Exxon Co., USA

FXX()N COMPANY, USA Exxon Company, U.S.A. and Oil, Chemical and Atomic Workers International Union, Local 2- 470, Exxon Group, AFI.-CIO Oil, Chemical and Atomic Workers International Union, Local 2-470, Exxon Group, AFL-CIO arid Exxon Company, U.S.A. Cases 19-CA- 11335 and 19-CB-3549 November 5, 1980 DECISION AND ORDER BY CHAIRMAN FANNING ANt) MENMHEIRS JENKINS ANI) P:NItI O On April 18, 1980, Administrative Law Judge Michael D. Stevenson issued the attached Decision in this proceeding. Thereafter, Respondent Em- ployer and Respondent Union filed exceptions and supporting briefs. Counsel for the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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, find- ings,1 and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order,3 as modified herein. We agree with the Administrative Law Judge's remedy that the Respondent Union return any and all service fees, plus interest, collected from non- union bargaining unit members and permit all bar- gaining unit employees to participate in the Blue ' In adopling the Administrative l a Judge's holding that any service fee imposed by a union on nonunion members of a bargaining unit it pur- ports to represent is a per e violation of the Act, we limit our ruling to service fees imposed as a prerequisite for a unit member's receising the wages, hours, and terms and conditions of mployment for which a union has bargained and which are due unit members by right See Inrternatonal Paper Company. 252 NLRB No 181 (1980) The insurance coverage is clearly a term and condition of employment negotiated between the par- ties ? We d nlot adopt the Administrative L[aw Judge's findinig of an 8(hi(2) violation inasmuch as the complaint contained ito uch allegation and the matter was not fully litigated Further, in adopting the Administrative I.aw Judge's conclus,iii that Respondent's unlawfully refused to bargain, wre note that, contrary to the implication n his Decision, when a respondent unilaterally modifies con- Iractual terms or conditions of employment during the effectirve period of a contract, Sec. 8(d) provides that the failure of the other party to discuss the matter is not a defense to an unfair labor practice finding See C & S Industries, Inc., 158 NLRB 454 (966) Member Penello does not rely on rown & illiamrn lohucco Co., 227 NLRB 2005 (1977), a case wherein he dssented a Since we adopt the findings, conclusions, and recommendations of the Administrative l.aw Judge, we find it unnecessary to rule on the General Counsel's Motion for Summary Judgment 253 NLRB No. 27 Cross medical insurance plan without payment of any service fee. 4 However, the Administrative Law Judge holds Re- spondent Employer and Respondent Union jointly and severally liable to make whole any present or former employee members of the bargaining unit or their estates who may have suffered reduced in- surance coverage or increased insurance costs by reason of the discrimination against them. Since the facts show that Respondent Union solely adminis- ters the health plan, we believe it should be primar- ily liable to make whole any present or former em- ployees who suffered loss by reason of the discrim- ination against them. While Respondent Employer is not absolved from liability for committing an unfair labor practice, we will temper our remedy against Respondent Employer and find it only sec- ondarily liable to make whole all present or former employees who suffered losses by reason of the dis- crimination against them. We shall so modify the recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied herein, and hereby orders that Respondent Union, Oil, Chemical and Atomic Workers Interna- tional Union, Local 2-470, Exxon Group, AFL- CIO, Billings, Montana, its officers, agents, and representatives, and Respondent Employer Exxon Company, U.S.A., Billings, Montana, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as modified herein: 1. In the recommended Order as to Respondent Union, substitute the following for paragraph 2(a) and reletter subsequent paragraphs accordingly: "(a) Return any and all service fees plus interest collected from nonunion bargaining unit members and ermit all bargaining unit employees to partici- pate in the Blue Cross medical insurance plan with- out payment of any service fee. "(b) Make whole any present or former employ- ee-members of the bargaining unit or their estates who may have suffered reduced insurance cover- age or increased insurance costs by reason of the discrimination against them, in the manner set forth in the Remedy section as modified above." 4 Although the Administrative Law Judge found Respondent Union liable for the return of the service fees it collected from nonunion bar- gaining unit nlcmbers In the Remedy. this finding was omitted from his recolnnendedl ()rder We hereby coerrect this inadvertence by nserting this portion of the Remedy Ill the recommended Order 213 I)4YCISI()NS ()1 NATII()NAI. I.AB()R RFI.A I()NS I()ARI) 2. In the recommended Order as to Respondent Company, substitute the following for paragraph 2(a): "(a) In the event that Respondent Union, Oil, Chemical and Atomic Workers International Union, Local 2-470, Exxon Group, AFL-CIO, does not make whole any present or former em- ployee-members of the bargaining unit or their es- tates who may have suffered reduced insurance coverage or increased insurance costs by reasons of the discrimination against them, make whole all present or ormer employee-members of the bar- gaining unit or their estates who may have suffered reduced insurance coverage or increased insurance costs by reason of the discrimination against them, in the manner set forth in the section of this Deci- sion entitled 'The Remedy,' as modified in the Board's Decision and Order." 3. Substitute the attached notices for those of the Administrative Law Judge. APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT charge any service fees to nonunion members of the bargaining unit as a condition of participating in the union-adminis- tered group medical insurance program. WE WILl. NOT refuse to bargain with the Employer by unilaterally altering the adminis- tration of the medical insurance program during the midterm of a collective-bargaining agreement. WE WILL NOT in any like or related manner restrain or coerce the members of the bargain- ing unit in the exercise of their rights under Section 7 of the Act. WE WILL. return any and all service fees, plus interest, collected from nonunion bargain- ing unit members and permit all bargaining unit employees to participate in the Blue Cross medical insurance plan without payment of any service fee. WE WILL make whole all present and former employees or their estates who are or were members of the bargaining unit and who may have suffered reduced insurance coverage or increased insurance costs by reason of the discrimination against them, plus interest. OI1., CHEMICAL AND ATOMIC WORK- ERS INTERNATIONAL UNION, LOCAl 2-470, EXXON GROUP, AFL-CIO APPENDIX B Nor ICE To EMI'I.OIEIES POSITE) BY ORI)EIR OF IE NATIONAI LABOR RI.ATIONS BOARD An Agency of the United States Government WI WI I NOI unilaterally change the medi- cal insurance program in midterm of the col- lective-bargaining agreement. WtE