Mississippi Power Co.

National Labor Relations Board - Board Decisions

Sep 29, 2000

332 N.L.R.B. 530 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 530
Mississippi Power Company and U-21 Representing
International Brotherhood of Electrical Workers Lo-
cal Unions Nos. 1204, 1209, 1210, 1211, AFL–CIO.
Case 15–CA–13436
September 29, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On January 16, 1997, Administrative Law Judge Wil-
liam N. Cates issued the attached decision. The Respon-
dent filed exceptions and a supporting brief and the Gen-
eral Counsel filed an answering 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 decided to affirm
the judge’s rulings, findings,1 and conclusions and to adopt
the recommended Order as modified and set forth in full
below.2
The judge found, and we agree, that the Respondent vio-
lated Section 8(a)(5) of the Act by refusing to bargain with
respect to the terms and conditions of employment of its
employees represented by the Local Unions 1204, 1209,
1210, and 1211 (the Locals).3 Specifically, we agree with
the judge that the Respondent unlawfully announced its
planned Other Post Retirement Benefit (OPRB) changes
for future retirees to the Locals on April 21, 1995,4 and
that it thereafter unlawfully refused to bargain with the
Locals over these changes.5 We note that the Respondent
explicitly refused to bargain about its announced future
changes on July 18, 1995, during the period when it and
the Locals were engaged in negotiations to replace the
contract that expired on August 15, 1995. In finding the
violation, the judge considered and rejected the Respon-
dent’s July 18, 1995 reasons for refusing to bargain with
the Locals over the changes, namely, that (1) the OPRB
changes did not affect statutory employees covered by the
Act, and (2) even assuming the changes did affect statu-
tory employees and concerned a mandatory subject of
bargaining, the Respondent was not obligated to bargain
over the OPRB changes because the Locals had waived
their right to bargain over the issue. The Respondent has
renewed these contentions in its exceptions. For the fol-
lowing reasons, we find these exceptions without merit.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order to include reme-
dial provisions that are in accord with our decision in Indian Hills Care
Center, 321 NLRB 144 (1996), as modified in Excel Container, Inc.,
325 NLRB 17 (1997).
3 As explained by the judge, these four Locals represent approxi-
mately 600 of the Respondent’s approximately 1400 employees. A
joint council (U-21) represents the four Locals in collective-bargaining
negotiations with the Respondent. The Respondent admitted that it is a
party to a memorandum of agreement with the Locals, and that it rec-
ognizes the Locals as the exclusive representative of the Respondent’s
employees in a unit described in the memorandum. The parties stipu-
lated to admission of memoranda of agreement dated August 16, 1992,
to August 16, 1995, and August 16, 1995, to August 16, 1998.
4 The parties stipulated that the Respondent announced the OPRB
changes to unit employees’ retirement benefits at a meeting with the
Locals on April 21, 1995. The changes will affect employees who
retire after January 1, 2002, and who were not grandfathered into the
previous plan. Grandfathered into the previous plan were employees
who retired on or before January 1, 2002, employees who were 55 with
15 years of service on January 1, 2002, and employees with 30 years of
service before January 1, 2002.
In contending that the OPRB changes do not affect
statutory employees, the Respondent argues that since the
OPRB changes will affect “future retirees,” and that term
“is not a term fitting within the definition of ‘employee’ as
that term pertains to collective bargaining obligations un-
der the Act,” the judge erred in finding that future retirees
are statutory employees owed a duty to bargain over man-
datory subjects. In making this assertion, the Respondent
relies on Chemical Workers v. Pittsburgh Plate Glass Co.,
404 U.S. 157 (1971), for the proposition that presently
retired former employees are not employees under the Act.
While we do not disagree with the Respondent’s de-
scription of the holding in Pittsburgh Plate Glass, i.e., that
presently retired former employees are not employees un-
der the Act, we find without merit the Respondent’s at-
tempt to extend this holding to exclude active employees
from coverage under the Act on the ground that they are
“future retirees.”6 Indeed, the Supreme Court in Pitts-

As to the OPRB changes themselves, the April 28, 1995 edition of
the Respondent’s newsletter, “Dialogue” (GC Exh. 11), explains that
“[f]or future retiree life insurance, the amount of company-paid cover-
age will be tied to years of service, up to a maximum of $50,000.” The
newsletter further explains that “[l]ike the life insurance benefit, com-
pany contributions toward medical premiums will be tied to years of
service. The company will pay a percentage of the premium up to
established premium ceilings.” Thus, under the OPRB changes, the
Respondent will tie the amount of its premium contributions to the
retirees’ life insurance and medical benefits to their years of service and
will place a cap on the amount of those contributions.
5 The judge’s decision states that the complaint alleges that the Re-
spondent violated Sec. 8(a)(5) and (1) by unilaterally changing working
conditions. More precisely, the complaint alleges that the Respondent
violated Sec. 8(a)(5) and (1) of the Act by failing and refusing to bar-
gain with the Locals on July 18, 1995, about the announced OPRB
changes.
6 Assuming that all active employees are future retirees, we question
whether anyone, under the Respondent’s proposed analysis, would be
covered by the Act.
332 NLRB No. 52
MISSISSIPPI POWER CO. 531
burgh Plate Glass expressly rejected this contention. As
explained in Midwest Power Systems, 323 NLRB 404, 406
(1997), enf. mem. denied on other grounds 159 F.3d 636
(D.C. Cir. 1998):7

