Advertiser'S Manufacturing Co.

740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Advertiser's-Manufacturing Company and Teamsters General Local No. 200, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO. Cases 30-CA-6882, 30-CA-6928, 30- CA-6985, and 30-CA-7155 June 7, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND DEVANEY On January 7, 1983, Administrative Law Judge Walter H. Maloney issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its, authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions, as modified. 1. The Respondent contends that certain allega- tions of the consolidated complaint are time-barred under Section 10(b) of the Act because the acts al- leged were not alleged specifically in a timely filed charge.2 The judge rejected this contention on the basis that the initial charge filed in this proceeding alleged violations of Section 8(a)(1), (3), and (5) and, therefore, was "broad enough to encompass any violation of any of these sections," irrespective of the substantive allegations set forth as the basis of the charge. The Respondent contends that the judge erred in focusing virtually exclusively on the categories of the Act alleged. We find merit in this exception. However, for the reasons below, we find that the complaint allegations are not time- barred under Section 10(b). It is well settled that a complaint may issue under Section 10(b) alleging matters not set forth with specificity in the underlying charge, provided the complaint allegations assert matters closely re- lated to the allegations of a timely filed charge. NLRB v. Fant Milling Co.,' 360 U.S. 301 (1959). This requirement of relatedness is not confined ' The Respondent has excepted to some of the fudge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The allegations alleged by the Respondent to be time-barred are (1) the 8(a)(l) failure to pay striking employees holiday pay for Independ- ence Day 1981, (2) the 8(a)(1) and (5) failure to furnish to the Union re- quested insurance information , and (3) the 8(a)(1) and (5) unilateral imple- mentation of incentive piece rates only to the categories of the Act alleged, as the judge found. Rather; Section 10(b) requires a factu- al and legal nexus between the charge allegations and the otherwise untimely allegations that looks toward the class of violations alleged in the pend- ing timely charge, the sequence of events, and the nature of the defenses raised. See Davis Electrical Contractors, 291 NLRB 115- (1988) (Chairman Ste- phens concurring), citing Redd-I, Inc., 290 NLRB 1115 (1988). Applying these principles, we note the following. On January 19, 1981, the Union was certified to represent the Respondent's production and mainte- nance employees. As detailed by the judge, several Board and court proceedings ensued, including ,a finding by the Board and the United States Court of Appeals for the Seventh Circuit that, the Re- spondent unlawfully refused to bargain with the Union following certification.3 On July 6, 1981, the Union began a prolonged 'strike to protest the Re- spondent's refusal to comply with the Board's bar- gaining order. On December 21, 1981, during the course of the ongoing strike, the Union filed the initial charge in this proceeding (Case 30-CA- 6882) alleging that the Respondent discriminated against striking employees in violation of Section 8(a)(1) and (3) and breached its duty to bargain in violation of Section 8(a)(1) and (5) by "amongst other things" imposing requalification periods for insurance coverage solely for striking employees. Subsequent charges filed by the Union alleged, inter alia, that the Respondent awarded bonuses for discriminatory reasons, unilaterally changed work schedules, unilaterally implemented a wage in- crease, unilaterally changed its method of paying employees for work performed, directly ' solicited employee grievances, and directly bargained with bargaining unit employees.4 The Respondent contends initially that the com- plaint allegation pertaining to the failure to pay holiday benefits for July 4, 1981, discussed below, is time-barred. We find no merit to this contention as we find this allegation is closely related to a timely filed charge. The charge allegation in Case 30-CA-6882, filed December 21, 1981, pertains, in part, to the alleged 8(a)(1) and (3) denial of insur- ance benefits to strikers as a result of their partici- pation in the strike. The allegation pertaining to the denial of the July 4, 1981 holiday benefit, asserted to be untimely by the Respondent, raises the identi- cal sections of the Act, the same legal theory as to a 256 NLRB 644 (1981), enfd 677 F 2d 544 (7th Cir 1982) See also 280 NLRB 1185 (1986), enfd 823 F 2d 1086 (7th Cir 1987) _ 4 The charge in Case 30-CA-6928 was filed January 22, 1982; Case 30-CA-6985 was filed February 24, 1982, and Case 30-CA-7155 was filed June 8, 1982 294 NLRB No. 51 ADVERTISER'S MFG CO whether the benefits were discriminatorily denied, the same sequence of events brought on by the un- lawful failure to bargain and the ensuing strike, and similar defenses pertaining to business justification, as do the issues raised by the timely filed insurance requalification allegation. Thus, this holiday pay al- legation is timely under the December 21, 1981 charge5 as it is closely related to the allegations raised therein. The Respondent also alleges that an 8(a)(1) and (5) complaint allegation that the Respondent re- fused to furnish insurance information to the Union on December 14, 1981, is time-barred because it was never specifically alleged in a, charge. The charge in Case 30-CA-6882, however, raises alle- gations pertaining to medical, life, and disability in- surance benefits. This is the same subject matter raised in the insurance information request alleged to be untimely. Moreover, that charge, as well as the remaining charges alleging violations of Section 8(a)(1), (3), and (5), arise from a single sequence of events brought on by the Respondent's refusal to bargain with the Union. Indeed, the Respondent's defense to the information request is that the Union is not the established bargaining representative. That is the same untenable position that caused the strike and, in turn, formed the basis for the acts toward striking employees alleged to be violative in Case 30-CA-6882. Finally, the Respondent contends that 8(a)(1) and (5) allegations pertaining to incentive piece rate changes are time-barred. The Respondent admits that the charge in Case 30-CA-7155, filed June 8, 1982, raises allegations pertaining to incen- tive piece rate changes, but it asserts that any changes in piece rates that may have occurred prior to December 8, 1981, 6 months before the filing of that charge, are time-barred. The Respondent stipulated at the hearing that between July 6, 1981, and May 10, 1982, without prior notice to or bargaining with the Union, it es- tablished or assigned incentive piece rates and that the application of these piece rates for new or ex- isting products affects the wages of unit employees. Consistent with the Respondent's admissions, it is evident that changes occurring between December 8, 1981, and June 8, 1982, are timely, pursuant to the charge in Case 30-CA-7155. In addition, we find that these 8(a)(1) and (5) al- legations pertaining to incentive piece rate changes are closely related to allegations raised in the charge filed in Case 30-CA-6928, filed January 22, 1982. That charge alleges, in part, that the Re- 5 In his decision, the judge inaccurately calculated the 10(b) period for this charge as relating back to events as early as May 21, 1981, rather than June 21, 1981 741 spondent violated Section 8(a)(1) and (5) by-unilat- erally instituting a wage increase. Clearly that alle- gation is broad enough to encompass any type of wage increase given, regardless of the method used to bring about the particular increase and, indeed, the record establishes, and the judge found, that the Respondent unilaterally gave a 3-percent in- crease in wage rates as well as piece rates. Thus, it is evident that the charge in Case 30-CA-6928 raises the subject of unilateral changes pertaining to wage and piece rates. As that charge was filed on January 22, 1982, it is sufficient to raise allegations pertaining to incentive piece rate changes com- mencing July 22, 1981. Accordingly, we find that the 8(a)(1) and (5) al- legations pertaining to piece rate changes in this proceeding derive from a sequence of events that were brought on by the Respondent's refusal to bargain with the Union following certification and continuing through a series of unlawful unilateral changes occurring soon thereafter, including unilat- eral changes pertaining to piece rates and methods of payment implemented earlier. In these circum- stances, the December 21, 1981 charge in Case 30- CA-6882, raising yet another allegation that the Respondent violated Section 8(a)(1) and (5), "amongst other things," is sufficient to raise the al- legations of incentive piece rate changes considered herein. 