WiI. NOT deal directly with members of the bargaining unit. WL wVII.l NOi in any like or related manner interfere with, restrain, or coerce any of our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist any labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. In the event that Oil, Chemical and Atomic Workers International Union, Local 2-470, Exxon Group, AFL-CIO, does not make whole any present or former employee-mem- bers of the bargaining unit or their estates who may have suffered reduced insurance coverage or increased insurance costs by reason of dis- crimination against them, WE WI.. make whole all present and former employees or their estates who are or were members of the bargaining unit and who may have suffered re- duced insurance coverage or increased insur- ance costs by reasons of the discrimination against them, plus interest. ExXON COMPANY, U.S.A. DECISION STATFrIMuN OF TIlE CASE MICHAIEI D. STIVENSON, Administrative Law Judge: This case was heard before me in Billings, Montana, on October 25, 1979,' pursuant to a complaint in Case 19- CA-11335 issued by the Regional Director for Region 19 for the National Labor Relations Board, herein called the Board, on June 14, and which is based on an amend- All dates herci l rcfer I, 1979, unless oilhcr ise indicaled 214 EXXON COMPANY, U.SA ed charge filed by Oil, Chemical & Atomic Workers In- ternational Union. Local 2-470, Exxon Group, AFL- CIO (herein called the Union) on June I1. The com- plaint alleges that Exxon Company, U.S.A. (herein called the Employer) has engaged in certain violations of Sec- tion 8(a)(1) and (5) and 8(d) of the National Labor Rela- tions Act, as amended (herein called the Act). In addition, an amended complaint was issued in Case 19-CB-3549 by the Regional Director for Region 19 on September 27, and which is based on a charge filed by the Employer on July 5. The complaint alleges that the Union has engaged in certain violations of Section 8(b)(l)(A) and (3) of the Act. An order consolidating Case 19-CA-11335 with the original complaint in Case 19-CB-3549, filed on August 9, issued on the same day. Issues I. Whether the Union violated Section 8(bl)l)(A) of the Act by charging employees who were members of the bargaining unit, but nonmembers of the Union, a service fee for administration of a health insurance plan negotiated between the Union and the Employer. 2. Whether the Union violated Section 8(b)(3) by en- gaging in the above conduct without first negotiating with the Employer. 3. Whether the Employer violated Section 8(a)(5) and (d) of the Act by changing the union-sponsored health insurance coverage provided in the collective-bargaining agreement to a company-sponsored plan without prior notice to and/or negotiation with the Union. 4. Whether the Employer violated Section 8(a)(5) of the Act by dealing directly with unit employees with re- spect to health insurance coverage. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, the Employer, and the Union. 2 Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. RESPONI)tLNT I MPI.OYI R'S BUSINIESS The Employer admits that it is a New Jersey corpora- tion engaged in the business of refining oil and having an office and place of business located in Billings, Montana. It further admits that during the past year, in the course and conduct of its business operations, it has sold and sent services, goods, and materials valued in excess of $50,000 to customers outside the State of Montana. Ac- cordingly it admits, and I find, that it is an employer en- gaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2 Counsel for the Union did not appear at the hearing as he considered the issues with respect to his client purely legal in nature II. RSI()N I)N I I \()BOR OR(ANIZA I ION The Union admits. and I find, that Oil. Chemical & Atomic Workers International Union, ILocal 2 470(). Exxon Group, AFI.-CIO, i a labor organization l ilittl the meaning of Section 215) of the Act. III. I tl AI.I1 (;I) t N NFIR ABOR PR A(_ I 1(IS A. i/h IcL,s : Since 1949, the Employer and the Union have had a contract. Every 2 years the contract expires and a nesv one is negotiated. Except for an industrywide strike in 1969, there has been no strike at the Employer's Billings, Montana, location, and over the years labor relations have been good. The current collective-bargaininig agreement contains no provisions relating to medical insurance coverage. 4 Prior to October 16, 1968. the Company administered the medical insurance coverage for all employees. Hosv- ever, effective October 16, 1968, at the Union's request. the Employer and the Union entered into a written agreement whereby the Employer granted the Union's request to change the insurance carrier front Travelers to Blue Cross, to subsidize the monthly insurance premium amounting to $10.50 per unit employee, s and to reliln- quish control of the insurance program to the Union. The Employer retained Travelers Insurance for the on- unit employees. The latter group numbers about I(X) em- ployees, while the unit employees number about 170. Of these, approximately :64 are members of the Union. The Union charges its members monthly dues of $20.80.i There is no union-security clause in the collectie-bar- gaining agreement, although the Union attempted to in- clude such a clause in the 1977 and 1979 contracts. The Employer resisted on the grounds they were not interest- ed in assisting the Union to maintain control over its members. The Employer also asserted that its employees should have freedom of choice either to join or not join the Union. Roy Weiland, the refinery manager, testified that in the 1979 bargaining session an unidentified member of the Union bargaining committee said in re- sponse to the Employer's refusal to include a union-secu- rity clause in the contract, "that could leave some people without insurance." On or about June 1, 1978, the Union mailed a letter to the six employees who were included in the bargaining unit, but were not members of the Union. One of the re- cipients of the letter was Kenneth Lowry, an electrician, who testified at the hearing. The letter reads as followks: Kenneth R. Lowry Route 1 Shepherd, Montana, 59079 C Certain errors in the transcripl arc hereby noted and corrected This erminology includes hospilal. surgical, and medical coverage I Tom Rohinsion. a member of the Union, testified that the Emphlo er's current suhbsidies are $82.