Curley Printing Co.

CURLEY PRINTING COMPANY 251 Curley Printing Company, Printing Industry of Nashville, Inc., and Printing Industries of America, Inc. and International Bookbinders Local 83, In- ternational Brotherhood of Bookbinders, AFL-CIO. Case 26-CA-2488 January 19,1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS JEN- KINS AND ZAGORIA On May 22, 1967, Trial Examiner Herbert Sil- berman issued his Decision in the above-entitled proceeding, finding that the Respondents had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Union filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner consistent with the Decision herein. In his Decision the Trial Examiner found that the unfair labor practices charged against Printing In- dustries of America, herein PIA, and Printing In- dustries of Nashville, herein PIN, were derivative of and dependent upon the unfair labor practices against Curley on the theory that those Respond- ents were acting as agents of Curley herein, and that if the complaint against Curley were to be dismissed in accordance with his recommendation, the complaint against Respondents PIA and PIN must also be dismissed. We find no such agency relationship as alleged. As noted in the Trial Ex- aminer's Decision, PIA and PIN are separate, in- corporated trade associations, and the former of- fered its members, including Curley, a group health insurance program which the latter could accept or reject as it chose. When Curley accepted the in- surance program, it treated with PIA as a customer, or in the relationship or principal with principal rather than as, principal and agent. Inasmuch as they were not agents of Curley in the matter of insurance coverage, and as no other basis for so holding ap- pears, P'IA and PIN cannot be held to have dis- criminated against Curley's employees in violation of Section 8(a)(3) of the Act, as alleged in the com- plaint. When the insurance coverage of Curley's em- ployees was canceled, Curley was not consulted but was merely notified of the fact of termination. Cur- ley was not responsible for this cancellation of the insurance coverage. Cancellation was mandated upon conclusion of the contract between Curley and the Union by the terms of the trust indenture and the Bylaws of the Master Printers Section of PIA, and Curley could do nothing to forestall it once the contingency requiring cancellation of the insurance coverage occurred. In such circum- stances, we cannot find any unlawful action by Cur- ley against his employees. We shall therefore dismiss the 8(a)(3) allegations of the complaint as to all Respondents. The complaint also alleges a violation of Section 8(a)(5) by Curley. As already noted, however, ter- mination of the insurance was not the result of uni- lateral action by Curley, for Curley was without power to prevent it. Further, the Union was aware of the probability of cancellation of the insurance but it made no effort to negotiate a substitute pro- gram. Significantly, it was Curley who broached the subject during negotiations by inquiring whether the Union had an existing insurance program. Curley then negotiated with the Union about a substitute program even though the Union had confined its bargaining demands to acceptance of its area con- tract, which did not provide insurance coverage. There is no warrant in these circumstances for a finding that Curley refused to bargain in violation of Section 8(a)(5) of the Act. For these reasons, we shall dismiss the complaint in its entirety as recommended by the Trial Ex- aminer. 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 the complaint herein be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Trial Examiner: Upon a charge and amended charges of unfair labor practices filed by the above-named Union on July 12, September 23, and Oc- tober 24, 1966, an amended complaint, dated November 15, 1966, was issued which, as amended at the hearing, alleges that the Respondents Curley Printing Company, Printing Industry of Nashville, Inc., and Printing Indus- tries of America, Inc..' have engaged in and are engaging I The name , Pnnting Industries of America, Inc . appears as amended at the hearing. 169 NLRB No. 50 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. Respondents filed answers to the amended complaint which generally deny that they have engaged in the alleged unfair labor practices and contain affirma- tive averrals in support of their defenses. A hearing in this proceeding was held on January 23, 1967, in Nashville, Tennessee, at which all parties were represented. Sub- sequent to the hearing, the parties filed briefs which have been carefully considered. Upon the entire record in the case, and from my obser- vation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF CURLEY PRINTING COMPANY Curley Printing Company , herein called Curley or the Company , a Tennessee corporation , is engaged in com- mercial printing at its principal place of business located in Nashville , Tennessee. During the 12 months preceding the issuance of the amended complaint , the Company manufactured , sold, and shipped from its Nashville, Ten- nessee , plant products and materials valued in excess of $50,000 directly to points outside the State of Tennessee. Curley admits , and I find, that it is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union, above named, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union on June 21, 1965, was certified as the representative of Curley's bindery employees.2 Collective-bargaining negotiations were begun the follow- ing month and an agreement between Curley and the Union was executed on April 28, 1966. The controversy in this proceeding centers about the cancellation of the hospitalization and medical insurance benefits for Cur- ley's bindery employees on June 30, 1966, 1 month after the execution of the contract. There is some confusion, as is reflected by the varying statements of issues set forth in the parties' respective briefs, as to what are the specific issues in this case. However, because the allegations of the complaint are couched in general terms, an analysis of the pleadings and the issues framed thereby will be more comprehensible following a summary of the operative facts. Printing Industries of America, Inc. (herein called PIA), a New York corporation, is an association of em- ployers in the printing industry. It was formed in 1944 or 1945 through the amalgamation of three trade associa- tions. Partly because of this history, the PIA maintains two somewhat .