2. The complaint alleged, and the judge found, that the Respondent violated Section 8(a)(3) and (1) by denying holiday pay to striking employees and by imposing on striking employees requalifica- tion periods for medical, disability, and life insur- ance coverage. For the reasons discussed below,6 we find that the Respondent violated Section 8(a)(3) and (1) only insofar as it imposed requalifi- cation periods for life and disability insurance. The pertinent facts are as follows. From July 6, 1981, to May 10, 1982, the Respondent's employees engaged in a strike. It is undisputed that the Re- spondent denied holiday pay to strikers for July 4, 1981, July 4, 1982, and Memorial Day 1982. It did so on the basis of governing employee handbook provisions containing eligibility requirements for the payment of holiday pay. The handbook provi- sions are as follows: All employees who have been actively in our employ during the 3 months immediately preceding any holiday are eligible to be-paid for that holiday. The amount of pay the em- ployee receives will be directly proportionate to the length of time he is working per day. In B In agreement with the judge, we find that the Respondent violated Sec. 8(a)(5) and ( 1) as alleged 742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD other words, an individual whd is working only seven hour days will receive only seven hours pay for the holiday. Also, regardless of the length of service, an employee, to earn the holiday pay must be on duty the working day before and the working day after the holiday. Exception may be taken to the above rule upon prearranged agreement with management and the Superintendent's office. People whose vacations include paid holi- days will be paid for those holidays only if they are on duty here on the working day pre- ceding and the working day following their vacations. Employees with at least two years of contin- uous service, and not on the Loss List, who have not been actively employed during the six months immediately preceding any holiday because of illness, but continue to be consid- ered employees in good standing, will be paid for one holiday. If the illness and resultant ab- sence continue to a second holiday, neither that holiday or any subsequent holidays will be paid. Employees on a Personal Leave of Absence will receive no holiday pay for any holiday that occurs during their leave. The Respondent denied holiday pay for July 4, 1981, based on the handbook provision that em- ployees "must be on duty the working day before and the working day after the holiday" to be paid for ' that holiday.'' Further, the Respondent denied holiday pay to strikers for Memorial Day and Inde- pendence Day 1982 based on the handbook provi- sion that employees must be "actively in our employ" during the 3 months immediately preced- ing any holiday. With regard to coverage of life insurance, dis- ability insurance, and medical insurance benefits, the Respondent notified striking employees of the following change of conditions relevant to the strike. By letter of July 6, 1981, the Respondent in- formed striking employees that they could continue existing medical insurance coverage during the strike, for a maximum period of 6 months, by paying the insurance premium. By letters of No- vember 23 and December 15, 1981, the Respondent informed strikers that medical insurance coverage would terminate on December 31, 1981, and that striking employees returning after that date would have to meet an eligibility requalification require- 7It is undisputed that the strike encompassed the first working day after July 4, 1981 As to those employees already paid for that holiday, the Respondent recouped such payment thereafter by docking either ac- crued vacation pay 'or 1 day's pay ment of 60 days of continuous employment from the date of their return to work. As to disability in- surance and life insurance coverage, the Respond- ent notified employees that they would have to sat- isfy an eligibility requalification requirement of 2 years of continuous service after returning to work. On January 25, 1982, the Respondent informed striking employees that the requalification require- ment for medical insurance coverage, as specified in its previous letters, was no longer in effect and that any strikers returning to work in the future would be eligible to 'participate immediately on their return. It noted, however, that returning strik- ers would have to fulfill requalification conditions for life insurance and disability insurance. On May 10, 1982, the strike terminated and former strikers returned to work. The requalifica- tion conditions for life insurance and disability in- surance remained in effect. On July 12, 1982, how- ever, the Respondent notified employees that the requalification requirement for disability insurance coverage had been "mistakenly applied" and that, effective immediately, all employees who already had fulfilled the initial eligibility requirement were "now" covered. No employees responded affirma- tively to the Respondent's inquiry as to whether any former strikers had, in fact, been denied dis- ability benefits pursuant to the abandoned requalifi- cation requirement. The life insurance requalification requirement re- mained in effect. The Respondent imposed this re- quirement pursuant to the following provisions of its life insurance agreement with its insurance carri- er, Safeco Life Insurance Company. When an Employee Becomes Eligible- Each employee in an eligible class shall become eligible as of . . . the day following completion of 2 years of employment. When an Eligible Employee Becomes In- sured-Each eligible employee shall become insured on the date he becomes eligible for in- surance. However, if , he is not actively at work on the day he is scheduled to become in- sured, he shall become insured on the day he returns to active work. Each insured employee shall be required to execute an enrollment card, on forms furnished by SAFECO Life In- surance Company. TERMINATION OF EMPLOYEE'S INSURANCE Except as provided in the 31 Days Continu- ance of Death Benefit and Waiver of Premium Provisions (which provisions apply only to Employee Life Insurance), an employee's in- ADVERTISER'S MFG CO. surance will terminate on whichever of the following dates occurs first: 1. Termination of employment in the classes of employees eligible for insurance; or 2. Termination of the policy; or 3. Termination of employment. Cessation of active work by an employee shall be deemed termination of employment; except that if an employee is absent on ac- count of sickness or injury, or is temporarily laid off, or granted leave of absence, employ- ment shall be deemed to terminate when pre- mium payments for such employee's insurance are discontinued, but in any event employment shall be deemed to terminate not later than two months following cessation of active work when a layoff or leave of absence exceeds a two-month period. Upon request by the Em- ployer, SAFECO Life Insurance Company may, however, agree in writing to allow the insurance of an employee to be continued for an additional number of months during layoff or leave of absence. In determining whether an employer's refusal to pay benefits during a strike violates Section 8(a)(3) and (1) of the Act, we have recently, in Texaco, Inc.," applied the principles articulated in NLRB v. Great Dane Trailers, 388 U.S. 26 (1967). In Texaco, supra at 245-246, the Board set forth the following analytical approach for application of the Great Dane test in this context: Under this test, the General Counsel bears the prima facie burden of proving at least some adverse effect of the benefit denial on employee rights. The General Counsel can meet this burden by showing that (1) the bene- fit was accrued and (2) the benefit was with- held on the apparent basis of a strike. . . . Once the General Counsel makes a prima facie showing of at least some adverse effect on employee rights the burden under Great Dane then shifts to the employer to come for- ward with proof of a legitimate and substantial business justification for its cessation of bene- fits. The employer may meet this burden by proving that a collective-bargaining represent- ative has clearly and unmistakably waived its employees' statutory right to be free of such discrimination or coercion. . . . If the employ- er does not seek to prove waiver, it may still contest the disabled employee's continued enti- tlement to benefits by demonstrating reliance on a nondiscriminatory contract interpretation 8 285 NLRB 241 (1987) See also Bil-Mar Foods, 286 NLRB 786 (1987), applying Texaco to an employer's refusal to pay benefits to strikers 743 that is "reasonable and . . . arguably correct," and thus sufficient to constitute a legitimate and substantial business justification for its conduct. Moreover, as under Great Dane, even if the employer proves business justification, the Board may nevertheless find that the em- ployer has committed an unfair labor practice if the conduct is demonstrated to be "inherent- ly destructive" of important employee rights or motivated by antiunion intent. [Footnotes omitted.] Applying this analysis to the facts here, we find that the General Counsel has made a prima facie showing of a violation of Section 8(a)(3) and (1) by denying holiday pay to strikers for July 4, 1981, and July 4, 1982, and Memorial Day 1982. The governing provisions in the Respondent's handbook provide that eligible employees "will be paid" for designated holidays including Memorial Day and July 4. Although this provision contains an active "on duty" requirement, this requirement is modi- fied, on its face, by an exception pursuant to prear- ranged agreement with management. Further, the provision contains an additional exception for med- ical absences and, therefore, provides for payment, in certain circumstances, to employees notwith- standing their absence from work on eligibility dates. Accordingly, we find that the General Coun- sel has shown that holiday benefits were due and payable to the striking employees and had accrued. Further, it is undisputed that the Respondent denied holiday pay to strikers while paying holiday benefits to employees who did not withhold their services. The benefits, therefore, were withheld on the apparent basis of the strike. Consequently, the burden shifts to the Respondent to prove a legiti- mate and substantial business justification for the denial of holiday pay benefits to the strikers. Turning to the Respondent's defense, we find that the Respondent has established a legitimate and substantial business justification for its denial of holiday benefits by demonstrating its reliance on a nondiscriminatory interpretation of the governing handbook, which is reasonable and arguably cor- rect. Thus, with regard to the July 4, 1981 holiday, the handbook provision expressly provides for an active on-duty work requirement on the working day before and the working day after the holiday. The strikers did not work on the working day after the July 4, 1981 holiday and thus, under its terms, it was reasonable for the Respondent to construe this provision in a manner denying holiday pay for that date. Although the provision provides for ex- ceptions on arrangement with management, there is no record evidence of any discriminatory past 744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD practice or use of this exception in a manner that discriminated against strikers. With regard to Me- morial Day and July 4, 1982, the Respondent rea- sonably relied on the handbook provision requiring employees to be on active work status during the 3-month period preceding the holiday. As the em- ployees were on strike until May 1982, and thus not on "active" work status until that time, the Re- spondent was arguably correct in denying holiday