In Pittsburgh Plate Glass Co., the Supreme Court
considered whether a midterm unilateral modification
of insurance benefits for employees who had already
retired from bargaining unit work constituted an un-
fair labor practice under the Act. The Supreme Court
concluded that, because retirees were not “employ-
ees” within the meaning of Section 2(3) of the Act
and their benefits did not “vitally affect” the terms
and conditions of employment of bargaining unit em-
ployees, the retirees’ insurance benefits were not a
mandatory subject of bargaining. In reaching this
conclusion, however, the Supreme Court expressly
stated that “the future retirement benefits of active
workers are part and parcel of their overall compen-
sation and hence a well-established statutory subject
of bargaining.” 404 U.S. 157, 180. [Emphasis
added.]

Accordingly, as noted above, we find this exception with-
out merit. We now address the Respondent’s waiver ar-
gument.
The Respondent relies, inter alia, on retention of rights
language contained in its March 1993 Medical Benefits
Plan (Medical Benefits Plan—GC Exh. 3) to contend that
the Locals waived their right to bargain over the OPRB
changes.8 The Respondent also excepts to the judge’s
finding, as a factual matter, that the retention of rights lan-
guage that it relies on was contained in the April 21, 1995
OPRB Update that set out the OPRB changes (over which
the Locals did not have an opportunity to bargain) instead
of in the Medical Benefits Plan (over which, the Respon-
dent contends, the Locals did have an opportunity to bar-
gain). Consequently, the Respondent argues, in effect, that
since the Locals had an opportunity to bargain over reten-
tion of rights language at issue here, the Locals have
waived their right to bargain over the April 1995 OPRB
changes implemented by the Respondent. We find merit
in these exceptions only to the extent set out below.

7 In a subsequent unpublished decision of Febuary 18, 1998 (No. 97-
1251), the court remanded the case to the Board for a determination of
“whether the collective bargaining agreements actually incorporated the
retiree plan documents” which included reservation of rights language
that the respondent relied on to assert that the union had waived its
right to bargain over the future retirement benefits of active employees.
Slip op. at 4.
8 Art. X of the Medical Benefits Plan (GC Exh. 3), entitled
“AMENDMENT AND TERMINATION OF PLAN” states in part:
10.1 Amendment of Plan. The Company, through its Duly Author-
ized Officer, shall have the right at any time by instrument of writing,
duly executed, to modify, alter, or amend, in whole or in part, the Plan
In its exceptions, the Respondent also contends, in effect, that the re-
tention of rights language contained in the Medical Benefits Plan also
permitted it to make the OPRB changes to the retirees’ life insurance
coverage. Since the Medical Benefits Plan does not include life insur-
ance coverage and, in fact, a separate life insurance plan is in effect for
the Respondent’s employees, we reject this contention. For the same
reasons, we reject the Respondent’s further contention that the parties’
side-letter agreement, entitled “Group Medical Insurance Agreement,”
discussed below, also permitted it to make the OPRB changes to the
retirees’ life insurance coverage. Further, even assuming arguendo that
the reservation of rights language and the side-letter agreement were
relevant to the retirees’ life insurance coverage, we would find that the
retention of rights language and the side-letter agreement did not permit
the Respondent to make the OPRB changes to the retirees’ life insur-
ance coverage for the same reasons that we find that that language did
not permit it to make the OPRB changes to the retirees’ medical bene-
fits plan.
Initially, we agree with the Respondent that the judge
erred in finding that the retention of rights language relied
on by the Respondent is contained in the OPRB Update,
and agree with the Respondent that it is contained instead
in the Medical Benefits Plan.9 However, we cannot agree
with the Respondent’s assertion, advanced in justification
of its July 18, 1995 refusal to bargain, that the plan’s lan-
guage “constitutes an explicit waiver by the IBEW of any
right to bargain.” The short answer to that claim is that the
1993 Medical Benefits Plan is an employer-created docu-
ment. It is in no way an “explicit” statement by the Union
about any subject, much less a permanent waiver of the
Union’s right to bargain over the future retirement benefits
of active workers.
Similarly deficient is the Respondent’s contention that
the Locals waived their right to bargain over the OPRB
changes because they had acquiesed in the Respondent’s
prior changes to the OPRBs and because a side-letter
agreement (set out at pp. 80–81 at the end of the last and
current agreements (Jt. Exhs. 1 & 2)) contains a “zipper
clause” that permits the Respondent to make these OPRB
changes unilaterally. We shall consider these issues in
turn.
As to the Respondent’s former contention, i.e., that the
Locals waived their right to bargain over the OPRB
changes because they had acquiesed in the Respondent’s
prior changes to the OPRBs, we agree with the judge that
this contention lacks merit. Even assuming that the Locals
had not requested bargaining over previous changes to the
OPRBs, “union acquiesence in past changes to a bargain-