-_:)nomous sections, which are the "Union Employers Section of the Printing Industries of America, Inc.," and the "Master Printers Section of :1 ne unit as described in the Board's certificate is composed of all bin- dery, shipping, mailing, and stockroom employees at Curley's Nashville, Printing Industries of America, Inc." The Union Em- ployers Section, as its name implies, is composed of PIA members who have collective-bargaining agreements with labor organizations in the trade, while the Master Printers Section is composed of PIA members who operate without collective-bargaining agreements. A PIA member may be a member of both sections if some of its production employees are unorganized and some are covered by a collective-bargaining agreement. Under the revised bylaws of the Master Printers Section member- ship is restricted to employers "who do not have any union shop contractual relations with labor organizations covering all their production departments; provided, however, that any department having contractual rela- tions with any such labor organizations shall not be in- cluded under this membership for the purpose of par- ticipating in or utilizing the programs and benefits of membership." In 1950 the Master Printers Section made arrange- ments to provide a group insurance program for its mem- bers. A Group Insurance Trust Fund, "maintained by contributions from employer members of the [Master Printers Section] for the sole benefit of the employees of such contributing members and the partners thereof" and administered by designated Trustees, was established. A contract was entered into between the Trustees and the John Hancock Life Insurance Company pursuant to which a policy of insurance has been issued. Of approxi- mately 3,000 members in the Master Printers Section about 360 have elected to participate in the insurance program. Under the terms of the insurance policy eligi- bility for coverage is limited to full-time employees of a "Contributing Employer," who is defined as an employer who contributes to the Master Printers Section Group In- surance Trust Fund. Contributors to the Fund by the terms of the Trust Indenture are limited to members of the Master Printers Section. Curley, who is a member of the Master Printers Sec- tion, became a participant of the group insurance program as of March 1960. Under the policy subscribed to by Cur- ley, medical and hospitalization coverage has been pro- vided for its employees on a contributory basis, that is, the monthly premium payments for the insurance has been shared equally by Curley and each participating em- ployee. Not all of Curley's eligible employees chose to avail themselves of the insurance and, as of June 1966, of 29 employees in the bargaining unit represented by the Union, only 14 were covered by the group insurance pol- icy. In an earlier unfair labor practice proceeding against Curley, which is reported at 159 NLRB 1489, the Board had before it certain questions touching on the group in- surance program. It was found that on June 7, 1965 (prior to the election conducted on June 11, 1965), Curley's general manager, David P. Brumfield, Jr., in a speech to the employees told them that their insurance benefits would be canceled if the Union were voted in. The General Counsel contended that Brumfield's statement constituted a threat of loss of benefits in violation of Sec- tion 8(a)(1) of the Act. At the hearing, held in September 1,965, Curley as part of its defense introduced in evidence a letter from David F. Bacon, executive director of the Tennessee, plant, excluding all other employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act. CURLEY PRINTING COMPANY 253 Printing Industry of Nashville, Inc. (herein called PIN),3 which, in pertinent part, stated: This insurance is a group insurance program where the eligibility requirements for participation are those employees in open shops who are not covered by a collective bargaining agreement. Employees being covered by a collective bargaining agreement would no longer be in this group and therefore , their in- surance would be cancelled. Regarding the issue raised by the General Counsel's con- tention and Curley's defense thereto, the Board adopted the following conclusions of the Trial Examiner: Considering all the foregoing, it may be stated that Brumfield's statements as to the effect of the "Union's getting in" were not accurate. The advent of the Union's getting in the plant, according to the letter of September 10, 1965, did not cancel the em- ployees insurance program . The cancellation of the insurance program was dependent upon the em- ployees' being covered by a collective-bargaining agreement. Furthermore, Brumfield's statements as to the 'cancellation of insurance benefits is tan- tamount to a revelation to employees that Respond- ent would not in good faith negotiate with the Union as to insurance benefits and thus reveal that contem- plated future lack of insurance benefits by the em- ployees if the Union were selected by the employees would be caused by the Respondent's opposition to the Union. Accordingly, I find that Respondent, by Brumfield's statement relating to cancellation fo in- surance benefits , engaged in conduct violative of Section 8(a)(1) of the Act. Although the Board accepted as a fact in the case that the group insurance policy automatically would be can- celed for employees who become covered by a collective- bargaining agreement , nevertheless, the Board did not make any finding that Curley was guilty of any violation of the Act by maintaining in effect such an insurance pro- gram. Furthermore, the Board made no finding nor did it suggest in its Decision that the cancellation of the in- surance benefits in these circumstances would constitute a violation of the Act . The Board's specific finding was that Brumfield's incriminatory statement constituted ad- vice to the employees that, because of its opposition to the Union, Curley would not bargain with the Union in good faith about insurance benefits if the Union were to be selected by the employees in the then pending election and therefore the employees would lose such insurance benefits. Thus, the violation of the Act, as explicated by the Board in its Decision, was limited to the anticipatory refusal on the part of Curley to bargain about insurance benefits . In connection with this violation, the remedy or- dered in the case was that Curley should cease and desist from "refusing to bargain collectively concerning . conditions of employment," and upon request bargain collectively about such subjects.4 Negotiations between Curley and the Union were begun in July 1965 and were concluded on April 28, 1966, when the parties executed an agreement.5 Murray McKenzie, president of the Union, headed the Union's negotiating committee and David P. Brumfield, Jr., represented Curley during the negotiations . McKenzie testified that prior to July 1965, employees of Curley had reported to him that they had been told by a representa- tive of the Company