Wisconsin Southern Gas Co., Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1968

173 N.L.R.B. 480 (N.L.R.B. 1968)

480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wisconsin Southern Gas Company , Inc. and Local
Union No . 6-111, Oil, Chemical and Atomic
Workers International Union , AFL-CIO. Case
30-CA-724
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS,
AND ZAGORIA
On June 21, 1968, Trial Examiner Owsley Vose
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, Respondent
filed exceptions to the Trial Examiner's Decision and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Wisconsin Southern Gas
Company, Inc., Lake Geneva, Wisconsin, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
MEMBER BROWN dissenting
For the reasons stated in the dissenting opinion in
Univis, Inc., 169 NLRB No. 18, I would find that the
basic dispute in this case should be left for resolution
within the framework of the settlement procedures
agreed upon by the parties in their current collective-
bargaining agreement.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
OWSLEY VOSE, Trial Examiner. This case, heard at Lake
173 NLRB No. 79
Geneva, Wisconsin, on April 11, 1968, pursuant to a charge filed
December 28, 1967, and a complaint issued on February 14,
1968, presents the question whether the Respondent (herein-
after called the Company) violated Section 8(a)(5) and (1) of the
Act by its conduct since November 30, 1967, in unilaterally
changing its sickness and hospitalization insurance carrier and
in instituting a sickness and hospitalization insurance program
different from that agreed upon by the parties in the latest
collective-bargaining agreements which became effective No-
vember 1, 1967.
Upon the entire record and my observation of the witnesses
and after due consideration of the briefs filed by the parties I
make the following
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE COMPANY
The Company, a Wisconsin corporation, is a public utility
furnishing gas service throughout Southern Wisconsin. During
the calendar year 1967, a representative period, the Company
sold in excess of $500,000 worth of gas. During the same
period, the Company purchased and received from out-of-State
sources more than $50,000 worth of goods and services. Upon
these facts I find, as the Company admits, that it is engaged in
"commerce" and operations "affecting commerce" within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 6 - 111, Oil, Chemical and Atomic Workers
International Union , AFL-CIO (herein called the Umon), is a
labor organization within the meaning of Section 2(5) of the
Act.
III THE UNFAIR LABOR PRACTICES
A. The Company's Unilateral Change of Its Sickness
and Hospitalization Program in Violation of Section
8(a)(1) and (5) of the Act
1. Background
The Company and the Union negotiated a 2-year collective-
bargaining contract in 1965 which became effective on
November 1, 1965. Section 7 of the contract provided as
follows
The Company will continue its policy to provide hospital,
surgical and a group life insurance program at no cost to the
employees.
The contract also contained a clause providing for the
reopening of negotiations on the subject of wages and of
extended sickness coverage after one year, provided proper
notice was given.
Pursuant to the reopener clause, further negotiation meet-
ings were held in October 1966. In these meetings the
Company sought to induce the Union to agree to its changing
the carrier of the sickness and hospitalization insurance from
Blue Cross-Blue Shield (herein called Blue Cross) to Pacific
Mutual Life Insurance Company (herein called Pacific Mutual).
The latter was the carrier of the life and accident insurance
provided the employees under the contract. Blue Cross had
been the hospitalization insurance carrier for the Company's
WISCONSIN SOUTHERN GAS 481
employees since 1944 and Blue Shield had been the surgical
carrier since 1963. After approximately five meetings, in one
or more of which representatives of Pacific Mutual and Blue
Cross were present and explained their respective programs, it
was agreed by the Company and the Union that Blue Cross
would remain the sickness and hospitalization insurance
carrier.
2. The 1967 negotiations between
the Company and the Union
Negotiations for a new 2-year contract to succeed the one
expiring on November 1, 1967, commenced in October 1967.
At the start of the negotiations the Union presented the
Company with a written document in which it stated its
proposals for amending the various provisions of the existing
contract. Among these were the following, dealing with article
V, section 7, the provision covering "Hospital, Surgical and
Group Life Insurance":
A. As is
1. The Union proposes the added coverage to the
present Blue Cross and Blue Shield, as presented to the
Company by Mr. Bernard Farmer of Blue Cross and Blue
Shield.
