MRS Printing

National Labor Relations Board - Board Decisions

Aug 23, 1991

304 N.L.R.B. 292 (N.L.R.B. 1991)

292
304 NLRB No. 41
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We find merit in the General Counsel’s exception that the judge inadvert-
ently failed to provide in the recommended Order and notice portions of his
decision an appropriate remedy for his finding that the Respondent unlawfully
refused to respond to the Union’s repeated requests for contract renewal nego-
tiations. We, accordingly, amend the recommended Order and notice portions
of his decision to reflect the violation he found.
MRS Printing, Inc. and United Paperworkers Inter-
national Union, AFL–CIO, CLC, Local Union
No. 551. Cases 3–CA–15989 and 3–CA–15994
August 23, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On May 10, 1991, Administrative Law Judge Joel
A. Harmatz issued the attached decision. The General
Counsel filed an exception and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exception and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order, as
modified.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, MRS
Printing, Inc., Watertown and Gouverneur, New York,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Insert the following as paragraph 1(b) and reletter
the subsequent paragraph.
‘‘(b) Failing to answer the Union’s repeated requests
for contract renewal negotiations.’’
2. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs starting with the second
paragraph.
‘‘(c) Meet with the Union as the bargaining rep-
resentative of employees in the appropriate units de-
scribed above at reasonable times and places to nego-
tiate a collective-bargaining agreement.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to abide by and adhere to our
collective-bargaining agreement by unilaterally failing
to maintain the health benefit program required on be-
half of employees described below:
All production and maintenance employees em-
ployed by us at our Gouverneur, New York facil-
ity, excluding all office clerical employees, sales
employees, professional employees, guards, and
supervisors as defined by the Act.
All office clerical employees employed by us at
our Watertown and Gouverneur, New York facili-
ties, excluding all production and maintenance
employees, sales employees, professional employ-
ees, guards, and supervisors as defined by the
Act.
WE WILL NOT fail to answer the Union’s repeated
requests for contract renewal negotiations.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL reinstate the health insurance program that
covered the aforedescribed employees immediately
prior to May 1, 1990.
WE WILL make whole the above employees, with in-
terest, for losses they sustained by reason of our failure
to maintain health insurance coverage, including costs
of alternative care such as actual medical expenses and
premiums; and WE WILL provide restitution for pre-
miums paid to us by those employees which we did
not remit to the insurance carrier.
WE WILL meet with the Union as the bargaining rep-
resentative of employees in the appropriate units de-
293MRS PRINTING
1 The transcript inadvertently identifies the above provision as ‘‘Article
XVI.’’ Coincidentally this numeric reference is omitted from the collective-
bargaining agreement. See G.C. Exh. 2, pp. 16–17. The transcript is corrected
to identify the relevant provision as ‘‘Article XV.’’
scribed above at reasonable times and places to nego-
tiate a collective-bargaining agreement.
MRS PRINTING, INC.
Robert Ellison, Esq., for the General Counsel.
H. Thomas Swartz, Esq., of Watertown, New York, for the
Respondent.
Jennifer Clark, Esq. (Blitman & King), of Syracuse, New
York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This case
was tried in Watertown, New York, on April 16, 1991, on
an original unfair labor practice charge filed on October 31,
1990, and a complaint issued on December 4, 1990, alleging
that the Respondent violated Section 8(a)(5) and (1) of the
Act, first, by repudiating the health insurance provisions of
the collective-bargaining agreement, and, thereafter, by refus-
ing, on request of the Union, to meet for the purpose of ne-
gotiating a successor agreement. In its answer the Respond-
ent denied that any unfair labor practices were committed.
All parties waived the right to file posthearing briefs.
On the entire record, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York corporation, has been en-
gaged in the publishing, printing, and distribution of local
newspapers and related materials from its facilities in Water-
town, New York, and Gouverneur, New York, respectively.