that if Curley entered into a contract with the Union they would lose their medical and hospitalization insurance benefits . This information was confirmed by evidence adduced at the prior unfair labor practices hearing held in September 1965. Nevertheless, at no time during the negotiations did McKenzie or any other member of the Union's bargaining committee raise any question regarding such insurance . At the first bar- gaining session in July 1965, McKenzie submitted to Brumfield the Union's so-called area contract for Nash- ville,s and told Brumfield that the Union desired the same terms from Curley. The area contract contains no provi- sion for medical or hospitalization insurance. Brumfield testified without contradiction that following one of the bargaining sessions held in November or December 1965, he asked McKenzie if the Union had an insurance program and McKenzie replied that it did not. However, Brumfield did not at any time during the negotiations raise any question about the medical and hospitalization insurance for the bindery employees. The contract ex- ecuted on April 28, 1966, makes no direct reference to such insurance benefits. This, the Company argues, reflects the unarticulated understanding of the contract- ing parties that Curley was no longer required to provide such insurance for the bindery employees. In support of this contention it is pointed out that while the contract does not have a maintence-of-past practices provision (a clause to the effect that, except as modified by the provi- sions of the contract, all existing terms and conditions of employment will continue unchanged), Section 8 of the instrument provides: All economics are covered by Section 4 (Working Hours, Overtime, Saturday, Sunday and Holidays), Section 5 (Holidays), Section 6 (Vacations), Section 7(Wage Scales), and represent all economics either direct or indirect pay and/or fringe benefits. On June 28, 1966, Brumfield informed McKenzie by telephone that the insurance for the bindery employees was going to be canceled and suggested a meeting to discuss the matter, which was held the next afternoon. The meeting was attended by Brumfield, McKenzie, and Boyd Mitchell , an international representative of the Union. Brumfield advised McKenzie and Mitchell that the medical and hospitalization insurance for the bindery employees was being canceled by the PIA or the PIN as of midnight on June 30. Brumfield further informed them that he had been investigating possible substitute pro- grams and found that comparable policies were offered by 3 PIN, a Tennessee corporation , is a trade organization of employers in the punting industry in the Nashville, Tennessee , area. The relationship between the PIN and the PIA has not been made altogether clear in the record However, regarding the Master Printers Section 's group insurance program , the brief submitted on behalf of PIN and PIA states that PIN transmits "premium payments on behalf of all Nashville's participating employers to the representative of the trustees in turn for payment to the insurance company. It also assists claimants in preparing their claims for submission to the insurance company for payment ." This statement is generally in accord with the testimony given at the instant hearing. In ad- dition, Brumfield testified that on June 1, 1966, he informed the executive director of the PIN that Curley had entered into a collective -bargaining agreement covering its bindery employees and as of June 30, 1966, the group insurance for such employees was terminated without any further action on Curley's part 4 Curley was also ordered to cease and desist "from threatening its em- ployees with .. loss of benefits " 5 The General Counsel's position as stated at the hearing is that "[w]e are not alleging overall bad faith bargaining with regard to contract proposals or changes." 6 The contract, which is for a 3-year term beginning November 15, 1964, is between the Union and five printing firms. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Blue Cross and Liberty Life and that the latter policy most closely paralleled the current benefits offered under the John Hancock group insurance policy. Brumfield showed the union representatives the Blue Cross and Liberty Life policies and explained to them that the premium cost of these policies was greater than for the John Hancock group policy. Brumfield advised them that Curley was willing to contribute the same amount towards the substitute insurance as it had been contribut- ing towards the existing insurance, but that the increase in the premium rates would have to be paid by the em- ployees.7 McKenzie suggested that the Company should absorb the increase in the premiums, or at least part of it, but Brumfield replied that the Company was not willing to add to its insurance costs. According to McKenzie, Brumfield suggested that the substitute policies should be submitted to the bindery employees for their acceptance or rejection. He reminded McKenzie that the Company was not required to furnish the bindery employees with any medical or hospitalization insurance. According to McKenzie's further testimony, it was then agreed that the union representatives should meet with the bindery em- ployees the next day in order to "explain to the people what was happening to the insurance and to present the two proposals to the employees and to see if they wanted to accept it with this additional cost or what they wanted to do." About 4 p.m. on June 30, McKenzie and Mitchell held a meeting at the plant with the bindery employees. Brumfield was not present. After some discussion it was decided to wait for Brumfield's return in order to obtain from him explanations regarding the costs of the sub- stitute insurance and other matters. When Brumfield ar- rived about 5 p.m., he gave the employees the information they wished regarding the additional cost of the substitute insurance. A discussion then took place as to why the ex- isting insurance was being terminated. According to McKenzie: [Brumfield] told the people that the PIN was can- celling the insurance due to the fact that they did have a contract with the Bookbinders Union. At this particular time there was some discussion by some of the employees, and one in particular asked Mr. Brumfield if they wasn't penalizing the employees in the bindery and mailing room for join- ing the union by cancelling the insurance, and Mr. Brumfield told them no, that he wasn't penalizing them, that it was the PIA that was cancelling the in- surance, and they said-I believe this was Melrose Johnson, and she said, "Well, then, why don't you cancel it in the other departments, or are the other people in the other departments going to have their insurance cancelled?" He said, "No." She said "That's penalizing us and not penalizing them." She said, "Why don't you cancel it throughout the plant?" He said he couldn't do that, that if he can- celled it in the other departments that would be penalizing those people. Following the discussion the bindery employees voted by secret ballot as to whether they wished to accept or re- ject the substitute insurance offered to them and they voted to reject it. After the employees' vote was an- nounced, according to McKenzie, Brumfield said to him and Mitchell that "he wasn't obligated to furnish them any insurance, that he had done all he could do and he was just going to wash his hands of it. Boyd Mitchell and myself said, `well, we are going to have to, if we can't work out an agreement we are going to have to file charges to try to get these people's insurance back', and Mr. Brumfield said at that time that he did not think that we should file charges against Curley Printing Company, because Curley wasn't responsible for cancelling the in- surance, they didn't have any choice, that it was cancelled through the PIA." There were no subsequent meetings between the Union and Curley regarding insurance coverage and no evidence was adduced that after June 30, 1966, the Union requested any meeting with Curley to discuss this subject of medical and hospitalization in- surance for the bindery employees.8 B. The Issues The complaint herein, as finally amended, alleges viola- tions of Section 8(a)(1), (3), and (5) of the Act on the part of Curley and violations of Section 8(a)(1) and (3) on the part of PIN and PIA. As will be seen from the analysis of the complaint, the unlawful conduct alleged relates only to Curley's bindery employees represented by the Union and the alleged responsibility therefor on the part of the PIN and the PIA, as agents of Curley, is dependent on and derivative of Curley's primary responsibility. There is an issue as to whether PIN and PIA acted as agents of Curley with respect to certain of the alleged unlawful con- duct and, as such agents, are employers within the mean- ing of the Act subject to the remedial processes of the Board. However, because, for reasons explicated below, I find that Curley has been guilty of no unfair labor prac- tices within the framework of the pleadings, it is unneces- sary to decide this question.9 Apart from the jurisdictional and formal allegations of the complaint, the relevant paragraphs thereof are the fol- lowing: Paragraph 9: which describes the appropriate unit of Curley's bindery employees. Paragraphs 10, 11, 12, and 13: which refer to the cer- tification of the Union, the Union's request to bargain and the execution of the collective-bargaining agreement between the Union and Curley covering the employees in the unit described in paragraph 9.10 Paragraph 14: "At the time the collective bargaining agreement, referred to in paragraph 13 above was entered ' Under the existing group insurance policy an employee's premium was $4.90 per month for single coverage or $9.68 per month for coverage which included dependents. The employees' premium payments were matched by Curley. Under the substitute policies the aggregate increase in premium cost was $3 . 16 per month for single coverage and $4.40 per month for coverage which included dependents. 8 There are discrepancies in the testimony of McKenzie, Mitchell, and Brumfield as to what was said and what transpired at their meetings on June 29 and June 30 and as to whether there was an additional meeting in early July. For the most part, I have credited the testimony of McKenzie who impressed me as having the clearest recollection of the events. The summary of facts as set forth above reflects my resolution of such con- flicts as exist among testimony of the various witnesses. 9 The relevant allegations of the complaint regarding the status of PIN and PIA are to the effect that PIN and PIA have been agents of Curley, acting on its behalf, are "agent[s] within the meaning of Section 2(13) of the Act, and [are] employer[s] within the meaning of Section 2(2) of the Act." Thus, as pleaded in the complaint, the Board's jurisdiction in this case over PIN and PIA is based solely upon their alleged status and al- leged conduct as agents of Curley. 1° Paragraph 13 of the complaint erroneously states that the contract was executed March 28, 1966, instead of April 28, 1966. CURLEY PRINTING COMPANY into between Respondent Curley and the Union, Re- spondents had in force and effect a group life, medical and hospitalization insurance policy covering the employees in the unit described above in paragraph 9, which policy was offered and maintained by Respondent P.I.N. and Respondent P.LA." (Emphasis added.) Paragraph 15: "Respondents P.I.N. and P.I.A. require elibility for participation in and coverage of employees under the group policy referred to in paragraph 14 above to be dependent upon employees' not being covered by any collective bargaining agreement." (Emphasis added.) Paragraph 16: "On or about June 30, 1966, Respond- ents unilaterally canceled the group policy referred to in paragraph 14 and 15 above." Paragraph 17: "Respondent Curley on or about June 30, 1966, at a meeting with employees at its Nashville, Tennessee, plant, by its supervisor and agent, David P. Brumfield, told employees that: - "(a) Their hospitalization and medical insurance coverage was being canceled because Respondent Curley had signed a contract with the Union. "(b) They had been warned during the organizational campaign that if the Union came in their insurance would be canceled. "(c) Respondent Curley's unrepresented employees did not select the Union to represent them, and, there- fore, their insurance was not canceled." Paragraph 18: which recites that by the acts described in paragraphs 15, 16, and 17 Curley has violated Section 8(a)(1) of the Act. Paragraph 19: which recites that by the acts described in paragraph 16 all named Respondents have violated Section 8(a)(3) of the Act. Paragraph 20: which recites that by the acts described in paragraph 16 Curley has refused to bargain collective- ly with the Union in violation of Section 8(a)(5) of the Act. Paragraph 21: which recites that by the acts described in paragraphs 15 and 16 PIN and PIA have violated Sec- tion 8(a)(1) of the Act. As I read the complaint, paragraph 18 alleges that Cur- ley has violated Section 8(a)(1) by reason of the follow- ing: (a) Maintaining in force a group medical and hospitalization insurance policy covering Curley's bin- dery employees, which policy was offered by PIN and PIA subject to the restriction that employees covered by any collective-bargaining agreement are not eligible to participate in the insurance program. (b) Unilaterally canceling said group medical and hospitalization insurance for