Exxon Co., U.S.A.

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 952 (N.L.R.B. 1994)

952
315 NLRB No. 137
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Northeast Medical Plan was an Exxon plan.
Exxon Company, U.S.A. and Local 877, Inter-
national Brotherhood of Teamsters, AFL–CIO.
Case 22–CA–18405
December 16, 1994
DECISION AND ORDER
BY MEMBERS DEVANEY, BROWNING, AND COHEN
On May 17, 1994, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions as modified and to adopt the recommended
Order as modified.
1. The Respondent, a division of Exxon Corporation,
was directed by the latter to transfer unit employees
from the contractually mandated Northeast Medical
Plan1 to the Exxon Medical Plan (EMP) during the
term of the Respondent’s collective-bargaining agree-
ment with the Union. Exxon corporate headquarters,
however, authorized local management to bargain with
the Union to permit unit employees to remain covered
by the Northeast Medical Plan for the duration of the
contract. The Respondent did not inform the Union of
this authorization, which the judge referred to as a
‘‘choice’’ or ‘‘possibility’’ open to the parties through
bargaining. We note, however, that the retention of the
Northeast Plan for the duration of the extant contract
was more than merely a possible bargaining conces-
sion. Rather, it was the Respondent’s contractual obli-
gation and the Union’s contractual right, subject only
to the Union’s agreement to a change in plans during
the terms of the contract.
2. In its discussions with the Union about the termi-
nation of the Northeast Medical Plan and the transfer
of coverage to the EMP, the Respondent repeatedly
stressed to the Union the need for union representa-
tives to act quickly in light of the pending date for ter-
mination of the Northeast Plan. We note, however, that
the decisions to terminate the Northeast Plan and not
to continue that plan for the duration of the contract,
as well as the timetable for the Northeast Plan’s termi-
nation, were within the Respondent’s control at all
times and not decisions dependent on outside events or
circumstances that might properly be invoked as legiti-
mate reasons for demanding hasty action on the part
of the Union.
3. We shall modify the judge’s recommended Order
and substitute a new notice to more closely reflect the
circumstances of this case and the violations found.
Specifically, having found that the Respondent has
violated Section 8(a)(5) and (1) by unilaterally imple-
menting the EMP, we shall order the Respondent to re-
store the health and medical insurance coverage bene-
fits that were provided to unit employees before the
Exxon Northeast Medical Plan was unilaterally elimi-
nated. We do not find that it is necessary here, how-
ever, to order that the Northeast Plan itself be re-
instituted as an entity. In addition, the Respondent
shall reimburse unit employees for any expenses ensu-
ing from the unilateral change, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. 661 F.2d 940 (9th Cir. 1981), such amounts to
be computed in the manner set forth in Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
We shall also order the Respondent to bargain over
any changes in medical benefits.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Exxon
Company, U.S.A., Linden, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Restore the health and medical coverage bene-
fits that were provided to unit employees before the
Exxon Northeast Medical Plan was unilaterally termi-
nated and make the employees whole for any losses
that they may have suffered as a result of the unilateral
change.’’
2. Substitute the following for paragraph 2(c) and
reletter subsequent paragraphs.
‘‘(c) Bargain in good faith with Local 877, Inter-
national Brotherhood of Teamsters, AFL–CIO concern-
ing any changes in health and medical insurance cov-
erage benefits.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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 or-
dered us to post and abide by this notice.
953EXXON CO., U.S.A.
1 Art. 27 of the contract states, inter alia, that ‘‘this Agreement and
exhibits attached thereto is now the only Agreement between the
parties, except for the following letters: Side Letter A.’’
WE WILL NOT refuse to bargain collectively with
Local 877, International Brotherhood of Teamsters,
AFL–CIO by failing to continue in effect all the terms
of our 1990–1993 collective-bargaining agreement with
the Union, by transferring the employees in the unit
from the Exxon Northeast Medical Plan to the Exxon
Medical Plan without obtaining the Union’s consent.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL restore the health and medical insurance
coverage benefits that were provided to unit employees
before the Exxon Northeast Medical plan was unilater-
ally terminated and we will make the employees whole
for any losses they may have suffered as a result of
the unilateral termination.
WE WILL bargain in good faith with Local 877,
International Brotherhood of Teamsters, AFL–CIO
concerning any changes in health and medical benefits.
EXXON COMPANY, U.S.A.
Bradley R. Williams, Esq., for the General Counsel.