9 The reservation of rights language quoted by the judge (“Company
retains all rights to modify or terminate the retiree life plans”) in the
“Retention of Rights and Zipper Clause” section of his decision is
found in a document entitled “OPRB Plans—Plan Details After Recent
Changes” (GC Exh. 10) which the Respondent distributed to union
officials during pension negotiations in December 1995, some 8 months
after the Respondent announced its OPRB changes. The Respondent
does not rely on this language in arguing that the Locals waived their
right to bargain over the OPRB changes.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 532
able subject does not betoken a surrender of the right to
bargain the next time the employer might wish to make yet
further changes, not even when such further changes ar-
guably are similar to those in which the union may have
acquiesced in the past.” Exxon Research & Engineering
Co., 317 NLRB, 675, 685–686 (1995), enf. denied on
other grounds 89 F.3d 228 (5th Cir. 1996).
As to the Respondent’s latter contention, i.e., that the
zipper clause contained in the side-letter agreement per-
mitted it to make the OPRB changes unilaterally, we agree
with the judge, but only for the following reasons, that the
so-called “zipper clause” does not evidence a clear and
unmistakable relinquishment by the Locals of their right to
bargain over OPRB changes.
The side-letter agreement, which was in effect when the
OPRB changes were announced, states that it

will run concurrently with the term of the Memoran-
dum of Agreement, and remain in effect from year-to-
year thereafter, from August 16 to August 16, unless
changed or terminated by either party in the following
manner. The party desiring to change or terminate the
agreement after the expiration of the Memorandum of
Agreement, must notify the other party in writing at
least sixty (60) days prior to August 16 of the year in
which such termination or changes are desired, stating
in the notice the nature of the changes desired. Until
the parties have agreed upon such changes the provi-
sions of the agreement shall remain in full force and
effect.

The side-letter also contains the following language (em-
phasis added):

The offer is that during the term of the resulting
agreement Mississippi Power Company will continue
to pay seventy percent of the cost of group medical
insurance coverage for the employee and one depend-
ent and for an employee and family, and will continue
to contribute $92.80 of the cost of the above insurance
for a single employee’s coverage. Further, it is agreed
that in the event of any increase in premiums for the
above insurance, the Company will contribute seventy
percent of the amount of that increase, and the em-
ployee will contribute thirty percent of the amount of
the increase.
The condition of this obligation by the Company
will be an agreement, as evidenced by the Union’s ac-
ceptance, that the matter of insurance coverage or
change in the Company’s contribution toward the
premium for insurance coverage of its employees shall
not be subject to bargaining or a request for bargain-
ing by the Union until the expiration of the Memoran-
dum of Agreement, except by mutual consent.

Finding, in effect, that the zipper clause applied to the
OPRB changes at issue here, the judge found that “the
language in that [zipper] clause appears to preclude Re-
spondent from unilaterally changing OPRB. At most it is
ambiguous.” Accordingly, the judge found that the zipper
clause did not establish that, as the Respondent contended,
the Locals had waived their right to bargain over the
OPRB changes.
Contrary to the judge, we find that the zipper clause
does not apply to the OPRB changes at issue here and, on
this basis, find that the zipper clause does not evidence the
Locals’ waiver of their right to bargain over the OPRB
changes. The zipper clause, by its terms, contains an offer
by the Respondent and an acceptance by the Locals that
covers the employees’ medical premiums “during the term
of the resulting [side letter] agreement.” The announced
OPRB changes, however, are for changes that will not
occur until January 1, 2002, a date outside the term of the
side-letter agreement. Therefore, the announced OPRB
changes are not in any way addressed by the zipper clause.
Since the announced OPRB changes will fall outside the
term of the side-letter agreement, the zipper clause con-
tained in the side-letter agreement cannot constitute a clear
waiver of the Locals’ right to bargain over those changes.
Therefore, the zipper clause does not permit the Respon-
dent to make the OPRB changes at issue here without bar-
gaining with the Locals.
For all these reasons, we agree with the judge that the
Respondent violated Section 8(a)(5) of the Act by an-
nouncing its OPRB changes to the Locals on April 21,
1995, and by refusing thereafter to bargain with the Locals
over these changes.10
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge as modified
and set forth in full below and orders that the Respondent,

10 Although the judge found that the Respondent violated the Act as
alleged, he found that since the Locals were not the representative of
anyone that retires after January 1, 2002, unless that person is currently
employed, his ruling did not apply “to anyone not currently employed
in the bargaining unit.” Citing Exxon Research & Engineering Co.,
317 NLRB at 676 fn. 3, the judge therefore found that “[e]mployees
hired after Respondent’s illegal OPRB changes are not included in the
relevant bargaining unit.” We disagree. As a preliminary matter, we
note that the issue in Exxon was whether the Board’s Order should
encompass the unilateral changes at issue there on a corporatewide or
unit basis, i.e., the geographical extent of the Board’s Order. By con-
trast here, the judge would, in effect, divide the bargaining unit into
chronological divisions based on whether unit employees were hired
prior to or after the Respondent’s April 21, 1995 OPRB changes. We
decline to make such a division.

