had the authority to act, and he
did in fact act, on behalf of the four APWU locals during
such period with respect to health insurance and Supple-
mental Benefits for the DM, WM, GB and JAX Units and
Tabbita was an agent of the four APWU locals during
such period with respect to health insurance and Supple-
mental Benefits for DM, WM, GB and JAX Units within
the meaning of Section 2(13) of the Act.
3. Background of the 2002 change from CBSA to BCBS
In the spring of 2001, at the same time the Employer was
bargaining with the Union regarding the DM, WM, JAX, and
GB units, the Employer retained a health insurance consultant
to review available health insurance plans and to seek bids for a
group health insurance plan to replace the Great Western plan.
Bids were solicited for a companywide plan, excluding the DM,
WM, JAX, and GB units, but including the KC terminal.
The insurance consultant submitted to the Employer an
analysis and recommendations based on the submissions of the
health insurance carriers who had responded to a request for
bids. CBSA was selected to replace Great West for the plan
year beginning August 1, 2001. The Great West plan was ex-
tended 1 month and the CBSA plan year actually began Sep-
tember 1, 2001, preceded by an open enrollment period.
At a meeting of the Employer’s board of directors on Octo-
ber 24, 2001, it was decided that when the CBSA plan year
ended on September 1, 2002, the Employer would discontinue
that plan. The reason was that the cost of self-insurance was
unpredictable and the Employer wanted to avoid paying more
than its competitors who also bid for USPS delivery contracts.8
At a January 31, 2002 board meeting the human resources de-
partment reported that an evaluation of the regulations for mak-
ing the health plan changes were under way.

8 At that time the annual subsidy in excess of the Service Contract
Act requirements was $2.8 million. Minutes of a July 25 Board meet-
ing describe the amount of subsidy provided by the Employer’s com-
petitors as minor.
On April 2, Bachman participated in a conference call with
Lisa Larson, an insurance consultant, who was retained to shop
for a replacement for the CBSA health care plan for the non-
CBA terminals. She requested and was furnished with the
number of employees, ages, gender, location, eligibility, current
health insurance enrollment, and the hourly fringe benefit
amount available. Larson was informed that no subsidy in
addition to the SCA mandated fringe benefit would be avail-
able. In fact, when a new plan was implemented on September
1, the Employer paid a subsidy at a lower level than it had paid
under the CBSA plan.
On April 10, Larson submitted a written proposal for the as-
sessment and implementation of a new health care plan for the
non-CBA drivers, which was accepted. The timeline projection
in the proposal was:
Week of June 3: Initial presentation of findings
Week of June 10: Review of recommendations
Weeks of June 17-24: Finalist presentation, final analysis,
and decision
Month of July: Finalize details of all plans, review
documents, contracts, and prepare
enrollment documents, contracts, and
prepare enrollment materials, etc.
Month of August: Enrollment
September 1: New package effective date
Larson began a search for a plan to replace CBSA and issued
a request for proposals to health insurance providers and re-
viewed possible plans with the Employer. BCBS was one of
the insurance providers who were invited to respond.
The General Counsel has not contended and the evidence
does not show that there was a causal relationship between
protected union activity and the decision to change the com-
panywide group health insurance plan in 2001, and the actions
regarding the change that were taken prior to April 16.
4. Bargaining regarding the KC unit health insurance
In late April, the Union requested information regarding
various matters, including the existing health insurance benefits
for the KC unit. Bachman responded on May 17, and furnished
the information and copies of relevant documents Dimondstein
had requested, except for records of health plan usage (claims
data) for the past 2 years. The Employer did not provide claims
data until August 20, as discussed infra.
The General Counsel argues that the Employer’s May 17 re-
sponse was incomplete because it did not “clearly provide in-
formation regarding Respondent’s contribution to the cost of
health insurance. . . .” In the Employer’s response Bachman
provided the data necessary to readily derive the information in
the specific form requested. The information furnished has not
been shown to have been inadequate or an impediment to bar-
gaining, especially considering the APWU’s technical familiar-
ity with health plans and the Service Contract Act. Bachman
nevertheless explained how to derive the information in an
August 21 e-mail.
Dimondstein testified that he was not promptly furnished a
seniority list requested on April 29. A list of employees with
start dates was sent to him on May 17, but in alphabetical rather
than order of start date. After Dimondstein stated his prefer-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD170
ence in the initial negotiation session, the Employer provided a
list organized in order of start date on June 6. The evidence
does not demonstrate that the delay in furnishing this informa-
tion in the format preferred by the Union interfered with nego-
tiations, especially considering the relatively small number of
employees in the unit.