In the course of those operations, the Respondent annually
derives revenues exceeding $250,000 in value, and purchases
and receives at its Gouverneur facility goods and materials
valued in excess of $50,000 which are shipped directly from
points located outside the State of New York. The complaint
alleges, the Respondent admits, and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I find
that United Paperworkers International Union, AFL–CIO,
CLC, Local Union No. 551 (the Union), is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
This case involves an Employer’s abnegation of both con-
tractual employment terms and its continuing obligation to
bargain in good faith as its cash position deteriorated.
Though still operating on a limited basis, the Company, since
January 1991, has been managed by a debtor in possession
under auspices of Chapter 11 Bankruptcy.
Employees at each of the Respondent’s locations in Water-
town and Gouverneur have been represented for purposes of
collective bargaining since 1980. In that year, the Union was
certified in a single unit of office clericals at both locations,
as well as a separate unit of production and maintenance em-
ployees at the Gouverneur facility. The most recent collec-
tive-bargaining agreement covering both units had a term of
2 years, with a scheduled expiration date of October 31,
1990. (G.C. Exh. 2.) There is no dispute as to the continuing
appropriateness of the units covered by that contract, nor is
there challenge to the presumption of the Union’s majority
status evoked by that agreement.
Article XVI of that contract1 extended health protection to
the aforesaid employees in accord with the following for-
mula:
Section 2. The Company will continue in effect for em-
ployees and their dependents the present Medical Insur-
ance Program, including Major Medical. . . . Employ-
ees will be responsible for the following weekly pre-
mium payments for said coverage, the remainder of
which will be paid for by the Company.
Individual Coverage, $ 1.00 per week.
Family Coverage, $3.00 per week.
Section 3. Until such time as the Company and the
Union change carriers to Blue Cross and Blue Shield,
including Major Medical, the above Section 2 will be
in effect. After changing Carriers, employees will share
on a 50/50 basis with the Company on increased
monthly premiums over the following monthly rates.
Individual Coverage, $70.00 monthly premium
Family Coverage, $170.00 monthly premium
By stipulation entered at the hearing, the parties agreed
that article XV, section 3 became operable in January 1990,
when as contemplated, Blue Cross/Blue Shield replaced
‘‘The Travelers’’ as the carrier. On April 11, 1990, the Re-
spondent notified the employees of an increase in their con-
tributions as authorized in section 3 above. (G.C. Exh. 4.)
However, on May 1, 1990, Blue Cross/Blue Shield cancelled
the Respondent’s policy for nonpayment of premiums. Em-
ployees did not learn of this cancellation until August 1990.
Subsequently a union representative inquired of and was in-
formed by Blue Cross/Blue Shield that coverage had been
terminated. During the interim after May 1, 1990, despite its
default, the Respondent continued to deduct from wages, and
retain, without reimbursement, employee health insurance
contributions.
On the foregoing, it is concluded that the Respondent’s
failure to remit premiums, both its own and contributions
withheld from employees, as agreed in article XV, section 3,
was a midterm modification of a contract, effected without
union assent, and offensive to Section 8(d) of the Act. The
Respondent thereby violated Section 8(a)(5) and (1) of the
Act. See, e.g., Flood City Brass, 296 NLRB No. 28 (1989).
With respect to the alleged refusal to meet, the parties
agreed that, by letter dated August 24, the Union through
Allyn Turck, wrote David Alteri, the Respondent’s general
manager, requesting negotiating dates in connection with
scheduled expiration of the subsisting agreement on October
294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 It was agreed by the parties that this request was received by the Respond-
ent on or about August 29. G.C. Exh. 3(c).
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
31, 1990. (G.C. Exh. 3(a).)2 Thereafter on about four occa-
sions Turck telephoned Alteri leaving messages, which a sec-
retary acknowledged as delivered to Alteri. There was no re-
sponse on behalf of the Respondent to any of these contacts.