() per month (families): 67 6 (vo-parts rate) and $43 95 single). The employees' curreni share o the cosl is 1 85 for famnily col;crage These figures are all arrived at through nlcgotiaioin he- t Cenll Ihe t mnin aind t ue Cross and the ilion and the FEmplo er. as appropriate ' (r this amount. about 10.4() as sent to the niton' headquarters 2 1 IDECISIONS ()F NA(IONAL L.ABOR RELATIONS H()ARI) Dear Mr. Lowry: During a recent routine check of our Union files we found that you are not a member of Local 2-470 but that you are a participant in the Union spon- sored Blue Cross Insurance plan. Through an over- sight by the Union, and through no fault of your own, this has not been noticed by us since your pro- bationary period at Exxon was finished. As a matter of policy the Union charges a service fee for the ad- ministration of the insurance plan to all participants of the plan who are not members of Local 2-470 at the end of their 120 day probationary period. Fhis service fee is $10.00 per month payable to Local 2- 470 the first of each month. Participation in the Blue Cross Insurance plan is contingent upon mem- bership in the Union or payment of the service fee and if one or the other of these conditions is not met you cannot participate in the plan. Since this oversight was made by the Union no backpayments [sic] will be requested by the Union but we will expect you to start making payments upon receipt of this letter. You may make checks payable to Local 2-470, O.C.A.W. Int. Union and mail them to Local 2-470, O.C.A.W. Int. Union, P.O. Box 1716, Billings, Montana, 59103. Sincerely, /s/ 1. Dan O'Donnell Financial/Corresponding Secry Local 2-470, O.C.A.W. Int. Union, AFL-CIO Upon receipt of this letter, Lowry first complained to various union officials without success. Next, he met with Charles Paris, Exxon's employee relation manager, who also testified at the hearing. Lowry complained of the $10 per month service fee and told Paris he would quit the Company before he would pay the fee. Later in his testimony, Lowry indicated that he was willing to pay an unnamed lesser amount if necessary, but not $10 per month, which he considered excessive. Lowry asked Paris whether he, Paris, could find out if Lowry could obtain coverage under the Travelers policy if he decided to drop from the Union's Blue Cross program. Paris agreed with Lowry that the $10 per month service fee was excessive and agreed to find out if Lowry could be covered under the Employer's nonunit insurance plan. Paris did, however, caution Lowry that Blue Cross had better coverage and Paris also recommended against changing insurance coverage. A few days after Lowry's inquiry, Paris determined that Exxon would permit Lowry to be covered under the Travelers policy. This change would involve some reprogramming of the Em- ployer's computers in Houston, Texas, at some slight ad- ditional cost to the Employer. The above information was not communicated to Lowry or any other employee until January or February. Paris told Lowry then at an informal meeting in the plant that the Employer would permit the change if Lowry desired. However, Lowry had never paid the $10 per month nor otherwise re- sponded to the Union letter of June 1, 1978, and he had heard nothing more about the service fee until mid-Feb- ruary. On or about February 16, Lowry and the other non- union employees received a second letter from the Union. It reads as follows: Kenneth R. Lowry Route I Sheperd [sic], Mt. As a non-member of the OCAW Local 2-470 you are required to pay a ten dollar per month adminis- tration fee for the Blue Cross Insurance. This fee is to be mailed to Dan O'Donnell P.O. Box 31202 Billings, Montana 59107 by the tenth of each month. Failure to pay this fee will result in your being dropped from the insurance program nego- ciated [sic] by the union. /s/ Tom A. Robinson Chairman Exxon Group OCAW Local 2-470 Lowry testified that subsequent to the receipt of this letter he had a conversation with Tom Robinson, an Exxon employee and chairman of Exxon Group, Local 2-470. Lowry attempted to negotiate a lower service fee without success. Then Lowry asked Robinson for per- mission to examine the Union's books and records to as- certain why a service charge of $10 per month was re- quired. This too was refused. After Lowry attempted to file charges with the NLRB, but was rebuffed-at least initially-he returned to Paris and requested coverage under the Travelers policy. This was done effective March 1. Two other nonunion electricians were also signed up for Travelers and continued under this cover- age up to and through the date of the hearing. Robinson discovered that unit employees were afford- ed coverage under the Travelers policy sometime in mid to late March, after a union member complained to him about it. A few days later, Robinson and another union officer met with William Taylor, who was a member of Paris' employee relations staff, and confirmed that Lowry and two other unit employees were then covered under the Travelers policy. A few additional days after confirming this arrangement, Robinson met with Wei- land and Paris. Robinson complained that Exxon was bargaining directly with unit employees to the Union's detriment. Weiland denied this and said he felt that the service fee was being used as a device to bring pressure on people to join the Union; the Company therefore felt that it had an obligation to ensure that its employees had access to an alternative insurance plan. The matter next arose at an April grievance meeting which had been previously scheduled to discuss other matters. After these had been dealt with, Robinson again raised the issue of the Employer's dealing directly with unit employees on the insurance question. Paris and Wei- land generally reiterated their position taken in the March meeting. With respect to the Union's administering of the Blue Cross program, the Union maintains an insurance com- mittee of union members. One member who is employed 216 EXXON COMPANY. U.S.A. as a guard keeps the forms which are necessary to file a claim. He distributes these forms to covered employees on request. In addition, the committee members are given time off from work on either a quarterly or semi- annual basis to negotiate with Blue Cross on rates and coverage. These meetings occur either in Billings, or in Great Falls, Montana. B. Discussion and Conclusions 1. Employer's motion to strike union answer On September 27, an amended complaint was filed in Case 19-CB-3549. On October 16, an answer to amend- ed complaint was filed by the Union. On October 19, the Employer filed a motion to strike Respondent's answer to amended complaint. In its motion, the Employer al- leged that because 19 days had elapsed between the date of service of the amended complaint and the date of service of the answer to the amended complaint, the answer should be struck. In pertinent part, Section 102.20 of the Board's Rules and Regulations, Series 8, as amended, reads as follows: "The respondent shall, within 10 days from the service of the complaint, file an answer thereto . . ." In the brief, the Union contends the motion must be denied as it is not supported by good cause. Two cases are cited: In L. E. Beck & Son, Inc., 159 NLRB 1564 (1966), the Board affirmed the Trial Examiner's granting of the General Counsel's Motion for Summary Judg- ment. The answer in Beck was filed 5 weeks after serv- ice of the complaint; in Kay Jay Corporation d/b/a MlcKees Rocks Foodland, 216 NLRB 968 (1975), the re- spondent never filed an answer, but the Administrative Law Judge refused to grant the General Counsel's Motion for Summary Judgment, holding that the case should be decided on the record at the hearing. The Ad- ministrative Law Judge was reversed by the Board. In the instant case, the Union's answer to the amended complaint was 9 days late. I deny the motion to strike for the following reasons: The Union had previously filed an answer to the first complaint, and said answer was timely. The Employer never claimed to be prejudiced or misled by the late filed answer nor did the Union ever indicate it