UPS Supply Chain Solutions, Inc.

National Labor Relations Board - Board Decisions

May 24, 2016

364 NLRB No. 8 (N.L.R.B. 2016)

364 NLRB No. 8
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
UPS Supply Chain Solutions, Inc. and International
Brotherhood of Teamsters, Local Union No. 769.
Case 12–CA–113671
May 24, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On November 28, 2014, Administrative Law Judge Ira
Sandron issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief. The General Counsel
filed cross-exceptions and a supporting brief, and the
Respondent 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,1 findings,2 and conclusions
and to adopt the recommended Order as modified and set
forth in full below.3
We affirm the judge’s findings, for the reasons he
states, that the Respondent violated Section 8(a)(5) and
(1) of the Act by announcing and implementing changes
to its Flexible Benefits Plan (Plan) without affording the
Union prior notice and an opportunity to bargain.4 Con-

1 The Respondent has excepted to some of the judge’s rulings dur-
ing the hearing. After carefully reviewing the record, we find that the
judge did not abuse his discretion.
2 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.
3 Because the record suggests that a significant number of the Re-
spondent’s employees speak Spanish, we will order the Respondent to
post the notice in English, Spanish, and such other languages as the
Regional Director determines are necessary to fully communicate with
employees. We shall modify the judge’s recommended Order to reflect
this modification, and to conform to Board's standard remedial lan-
guage. See O.G.S. Technologies, Inc., 356 NLRB 642, 648 (2011).
We shall substitute a new notice to conform to the Order as modified.
4 In affirming the judge’s findings, we do not rely on his citation to
General Die Casters, 359 NLRB No. 7 (2012), because the Supreme
Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014),
rendered that decision invalid. We do, however, rely on the judge’s
citation to Rose Fence, Inc., 359 NLRB No. 6 (2012), which was incor-
porated by reference in 361 NLRB No. 134 (2014).
Additionally, we agree with the judge, for the reasons he states, that
Courier-Journal, 342 NLRB 1093 (2004), is distinguishable from the
trary to the dissent, we agree with the judge that the ap-
propriate remedy includes the requirement that the Re-
spondent rescind its unlawful changes to the Plan, if the
Union so requests. It is well established that the remedi-
al aim of a Board order is “restoration of the situation, as
nearly as possible, to that which would have obtained but
for” the unfair labor practice. Phelps Dodge Corp. v.
NLRB, 313 U.S. 177, 194 (1941). Accordingly, when an
employer violates Section 8(a)(5) by changing its em-
ployees’ terms and conditions of employment without
affording their bargaining representative an opportunity
to bargain, the standard affirmative remedy is to order
the employer to rescind its unlawful unilateral changes
on the union's request and, as the judge found, to “main-
tain [the terms and conditions of employment that existed
prior to the changes] until the [u]nion agrees to the
changes, the parties bargain to a collective-bargaining
agreement, or they reach an overall valid impasse.” See
Goya Foods of Florida, 356 NLRB 1461, 1462 (2011)
(standard affirmative remedy for unlawful unilateral
changes to the terms and conditions of employment is
immediate rescission of changes and return to status quo
ante); Larry Geweke Ford, 344 NLRB 628, 628 (2005)
(“The standard remedy for unilaterally implemented
changes in health insurance coverage is to order the res-
toration of the status quo ante.”). An employer is also
required to make employees whole for expenses incurred
as a result of the unlawful change or changes. Goya
Foods of Florida, supra.
Although the dissent agrees that the Respondent un-
lawfully implemented changes to its Plan,5 he would not