B. F. Flaherty, Esq., of Linden, New Jersey, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant to a
charge filed on April 10, 1992, by Local 877, International
Brotherhood of Teamsters, AFL–CIO (the Union), a com-
plaint was issued against Exxon Company, U.S.A. (Respond-
ent) on October 30, 1992. The complaint alleges, essentially,
that Respondent failed to continue in effect all the terms and
conditions of the parties’ collective-bargaining agreement, by
unilaterally transferring the members of the collective-bar-
gaining unit from one medical plan to another without the
Union’s consent.
Respondent’s answer denied the material allegations of the
complaint, and a hearing was held before me in Newark,
New Jersey, on August 9, 1993.
Upon the evidence presented in this proceeding, and my
observation of the demeanor of the witnesses and after con-
sideration of the briefs filed by the General Counsel and Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Exxon Company, U.S.A., a division of Exxon Corporation,
having an office and place of business in Linden, New Jer-
sey, has been engaged in the production, refining, and mar-
keting of oil and petroleum products and related products.
During the past year, Respondent sold and shipped from its
New Jersey facility goods valued in excess of $50,000 di-
rectly to points outside New Jersey. Respondent admits and
I find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Respondent also admits and I find that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
1. Background
In 1966, the Union was certified as the exclusive collec-
tive-bargaining representative of the employees of Respond-
ent in the following unit:
All operating, mechanical and maintenance employ-
ees in the Bayway Refinery and Bayway Chemical
Plant of the Companies, excluding office and plant cler-
ical employees, watchpersons, guards, professional em-
ployees, technical employees, metal inspectors, gas test-
ers, measurement persons, and supervisors, as defined
in the National Labor Relations Act.
Before 1989, the employees received medical coverage
through Blue Cross/Blue Shield. Ronald Kowalczyk, Re-
spondent’s human resources manager, testified that in 1989,
the high cost of medical coverage with that plan created a
deficit of more than $3 million.
Several options were considered, including the Exxon
Northeast Medical Plan (Northeast). The employees voted for
that plan, which then provided coverage for them.
Kowalczyk stated that at that time, the Union was informed
that Northeast was a larger plan, covering many different
unions and employees, and that Respondent would not have
the local ability to make changes to the plan.
The collective-bargaining agreement relevant herein ran
from March 2, 1990, through March 1, 1993. Side letter A
to that agreement stated that Respondent agreed to increase
its maximum subsidies to Northeast in 3 successive years of
the contract.1
2. The dispute
Kowalczyk testified that in February 1992, at a meeting at
corporate headquarters in Houston, he was informed that Re-
spondent had decided to terminate Northeast and transfer all
its employees into one medical plan, the Exxon Medical Plan
(EMP). At that time, Northeast covered about 6000 employ-
ees, and the EMP had about 22,000 participants.
However, Kowalczyk was further told that due to the col-
lective-bargaining agreement, local management had the au-
thority to negotiate the change to the new plan, including the
authority to retain Northeast until the expiration of the col-
lective-bargaining agreement, and could also bargain about
the timing of the transition from Northeast with the Union.
William Goodheart, Respondent’s labor relations coordinator,
corroborated that employees represented by the Union could
remain covered by Northeast if that was the decision reached
after bargaining.
On March 1, 1992, John Launchi, Respondent’s human re-
sources department head, told Ronald Fonseca, the Union’s
president, that Respondent wanted to move its employees
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Castimore was also quoted by Richard Tomasso, the Union’s
vice president, as saying that what was being presented was only a
name change.
3 Those forms permit the employees to receive medical supple-
mental payments on a tax-free, no-payment basis. The forms must
be completed annually.
4 Fonseca disputes that the Union agreed that employees could be
sent documents regarding pretax information.
from Northeast to the EMP, and requested a meeting with
Fonseca. Fonseca replied that the Union did not want to go
into the EMP, but that he would attend a meeting.
About five meetings were held between Respondent and
the Union during March concerning this issue.
On about March 3, a meeting was held at which officials
of Respondent and the Union were present. At the meeting,
Respondent’s representatives announced that Northeast would
be terminated, and that the employees would be placed in the
EMP. Proposed changes to the employees’ medical coverage,
and the change in the plan were presented and explained.
Kowalczyk conceded that the Union ‘‘voiced objection to
anything other than Blue Cross/Blue Shield.’’
