HAWAIIAN TELCOM, INC.

National Labor Relations Board - Board Decisions

Feb 23, 2017

365 NLRB No. 36 (N.L.R.B. 2017)

365 NLRB No. 36
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Hawaiian Telcom, Inc. and International Brother-
hood of Electrical Workers, Local Union 1357.
Cases 20–CA–069432 and 20–CA–069433
February 23, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
On September 5, 2012, Administrative Law Judge
Mary Miller Cracraft issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs1 and has decided to affirm the judge’s rulings,
findings,2 and conclusions for the reasons below and to
adopt the recommended Order as modified and set forth
in full below.
I. INTRODUCTION
The principal question presented here is whether the
Respondent lawfully ceased providing employees ac-
crued health-related benefits based on their commence-
ment of a strike against the Respondent. The judge
found that the Respondent’s cancellation of those bene-
fits was unlawful because, under the applicable collec-
tive-bargaining agreement, the employees’ eligibility for
the benefits previously had accrued and was not depend-
ent upon their continued performance of work for the
Respondent. We agree with the judge for the following
reasons.
II. FACTS
The Respondent provided telecommunications services
to commercial and residential customers in Honolulu,
Hawaii. At all relevant times, the Union was the exclu-
sive collective-bargaining representative of a unit com-
prising various classifications of the Respondent’s em-

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 In the absence of exceptions, we adopt the judge’s findings that
the Respondent violated Sec. 8(a)(1) by: (1) unlawfully restricting unit
members’ communication with the Union by referring, in a Special
Alert dated November 17, 2011, to potential discipline under its em-
ployment policies; and (2) unlawfully applying its antiharassment rule
against the Union’s Wall of Shame campaign in a manner that restrict-
ed employee’s Sec. 7 rights. Also in the absence of exceptions, we
adopt the judge’s dismissal of the allegation that the Respondent violat-
ed Sec. 8(a)(1) by maintaining an antiharassment rule.
ployees. The parties’ most recent collective-bargaining
agreement was effective from September 13, 2008
through September 12, 2011 (2008 Agreement).3 During
negotiations for a successor agreement, the parties mutu-
ally agreed to several extensions of the 2008 Agreement,
the last of which expired on October 24.
A. Relevant provisions of the 2008 Agreement
The 2008 Agreement contained several provisions that
bear on the outcome of this case. Article 5, which was a
general definitional section, defined “Employee” as “any
person who performs work for the Company for a regu-
larly stated compensation and whose job duties are with-
in the scope of the collective bargaining unit.”
Article 28 of the 2008 Agreement set forth the parties’
agreement on medical benefits. In this Article, the Re-
spondent agreed to provide medical insurance coverage
to all “employees covered by this Agreement.” More
specifically, the Respondent agreed to provide such cov-
erage to all regular and probationary employees, the lat-
ter including any newly hired employee. Article 28 did
not establish any time-in-service requirement for cover-
age. Further, Article 28 spoke directly to the Respond-
ent’s obligation to continue employees’ medical cover-
age. Thus, Article 28.1 provided that “the benefits pro-
vided by this plan will not be discontinued or amended
without the agreement of the Company and Union.” Ar-
ticle 28.12 provided that coverage “will end thirty (30)
days after termination of employment,” after which indi-
viduals could elect continued COBRA coverage. No
other ground for termination of coverage was stated.
Similarly, Article 39 of the 2008 Agreement contained
the parties’ agreement on dental benefits. There, the
Respondent agreed to provide dental insurance for bar-
gaining unit employees on basically the same terms as its
commitment to provide medical insurance. Thus, Article
39 did not impose any time-in-service requirement and,
like Article 28, Article 39 set forth only two circum-
stances in which dental coverage would be changed or
discontinued: by agreement of the parties or 30 days
after an employee’s termination of employment.
Finally, the 2008 Agreement contained a general “Du-
ration of Agreement” clause, stating the Agreement’s
effective dates, September 13, 2008 through September
12, 2011, and specifying that the Agreement would re-
new annually unless timely notice of cancellation was
given by either party.