2. The Major points are outlined below:
a Increase from seventy (70) day to three hundred
six-five (365) day in hospital coverage.
c. Preferred contract, which is the SM 100 series at
$10,000 with full obstetrical coverage.
e Change from twenty five (25) dollar x-ray and
Laboratory and twenty five (25) dollar doctor fees to
two hundred (200) dollar Mutualized Doctor, x-ray, and
laboratory coverage.
f. Increase coverage to students at age 23 to students
at age 25.
g. Oral surgery coverage.
Later on in the negotiations, in a revised written proposal to
the Company, the Union reiterated its earlier request "for
increased benefits, under Blue Cross-Blue Shield."
At a meeting on October 26, 1967, the Company orally
agreed to the Union's proposals for improved sickness and
hospitalization insurance coverage by Blue Cross, including
specific plans offered by Blue Cross such as the Series 2000
Plan, its Hospital Service Plan, and the SM 100 Plan, the
designation for its Surgical-Medical Plan.
In a memorandum of agreement in the form of a letter from
the Company to the Union which was signed by the parties on
November 1, 1967, the Company noted its agreement to the
following "Improvement in hospital and surgical plan."
1. 365-day hospital care for disability
2. $200 Mutualized DX & L
3. Dependents to age 25
4. Usual customary charges up to $1000 with full O.B.
5. $200 Mutualized DX & Li
6. Dependents to age 25
7. Major Medical to $10,000 with dependents to age 25
Thereafter the parties signed a new 2-year collective-
bargaining contract having a November 1, 1967, effective date.
This contract did not specifically name Blue Cross as the
sickness and hospitalization insurance carrier, but merely
continued the general language of the 1965-1967 contract that
the "Company will continue its policy to provide hospital,
surgical and a group life insurance program at no cost to the
employees."
About this same time the Company signed another contract
with Blue Cross providing the improved coverage which had
just been negotiated with the Umon. This contract was made
effective November 1, 1967. Pursuant to this contract Blue
Cross issued to each of the Company's employees a Series
2000 Group Certificate, Hospital Service Plan, a Surgical-
Medical 100 Group Certificate, and a Major Medical Group
Certificate, together with amendments providing the improve-
ments listed in the November 1, 1967, letter memorandum of
agreement. These certificates and amendments were all made
effective as of November 1, 1967.
At no time during the 1967 negotiations for a new 2-year
collective-bargaining contract was the matter of changing the
carrier of the sickness and hospitalization insurance coverage
brought up by the Company.
3. The Company's simultaneous negotiations with
Pacific Mutual
It has been found in the preceding section that the Union
was seeking in the October 1967 negotiations, among other
things, increased sickness and hospitalization benefits under
the Blue Cross program. Blue Cross, as above noted, has been
the hospitalization carrier since 1944, and the sickness
insurance carrier since 1963. Notwithstanding the pendency of
these negotiations with the Union, the Company simultaneous-
ly was negotiating with Pacific Mutual about a possible change
of sickness and hospitalization insurance carriers and benefits
A letter from Frederick Beyer, manager of the Chicago Group
Office of Pacific Mutual to Personnel Director Barnes, dated
October 11, 1967, establishes that the Company had prior to
this time inquired of Pacific Mutual concerning its ability to
furnish sickness and hospitalization coverage which would be
equivalent to the Blue-Cross coverage which the Union was
seeking to obtain in the 1967 negotiations. In this letter Beyer
admitted that it would "be impossible to duplicate Blue Cross'
"full surgical coverage." At no time prior to the signing of the
1967-69 contract in November, in fact, at no time prior to
December 1 when, as found below, the Company announced
to union representatives that it was changing the carrier of
sickness and hospitalization insurance from Blue Cross to
Pacific did the Company mention to the Union its negotiations
with Pacific Mutual.
4. The Company notifies the Union of its decision to
change sickness and hospitalization insurance carriers
At 4 p.m. on December 1, 1967, Personnel Director Barnes
called Edward Kunze, vice president of the Union, and
Dwayne Boldt, chief steward of the Union, into his office and
informed them that as of the first of the coming year Pacific
Mutual, rather than Blue Cross, would be its sickness and
i The apparent repetition of items five and six is due to the fact that
under Blue Cross procedure separate certificates are issued its "Hospital
Service Plan," for its "Surgical-Medical 100 " plan, and for its "Major
Medical " "Surgical Care " plan and separate amendments are prepared
for each plan . Items one , two and three above refer to changes in the
"Hospital Service Plan." Items four , five and six include changes in the
"Surgical-Medical 100 " plan Item seven , as is apparent, refers to a
change in the "Major Medical" plan.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hospitalization insurance carriers. Vice President Kunze ques-
tioned the Company's right to change carriers. Barnes stated
that the Company had the right to do so. When Kunze and
Boldt requested that they be given a copy of the Pacific
Mutual plan for comparison purposes Barnes replied that he
did not have one available, that it was still being worked on.