desired to admit all the allegations of the amended complaint. In its brief, the Union indicates that it was lulled into filing its answer late by certain representations made by the Gen- eral Counsel subsequent to issuance of the amended com- plaint. The General Counsel does not address these mat- ters in her brief; however, it is unnecessary to decide whether the General Counsel actually made the state- ments attributed to her by the union counsel and, if so, the legal effect, if any. If I had been asked to do so at hearing, I would have entered a nunc pro tune order per- mitting the late filed answer. Union counsel elected to absent himself from the hearing and did not make such a request then nor later. Nevertheless, I construe the Union's brief as such a request and allow the late filed answer to be filed by way of nunc pro tune order. Alter- natively, if I lack that authority, I deny the motion to strike as I find good cause has not been shown, and the Employer has not been prejudiced. Furthermore, a record has been made sufficient to base a decision on the merits. This decision should not be denied on the techni- cality raised by the Employer. 2. The alleged violations by the Union (Case 19- CB-3549) The General Counsel has pending a Motion for Sum- mary Judgment. The Union contends that the legal issues presented in Case 19-CB-3549 are not properly subject to a Motion for Summary Judgment. 7 I have determined for the reasons discussed below to rule in favor of the General Counsel on both claims against the Union. Whether this is done by way of summary judgment or on the basis of the evidence produced at the hearing seems to be immaterial. However, since the motion is pending, I will discuss briefly this method of resolving the controversy. In its answer to the amended complaint, the Union has admitted all factual allegations, while it has denied the two final conclusionary paragraphs. These two para- graphs allege that by engaging in the admitted conduct, the Union has violated the Act. At the hearing the Gen- eral Counsel rested without putting on evidence. The Board has held that, in response to a Motion for Sum- mary Judgment, an adverse party may not rest upon de- nials in its pleadings, but must present specific facts which demonstrate that there are material facts in issue which require a hearing. Our-Way, Inc./Our-Way Ma- chine Shop, Inc., 247 NLRB No. 177 (1980). In that case, as I hold in the instant case, the Union has not presented any material issues of fact not admitted or previously de- termined, and has failed to meet its burden. Accordingly, I will recommend that the Board grant the General Counsel's Motion for Summary Judgment. Alternatively, I rule for the General Counsel on the basis of the evi- dence produced at the hearing. In either case, my ration- ale is reflected below. a. The 8(b)(1)(A) violation The General Counsel has alleged that the Union vio- lated 8(b)(1)(A) of the Act by charging unit members who were not members of the Union a $10-per-month service fee in order to participate in the Blue Cross medical insurance program. Section 8(b)(l)(A) of the Act makes it an unfair labor practice for a labor organization to restrain or coerce employees in the exercise of their rights guaranteed by Section 7 of the Act.8 Under Sec- tion 7 of the Act, an employee has a right to refrain from joining a union. Here only nonmembers of the Union were asked to pay the service fee. The issue here then, as it was in International Association of Machinists, supra, is whether the Union's discrimination against nonmembers 7 According to the Union, once the hearing went forward wilhout a severance of Case 19-CB-3549, summary judgment became inapprpri- ate. However, a Motion for Summary Judgment may he made during the hearing or fllowing the hearing, so long as it is made before the issuance of the Administrative Law Judge's opinion Clement-Blthe (Companis. a Joint Ienture, 168 NLRB 118 (1967), enforcement denied and remanded on other grounds 415 F.2d 78 (4th Cir 1969) " Internuational ociaon of .Wachinist and .Acrovpu ac 4orkerr, .I.ual Union .No. 697 .L-CIO fthe f. 0 Canfild Rubber Cr(npany of lrin ito Inc. 223 NLRIJ 832 (1976) 217 I) ECISI()NS OF NA IIONAL LABO()R REIATIONS BO)ARI) is such that it restrains or coerces them in the exercise of Section 7 rights. I find that the Union's actions here did violate Section 8(b)(1)(A) of the Act. The case of Prestige Bedding Company inc., 212 NLR13 690 (1974), cited by the General Counsel, bears a close similarity to the instant case. In that case, the employer paid premiums to a medical insurance fund only for those employees who were members of the Union. The insurance plan refused to accept the payments tendered by the employer on the basis that it could not restrict coverage to union members only. The fund forwarded the tendered payments to the union, thereby in effect canceling the medical insurance coverage. Instead of in- forming the employees in the bargaining unit, the union allowed the employees to continue to rely on union membership as a means of obtaining medical insurance. The Board held that, by participating in an insurance plan which was available only to union members, the union restrained unit employees in their right to refrain from becoming union members. Thus, the union violated Section 8(b)(l)(A) of the Act. In addition, the union vio- lated Section 8(b)(2) of the Act by giving more remu- neration in the form of the insurance plan to union mem- bers than to nonuiion members for the work which unit employees performed, thereby discriminating in regard to a term or condition of employment which would tend to encourage membership in a labor organization. :' The insurance plan at bar is not restricted to union members. but is only available upon payment by nonmembers of $10 per month, a fee not charged to union members.'" This fee is an impermissible burden on the right to re- frain from union membership and violates Section 8(b)(1)(A) of the Act as alleged, and Section 8(b)(2) of the Act as claimed by the General Counsel in her brief. In its brief, the Union takes the position that there is no per se violation of Section 8(b)(1)(A) of the Act for a union to implement a service fee for services rendered to nonunion unit employees. Somewhat inconsistently, the Union argues later in its brief that the Board has long held that service fees assessed to nonunion bargaining unit employees are permissible. In finding violations of the Act as reflected above, I hold that any service fee imposed by a union on non- union members of the bargaining unit it purports to rep- resent is a per se violation of the Act. The Union's two cases cited in its brief do not persuade me to the con- trary. The first of these cases, Local 825, International Union of Operating Engineers, AFL-CIO (11. John Ioman Company), 137 NLRB 1043 (1962), deals with hiring I See also International .4s'ceaioan of Machinist and Aero.pace W'orALers .Aeronautical Industrial District Lodge 720 (cDflonrnell Douglua Corporu- hin) 243 NLRB 697 (1979). 