Curley's bindery employees. (c) The described remarks made by Brumfield on June 30, 1966, at a meeting of the bindery employees. Paragraph 21 alleges violations of Section 8(a)(1) of the Act on the part of PIN and PIA by reason of the same two matters described in (a) and (b) immediately above. As the allegations in this paragraph refer to the group in- surance program which was maintained in force for Cur- ley's bindery employees and to its cancellation, the viola- tions of the Act alleged in this paragraph are dependent on and derivative of the violations alleged in paragraph 18. Thus, unless it is first found that Curley has violated 11 Only Curley (not PIN or PIA) was subject to any obligation to bar- gain with the Union Thus, only Curley could take unilateral action vis-a- vis the Union The theory of this allegation seems to be that Curley was delinquent in the fulfillment of its bargaining obligations and that PIN and 255 the Act in respect to the matters referred to in paragraph 21 there is no basis for finding any such violations of the Act on the part of PIN and PIA. Paragraph 19 alleges that the three Respondents have violated Section 8(a)(3) by reason of the alleged unilateral cancellation of the group medical and hospitalization in- surance policy covering Curley's bindery employees." Paragraph 20 alleges that the unilateral cancellation of the group insurance benefits for the bindery employees constituted a refusal to bargain on the part of Curley in violation of Section 8(a)(5). The answers to the complaint are in effect general deni- als. Thus, the accusatory allegations of the complaint described above delineate the issues in this proceeding. In the light of the complaint and the answers thereto I find that the following subjects which the General Coun- sel sets forth in his brief as issues are not within the scope of the pleadings and, therefore, do not describe issues which properly have been raised for consideration in this proceeding: (a) "Is the group hospitalization and medical insurance plan offered by Respondent P.I.A. inherently unlawful in its requirement that coverage for employees of member- employers be contingent upon their not being covered by a collective-bargaining agreement?" This question, as phrased, is directed to the group insurance program of the PIA in its entirety and is not limited to the application of the program to Curley's bindery employees. Accordingly, the subject of the question is outside the scope of the complaint. As pointed out above, in connection with the analysis of the complaint, all alleged violations herein re- late only to the certified unit of Curley's bindery em- ployees. (b) "Was the cancellation of the hospitalization and medical insurance coverage made without prior notifica- tion thereof to the Union, or did the Union have sufficient notification of impending cancellation to obligate it to request bargaining?" There is no dispute that during their negotiations Curly did not specifically advise the Union that the insurance would be canceled for the bindery wor- kers, nor is there any dispute that at all material times, both before and after the commencement of negotiations, the Union knew that the insurance would be canceled upon the execution of a contract. These facts, not in dispute in this case, are not issues requiring a decision between conflicting positions. Thus, the only possible issue posed by the question is whether the Union was obligated to request bargaining. While a labor organiza- tion in various circumstances may have a right to request an employer to bargain with it and the refusal of the em- ployer to honor such request may be an unfair labor prac- tice, there is no provision of the Act which imposes on a labor organization an obligation to request bargaining. Thus, the question does not pose a cognizable issue in this case. (c) "Did the Union waive its right to bargain regarding cancellation in the circumstances herein?" This question, also, seeks to raise an irrelevent issue. Curley does not contend in its defense that the Union has waived its right to bargain regarding the cancellation of the medical and hospitalization insurance. To the contrary, as appears from the summary of facts above, even after the execu- PIA were responsible for the cancellation of the insurance and, therefore, the alleged unlawful result was the product of the combined action of all Respondents for which they are jointly responsible 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of the contract, Curley began negotiations about this subject when Brumfield on June 28, 1966, initiated discussions with the Union's representatives about the substitution of alternate insurance for the group policy that was going to be canceled. On the other hand, there is a question in the case as to whether or not by the terms of the collective-bargaining agreement of April 28, 1966, the parties, directly or inferentially, agreed that Curley was no longer required to provide the medical and hospitalization insurance. However, an agreement by the parties to discontinue an existing benefit is something separate, and entirely apart, from a waiver by the Union of the right to bargain about such benefit during the negotiation of a contract or after the execution of a collec- tive-bargaining agreement. (d) "Are the provisions of the Union's contract with Respondent Curley a foreclosure of the Union's right to bargain in regard to cancellation of the insurance benefits?" For the reasons stated above this question does not present any cognizable issue . There is no evidence in this case that Curley at any time, either dur- ing the negotiations or following the execution of the April 28, 1966, contract, refused to discuss, negotiate, or bargain with the Union about medical and hospitalization benefits for its bindery workers or about the cancellation of the group policy which was provided for the bindery employees prior to June 30, 1966. It may be that any bar- gaining about continuing the identical policy would have been useless because it was not within the power of Cur- ley to continue the policy following the execution of a col- lective-bargaining agreement covering the bindery em- ployees. However, at no time did Curley refuse to discuss the subject, and the Union could have proposed sub- stitute programs. Thus, there is no issue in this case that any provision of the contract constitutes a foreclosure of the Union's "right to bargain" in regard to the cancella- tion of the insurance benefits. However, an issue, as stated above, is whether the contract contains a direct or inferential agreement which permitted cancellation of the medical and hospitalization insurance for the bindery em- ployees. C. Conclusions First for consideration is whether, in the