3 All dates are in 2011, unless stated otherwise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
B. The Respondent’s Cessation
of Benefits
As the parties were attempting to negotiate a successor
agreement, the Respondent, anticipating a work stop-
page, contacted its dental insurance agents in July and
August in order to add a rider to the employees’ dental
plan stating that, effective September 1, an employee’s
dental benefits would terminate if he or she ceased to
actively work due to a strike. The Respondent initiated
this change without notifying the Union, much less ob-
taining the Union’s agreement as required by Article 39
of the 2008 Agreement. In the Respondent’s view, its
action was permitted by language in Article 39.1, stating
that the “selection of the Plan Administrator, the admin-
istration of the Plan and all the terms and conditions re-
lating thereto, and the resolution of any disputes involv-
ing the terms, conditions, interpretation, administration,
or benefits payable shall be determined by and at the sole
discretion of the Company.” The Respondent did not
make any similar unilateral modifications to the employ-
ees’ medical plan.
As described, the parties’ last extension of the 2008
Agreement expired on October 24. With no successor
agreement having been reached, the Union informally
told the Respondent that it was considering a work stop-
page. Several days later, the Respondent advised its
medical and dental insurance providers that the Union
was “planning for a walkout at any time which means we
will be stopping benefits for our active Union employees
(approx. 700 employees) immediately once a strike is
called (benefits will continue for Union retirees).”
The Union formally notified the Respondent by letter
dated November 10 that a strike would begin at 10:30
a.m. that day, and that strikers would return to work on
November 11 at 8 p.m. The strike began as scheduled
and, at 10:31 a.m. on November 10, the Respondent
emailed its insurance providers informing them of the
strike and giving official notice that it “was beginning
the process for cancelling all benefits for striking union
employees effective immediately.” The Respondent in-
structed the insurance providers to stop benefits for all
employees “that have a Union status code,” and benefits
were cancelled accordingly.
Also on November 10, the Respondent prepared and
mailed COBRA packets to the strikers with a notice of
cancellation of benefits, an explanation of optional con-
tinued COBRA coverage, and an application form. It did
not send COBRA packets to unit employees who re-
mained at work, to employees on approved military
leave, or to those employees on approved leave under the
Family and Medical Leave Act.
As planned, striking employees returned to work on
Friday, November 11, at 8 p.m. The Respondent then
instructed its providers to re-enroll the strikers in the
insurance plans. By Tuesday, November 15, employees
could submit claims, including retroactive claims for
expenses incurred during the strike. There is no evidence
that any employee experienced out-of-pocket costs or
other financial losses as a result of the Respondent’s ac-
tions.
Analysis
A. The Respondent unlawfully cancelled striking
employees’ benefits
The judge found that the Respondent violated Section
8(a)(1), (3), and (5) of the Act by cancelling striking em-
ployees’ medical and dental benefits because of their
participation in the strike. As explained below, we agree
with those findings based on the particular facts and cir-
cumstances of this case.
Although it is well established that an employer is not
required to finance a strike against itself, it is equally
well established that it may not withhold accrued benefits
from strikers based on their participation in the strike. In
Texaco, Inc., 285 NLRB 241 (1987), the Board deter-
mined that the appropriate analytical framework for de-
ciding whether an employer’s withholding of benefits in
a particular case is unlawful is the framework established
in NLRB v. Great Dane Trailers, 388 U.S. 26 (1967):
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 benefit was accrued and (2) the benefit
was withheld on the apparent basis of a strike. We
emphasize the need for proof that the . . . benefit is
accrued, that is, “due and payable on the date on
which the employer denied [it].” Absent such proof,
there is no basis for finding an adverse effect on em-
ployee rights because an employer is not required to
finance a strike against itself by paying wages or
similar expenses dependent on the continuing per-
formance of services for the employer. . . . Proof of
accrual on a case-by-case basis will most often turn
on interpretation of the relevant collective-
bargaining agreement, benefit plan, or past practice.
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 forward with proof of a legitimate
and substantial business justification for its cessation
of benefits. The employer may meet this burden by
proving that a collective-bargaining representative
HAWAIIAN TELCOM, INC. 3
has clearly and unmistakably waived its employees’
statutory right to be free of such discrimination or
coercion. Waiver will not be inferred, but must be
explicit. If the employer does not seek to prove
waiver, it may still contest the . . . employee's con-
tinued entitlement to benefits by demonstrating reli-
ance on a nondiscriminatory contract interpretation
that is “reasonable and . . . arguably correct,” and
thus sufficient to constitute a legitimate and substan-
tial business justification for its conduct. Moreover,
as under Great Dane, even if the employer proves
business justification, the Board may nevertheless
find that the employer has committed an unfair labor
practice if the conduct is demonstrated to be “inher-
ently destructive” of important employee rights or
motivated by antiunion intent.
Texaco, above, 245–246 (footnotes and citations omitted);
see also NFL Mgmt. Council, 309 NLRB 78, 85 (1992), and
Gulf & Western Mfg. Co., 286 NLRB 1122 (1987).4
1. The General Counsel carried his initial burden
As set forth above, the General Counsel was required
to show, initially, both that the employees’ medical and
dental benefits were “accrued” and that the Respondent
withheld those benefits based on the employees’ partici-
pation in the strike. In agreement with the judge, we find
that the General Counsel established both points.
Initially, we observe that there can be little dispute that
the Respondent withheld the relevant medical and dental
benefits from striking employees based on their partici-
pation in the strike. As described, even before the strike
commenced, the Respondent preemptively altered the
dental plan to discontinue coverage for striking employ-
ees, and alerted its insurance carriers that it believed a
work stoppage would occur and that it intended to cancel
coverage for striking employees. Then, minutes after the
strike began, the Respondent contacted those carriers to
effectuate the cancellation of that coverage. It is thus
clear, and we find, that the General Counsel established
that the Respondent acted because of the strike.5