The General Counsel also contends that the Employer did
not provide PPO information requested in Dimondstein’s April
29 letter. In fact, PPO information is contained in an attach-
ment to Bachman’s May 17 response and it has not been shown
that the PPO information provided was not responsive to the
request in Dimondstein’s letter.
There is no allegation and no contention that the Employer
violated the act by delaying or refusing to furnish information.
However, the General Counsel contends that the Employer’s
responses to information requests support the allegation that the
changes in health insurance for the KC unit were unlawful.
The initial collective-bargaining meeting for the KC unit was
on June 4. The representatives of the Employer included
Bachman and Hitt for the Employer. Union representatives
included Dimondstein and Coles. Tabbita was not present at
any of the negotiation meetings. Prior to the day of the meeting
the Employer had accepted Dimondstein’s proposal that agree-
ment on noneconomic issues should be reached before eco-
nomic issues were discussed. Nevertheless, the rising cost of
health insurance was mentioned in the Employer’s opening
remarks. Dimondstein’s opening remarks also addressed health
insurance. He testified:
The only thing that was said about health insurance in Kansas
City was in my opening statement, I made a brief presentation
that we had a mature relationship with each other, that we
didn’t have a lot of secrets, that our goal, as a Union, was to
have a Greensboro-plus—we called it a Greensboro-plus con-
tract, you know, but within that Greensboro-plus, there were
certain things that both sides may want changed. . . . I pointed
to, was that both sides were unhappy with Union Labor Life
Insurance, and their processing of claims, and their servicing,
and so that certainly as we headed into the future, we may
want to put our heads together about that issue, in collective
bargaining, as well.
This testimony by Dimondstein is consistent with Bachman’s
notes made during the June 4 meeting and is credited.
The parties met again on June 5 for about half the day.
Dimondstein testified that there was no discussion of health
insurance on June 5. Bachman’s negotiation notes made during
the meeting state, “Tabbita believes BCBS could be an oppor-
tunity to save money in a joint plan.” This notation follows the
description of the contract negotiations and immediately prior
to the notations regarding the participant’s future meetings.
Bachman testified that at this meeting Dimondstein remarked
that Tabbita believed that a BCBS plan could be beneficial and
suggested that Bachman call Tabbita. This testimony by
Bachman is credited because it was credibly offered, is sup-
ported by his negotiation notes made during the meeting and is
not improbable. Bachman and Tabbita had earlier discussed a
significant rate increase for ULLICO coverage at the CBA
terminals that was announced in March that would raise em-
ployee paid premiums. At that time Tabbita had remarked that
he was considering BCBS as an alternative to ULLICO.
On June 5, no date was set for the next meeting because of
conflicts by representatives for both sides, Dimondstein and
Bachman later conferred by phone and it was agreed that the
next negotiation meeting would be on July 31 and August 1.
On June 18, KC unit census information that Dimondstein
had requested on June 4 was faxed to him. The information
was also mailed to Tabbita at his office in Washington, D.C.,
with a cover letter. The cover letter states, in part:
Please find attached the Kansas City census information you
requested. We also faxed a copy to Mark Dimondstein as he
requested.
Bachman testified that his best recollection was that Tabbita
requested the census in May, but no details of the circum-
stances of the request were provided. Tabbita testified that he
did not request the census prior to August 19, when he spoke
with Bachman by phone and requested census and claims in-
formation.9 Tabbita testified that at the time he received the
June 18 letter he was aware that Dimondstein had requested the
census information, based on his discussions with Dimondstein
about bargaining for the KC unit. If negotiated health insur-
ance benefits for the KC unit were like those at the CBA termi-
nals, Tabbita would be responsible for arranging the ULLICO
insurance. Tabbita did not testify that his communications with
Dimondstein prior to the June 18 letter concerning the Kansas
City negotiations were casual conversations and it is unlikely
that they were. Each man reported directly to top officials at
the APWU headquarters in Washington, D.C. Tabbita’s office
was located at the APWU headquarters, while Dimondstein’s
office was in Greensboro, North Carolina. The evidence is
consistent with Tabbita having had an official interest in health
care negotiations for the KC unit and Bachman had no evident
motive on June 18 to fabricate a request by Tabbita for the
census. I credit Bachman based on the probabilities and his
credibly offered testimony on this issue.
By June 25, the Employer had reviewed information gath-
ered by the insurance consultant and had concluded that a
BCBS plan was the best choice for the companywide plan, but
with some open issues. Bachman had specifically advised the
consultant that union negotiations might cause the KC unit to
pull out of the plan. The testimony of Bachman and a June 26
marketing analysis submitted by the consultant show that the
terms of the BCBS plan proposed, and thereafter implemented,
would permit the Employer to remove the KC unit from the
BCBS plan without affecting the continuation of the plan or
causing a rate revision.10
In a telephone conversation on July 15, Tabbita and Bach-
man discussed the possibility of BCBS replacing ULLICO at
the CBA terminals. Tabbita was aware on July 15, that the
Employer was considering changing the companywide health

9 The record reflects that he requested the census by e-mail on Au-
gust 21.