Kunze stated that the plan would have to be as good or better
than the Blue Cross plan. Boldt objected to the Company's
action, at which time the following conversation occurred,
according to Boldt's credited testimony
I stated that I did not think the Union would go along
with the insurance plan, or we wouldn't like the idea. Mr.
Barnes stated that it was out of our hands, that we couldn't
do anything about it. I told him I thought somewhere along
the line the Union was going to fight this ... Mr. Barnes
said it was out of our hands, that he thought if we wanted
to fight it, it was going to cost both parties a lot of money.2
The Company earlier that day had by letter communicated
to Pacific Mutual its decision to have that concern act as the
carrier of sickness and hospital insurance covering its employ-
ees. In this letter to Beyer, the manager of the Chicago Group
Office of Pacific Mutual L. H Scheutz, the Company's general
manager, stated in part as follows
This is to inform you that Wisconsin Southern Gas
Company, Inc. has elected Pacific Mutual Life Insurance
Company as the carrier for its group hospital and surgical
benefits. The benefits as outlined in your proposal of
November 17, 1967, except for group life and AD & D, are
to become effective as of January 1, 1968.
In addition to your proposal of November 17, we further
wish to incorporate the additional coverages as outlined in
your letter of November 28, 1967; that is, full coverage for
obstetrical benefits and coverage up to age 25 for full time
students and physically and mental disabled children,
totally unable to support themselves. Also we would like to
have this coverage available for our employees after two
months of service.
On the same day that the Company formally notified
Pacific Mutual of its decision to have Pacific Mutual act as the
carrier of its sickness and hospitalization insurance, December
1, 1967, the Company gave notice to Blue Cross of its
intention to terminate the coverage of its employees by Blue
Cross as of the end of the year, 1967.
5. Subsequent events
Not having been given a copy of the Pacific Mutual Plan,
Union Representative Kunze and Boldt asked Personnel
Director Barnes for a copy on December 20 They explained at
this time that they needed the plan to make a comparison
between the two programs Barnes stated that the Pacific
Mutual plan was not yet available as it was still being worked
on by that concern. Barnes added that representatives from
Pacific Mutual were going to be at the office the following day
and suggested that the Union representatives should talk to
them then. Kunze then stated, according to his credited
testimony, that "we were tired of playing the game with him,
that we weren't getting anything done and it was getting close
to the time when the insurance was being changed, and that if
something wasn't done we were definitely going to file unfair
labor practice charges against the company." After speaking
with representatives of Pacific Mutual on December 21, Kunze
and Boldt again pressed Barnes for a copy of the Pacific
Mutual plan on December 22, warning Barnes that "if
something wasn't done we were going ahead as we had talked
about earlier."3 Barnes offered to have Pacific Mutual's
complete plan ready immediately after the holiday and the
two union representatives acquiesced in this proposal.
On Tuesday, December 26, Barnes gave Kunze and James
Dahlke, the president of the Union, a copy of the Pacific
Mutual plan and asked them to return it as soon as possible, as
it was his only available copy.
Later that day Barnes wrote to Beyer of Pacific Mutual and
enclosed a copy of the November 1, 1967 letter memorandum
of agreement with the Union and called his attention to part 7,
D, thereof dealing with "Improvement in hospital and surgical
plan." In the letter Barnes also stated as follows:
I gave the copy of our insurance plan to the Union
President this morning. Just off the record, they are making
all sorts of noises regarding this insurance and it is my
understanding that they are going to have it reviewed by
some insurance expert. However, I am sure that when all is
said and done they will begin to realize that they have a
deal at least equal to, and in many cases better than, what
they had before.
On Thursday, December 28, 1967, the Union's attorney,
George Graf, prepared a charge alleging that the Company had
violated Section 8(a)(5) and (1) of the Act by unilaterally
changing the wages, hours, and working conditions of its
employees, about November 30, 1967, without negotiating
with the Union. This charge was filed with the Board on
December 29, 1967. On February 14, 1968, the General
Counsel issued the complaint in this proceeding.