Fonseca testified that he told Respondent’s representatives
at the meeting that he was not interested in the EMP, and
did not want the employees moved into that plan. Martin
Castimore, the Union’s secretary-treasurer, told them that he
did not believe that there should be any change.2 At the end
of the meeting, Fonseca announced that he did not ‘‘like’’
the EMP.
Kowalczyk stated that he told the union agents that they
had to ‘‘react fairly quickly’’ because of the need to inform
the employees of the change, and to have them complete
125-K account pretax forms.3 Fonseca conceded that he was
told that the EMP would go into effect on May 1.
Union official, Tomasso, testified that the Union had de-
termined that it would not bargain about any item that was
already in the collective-bargaining agreement—it did not
want to reopen the contract in midterm. However, it was
forced to do so because the Union was told that Northeast
would be defunct in 2 months.
On March 9, Fonseca sent a letter to Kowalczyk, noting
that Northeast was ‘‘soon becoming non-existent,’’ and re-
questing information about the EMP, including its financial
history, specifically, monthly rate structure, past utilization of
the plan, and the plan’s payments and contributions. The let-
ter further stated that ‘‘I do not know at this time whether
the Membership would want to enroll in the [EMP] or not
and if not what plan they would want to enroll in. My opin-
ion of the [EMP] will be formed by a close examination of
its financial history and all of its provisions.’’
Certain information was supplied but, according to Fon-
seca, none of the information he requested was provided. He
did not followup by again requesting such information.
Another meeting took place on about March 13, at which
Sharon Clark, the administrator of benefits for Northeast, ad-
dressed those assembled. She explained the provisions of the
EMP. Fonseca told her at the end of the meeting that he did
not like the plan.
Kowalczyk testified that during the meetings held with the
Union beginning on about March 3, the Union did not dis-
agree with the proposed changes in plans, and did not state
that it wished to bargain about the changes.
At a union meeting on March 18, the membership decided
that it did not want to be covered by the EMP, and instead
wished to remain in Northeast. If that was not possible, they
alternatively decided to return to Blue Cross/Blue Shield.
Fonseca informed Respondent Manager Launchi of the mem-
bership’s decision.
On March 21, Fonseca sent a letter to Respondent inform-
ing it that the Union did not want any of its members trans-
ferred from Northeast to the EMP. Rather, they wanted Blue
Cross/Blue Shield.
Kowalczyk testified that that letter was the first indication
to him that the Union was ‘‘balking’’ at the plan to transfer
medical coverage from Northeast to the EMP. He stated that
until that time, the Union had ‘‘essentially acquiesced’’ in
the change from Northeast to the EMP. He conceded, how-
ever, that the Union never told him that it wanted to move
into the EMP, or that it no longer wanted to be enrolled in
Northeast.
On March 25, Kowalczyk sent a response to Fonseca in
which he stated:
In response to your letter of March 21, the Compa-
nies will agree to formal bargaining regarding the tran-
sition of medical coverage to an improved [EMP] for
over 400 employees and family members affiliated with
Local 877. These formal bargaining sessions will be a
continuation of several meetings held during March
where we met with you and certain members of your
Executive Board outlining our desire to bring about an
orderly transition for these participants. As you know,
with the Union’s concurrence, authorization was given
to our Headquarters organization to send employees a
package detailing the new medical plan coverage as
well as Pre-Tax information, incorporating the new rate
structure. Employees are to complete and return the
Pre-Tax form by April 15. Also, meetings . . . are
planned to better respond to employees’ questions prior
to the May 1 effective date.
As I am sure you will agree from the previously
mentioned schedule, time is of the essence and, we be-
lieve formal bargaining should begin immediately.
Therefore, I have scheduled the first session to begin on
March 26 at 1 p.m.4
Fonseca testified that he immediately called Kowalczyk
and told him to cancel the March 26 meeting since he would
not attend, adding that the Union would not rebargain its
contract, and did not want the employees to go into the
EMP. Fonseca refused to bargain over the transition from
Northeast to EMP.
Nevertheless, on March 26, Launchi asked Fonseca to at-
tend a bargaining session regarding the transition of the em-
ployees from Northeast to the EMP. Fonseca told him to
cancel the meeting.
On March 28, Fonseca sent a letter to Kowalczyk advising
that the Union did not want the employees to be covered by
the EMP, and stating that ‘‘we have the right to choose our
own medical plan.’’ Further, the letter demanded that Re-
spondent immediately bargain with the Union over the estab-
lishment of a union trust fund to provide medical and hos-
pital benefits to its members. Fonseca received no response
to that letter.