10 This was so because the minimum rate of employee participation
required by the BCBS plan for the non-CBA group was 75 percent and
the KC unit was well below 25 percent of the group. When the BCBS
plan was implemented the Employer made participation mandatory.
MAIL CONTRACTORS OF AMERICA, INC. 171
plan from CBSA to a BCBS plan. Tabbita testified that moving
the CBA units into a BCBS plan was attractive to the APWU if
the benefits were like those of the ULLICO plan. Bachman
was interested in attempting to convince Tabbita that the Union
should move from ULLICO to the companywide BCBS plan.
On July 15, Tabbita did not have information regarding the
benefits and employee premiums under the companywide
BCBS plan under consideration. The Employer had asked the
consultant to bid a plan with no employer subsidy. The collec-
tive-bargaining agreements at the CBA terminals required the
Employer to pay specified health benefit subsidies that pre-
sumably could reduce premiums for those employees, if the
companywide BCBS plan replaced ULLICO.
The testimony of Tabbita and Bachman regarding this con-
versation varied in some respects. The more credibly offered
and probable testimony shows that Bachman asked Tabbita to
consider moving from ULLICO to BCBS under a benefit pack-
age that Bachman said he would send to Tabbita, which was the
benefit package developed for the company-wide plan. Claims
experience under ULLICO was relevant to bringing the CBA
units into the new company plan that was being bid because of
the number of employees involved. Bachman and Tabbita dis-
cussed getting the ULLICO claims information to BCBS.
Tabbita’s testimony that Bachman agreed in the July 15 con-
versation to seek a separate BCBS bid with ULLICO benefits
for the CBA units is not credited because it was less credibly
offered and less probable than Bachman’s description of the
conversation. At the time of his July 15 conversation with
Bachman, Tabbita did not know what the benefits, employee
premiums, and employer subsidy would be under the BCBS
plan that Bachman was proposing. If Tabbita asked for a dif-
ferent bid for the CBA units it would have amounted to an an-
ticipatory rejection of Bachman’s BCBS plan. It is unlikely
that Bachman would agree to get a different BCBS plan for the
CBA units when he intended to submit the companywide plan
to Tabbita as a proposed replacement for ULLICO. Moreover,
it would not be Bachman’s duty to select a new plan for the
CBA units; that right was contractually reserved to the Union.
There was no apparent incentive for Bachman to become in-
volved in arranging a different BCBS plan for only the CBA
units.
Tabbita knew that the Employer’s plan was to include all the
non-CBA employees in a BCBS plan and that the CBSA plan
was going to be discontinued. Thus, although the KC unit was
not individually discussed, the evidence shows that Tabbita
understood that the Employer intended to put the KC unit in the
BCBS plan, unless a different arrangement negotiated.
Later on July 15, Bachman sent an e-mail to Tabbita. The e-
mail stated:
In regard to the ULLICO claims information, the BCBS con-
tact is Johnny Runnell. The claims information can be faxed
to him at [fax number]. Also, as soon as they send me the de-
tailed benefits breakdown, I’ll fax it to you. I expect it late to-
day or early tomorrow morning.
Bachman’s e-mail set forth above is consistent with his tes-
timony regarding his conversation with Tabbita earlier that day.
The references to the BCBS contact person and to ULLICO
claims information are coupled with a commitment to send a
detailed benefits breakdown on the companywide BCBS plan
and are inconsistent with Tabbita having already rejected that
plan.
On July 16, a Tuesday, Bachman faxed a copy of the BCBS
summary plan description to Tabbita. The fax header shows
that it was faxed to Bachman from the insurance consultant that
day. Bachman’s cover memo pointed out differences from the
ULLICO plan. The costs of the plan were not included, but
Bachman’s memo stated that there would be no employer sub-
sidy. Bachman’s remarks included the following:
We have not shared this information with employees,
and we plan to roll-out this package whether the union and
non-union groups are combined or not. Therefore, please
treat this information as confidential until we have notified
the employees.
After you have reviewed the information, please call
me as soon as possible. I will be in the office the rest of
the week. Also, I e-mailed you the BCBS contact for the
claims information from ULLICO.
Tabbita testified as follows regarding what he did regarding
the July 16 e-mail:
A. I talked to Mark about it. I don’t recall ever giving
him the document.
Q. So you never gave him a document regarding the
terms and conditions of employees you represent—
A. It didn’t—
Q. —which was going to come into effect on Septem-
ber 1st?