Conversations were had about this time between the
Company's attorney, Roger Gierhart, and Beyer, of Pacific
Mutual, concerning certain extensions in sickness and hospitali-
zation coverage for the Company's employees. They concerned
the definition of dependents and payment for dental work in a
hospital after an accident. On February 19, 1968, Beyer
notified Gierhart by letter that Pacific Mutual was including
among the benefits for the Company's employees coverage for
(1) unmarried dependent children living at home through age
25 and (2) dental services after an accident under certain
circumstances. Previously Pacific Mutual had treated unmar-
ried children between 19 and 25 as dependents only if they
were full-time students. The dental services added in Beyer's
letter dated February 19, 1968, had not been specifically
provided for in the coverage previously afforded the Com-
pany's employees by Pacific Mutual. Both of the coverages had
been specifically provided in the Blue-Cross program covering
the Company's employees under the contract between the
Company and Blue Cross which became effective November 1,
1967.
2 The foregoing findings are based on the credited testimony of
Boldt and Kunze . Personnel Director Barnes testified that to the best of
his recollection neither Kunze nor Boldt made any statement concern-
ing the change of carriers I find it extremely unlikely that these two
experienced union representatives who had just finished negotiating a
new 2-year contract providing , in their opinion, for Blue Cross sickness
and hospitalization coverage , would say nothing when informed of the
Company's unilateral decision to change carriers. Both Kunze and Boldt
impressed me as testifying sincerely and I credit their testimony in
preference to Barnes ' vague recollection to the contrary.
3 This is Kunze's credited testimony.
WISCONSIN SOUTHERN GAS 483
On February 28, 1968, L. H. Schuetz, the company's vice
president and general manager, signed a formal agreement with
Pacific Mutual adding sickness and hospitalization coverage to
the group life and accident insurance policy already in effect
between the Company and Pacific Mutual. This policy is
terminable upon 30 day's notice by the Company to Pacific
Mutual.
6. Conclusions
Section 8(a)(5) of the Act provides that it shall be an unfair
labor practice for an employer "to refuse to bargain collective-
ly with the representatives of his employees...
Section 8(d) of the act states in part
That where there is in effect a collective-bargaining
contract ... the duty to bargain collectively shall also mean
that no party to such contract shall terminate or modify
such contract, unless the party desiring such termination or
modification-
(1) serves a written notice upon the other party
to the contract of the proposed termination or
modification sixty days prior to the expiration date
thereof, or in the event such contract contains no
expiration date, sixty days prior to the time it is
proposed to make such termination or modification,
(2) offers to meet and confer with the other party for
the purpose of negotiating a new contract or a contract
containing the proposed modifications;
(3) notifies the Federal Mediation and Conciliation
Service .. and simultaneously therewith notifies any
State or Territorial agency established to mediate and
conciliate disputes ... and
(4) continues in full force and effect, without resorting
to strike or lockout, all the terms and conditions of the
existing contract for a period of sixty days after such
notice is given or until the expiration date of such
contract, whichever occurs later:
It is well settled that an employer acts in derogation of his
bargaining obligations under Section 8(d), and hence violates
Section 8(a)(5) when he unilaterally modifies contractual
terms or conditions of employment during the effective period
of a contract. C & S Industries, Inc, 158 NLRB 454, 457 See
also NL.R.B v. Katz et al., 369 U.S. 736, The Jacobs
Manufacturing Company, 94 NLRB 1214, enfd. 196 F.2d 680,
684 (C.A. 2).
In this case the Company, without notice to the Union, not
only changed the carrier of its sickness and hospitalization
insurance but also changed various of the benefits under its
sickness and hospitalization program. The Company notified
the Union about the changes in its insurance program only
after the changes had already been made. Although as found
above, the Union protested the Company's action on several
occasions, the Company never retreated from its position that
the decision to make the changes had been made and that
there was nothing the Union could do about it.4
The change in the carrier of its sickness and hospitalization
insurance was not a minor matter, for as representatives of
both Blue Cross and Pacific Mutual testified at the hearing, the
availability of benefits depends not only on the language of the
insurance policy but also upon the manner in which the
general language of the policy is construed and administered
by the carrier.