MISSISSIPPI POWER CO. 533
Mississippi Power Company, Gulfport, Mississippi, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the Locals about
mandatory subjects, including future retirement benefits of
current employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain collectively with International
Brotherhood of Electrical Workers, Local Union Nos.
1204, 1209, 1210, 1211, AFL–CIO, as the exclusive repre-
sentative of the employees in the appropriate bargaining
unit described in article I, section 1, of their collective-
bargaining agreement (memorandum of agreement) about
mandatory subjects, including future retirement benefits of
current employees, and, if an understanding is reached,
embody that understanding in a signed agreement.
(b) Within 14 days after service by the Region, post at
its facilities in Mississippi copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms pro-
vided by the Regional Director for Region 15, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to en-
sure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency
of these proceedings, the Respondent has gone out of
business or closed the facilities involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since April 21, 1995.
(c) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

11 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered
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 protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT fail and refuse to bargain with Interna-
tional Brotherhood of Electrical Workers, Local Union
Nos. 1204, 1209, 1210, 1211, AFL–CIO, about mandatory
subjects, including future retirement benefits of current
employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain collectively with Inter-
national Brotherhood of Electrical Workers, Local Union
Nos. 1204, 1209, 1210, 1211, AFL–CIO, as the exclusive
representative of the employees in the appropriate bargain-
ing unit described in article I, section 1, of our collective-
bargaining agreement (memorandum of agreement) about
mandatory subjects, including future retirement benefits of
current employees, and, if an understanding is reached,
embody that understanding in a signed agreement.

MISSISSIPPI POWER COMPANY
Zoe Panarites, Esq. and Tracie Jackson, Esq., for the General
Counsel.
David C. Hagaman, Esq. and Laura H. Kriteman, Esq., of At-
lanta, Georgia, for the Respondent.
DECISION
WILLIAM N. CATES, Administrative Law Judge. This hear-
ing was held on October 10 and 11, 1996, in New Orleans, Lou-
isiana. The charge was filed on September 21, 1995. The com-
plaint issued on November 30, 1995.
I. JURISDICTION
Respondent, a wholly owned subsidiary of the Southern Com-
pany, admitted that it is an investor owned electric utility that
generates and distributes electrical and utility services and is a
corporation with various places of business located throughout
the State of Mississippi. It admitted that during the 12 months
ending October 31, 1995, it derived gross revenues in excess of
$250,000 and during that same 12-month period it purchased and
received at its Mississippi facilities goods valued in excess of
$5000 directly from points outside Mississippi. Respondent
admitted and I find that at all times material it has been an em-
ployer engaged in commerce as defined in the National Labor
Relations Act (the Act).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 534
II. LABOR ORGANIZATIONS
Respondent admitted that International Brotherhood of Elec-
trical Workers, Local Numbers 1204, 1209, 1210 and 1211,
AFL–CIO (the Union, IBEW, or Locals) are labor organizations
within the meaning of Section 2(5) of the National Labor Rela-
tions Act (the Act) and that those locals have been represented by
a joint council which negotiates collective-bargaining agree-
ments.
Approximately 600 employees of Respondent’s approximately
1400 employees are represented by the four above-mentioned
Locals.
III. THE UNFAIR LABOR PRACTICE ALLEGATIONS
It is alleged that Respondent unilaterally changed working
conditions for employees represented by the Union.
Respondent admitted complaint allegations that it is a party to
a memorandum of agreement with the Locals, and that it recog-
nizes the Locals as the exclusive representative of Respondent’s
employees in a unit described in the memorandum. Respondent
admitted that the bargaining unit described in the memorandum
constitutes a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act and that, at
all material times, the Locals have been the exclusive collective-
bargaining representative of the unit employees. The parties
stipulated to admission of memoranda of agreement dated August
16, 1992, to August 16, 1995, and August 16, 1995, to August
16, 1998.
A. 1995 Activity
The parties stipulated that Respondent announced “Other Post
Retirement Benefits” (OPRB) changes to the unit employees’
retirement benefits at a meeting with the Locals on April 21,
1995. Local Union 1210 President and Business Manager and U-
21 Chairman James Armstrong testified that Respondent gave the
Locals a copy of OPRB Update (GC Exh. 6) during the April 21
meeting. Armstrong testified that the changes mentioned in the
OPRB Update effect the premiums to be paid by employees that
retire after January 1, 2002, and were not grandfathered into the
previous plan. Those employees grandfathered into the current
plan include those that retire on or before January 1, 2002, those
that are 55 with 15 years’ service on January 1, 2002, and those
with 30 years’ service before January 1, 2002.
The OPRB changes include caps on employer contributions to
medical premiums and coverage limits on the amount of life
insurance.
Respondent’s manager, employee relations, Charles Davis, re-
called that Respondent announced the OPRB changes in April
1995. Contract negotiations between Respondent and the Locals
started in July 1995. The previous agreement expired on August
15, 1995.
The Locals wrote Respondent on June 26, 1995, and requested
to bargain over the OPRB changes announced at their April 21
meeting with Respondent. The Union wrote that the changes
would result in a hardship on current employees in the retirement
plan.
Respondent replied to the Locals’ June 26 letter on July 18,
1995. Respondent stated in that letter that the OPRB changes are
not a mandatory subject of bargaining for the following reasons:

(1) The OPRB changes will not impact the current bar-
gaining unit, if at all, until the distant future and OPRB’s are
not addressed in the collective bargaining agreement.
(2) The Company has unilaterally implemented and
modified OPRB’s for many years and the IBEW has never
challenged those actions or asked to negotiate OPRB’s:
therefore, the IBEW has accepted the Company’s actions on
OPRB’s and has waived any claim to a right to negotiate
over the current changes through inaction and past practice.
(3) The postretirement medical coverage plan document
provides the Company has the right and discretion to unilat-
erally modify the plan. Such language constitutes an ex-
plicit waiver by the IBEW of any right to bargain.
B. Pre-1995 Activity
James Armstrong testified that Respondent has negotiated with
the Locals for many years. According to Armstrong, before 1995,
Respondent did occasionally suggest changes in insurance cover-
age and premiums and the Locals had always agreed to those
changes.
Thomas Ryle testified that he retired from Respondent on No-
vember 1, 1994. Before his retirement he was president and
business manager of Local 1211. Ryle testified that the Locals
traditionally asked for improved insurance during contract nego-
tiations. He recalled that some changes in insurance were negoti-
ated outside regular contract negotiations. One such change Ryle
recalled involved a change in the coverage for visits to a chiro-
practor. That change occurred in 1988. Those changes affected
actual employees and retirees. According to Ryle, everything
received by bargaining for unit employees was also granted to
nonunit employees and retirees.
Other changes recalled by Ryle included Respondent moving
from Blue Cross to Provident and from Provident to a self-funded
plan. Ryle testified that those changes occurred during the terms
of collective-bargaining contracts. The changes were proposed
by Respondent and the Locals, having no objections, agreed to
the changes. Ryle admitted Respondent representatives have told
the Locals that Respondent does not negotiate regarding health
and life insurance plans but they will negotiate over the contribu-
tion levels.
In 1988, according to Thomas Ryle, Respondent proposed a
38-percent increase in medical premiums. By cutting back in
benefits the Locals were able to reduce the increase to 30 percent.
The changes proposed by the Locals included implementation of
a $300 deductible for emergency care and the requirement of a
second opinion for surgery.
Local 1204 President and Business Manager Don Ellzey testi-
fied that the collective-bargaining agreement between Respon-
dent and the Locals includes medical and life insurance provi-
sions including percentage of premiums paid by employees and
coverage. (See pp. 80, 81 Jt. Exh 1 & 2.) Ellzey testified that the
Locals negotiated with Respondent in 1986 over changes in Re-
spondent’s accidental death and dismemberment insurance. He
also recalled negotiations in 1987 over the Respondent’s proposal
to increase medical benefit premiums by 38 percent. The Locals
successfully negotiated a lower percentage increase. The Union
agreed to a 1993 proposal by Respondent to increase premiums
for medical and life insurance benefits.