A. I never got anything from Mr. Bachman concern-
ing employees we represented.
Q. So you didn’t represent the employees in Kansas
City?
A. Yeah, but that document he sent me on July 16th,
didn’t say anything about Kansas City.
Thus, Tabbita acknowledged that he discussed the informa-
tion in Bachman’s July 16 fax with Dimondstein. Tabbita had
also called Dimondstein and discussed the Employer’s BCBS
plans immediately after his July 15 conversation with Bach-
man. Tabbita did not respond to Bachman’s e-mails or ask for
any explanation.
Tabbita’s claim that Bachman’s July 16 e-mail did not con-
cern the KC unit because it “didn’t say anything about Kansas
City” is inconsistent with the plain meaning of the e-mail.
Moreover, Tabbita was expert on the subject of health insur-
ance and an experienced contract negotiator. Bachman credibly
testified that he had told Tabbita that the CBSA plan year ended
on August 31. The argument that Tabbita did not understand
that on July 16, that the Employer planned to implement the
BCBS plan on September 1, as a replacement for the CBSA at
the non-CBA locations, including the KC unit, is not plausible.
Tabbita’s claim that he did not understand on July 16 that the
Employer planned to replace the SBCA plan at Kansas City
with the BCBS plan is not credited.
The General Counsel’s contention that Bachman’s reference
to combining the “union” and “non-union” groups qualified the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD172
Employer’s announced plan to replace SBCA coverage with
BCBS is not a fair reading of the sentence and is unconvincing.
The e-mail says that BCBS would, in any case, be imple-
mented. Tabbita understood that when the SBCA plan expired,
the only health insurance that would be available for the KC
unit would be the BCBS plan, unless the Union negotiated
something different for that unit.11
Tabbita testified that he did not give a copy of the July 16
fax to Dimondstein because he and Bachman did not discuss
Kansas City and because of Bachman’s request that the infor-
mation be kept confidential. The record shows that Tabbita
called Dimondstein immediately after his July 15 conversation
with Bachman. The fax was obviously highly relevant to the
Kansas City negotiations because it revealed that the CBSA
plan covering the KC unit would be terminated 47 days later
and would be replaced with BCBS, absent some other arrange-
ment negotiated with the Union. Tabbita’s testimony that he
did not share this information with Dimondstein is not credible.
It would be essential for the APWU agent at the table to be
aware immediately that the Employer intended to discontinue
the CBSA plan and replace it with a BCBS plan.12 As noted
supra, Tabbita testified that he talked to Dimondstein about the
e-mail.
On July 25, the BCBS plan was presented to the Employer’s
board of directors. The plan and the implementation date were
approved, with the addition of a weekly subsidy of $15 per
employee. There is no evidence that the subsidy was added for
any reason other than legitimate business considerations. Ne-
gotiations on noneconomic issues were scheduled for July 31
and August 1.
The next relevant contact between Tabbita and Bachman was
on July 30 when they spoke by telephone regarding changes in
supplemental insurance for all the terminals, including Kansas
City. Following the telephone call Bachman faxed an 11-page
document explaining the changes in supplemental insurance to
Tabbita. There was a cover memo that invited Tabbita’s re-
sponse, but no mention of health insurance. Tabbita testified
that they also discussed Kansas City health insurance on July
30, and that he told Bachman that he did not have authority
regarding that issue and that Bachman would have to talk to
Dimondstein.
Bachman testified that he had a telephone conversation with
Tabbita about who would represent the Union in negotiations
regarding Kansas City health insurance, but that it occurred on
July 31. According to Bachman, he called Tabbita during a
break in negotiations to get Tabbita’s response to his July 30
fax regarding supplemental insurance and to discuss Kansas
City health insurance. The Employer had planned to send a
package regarding supplemental insurance to employees.

11 While I do not rely on it in reaching a decision, I note that the re-
cord reflects that Bachman regularly used the term “non-union” to refer
to the employees not covered by a collective-bargaining agreement and
he referred to the employees covered by collective-bargaining contracts
as “union.” The weight of the evidence is that Tabbita understood what
Bachman meant when he used those terms.
12 In addition, Tabbita’s knowledge on July 16 that the Employer in-
tended to terminate the CBSA plan and implement BCBS at the non-
CBA terminals on September 1 is imputed to the APWU.
Bachman testified that Tabbita said he had to see Mark
Dimondstein about Kansas City health insurance. Bachman
testified that Tabbita offered no explanation, but did say that he
would continue to discuss a joint plan for the CBA terminals.
Bachman denied that Tabbita said that he did not have “author-
ity” regarding Kansas City.