While I do not propose to go into the merits of the various
changes in benefits which were made when the Company
changed insurance carriers from Blue Cross to Pacific Mutual,
the fact that changes were made is clearly established in this
record. I have already mentioned that Pacific Mutual's cover-
age of dependents on January 1, 1968 was less extensive than
that of Blue Cross and that Pacific Mutual's Policy on January
1, 1968, did not specifically cover dental services in a hospital
after an accident. As indicated above, there are differences in
the coverage for surgeon's fees because of Pacific Mutual's use
of a fixed-fee schedule and Blue Cross's payment of the usual
and customary charge for the services performed. Since Pacific
Mutual's fixed schedule of surgical fees is geared to the locality
in which the employer's establishment is located, this system
might well work to the disadvantage of employees where
surgical services of a highly specialized surgeon were required
in another more expensive area. The claim procedure is
different under Pacific Mutual than it was under Blue Cross
and in fact involves more troublesome steps for the employees
than under the Blue Cross system of simply having the
employee show his identification card to the doctor and the
hospital.
I do not mean to leave the impression m the foregoing
discussion that Blue Cross' coverage was better in general than
the Pacific Mutual's coverage adopted by the Company to
replace the previous Blue Cross coverage. In some areas, I find,
Pacific Mutual's coverage was superior to that formerly
furnished by Blue Cross. The significant thing is that changes
in coverage and in the procedure for obtaining benefits were
effected when the Company replaced Blue Cross with Pacific
Mutual as the carrier of its sickness and hospitalization
insurance for the employees and that these changes were made
without securing the Union's consent thereto.
The Company, relying on the fact that its 1967 agreements
with the Union do not specifically name Blue Cross as the
carrier of its sickness and hospitalization insurance , contends
that it was free to change carvers as long as it furnished
benefits equivalent to those provided under the November 1,
1967, Blue Cross plan. I cannot agree. The Company recog-
nizes its obligation under the November 1 letter memorandum
of agreement to provide the seven improvements in its hospital
and surgical plan listed therein. While Blue Cross is not
specifically named in the letter memorandum of agreement,
the record establishes that the parties orally agreed that these
improvements would be furnished through the Blue Cross. The
Company actually implemented this agreement by thereafter
contracting with Blue Cross for an expanded sickness and
hospitalization program through Blue Cross containing the
seven listed improvements. Construing the letter memorandum
of understanding together with the 1967-69 collective-bar-
gaining contract, and taking into consideration the context of
events in which these agreements were signed, I conclude that
the Company and the Union, in legal contemplation, thereby
4 In view of my finding of fact that the Union did protest the bargain about the changes by not objecting when belatedly informed of
Company's unilateral action on several occasions in December 1967, 1 the Company's action.
must reject the Company's contention that the Union waived its right to
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed that the existing Blue Cross program, augmented by the
seven improvements listed in the letter memorandum of
agreement , would be continued through Blue Cross throughout
the life of 1967-69 contract Certainly, in view of the fact that
the Union successfully resisted the Company's efforts to
change insurance carriers in the 1966 negotiations , when the
matter of insurance carriers was openly bargained about, and
in view of all the other evidence indicating that it was Blue
Cross coverage which was being discussed in the 1967
negotiations, including the fact that the Company actually
signed a contract with Blue Cross furnishing the agreed-upon
coverage, the Company cannot be heard to say that it did not
contemplate utilizing Blue Cross as the sickness and hospitali-
zation carrier when it signed the 1967 agreements.
The Company's action on December 1, 1967, therefore, in
changing carriers and benefits involved in its sickness and
hospitalization program without notice to the Union and
without observing the requirements of Section 8(d) of the Act,
clearly violated Section 8(a)(5) and (1) of the Act.
Even if I am in error in my construction of the November 1,
1967, agreements between the parties, there can be no doubt
that' as of November 1, 1967, the Company, after negotiations
with the Union, established an expanded sickness and hospital-
ization program through Blue Cross. Under Section 8(a)(5) of
the Act the Company was obligated to notify the Union and
give it an opportunity to bargain about its proposed changes in
its sickness and hospitalization program. Its failure to do so
constituted a clearcut violation of Section 8(a)(5) of the Act
regardless of whether the improved sickness and hospitahza-
tion program be deemed to have been set up pursuant to the
terms of a written contract or not.