0o I have nt discussed whether $10 per month is a reasonable service charge since in the context of this case any fee would, in my opinion, violate the Act However. if I anm wrong in that view, the record is re- plete with evidence showing that $10 per month is an unreasonable amount to charge nionunion menmbers of the bargaining unit, ad I would so find I would alsol find that this amount violates Sec 8(h) I)(A) of the Act ' ! agree with the Gieneral Counsel's view that the facts supporting a violation of Sec. 8(b)(2) were fully litigated at the hearing and relate to the subject matter of the comlplain halls and has no application to the present case. 2 The second case, Luggage Workers Union Local 60. Interna- tional Leather Goods, Plastic and Novelty Workers Union, Al'L-CIO (Rexbilt Leather Goods, Inc.. et al.), 148 NL.RB 396 (1964), may be similarly distinguished as the service fees and back dues in that case occurred in what the Trial Examiner found to be noncoercive circum- stances. That is, he found that the union in Luggage Workers Union did not condition delivery of vacation checks upon payment of the vacation service charge and back dues. In this case, I have found and the evidence shows without question that continued participation in the medical insurance plan was conditioned on payment of the service fee. The Union also presents an affirmative defense based on an earlier ruling by the General Counsel in another case. It was stipulated between the parties that in 1974 a person named Bill Bray filed a charge in Case 19-CB- 2172 alleging that the Union there violated Section 8(b)(l)(A) by assessing Bray a service fee for administer- ing the Blue Cross health insurance program, and the charge was either dismissed or a solicited withdrawal was obtained from Bray. The Union relied on this case in charging its service fee in the instant case. : Before discussing the merits of the Union's defense, I am not at all certain that it is properly raised. The Union did not plead this defense in its answer to the amended complaint. A respondent must plead affirmative defenses which go to issues raised in the complaint. 4 However, since I am convinced the Union's affirmative defense is without merit and therefore will make no difference as to my ruling on the charge in question, I have decided to discuss it on the merits as though it had been properly raised. The Union's defense is equivalent to an estoppel argu- ment. However, the Board has rejected this contention in past cases. In McBride's of Naylor Road, 229 NLRB 795 (1977), the employer's "no solicitation" rule was in issue. The employer contended that the General Counsel was estopped from asserting the invalidity of the rule, be- cause in another case against the same employer involv- ing a different store, the Regional Director found the rule to be valid and issued no complaint. In refusing to find estoppel, the Administrative Law Judge first held that it was not shown that the circumstances in the prior case were the same as those in the case at bar. I make the same finding here. The Administrative Law Judge in McBride's goes on to say: In any event, although the General Counsel has final authority in respect to the investigation of charges, issuance of complaints, and prosecution of i "The Board has stated n several occasions that unions may charge payment of a fee for services or benefits conferred to persons outside the union's bargaining unit . HBron Williamson lobacco Cnmpany. 227 NLRB 20(15, 20()6 (1977). One exanmple of the above is the hiring hall case. In the instanlt case the ffected emphlyces are all menbers of the unit, " Although nrot part elf the formal stipulation, it is apparent that Bray \ls a;1 unit member but nonmember of the Union The record is silent as to hether ray was employed hby Fxxon '4 48 Am Jur 2d, l.ahbor and Labor Relatins, § 1443 (1979). 218X EXXON COMPANY, S A them before the Board . . . principles of estoppel are not applicable to the Board's processes, and ad- ministrative constructions of the General Counsel (other than his authority to refuse to issue com- plaints) are not binding on the Board. Belts Cadil- lac-Olds, Inc., 96 NLRB 268, 272 (1951).'" The Union cites the case of Wausau Building and Con- struction Trades Council and Charles Debenack, its agent:, Local No. 446, International Brotherhood of Teamsters, Chauffeurs. Warehousemen & Helpers of' America. and Walter Baumann and Julius Petty, its agents (Heiser Ready Mix Company), 123 NLRB 1484 (1959), in support of its position. This case holds that when a regional director has refused to issue a complaint on jurisdictional grounds, the charge may not be reactivated. This case has no application to the present case. First, the record is silent as to whether the prior case at issue here was dis- missed or withdrawn. Second, the reason for the disposi- tion, whichever it may have been, is not contained in the record. The Board indicated in Wausau that if the prior case had been dismissed due to error, with a reservation. or upon a condition expressed or implied, rather than upon jurisdictional grounds, the Board may well have ruled differently and not dismissed the second complaint. Since the Union here has the burden of proof in showing that its affirmative defense fits the case at bar, the failure of the Union to support its claim with an adequate record means that the affirmative defense must be reject- ed. 6 I find therefore that the Union has violated Section 8(b)(l)(A) and (2) of the Act as alleged. b. The 8(h)(3) violation The General Counsel also alleges that the Union has violated Section 8(b)(3) of the Act by unilaterally alter- ing the administration of the medical insurance coverage during the midterm of a collective-bargaining agreement. The present collective-bargaining agreement contains no provision for medical insurance coverage. In October 1968, the Employer and the Union entered into a written agreement whereby the responsibility for procuring and administering medical insurance for all eligible employ- ees, defined as "regular employees eligible to become members of the Union . . . irrespective of union mem- bership" was transferred from Exxon to the Union. The current collective-bargaining agreement which is in evi- dence runs from January 8, 1979, to January 7, 1981. It seems clear to me that the Union's letter, received by the nonunion unit employees on or about February 16, con- stituted an attempt unilaterally and in midterm to alter the existing agreement in violation of Section 8(b)(3) of the Act and I so find. Communication Workers of Amer- ica, AFL-CIO, Local 1170 (Rochester Telephone Corpora- tion), 194 NLRB 872, affd. 474 F.2d 778 (2d Cir. 1972).1 7 In See also Rochester Musicians .4ssociaton ocal 66, affiliated with American fideruation ' t;fusciranv (Civic Musc .4IscIialion). 