Dimondstein testified that Tabbita called him on the evening
of July 30 and related a conversation he had with Bachman that
day. He testified that regarding the health insurance issue,
“Phil told me to inform Mr. Bachman that he had no authority
to deal with Kansas City.”
Bachman testified that he approached Dimondstein in the
hall during a break on July 31, and said that Tabbita had told
him that he needed to get together with Dimondstein and that
he asked Dimondstein if he had any thoughts about Kansas City
and health insurance. According to Bachman, Dimondstein
looked surprised and said, “You have to maintain status quo.”
According to Bachman, Dimondstein asked when the plan
ended and was told August 31. Dimondstein testified that there
were no health care proposals on July 31, but did not specifi-
cally deny the July 31 hallway discussion.
Based upon the probabilities and the credibly offered testi-
mony of Bachman I credit his testimony regarding the tele-
phone conversations with Tabbita on July 30 and 31, as well as
his description of the hallway conversation on July 31.13 As
discussed earlier, Tabbita and Dimondstein had known since
July 16 that the CBSA plan expired on August 31, and that
BCBS would be implemented for the KC unit on September 1,
if something else was not negotiated. I specifically do not
credit the testimony that Bachman asked Tabbita if he had “au-
thority” regarding the KC unit and that Tabbita said that he did
not have “authority.”14 Dimondstein’s show of surprise and of
ignorance of when the CBSA plan would expire was feigned.
On August 1, the parties met again for negotiations. Bach-
man, Dimondstein, and employee Olson were present and testi-
fied about the meeting. According to Dimondstein, he asked
Bachman, “Don’t you have something you need to raise with
us, and discuss with us about possible changes in health insur-
ance?” Dimondstein testified that he told Bachman that Tab-
bita had told him to expect the Employer to raise the issue, that
there were potential changes. This testimony impressed me as
being contrived and embellished. I found the testimony of
Bachman and Olson—that Dimondstein simply asked if the
Employer had anything in regarding health insurance—to be
more probable and more credibly offered. I do not credit
Dimondstein’s testimony that he was told that the company had
not decided how to deal with Kansas City or Olson’s similar
testimony. Rather, I credit Bachman’s testimony that Dimond-
stein was told the Employer would get back to him and that
there followed a discussion of status quo. Regarding the dis-
cussion of status quo, I credit Bachman’s testimony, “that
Dimondstein explained that what he meant by status quo was,

13 Tabbita may have also called Dimondstein on the night of July 30,
to help him prepare to respond and give him instructions, if Bachman
raised the health care issue.
14 This testimony, if credited, would arguably complement the claim
that the DM Local was the exclusive representative of the KC unit.
MAIL CONTRACTORS OF AMERICA, INC. 173
that we had to keep everything the same, meaning the same
plan, same benefits, same pricing, same everything, and I ex-
plained that we understood his position on status quo and we’d
get back to him.”
The witnesses agree that there was a second conversation re-
garding health insurance later on August 1 in the hall. Dimond-
stein reiterated and emphasize the Union’s position that the
Employer had to maintain the status quo. Bachman related that
there was another brief conversation about health insurance in
the hallway following August 1, when Dimondstein again
stated that everything had to remain the same.
Dimondstein told Bachman on August 1, that the claims data
he had requested in April had not been furnished and he asked
when it would be provided. Bachman’s response was that the
claims data had been delayed because it had to be obtained
from CBSA and that CBSA did not have the ability to extract
only claims filed by employees at particular terminals and the
information had to be manually retrieved from printouts of the
claims filed by employees at all terminals. Dimondstein did not
state the reason the Union needed the information.
Tabbita testified that he had a telephone conversation with
Bachman while Bachman was in Kansas City for negotiations
July 31–August 1. He testified that he called Bachman, but did
not recall the purpose of the call. Tabbita related that he asked
Bachman whether he had raised the issue of health insurance
with Dimondstein and that Bachman said that all Dimondstein
wanted to talk about was the status quo. Tabbita testified that
Bachman described his concept of the status quo was change,
explaining that every year the health insurance was bid, the
benefits were tweaked and there were different premiums.
Tabbita testified that was not what Dimondstein meant by
status quo and that what Dimondstein meant at a bare minimum
was that the employee premium would not change, nor would
the benefits of the plan change unless those were agreed to at
the table. This account is credited. In light of my earlier find-
ings, I conclude that this conversation occurred on August 1.
On July 31, the Employer’s director of human resources sent
a memorandum to all employees, other than those in the DM,
WM, JAX, GB, and KC units, with a packet of information
relating to the BCBS plan and the new supplemental insurance,
including a BCBS summary plan description, a statement of
employee premiums and enrollment forms. The cover memo
stated that the plans would replace the existing plans on Sep-
tember 1. The employees were asked to submit the enrollment
forms by August 16.