present case. See also Mackie Automotive Systems, 336 NLRB 347,
349 (2001) (“It is well settled that an employer’s past practices prior to
the certification of a union as the exclusive collective-bargaining repre-
sentative of the employees do not relieve the employer of the obligation
to bargain with the certified union about the subsequent implementation
of those practices that entail changes in wages, hours, and other terms
and conditions of employment of unit employees.”). Chairman Pearce
and Member Hirozawa did not participate in Courier-Journal, supra,
and express no view regarding the Board’s findings therein.
5 Citing his partial dissent in Centinela Hospital Medical Center,
363 NLRB No. 44, slip op. at 4 fn. 11 (2015), the dissent argues that
the Board cannot find that the Respondent independently violated Sec.
8(a)(5) and (1) when it announced the changes to the Plan. We disa-
gree. As we explained in Centinela Hospital Medical Center, supra,
slip op. at 3 fn. 9, the Respondent’s announcements did not indicate
that negotiations over the Plan were ongoing; instead, the Respondent
presented the changes to the Plan as a fait accompli. The announce-
ments thereby signaled to the employees that the Respondent had no
intention of dealing with the Union over the Plan. As the Board stated
in ABC Automotive Products Corp., 307 NLRB 248 (1992), the damage
to the bargaining relationship had been accomplished by the employer's
message to employees that the employer “was taking it on itself to set
this important term and condition of employment, thereby emphasizing
to the employees that there is no necessity for a collective bargaining
agent.” Id. at 250 (internal quotation marks omitted). Accordingly,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
require the Respondent to rescind those modifications,
reasoning that the Respondent should only be required to
give the Union an opportunity to bargain regarding the
changes. Specifically, our colleague finds that this case
falls under the “discrete recurring event” exception to the
“overall impasse” rule of Bottom Line Enterprises, 302
NLRB 373 (1991), enfd. mem. 15 F.3d 1087 (9th Cir.
1994), which the Board articulated in Stone Container
Corp., 313 NLRB 336 (1993). We need not, however,
address our colleague’s discussion of Stone Container.
The Respondent did not raise the issue before the judge,
the judge did not apply Stone Container, and no party
argues on exceptions that the judge erred in failing to do
so. Thus, the parties did not litigate whether the em-
ployer had a past practice involving a discrete recurring
event, nor did the judge’s decision address whether the
changes to the Plan were a discrete, annual recurring
event.6 Accordingly, the argument our colleague ad-
vances in this regard is not properly before the Board for
consideration. See Ozburn-Hessey Logistics, LLC, 362
NLRB No. 180, slip op. at 1 fn. 4 (2015); Avne Systems,
Inc., 331 NLRB 1352, 1354 (2000) (Board Member’s
dissenting argument not made by excepting party is not
procedurally before the Board).
Finally, our colleague suggests that the Respondent
might be unable to comply with the rescission remedy.
However, at the compliance phase of this proceeding, the
Respondent will have the opportunity to present evidence
that was not available at the time of the unfair labor prac-
tice hearing to demonstrate that rescinding the changes to
the Plan and restoring the status quo ante would impose
an undue burden. See Larry Geweke Ford, 344 NLRB at
629 (employer permitted to litigate in compliance wheth-
er it would be unduly burdensome to restore the health
insurance coverage in effect prior to the unilateral
change); Gaetano & Associates, 344 NLRB 531, 534
(2005), enfd. 183 F.App’x 17 (2006); Lear Siegler, Inc.,
295 NLRB 857, 861–862 (1989).

and contrary to our dissenting colleague, the Respondent’s announce-
ments violated Sec. 8(a)(5). See also Wire Products Mfg. Corp., 326
NLRB 625, 627 (1998), enfd. mem. sub nom. NLRB v. R.T. Blanken-
ship & Associates, Inc., 210 F.3d 375 (7th Cir. 2000).
6 Compare this case with Nabors Alaska Drilling, Inc., 341 NLRB
610, 612 (2004), and St. Mary’s Hospital of Blue Springs, 346 NLRB
776, 782 (2006), where the employers in fact argued that under Stone
Container, they were privileged to unilaterally implement changes to
health insurance. See also Beacon Sales Acquisition, Inc. d/b/a Quality
Roofing Supply Co., 357 NLRB 789, 789 (2011) (rejecting the employ-
er’s argument, based on Stone Container, that it was privileged to im-
plement the health insurance premium increases because the employer
had not established that an increase in employees’ health insurance
premiums was a discrete, annually recurring event).
ORDER
The National Labor Relations Board orders that the
Respondent, UPS Supply Chain Solutions, Inc., Miami,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with International Brotherhood of Teamsters,
Local Union No. 769 (the Union), as the exclusive repre-
sentative of employees in the following appropriate unit
by unilaterally announcing and implementing changes in
health insurance benefits:
All regular full-time and part-time warehouse opera-
tions employees employed in the following job classifi-
cations: warehouse II and III; senior warehouse; inven-
tory control representatives; inventory control associ-
ates II; customer support representatives I; customer
support representatives II; order processing representa-
tives II and III; customer care representatives III; and
administrative assistant II . . .; excluding all other em-
ployees including guards and supervisors as defined in
the Act.
(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
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment, notify and,
on request, bargain collectively and in good faith with
the Union as the exclusive representative of its employ-
ees in the appropriate unit.
(b) On request by the Union, restore the health insur-
ance benefits that existed prior to the unilateral changes
that were implemented on January 1, 2014, and maintain
those terms until the Union agrees to the changes, the
parties bargain to a collective-bargaining agreement, or
they reach an overall valid impasse.
(c) Make employees whole by reimbursing them, in
the manner set forth in the remedy section of the deci-
sion, for any loss of benefits and any additional expenses
they incurred as a result of the unilateral changes in
health insurance benefits that were implemented on Jan-
uary 1, 2014.
(d) Within 14 days after service by the Region, post at
its Miami, Florida facility copies of the attached notice
marked “Appendix.”7 Copies of the notice, on forms

7 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-
UPS SUPPLY CHAIN SOLUTIONS, INC. 3
provided by the Regional Director for Region 12, in Eng-
lish, Spanish, and such other languages as the Regional
Director determines are necessary to fully communicate
with employees, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 August 26, 2013.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 12 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. May 24, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
I agree with my colleagues that the Respondent violat-
ed Section 8(a)(5) and (1) of the Act when it modified its
Flexible Benefits Plan (Plan) on January 1, 2014, without
first giving the Union notice and the opportunity to bar-
gain regarding the planned changes. However, I believe
my colleagues have devised an inappropriate remedy for
this violation. The majority orders the Respondent to
rescind the modifications to the Plan, but this remedy is
premised on finding that the Respondent was required