pay for Memorial Day and July 4, 1982. Additionally, we find no basis to conclude that the failure to pay holiday benefits for these three holidays was "inherently destructive" of statutory rights. The denial of these benefits would not create continuing obstacles to the exercise of em- ployee rights or impede the collective-bargaining process. See Bil-Mar Foods, supra, 286 NLRB 789. Further, there is no evidence that application of the handbook provisions to the denial of holiday pay was undertaken in a discriminatory manner or was motivated by antiunion intent. Accordingly, we find that the Respondent did not violate Section 8(a)(3) and (1) by denying holi- day benefits to striking employees and did not vio- late Section 8(a)(1) by informing them of that deci- sion.9 With regard to allegations pertaining to the im- position of requalification periods for medical in- surance and disability insurance benefits, we note the following. As the 6-month requalification period for medical insurance was rescinded while the strike still was in progress and, therefore, before it took effect on returning strikers, the com- plaint alleged this conduct only as a violation of Section 8(a)(1) and not as a violation of Section 8(a)(3). The Respondent concedes that the an- nouncement of the waiting period as to medical in- surance was in "error" and, therefore, it asserts no contractual basis for the requalification period. -In these circumstances, we adopt the judge's fmding that the announcement of the requalification_ period for medical insurance to returning strikers tended Chairman Stephens joins his colleagues in finding that the denial of holiday benefits did not violate the Act He would find, however, that the General Counsel did not meet her prima facie burden of showing that the holiday benefits were accrued In order for employees to be "eligi- ble" for such benefits in the first instance, the Respondent's handbook provisions specify that an active , on-duty working requirement be satis- fied Because they were not actively on duty as a result of the strike, the strikers did not satisfy the eligibility requirements for accrual as to any of the holidays at issue Because the General Counsel has not established a prima facie case under Texaco, Chairman Stephens would dismiss the 8(aX3) allegations without pursuing the Texaco analysis further Howev- er, assuming that the holiday benefits can properly be regarded as having accrued , Chairman Stephens agrees with his colleagues that the Respond- ent set forth a legitimate and substantial business justification for denying those benefits to the strikers and that the denial was not inherently de- structive of the strikers' Sec. 7 rights See his concurring footnotes in Amoco Oil Co, supra, 285 NLRB 918, 919-920 (1987), and in Johns-Man- ville Sales Corp., 289 NLRB 358, 365 (1988) to interfere with the exercise of Section 7 rights in violation of Section 8(a)(1), but we do not adopt the judge's fmding that the Respondent also violat- ed Section 8(a)(3). The requalification period for disability insurance benefits, however, was not rescinded until July 12, 1982. As the disability requalification remained in effect on the strike's termination, the complaint al- leged the imposition of the requalification period for disability insurance benefits to be a violation of Section 8(a)(3) and (1). The Respondent's defense to these allegations is identical to its defense to the allegation concerning the medical insurance requa- lification period. Thus, it concedes that the waiting period for disability benefits was erroneous. Unlike the medical insurance waiting period, however, the disability requalification period remained applicable to returning strikers, for a time, after termination of the strike. Accordingly, as there is no factual con- tention disputing that these established benefits were accrued, that the requalification period was implemented on the apparent basis of the strike, and that the period was announced and implement- ed without a contractual basis and without a busi- ness justification, we adopt the judge's findings that the Respondent violated Section 8(a)(3) and (1). With regard to the 2-year life insurance requalifi- cation period, the insurance plan provides that an eligible employee who has met the initial 2 years of employment requirement is fully eligible for cover- age and "shall become insured on the date he be- comes eligible for insurance." Thus, as to such em- ployees, we fmd that the insurance benefits were accrued at the time of the strike. It is also clear that the requalification period was applied to strik- ers who were absent as a result of the strike and was not applied to employees who did not strike. Accordingly, we fmd that the requalification period was imposed on the apparent basis of the strike. Under the Texaco analysis, once the General Counsel has met her prima facie burden, as here, the Respondent must come forward with evidence of a legitimate and substantial business justification for the imposition of the requalification period. The Respondent contends that its conduct was justified by a desire to avoid increased costs that would have arisen by "having to shop for and obtain sub- stitute insurance." As the judge noted, however, the life insurance requalification waiting period was established by the Respondent and not by the in- surance carrier. Most importantly, the waiting period was subject to waiver by the carrier under the express terms of the plan, on the Respondent's request. As the judge found, there is no evidence that the Respondent made any attempt to pursue ADVERTISER'S MFG. CO. such a waiver even though the insurance carrier in- dicated that a waiver was indeed possible. In these circumstances, the Respondent's reliance on the desire to avoid seeking "substitute" insurance is pretextual as it could have requested a waiver under the express terms of the existing plan. Ac- cordingly, we find that the Respondent has not es- tablished a substantial business justification for an- nouncing and implementing the 2-year requalifica- tion period for life insurance, and thereby violated Section 8(a)(1) and (3). REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. We shall order the Respondent to rescind the in- crease in health insurance premiums paid by em- ployees, to rescind requalification requirements for the reinstitution of life insurance benefits, to make whole its employees for any loss of earnings or benefits they may have sustained by reason of the discrimination practiced against them, to make them whole for any increases in health insurance premiums that were imposed after January 1, 1982, and that were not negotiated in good faith with the collective-bargaining representative, and to make them whole for any decreases in piece rates or changes in job content of piece-rated bargaining unit jobs that were not negotiated in good faith with the collective-bargaining representative, as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), and New Horizons for the Retarded, 283 NLRB 1173 (1987).1° As the announcement, and imposition of requalification periods for life and disability insurance may have caused losses in fringe benefits payments that are more difficult to calculate than refunds of excessive health insurance premiums, we shall leave the determination of such payments to the compliance stage of the proceed- ing. Merryweather Optical Co., 240 NLRB 1213 (1979). Finally, we shall order the Respondent to provide the Union with requested information con- cerning the changes in piecework rates and job content of bargaining unit piece-rated jobs.I I 10 Interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 11 The record establishes that the Respondent already has supplied the Union with requested insurance information Accordingly, in remedying this violation, we shall not affirmatively require the Respondent to again provide such information Further , under the circumstances presented in 745 ORDER The National Labor Relations Board orders that the Respondent, Advertiser's Manufacturing Com- pany, Ripon, Wisconsin, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to supply the Union in a timely fashion with requested information that is relevant to the Union's responsibility as bargaining agent for the Respondent's production, maintenance, and janitorial employees. (b) Unilaterally changing piece rates and job content of piece-rated bargaining unit jobs without notifying and bargaining with the Union concern- ing such changes if requested to do so; provided that nothing here shall be construed to require the Respondent to reduce any piece rates .that it has heretofore granted. (c) Unilaterally increasing employee health insur- ance premiums, unilaterally increasing wage rates of bargaining unit employees, or making any other changes in the wages, hours, and terms and condi- tions of bargaining unit employees without first no- tifying the Union and bargaining with the Union in good faith concerning such changes if requested to do so; provided that nothing here shall be con- strued to require the Respondent to reduce any in- creases in wages which it has heretofore granted. (d) Bypassing the Union and dealing directly with employees concerning grievances or any other term or condition of employment. (e) Informing employees that they have suffered the forfeiture of fringe benefits or threatening em- ployees with the loss of fringe benefits because they are engaging in or have engaged in a strike. (f) Discouraging membership in or activities on behalf of Teamsters General Local No. 200, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO or any other labor organization by instituting requalification requirements depriving strikers of their previous insurance coverage. (g) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind the increase in employee health in- surance premiums that was announced about Janu- ary 1, 1982, and bargain collectively in good faith with the Union concerning the amount of employ- ee health insurance premiums. this case , we shall substitute a narrow cease-and-desist provision for the broad order recommended by the judge 746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Rescind any requalification requirements de- priving returning strikers of their previous insur- ance coverage. (c) Rescind any decreases in piece rates or en- largement of job duties of piece-rated bargaining unit jobs