circumstances here, a violation of Section 8(a)(1) of the Act has been spelled out because Curley had in effect a group medical and hospitalization insurance program covering the em- ployees in the bindery unit which automatically would be terminated upon the execution of a collective-bargaining agreement.12 The general' principle is that an employer violates the Act if he discriminates against employees 12 The complaint alleges that this unfair labor practice occurred "[a] t the time the collective-bargaining agreement . . . was entered into." General Counsel does not explain why this date. was used in the complaint as the date on which the alleged unfair labor practice commenced. It is noted that Curley inaugurated the insurance program for the bindery em- ployees (as well as its other employees) in 1960 so that the alleged unlaw- ful program was in effect during all times relevant to the case reported at 159 NLRB 1489. It is noted further that the first charge in the instant proceeding was filed on July 12, 1966, so that the 10 (b) limitations date was January 12, 1966. ' Dura Corporation, 156 NLRB 285, and cases there cited. Panaderia Sucesion Alonso, 87 NLRB 877, 881-882. See also General Electric Company,' 161 NLRB 615; Central States Petroleum Union, Local 115 (Standard Oil Co.), 127 NLRB 223, affd. sub nom. represented by a labor organization with respect to eligi- bility or qualification for any employment benefits.13 However, not every impingement upon the rights granted employees by the Act constitutes an unfair labor prac- tice." Many situations present a complex of conflicting considerations which require the Board to strike a balance between legitimate competing interests that will best ef- fectuate national labor policy. In such cases the Board's "special function [is to apply] the general provisions of the Act to the complexities of industrial life . . . and of `[appraising] carefully the interests of both sides of any labor-management controversy in the diverse circum- stances of particular cases' from its special understanding of `the actualities of industrial relations."' 15 Here, despite the seemingly discriminatory feature of the medical and hospitalization insurance program which Curley provided for its bindery employees prior to June 30, 1966, I find, for the reasons explicated below, that there has been no violation of the Act with respect thereto.16 In the prior unfair labor practice proceeding against Curley, reported at 159 NLRB 1489, the Board had be- fore it for consideration the alleged unlawful feature of Curley's insurance program. Although the specific find- ing in the case was that "Brumfield's statement relating to cancellation of insurance benefits" constituted a violation of Section 8(a)(1) of the Act, the Board also adverted to the fact that "[t]he cancellation of the insurance program was dependent upon the employees' being covered by a collective-bargaining agreement." The affirmative remedy ordered by the Board to cure this infringement of the Act was a direction to Curley, upon the request of the Union, to bargain about the conditions of employment (including insurance benefits) of its bindery employees. There was no direction that Curley delete the objectiona- ble condition from its insurance program, which is the customary remedy of the Board in cases where an em- ployer unlawfully limits eligibility or qualification for an employment benefit to unrepresented employees.'7 The Decision does not explain this omission. One speculative possibility for the omission is that, despite the fact that the Decision makes specific reference to the purportedly discriminatory character, of the insurance program, the Board did not consider that feature of the program as hav- ing been properly raised as an issue in the case. However, another, and even more cogent, possibility is that the Board deemed that its bargaining order was the only prac- tical remedy available - at least insofar as it related to the bindery employees. For, Curley had no direct control over the administration of the insurance program and alone could not effect any change in the program. It thus would not have been practical for the Board to have or- dered Curley to delete the purportedly discriminatory Local483, Boilermakers v. N.L.R.B., 288 F.2d 166,cert. denied 368 U.S. 832; N.L:R.B. v. Whiting Milk Corp., 342 F.2d 8 (C.A. 1); Firestone Synthetic Fibers Company v. N.L.R.B., 374 F.2d 211 (C.A. 4). 15 N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 236. 16 There are suggestions in the record that the medical and hospitaliza- tion insurance program is still maintained by Curley for employees other than the bindery workers. However, the complaint contains no allegation that Curley is maintaining in force an unlawful insurance program for such other employees and this question was not litigated at the hearing. 17 E.g., Melville Confections, Inc., 142 NLRB 1334, enfd. 327 F.2d 689 (C.A.7), cert.denied 377 U.S. 933; Toffenetti Restaurant Company, Inc., 136 NLRB 1156, enfd. 311 F.2d 219 (C.A. 2), cert. de- nied 372 U.S. 977. CURLEY PRINTING COMPANY 257 feature from the group medical and hospitalization in- surance program because Curley was without the power to do so. The Board may not have desired to issue an order directing Curley to eliminate the insurance program entirely because such remedy would have penalized the employees by removing a substantial benefit which they then enjoyed and, in the circumstances, would not have served to effectuate the purposes of the Act. Ac- cordingly, a direction to Curley to bargain about condi- tions of employment (including medical and hospitaliza- tion insurance) for its bindery employees was best calcu- lated to strike a balance between the theoretically most desirable remedy (to at once eliminate all possible dis- criminatory features of the insurance program) and a reasonably practical remedy. Such order, it seems to me, was best calculated to permit the interested parties, namely Curley and the Union, through their joint bargain- ing efforts pursued in good faith, to eliminate, or to find a statutorily compatible substitute for, the existing and possibly discriminatory insurance program. The problem may be viewed from another vantage. As- sume that Curley recognized that the medical and hospitalization program covering its bindery employees was in violation of the Act because it would terminate au- tomatically upon the execution of a collective-bargaining agreement, what, as a practical matter, could Curley have done to rectify the situation between the date on which the Union was certified and the date on which it entered into a contract with the Union. For Curley to have can- celed the existing program and to have installed a sub- stitute program without