4 We reject the Respondent’s contention that the Great
Dane/Texaco standard does not apply as well its assertion that the cases
in which the Board has found benefits to be accrued and owing to strik-
ing employees are inapposite because they address coverage under sick,
accident, workers’ compensation, or other leave. The Board has not
established a separate test for accrual of medical insurance premiums or
otherwise carved them out of the standard Texaco analysis.
5 We reject the Respondent’s argument that no benefits were actual-
ly withheld because no employee was denied coverage given the retro-
active restoration of benefits. The Respondent relies on Texaco, above,
in which the Board found that it had insufficient evidence to decide
whether the health insurance coverage was an accrued benefit, but even
if it was, the employer did not violate the Act by discontinuing cover-
age during a strike because there was no actual deprivation of the bene-
fit. As the judge noted, however, Texaco is distinguishable because
The real question here is whether the General Counsel
established that the relevant medical and dental benefits
were “accrued.” As described, a benefit is “accrued” if it
is “due and payable on the date on which the employer
denied [it],” Texaco, above, 285 NLRB at 245. In other
words, an accrued benefit is one that is already owing; an
employee’s entitlement to it does not depend on his re-
turn to work or future employment, but rather stems from
his past work for or established employment relationship
with the employer. See Murphy Oil USA, Inc., 286
NLRB 1039 (1987).
Here, Articles 28 and 39 of the 2008 Agreement clear-
ly and expressly establish that the relevant medical and
dental benefits were accrued. Each provision contained a
broad eligibility clause providing medical and dental
insurance benefits to all employees, and neither provision
imposed a time-in-service requirement. In short, em-
ployees were entitled to those benefits simply by virtue
of their employment with the Respondent. Each provi-
sion, moreover, specified only two circumstances in
which the Respondent could discontinue providing em-
ployees those benefits: by agreement between the Re-
spondent and the Union or upon 30 days after an em-
ployee terminated his employment. Neither condition
occurred in this case. The durational provision and expi-
ration of the collective-bargaining agreement is nonde-
terminative, for Board law has long held that “the mere
expiration of a collective-bargaining agreement does not
permit the Respondent to withhold an accrued benefit
from its employees or to unilaterally change their terms
and conditions of employment.” Gulf & Western, supra,
286 NLRB at 1124; Litton Financial Printing Division v.
NLRB, 501 U.S. 190, 206 (1991). Further, the Respond-
ent’s continuation of medical and dental benefits for em-
ployees who were not actively working for non-strike
related reasons, including those on military or FMLA
leave, indicates that the Respondent well understood that
such benefits were contractually “due and payable” to
employees based only on their ongoing employment rela-
tionship with the Respondent, not the active performance
of work.6 For all of these reasons, we find in the particu-

coverage never actually ceased in that case. Here, the Respondent
actually cancelled coverage and sent employees COBRA notices to that
effect. Thus, employees actually lacked coverage for the 2-day strike
period plus an additional 4 days after the end of the strike while the
Respondent completed the process of restoring the benefits, and may
have foregone medical care during this period. Even if employees
ultimately incurred no out-of-pocket expenses, that bears only on the
remedy and is an issue for compliance. See GSM, Inc., 284 NLRB 174,
174 (1987).
6 Our colleague’s assertion that continuation of coverage for em-
ployees on those other types of leave was statutorily required does not
undercut our rationale on the basic accrual question under Arts. 28 and
39 of the parties’ agreement. Thus, that the parties executed additional
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
lar circumstances of this case that the General Counsel
carried his initial burden to show that the medical and
dental benefits at issue were “accrued” benefits on No-
vember 10, the day the strike began. See, e.g., NFL
Mgmt. Council, above at 85–86 (finding the respondent
violated the Act when it failed to pay eligible players’
salaries during a strike when the contract provided that a
player who (1) sustained a football-related injury; (2)
immediately reported the injury; and (3) was physically
unable to perform would receive medical care and a con-
tinuation of his salary during that time because once the
conditions for eligibility were met, the medical and fi-
nancial benefits accrued under the contract absolutely
until defeasance without further action from the employ-
ee).
The Respondent and our dissenting colleague argue, at
length, that the employees’ medical and dental benefits
were not “accrued” for several reasons, none of which
has merit.7 Our dissenting colleague, in particular, ar-
gues that finding that those benefits had accrued to the
employees is inconsistent with ERISA, insofar as ERISA
deems medical coverage a “welfare” benefit and permits
employers to terminate such benefits at any time for any
reason. In support, he points to M&G Polymers USA,
LLC v. Tackett, 135 S.Ct. 926 (2015), in which the Su-
preme Court, drawing on those ERISA principles, held
that the Sixth Circuit erred in interpreting certain lan-
guage in an expired collective-bargaining agreement to
provide lifetime retiree health insurance to then-retired
employees. But Tackett plainly held only that the Sixth
Circuit erred by not applying ordinary principles of con-
tract interpretation in evaluating the contractual language
at issue there. Tackett did not hold that ERISA bars
“welfare” benefits from ever being vested or accrued
under a collective-bargaining agreement, only that in
interpreting such an agreement one must look to ordinary
contract principles to determine the parties’ intent when
those principles are not inconsistent with federal labor
policy. Id. at 933. That is precisely what we have done
in interpreting the plain language of Articles 28 and 39 of