955EXXON CO., U.S.A.
Fonseca testified, in explanation of that letter, that the
Union wanted to stay in Northeast, or if unable to do so, re-
turn to Blue Cross/Blue Shield, or establish its own trust
fund medical plan.
On about April 1, Launchi requested that Fonseca bargain
regarding the transition of the Union’s members into the
EMP, and asked to meet the following day. Fonseca refused
to bargain about a provision that was already in the collec-
tive-bargaining agreement, and refused to meet.
On April 3, Fonseca sent a letter to Kowalczyk, clarifying
his March 28 letter. In this new letter, Fonseca stated that
he wished to reach an agreement concerning the details of
transferring money now being paid into Northeast, into a
union trust fund established for the purpose of providing
medical and hospital benefits. The letter added that the
‘‘right to establish a Trust Fund or for Local 877 to have its
own medical plan are inherent rights and not subject to bar-
gaining.’’
Thereafter, Launchi told Fonseca that the employees were
being transferred into the EMP. Fonseca replied that they did
not want to go into that plan.
On April 7, Kowalczyk sent a letter to Fonseca, advising
him that ‘‘with over 7,000 employees and families
transitioning into the [EMP], Northeast no longer exists.’’
The letter continued:
Despite your request to the contrary . . . this letter is
to notify you of the Company(s) intention to transfer
those IBT members affected by this change into the
[EMP]. This decision is being carried out to ensure that
adequate medical coverage is continued at reasonable
rates for over 400 employees affiliated with Local 877.
The letter further stated that regarding the Union’s re-
quests in its letters of March 21 and 28 for coverage pursu-
ant to Blue Cross/Blue Shield and a union trust fund, ‘‘both
letters lack sufficient details for which to evaluate the merits
of your proposals. Because of this lack of specificity, we in-
terpreted these letters as a request to bargain.’’
The letter noted that the Union refused to meet with it to
bargain on two occasions, including on April 3 when Fon-
seca allegedly agreed to meet only to bargain about the es-
tablishment of a union trust fund. The letter concluded by
saying that an impasse has been reached due to the Union’s
refusal to continue bargaining, and that ‘‘because time is of
the essence and an impasse has been reached, these people
will be transferred to the [EMP] concurrent with the May 1
effective date. This remains the only remedy currently avail-
able that will ensure adequate medical coverage without risk-
ing significant financial harm to employees and their fami-
lies.’’
Kowalczyk conceded that the repeated referrals to time
pressures were caused by the 2-month period, from March 2
to May 1, within which a health insurance plan had to be
in place for the employees. The time constraints would not
have been a factor had the employees been retained in North-
east, but that option was apparently not presented to the
Union.
On April 13, Fonseca wrote to Kowalczyk, stating that he
denied and ‘‘claim false’’ all the statements in the April 7
letter concerning the medical plans.
Northeast was terminated and ceased to exist on April 30,
and on May 1 all employees were transferred into the EMP.
Analysis and Discussion
The complaint alleges that Respondent failed to continue
in effect the terms and conditions of its collective-bargaining
agreement with the Union, by unilaterally and without the
Union’s consent, transferring its unit employees from North-
east to the EMP.
It is well established that an employer who is a party
to an existing collective-bargaining agreement violates
Section 8(a)(5) and (1) of the Act when it modifies the
terms and conditions of employment established by that
agreement without obtaining the consent of the Union.
[J & J Mfg. Corp., 312 NLRB No. 40 (Sept. 20, 1993)
(not reported in Board volume).]
Respondent first questions whether the health insurance
plan is a term and condition of employment. It argues that
the only mention of the health plan is in the side letter to
the contract. I find that the health plan is a term and condi-
tion of employment and such coverage is provided for in the
collective-bargaining agreement. The side letter providing for
increases in subsidies to the plan bears the same date as the
effective date of the contract, and was delivered by Respond-
ent to the Union at the time of the execution of the agree-
ment. It was also incorporated in the agreement.
Moreover, health insurance and health benefit plans are
mandatory subjects of bargaining. NLRB v. Katz, 369 U.S.
736, 746 (1962); Coastal Derby Refining Co., 312 NLRB
495 (1993); Trojan Mining & Processing, 309 NLRB 770,
771 (1992).