MISSISSIPPI POWER CO. 535
Respondent called James Stone Jr. Stone was formerly Re-
spondent’s director of human resources. He reported to Vice
President Don Mason. Stone was involved in contract negotia-
tions beginning in the early 1960s. He testified that Respondent
and the Locals never did negotiate over changes in the actual
terms of medical and life plans. According to Stone the Locals
proposed changes in medical and life plans but Respondent re-
plied that they did not bargain over the plans themselves. Re-
spondent expressed a willingness to bargain over employee and
employer contributions to the premiums for those plans. Respon-
dent met with the Locals at various times to discuss changes in
medical and life plans. During those meetings Respondent occa-
sionally announced proposed changes in medical and life. How-
ever, Respondent and the Locals did not negotiate those changes.
Respondent took the position that those changes were not subject
to the bargaining process. Those changes affected all Respon-
dent’s employees and were not limited to bargaining unit em-
ployees. Respondent and the Locals never negotiated retiree
medical and life benefits.
Ben K. Glenn, Respondent’s senior employee relations admin-
istrator, formerly served as manager of employee benefits. He
was responsible for the administration of benefits for Respon-
dent’s covered and noncovered employees. According to Glenn,
Respondent has made several changes to medical and life plans
since 1977. Glenn testified regarding summaries received in
evidence, that Respondent made several changes in medical and
life benefits from 1986 and before. According to Glenn, Re-
spondent made those changes without bargaining with the Lo-
cals. Respondent and the Locals did meet regarding changes, but
those meetings involved only Respondent notifying the Locals of
the changes.
On cross-examination, Glenn could not recall whether Re-
spondent had originally proposed higher increases in premiums
and that the Locals had successfully negotiated the increases at a
lower percentage. Glenn admitted that retiree benefits, even
those that had not vested, could affect his decisions about his
retirement years.
Charles Davis, Respondent manager of employee relations,
testified there have been agreements between Respondent and the
Locals since 1940. The agreements between the Locals and Re-
spondent since the early 1980s have contained only one reference
to medical insurance. That is a letter that is found on page 80 of
the current agreement. There is no mention of retiree benefits in
the current or past agreements. Davis testified that to his knowl-
edge there have been no other agreements between Respondent
and the Locals covering Respondent’s welfare plans or to con-
tinue retiree medical or life benefits.
According to Davis Respondent’s position has and continues
to be that Respondent will notify the Locals and ask them to meet
and discuss changes. Respondent then presents and educates the
Locals on the changes. However, Respondent feels it has the
right to make any of those changes and is not required to bargain
regarding any changes. Davis testified that the Locals have his-
torically agreed with Respondent on that position. Respondent
and the Locals have never bargained over any aspect of retiree
health or life benefits.
Davis testified that the Locals have requested bargaining over
medical and life plans for active employees and that Respondent
has replied that it was not going to bargain over changes to the
benefit plans. He recalled that the Locals have never requested
bargaining over retiree life or medical benefits.
Charles Davis admitted that Respondent has bargained with
the Locals over retirement pension benefits. Davis did not deny
James Armstrong’s testimony that pension negotiations between
Respondent and the Locals are held separately from regular con-
tract negotiations and that the pension negotiations in 1995 cov-
ered the benefits in the pension plan. Davis denied that Respon-
dent has ever bargained with the Locals for medical and life
benefits for retirees during those pension negotiations.
Charles Davis agreed that Tom Ryle wrote Don Mason in
1987 or 1988, regarding requested changes in chiropractic care.
Davis denied that Respondent agreed to reduce any proposed
premium increase in 1986, 1987, or 1988, during conversations
with the Locals. Davis was unable to recall why a 25-percent
premium increase was instituted even though a 38-percent in-
crease is mentioned in General Counsel’s Exhibit 15. Davis
admitted on redirect examination that Respondent has negotiated
with the Locals regarding the percentage relationships relative to
the medical and life premium contributions from employer and
employees.
Davis recalled that after Respondent presented proposed
changes to the Locals in 1993, Tom Ryles asked if the Locals
would be allowed to discuss the matter further. Davis told Ryles
that the changes would be implemented effective March 1, 1993.
C. Retention of Rights and Zipper Clause
A reservation-of-rights clause is included in the OPRB Up-
date, which Respondent presented to the Union on April 21,
1995: “Company retains all rights to modify or terminate the
retiree life plans.”
Charles Davis, Respondent’s manager of employee relations,
admitted there is nothing in writing showing Respondent and the
Locals have agreed to the Respondent’s reservation-of-rights
language. However, according to Davis, the Locals have never
proposed changes or elimination of the reservation-of-rights lan-
guage.
As to the zipper clause, Charles Davis testified that all agree-
ments between the Locals and Respondent since the early 1980s,
have contained only one reference to medical insurance. That is a
letter from Respondent to the Unions that is found on page 80 of
the current agreement:

This offer shall become an agreement when the Union
indicates its acceptance hereof by signing, and returning,
one of the copies of this letter to the Company in Gulfport.
The offer is that during the term of the resulting agree-
ment Mississippi Power Company will pay the cost of group
medical insurance coverage 75 percent of the total two-party
medical premium, 75 percent of the total family medical
premium and 80 percent of the total single medical pre-
mium. Further, it is agreed that in the event of any increase
in premiums for the above insurance, the Company will
contribute 75 percent of the amount of that increase for two-
party and family, and the employee will contribute 25 per-
cent of the amount of the increase; the Company will con-
tribute 80 percent for single employee’s coverage, and the
employee will contribute 20 percent of the increase.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 536
The condition of this obligation by the Company will be
an agreement, as evidenced by the Union’s acceptance, that
the matter of insurance coverage or change in the Com-
pany’s contribution toward the premium for insurance cov-
erage of its employees shall not be subject to bargaining or a
request for bargaining by the Union until the expiration of
the Memorandum of Agreement, except by mutual consent.

In response to the administrative law judge, Davis admitted
there was no bargaining over the zipper clause. (Jt. Exh. 2, p.
80.) That clause was unilaterally compiled by Respondent. On
redirect examination,Davis testified that letter does constitute a
binding obligation between Respondent and the Locals.
D. Respondent’s Brief
In its brief Respondent, among other matters, raised questions
regarding two matters:

Retention of Rights and Zipper Clause: As to the retention of
rights clause, that provision is contained in the OPRB Update that
presents the primary issue in this matter. That matter was not the
product of negotiations between Respondent and the Union.
As to the zipper clause, the language in that clause appears to
preclude Respondent from unilaterally changing OPRB. At most
the language is ambiguous. The Board has consistently refused
to find waiver by unions in situations similar to the instant one.
Exxon Research & Engineering Co., 317 NLRB 675 (1995);
T.T.P. Corp., 190 NLRB 240, 244 (1971).
Respondent argued that the complaint alleged an obligation to
bargain for future retirees a group not defined as employees un-
der the Act. Chemical Workers v. Pittsburgh Plate Glass Co.,
404 U.S. 157, 165, 171–173 (1971); Star Tribune, 295 NLRB
543 (1989).
The Unions are the bargaining representative of a unit of ac-
tive employees and, as such, do not represent future employees.
To that extent Respondent is correct. The Union is not the repre-
sentative of anyone that retires after January 1, 2002, unless that
person is currently employed. For that reason this ruling does not
apply to anyone not currently employed in the bargaining unit.
Employees hired after Respondent’s illegal OPRB changes are
not included in the relevant bargaining unit. See Exxon Research
& Engineering, supra at fn. 3.
Findings
Credibility
The record, including documents and testimony, convinces me
that the Locals requested bargaining over OPRB changes an-
nounced by Respondent on April 21, 1995. That request was
made by letter dated June 26, 1995. I find that Respondent re-
jected the bargaining demand in its July 18, 1995 letter (see
above). I do not credit the testimony, including that of Charles
Davis, which is contrary to the above findings. I find that Re-
spondent has continued to refuse to bargain over those OPRB
changes.
In consideration of the entire record and the demeanor or the
witnesses, I am convinced and find that Thomas Ryle and Don
Ellzey were truthful. I credit their testimony especially that tes-
timony that shows that the Union negotiated with Respondent
regarding coverage for visits to a chiropractor and that the Union
successfully negotiated a decrease in Respondent’s proposed 38-
percent increase in medical premiums in 1987 or 1988.
I find that the record shows that Respondent and the Locals did
not routinely negotiate over medical and life benefits during con-
tract negotiations but that those matters were discussed separately
during the existence of collective-bargaining agreements. Fre-
quently those discussions resulted in the Locals accepting with-
out dispute, medical and life changes proposed by Respondent. In
that regard I credit the testimony of James Stone Jr. that the Lo-
cals proposed changes in medical and life plans but that Respon-
dent took the position that it did not bargain over the plans them-
selves. I credit his testimony that Respondent expressed a will-
ingness to bargain over employer and employees contributions to
the premiums of those plans.
Conclusions
There is no dispute but that Respondent had a bargaining obli-
gation with the Locals. At issue is whether that obligation ex-
tended to the instant issue, i.e., the OPRB changes.
In determining that issue I must question whether the alleged
unilateral changes involve a mandatory subject of bargaining.
NLRB v. Borg-Warner Corp., 356 U.S. 342, 349 (1958); NLRB v.
Katz, 369 U.S. 736, 743 (1962).
The Board and courts have held that pension plan benefits for
future retirees is a mandatory subject of bargaining. Keystone
Consolidated Industries, 309 NLRB 294 (1992); T.T.P. Corp.,
supra; Chemical Workers v. Pittsburgh Plate Glass Co., supra.
As noted, for example, in United Hospital Medical Center, 317
NLRB 1279 (1995), “Health [and life] benefit plans are a manda-
tory subject of collective bargaining. They may not be altered or
eliminated without bargaining to mutual agreement or to a good-
faith impasse on such action. NLRB v. Katz, 369 U.S. 495, 497
(1993).” In as much as health and life benefit plans are manda-
tory subjects of bargaining and in as much as the Board and
courts have concluded that pension benefit plans for future retir-
ees are mandatory subjects of bargaining, I am persuaded that
health and life insurance coverage in retirement is a matter relat-
ing to wages, hours, and other terms and conditions of employ-
ment such as to constitute a mandatory subject of bargaining.
In determining whether the General Counsel has proved that
Respondent engaged in unfair labor practices, I shall consider the
reasons Respondent gave for not engaging in collective bargain-
ing regarding the April 21 OPRB changes:

The OPRB changes will not impact the current bargain-
ing unit, if at all, until the distant future and OPRB’s are not
addressed in the collective bargaining agreement.

An employer has a duty to bargain over terms and conditions
of employment for bargaining unit employees. However, an
employer has no duty to bargain regarding current retirees. Re-
spondent contends that the instant matter involves bargaining
over benefits for retirees and that it did not make changes in
terms and conditions of employment of present members of the
bargaining unit. Murphy Diesel Co., 184 NLRB 757, 763
(1970); Civil Service Employees Assn., 311 NLRB 6, 7 (1993).
Respondent argued that courts have refused to hold that decisions
that are merely tangential to the rights of present members of the
bargaining unit constitute mandatory subjects of bargaining,