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
not only to give the Union notice and opportunity to bar-
gain over the planned changes, but also to refrain from
making changes to the Plan until bargaining resulted in
an overall impasse or agreement. As explained below,
this case falls within the Stone Container exception to
the “overall impasse or agreement” requirement.1 There-
fore, because the Respondent would have been permitted
to implement the changes even without an overall im-
passe or agreement, the appropriate remedy is to require
the Respondent (among other things) to engage in bar-
gaining regarding the changes, without requiring it to
rescind those changes. Moreover, I believe the Board
must recognize that this case involves approximately 40
bargaining unit employees, the Plan in question provides
healthcare benefits for 75,000 employees, and it is not
reasonable to expect that the Respondent can rescind
benefit changes regarding only 40 participants. To the
extent that make-whole relief is deemed appropriate, I
believe the Respondent should be required to make bar-
gaining unit employees whole for any increased costs or
expenses associated with the changes, with the make-
whole period running from the date the changes were
implemented through the time that it has given the Union
the opportunity for bargaining.
Facts
The Respondent is a subsidiary of UPS, which pro-
vides healthcare and other benefits through its Flexible
Benefits Plan to about 75,000 nonunion employees, in-
cluding the Respondent’s approximately 10,000 employ-
ees. UPS annually reviews and modifies the Plan, and it
sends a summary of material modifications (SMM) to
employees. If UPS makes major modifications to the
Plan, it sends a new summary plan description (SPD) to
employees. Every year from 2004 to 2012, employees
received either an SMM or an SPD in September or Oc-
tober, and the modifications to the Plan became effective
on January 1 of the following year.2 In April 2013, the
Union was certified as the bargaining representative of a
unit of approximately 40 of the Respondent’s employees.
Negotiations for an initial collective-bargaining agree-
ment commenced in May. Meanwhile, UPS conducted
its 2013 annual review of the Plan, just as it had every

1 Stone Container Corp., 313 NLRB 336 (1993).
2 An SPD was sent in 2009. On three occasions during the 2004–
2012 time period, UPS sent an additional SMM to employees at a time
other than September or October, and the changes summarized in those
SMMs became effective on a date other than January 1 of the following
year. However, even when UPS has made additional changes to the
Plan at other times during the year, it has still sent an SMM to employ-
ees during either September or October, and the changes to the Plan
announced in those SMMs became effective on January 1 of the fol-
lowing year.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
year since at least 2004; the Respondent announced the
modifications to the Plan in August; and the Respond-
ent’s employees received an SMM setting forth those
modifications in October. The Respondent implemented
those modifications on January 1, 2014. Before doing
so, it did not give the Union advance notice of the pro-
posed modifications and an opportunity to request bar-
gaining concerning them.
Discussion
It is well established that healthcare benefits are
among the terms and conditions of employment that are
considered mandatory subjects of bargaining, and it is an
unfair labor practice if an employer unilaterally imple-
ments changes in healthcare benefits affecting represent-
ed employees without giving reasonable notice to the
union and an opportunity for bargaining. NLRB v. Katz,
369 U.S. 736, 743 (1962); Litton Financial Printing Di-
vision v. NLRB, 501 U.S. 190, 198 (1991).
Under the Board’s decision in Bottom Line Enterpris-
es, if an employer is engaged in negotiations for a collec-
tive-bargaining agreement (CBA), it must not only pro-
vide notice and the opportunity for bargaining over pro-
posed changes in wages or benefits, the employer must
refrain from making those changes until bargaining has
resulted in an overall impasse or a new CBA.3 However,
the facts of this case bring it within an exception to the
“overall impasse” rule, which the Board articulated in
Stone Container, supra. Under the Stone Container ex-
ception, an employer is not required to refrain from im-
plementing a proposed change even though an overall
impasse has not been reached in contract negotiations,
where the employer had a past practice involving a recur-
ring “discrete event,” such as an “annually scheduled”
change in wages or benefits. Id. at 336. In these circum-
stances, the employer’s only obligation is to provide the
union notice and the opportunity for bargaining, and the
Act does not require the employer to refrain from im-
plementing the change at the time the “discrete event” is

3 302 NLRB 373, 374 (1991), enfd. mem. 15 F.3d 1087 (9th Cir.
1994). The Board in Bottom Line Enterprises held that “when . . . the
parties are engaged in negotiations, an employer's obligation to refrain
from unilateral changes extends beyond the mere duty to give notice
and an opportunity to bargain; it encompasses a duty to refrain from
implementation at all, unless and until an overall impasse has been
reached on bargaining for the agreement as a whole.” This rule is
subject to certain exceptions, however, including the Stone Container
exception applicable here. See also RBE Electronics of S.D., 320
NLRB 80 (1995). Because I believe the instant case falls within the
Stone Container exception, I do not reach and express no view as to
whether Bottom Line Enterprises and RBE Electronics were correctly
decided.
scheduled to occur. Id.; see also Brannan Sand & Gravel
Co., 314 NLRB 282 (1994).4
This was precisely the situation the Respondent faced
here. Since at least 2004, UPS has annually reviewed
and modified the Plan and notified the Respondent’s em-
ployees of those modifications in September or October,
and the modifications became effective on the first of
January. In other words, modifying the Plan was a dis-
crete recurring event and an established past practice. In
2013, a unit of the Respondent’s employees chose union
representation. As the time approached for the Respond-
ent to notify its employees of the modifications to the