The question therefore becomes whether Respondent vio-
lated its obligation to bargain with the Union.
It appears clear that a decision had been made by Re-
spondent’s corporate headquarters in February 1992, that
Northeast would be terminated, and that all the unit employ-
ees, and indeed, all Respondent’s employees, would be trans-
ferred to the EMP.
Respondent’s initial approach was proper. Thus, on March
1, the Union was informed that Respondent wished to move
its employees into the EMP, and requested a meeting with
the Union. However, at the first meeting, it was announced
that Northeast would be terminated, the employees placed in
the EMP, and the plans’ changes were presented.
Respondent’s main argument is that the Union agreed to
the change in plan from Northeast to the EMP, or if it did
not expressly agree to such change, that by its actions it
agreed, and in any event did not disagree with the change.
I find that the question to be resolved is whether the
Union gave its consent to the change. J & J, supra; Rapid
Fur Dressing, 278 NLRB 905, 906 (1986), and not, as ar-
gued by Respondent, whether a meaningful opportunity to
bargain was given the Union, or whether the parties bar-
gained to impasse over this issue. Nestle Co., 251 NLRB
1023 fn. 3 (1980).
Respondent maintains that the Union agreed with the
change, or at least did not disagree with the proposed change
until March 21 when it sent its letter indicating its desire to
remain within Northeast. Respondent argues that upon receipt
of that letter it first became aware of any dissent to the
planned move into the EMP.
However, it is important to note that Kowalczyk conceded
that at the first meeting, on March 3, the Union objected to
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Art. 27-4 of the contract provides that ‘‘the right of either party
to require strict performance hereunder by the other party shall not
be affected by any waiver, forbearance or course of dealing.’’
any plan other than Blue Cross/Blue Shield. Thus, Respond-
ent became aware of the Union’s objections to a change of
plan from Northeast at the first meeting. I am aware that at
that meeting, too, a union official said that the change in
plan represented only a change in name, however the Union
did voice its objection to a change from Northeast to the
EMP at that meeting, and thereafter.
I credit the Union witnesses’ testimony that they informed
Respondent at that meeting that they did not like and were
not interested in the EMP and did not want the employees
moved into that plan. I make this finding based upon
Kowalczyk’s concession that they objected to any plan other
than Blue Cross/Blue Shield, and by later events.
Specifically, Fonseca’s letter of March 9 stated that he did
not know whether the Union’s membership wanted to enroll
in the EMP ‘‘or not’’ or what plan they wished to enroll in,
and that his opinion of the EMP would be determined upon
an analysis of its financial history and terms. This clearly
shows that, as of March 9, the Union had not agreed to the
change in plan, but rather was uncertain of what position it
and its members would take.
The only meeting which occurred between March 9 and
the Union’s March 21 unequivocal refusal to have its mem-
bers transferred to the EMP, was the informational meeting
of March 13, conducted by the benefits administrator, at
which time Fonseca told her that he did not like the plan.
Accordingly, I find that from the March 3 meeting, Re-
spondent was aware that the Union did not agree with, and
had not consented to the change in plan from Northeast to
EMP.
Upon receipt of the March 21 letter, Respondent, in its
March 25 letter, offered to bargain regarding the ‘‘transition
of medical coverage to an improved [EMP].’’ Thus, Re-
spondent was not offering to bargain over the retention of
Northeast, or a change to Blue Cross/Blue Shield, but rather
only as to the change of medical coverage to EMP, and as-
serted in that letter, that the bargaining to be held would be
a continuation of the bargaining in which its ‘‘desire to bring
about an orderly transition for these participants’’ was made
known. Thereafter, on March 26, and on about April 1,
Launchi repeated Respondent’s offer to bargain about the
transition to the EMP.
Thereafter, the Union refused to bargain over the transition
of the employees to the EMP, and suggested alternatives, in-
cluding having the employees covered by Blue Cross/Blue
Shield or a union-established trust fund medical plan.
On April 7, Respondent notified the Union that Northeast
no longer existed, and that due to an impasse caused by the
Union’s refusal to bargain, the employees would be trans-
ferred to the EMP effective May 1.
Although I find that Respondent’s representatives were au-
thorized to permit the unit employees to remain in Northeast
if that was the result of the bargaining, nevertheless, it does
not appear that the Union was informed of this choice. Thus,
the Union did not set forth that position in any of its letters.