With regard to the Company's contention that insurance
programs wholly paid for by the employer do not constitute
wages or a term or condition of employment, I believe the
Company is in error in this respect. The only authority cited
by the Company for this proposition, Sylvania Electric
Products, Inc v. NL.R B., 291 F.2d 128 (C.A. 1), cert. denied
368 U.S. 926, in my opinion, holds exactly to the contrary.
Thus the court stated as follows (291 F.2d at 131)•
This court held in W. W. Cross & Co. v. NL.R.B., supra,
that the benefits of an employee group insurance plan were
"wages" within the meaning of the word as used in the
pertinent sections of the Act since they constituted
emoluments resulting from employment or direct and
immediate economic benefits flowing from the employment
relationship, and hence were matters as to which the Act
required employers to bargain collectively in good faith
with the union representing an appropriate group of
employees. We adhere to that decision.
See also Sylvania Electric Products, Inc v. N.L.R.B, 358 F.2d
591, 592 (C.A. 1).
The Company further contends that no violation of
Section 8 (a)(5) and (d) can be found in this case because of
the Union's failure to submit the questions of the Company's
sickness and accident insurance program to arbitration pursu-
ant to the 1967-69 contract provision. However, the disagree-
ment between the parties over the Company's change of the
insurance programs and earners presents primarily a question
of a statutory violation , and only secondarily is a question of
contract interpretation involved. Congress entrusted the Board
with the power to prevent persons from engaging in unfair
labor practices and specifically provided that this power should
"not be affected by any other means of adjustment or
prevention that has been or may be established by agreement
law, or otherwise ...." In the circumstances of this case, in
my opinion, it would be an unwarranted shirking of its
statutory responsibilities for the Board to defer to arbitration.
See C & S Industries, Inc, 158 NLRB 454, 458-459; W P.
Ihrie & Sons, 165 NLRB No. 2; Gravenslund Operating
Company, 168 NLRB No. 72.
The General Counsel and the Union both strenuously urge
in their briefs that the Respondent's conduct during the
October 1967 negotiations in dealing with Pacific Mutual
concerning a change in insurance carriers and benefits behind
the Union's back while at the same time bargaining with the
Union concerning the continuance of the Blue Cross program
with certain improvements constituted a flagrant breach of the
Company's obligation to bargain collectively with the Union in
good faith. In view of the whole sequence of events in this
case, I concur fully with the conclusions of the General
Counsel and the Union concerning what appears to be an
obvious lack of good faith on the part of the Company in this
case. However, the issue of the Company's conduct prior to
November 30, 1967, was not raised in the complaint in this
case and in my opinion is not properly before me for decision.
Hence I make no finding in this regard.
CONCLUSIONS OF LAW
1. The Union is the exclusive collective-bargaining repre-
sentative of the Company's employees in an appropriate
bargaining unit consisting of all production, maintenance,
office and clerical employees, excluding professional em-
ployees, guards , watchmen , and supervisors as defined in the
Act
2. The matters of the carrier of, and the benefits under, the
Company's sickness and hospitalization insurance covering its
employees constitute wages or other conditions of employ-
ment within the meaning of Section 9(a) of the Act.
3. The collective -bargaining agreements between the Com-
pany and the Union which became effective on November 1,
1967, contemplated that Blue Cross would remain the msur-
anpe carrier for the duration of the agreements and that the
benefits would remain as agreed upon in the negotiations.
4. The Company, by its action on and after December 1,
1967, in changing the carrier of its sickness and hospitalization
insurance covering its employees from Blue Cross -Blue Shield
to Pacific Mutual Life Insurance Company and in changing the
benefits to the employees under said insurance program, all
without notice to the Union in breach of its obligations under
Section 8(d), has thereby refused to bargain collectively in
good faith with the Union in violation of Section 8(a)(1) and
(5) of the Act.
5. 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 has engaged in unfair labor
practices by unilaterally changing insurance carriers and
benefits, terms and conditions of employment which were
covered by collective-bargaining agreements then in effect
covering the Company's employees, my Recommended Order
will provide that it cease and desist from such unfair labor
practices.
Since the changes in the Company' s insurance program and
the carrier thereof were made in violation of the Act, my
WISCONSIN SOUTHERN GAS 485
Recommended Order will direct that, upon the written request
of the Union, the Company shall rescind and cancel the
sickness and hospitalization coverage for its employees which
the Company secured from Pacific Mutual without first
obtaining the Union's agreement thereto and restore the Blue
Cross-Blue Shield sickness and hospitalization coverage which
the company contracted for in the contract with Blue
Cross-Blue Shield which became effective November 1, 1967.