207 N.RI 647 (1973) Is In the recent case of lance v. lirraza, 444 U S 252 1t980). the Court held that an affirmative defense is to he pleated and proved by the party attempling to rely on it In this case, the Ulnion has done neither i7 See also Conmmuniatiorn Workers ofi ,4oerca, Lccal /122 (ei, Y'orkA Telephone (Company., 226 NlRH 97 ( 1 9 76h): .'e KorA DIirct Council .o The Union has two theories of defense. First, it argues that because Exxon did not demand bargaining on the unilateral changes in working conditions there can be no violation by the Union of Section 8(b)(3) and (d). Two cases are cited in support of this defense. N.L.R.B. v. Co- lurnhian Enameling & Stamping Co., 306 U.S. 292 (1939). and City Hospital of Ea.t Liverpool. Ohio, 234 NLRB 58 (1978X). Both of these cases deal with instances of pro- posed changes in terms or conditions of employment made b an employer rather than union, so their appli- cation to the case at bar is questionable. Assuming, how- ever, that the obligation of the Employer to request bar- gaining on a union-initiated, unilateral, midterm modifi- cation of a term and condition of employment is coexten- sive with the Union's obligation when roles are re- versed, 1 I turn to the record for such factual support for the Union's theory as may or may not be contained there. I begin by noting that the Union gave no notice to the Employer that it was about to change its 10-year method of administering the medical insurance plan. " Thus, anN duty on the Employer to demand bargaining, assuming such a duty, would not be triggered until it had actual notice of the Union's plan. The Employer did not initiate any contacts with the Union after receiving actual notice: and the service fee was discussed only when initi- ated by the Union to protest the allowance of unit em- ployees into the [ravelers Insurance plan. Nevertheless, I cannot find from the record here such clear and unnis- takable evidence that the Employer waived its interest in the matter, The Union took the position that the matter of the service fee was an intraunion dispute between the Union and members of the bargaining unit. The Employer had the same view. Accordingly, it would have been a futile act to request bargaining on the subject. Alternatively, I find that in March and April, when Paris and other Em- ployer officials discussed with union representatives the matter of Lowry and others being admitted to the Trav- elers Insurance plan, this constituted informal bargaining over the service fee which proved to be unsuccessful Accordingly, I find that the Employer never waived the 9. Internatio a l Brotherhood of Palnier d& .liMed Truade, .4FL-CIO [-.!in of .uail'r Painteri and Decoralor5 of the Citv of .'vew York] t .( R B. 453 F 2d 783 (2d Cir 1971), cerl denied 405 U S 988 (1972); Truck Dril- err. C'hauffeurl and Ilelpers Local Lnion No. 1X). an affiliate of the Inler- national Brothrhood of' Teamster. Chuffeuri, Wanrehousernen and I lper of .-Imeira (Moruine Materiaul C(ormpaun), 214 NlRH 1094 (19741. -'c- uted lorme Builder of lhe Greater Fasur HBay In .VL LR B.. 352 1t 2d 745 (9th Cir 1965) The last case is authorily flr the iBoard to find a *io- lation of Sec 8(d) of the Act. under the circumstances herein presenltedl even though a .11latioTn f Sec 8(d) ,was not specificall? alleged 1m the co mnplaint " IThi, same dfenle is raised hb tIe tFmplosyer as a defense to an uln- lawful failure to bargain charge and is discussed helo\w t Ihe tioin cntends that the Employer has been on nottice of the service fee polico since 1974 Neither the slipulalion regarding Cas 19 CH- 1549 nor any other fact and circumstance of the inslanl case shous, thiR it be so. s i d I rejlct this claim - he olnl notice hlich the Fmnphl!- er hd i thi , cas came not fiom the LUion. hut from emplio ee I ,ry. iid l[ I illlW. sibhscquent to LI {ors's receipt of the Junte 1478 citer from the nilill 219 I)ECISIONS ()F NA II()NAL I.A()OR REL.A'I()NS BO()AkD right to request hargaining, and the Union's defense is not sustained.2 The second union heory of defense is a statute-of-limi- tation defense. The Union states: Thus the 1974 Board case is even more revealing and must lead to the conclusion that the Union, if it refused to bargain with the Employer, did so well beyond the 10(h) period and on this basis the 8(h)(3) allegation must be dismissed. This theory of defense, like the first, must be rejected. First, I again find that Case 19-CB-3549, as agreed to by the parties in the stipulation, is only valid as a possible estoppel to the General Counsel's case. I have rejected that claim in discussion above. Nothing in this record suggests a statute of limitation would begin to run in 1974 so as to constitute a defense here. Alternatively, if that view is wrong, the February letter from the Union to Lowry indicates a continuing violation running from 1974, and Section 10(b) of the Act is still not available as a defense.2 For the reasons stated above, I find that the Union violated Section 8(b)(3) of the Act, as alleged, and also violated Section 8(d) of the Act, as indicated by the facts. 3. The alleged violations by the Employer (Case 19-CA- 11335) a. The 8(a)(5) and (d) violatiovns The General Counsel charges the Employer with vio- lating Section 8(a)(5) and (d) of the Act by unilaterally changing the medical insurance program. In support of this allegation, the case of Wisconsin Southern Gas Co., 173 NLRB 480 (1964) is cited. There, the company, without notice to the union, changed its medical insur- ance carrier as well as the range of benefits. The union was notified only after the changes had been made. The union's protests were unsuccessful and the Administra- tive Law Judge found violations of Section 8(a)(5) and (d) of the Act. This case fully supports the General Counsel's theory here. In addition, the case of Kevsone Steel & Wire, Division of Keystone Consolidated Industries. Inc., 237 NLRB 763 (1978), enforcement granted in part and denied in part 606 F.2d 171 (7th Cir. 1979), Supple- mental Decision and Order, 248 NLRB 283 (1980), is helpful. In that case, the employer made a midterm uni- lateral contract change in the administrator/processor of the medical insurance program from Blue Cross to Met- ropolitan. The Board found that the change had a sub- stantial impact on the terms and conditions of employ- ment even though the respondent continued to pay the entire cost of the program, and even though the descrip- tion of the insurance plan did not change except with re- 2" IThe LEmployer conltends i its brief that a unlion's salutory duly Io bargain in good faith is owed Io all the employees it represents as well as to the em ployer, and that a breach of the duty of fair represei nat io also collstituleS a refusal o hargain with an emploer. I nlilke no specific find- ig with respect to whether Ithe Un ion here breachted its daty oi fair ret- resenltaitiolU This theory w;is not alleged in the collplainll and i catrlot he fairli said that the nlatter was ligated at he hearing. i Ia-Z-Boy linnste, 233 NLRB 1255, fl I (1'977) spect to the identity of the administrator/processor of the plan. The Board found a number of significant differ- ences in the manner in which the plan is administered by the two insurance companies. After detailing these differ- ences, the Board concluded that the employer's midterm modification of the contract violated Section 8(a)(5) and (I) of the Act. These cases are sufficient authority to find a violation of Section 8(a)(5) and (d) of the Act in the instant case, and I so find. 2 By making available Travel- ers Insurance coverage to Lowry and two other employ- ees, which coverage had heretofore been available only to nonunit employees, the Employer violated the Act by acting in midterm of the contract without notice to or conisultation with the Union. The Employer tenders several defenses, all of which are without merit. First, the Employer contends that it acted within the scope of management prerogative. The 1968 agreement with the Union (G.C. Exh. 2) by which the Union was permitted exclusive right to administer the medical insurance program for bargaining unit mem- bers removes the Enmployer's unilateral action in question from the scope of management prerogatives. 