Rather, its March 9 letter noted that Northeast would ‘‘soon
[become] non-existent.’’ Clearly, if the Union had been of-
fered an opportunity to have the employees retain Northeast
as its health plan, it would have chosen to do so, rather than
suggest a return to Blue Cross/Blue Shield, or its own trust
fund.
Rather, it appears that Respondent preferred, from an eco-
nomic and administrative standpoint, to have all its employ-
ees placed in one plan, the EMP. That was the decision made
at headquarters, and an exception, to permit the retention of
Northeast, was made here only because of the outstanding
collective-bargaining agreement. In any event, the employees
would remain in Northeast only until the expiration of the
contract.
The fact that Respondent was pressed for time cannot ex-
cuse a failure to bargain with the Union. Bargaining over the
retention of Northeast would have been more time consum-
ing, but Respondent could have begun the process earlier.
Valley Counseling Services, 305 NLRB 959, 961 (1991). I
accordingly find that no impasse existed as no meaningful
bargaining, or opportunity to bargain, occurred.
Under these circumstances, even assuming that this stand-
ard should be applied, I cannot find that an opportunity for
meaningful bargaining occurred. Respondent entered the
‘‘negotiations’’ with a mandate from headquarters to transfer
all its employees to the EMP. It did not suggest to the Union
the possibility of retaining Northeast although it was author-
ized to do so. From the first meeting the Union objected to
a change from Northeast, but nevertheless, Respondent went
forward with its plan to ‘‘transition’’ the employees to the
EMP. Nor does the evidence establish that the Union en-
gaged in delaying tactics or led Respondent to believe that
it was free to act unilaterally. I therefore cannot find that Re-
spondent has established a clear and unmistakable waiver by
the Union of a right to bargain about changes in terms and
conditions of employment. Mount Hope Trucking Co., 313
NLRB 262 (1993).5
Inasmuch as the Union’s consent to a modification of an
existing term of the contract was not obtained, I find that Re-
spondent was not entitled to unilaterally implement the EMP,
and violated Section 8(a)(5) and (1) by doing so.
CONCLUSIONS OF LAW
1. The Respondent, Exxon Company, U.S.A., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local 877, International Brotherhood of Teamsters,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All operating, mechanical and maintenance employ-
ees in the Bayway Refinery and Bayway Chemical
Plant of the Companies, excluding office and plant cler-
ical employees, watchpersons, guards, professional em-
ployees, technical employees, metal inspectors, gas test-
ers, measurement persons, and supervisors, as defined
in the National Labor Relations Act.
4. By failing to continue in effect all the terms and condi-
tions of its 1990–1993 collective-bargaining agreement with
the Union, by transferring the members of the unit from the
957EXXON CO., U.S.A.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 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
National 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.’’
Exxon Northeast Medical Plan into the Exxon Medical Plan
without obtaining the Union’s consent thereto, Respondent
committed unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
5. The unfair labor practices found above affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist and take certain affirmative action designed to effec-
tuate the policies of the Act.
Having found that the Respondent unlawfully implemented
the Exxon Medical Plan, I shall recommend that Respondent
be ordered to restore the status quo that existed just prior to
its unlawful change from the Exxon Northeast Medical Plan,
and make whole its employees for any loss they may have
suffered by virtue of Respondent’s unlawful change in its
health insurance plans, with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). See Isis
Plumbing Co., 138 NLRB 716 (1962).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Exxon Company, U.S.A., Linden, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Local 877, Inter-
national Brotherhood of Teamsters, AFL–CIO, by failing to
continue in effect all the terms and conditions of its 1990–
1993 collective-bargaining agreement with the Union, by
transferring the members of the unit from the Exxon North-
east Medical Plan into the Exxon Medical Plan without ob-
taining the Union’s consent thereto.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the unilateral change in health insurance plan
from the Exxon Northeast Medical Plan to the Exxon Medi-
cal Plan.
(b) Restore the Exxon Northeast Medical Plan provided to
unit employees before it was unilaterally terminated, and
make the employees whole for any losses which they may
have suffered, and for any direct expenses which they may
have been required to bear as a result of the unilateral
change.
(c) Post at its Linden, New Jersey facility copies of the at-
tached notice marked ‘‘Appendix.’’7 Copies of the notice on
forms provided by the Regional Director for Region 22, after
being signed by an authorized representative of the Respond-
ent, shall be posted by the Respondent immediately upon re-
ceipt, and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.