4 I agree with the judge and my colleagues that this case is distin-
guishable from Courier-Journal, 342 NLRB 1093 (2004), and it is
likewise distinguishable from E.I. du Pont de Nemours & Co. v. NLRB,
682 F.3d 65 (D.C. Cir. 2012). In Courier-Journal and du Pont, the
employees were represented by a union during the period of time when
the employer established a past practice of making annual changes to
certain benefit plans, which at least colorably permitted the employer to
implement similar changes without giving the union any notice or the
opportunity for bargaining. Here, by contrast, the past practice was
established during a period of time when employees were unrepresent-
ed. Consequently, the past practice does not provide a basis for the
employer to unilaterally implement similar changes without at least
giving the newly certified union notice and the opportunity for bargain-
ing. However, the Board in these circumstances applies Stone Contain-
er, which, as explained in the text, permits the employer to implement a
regularly scheduled change at the requisite time, even though bargain-
ing has not proceeded to an overall impasse or a new CBA. Although
the judge did not apply Stone Container and the parties have not ex-
cepted to his failure to do so, I believe the Board must apply Stone
Container here as controlling law. See Kamen v. Kemper Financial
Services, 500 U.S. 90, 99 (1991) (stating that “the court is not limited to
the particular legal theories advanced by the parties, but rather retains
the independent power to identify and apply the proper construction of
governing law”). I also note that the General Counsel’s answering brief
acknowledges that Stone Container may be applicable in the instant
case.
Additionally, I do not reach the question whether—separate from
whether the Respondent unlawfully implemented changes to the Plan
unilaterally within the meaning of the Supreme Court’s decision in
Katz, 369 U.S. at 743—the Respondent may have unlawfully violated
its duty to bargain upon request regarding the benefit changes. See id.
(“A refusal to negotiate in fact as to any [mandatory] subject . . . , and
about which the union seeks to negotiate, violates [Sec.] 8(a)(5) . . . .”);
J. H. Allison & Co., 70 NLRB 377, 378 (1946) (employer violates the
Act by refusing to engage in bargaining over a mandatory subject as to
which the union requests bargaining), enfd. 165 F.2d 766 (6th Cir.),
cert. denied 335 U.S. 814 (1948). The complaint alleged only that the
Respondent violated Sec. 8(a)(5) by unilaterally implementing the
benefit changes. It did not allege that the Respondent unlawfully re-
fused to engage in bargaining upon request.
Finally, unlike my colleagues, I believe the Board cannot appropri-
ately find—in addition to finding that the implementation of the benefit
changes on January 1, 2014 violated Sec. 8(a)(5)—that the Respondent
independently violated Sec. 8(a)(5) and (1) when it announced those
changes in August 2013. As I discussed in more detail in my partial
dissent in Centinela Hospital Medical Center, 363 NLRB No. 44, slip
op. at 4 fn. 11 (2015), I do not believe that the mere announcement of a
change constitutes an independent violation of Sec. 8(a)(5) separate and
apart from the implementation of the change itself.
UPS SUPPLY CHAIN SOLUTIONS, INC. 5
Plan anticipated to become effective January 1, 2014, the
Respondent and the Union were engaged in negotiations
for an initial collective-bargaining agreement. Under
well-settled precedent, the Respondent’s obligation was
to provide the Union notice of the upcoming discrete
recurring event and an opportunity to request bargaining
concerning the proposed modifications to the Plan. See,
e.g., St. Mary’s Hospital of Blue Springs, 346 NLRB
776, 776 (2006); Saint-Gobain Abrasives, Inc., 343
NLRB 542, 542 (2004), enfd. 426 F.3d 455 (1st Cir.
2005); Nabors Alaska Drilling, Inc., 341 NLRB 610, 613
(2004); Brannan Sand & Gravel, supra.5 The Respond-
ent did not do so, and therefore it violated Section
8(a)(5).6 However, under the well-established Stone
Container rule, the Respondent’s obligation was to pro-
vide notice and the opportunity for bargaining regarding
the planned benefit changes, but it had no obligation to