consulting or bargaining with the Union would have constituted a unilateral change in a condition of employment in violation of Curley's statuto- ry bargaining obligations. Thus, the only practical and lawful course available to Curley by which it could have extricated itself from the situation in which it found itself was to bargain with the Union about the subject.18 The Decision and Recommended Order of the Trial Examiner in the prior case, which was later adopted by the Board without any substantial modification, was issued on March 16, 1966, more than a month before the execution of the contract between Curley and the Union on April 28, 1966. To the extent that Curley may have looked to such Decision for guidance as to the proper course of ac- tion to pursue it finds there only a direction to bargain col- lectively with the Union about the subject. This it did. General' Counsel does not contend that Curley in any respect failed in its bargaining obligations prior to the ex- ecution of the agreement with the Union on April 28, 1966. Accordingly, because of these considerations, con- trary to the General Counsel, I find that "[at] the time the collective bargaining agreement ... was entered in- to," Curley was not engaged in any unfair labor practices by reason of any ciscriminatory feature of the group medical and hospitalization insurance program which it had in force for the' bindery employees, because it had remedied any possible unfair labor practice on its part in relation thereto by engaging in good-faith collective bar- gaining with the Union about the conditions of employ- ment of its bindery' employees in accordance with the Order of the Board in 159 NLRB 1489. The next issue for consideration is General Counsel's contention that the cancellation of the medical and hospitalization insurance for the bindery employees was a unilateral act on the part of Curley in violation of its statutory collective-bargaining obligations. The evidenti- ary basis for this position rests entirely on the purported fact that Curley did not give to the Union specific, timely advance notice that the insurance was going to be can- celed as of June 30, 1966. This alone, particularly in the circumstances present here, does not spell out an unlaw- ful unilateral change of a condition of work. Ordinarily, a violation of Section 8(a)(5) stems from an employer's negative response to a union's request (i.e., refusal to negotiate, refusal to provide information, etc.) so that a request from the employees' representative usually is a prerequisite to such unfair labor practice. However, com- pliance with the statutory obligation to "confer in good faith with respect to wages, hours, and other terms and conditions of employment" presupposes that the em- ployer will not change wages or working conditions without first giving his employees' representative an op- portunity to consult and to bargain with him about the proposed change. Failure to afford such opportunity to his employees' representative is the equivalent of an an- ticipatory denial of the representative's request to negotiate about the subject and hence a constructive refusal to bargain. This follows from the fact that the statutory duty to bargain collectively presupposes that an employer will not impede or frustrate the bargaining process which is the almost inevitable result of a uni- lateral change in the terms and conditions of employment whereby the employees' representative is presented with a fait accompli. Furthermore, unilateral action by an em- ployer which denies to a labor organization effective par- ticipation in a significant area of the bargaining relation- ship tends to subvert the organization's position as the representative of employees and thus to interfere with the right of the employees to bargain collectively through representatives of their own choosing. 19 The sine qua non of an unlawful unilateral act is a change in a condition of employment made in such manner as effectively to deprive a labor organization of an opportunity to bargain with the employer about the change. Most frequently an unlawful unilateral act is characterized by an absence of notice to the union of the contemplated change. However, absence of notice is not the touchstone of the violation. The issue in each case is "whether in the light of all the circumstances there existed reasonable opportunity for the Union to have bargained on the question before unilateral action was taken by the employer. Notice is important only as it bears upon whether there actually was such opportunity." 20 In this case, months before the negotiations began, the Union knew that the medical and hospitalization in- surance for the bindery employees whom it represented would be canceled following the execution of a contract. Union President McKenzie testified that he received such information from employees as early as April 1965. At the hearing in the prior case, held in September 1965 (also arising out of charges filed by the Union and at which the Union was represented by the same counsel 18 As to unrepresented employees Curley , of course , can correct the problem by discontinuing ,the discriminatory insurance program and sub- stituting a nondiscriminatory program. 19 Ariel Offset Co., Inc, 149 NLRB 1145, 1156 See also N.L._R B. v. Insurance Agents' International Union [Prudential Ins. Co ], 361 U S. 477, 485; May Department Stores Co v. N L.R B., 326 U.S 376, 384-385, Carpinteria Lemon Association v. N.L R.B., 240 F.2d 554, 557 (C A 9), cert denied 354 U.S 909. 20 N L.R B v. Cone Mills Corporation, 373 F.2d 595, 599 (C.A 4) See also N L.R.B. v. Frontier Homes Corporation , 371 F 2d 974, 978-979 (C.A 8). 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who represented it in the instant hearing), there was in- troduced in evidence a letter from the executive director of the PIN which clearly and specifically advised that the insurance would be canceled for employees who become covered by a collective-bargaining agreement . The letter was quoted in its entirety in the Decision of the Trial Ex- aminer which was issued on March 16 , 1966. In these cir- cumstances , advice directly from Curley to the Union that the medical and hospitalization insurance for the bin- dery workers would terminate following the execution of a collective-bargaining agreement would have been repetitious of information which Curley knew the Union had. Thus, contrary to the General Counsel , I find that the Union had ample notice that the medical and hospitalization insurance for the bindery workers would terminate following the execution of a collective-bargain- ing agreement . Despite such knowledge the Union did not at any time during its negotiations with Curley raise any question regarding the