that were instituted without first notifying and bargaining collectively in good faith with the Union, and bargain collectively in good faith con- cerning changes in piece rates and job content of piece-rated bargaining unit jobs. (d) Supply to the Union in a timely fashion all requested information concerning the changes in piecework rates and job content of bargaining unit piece-rated jobs that were instituted during the strike. (e) Make whole employees for any loss of pay or benefits that they have suffered by reason of the discrimination found, in the manner described above in the remedy section. (f) Rescind in writing all announcements of life insurance requalification requirements. (g) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (h) Post at the Respondent's Ripon, Wisconsin plant copies of the attached notice marked "Ap- pendix."12 Copies of the notice, on forms provided by the Regional Director for Region 30, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (I) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT unilaterally change wage rates, piece rates, or the job content of piece-rated bar- gaining unit jobs, and WE WILL NOT increase health insurance premiums without first notifying the Union and bargaining collectively with it, if re- quested, concerning such changes. WE WILL NOT bypass the Union and deal direct- ly with bargaining unit employees concerning grievances or any other term or condition of em- ployment. WE WILL NOT inform employees that they have suffered a forfeiture of fringe benefits or impose in- surance requalification requirements on returning strikers or discriminate against employees in order to discourage their membership in or activities on behalf of Teamsters General Local No. 200, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind the increases in health insur- ance premiums that were instituted about January 1, 1982. WE WILL rescind any requalification re- quirements that deprive returning strikers of their previous insurance coverage. WE WILL rescind any decreases in piece rates or enlargement of job duties of piece-rated bargaining unit jobs that were instituted during the strike. WE WILL rescind in writing any notification that employees may or have suffered the loss of insurance benefits because they engaged in a strike. WE WILL supply the Union in a timely fashion with requested information that is relevant to the Union's function as bargaining agent. WE WILL make whole employees for any loss of pay or benefits that they may have suffered by reason of the discrimination they have suffered in this case, with interest. 12 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " ADVERTISER'S MANUFACTURING COMPANY George Strick, Esq., for the General Counsel. Russ R. Mueller, Esq., of Milwaukee, Wisconsin, for the Respondent. ADVERTISER'S MFG CO 747 Donald F. Wetzel, Business Representative, of Fond du Lac, Wisconsin, for the Charging Party. DECISION FINDINGS OF FACT STATEMENT OF THE CASE WALTER H. MALONEY, JR., Administrative Law Judge. This case came on for hearing before me at Fond du Lac, Wisconsin, upon a consolidated unfair labor practice complaint,' issued by the Director of the Board's Region Thirteen and amended at the hearing, which alleges that Respondent Advertiser's Manufactur- ing Company2 (sometimes called Admanco) violated Section 8(a)(1), (3), and (5) of the Act. More particular- ly, the consolidated complaint' alleges that the Respond- ent told striking employees that, if they did not return to work before a stated date, their health insurance and their disability and life insurance would expire and there would be extended periods of lack of coverage after any subsequent return to work because of insurance requalifi- cation requirements The consolidated complaint goes on to allege a further violation on the part of the Respond- ent for telling striking employees that it was waiving re- qualification requirements of health insurance coverage for striking employees who would return to work but that it would still insist upon requalification requirements for disability income and life insurance for returning strikers. The consolidated complaint also alleges that the Respondent implemented a 2-year requalification require- ment for disability income and life insurance coverage after strikers returned to work; that it withheld holiday pay for Memorial Day and July 4, 1982, from returning strikers; that it withheld 8 hours' pay or the equivalent from the pay of strikers representing holiday pay for July 4, 1981; that it refused to supply the Union, in a timely fashion, with requested information relative to its self-insured health plan; that it also refused to supply the Union with requested information concerning changes made in piece rates and job content during the strike, that it unilaterally changed incentive rates and instituted different job content in existing jobs without bargaining i The principal docket entries in this case are as follows Charge filed by Teamsters General Local No 200 (formerly Local 126), affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America (the Union) against Respondent in Case 30-CA-6882 on December 21, 1981, charge filed by the Union against Respondent in Case 30-CA-6928 on January 22, 1982, charge filed by the Union against Respondent in Case 30-CA-6985 on February 24, 1982, charge filed by the Union against Respondent in Case 30-CA- 7155 on June 8 , 1982, consolidated complaint issued by the Director, for Region 30, on July 22, 1982, Respondent's answer filed August 16, 1982, hearing held in Fond du Lac, Wisconsin, on October 4 and 5, 1982, briefs filed with me by the General Counsel and the Respondent on or before November 15, 1982 2 Respondent admits, and I find, that it is a Wisconsin corporation which maintains its principal place of business in Ripon, Wisconsin, where it is engaged in the manufacture and sale of cloth specialty prod- ucts In calendar year 1981, it sold and shipped from its Ripon, Wiscon- sin, plant directly to points and places located outside the State of Wis- consin goods and materials valued in excess of $50,000 Accordingly, Re- spondent is an employer engaged in commerce within the meaning of Sec 2(2), (6), and (7) of the Act See Advertiser's Mfg Co, 256 NLRB 644 (1981) with the Union concerning such changes; that it dealt di- rectly with employees on wages, hours, and terms and conditions of employment when it instituted a "Quality of Work Life" program and used this program as a vehi- cle for directly soliciting and adjusting employee griev- ances; that it instituted a wage rate adjustment for 1982 without notifying the Union or offering to bargain with it; and that it did the same for changes in the family medical insurance when it increased premiums by $12 a month for unit employees. Respondent denies that it had any obligation to bargain with the Union while it was engaged in litigation testing the validity of the Union's certification as bargaining representative. It seeks to jus- tify the withholding of holiday pay on the basis of the fact that the strikers claiming such pay had not complied with certain related attendance requirements set forth in the Respondent's personnel manual, and claims that it had not provided the information to the Union alleged in the consolidated complaint either because the Union had not requested this information or had not made a clear and specific request for the data. Respondent also argues that many of the allegation in the consolidated complaint are time barred. On these contentions the issues were joined. 1. THE UNFAIR LABOR PRACTICES ALLEGED The consolidated complaint gives rise to the fourth Board or court case in the past 3 years involving the ef- forts of this Union (or its predecessor) to organize and represent the production and maintenance employees at the Respondent's Ripon, Wisconsin plant. Respondent has been in business at this location for many years and manufactures a variety of cloth products, such as caps, aprons, and handbags, on which it imprints advertising and promotional emblems and messages On September 12, 1980, when a representation election was conducted at the Respondent's plant, it employed about 150-160 employees (Case 30-RC-3809). The Union won that election by better than a 2 to 1 margin and was certified on January 19, 1981 The Re- spondent refused to bargain to test the certification. On June 17, 1981, it was directed by the Board to recognize and bargain with the Union (256 NLRB 644) It declined to do so On April 27, 1981, the Board's Decision and Order was upheld by the United States Court of Appeals for the Seventh Circuit (677 F 2d 544). (This Board case is referred to herein as Advertiser's I) While Advertiser's I was in litigation, the Regional Office sought and ob- tained a temporary injunction against the Respondent pursuant to Section 10(j) of the Act, in which the U.S. District Court for the Eastern District of Wisconsin di- rected the Respondent to refrain from making unilateral changes in the wages, hours, and working conditions of bargaining unit employees without first notifying and bargaining with the Union. Squillacote v. Civil Action No 81-C-343 (E.D. Wis. 1981), Advertiser's Mfg. Co., herein called Advertiser's II. The district court injunction in Ad- vertiser's II was upheld by the Seventh Circuit in the same decision in which enforcement was granted in Ad- vertiser's I (Advertiser's Mfg. Co. v. NLRB, 677 F.2d 544 (7th Cir. 1982). 