2: The Employer's second argument may also be easily disposed of. It contends that the Employer's changes are trivial or have only slight or immaterial effect on the bargaining unit. However, Employer's own witnesses ad- vised Lowry not to change to Travelers as the coverage was not as broad. Moreover, the employee lost the pro- tection of the union insurance committee which bar- gained with Blue Cross over rates and coverage and with the Employer on the amount of the subsidy. Meet- ings between union representatives and Blue Cross were held either two or four times per year. Robinson, the union officer, also described in his testimony how the union insurance company could sometimes help to get reimbursement on disputed claims. Indeed, at least one bargaining unit nonunion employee elected to pay the $10 per month service fee rather than drop Blue Cross coverage. Finally, I find that, notwithstanding the above changes which I find to be substantial, the mere fact that Travelers coverage was reserved for nonbargaining unit employees and outside the Union's administration makes the change substantial. 24 The Employer next contends that the Union did not demand bargaining on the medical insurance change. Therefore, no violation of the Act against the Employer can be found. In analyzing this defense, I begin by noting that the Employer gave no notice to the Union of its dis- cussions with Lowry relative to Travelers Insurance coverage. However, Robinson testified that he received notice in mid to late March from an unnamed member of the bargaining unit who complained to Robinson about the matter. It is not necessary for te Union to be given z See alsoi arian-HiB/swing Di)ision of Gohrondu o(rp. s , L.R.B.. 474 F 2d 49 (hlh Cir 1973) coripare Conn'ctilcur ight rand Power Companyrv N.L.R... 47 1 7912d107 ( r 1973} ":' cIhe collctiie-bargamiilig agreentirtt. art XXII (Reservaliiolls of SManagerielnt) ((i C [Exh 3) is silent is to a,;y) inlanagelleinl prerogaitise relaitring lo tile ttical riislrance programi 24 1t o tilI sante reastlons discussed in relccllrlg tihe Lnpl) er's seconld defelse, I also ftird Ihal liployer's defense if resioring the status quo is iTholut Ileril 22() EXX()N C()I1'ANY, US.A. formal notice of the unilateral change but acthal notice is sufficient. Citizens .National 1Bank oj' Wilmar, 245 NLRBI 389 (1979). This case is cited by the Employer for the proposition that the Employer did not violate Section 8(a)(5) of the Act because the Union had aived its right to bargain over the matter. However, that ase doeC niot support the Employer's defense here. First, the unilateral change at issue did not involve a midterm of a contract. Rather, the parties were in the process of bargaining for their first contract at the time. Thus, for midterm unilat- eral action by the Employer, a union waiver is found only if the Union clearly and unmistakably waived its in- terest in the matter. 25 I find no clear and unmistakable evidence in this case that the Union waived its interest in the matter. Again I turn to the record. In late March. Robinson requested a meeting with Paris and Weiland to question the Employer's allowance of a bargaining unit employee into the Travelers Insur- ance plan. The Company took the position that. in the words of Paris, it was an "employee relations matter and not a labor relations matter, and it was a company bene- fit plan, aiid we weren't going to stand by and see so- meoody who has a family be without insurance cover- age." Notwithstanding that this attitude clearly conveyed to the Union that any demand for bargaining would be futile, the Union brought the matter up again at the end of a grievance meeting which had been previously scheduled to discuss other matters. In early April. Robin- son told Paris at this grievance meeting that the Employ- er thought it was dealing with the employee directly, rr ther than through the Union. The Union felt its strength was being eroded by the Company's action. Again the Employer reiterated its prior position to regard the matter as an employee relations matter be- tween the Employer and employee. \Weiland testified he also told Robinson that the matter was between the Em- ployer and the employee to settle. In regard to Robin- son's threat to take up the matter with the National Labor Relations Board, Employer representatives stated they welcomed that course as it would resolve the matter. The discussion on the insurance issue lasted about 30 minutes. Based on the above, I find no waiver by the Union. It brought up the matter at two separate meetings with the Employer. Even assuming that Citizens National BRnk of Wilmar, supra, is fully applicable here, I note that the Union there made no more than a single pro forma objec- tion to the unilateral change. There were no discussions with the Employer concerning the change, no requests to rescind, no request to bargain. In the instant case, I interpret the two meetings as informal bargaining ses- sions which went to impasse, or as discussions on the matter sufficient to make Wi/mar inapplicable. In effect, the Union requested the Employer to rescind its action. The matter went no further as it was clear to all that fur- ther discussions were useless and that an unfair labor practice charge was the only way to resolve it. ' Prcn C, Iwrporaurd, 121 NLRI 97ht ( 195t) b. 17lc 8a)l(5) viollion (Ifmplover ' direct dealing. with mmsmbers o the hurkgitnng unit) 'Ihe Employer acknowledges in its brief that as a gen- eral rule it is unlawful for an employer to deal directly kith employees represented b) a union. That general rule is full? applicable in this case as by its direct dealing with I owry, a member of the bargaining unit, the Eni- ployer violated Section 8(a)(5). " The extent of these dealings is fully reflected in the facts and need not be re- peated here. It suffices to say that, even in the absence of employer bad faith, bargaining with individual members of the bargaining unit is an unfair labor practice. 2 7 IV. Hi 11-1 I CT- 1 [HI UNF .AIR I AHOR PR \( I I(5S UPON (OMNM-R(tC- The activities of Respondents set forth in section III above, occurring in connection with their operations ie- scribed in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCI SIONS oe LAW 1. Respondent Employer, Exxon Company, U.S.A., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union, Oil. Chemical & Atomic Work- ers International Union, Local 2-470. Exxon Group, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the .Act. 3. At all times material herein, Respondent Oil Chemi- cal & Atomic Workers International Union, ILocal 2 470, Exxon roup AFL-CIO, has been the exclusie representative for purposes of collective bargaining of the Exxon employees in the appropriate unit of all refin- ery employees at Billings. Montana. 