Simplex Wire & Cable Company

SIMPLEX WIRE & CABLE COMPANY Simplex Wire & Cable Company and Local 2208, a/w International Brotherhood of Electrical Workers, AFL-CIO. Case I-CA- 14083 September 27, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On July 10, 1979, Administrative Law Judge Alvin Lieberman issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and Respondent filed a brief in support of the Deci- sion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findingst and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. ' The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Administrative Law Judge: The hear- ing in this proceeding, with all parties represented, was held before me in Boston, Massachusetts, on the General Coun- sel's complaint,' and Respondent's answer. In general, the issues litigated were whether Respondent violated Section I At the hearing the complaint was amended by substituting the word "Newington" for "Burlington" in paragraph 4(b); by adding "Maurice Fen- derson-Vice President" to the list of Respondent's agents and supervisors appearing in par. 7; and by changing the spelling of the name "Leelerc," set forth in the same paragraph, to "Leclerc." 8(a)( ), (3), and (5) of the National Labor Relations Act, as amended (the Act).' More particularly, the questions for decision are as follows: 1. Did Respondent, by unilaterally deciding not to pay the August 1977 premium for its production and mainte- nance (P & M) employees' Blue Cross/Blue Shield (BC/BS) group insurance, violate Section 8(a)(5) of the Act? 2. Did Respondent, by failing to pay the foregoing pre- mium, violate Section 8(a)(3) of the Act? 3. Did Respondent, by notifying its P & M employees and their union of its intention not to pay the foregoing premium, violate Section 8(a)(l) of the Act? Upon the entire record,3 and having taken into account the arguments made and the briefs submitted,' I make the following: FINDINGS OF FACT5 I. JURISDICTION Respondent, a Massachusetts corporation, is engaged at Newington, New Hampshire, in the manufacture, sale, and distribution of undersea cable and related products. Re- spondent annually sells and ships goods valued at more than $50,000 to customers located outside the State of New Hamsphire. Accordingly, I find that Respondent is engaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this matter by the National Labor Relations Board (the Board) is warranted. 11. THE LABOR ORGANIZATION INVOLVED Local 2208, a/w International Brotherhood of Electrical Workers, AFL-CIO (the Union) is a labor organization within the meaning of the Act. 2 Set forth below are the relevant provisions of the sections of the Act to which reference has been made in the text: Sec.8.(a) It shall be an unfair labor practice for an employer (I) to interfere with, restrain. or coerce employees in the exercise of the rights guaranteed in Section 7; (3) by discnmination to regard to hire or tenure of employment . to encourage or discourage membership in any labor organization . . (5) to refuse to bargain collectively with the representatives of his employees .... Insofar as pertinent. Sec. 7 is as follows: Sec. 7. Employees shall have the right to self-organization, to form, join. or assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, and shall also have the right to refrain from any or all such activi- ties .... Issued simultaneously is a separate order correcting obvious errors in the stenographic transcript of the hearing in this proceeding, including the cor- rection requested by the General Counsel. ' Although all the agruments of the parties and the authorities cited by them, whether appearing in their briefs or made orally at the hearing. may not be discussed, each has been carefully weighed and considered. I Respondent's motion made at the conclusion of the heanng, upon which ruling was reserved, is disposed of in accordance with the findings and con- clusions set forth in this decision. 245 NLRB No. 85 543 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. INTRODU('IION Briefly, this case is concerned with Respondent's failure to pay the August 1977 premium for its P & M employees' BC/BS group insurance, notwithstanding that the employ- ees were on strike. The complaint alleges that Respondent's decision not to pay the premium was made unilaterally and was, therefore, violative of Section 8(a)(5) of the Act; that Respondent's actual failure to pay the premium contra- vened Section 8(a)(3); and that by notifying that P & M employees and the Union, their collective-bargaining repre- sentative, that it did not intend to pay the premium, Re- spondent committed an unfair labor practice within the meaning of Section 8(a)(l). The P & M employees being on strike, Respondent con- tends that it had no obligation to pay the August 1977 pre- mium for their BC/BS insurance because had it done so it would have been financing the strike. For this reason, Re- spondent asserts, it did not violate the Act in the respects set forth in the complaint. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Concerning Respondent's Alleged Violations of the Act APPENDIX B Group Insurance Eligibility The eligibility provisions listed below are subject to the standard provisions of the contracts and agree- ments between the insurance carrier and the Company. Inasmuch as the Company purchases insurance cover- age for employees, rather than itself providing benefits, it has no control over certain matters such as amounts of reimbursement, diagnosis of illness or injury, some matters of eligibility, and conversion rights. The fol- lowing is set forth as a declaration of intent to the extent that such matters are permissible under the group contracts and agreements with the carriers. Coverage Eligible Active Employees 1. Blue Cross/Blue Shield and Major Medical All active employees, with the exception of proba- tionary employees, are eligible for the benefits de- scribed in the Agreement between the parties .... * * * * * The facts determinative of the issues in this case are not in dispute. Accordingly, they will be summarily started. I. At all material times the Union has been the collec- tive-bargaining representative of Respondent's P & M em- ployees. 