This is the contract which the Company canceled with Blue
Cross-Blue Shield as of January 1, 1968.
While the Union should have an ample opportunity to
consider whether to request the restoration of Blue Cross-Blue
Shield coverage, in my opinion it would not effectuate the
policies of the Act to leave the question of insurance carriers
and benefits open for an indefinite period. Consequently, the
Union will be required to make its decision regarding these
matters within 60 days from the date of this Decision. If the
Union does not request the restoration of Blue Cross-Blue
Shield coverage within 60 days, the Pacific Mutual coverage
will remain in effect, subject of course to mutual agreements
of the parties regarding this subject matter. In order to enable
the Company to have an opportunity to make arrangements
for the restoration of Blue Cross-Blue Shield coverage without
any lapse in coverage of the employees, the Company shall
have 40 days after the receipt of a request in writing from the
Union to reinstate Blue Cross-Blue Shield sickness and hospi-
talization coverage in which to reinstate such insurance
coverage.
Upon the foregoing findings and conclusions and the entire
record and pursuant to Section 10(c) of the Act, I hereby issue
the following:
RECOMMENDED ORDER
sickness and hospitalization insurance coverage for its employ-
ees through Pacific Mutual Life Insurance Company and
reestablish, without any lapse in coverage, the sickness and
hospitalization coverage through Blue Cross-Blue Shield which
it contracted for in its contract with Blue Cross-Blue Shield
which became effective November 1, 1967, but which was
terminated by it as of January 1, 1968.
(b) Post at its Lake Geneva, Wisconsin, office and all other
locations where employees customarily report for work, the
attached notice marked "Appendix." Copies of said notice, on
forms provided by the Regional Director for Region 30, after
being duly signed by an authorized representative of the
Respondent, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.5
(c) Notify the Regional Director for Region 30, in writing,
within 20 days from the receipt of this Recommended Order,
what steps it has taken to comply herewith.6
5 In the event that this Recommended Order is adopted by the
Board, the words " a Decision and Order" shall be substituted for the
words "the Recommended Order of a Trial Examiner " in the notice. In
the further event that the Board 's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted
for the words "a Decision and Order."
6 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read- "Notify said Regional
Director, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith."
The Respondent, Wisconsin Southern Gas Company, Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Local Union No. 6-111, Oil, Chemical and Atomic Workers
International Union, AFL-CIO, as the exclusive representative
of its employees in the appropriate unit stated above with
respect to rates of pay, wages, hours of employment, and other
terms and conditions of employment.
(b) Making unilateral changes in insurance carriers, insur-
ance benefits for employees, or any other changes in wages,
rates of pay or any other terms and conditions of employment
of its employees in the above-stated appropriate unit during
the term of the contract without first reaching agreement with
the above-named Union concerning such changes.
(c) In any like or related manner interfering with, restrain-
ing, 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 organization, 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 it is found
will effectuate the policies of the Act.
(a) Upon written request from the Union, and in the
manner set forth in the portion of the Trial Examiner's
decision entitled "The Remedy," rescind and cancel the
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively in good faith
with Local Union No. 6-111, Oil Chemical and Atomic
Workers International Union, AFL-CIO, as the exclusive
representative of the employees in the bargaining unit
stated below.
WE WILL NOT unilaterally institute changes in insur-
ance carriers or insurance benefits or institute any other
changes in wages, hours, or other terms and conditions of
employment of the employees in the bargaining unit stated
below, during the term of any collective-bargaining contract
covering said employees, without first consulting with and
bargaining with the above-named Union concerning such
changes and reaching agreement on any modification of the
terms of the contract. The bargaining unit is.
All production and maintenance, office and clerical
employees, excluding professional employees, guards,
watchmen and supervisors as defined in the Act.
WE WILL, upon written request from the Union and in
the manner provided in the Order, rescind and cancel the
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sickness and hospitalization insurance coverage furnished our
employees through Pacific Mutual Life Insurance Company
and at the same time will restore the sickness and
hospitalization insurance coverage provided through Blue
Cross-Blue Shield in November and December 1967.
WISCONSIN SOUTHERN GAS
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
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.
If employees have any question concerning this Notice or
compliance with its provisions, they may communicate direct-
ly with the Board's Regional Office, 2nd Floor Commerce
Building, 744 North 4th Street, Milwaukee, Wisconsin 53203,
Telephone 272-3861.