insurance . L1 There is no evidence that Curley took any action to deprive the Union of an opportunity to discuss the insurance question during their negotiations or that for any other reason the Union was foreclosed of a reasonable opportunity to bar- gain with Curley about the subject.22 Furthermore, I find that the terms of the April 28, 1966, contract permitted Curley to abrogate the medical and hospitalization in- surance for its bindery employees. At the outset of the negotiations the Union submitted to Curley its area con- tract and represented the instrument as containing a complete list of its bargaining demands. This contract does not provide for medical and hospitalization in- surance benefits . Also, although the Union knew that the existing insurance program for the bindery employees would be canceled upon the execution of a collective-bar- gaining agreement it did not, at any time during the negotiations , supplement the demand of the area con- tract by requesting some form of medical and hospitaliza- tion insurance. In the light of these circumstances, the reasonable interpretation of Section 8 of the April 28, 1966, agreement , quoted in full above, is that it con- stituted acquiescence on the part of the Union to the discontinuance of the medical and hospitalization in- surance. Finally, on June 28 , 1966, prior to the termina- tion of the insurance for the bindery employees, Brum- field upon his own initiative began discussions with the Union's representatives about instituting a substitute plan. The Union ultimately rejected Curley's offers without proposing any alternatives or seeking further negotiations about the subject . These circumstances reflect not an attitude of opposition on the part of Curley to the fulfillment of its statutory bargaining obligations, but rather a readiness to do even more than the bare minimum to satisfy the requirements of the Act.23 Accordingly, I find that the cancellation of the medical and hospitalization insurance for the bindery employees was not an unlawful unilateral action. I also find no merit to General Counsel's contentions that the remarks made by Plant Manager Brumfield to the bindery employees on June 30 , 1966, were unlawful. From the summary of the facts set forth above it appears that Brumfield was invited to attend the meeting of the bindery employees at which they were discussing the sub- stitute policies proposed by Curley in place of the medical and hospitalization insurance which was being canceled. It was in response to questions put to Brumfield that he explained to the bindery employees that their insurance was being canceled because they were covered by a col- lective-bargaining agreement and that the insurance con- tinued for other employees of the Company. These re- marks were made by Brumfield in connection with the employees' consideration of the substitute programs being offered to them by Curley and not in a context sug- gesting that Brumfield was somehow seeking to impress on the bindery employees that they were being penalized for having selected the Union as their representative. In the circumstances, I do not find Brumfield's statements constituted an unlawful infringement of employees' rights. As I find that Curley has not engaged in any of the un- fair labor practices alleged in the complaint , I shall recommend that the complaint be dismissed as to it. Further, as the unfair labor practices charged against PIN and PIA in this case are derivative of and dependent on the unfair labor practices charged against Curley , I shall also recommend that the complaint be dismissed as to them. CONCLUSIONS OF LAW Respondents have not violated Section 8 (a)(l), (3), and (5) of the Act as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the findings of fact and conclusions of law, and upon the entire record in this case , I recom- mend that the complaint in this case be dismissed in its entirety. 21 Lakeland Cement Company, 130 NLRB 1365, 1374-75; Ilfeld Hardware & Furniture Co, 157 NLRB 1401, Edward Axel Roffman As- sociates, Inc , 147 NLRB 717,723-724 The General Counsel argues in his brief that to find "that the announcement to the employees during the preelection campaign of threats of insurance cancellation and litigation of this issue constitute notification to the Union , places upon the Union the unwarranted and unjustified duty to give to the employer's unlawful act a sanctity not in any circumstances contemplated in effectuating the Act. The Union was under no duty or obligation to treat in any way the infor- mation disclosed in these circumstances as a notification to it of changes in existing insurance coverage so as to require it to make request to bar- gain on this matter " To the extent that the General Counsel argues any facts relied on by the Board to support its unfair labor practice findings in the prior case could be ignored by the Union even if relevant to the Union's collective-bargaining negotiations, his argument is unsound To the extent that the General ' Counsel argues that by attributing to the Union knowledge that the medical and hospitalization insurance for the bindery employees would be cancelled upon the execution of 'a collective- bargaining agreement imposes a requirement on the Union "to make request to bargain on this matter," he misconceives the nature of the issue The alleged violation here does not turn on whether there was a require- ment that the Union request bargaining about the cancellation of the in- surance, but on whether the Union had an opportunity to negotiate about the subject, if it desired to do so , before the cancellation of the insurance I find that it had such opportunity Furthermore , as has been pointed out above, so far as the record herein shows Curley has complied with the relevant parts of the remedial order in the earlier case. Therefore , I do not agree with the General Counsel that there would be a subversion of the purposes of the Act in this case by charging the Union with notice that the medical and hospitalization insurance for the bindery employees would be cancelled upon the consummation of a contract with Curley 22 While it probably would have been futile for the Union to have requested that the identical insurance coverage should be continued for the bindery employees , the Union, if it had desired to do so, could have bargained for a substitute insurance policy The discussions between Brumfield and the union representatives which were held at the end of June 1966 suggest that Curley would not have resisted negotiations about the subject 23 1 am not unmindful of the extensive unfair labor practices found by the Board in the earlier case However , this observation is based upon, and is limited to , the relevent operative facts in the instant proceeding