MISSISSIPPI POWER CO. 537
citing, Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S.
157 (1971); Keystone Steel & Wire v. NLRB, 41 F.3d 746 (D.C.
Cir. 1994); and Torrington Co., 305 NLRB 938 (1991).
There is a clear difference between bargaining over future re-
tirement benefits for active employees and benefits for current
retirees. Here the discussion involves employees that will not
retire before 2002. As shown above the changes mentioned in
Respondent’s OPRB Update effect the premiums to be paid by
employees that retire after January 1, 2002, and were not grand-
fathered into the previous plan. Those employees grandfathered
into the current (previous) plan include those that retire on or
before January 1, 2002, those that are 55 with 15 years’ service
on January 1, 2002, and those with 30 years’ service before Janu-
ary 1, 2002.
Obviously current retirees, having retired before January 1,
2002, fall within the above exceptions and are not affected by the
OPRB changes.
The OPRB changes involve bargaining unit employees. They
do not involve retirees and as such do not involve nonmandatory
subjects of bargaining. Moreover, since the unit employees are
not retirees or other nonstatutory employees, the “vitally affects”
test is not applicable. Chemical Workers v. Pittsburgh Plate
Glass Co., supra.
Ben K. Glenn, Respondent’s senior employee relations admin-
istrator admitted that the OPRB changes would affect his deci-
sion-making about retirement and that he would not work for an
employer without anticipating that he would have health and life
benefits in retirement. That testimony highlights the importance
to active employees of negotiations over OPRB changes.
Moreover, even though the OPRBs are not included in the par-
ties contract, i.e., the memorandum of agreement, Respondent
has an obligation to bargain in good faith before instituting the
changes. St. Vincent Hospital, supra.
By announcing its planned OPRB changes, announcing that
the changes would be implemented and refusing to bargain after
the Union’s request, Respondent failed to fulfill its bargaining
obligation and thus violated Section 8(a)(5) and (1) of the Act.
The Company has unilaterally implemented and modified
OPRB’s for many years and the IBEW has never challenged
those actions or asked to negotiate OPRB’s: therefore, the IBEW
has accepted the Company’s actions on OPRB’s and has waived
any claim to a right to negotiate over the current changes
through inaction and past practice.
The postretirement medical coverage plan document provides
the Company has the right and discretion to unilaterally modify
the plan. Such language constitutes an explicit waiver by the
IBEW of any right to bargain.
As shown above, I find that the record shows that Respondent
and the Union did engage in discussions over the years regarding
future retirement benefits. On a few occasions the Union suc-
cessfully negotiated changes in Respondent proposals. For ex-
ample, as shown above, in 1987 or 1988 the Union successfully
negotiated a reduction in proposed percentage of insurance pre-
miums from 38 percent. Also around that same time the Unions
successfully proposed changes in the number of visits to chiro-
practors.
The record also shows that the Union regularly proposed
changes in medical benefits as part of their “askings” during
contract negotiations.
The practice routinely included Respondent notifying the Un-
ion of proposed changes. The record shows without serious dis-
pute that before 1995 there was never an instance where Respon-
dent and the Union did not successfully agree to proposed
changes. Frequently the Union simply did not object to the pro-
posed changes. A “union’s acquiescence in previous unilateral
changes does not operate as a waiver of its right to bargain over
such changes for all time.” Owens Corning, 282 NLRB 609
(1987). See United Hospital Medical Center, 317 NLRB 1279,
1282–1283 (1995).
However, there was no evidence that the Union ever specifi-
cally waived its right to bargain over future retirement benefits.
Moreover, the fact that the current collective-bargaining
agreement does not include the OPRB benefits and Respondent’s
unilaterally inclusion of a reservation of rights clause in its April
21, 1995 proposal, does not constitute waiver of the Union’s right
to bargain. The evidence failed to show that the Union ever
“consciously yielded” or “clearly and unmistakable waived” its
interest in future retirement benefits. T.T.P. Corp., 190 NLRB
240 (1971).
The zipper clause contained in the contract does not excuse the
Respondent’s conduct. That clause provides that insurance cov-
erage changes are not subject to negotiations until the expiration
of the collective-bargaining agreement absent mutual consent.
Obviously, that provision does not provide for unilateral changes
without bargaining absent agreement of the parties. As shown
above I have not credited the testimony of Charles Davis. I spe-
cifically reject his testimony that the “zipper clause” was meant
to enable Respondent to change medical insurance coverage
during the life of the collective-bargaining agreement.
Respondent pointed out that its representatives frequently told
the Union that it did not negotiate over health and life insurance
benefits. However, as show above, the record shows that Re-
spondent and the Union did negotiate over health and life bene-
fits. Moreover, Respondent, by making that statement, may not
impose on the Union a waiver of the Union’s right to bargain.
The parties’ memorandum of agreement included no terms
which are “incisive, direct, and specific in their assault on the
existence of any negotiating responsibility during the term of the
contract, and in their desire to commit unresolved issues to man-
agement prerogatives as they existed on entry of the agreement.”
Rockford Manor Care Facility, 279 NLRB 1170, 1174 (1986).
The record failed to establish there was a clear and unmistak-
able relinquishment of the right to bargain over OPRB changes.
Trojan Yacht, 319 NLRB 741 (1995). The record proved that the
Union did not waive its right to bargain over OPRB changes.
Keystone Consolidated Industries, 309 NLRB 294 (1992).
CONCLUSIONS OF LAW
1. Mississippi Power Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local Lo-
cals Nos. 1204, 1209, 1210, 1211, AFL–CIO are labor organiza-
tions within the meaning of Section 2(5) of the Act.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 538
3. Respondent, by unilaterally changing its other postretire-
ment benefits (OPRB) for unit employees without bargaining
with the Locals as representative of the employees in the bargain-
ing unit described at article I, section 1 of their collective-
bargaining agreement, has engaged in conduct violative of Sec-
tion 8(a)(1) and (5) of the Act.
4. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6), (7),
and (8) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed to effec-
tuate the policies of the Act.
As I have found that Respondent has illegally changed other
postretirement benefits (OPRB) for bargaining unit employees
without bargaining with the Locals as representative Respondent
is ordered to restore OPRB to pre-April 21, 1995 status and, upon
request, bargain in good faith with the Union regarding OPRB.
[Recommended Order omitted from publication.]