5 In addition to being well settled in Board precedent, the Stone
Container exception to the “overall impasse” rule of Bottom Line En-
terprises represents a reasonable accommodation of competing inter-
ests. Where an employer has an established past practice of modifying
wages or benefits at fixed intervals of time, that past practice is itself a
condition of employment, and the employer would violate Sec. 8(a)(5)
if it changed that employment condition by discontinuing the practice
after its employees selected a bargaining representative. See Daily
News of Los Angeles, 315 NLRB 1236 (1994), enfd. 73 F.3d 406 (D.C.
Cir. 1996), cert. denied 519 U.S. 1090 (1997). Given this reality, it
would be unfair to subject to the “overall impasse” rule the employer’s
ability to maintain the status quo of its past practice. Suppose its em-
ployees selected a union to represent them 1 month before the date on
which the employer would be required to adjust wages or benefits
pursuant to its past practice. To hold that such an employer could not
make that adjustment unilaterally absent an overall impasse in bargain-
ing would essentially force the employer to commit an unfair labor
practice no matter what it does, since bargaining to a complete initial
collective-bargaining agreement or an overall impasse in 1 month is
virtually impossible. See Lee Lumber & Building Material Corp., 334
NLRB 399, 402 (2001) (stating that it generally takes approximately 6
months “for employers and unions to negotiate renewal collective-
bargaining agreements” (emphasis added)), enfd. 310 F.3d 209 (D.C.
Cir. 2002). On the other hand, where a past practice has been estab-
lished during a time when employees were unrepresented, absolving the
employer of any duty to bargain regarding an upcoming annual wage or
benefits adjustment while negotiations for an initial contract are ongo-
ing would fail to give any weight to the fact that a new reality was
inaugurated when those employees chose a union to represent them. In
Stone Container, the Board found a reasonable middle ground between
these extremes by holding that an employer in the Respondent’s situa-
tion must give the union an opportunity to bargain concerning the up-
coming discrete, recurring iteration of its past practice, but the parties
need not reach overall impasse in bargaining for an entire initial agree-
ment before the employer may do what it must do in order to avoid
violating Sec. 8(a)(5) by discontinuing its established past practice.
6 As the judge found, the Union became aware of the proposed
changes to the Plan sometime in September 2013. But even assuming
the Union’s awareness of the proposed changes satisfied the “prior
notice” requirement, the Respondent still violated Sec. 8(a)(5) by fail-
ing to provide the Union an opportunity to bargain before implementing
the changes at issue here.
refrain from making the changes at the regularly sched-
uled time when they had been implemented in the past.
Accordingly, the appropriate remedy for the Respond-
ent’s violation is an order requiring the Respondent to
give the Union an opportunity to bargain regarding the
changes implemented on January 1, 2014. I believe it is
inappropriate for the Board to require rescission of the
changes, i.e., to require the Respondent to “restore the
health insurance benefits that existed prior to the unilat-
eral changes that were implemented on January 1, 2014.”
In my view, a rescission order impermissibly makes the
Board’s order punitive rather than remedial because re-
scission is more expansive than the Respondent’s viola-
tion.7 Board precedent establishes that rescission is not
warranted for a Stone Container violation of Section
8(a)(5). See Brannan Sand & Gravel, supra at 287
(holding that “ordering recission [sic] of the changes
would be inappropriate”).8 Moreover, as noted above, I
believe the Board must recognize that this case involves
approximately 40 bargaining unit employees, the Plan in
question provides healthcare benefits for 75,000 employ-
ees, and it is not reasonable to expect that the Respond-
ent can rescind benefit changes regarding only 40 partic-
ipants. To the extent that make-whole relief is deemed
appropriate, I believe the Respondent should be required
to make bargaining unit employees whole for any in-
creased costs or expenses associated with the changes,
with the make-whole period running from the date the
changes were implemented through the time that it has
given the Union a reasonable opportunity for bargain-
ing.9