748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD While these two cases were in litigation, the General Counsel issued an unfair labor practice complaint against the Respondent which was heard by Administrative Law Judge Richard A. Scully in the spring of 1981 . In a deci- sion which was issued on December 29, 1981, Judge Scully found the Respondent guilty of a host of unfair labor practices, including threats to impose more onerous working conditions on employees if they selected the Union as their bargaining agent, discharging a supervisor because she or her relatives supported the Union, issuing disciplinary warnings against union adherents , instituting changes in working conditions such as discontinuing em- ployer telephone privileges, prohibiting the taking of breaks in the loading dock area, tightening up its tardi- ness policy and its policy concerning taking leave for personal reasons, and reducing the workweeks of several employees and changing their piece work rates and methods of payment See Advertiser 's III [200 NLRB 1185 (1986)]. As of this writing this case is pending before the Board on exceptions. The present case in- volves actions on the part of the Respondent which began shortly after the hearing before Judge Scully in Advertiser 's III. For the most part, these events occurred during a strike which lasted from about July 6, 1981, until about May 10, 1982. A few of the alleged violations occurred immediately following the conclusion of that strike. A. Actions of the Respondent During the 1981-1982 Strike The 9-month strike which the Union called in the summer of 1981 was undertaken to protest the Respond- ent's refusal to honor the Board's bargaining order, which was issued on June 17, 1981. The Respondent ad- mitted in its pleading that the strike was an unfair labor practice strike The strike began just after the conclusion of the annual summer shutdown of the plant, which takes place each year during the week which includes the In- dependence Day holiday, All but about 5 of the Re- spondent's production and maintenance employees sup- ported the strike, although about 20 strikers returned to work before it ended. The Union called off the strike in May, 1982, shortly after the Seventh Circuit issued its decision in Advertiser's I and the Respondent agreed to recognize the Union and bargain with it. During this in- terim, the Respondent attempted to operate the plant with supervisors, clerical employees, and a large number of temporary employees that it hired from outside. At the conclusion of the strike, at least some of the tempo- rary strike replacements were terminated to make room for returning strikers.3 In the early summer of 1981, the Respondent anticipat- ed that a strike might soon take place, so Plant Superin- tendent Don Debow posted a notice, dated June 25, 1981, which stated in part: In view of the information that some employees may engage in a strike against the company some- 3 During the course of the strike Respondent hired an aggregate of about 230 new employees, although it had no more than 109 employees on its payroll in the production and maintenance unit at any given time time after the plant shutdown for vacation, an ex- planation of the upcoming paycheck is in order. The paychecks for vacation and holiday pay were prepared prior to knowledge of the information re- garding the strike. This check, in accordance with Company policy which will be handed out Friday, June 26, 1981, along with your regular paycheck for the week ending June 20, includes pay for four vacation days and holiday pay for those eligible. However, entitlement to the holiday pay requires that you work the day before and the day after, namely Friday, June 26 and Monday, July 6. Those who fail to meet the requirements as outlined in the company handbook will owe the Company eight hours of pay. The floating vacation day, for the em- ployees that are eligible, may be used to take care of this overpayment. Other arrangements for this repayment will subsequently be made for those who are not eligible for one week's vacation and did not meet the entitlement requirements for holiday pay. The entitlement requirements referred to above in the plant superintendent's notice are found in the Admanco Employee Handbook and state that, in order to be eligi- ble for holiday pay on any of the seven paid holidays, an employee must have been "actively in our employ" during the 3 months preceding the holiday and must be on duty the working day before and the working day after the holiday. If an employee's vacation includes a paid holiday, holiday pay will be given only .if he is on duty on the working day preceding and the working day following the vacation. The handbook further provides that exceptions to this rule "may be taken . . . upon pre- arranged agreement with management and the Superin- tendent's office." Because the vast majority of the Respondent's employ- ees began to strike on July 6, they did not fulfill the above-stated requirement of being "actively in (the) employ" of the Respondent on the day following the In- dependence Day holiday and were not, in the estimation of the Respondent, entitled to the holiday pay which most of them had already received. Accordingly, the Re- spondent docked the accrued vacation time of most of the strikers by 8 hours in order to make up for the pay- ment for the July 4th holiday Because of clerical errors or because 13 employees did not have 8 hours of accrued vacation pay, Respondent docked the pay of these em- ployees after they returned from the strike by 8 hours, at 1981 wage rates, in order to recoup holiday payments made to them for July 4, 1981 In the case of three indi- viduals who had left the Respondent's employ, it was unable either to dock their accrued vacation or their cur- rent paychecks, so the Respondent remains unreimbursed for payments made to them. Since 1971, the Respondent has provided its employees with a noncontributory policy of life insurance and dis- ability insurance which is issued by the Safeco Life In- surance Company of Seattle, Washington. This policy, as well as a partially contributory program of medical and hospitalization insurance, are administered by Wisconsin Pension and Group Services located in Milwaukee. The medical and hospital plan covering Respondent's em- ADVERTISER'S MFG CO ployees is, in large part, self funded by the Respondent. Wisconsin Pension and Group Services handles claims under the plan and also provides the Respondent with an umbrella policy covering unusually large aggregate or individual claims. For the first 6 months of the strike, the Respondent continued to make payments into the health insurance fund to maintain coverage for striking employees. On November 23, 1981, Respondent's personnel director, Jill Cartier Chatterson, sent a letter to all strikers reminding them that their health insurance would expire on Decem- ber 31. She went on to tell them that, if an employee did not return to work until after January 1, "1982, he would not be covered by medical insurance during the first 60 days of his reinstatement and would not be covered by disability income and life insurance policies for a period of 2 years following reinstatement because of requalifica- tion requirements found in those respective policies. She repeated this message in another letter to strikers dated December 15, 1981. On December 9, 1981, the Union Business Agent, Donald F Wetzel, wrote to the Company Counsel Russ R. Mueller, requesting a copy of the Company's insur- ance plan "to determine (1) if in fact, Advertiser's is self- insured and (2) just exactly what the provisions of the plan are." By letter dated December 14, Mueller replied by telling that such a request would be appropriate in an established collective-bargaining relationship but, because the validity of the Union's certification was still being re- viewed by the Seventh Circuit, the request was being re- fused Mueller also expressed the opinion that the terms of the outstanding District Court injucntion did not impose upon him any obligation to comply with Wetzel's request. Later, after the Respondent agreed to comply with the decision of the Seventh Circuit, Mueller fur- nished the requested information by letter to Wetzel dated August 9, 1982. Respondent has maintained the policy over a period of years of granting an annual wage revision beginning in January. It followed this policy in January, 1982, by in- creasing "wage rates and piece rates by 3%." At the same time, it increased the employee contribution to the health insurance plan from $38 to $50 per month. There is no suggestion that the Respondent either notified the Union of these proposed changes or offered to bargain concerning them. They were first brought to the atten- tion of employees by means of a notice, posted on De- cember 29, 1981, and signed by Edward W. Bumby. The notice, entitled "Wage Revisions for 1982," read as fol- lows: The following revision will be made in the pay scales for 1982 which will be effective January 4, 1982, except for employees working any hours on January 2 or 3 will be paid at the new wage scale. January 1, 1982, holiday pay will be based on the 1981 hourly wage scale and 4th quarter average for incentive workers. 1. All hourly straight-time rates of pay will be in- creased 3% unless employees are otherwise notified. All hourly employee now earning $5.86 per hour or 749 more, except supervisors, will be increased 18% per hour. 2 All piece rates will be increased by 3%. 3. Some rates of pay will be adjusted individually as deemed necessary by management. Additionally, the Hospital/Medical Insurance, for which the Company pays a single premium, will in- crease in cost approximately 1-1/2%. This extra ex- pense will be paid for by the Company as a fringe benefit provided to qualifying employees. Employees participating in the Family Hospital- Medical plan will be paying $50 per month as op- posed to $38 per month which was paid in 1981. Employees utilizing the family plan will be paying approximately 1/2 of the additional premium for de- pendent coverage as the Company will pick up the balance. The guaranteed minimum wage for all incentive employees will continue to be $3.35 per hour. After the strike, another notice was posted on June 15 which reiterated to returning strikers the fact that their monthly health insurance deduction had been increased by $12 In January 1982, faced with the presence in the plant of a large number of new employees who had been hired during the strike, the Respondent instituted what it called a Quality of Work Life Program. Under this pro- gram, management representatives conducted hour long meetings with groups of about 15 or so employees to dis- cuss the operations of the plant. A notice, dated January 14, 1982, was placed on the bulletin board and read, in part. Starting next week, we are starting a program which we call QUALITY OF WORK LIFE (Q W L.). This program will afford you the oppor- tunity to share your suggestions, criticisms, ques- tions, problems, compliments , etc., with manage- ment personnel during a group meeting. The idea of these meetings is to get your input so that we can develop a better working atmosphere for every em- ployee. [Emphasis in the original ] There was no suggestion that union representatives would be invited to any of these meetings and in fact none were