The Connecticut Light & Power Co.

National Labor Relations Board - Board Decisions

May 8, 1972

196 N.L.R.B. 967 (N.L.R.B. 1972)

THE CONNECTICUT LIGHT & POWER COMPANY 967
The Connecticut Light & Power Company and System
Council U-24, International Brotherhood of Elec-
trical Workers , AFL-CIO, and its Local Unions 420,
753, 1045, 1175, 1126, 1317, and 1817. Case I-CA-
7650
Upon the entire record in the case, including the briefs of
counsel, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
May 8, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On February 2, 1972, Trial Examiner Robert E.
Mullin issued the attached Decision in this proceed-
ing. Thereafter, the Respondent filed exceptions and
a supporting brief, and the General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
the Respondent, The Connecticut Light & Power
Company, Hartford, Connecticut, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Trial Examiner: This case was heard
in Hartford, Connecticut, on October 18, 1971, pursuant to
charges duly filed and served.' The complaint, issued on
July 19, 1971, alleged that the Respondent had violated
Section 8(a)(1) and (5) of the Act. In its answer, duly filed,
the Respondent conceded certain facts as to its business
operations, but denied all allegations that it had committed
any unfair labor practices.
All parties appeared at the hearing and were given full
opportunity to examine and cross-examine witnesses, to in-
troduce relevant evidence, to argue orally at the close of the
hearing, and to file briefs. Oral argument was waived by the
parties. On December 6, 1971, the General Counsel and the
Respondent submitted able briefs.2
1 All charges were filed in 1971. The original was filed on May 14; an
amended charge was filed on May 17; and a second amended charge was
filed on May 25.
The Respondent, a Connecticut corporation, is a public
utility engaged in the production, distribution, and sale of
electricity and gas. Its princial office and place of business
are in the city of Berlin and the county of Hartford in the
State of its incorporation. In the course of its business oper-
ations, and at all times material herein, the Respondent has
caused large quantities of coal, oil, and gas to be purchased
and transported in interstate commerce from and through
various States of the United States other than the State of
Connecticut. In the course and conduct of its business as a
public utility the Respondent annually derives gross reve-
nue exceeding $250,000 from the sale and distribution of
electricity and gas. It likewise annually receives goods and
materials valued in excess of $50,000, at its various Connect-
icut locations, which are transported to said points directly
from States other than the State of Connecticut. Upon the
foregoing facts, the Respondent concedes, and the Trial
Examiner finds, that the Connecticut Light & Power Com-
pany is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Respondent concedes, and the Trial Examiner finds,
that System Council U-24, International Brotherhood of
Electrical Workers, AFL-CIO, and its Local Unions 420,
753, 1045, 1175, 1226, 1317, and 1817, herein collectively
known as the Union, are each labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
It is undisputed, and the Trial Examiner finds, that all
production and maintenance employees employed by the
Respondent at its Berlin and other Connecticut operations,
excluding office clericals, professional employees, guards
and supervisors, constitute an appropriate unit for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act. It is further undisputed, and the Trial Exam-
iner finds, that, at all times material herein, the Union has
been the exclusive representative of all employees in the
aforesaid unit for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment, and
other conditions of employment.
The Union and the Respondent have had a collective-
bargaining relationship for many years. For a considerable
period the Company has provided medical-surgical insur-
ance for its employees, pursuant to a noncontributory plan
for which the Company has paid the entire cost. During the
life of the current contract, and for several years prior there-
to, the Respondent has secured this health insurance from
the Aetna Life Insurance Company (herein Aetna). Accord-
ing to Robert P. Lee, vice president of the Respondent, for
several years before 1967, the Company secured this cover-
2 On December 6, 1971, the Respondent also filed a motion to correct
certain stenographic errors in the transcript. Copies of this motion having
been served on all other parties, no objections having been raised, and there
being merit in the proposed corrections, the Respondent's motion is hereby
granted in its entirety and the record corrected in accordance therewith.
196 NLRB No. 149
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
age from Blue Cross Connecticut Medical Service (herein
Blue Cross),3 and that for earlier years the Company alter-
nately awarded the contract first to Aetna and then to Blue
Cross.