2. On August 6, 1975, Respondent and the Union en- tered into a collective-bargaining agreement (1975 con- tract). 3. In pertinent part the 1975 contract 6 provided as fol- lows: 8.1 Effective ... for ... the term of this Agreement, all eligible active bargaining unit employees shall be provided insurance as follows: 8.1.1 Blue Cross * * 8.1.2 Blue Shield-Plan B. * * * 19. Term of the Agreement 19.1 This Agreement shall become effective as of July 28, 1975 and shall continue thereafter until and including July 31, 1977 and shall continue thereafter for periods of one (1) year unless either party shall give the other notice of intention to terminate or modify this Agreement by written notice given not less than ninety (90) days prior to such expiration date. * * * J. Exh. I. Termination of Group Insurance I. Blue Cross/Blue Shield The last day of the month in which the employee terminates active employment. 4. Through July 1977 Respondent paid the entire pre- mium for the BC/BS group insurance on behalf of its P & M employees as provided for in its 1975 contract with the Union. 5. On April 13, 1977,' the Union, by letter,' notified Re- spondent that "in accordance with Section 19.1 of the ... Contract [it] desires to negotiate a new Contract before Au- gust 1, 1977." 6. Negotiations for a new contract began on June 1. 7. On July 30 Respondent presented the Union with its final contract offer and the Union's negotiating committee agreed to submit the offer to the Union's members for rati- fication. 8. On July 31 the Union's members rejected Respon- dent's offer but decided to continue working for a period of not more than 5 days, depending on the progress of further negotiations for a new contract. On the same day the Union informed Respondent of its members' decision. 9. The P & M employees worked on August I and 2 and were paid in accordance with the wage rates set forth in the 1975 contract.Y All dates hereinafter are in 1977 unless otherwise indicated. 8 Resp. Exh. 1. I As Leonard Leclerc, Respondent's industrial relations manager, testified concerning this, the wage rates of the 1975 contract were availed of as a "guide" in determining at what rates the P & M employees should be paid for their work on August I and 2. 544 SIMPLEX WIRE & CABLE COMPANY 10. On August 2 the parties met for further bargaining. Not being satisfied with the progress of the negotiations, the Union announced at the meeting that the employees would strike the next day. II. On August 3 the P & M employees struck Respon- dent. They remained on strike until September 26. 12. On August 16, while the strike was in progress, Re- spondent, by telegram.' notified the Union that it "will pay 16/31 of the August 1977 [BC/BS] premium" and that if the Union did not pay the remainder "the employees' Blue Cross/Blue Shield . . . benefits will terminate as of July 31, 1977." 13. Respondent did not, before sending the foregoing telegram to the Union, bargain with the Union concerning its decision not to continue to pay the entire BC/BS pre- mium as it had done since the effective date of the 1975 contract. 14. Before August 31, as Leclerc, Respondent's indus- trial relations manager, testified, Respondent "sent . . . a check" to the BC/BS insurance company for "one half' of the August BC/BS insurance premium which the insurance company "held . . . in abeyance awaiting payment by the Union." 15. The Union did not pay any portion of the BC/BS premiums before August 31. Accordingly. the insurance company returned Respondent's check, and the P & M em- ployees' BC/BS insurance benefits lapsed as of July 31. 16. On August 22, pursuant to a request by the Union. Respondent notified the P & M employees, by letter sent to each, of the contents of its August 16 telegram to the Union and informed them of their right to convert the BC/BS group insurance to individual coverage. Enclosed with ev- ery letter was a conversion form. 17. On September 22 the P & M employees ratified a contract offered to the Union by Respondent containing a provision for Respondent's payment of the BC/BS insur- ance premium for September. 18. As noted above, the P & M employees returned to work on September 26. B. Contentions and Concluding Findings Concerning Respondent's Alleged Violations of the Act Notwithstanding that the P & M employees were on strike during almost the entire month of August 1977, the General Counsel argues" that Respondent's failure to pay the August BC/BS insurance premium on behalf of its P & M employees, without bargaining with the Union before deciding not to pay the premium, was, respectively, viola- tive of Section 8(a)(3) and (5) of the Act. The General Counsel further argues that Respondent's notice to the Union and and the P & M employees that the premium would not be paid contravened Section 8(a)(1). Among Respondent's contentions in resisting liability un- der the Act for unilaterally discontinuing the payment of the August BC/BS premium and notifying the Union and the P & M employees that it would not pay the premium is 10G.C, Eh. 2. 