present. Approximately nine meetings took place from January 18 through January 29. Shortly thereafter, the Respond- ent prepared and published detailed resumes of the dis- cussions which took place, the suggestions which were made, and management responses to employee requests. These resumes are to be found in the record. A partial summary of the items contained indicate that the discus- sions dealt in large part with employee complaints. For instance, at the meeting of the printing and cutting de- partments, the employees complained about safety fea- tures of the presses and made specific suggestions for re- vision of these machines. The Respondent's reply was that "these things are being looked into and the mechan- ics are designing options at this time." Employees com- plained about the ventilation in the silk screen depart- 750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD merit and the Respondent replied that it had contracted material suppliers and individuals responsible for the ven- tilation system to see if they could improve ventilation. Respondent also stated that it had assigned engineers to examine the problem. Employees complained that the cutting department needed another employee. Printing department employees asked to be placed on piece rate. In other departments, employees requested a 4-day workweek, reported that oven belts needed to be fixed, complained that piece-rated screen printers did not have long enough break periods and that piece rates were needed for the production of printed towels. Other em- ployees voiced other complaints and suggestions running the gamut from radio announcements of plant closings during inclement weather to objections that material dye was coming off on clothing while goods were being sewn. In each instance, the Respondent provided a writ- ten response, in some instances promising remedies and in other instances rejecting the complaint or suggestion. On January 25, 1982, Minch wrote a letter to all em- ployees in which he stated that the Company had re- quested its insurance company to waive the eligibility re- qualification condition for coverage under the health protection plan and that the carrier had agreed to do so. Accordingly, any employee who reported back to work after that date would not have to wait 60 additional days to renew his health insurance coverage but would be eli- gible for these benefits immediately on return. However, the renewed coverage would not extend to expenses in- curred between December 31, 1981, the date on which the Respondent ceased to make health insurance pay- ments for strikers, and the date on which any employee might abandon the strike. The letter also recited the fact that the requalification period for disability income and life insurance for returning strikers would continue to be 2 years, during which time no returning striker would be entitled to enjoy these benefits. The parties stipulated that, during the strike, the Re- spondent established or assigned incentive piece rates pursuant to its preexisting incentive system. The changes in production methods or modifications in existing jobs that came about could result in the application of a pre- existing ant previously used piece rate for the same or similar products, and the application of these rates to new or existing products could affect the wages of incen- tive employees who were working in the bargaining unit during the strike. The Respondent admits that it did not negotiate any of these changes with the Union. When the Respondent agreed to comply with the Sev- enth Circuit's decision, the Union agreed to abandon the strike. The parties met on May 3 to discuss initiation of bargaining and the resumption of production with strik- ing employees. By May 10, all strikers who wished to return to work were back on the job. Since that date the Respondent and the Union have had numerous meetings to discuss both terms and conditions of a collective-bar- gaining agreement and the resolution of a large number of problems and specific grievances which were inciden- tal to the return of striking employees to the plant. I credit Wetzel's testimony that, at a meeting on June 2, he requested from the Respondent a list of piece rate changes and job content changes which occurred in the bargaining unit during the strike. The purpose of the re- quest was to permit the Union to formulate bargaining demands and possibly to negotiate any grievances which might arise out of those changes. While admitting that such changes took place during the strike, the Respond- ent has failed to come forth with most of the requested information. After the strikers returned, they were informed that they would not receive any holiday pay for the Memori- al Day and Independence Day holidays in 1982. The reason for this decision was a provision, recited above, in the Employee Handbook requiring an employee to be in the active service of the Respondent for 3 months imme- diately preceding the receipt of holiday pay. Since strik- ers did not return to work until May 10, this requirement could not be fulfilled pertaining to holidays falling on May 30 and July 4. On July 12, 1982, the Respondent notified its employees that the 2-year requalification pro- vision for eligibility for disability insurance coverage had been waived for returning strikers but also informed them that this limitation for life insurance coverage still remained. II. ANALYSIS AND CONCLUSIONS A. The Defense of Limitations Respondent contends that any violations growing out of its refusal to pay striking employees pay for July 4, 1981 (either by docking accrued vacation entitlement or the wages of returning strikers), its slowness in providing the Union with copies of its medical, disability insurance, and life insurance plans, and its unilateral changes of in- centive rates and products during the strike may not be prosecuted by the General Counsel because these acts or omissions occurred more than 6 months before the filing of the last of the four charges in this consolidated case. The contention is without meet. The earliest of the four charges involved in this case was filed on December 21, 1981, and, under Section 10(b) of the Act, is timely enough to reach violations which occurred as early as May 21, 1981. None of the events litigated in this case took place until a month or more after that date. Under the ruling of the Supreme Court in NLRB v. Fant Milling Co., 360 U.S. 301 (1959), cited by the Respondent in its brief, once a charge has been filed, the General Counsel is entitled, on the strength of that charge, to prosecute unfair labor prac- tices which take place after the filing date as well as vio- lations occurring before the charge was filed. The charge in Case 30-CA-6882 alleges, in paragraph 1(h), that the Respondent violated Section 8(a)(1), (3), and (5) of the Act. This allegation is broad enough to encompass any violation of any of these sections, irrespective of the specifications contained in the following paragraph. There is nothing in Section 10(b) of the Act which re- quires that a charge be particularized. Such is the func- tion of a complaint. The underlying statutory purpose re- quiring the filing of a charge is to prevent the Board from initiating investigations sua sponte in the same manner in which other law enforcement agencies are oc- casionally disposed to operate. Once the statutory ma- ADVERTISER'S MFG CO chinery has been set in motion by the charge, the Gener- al Counsel is not limited by the niceties of common law pleading in formulating and issuing a complaint. He may address whatever the investigation of the charged re- spondent turns up and whatever occurs while the investi- gation is in progress. See Teamsters Local 705 (Associated Transport), 209 NLRB 292 (1974), and cases cited at 302- 304, enfd. sub nom . Kesner v. NLRB, 532 F.2d 1169 (7th Cir. 1976), cert. denied 429 U.S. 1022 (1976). According- ly, I conclude that the charge filed by the Union against the Respondent in Case • 30-CA-6882 is broad enough and timely enough to support each and every substantive allegation in the consolidated complaint. B. The Obligation of the Respondent to Bargain While Testing the Certification The Board and courts have long held that one who re- fuses to bargain with a certified union does so at his peril. If the certification is found to be valid, then any infringements of Section 8(a)(5) which occur while a test case is sub judice constitute separate violations of the Act for which a Board remedy is appropriate There is absolutely no legal basis for the position which the Re- spondent arrested at the hearing that a Board certifica- tion does not mean anything until a court of appeals says it does. Ample authority to the contrary was cited both in Judge Scully's decision in Advertiser's III and in the Seventh Circuit's opinion upholding the District Court injunction in Advertiser's II. It is unlikely that a repetition of case citations on this point will afford the Respondent further enlightenment Persistence by the Respondent in this error only gives rise to the inference that it is at- tempting to substitute litigation for good-faith bargaining. Certain dicta in the Katz case, infra, quoted by the Re- spondent in its brief, can afford no support for its ac- tions, inasmuch as the unilateral changes in wages and working conditions undertaken by the Respondent during the strike were wholly discretionary on its part. Accordingly, the Respondent was not free to adjust employee wage rates and piecework rates unilaterally in January 1982, without bargaining with the Union con- cerning this subject The fact that this employer had a past history of making across-the-board wage adjust- ments in January for the ensuing year is no defense. Once a union has achieved bargaining rights, these mat- ters must be negotiated, regardless of what the past prac- tice has been. NLRB v. Katz, 369 U.S. 736 (1962), Oneita Knitting Mills, 205 NLRB 500 (1973); St. Elizabeth Com- munity Hospital, 240 NLRB 937 (1979). Respondent was not free unilaterally to impose upon bargaining unit em- ployees a larger contributory fee for health insurance coverage without first meeting and discussing this pro- posal with the Union. Its defense of economic necessity is inapplicable to a refusal to bargain in good faith. Massey Ferguson, Inc. v. NLRB, 78 LRRM 2289 (7th Cir. 1971). In the context of a bargaining obligation, econom- ic necessity is