Bachman was in Portland, Oregon, August 5–10 at a trade
convention. While he was there the director of human re-
sources contacted him and advised him that if a decision was
not made soon on the KC unit health insurance the employees
would not have health insurance after August 31, when the
CBSA group insurance plan expired. When Bachman returned
to his office on August 10, he sent to Dimondstein the packet of
materials that had been announced to the employees at the other
CBA terminals by overnight mail and the cover letter by fax,
with a copy to Coles. The cover letter included the following:
As we discussed during our most recent negotiating
sessions held on August 1 and 2, [sic, July 31 and August
1] the current group insurance program covering unit em-
ployees as well as other similarly-situated employees will
expire effective August 31, 2002. This will cause the im-
plementation of a successor group insurance program ef-
fective September 1, 2002, applicable to unit employees as
well as similarly situated employees.
As to the successor group insurance program, Blue
Cross & Blue Shield (“BCBS”) will become effective for
health coverage; Ameritus will become effective for dental
and vision coverage, and Standard will become effective
for short-term disability, long-term disability, and supple-
mental life coverage.
Regardless of the expiration of the current plan and the
implementation of a successor plan applicable to unit em-
ployees and similarly-situated employees, we nonetheless
remain open to negotiating any proposal you may present
regarding unit employees’ coverage and insurance pro-
grams which of course can be effective immediately or in
the future as set forth in a collective bargaining agreement.
Enclosed please find a complete packet that will be
distributed to employees (i.e. Q&A sheet, enrollment in-
formation, Summary Plan Descriptions, etc.) for the insur-
ance plans which will become effective on September 1.
Dimondstein testified that for the period August 9–18, he
was not available to negotiate because of an APWU conven-
tion. When Dimondstein and Bachman spoke on August 1
about scheduling the next meeting, Dimondstein told Bachman
that he would be attending the convention in August. I credit
Bachman’s testimony that he did not know the specific dates of
the convention. Bachman sent the August 10 letter and over-
night mail to the fax number and mailing address in North
Carolina that Dimondstein had provided.
On August 12, the Employer’s director of human resources
sent the insurance materials to the employees in the KC unit,
including the announcement the changes in health insurance
would be effective September 1. The Kansas City drivers em-
ployees were asked to return the enrollment forms by August
23.
While he was at the APWU convention, Dimondstein re-
ceived a phone call from Kansas City driver Tony Olson, who
told him that he had received the health insurance packet.
Dimondstein called Hitt. Dimondstein testified:
I said, “Jeff, how in the hell can you do that.” I said, “We
talked about it; I said to you, if you want to make changes,
you have got to negotiate, and if not, you have to main [sic,
maintain] the status quo of the plan until those negotiations
take place,” and he said, “We have remained status quo. This
is the status quo to us. We have researched it; Mr. Bachman
has researched it, and this is the deal.”
Tabbita testified that he and Dimondstein had discussed the
Kansas City negotiations while they were at the convention.
Tabbita testified that Dimondstein wanted to complete the Kan-
sas City negotiations by the end of the month and that Dimond-
stein asked him to see if the KC unit could be added to the
ULLICO group plan and to seek a BCBS quote at the ULLICO
level of benefits.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD174
On August 19, Bachman returned a call from Tabbita. Each
testified about the conversation and Bachman’s contemporane-
ous notes were received into evidence. An amalgam of what
the more probable and credible evidence establishes is that
Tabbita told Bachman that the Union was filing an unfair labor
practice charge against the Employer based on the announced
changes in health insurance. Bachman told Tabbita that
Dimondstein thought the CBSA plan should be continued with
the same benefits and deductions, but that it was not possible to
continue the CBSA plan just for the KC unit and that if the
Employer did not move forward with BCBS, the drivers would
not have health insurance after August 31. Tabbita asked if the
Employer was open to other options. Bachman said they were
and suggested that the issue be addressed at the next negotia-
tion meetings scheduled for August 27–28. Tabbita told Bach-
man that Dimondstein thought the negotiations could be
wrapped up fairly quickly and that the unfair labor practice
charge could be resolved at the same time. Tabbita asked
Bachman whether the quotation from BCBS for coverage at the
CBA terminals had been received. Bachman stated that he had
not yet received the quotation.15 Tabbita also asked for the
claims data that had been requested in April. On August 20,
Bachman faxed the claims data to Tabbita and Dimondstein.
Bachman’s testimony shows that the claims data could not
be immediately furnished following the April request because it
had to be obtained from CBSA. CBSA did not have the ability
to extract only claims filed by employees at particular terminals
and the information had to be manually retrieved from printouts
of the claims filed at all terminals with CBSA insurance. Tab-
bita testified that he inquired about the claims data on August
19, because Dimondstein had asked him at the APWU conven-
tion the week before to obtain a bid from ULLICO to add the
KC unit to the plan covering the CBA units.