The parties stipulated that in connection with the admin-
istration of a health benefit plan there are differences be-
tween the methods used by Aetna and those which are
customary with Blue Cross. During contract negotiations in
1969, the Union made various objections to the Aetna plan,
then in effect and, as a result, the Company secured certain
administrative changes in the Aetna plan. During the 1971
negotiations the Union advised the Respondent that it was
still unsatisfied with the administration of the Aetna pro-
gram.
In a letter dated May 8, 1971, the Union requested that
the Com any update and amend all medical benefits for
retirees from the bargaining unit. In a written response,
dated May 11, 1971, the Company stated that it did not
consider benefits for present retirees as a mandatory subject
of bargaining and that the Company did not intend to nego-
tiate voluntarily on this item. The Respondent at all times
thereafter has adhered to this position.4
During the 1971 negotiations for a new collective-bar-
gaining contract, the Company bargained as to the cover-
age, benefits, and administration of a medical-surgical plan
for its current employees, but insisted on reserving to itself
the selection of an insurance carrier for such plan. Thereaft-
er the Union filed unfair labor practice charges alleging that
the Respondent had violated Section 8(a)(5) and (1) of the
Act by its refusal to bargain as to medical benefits for
retirees, and by its refusal to bargain as to the selection of
the carrier from which it would secure medical-surgical in-
surance coverage for its current employees.
B. The Refusal To Bargain as to Retirees' Benefits
Subsequent to the filing of the briefs in the instant case
the Supreme Court of the United States issued its decision
in N.L.R.B. v. Pittsburgh Plate Glass Company, Chemical
Division, et al., 404 U.S. 157, wherein the Court held that
retirees are not "employees" within the meaning of the Act,
and that retirees' benefits are not a mandatory subject of
bargaining. That decision disposes of so much of the com-
plaint in the present case as alleges an unfair labor practice
by the Respondent in having refused to bargain as to medi-
cal benefits for its retirees. Accordingly, and in conformity
with Pittsburgh Plate Glass, it will be recommended that the
complaint be dismissed insofar as it alleges that the Respon-
dent violated the Act in this respect.
C. The Refusal To Bargain as to the Selection of an Insur-
ance Carrier
In the complaint, the General Counsel alleged that since
about May 3, 1971, the Respondent has violated Section
8(a)(5) and (1) by refusing to bargain with the Union about
the selection of an insurance carrier for employee medical
benefits. The Respondent admitted the facts on which this
allegation was based, but denied that it had engaged in any
3 During this period, while Blue Cross provided the basic medical-surgical
insurance ,. the Respondent secured major -medical , or extended coverage,
from the Hartford Accident and Indemnity Company.
4 Although the Respondent has never acceded to the Union's request that
it bargain as to medical benefits for retirees , in the past, the Respondent has
approved , unilaterally , medical benefits for current retirees in those instances
when medical benefits for future retirees were negotiated with the Union.
violation of the Act.
Mr. Lee, the Respondent's vice president for industrial
relations, testified that during negotiations for a new con-
tract in 1967, the Union's International representative on
the bargaining committee stated that the Union was not
concerned with the choice of a carrier, and that the member-
ship was only concerned with benefits. Whereas this com-
ment by a union representative in 1967 may have reflected
the attitude of the union leadership then, it is clear from the
present record that this was not the case during negotiations
in subsequent years.
Throughout collective-bargaining negotiations in 1971
the Respondent adhered to the position that, whereas it
would bargain with the Union as to medical-surgical bene-
fits for the employees, the selection of a carrier was to be
made by the Company at its discretion and that it had no
mandatory obligation to bargain as to that issue.5 Two years
earlier, in the collective-bargaining negotiations which cul-
minated in the execution of a contract in 1969, the Union
voiced various objections to the administration of the health
insurance program by Aetna, and the Company procured
certain changes in the administration of the plan.
At the hearing, Mr. Lee enumerated the principal factors
which the Respondent considered in its selection of an in-
surance carrier for the medical-surgical plan. These includ-
ed, according to him, (1) the carrier's reliability and
financial stability, (2) the manner and quality of service that
it will provide, (3) the manner or method whereby the car-
rier rocesses the employees' claims, and (4) the cost. Ac-
cording to Mr. Lee, the insurer's administration of the plan
and the manner in which it processed claims for benefits
were matters of vital concern to both the employees and to
the Company. Nevertheless, it was undisputed that whenev-
er, during the 1971 negotiations, the Union sought to ad-
vance its proposals for a change to another carrier the
Respondent maintained that it had the exclusive right to
determine unilaterally the selection of the insurer which
would provide those benefits.