an issue for the negotiating table, not for a Board proceeding. Respondent was not free to withhold from the Union information requested by the Union concerning the exist- ence and substance of company insurance plans for bar- gaining unit employees, information which was not sup- 751 plied until about 9 months after it was requested. Fry Foods, 241 NLRB 76 (1979). It was under an obligation to bargain with the Union concerning changes in produc- tion methods, modifications in job content, and the impo- sition of or changes in piece rates which took place during the strike. It was under an obligation to inform the Union, upon request, as to what, if any, new or changed piece rates or changes in job content were es- tablished during the strike. Womac Industries, 238 NLRB 43 (1978); Brooklyn Union Gas Co, 220 NLRB 189 (1975); Barney Mfg., 219 NLRB 41 (1975). I credit Wet- zel's testimony that, on June 3, he requested such infor- mation from the Respondent and that it has, to date, failed to supply it. The request was clear and definite on its face and the Respondent expressed no doubt as to its meaning until the Board case arose. Moreover, it pro- duced no evidence beyond a naked assertion about why it would be impossible to tell the Union specifically what it did in these areas during the strike By each of the above recited actions and by its failures to supply infor- mation to the Union which is relevant to the latter's re- sponsibilities as bargaining agent and to do so in a com- plete and timely fashion, the Respondent violated Sec- tion 8(a)(1) and (5) of the Act.4 It is an independent violation of Section 8(a)(1) of the Act for an employer, during an organizing campaign, to solicit grievances from employees with a view toward adjusting them. After a union has been certified as bar- gaining agent, it is a violation of Section 8(a)(5) of the Act for an employer to do the same thing without per- mitting the Union to be present and without negotiating such matters with the Union, because such actions amount to bypassing the collective-bargaining agent and dealing directly with employees conceining wages, hours, and terms and conditions of employment. Dow Chemical Co., 215 NLRB 910 (1974), and on remand 227 NLRB 1005 (1977) As recited above, the Respondent had hour long meetings with groups of 15 employees, most of whom were new hires, during the last 2 weeks in January No union representatives were present or were invited to be present. The notice which was posted to announce these meetings stated that "this program will afford you the opportunity to share your suggestions, criticisms, questions, problems, compliments, etc. with management personnel. The idea of these meetings is to get your input . . . ." In short, the announcement was a written invitation to unit employees to voice their griev- ances directly to management without the intervention of their bargaining agent As noted before, many of the grievances so presented were later adjusted and, in those cases in which management thought the grievance was without merit or beyond its ability to resolve, it still re- sponded to the employees in question, in many instances offering explanations as to why the complaint or sugges- 4 Respondent argues in its brief that no Board order should be issued concerning the request for insurance information since the information was ultimately supplied The gravamen of the Respondent's misbehavior in this regard is the delay which it caused in supplying the information As Board orders are prospective in character and are designed to dis- courage future violations as well as to remedy previous ones, an order addressed to this violation should be issued 752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion could not be favorably acted upon. Hence, the moti- vation for the Quality of Work Life Program was to so- licit and, where possible, to adjust employees grievances, thereby dealing directly with unit employees and bypass- ing their union representative. Accordingly, the Re- spondent violated Section 8(a)(1) and (5) of the Act by instituting and implementing this program. St Mary's Home, 258 NLRB 1024 (1981). C. The Withholding of Benefits Because of Strike Activity It is well settled that an employer has no obligation to compensate striking employees in any way, whether by wage payments or the continuation of fringe benefits during the strike. However, employees may not be sub- jected to a forfeiture of rights and benefits which they would otherwise enjoy because of their strike activity. This basic policy has been applied in a number of situa- tions similar to the ones found in the instant proceeding. In Moore Business Forms, 224 NLRB 393 (1976), enfd. in part 574 F.2d 835 (5th Cir. 1978), the employer treated returning strikers as new employees for purposes of health insurance, thereby forcing them to wait 90 days before resuming coverage. Its policy applied even to re- turning strikers who had converted their previous cover- age from the employer's group policy to individual poli- cies during the strike. There was record evidence in that case that the insurance carrier did not seek to impose a waiting period and that, under normal circumstances, any defaulting employees who failed to pay his monthly contribution would be immediately reinstated simply by payment of the premium that was due. The Board and the court held that this treatment of strikers was inher- ently destructive of protected rights, was not justified by any legitimate business purpose, and violated Section 8(a)(1) and (3) of the Act. In Textron, Inc., 257 NLRB 1 (1981), the employer maintained for its employees a noncontributory plan of life, accident, and medical insurance which, by its terms, ceased to cover any employee when he ceased active work, except for sickness, injury, temporary layoff, leave of absence, pensioned, or retired. In these instances, they could resume coverage immediately on returning to work. In other circumstances, including a strike, an em- ployee who ceased active work would not be covered during the first sixty days should he return to work. The Board held that this provision of the plan, as it applied to returning strikers, violated Section 8(a)(3) of the Act, since there was no substantial evidence of a business jus- tification for the waiting time provision. There are other insurance coverage cases in accord, as well as cases ap- plying the same principles to prestrike probationary em- ployments and to accrued vacation pay.' In this case, the Respondent, having paid its employees the July 4th holiday pay before the commencement of the 1981 strike, sought to recoup the payment, either by docking accrued vacation benefits of each striker some 8 hours or by deducting from the paychecks of 13 striking 6 Freezer Queen Foods, Inc, 249 NLRB 330 (1980) e Elmac Corp, 225 NLRB 1188 (1976), Frick Co, 161 NLRB 1089 (1966). employees the equivalent of 8 hours' pay. Its justification was that unit employees, by going on strike on July 6, the first working day immediately following the holiday, forfeited previously paid holiday pay to which they would otherwise be entitled. In support of this position, Respondent cites the provision of the company hand- book which sets forth the not unusual requirement that an employee must work the day immediately before and the day after a holiday in order to qualify for holiday pay. Had the employees in question worked on July 6 and commenced their strike on July 7, they would have been entitled to the holiday pay at issue. In this situation, the decision of employees to strike on July 6 brought about a forfeiture of a fringe benefit, not merely nonpay- ment for time not worked. No business justification was established in the record to justify the forfeiture. Ac- cordingly, the action of the Respondent in withholding these benefits violated Section 8(a)(1) and (3) of the Act. Similarly, when employees returned to work, they did not receive holiday pay for Memorial Day or for Inde- pendence Day 1982, because the strike had ended less than 3 months before these holidays and the company personnel handbook requires all employees to be em- ployed 3 full months before a holiday in order to be eli- gible to receive holiday pay. There is no business justifi- cation in this record to warrant the application of this provision to returning strikers, many of whom had been employed by the Respondent for periods of many years before the strike and who retained their status as employ- ees throughout the course of the strike. In this case, as in the case of the recoupment of 1981 holiday payments, the Respondent was imposing a forfeiture on employees because of their decision to go on strike. It was not merely failing to pay them for time not wor,)ed. As no business justification appears in the record for this action, I conclude that it violated Section 8(a)(1) and (3) of the Act. A variation on the same theme occurred by the action of the Respondent in telling its employees that they could be or would be subjected to a period of loss of health insurance coverage, disability insurance, and life insurance on their return to work by virtue of their strike activity. In the case of health insurance, striking employees were told that, if they did not come back to work before January 1, 1982, they would not have health insurance coverage for the first 60 days of their reem- ployment, if and when they finally did decide to abandon their strike and start working. They were also told that the period of time they would be without disability and life insurance on return to work would be 2 years. On January 25, 1982, while the strike was still in progress, employees were informed that the Respondent had re- quested the insurance carrier to waive health insurance requalification requirements, that the insurance company had agreed to do so, and that henceforth any returning striker could resume health insurance coverage immedi- ately on reporting for work. In July 1982, the 2-year dis- qualification was removed from the disability insurance and this coverage was again extended immediately to all returning, strikers. However, the requalification require- ment of 2 years of additional service still extended to all ADVERTISER 'S MFG. CO returning strikers, regardless of the extent of their service with the Respondent before the strike. Respondent attempts to place the blame for these shift- ing requirements on its insurance