On August 21, Dimondstein submitted additional requests
for information by e-mail and complained that previously re-
quested information had not been furnished. The previously
requested information had, in fact, been furnished. Bachman
immediately responded to Dimondstein by e-mail and provided
details as to when the information had been provided.
On August 21, Dimondstein also asked, for the first time, for
the amounts of the employer subsidy for the announced BCBS
plan. Bachman provided that information by e-mail that day.
On August 23, Dimondstein asked for past-incurred costs to the
Employer for claims expenses, which were also requested by
Tabbita the week before. Bachman replied that he was getting
the information and would forward to Dimondstein.
Tabbita sent an e-mail to Bachman on August 21, stating that
he could not find the census for the KC unit that Bachman had
sent to him in June and asked for some additional information
regarding five claimants, indicating that Tabbita had given

15 Tabbita asked ULLICO to send claims information for the CBA
units to BCBS. Apparently the delay was related to inadequate data
that ULLICO had provided to BCBS. Tabbita testified that he also
asked Bachman to look at getting a quotation from Blue Cross Blue
Shield for the Kansas City drivers at the ULLICO level of benefits.
Bachman’s notes and testimony do not reflect that such a request was
made.
ULLICO the claims information that the Employer had pro-
vided.
On August 22, the unfair labor practice charge was filed and
the next day the Employer signed agreements with BCBS for a
basic and a buyup plan covering all employees, other than the
CBA units.
The parties next met for negotiations on August 27–28. On
August 27, the parties addressed health insurance. Dimond-
stein, Olson, and Bachman described what was said and Bach-
man’s negotiation notes were received as an exhibit. The Au-
gust 27 meeting began with Dimondstein opening a discussion
of health insurance that lasted about an hour. Dimondstein
voiced his objection to the announced changes in health insur-
ance, asserted that the Employer had not bargained the change
with the Union. Dimondstein reminded the Employer that at
the meeting on August 1, he had asked if the Employer had
anything for the Union on health insurance and had been told
that the Employer would get back to the Union. Dimondstein
reiterated his position that the Employer was required to main-
tain the status quo and keep everything the same. Hitt re-
sponded that the CBSA plan could not be continued just for
Kansas City and that the status quo had been maintained be-
cause the KC unit had been treated the same and if the Em-
ployer had put them in some other plan that would have been
treating them differently. Hitt contended that the Employer had
the right to make the change. Dimondstein challenged Hitt’s
contention that the status quo had been maintained and referred
to lower benefits in BCBS plan and the reduced Employer con-
tribution. Hitt stated that the Employer was open to alterna-
tives. Dimondstein proposed, pending further contract negotia-
tions, that in applying the BCBS plan to the KC unit the Em-
ployer maintain the existing Employer contribution, maintain
the CBSA copays and prescription benefits. Dimondstein
stated that this was not a contract proposal, but was an interim
measure that would also address the Board charge. The Em-
ployer was unwilling to accept this proposal.
The foregoing account of what occurred at the August 27
meeting is an amalgam of the most probable and credibly of-
fered testimony, much of which was basically consistent. Ol-
son asked during the discussion if the CBSA plan could be
extended. I do not credit his uncorroborated testimony that
Bachman said that it could be done, but it was now too late.
Bachman’s denial was more probable and more credibly of-
fered.
On August 27, Bachman also called Tabbita and told him
that he had not gotten a quotation from BCBS for the CBA
units. The parties did not discuss health care on August 28 and
agreed to meet next on October 2. The health care changes
were implemented on September 1.
II. ANALYSIS
Ordinarily, when an employer makes unilateral changes in an
existing term or condition of employment of employees who
are represented for the purposes of collective bargaining, the
employer violates Section 8(a)(1) and (5) of the Act without
any showing of bad faith. NLRB v. Katz, 369 U.S. 736 (1962).
In Katz, the Court did recognize that unilateral action might be
justified in some circumstances.
MAIL CONTRACTORS OF AMERICA, INC. 175
Generally, where the parties are engaged in negotiations for
a collective-bargaining agreement, an employer may not en-
gage in piecemeal bargaining where the employer bargains to
impasse and then implements changes in a particular matter
without first bargaining to an overall impasse for the agreement
as a whole. RBE, Electronics of S. D., Inc., 320 NLRB 80, 81
(1995); see also Bottom Line Enterprises, 302 NLRB 373, 374
(1991), enfd. 15 F.3d 1087 (9th Cir. 1994). The evidence
shows, and there is no dispute, that an overall impasse had not
been reached in negotiations for a contract for the KC unit prior
to the changes in health insurance that were made on Septem-
ber 1.