4. Respondent Union's answer to the amended com- plaint should not be struck as it was not late filed; alter- natively, the answer should not be struck as the record does not show good cause. 5. Respondent Union has violated Section 8(b)(l)(A) and Section (2) of the Act by charging nonunion mem- bers of the bargaining unit a $10-per-month service fee for continued coverage in the union-administered group medical insurance plan. 6. Respondent Union has also violated Section 8(b)(3) and (d) of the Act by unilaterally altering the administra- tion of the group medical insurance coverage during the midterm of a collective-bargaining agreement. 7. Respondent Employer has violated Section 8(a)(5) and (d) of the Act by unilaterally changing the medical insurance program during the midterm of the collecti e- bargaining agreement. 26 trunk uccauralo, a Sol Poprwuor. dh u .aua-cruair (onirlOil (C'ompu1r and lu 'lou 1rdamntlg ('r .. lparu , ltI ,uawcurao ) ,Cntlrul,,tn ( nmpanv. Inn . 2331 NlRIJ 1 i 4 (I 77) .\.1. R II I nq Knl.az. et . dA a H, anu [i Se, I Prduilt ( , 31 t S 7it, ( Ice2 Vfid 'hoo Sapp/l ( rporair A. 1. R B. 321 L' S 7R ( I144) 221 I)ICISI()N S OF NATI()NAI IABOR REI.A]'IONS BOARD 8. Respondent Employer has also violated Section 8(a)(5) of the Act by directly dealing with members of the bargaining unit. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 'FIL RNM I'I) Having found that Respondents have committed unfair labor practices, I will recommend that they be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the purposes and poli- cies of the Act. I shall recommend that Respondent Union return any and all service fees, plus interest, col- lected from nonunion bargaining unit members and permit all bargaining unit employees to participate in the Blue Cross medical insurance plan without payment of any service fee. It is further recommended that Respond- ent Union and Respondent Employer be required to make whole all those unit employees who received alter- native insurance through Travelers Insurance by grant- ing them all interest, emoluments, rights, and privileges in the Blue Cross Medical insurance plan which would have accrued to the employees but for the discrimination against them. 29 It is further recommended that Respond- ent Employer be required to reinstate Blue Cross as the sole medical insurance carrier for unit employees. All in- terest shall be computed in the same manner as done for backpay. OIis Plumbing & Heating Co., 138 NLRB 716 (1962); Florida Steel Corporation, 231 NLRB 651 (1977). Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER2 9 A. The Respondent Union, Oil, Chemical & Atomic Workers International Union, Local 2-470, Exxon Group, Billings, Montana, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Charging nonunion unit members a service fee in order to participate in the Blue Cross medical insurance program. (b) Refusing to bargain with the Employer by unilater- ally altering the administration of the medical insurance coverage during the midterm of a collective-bargaining agreement. (c) In any like or related manner restraining or coerc- ing the nonunion members of the bargaining unit in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Jointly and severally with the below-named Re- spondent Employer, and in the manner set forth in the ' Prertrige Bedding (Cornpuny Inc. upru. Kvsonei .Steel/ and Wire Divi- lon qo KeysLone (onvolidald Industries. Inc., supra "U In the event no exceptions are filed as provided by Sec 102.4 of Ihe Rules and Regulations of the Nati onal L.abor Relations Htoard. the findings, conclusions, and recommended Order herein shall, as provided in Sec 10248 (If the Rules and Regulations, be adopied h the HBoard and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived fir all purposes section of this Decision entitled "The Remedy," make whole any present or former nonunion employee mem- bers of the bargaining unit or their estates who may have suffered reduced insurance coverage or increased insur- ance costs by reason of the discrimination against them. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all documents, reports, and records necessary to analyze the amount of insurance payments due under this order. (c) Post at conspicuous places at all of the Respondent Union's business offices and meeting halls copies of the attached notice marked "Appendix A." :' ° Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent Union's authorized representative, shall be posted by Re- spondent Union immediately upon receipt thereof, and be main i:ned by it for 60 consecutive days thereafter, in comspi , ous places, including all places where notices to menibers are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other materi- al. (d) Mail to the Regional Director for Region 19 signed copies of the attached notice marked "Appendix A," for posting by Respondent Employer at its refinery in Bill- ings, Montana, in places where notices to employees are customarily posted. (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. B. The Respondent Employer, Exxon Company, U.S.A., Billings, Montana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unilaterally changing the medical insurance pro- gram in midterm of the collective-bargaining agreement. (b) Dealing directly with members of the bargaining unit. (c) In any other like or related manner interfering with, restraining, or coercing its employees in the exer- cise of their right to self-organization, to form labor or- ganizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Jointly and severally with the above-named Re- spondent Union, and in the manner set forth in the sec- tion of this Decision entitled "The Remedy," make whole any present or former nonunion employee mem- bers of the bargaining unit or their estates who may have suffered reduced insurance coverage or increased insur- ance costs by reason of the discrimination against them. "' I11 he een i that this Order is enfirced by a Judgnren of a United States Court of Appeals, the words in the notice reading "Poslted by )rder of the National lahbor Rclationls Board" shall read "Posted Pursu- anl to a Judgnient f the Ul nitcd States Court of Appeals Enforcing an )rder of the National l.abor Relaitons Hoard " 222 I XX()N C()MPANY. US A (h) Preserve and, upon request. make available to the Hoard or its agents, for examination and copying, all payroll records, social security payment records and all reports aid records necessary to analyze the amount of insurance payments due under this Order. (c) Post at its plalnt in Billings, Montana, copies of the attached notice marked "Appendix ."' Copies of said notice, on forms provided by the Regional Director for Region 19, after bhcing duly signed by Respondent Em- ployer's representative, shall be posted by Respondent :" m Se. 1i l, ii. upru Employer immediately upon receipt thereof, and be maintained h, it for h()0 consecutive days thereafter. in conspicuous places, icluding all places where notices to employees arc customarily posted. Reasonable steps shall be takeni by Respondent Employer to insure that said no- tices are not altered, dcfaced, or coered b\ an\ other material. (d) Notify the Regional Director for Region 19. in x riling, v ilhitn 20 das from the date of this ()rder s\\hat steps Respondenl r Employer has taken to compl\ here \\ith 223