7 The Board’s remedial authority, though broad, is strictly limited to
measures that are remedial, not punitive. Republic Steel Corp. v.
NLRB, 311 U.S. 7, 11–12 (1940) (citing Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 235–236 (1938)); NLRB v. Pennsylvania Grey-
hound Lines, 303 U.S. 261, 267–268 (1938)). See also Pacific Beach
Hotel, 361 NLRB No. 65, slip op. at 19 (2014) (Member Miscimarra,
concurring in part and dissenting in part).
8 Although the Board in Brannan Sand & Gravel, supra at 282,
failed to amend the remedy section of the judge’s decision, which re-
quired the respondent to bargain to agreement over the changes to the
health plan, a collective-bargaining agreement, or an overall impasse,
id. at 287, I believe that the Board inadvertently failed to do so. The
judge had not considered the impact of Stone Container on his remedial
order because the Board issued Stone Container only after the judge
issued his decision in Brannan Sand & Gravel. See id. at 282. Further,
the Board in Brannan Sand & Gravel specifically stated that “contrary
to the judge, [we find] that the [r]espondent was not obligated to re-
frain from implementing its proposed changes until an impasse was
reached on collective-bargaining negotiations as a whole.” Id. (em-
phasis added).
9 I agree with my colleagues that the Respondent should be ordered
to post the notice in English, Spanish, and such other languages as the
Regional Director determines are necessary to fully communicate with
employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Conclusion
For the above reasons, I respectfully concur in part and
dissent in part.
Dated, Washington, D.C. May 24, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with International Brotherhood of
Teamsters, Local Union No. 769 (the Union), as the ex-
clusive representative of employees in the following ap-
propriate unit by unilaterally announcing and implement-
ing changes in health insurance benefits:
All regular full-time and part-time warehouse opera-
tions employees employed in the following job classifi-
cations: warehouse II and III; senior warehouse; inven-
tory control representatives; inventory control associ-
ates II; customer support representatives I; customer
support representatives II; order processing representa-
tives II and III; customer care representatives III; and
administrative assistant II . . .; excluding all other em-
ployees including guards and supervisors as defined in
the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, before implementing any changes in your
wages, hours, or other terms and conditions of employ-
ment, notify and, on request, bargain collectively and in
good faith with the Union as your exclusive bargaining
representative.
WE WILL, on request by the Union, restore the health
insurance benefits that existed prior to the unilateral
changes that were implemented on January 1, 2014, and
maintain those terms until the Union agrees to the chang-
es, the parties bargain to a collective-bargaining agree-
ment, or they reach an overall valid impasse.
WE WILL make employees whole by reimbursing them,
in the manner set forth in the remedy section of the deci-
sion, for any loss of benefits and any additional expenses
they incurred as a result of the unilateral changes in
health insurance benefits that were implemented on Jan-
uary 1, 2014.
UPS SUPPLY CHAIN SOLUTIONS, INC.
The Board’s decision can be found at
www.nlrb.gov/case/12–CA–113671 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street SE, Washington, D.C.
20570, or by calling (202) 273-1940.
Marinelly Maldonado and John F. King, Esqs., for the General
Counsel.
Jonathan L. Sulds and Angela Ramon, Esqs. (Greenberg
Taurig, LLP), for the Respondent.
Noah Scott Warman and Michael Gilman, Esqs. (Sugarman &
Susskind, PA), for the Charging Party.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This case is be-
fore me on a January 31, 2014, complaint and notice of hearing
(the complaint) stemming from unfair labor practice charges
that International Brotherhood of Teamsters, Local Union No.
769 (the Union) filed against UPS Supply Chains Solutions,
Inc. (the Respondent or SCS) relating to the bargaining unit at
its Miami, Florida facility (the facility).
I conducted a trial in Miami, Florida, on September 12 and
October 14, 2014, at which I afforded the parties full opportuni-
ty to be heard, to examine and cross-examine witnesses, and to
introduce evidence.
Issues
(1) Following the Union’s certification on April 29, 2013, as
UPS SUPPLY CHAIN SOLUTIONS, INC. 7
the representative of employees at the facility, did the Re-
spondent in August 2013 announce to those employees
changes to their health insurance benefits, effective on Janu-
ary 1, 2014, without affording the Union prior notice and an
opportunity to bargain; more specifically (a) no longer offer-
ing health insurance benefits to employed spouses with alter-
native health insurance coverage, and (b) charging smokers an
additional premium.
(2) Did the Respondent implement those changes on January
1, 2014, without affording the Union notice and an opportuni-
ty to bargain?
Witnesses
The General Counsel’s witnesses were Juan Nunez, a unit
employee and member of the Union’s negotiating committee;
and Eduard Valero, the Union’s business agent.
The Respondent called B. J. Dorfman, a UPS manager; Jen-
ny Schaffer, an in-house attorney for UPS; and Erik Rodriguez,
an outside counsel for UPS.
Credibility resolution is not an important factor in this case
since there is little disagreement about the underlying facts.
Any differences in accounts of what took place during negotia-
tions are not determinative.
Facts
Based on the entire record, including testimony and my ob-
servations of witness demeanor, documents, and stipulations,
and the thoughtful posttrial briefs that the General Counsel and
the Respondent filed, I find the following.
At all times material, the Respondent, a subsidiary of UPS,
has been a Delaware corporation with its principal office and
place of business in Atlanta, Georgia, and with places of busi-
ness located throughout the United States, including the facili-
ty, where it is engaged in the business of providing transporta-
tion and freight services. The Respondent has admitted juris-
diction as alleged in the complaint, and I so find.
On April 29, 2013,1 the Union was certified as the collective-
bargaining representative of the following facility employees:
All regular full-time and part-time warehouse operations em-
ployees employed in the following job classifications: ware-
house II and III; senior warehouse; inventory control repre-
sentatives; inventory control associates II; customer support
representatives I; customer support representatives II; order
processing representatives II and III; customer care represent-
atives III; and administrative assistant II . . . ; excluding all
other employees including guards and supervisors as defined
in the Act.
SCS has approximately 10,000 employees, of whom about 40
are in the unit.
The Respondent’s Past Practice Prior to the
Union’s Certification
UPS provides a flexible benefits program to about 75,000
nonunion employees nationwide, including SCS. Each year,
with the assistance of expert consultants, UPS reviews its bene-
fits program in the context of health care benefits offered in the

1 All dates hereinafter occurred in 2013, unless otherwise indicated.
industry.
By law, the Respondent sends out to employees an an-
nouncement of changes in health care benefits, called summary
of material modifications (SMMs). SMMs have been issued in
September or October when changes will be implemented the
following January 1.2 In the event of major changes, SCS is-
sues a summary plan description (SPD), describing the upcom-
ing benefits in full detail. This was done in 2009.
Changes for 2014
In 2013, with the goal of keeping its costs and employees’
contributions flat, UPS decided on two changes in the flexible
benefits program, as described below. The General Counsel
does not dispute the basis on which UPS made these determina-
tions, and I have no reason to doubt that the Respondent acted
in good faith.
On August 5, UPS distributed to employees in the flexible
benefits program nationwide, including those in the unit, a
planning guide for annual enrollment from October 14–
November 1.3 It announced the following changes:
 Tobacco premium increase—During annual enrollment
you will be asked to certify whether you or your spouse
use tobacco. If either of you does [sic], you’ll pay a
premium increase of $150 per month ($1,800 per year)
[unless a smoking cessation program was completed be-
fore the end of 2013]. . . .
 Working spouse eligibility—Spouses who work and
have access to medical coverage through their employer
will not be eligible for medical coverage (which includes
drugs and behavioral health) under the Flexible Benefits
Plan. . . .
Management held six meetings with groups of unit employ-
ees at the facility, on August 26 and 28–30, in which the
changes were described in English or Spanish.4 Human Re-
sources Supervisor Belkis Cruz conducted the meeting at which
Nunez attended. Belkis told employees that they would have to
go into the computer to remove spouses who would no longer
be eligible and to certify that they and their spouses did not
smoke.
After Nunez got off from work that day, he called Valero
and informed him of the announced changes. Valero subse-
quently confirmed this with other employees. The Respondent
concedes that it had not earlier specifically notified the Union
of those changes.5
Negotiations on a First Collective-Bargaining Agreement
Negotiations began in May, and the parties have held bar-
gaining sessions about two or three times monthly since then.
To date, they have reached no agreement.
At all times, Valero has been the chief union spokesperson,
Nunez a member of the Union’s bargaining committee, and