On brief, the General Counsel acknowledges that the Re-
spondent has established a past practice with regard to the tim-
ing of periodically reviewing health insurance benefits that
permits it an exception to the general rule against piecemeal
bargaining.16 The General Counsel contends, however, that
health insurance was a mandatory subject of bargaining that
was unilaterally changed without first bargaining to impasse.
Thus, the General Counsel contends that the discontinuance of
the CBSA coverage and the implementation of the BCBS plan
for the KC unit was a per se refusal to bargain based on the
Bottom Line Enterprises, supra.
The Employer contends that it was privileged to implement
the heath insurance changes for the KC unit because the change
was based on a decision made before it had a duty to bargain
regarding the KC unit. The board of director’s minutes and the
credible testimony of Bachman show that the decision was
made on October 24, 2001, to discontinue CBSA self-insurance
at the non-CBA terminals on September 1, 2002, and to move
to a fully insured plan, as well as to reduce or eliminate the
health insurance subsidy. The subsequent actions regarding the
selection and implementation of a plan to replace the CBSA
plan were consistent with the decision made in October 2001.
Thus, on January 31, 2002, the human resources department
was reviewing the regulations for making the changes; on April
10, the Employer engaged a consultant to find an acceptable
provider; and on April 10, the consultant’s proposed timetable
for assessing alternative plans and implementing a new plan on
September 1, was accepted by the Employer. There is no con-
tention and no evidence that the Employer’s decision to replace
the CBSA plan was related to union activity.
If an employer makes a decision to implement a change be-
fore becoming obligated to bargain with the union, it does not
violate the Act by its later implementation of that change. Con-
solidated Printers, Inc., 305 NLRB 1061, 1067 (1992); SGS
Control Services, 334 NLRB 858 (2001).
The General Counsel argues on brief that the Respondent
had merely made a general decision to alter health insurance
benefits prior to the time that the Union was recognized. I dis-
agree. It is true that the BCBS plan did not take final shape
until after the APWU was recognized, but the decision to ter-
minate the CBSA plan, made in 2001, was not tentative. The
Employer has affirmatively proven that it was privileged to

16 At the hearing the General Counsel contended that an overall im-
passe was necessary.
discontinue the companywide CBSA plan, including coverage
of the KC unit, without bargaining.
The Union was on notice on July 15 that the CBSA plan was
going to be replaced. The Union had the right to insist on bar-
gaining regarding what the health insurance benefits for the KC
unit would be after the CBSA plan was terminated. It did not
exercise that right, even after all the costs and benefits of the
BCBS plan were disclosed. The Union elected to not address
the issue until the change was announced and then did not seek
real negotiations on the issue, but insisted that the changes not
be implemented.
The record does not establish that the Union was aware at the
time of the change that the decision to discontinue CBSA was
made before the Union was recognized, but the Employer did
not have an affirmative duty to volunteer that information to the
Union. See Embossing Printers, Inc., 268 NLRB 710 fn. 2
(1984).
The evidence does not show that the Union was prejudiced
by not receiving claims information requested in late April until
August 20. Tabbita testified that he inquired about the claims
data on August 19 because Dimondstein had asked him at the
APWU convention the week before to obtain a bid from
ULLICO to add the KC unit to the plan covering the CBA
units. There is no evidence that the lack of the claims data was
a problem before August 20. When Tabbita actually needed the
data, it was provided.
Bachman’s August 10 letter to Dimondstein made it clear
that the Employer was ready to negotiate something different, if
the Union wished. Thus, the Employer has never contended
that the decision to terminate the CBSA plan and go to a fully
insured plan privileged it to determine what the employees in
the KC unit would receive, if the Union negotiated a different
benefit. The Employer initially delayed announcing the BCBS
plan to the KC employees, but the Union maintained its posi-
tion. If the Employer had not implemented the company-wide
plan for the KC unit, those employees would have been without
health insurance. The implementation was consistent with the
decision made before the advent of the Union. Given the posi-
tion of the Union, I am unable to conclude that the Employer
had any other reasonable choice, while adhering to its privi-
leged decision to terminate the CBSA plan.
Accordingly, I shall recommend dismissal of the complaint.
CONCLUSIONS OF LAW
1. Mail Contractors of America, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The American Postal Workers Union, Des Moines Area
Local, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. American Postal Workers Union, AFL-CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act.
4. The evidence fails to establish that Respondent violated
Section 8(a)(l) and (5) of the Act, as alleged in the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD176
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17

17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
ORDER
The complaint shall be dismissed.

adopted by the Board and all objections to them shall be deemed
waived for all purposes.