The Act imposes on an employer and the representative
of the employees the duty to bargain in good faith as to
"wages, hours and other terms and conditions of employ-
ment" (Sec. 8(d)). It is well settled that group medical bene-
fits and insurance plans providing for these benefits are
encompassed within the terms "wages," or "conditions of
employment" and, as such, are matters about which an
employer is mandatorily required to bargain. N.L.R.B. v.
Inland Steel Company, 170 F.2d 247 (C.A. 7), cert. denied
336 U.S. 960; W. W. Cross, Inc. v. N.L.R.B., 174 F.2d 875,
878 (C.A. 1).
In its brief, the Company emphasizes the noncontributo-
ry nature of the medical-surgical plan which the Respon-
dent provides. This, however, is immaterial to the issue as
to whether the Company must bargain as to such a plan.
The Board has held that, as to employee health insurance
programs, no distinction should be made on the basis of
whether they are contributory or noncontributory. Sylvania
Electric Products, Inc., 154 NLRB 1756, 1760-61, enfd. 358
F.2d 591 (C.A. 1); W. W. Cross, Inc., 77 NLRB 1162, 1164,
fn. 5, enfd. 174 F.2d 875 (C.A. 1).
In their briefs, both the General Counsel and the Respon-
dent have discussed Wisconsin Southern Gas Company, 173
5 It was undisputed that during the 1971 negotiations, and as a result of
demands made by the Union, the Company secured changes in the existing
Aetna policy in the area of coverage and benefits. However, at the hearing,
the Respondent conceded that it would not rely on this fact to allege that the
Union waived the contention that it had a right to bargain as to the selection
of the insurance carrier.
THE CONNECTICUT LIGHT & POWER COMPANY
NLRB 480. In that case the employer had in effect a non-
contributory sickness and hospitalization plan with Blue
Cross as the carrier. In the middle of the contract term, the
employer, without notice to the union, canceled its contract
with Blue Cross and entered into an arrangement with Pa-
cific Mutual as the carrier. In so doing, it also changed
various benefits under the program. The Board found that:
The change in the carrier of its sickness and hospitali-
zation insurance was not a minor matter, for as repre-
sentatives of [both carriers] testified at the hearing, the
availability of benefits depends not only on the lan-
guage of the insurance policy but also upon the manner
in which the general language of the policy is construed
and administered by the carrier. (Id., at 483)
Thereafter, in adopting the Trial Examiner's Decision, the
Board further held that:
The Company's action on December 1, 1967, therefore,
in changing carriers and benefits involved in its sick-
ness and hospitalization program without notice to the
Union and without observing the requirements of Sec-
tion 8(d) of the Act, clearly violated Section 8(a)(5) and
(1) of the Act. (Id., at 484)
In its brief, the Respondent contends that the significance
of Wisconsin Southern is limited to those situations where
the Respondent has engaged in extensive violations of Sec-
tion 8(a)(1). That contention, however, is not supported by
a careful reading of the decision. It is the conclusion of the
Trial Examiner that Wisconsin Southern clearly held that the
employer there violated Section 8(a)(5) and (1) of the Act
both by unilaterally changing some of the employee medical
insurance benefits and by unilaterally selecting a different
carrier to provide those benefits.
In a more recent case, a succession of collective-bargain-
ing agreements between an employer and a union provided
for a contributory health insurance plan with Aetna, over a
period of many years, as the insurance carrier. On August
1, 1970, without notice to the Union, the employer canceled
the policy with Aetna and announced that thereafter it
would provide the same benefits to the employees through
a self-insured program that would be administered by a
newly established section in the employer's corporate head-
quarters. The Board held that in unilaterally changing from
Aetna as the carrier for its hospital-health care insurance
and substituting a self-insured plan, the employer violated
Section 8(a)(5) and (1) of the Act. Bastian-Blessing, Division
of Golconda Corporation, 194 NLRB No. 95.