11 The arguments of the General Counsel and the Union being similar. they will be referred to as the General Counsel's contentions its argument that it was under no obligation to pay the premium because had it done so it would have been financ- ing the strike by the P & M employees. This. Respondent asserts, it had no duty to do. Answering this claim, and relying on the fact that the P & M employees worked on August I and 2, and upon the provision in the 1975 con- tract between Respondent and the Union that BC/BS in- surance continues through the "last day of the month in which the employee terminates active employment." [: the General Counsel states on brief that "the quid pro quo for Respondent's paying . . . the premiums was the employees working the first day of the month." Assuming, arguendo, that despite the Union's timely no- tice to Respondent that it "desire[d] to negotiate a new con- tract"' the 1975 contract survived its July 31 expiration date,' the question is not whether the contract required Respondent to pay the August premium because the P & M employees performed "active employment" on August 1. as the General Counsel contends. but whether the contract required Respondent to finance the strike by the P & M employees, which began on August 3, by paying the August premium. Considered in this respect, Respondent's position that it was under no duty to do so is well taken and based on sound legal principles. "It is axiomatic that [an employer] is not required under the Act to finance an economic strike against it by remuner- ating the strikers for work not performed." General Electric Company, 80 NLRB 510, 511 (1948). This doctrine was af- firmed by the Board in Ace Tank and Heater Co., 167 NLRB 663, 664 (1967). where it stated "an employer is not required to finance a strike against it by paying wages for work not performed, and we have found that wages include such . . . benefits as . . . health insurance premiums." Ac- cordingly, the Board held that the employer was "not obli- gated to compensate la striker] for medical expenses in- curred while he was on strike."'' Finally, in this regard, there is the Board's decision in Trading Port. Inc.. 219 NLRB 298. 299 (1975). There, in a setting strikingly similar to that presented here, the em- ployer. without previous bargaining with the union repre- senting its employees, who were on strike" notified them that, because they were striking, it would not pay its share of hospitalization insurance premiums for their benefit and then ceased making the payments. The Board found that neither the employer's notice to its striking employees. ad- vising them that it would discontinue paying its share of the insurance premiums, not the actual discontinuance, without 2 1975 contract. appendix B (Jt Exh. I). ' Resp Eh. 1. " 1975 contract. sec 19.1 Jt. Exh. I). I! In Ace Tank the Board noted that. like the stuation here. Respondent's employees were covered b a non-contributorv group health insurance policy Under the terms of the policy any emplosee who was terminated would cease to be covered after the last day of the month In which his employment ceased. The policy provided that dis- continuance of active work was to be deemed termination of emplo- ment for insurance purposes. Exceptions to this rule were specified for employees absent because of sickness, temporar laoffs. orr leaves of absences. but there was no mention of strikers i, The strike in Trading Porl. unlike the strike here. was an unfair labor practice strike 545 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining, of the payments was violative of the Act. In arriving at this result the Board stated: We do not find Respondent's September 20, 1973, letters to its employees, advising them it would not pay its share of hospitalization insurance benefits due on September 29, to have been unlawful. Strikers, whether economic or unfair labor practice strikers, are not enti- tled to compensation for the period they are on strike. Hence, Respondent was within its rights in ceasing to pay its share of the premiums. Illinois Bell Telephone Co., 179 NLRB 681 (1969), enfd. 446 F.2d 815 (C.A. 7. 1971). We note that, while not itself paying its share of the premiums, Respondent nonetheless, made it possi- ble for the strikers to pay their shares directly. Though we find, infra, that Respondent was by this time under an obligation to bargain with the Union, the nonpay- ment of benefits to strikers during their period of strik- ing is not a matter about which a company has an obligation to bargain; hence, we find no violation of Sec. 8(aX5) in this respect. In the light of the foregoing precepts I find that Respon- dent did not violate Section 8(a)(5) of the Act by deciding, without bargaining with the Union, not to pay the August 1977 BC/BS premium on behalf of the striking P & M employees. I further find that by notifying the strikers that it would refrain from making the payments respondent did not involve itself in an infraction of Section 8(a)( ). Finally, I find that by not paying the August premium Respondent did not discriminate against the striking P & M employees within the meaning of Section 8(a)(3) of the Act. Concerning this, in Kimberly-Clark Corporation, 171 NLRB 614, 621 (1968), the Administrative Law Judge stated, with Board approval, that the "axiom of General Electric that an employer need not remunerate strikers for work not per- formed means simply that it is no more discriminatory for an employer to deny compensation for absence due to strike than to deny it for any other period of absence." Accordingly. I conclude that Respondent did not violate Section 8(a)( 1), (3), or (5) of the Act in the manner alleged in the complaint. My order will, therefore, provide for the complaint's dismissal. Upon the foregoing findings of fact and upon the entire record in this case. I make the following: CONI.USIoNS O1 LAW I. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)( ), (3), or (5) of the Act in the manner set forth in the complaint. Upon the foregoing findings of fact, conclusions of law. and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER 7 It is ordered that the complaint be, and the same hereby is, dismissed. 7 In the event no exceptions are filed as provided in Sec. 102.46 of the Rules and Regulations of the National Iabor Relations Board, the findings. conclusions, and Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclu- sions, and Order, and all objections thereto shall be deemed waived Ior all purposes. 546