2 See R. Exhs. 4–6, 8, 10–12, and 25; GC Exh. 13, for changes im-
plemented on January 1, 2005, through January 1, 2013.
3 GC Exh. 6. See also GC Exh. 7, a news bulletin issued on about
the same date.
4 See GC Exhs. 3–5.
5 See Tr. 88, representation of the Respondent’s counsel.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Attorney Rodriguez, the Respondent’s chief spokesperson.
By letter dated May 3 to the Respondent, Valero requested
information, including a copy of unit employees’ health and
welfare benefits, for the purpose of collective bargaining. At
the May 10 bargaining session, the Respondent provided him
that information, including flexible benefits, in a looseleaf
binder.6 These showed past announced and implemented
changes in health insurance benefits, including those made at
the beginning of a new calendar year.
On July 27 (Rodriguez at Tr. 191), the parties agreed to bar-
gain over noneconomic items first and then turn to economics
after that.
At the September 21 bargaining session, Valero stated that it
had been brought to his attention that SCS had held meetings
with employees concerning the two changes in health insurance
benefits. He said that he had never been notified.
Rodriguez did not rebut Valero’s testimony that, after Valero
raised the subject, management asked to caucus and then came
back with the response that the Respondent was not obligated
to bargain. This logically would have followed a request by
the Union to discuss or negotiate over the changes, and I there-
fore credit Valero’s testimony that he did so.
Rodriguez’ account of what he said was more detailed than
Valero’s, and I credit Rodriguez’ testimony as follows. Rodri-
guez explained that the Respondent did not have to bargain
over the changes because it had a long history of making modi-
fications to the plan, almost every year; therefore, the upcoming
changes represented a continuation of the status quo.
The changes were implemented on January 1, 2014.7 No
previous bargaining over the changes ever took place; indeed,
the parties had no bargaining on the subject of health insurance
benefits before then.
Analysis and Conclusions
Health insurance benefits are a mandatory term of employ-
ment. Caterpillar, Inc., 355 NLRB 521, 522 (2010) (changes
in drug prescription program); Coastal Derby Refining Co., 312
NLRB 495, 497 (1993) (coverage for working spouses); Trojan
Mining & Processing, Inc., 309 NLRB 770, 771 (1992).
As Judge David Goldman stated in Latino Express, Inc., 360
NLRB No. 112, slip op. 12 (2014), “Board precedent has long
been settled that, as a general rule, an employer with an obliga-
tion to collectively bargain may not make unilateral changes in
mandatory subjects of bargaining without first bargaining to a
valid impasse,” citing NLRB v. Katz, 369 U.S. 736 (1962). The
Respondent does not allege impasse. Two other bases on
which an employer may lawfully make unilateral changes are
that the union engaged in delay tactics or that the employer had
economic exigencies that compelled prompt action. See
Pleasantview Nursing Home, 335 NLRB 961, 962 (2001), revd.
in part on other grounds 351 F.3d 747 (6th Cir. 2003); Bottom
Line Enterprises, 302 NLRB 373, 374 (1991), enfd. 15 F.3d
1087 (9th Cir. 1994). The Respondent has averred neither.
Rather, the Respondent contends that it was not obligated to