Under Section 8(d) ‘‘to bargain collectively is the perform-
ance of the mutual obligation of the employer and the rep-
resentative of the employees to meet at reasonable times and
confer in good faith.’’ In that spirit, the Board has deemed
unlawful mere delays by a party in responding to a timely
request for renegotiation of a collective-bargaining agree-
ment. See Hassett Maintenance Corp., 260 NLRB 1211,
1216 (1982). It follows that the total frustration of such ne-
gotiations, caused by a failure, in any fashion, to acknowl-
edge or reply to a bargaining request, as evidenced by the
Respondent’s conduct in this case, violates Section 8(a)(5)
and (1) of the Act. I so find.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all times material, the Union has been the exclusive
certified bargaining agent of the following employees:
All production and maintenance employees employed
by Respondent at its Gouverneur, New York facility ex-
cluding all office clerical employees, sales employees,
professional employees, guards, and supervisors as de-
fined in the Act.
All office clerical employees employed by the Re-
spondent at both its Watertown and Gouverneur, New
York facilities, excluding all production and mainte-
nance employees, sales employees, professional em-
ployees, guards, and supervisors as defined by the Act.
4. The Respondent violated Section 8(a)(5) and (1) of the
Act by, since May 1, 1990, failing to maintain health insur-
ance coverage, through a failure to make premium payments,
including contributions deducted from employees’ pay, there-
by repudiating provisions of the subsisting collective-bargain-
ing agreement.
5. The Respondent violated Section 8(a)(5) and (1) of the
Act by failing, on and after August 24, 1990, to answer the
Union’s repeated requests for contract renewal negotiations.
6. The above unfair labor practices are unfair labor prac-
tices having an effect on commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be or-
dered to cease and desist therefrom, and to take certain af-
firmative action deemed necessary to effectuate the policies
of the Act.
Having caused cancellation of the health insurance protec-
tion for employees in the collective-bargaining units de-
scribed above, it shall be recommended that the Respondent
be ordered to reestablish the contractual health insurance pro-
gram, and, until such restoration, to make the above employ-
ees whole for medical expenses personally and directly in-
curred by reason of the conduct, including reimbursement for
any health insurance premiums they have made to either
Blue Cross/Blue Shield or third party carriers in order to ob-
tain alternative coverage. See Bottom line Enterprises, 302
NLRB 373 (1991). It shall be recommended further that the
Respondent be ordered to refund to employees all moneys
withheld from their pay as premium contributions, which the
Respondent failed to remit to Blue Cross/Blue Shield. Fi-
nally, it is recommended that all moneys due under the terms
of this recommended Order shall include interest as author-
ized in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, MRS Printing, Inc., Watertown and
Gouverneur, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to abide by and adhere to its collective-bar-
gaining agreement by unilaterally failing to maintain the
health benefit program required on behalf of the following
employees, constituting appropriate units within the meaning
of Section 9(a) of the Act:
All production and maintenance employees employed
by the Respondent at its Gouverneur, New York facility
excluding all office clerical employees, sales employ-
ees, professional employees, guards, and supervisors as
defined by the Act.
All office clerical employees employed by the Re-
spondent at its Watertown and Gouverneur, New York
facilities, excluding all production and maintenance em-
ployees, sales employees, professional employees,
guards, and supervisors as defined by the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reinstate the health insurance program that covered
employees in the aforedescribed collective-bargaining units
as it existed prior to May 1, 1990.
(b) Make whole employees, with interest, as set forth in
the remedy section of this decision, for losses they sustained
by reason of the failure to maintain health insurance cov-
erage, including costs of alternative care such as actual medi-
cal expenses and premiums; and provide restitution for pre-
miums paid to the Respondent by employees which were not
remitted to the insurance carrier.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
295MRS PRINTING
4 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facilities in Watertown and Gouverneur,
New York, copies of the attached notice marked ‘‘Appen-
dix.’’4 Copies of the notice, on forms provided by the Re-
gional Director for Region 3, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.