The method used in the processing of employee claims
under a medical-surgical policy, the practices and proce-
dures of the insurance carrier in allowing or disallowing
claims, and the dispatch and efficiency of its personnel in
processing such claims are factors connected with a carrier's
administration of a health insurance program which inti-
mately effect the employees under a contract and are mat-
ters about which the employees have cause to be greatly
concerned. For this reason, it is difficult to accept the
Respondent's argument that whereas an employer must
bargain as to the benefits which may be provided under a
health insurance program, as well as the manner in which
the program will be administered, the employer may insist
that the bargaining stop short of involving the actual selec-
tion of a carrier and leave that matter to its sole discretion.
In view of the holding in Wisconsin Southern and Bastian
Blessing, it is the conclusion of the Trial Examiner that the
employer is obligated to bargain as to the selection of a
carrier and that in refusing to do so in the present case, the
Respondent violated Section 8(a)(5) and (1) of the Act. Cf.,
Wabana, Inc., 146 NLRB 1162, 1167, 1172.
CONCLUSIONS OF LAW
969
1. The union is the exclusive collective-bargaining repre-
sentative of the Company's employees in an appropriate
bargaining unit consisting of all production and mainte-
nance employees employed at its Berlin and other Connecti-
cut operations, excluding all office clericals, professional
employees, guards and supervisors as defined in the Act.
2. By refusing to bargain with the Union, on and after
May 3, 1971, with respect to the selection of an insurance
carrier for the employee medical benefits plan in the afore-
said unit, the Respondent violated Section 8(a)(5) and (1) of
the Act.
3. The Respondent did not violate Section 8(a)(5) and (1)
of the Act by refusing to bargain as to benefits for retirees.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company engaged in unfair labor
practices, it will be recommended that the Respondent be
ordered to cease and desist from such unfair labor practices.
Having found that the Respondent unlawfully refused to
bargain collectively with the Union as to the selection of an
insurance carrier for employee medical benefits, the Trial
Examiner will recommend that the Respondent be ordered
to bargain collectively, upon request, with the Union as to
this matter and, if an understanding is reached, embody
said understanding in a signed agreement.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, the
Trial Examiner hereby issues the following recommend-
ed:6
ORDER
The Connecticut Light & Power Company, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with the
Union as the exclusive representative of its employees in the
appropriate unit described above with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
(b) Refusing to bargain collectively as to the selection of
an insurance carrier for its employee medical-surgical bene-
fits plan, or making unilateral changes in insurance carriers,
without first reaching agreement with the above-named Un-
ion concerning such changes.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their right
to self-organization, to form labor organizations, to join or
assist the above-named Union, or any other labor organiza-
tion, to bargain collectively through representatives of their
own choosing and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, and to refrain from any or all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Upon request from the Union , bargain in good faith
as to the selection of an insurance carrier for the
Respondent 's employee medical-surgical benefits plan and,
if an understanding is reached , embody such understanding
in a signed agreement.
(b) Post at all locations throughout its system where no-
tices to employees are customarily posted , the attached no-
tice marked `Appendix ."7 Copies of the notice , on forms
provided by the Regional Director for Region 1, after being
duly signed by the Respondent 's authorized representative,
shall be posted by it or 60 consecutive days thereafter.
Reasonable steps shall be taken by the Respondent to en-
sure that said notices are not altered , defaced , or covered by
any other material.
(c) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply here-
with.8
IT IS ALSO ORDERED that the complaint be dismissed insofar
as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively in good
7 In the event that the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
order of the National Labor Relations Board."
faith with System Council U-24, International Brother-
hood of Electrical Workers, AFL-CIO, and its Local
Unions 420, 755, 1045, 1175, 1226, 1317, and 1817, as
the exclusive representative of the employees in the
bargaining unit described below:
All-production and maintenance employees employed
at our Berlin and other Connecticut operations , exclud-
ing all office clericals , professional employees , guards
and supervisors.
WE WILL, upon request, meet and bargain collectively
with the aforesaid Union as your exclusive representa-
tive in the appropriate unit regarding the selection of
an insurance carrier for our employee medical-surgical
plan, and sign our name to any agreement containing
any understanding reached.
Dated By
THE CONNECTICUT LIGHT & POWER
COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Seventh
Floor, Bulfinch Building, 15 New Chardon Street, Boston,
Massachusetts 02114, Telephone 617-223-3300.
8 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read : "Notify
the said Regional Director , in writing , within 20 days from the date of this
Order, what steps the Respondent has taken to comply herewith."