company, ignoring the fact that its policy or plan of medical and hospital insur- ance is largely one of self-insurance. Respondent also avoids the fact that any obligations owed to its employ- ees, including returning strikers , are direct obligations be- tween employer and employee , not obligations owed by an insurance company to Respondent's employees. The fact that one insurance company had, or may still have, some qualms about reinsuring returning strikers does not mean that all insurance companies have similar misgiv- ings or that the Respondent could not cover the various requalification periods at its own risk . The Respondent may not establish a business justification by simply laying off its liability for complying with the Act on an insur- ance carrier. The establishment and announcement of requalification periods for returning strikers is an imposition of a forfeit- ure due to strike activity. The Respondent had no obliga- tion to continue health insurance coverage for its striking employees during the strike. Its decision to do so was a matter of grace, not a legal requirement . However, its decision to impose requalification periods on returning strikers is another matter. In point of fact , Respondent's insurance carrier did not persist in any demand for re- qualification periods before reinstituting health insurance coverage and disability insurance coverage . The insur- ance company failed to extend such coverage to return- ing strikers for short periods of time simply because the Respondent had not requested waivers of requalification periods When the Respondent requested waivers, the in- surance company agreed and two of the three requalifi- cation periods were dropped . Health insurance was rein- stated immediately upon a striker's return as of January 25 and disability income insurance was reinstated with- out a waiting period, as of July 12. The onus for the an- nouncement and imposition of requalification periods for these policies lies wholly upon the Respondent, not its insurance carrier With respect to the group life insurance policy, the carrier informed the Division of Advice during the con- sideration of this case in its investigation stage that the waiting period under the life insurance policy was estab- lished by the employer, not the insurance company, and that the carrier would typically waive this period if em- ployees were to be rehired within 6 months after the strike began It went on to state that, if employees were absent from work from 6 to 12 months, it would be pos- sible but less likely that the insurance company would agree to waive the requalification period but that it would not consider such a waiver unless the employer requested it and furnished the underwriting department with information covering the health of "rehired" em- ployees It should be noted that no such requalification period is imposed upon employees who are out of work because of temporary layoff or on leave of absence. The Company's reason for reinstating disability insurance on July 12 without a waiting period is that the announce- ment of the requalification period occurred as a result of a "misunderstanding " with the insurance company and 753 that the waiting period for that policy was there and then discountinued . The record is silent as to what ef- forts, if any, Respondent took to obtain a similar waiver for life insurance coverage or to furnish its carrier with information which would assist the latter in evaluating a waiver request and to clear up any "misunderstanding" regarding this policy. In light of any plausible explana- tion for announcing and imposing on returning strikers requalification periods for health , disability, and life in- surance, and in maintaining this disability as to life insur- ance, I conclude that this action on the part of the Re- spondent constituted reprisal for strike activity and, as such, violated Section 8(a)(1) and (3) of the Act. What the Respondent was not at liberty to do with re- spect to insurance policies it was not at liberty to threat- en to do Hence, when it wrote to strikers threatening and later informing them of a suspension of insurance benefits when they returned to -work , the Respondent was simply attempting to intimidate strikers from exercis- ing rights guaranteed to them by Section 7 of the Act. Such threats violate Section 8(a)(1) of the Act. On the foregoing findings of fact and on the entire record considered as a whole, I make the following CONCLUSIONS OF LAW 1. Advertiser's Manufacturing Company is now and at al times material has been an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Teamsters General Local No. 200 , affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular full-time and regular part -time produc- tion, maintenance, and janitorial employees employed by the Respondent at its Ripon , Wisconsin plant, excluding managers , office clerical employees , guards, and supervi- sors as defined in the Act constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 4 Since September 12, 1980, the Union herein or its predecessor has been the exclusive bargaining representa- tive of all of the employees in the unit found appropriate in Conclusions of Law 3 for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing to supply the Union in a timely fashion with a requested copy of the Company's insurance plan; by unilaterally changing piece rates and job content of piece-rated bargaining unit jobs without notifying the Union and bargaining with it concerning such changes; by failing and refusing to supply the Union with requested information concerning changes in piece- work rates and job content of bargaining unit piece-rated jobs which had been unilaterally instituted during a strike; in bypassing the Union and dealing directly with employees concerning grievances and the adjustment of grievances through the Quality of Work Life Program; by unilaterally instituting hourly wage increases and piecework rate increases for 1982 without notifying the Union and bargaining with it concerning such increases; 754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and by unilaterally increasing monthly contributions of employees for health insurance, the Respondent violated Section 8(a)(5) of the Act. 6. By docking accrued vacation pay or docking pay- checks of striking employees in order to recoup payment of holiday pay previously advanced for Independence Day 1981; by refusing to pay returning strikers holiday pay for Memorial Day and Independence Day 1982; by imposing on returning strikers requalification periods during which they would not be covered by health, dis- ability, and life insurance-all in order to discourage em- ployees from engaging in union activities-the Respond- ent violated Section 8(a)(3) of the Act. 7. By engaging in the unfair labor practices set forth above in Conclusions of Law 5 and 6; by threatening striking employees with suspension or loss of insurance benefits through requalification requirements unless they immediately returned to work; and by telling employees that they had lost insurance benefits through requalifica- tion requirement because they had engaged or were en- gaging in a strike, the Respondent violated Section 8(a)(1) of the Act. 8. The strike of Respondent's employees, which com- menced on or about July 6, 1981, was caused or pro- longed by unfair labor practices committed by the Re- spondent. 9. The unfair labor practices set forth above in Con- clusions of Law 5, 6, and 7, have a close, intimate, and adverse effect on the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has committed vari- ous unfair labor practices, I will recommend that it be required to cease and desist therefrom and to take other affirmative action designed to effectuate the purposes and policies of the Act. Since the violations of the Act found herein and in previous cases are repeated and per- vasive and evidence an attitude on the part of this Re- spondent to behave in total disregard for the rights of its employees, I will recommend to the Board a so-called broad 8(a)(1) remedy designed to suppress any and all violations of that section of the Act. Hickmott Foods, 242 NLRB 1357 (1979). The recommended Order will pro- vide that the Respondent be required to rescind the in- crease in health insurance premiums paid by employees, to rescind requalification requirements for the reinstitu- tion of health, disability, and life insurance benefits, to make whole its employees for any loss of earnings or benefits they may have sustained by reason of the dis- criminations practiced against them, to make them whole for any increases in health insurance premiums which were imposed after January 1, 1982, and which were not negotiated in good faith with the collective-bargaining representative, and to make them whole for any de- creases in piece rates or changes in job content of piece- rated bargaining unit jobs which were not negotiated in good faith with the collective-bargaining representative. Inasmuch as the failure of the Respondent to pay holiday pay and its unnegotiated increases in health insurance will result in awards of liquidated sums which are easily determined, I will recommend that such amounts be paid, with interest, computed at the adjusted prime rate used by the Internal Revenue Service for the computa- tion of tax payments. Olympic Medical Corp., 250 NLRB 146 (1980); Isis Plumbing Co., 138 NLRB 716 (1962). In- asmuch as the announcement and imposition of requalifi- cation periods for various policies of insurance may have caused losses in fringe benefits payments which are more difficult to calculate than losses in holiday pay and re- funds of excessive health insurance premiums, I will leave the determination of interest on such payments to the compliance stage of the proceeding. Merryweather Optical Co, 240 NLRB 1213 (1979). I will also recom- mend that the Respondent be required to post the usual notice advising its employees of their rights and of the results in this case.? [Recommended Order omitted from publication.] ' I will not recommend an additional' bargaining order of general import against this Respondent, since it is already under such an order in Advertiser's I and that order has been enforced by a court decree If the Respondent will not bargain in good faith pursuant to a court decree it will avail the Union and the employees nothing to reiterate the same order in a subsequent Board case