6 R. Exh. 3. This included, inter alia, the 2009 SPD and SMMs for
changes effective January 1, 2011, 2012, and 2013.
7 See GC Exh. 9, SMM issued in October.
bargain over its announced and implemented changes in spous-
al coverage and smokers’ premium because it has had the past
practice of announcing changes in health care benefits for the
following year and then implementing them on January 1.
Thus, the Respondent argues, it was merely maintaining the
status quo. The Respondent relies on Courier-Journal (I), 342
NLRB 1093 (2004), in support of its position. Such reliance is
misplaced.
In Courier-Journal, the employer had regularly made unilat-
eral changes in the cost and benefits of the employees’ health
program, both under the contracts and during hiatus between
contracts. The Board stated, “The significant aspect of this
case is that the Union acquiesced in a past practice under which
premiums and benefits for unit employees were tied to those of
non-unit employees.” Id. at 1094. The Board distinguished this
from a situation in which a current union is not bound by its
predecessor union’s acquiescence to past practice, citing Eu-
gene Iovine, Inc., 328 NLRB 294, 294 (1999), enfd. 1 Fed.
Appx. 8 (2d Cir. 2001). Ibid. Here, the Union was not certified
until April 2013; ipso factor, it could not have acquiesced in
any changes in health benefits before that time.
Contrary to the Respondent’s position, as the Board stated in
Mackie Automotive Systems, 336 NLRB 347, 349 (2001):
It is well settled that an employer’s past practices prior to the
certification of a union as the exclusive collective-bargaining
representative of the employees do not relieve the employer
of the obligation to bargain about the subsequent implementa-
tion of past practices that entail changes in wages, hours, and
other terms and condition of employment of unit employees.
See also General Die Casters, Inc., 359 NLRB No. 7, slip
op. at 25 (2012); Rose Fence, Inc., 359 NLRB No. 6, slip op. at
9 (2012); Essex Valley Visiting Nurses Assn., 343 NLRB 817,
842–843 (2004), enfd. 455 Fed. Appx. 5 (D.C. Cir. 2012).
The Respondent also asserts that it provided the Union with
notice of the changes when, in May, it furnished the Union with
information showing previous annual changes in health insur-
ance benefits. However, I cannot conclude that this somehow
constituted notice within the meaning of Section 8(a)(5)—the
Union had no way to know what, if any, changes the Company
contemplated but did not articulate; and the Union could hardly
have been expected to negotiate in a vacuum when it had no
idea what, if any, the specific changes would be.
The Respondent further argues that the Union, by agreeing
on July 27 to bargain about economic items only after noneco-
nomic items were settled, “adopted all of the Flex Plan includ-
ing the established past practice of its annual changes, knowing
that changes were imminent.” (R. Br. at 48.) In essence, this is
another way of stating that the Union waived the right to bar-
gain over health insurance benefit changes effective January 1,
2014. This argument fails because waiver of a right to bargain
based on conduct must be clear and unmistakable. Alison
Corp., 330 NLRB 1363, 1365 (2000) (“[I]t must be shown that
the matter claimed to have been waived was fully discussed by
the parties and that the party alleged to have waived its rights
consciously yielded its interest in the matter”); Lear Siegler,
Inc., 293 NLRB 446, 447 (1989). This did not occur here. On
the contrary, after the Union learned from employees of the
UPS SUPPLY CHAIN SOLUTIONS, INC. 9
upcoming changes, the Respondent flat-out refused the Union’s
request to discuss or bargain over them.
I therefore conclude that the Respondent violated Section
8(a)(5) and (1) by implementing the changes in health insur-
ance benefits on January 1, 2014, without affording the Union
prior notice and an opportunity to bargain.
I further conclude that the Respondent’s announcement of
such changes to employees in August, without affording the
Union prior notice and an opportunity to bargain, also violated
Section 8(a)(5) and (1). See Caterpillar, Inc., 355 NLRB at
524; Brannan Sand & Gravel Co., 314 NLRB 282 (1994).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(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. By announcing and implementing changes in health insur-
ance benefits without affording the Union prior notice and an
opportunity to bargain, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and violated Section 8(a)(5) and (1)
of the Act.
REMEDY
Because I have found that the Respondent has engaged in
certain unfair labor practices, I find that it must be ordered to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
Since the Respondent unilaterally implemented new health
insurance benefits, the Respondent shall be ordered to make
any unit employees whole for any loss of benefits and any addi-
tional expenses that they may have suffered as a result. The
make-whole remedy shall be computed in accordance with
Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), plus interest computed as set forth in New
Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, UPS Supply Chain Solutions, Inc., Miami,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Announcing or implementing any changes in health in-
surance benefits or other mandatory subjects of bargaining
without affording International Brotherhood of Teamsters, Lo-
cal Union No. 769 (the Union) prior notice and an opportunity
to bargain.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.

8 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 adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request by the Union, restore the health insurance
benefits that existed prior to the unilateral changes that were
implemented on January 1, 2014, and maintain those terms
until the Union agrees to the changes, the parties bargain to a
collective-bargaining agreement, or they reach an overall valid
impasse.
(b) Make employees whole by reimbursing them, in the
manner set forth in the remedy section of the decision, for any
loss of benefits and any additional expenses they incurred as a
result of the unilateral changes in health insurance benefits that
were implemented on January 1, 2014.
(c) Within 14 days after service by the Region, post at its fa-
cility in Miami, Florida, copies of the attached notice marked
“Appendix.”9 Copies of the notice, on forms provided by the
Regional Director for Region 12, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet set, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, 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 facility involved in these
proceedings, 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 August 26, 2013.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. November 28, 2014
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
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half

9 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT announce or implement changes to your health
insurance or other benefits without affording International
Brotherhood of Teamsters, Local Union No. 769 (the Union)
prior notice and an opportunity to bargain.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights under Sec-
tion 7 of the Act, as set forth at the top of this notice.
WE WILL, on the Union’s request, restore the health insur-
ance benefits that existed prior to the unilateral changes that
were implemented on January 1, 2014, and maintain those
terms until the Union agrees to the changes, we and the Union
bargain to a collective-bargaining agreement, or we and the
Union reach an overall valid impasse in bargaining.
WE WILL make employees whole by reimbursing them for
any loss of benefits and additional expenses they incurred as a
result of the unilateral changes in health insurance benefits that
were implemented on January 1, 2014.
UPS SUPPLY CHAIN SOLUTIONS, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/12–CA–113671 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.