agreements to state clearly that coverage would continue in certain
situations is not inconsistent with our finding, based on the parties’
agreement that continued benefits previously had accrued for all em-
ployees in any event.
7 Our colleague appears to conflate parts one (the General Counsel’s
initial burden) and two (the employer’s “legitimate and substantial
business justification”) of the Great Dane analysis by arguing that the
benefits were not accrued because the Respondent reasonably interpret-
ed the 2008 Agreement differently from the General Counsel. We
address this argument below in considering the Respondent’s asserted
interpretation.
the 2008 Agreement in light of the principles of estab-
lished Board law.8
As to that interpretation, the Respondent and our col-
league contend that it is inconsistent with language in
Articles 28 and 39 stating that benefits were provided to
employees “covered by this Agreement,” the “Duration
of Agreement” language in the 2008 Agreement, and the
notion that, absent clear language to the contrary, medi-
cal benefits expire with the agreement that created them.
In fact, there is no inconsistency at all. As noted, well-
established precedent makes clear that the mere expira-
tion of a collective-bargaining agreement does not relieve
an employer of its obligation under Section 8(a)(5) to
continue providing established benefits to employees,
notwithstanding that, as a contractual matter, they are no
longer “covered” by the agreement. See Litton Financial
Printing Division v. NLRB, supra, 501 U.S. at 206. See
also Gulf & Western, supra, 286 NLRB at 1124. Moreo-
ver, the Board has held that where, as here, a collective-
bargaining agreement affirmatively provides for a bene-
fit, general durational language is insufficient to establish
that the parties had agreed that the employer could uni-
laterally terminate that benefit upon the agreement's ex-
piration. See, e.g., AlliedSignal Aerospace, 330 NLRB
1216, 1222 (2000), review denied sub nom. Honeywell
International v. NLRB, 253 F.3d 125 (D.C. Cir. 2001)
(finding that the employer unlawfully discontinued pay-
ing severance benefits for laid-off employees that were
provided for in a collectively bargained agreement that
had expired, notwithstanding a duration clause providing
that “This [agreement] shall remain in effect until [the
expiration date], but not thereafter unless renewed or
extended in writing by the parties.”) Further, it bears
emphasis that those principles are not altered by the fact
that the employees were on strike against the Respond-
ent, for they indisputably remained bargaining unit em-
ployees employed by the Respondent.
Nor are we persuaded by the Respondent’s and our
colleague’s suggestion that our interpretation of the 2008
Agreement is undercut by the general definition of “em-
ployee” in Article 5.1.1 of the Agreement as “any person
who performs work for the Company for a regular stated
compensation and whose job duties are within the scope

8 Our colleague charges us with accepting that the Tackett principles
apply to evaluating accrual but then disregarding those principles. To
the contrary, our application of traditional contract interpretation doc-
trine is consistent with the applicable principles of Tackett. As noted
above, a durational clause does not preclude the continuing of certain
provisions post contract expiration. Nor does finding accrual constitute
imposing a “lifetime promise.” The intent to vest is clearly demon-
strated in the plain language of the agreement, including the limited and
defined ways in which benefits may cease—none of which came to
pass here.
HAWAIIAN TELCOM, INC. 5
of the collective bargaining unit.” They read this lan-
guage to mean that a person must be actively performing
work at all moments in time in order to be an “employ-
ee” and thus to receive benefits. But, of course, no per-
son who “performs work for the Company” does so con-
tinually, and Article 5.1.1 clearly intends to cover all
persons who have a current employment relationship
with the Respondent, whether or not they are actively
working at any particular time. It does not refer, for ex-
ample, to “any person who is performing work.” More-
over, in evaluating their proposed reading of Article
5.1.1., we have observed the well settled principle of
contract interpretation that specific terms bearing on a
particular subject take precedence over general terms.
E.g. Electrical Workers Local 48 (Oregon-Columbia
Chapter of NECA), 342 NLRB 101, 107 (2004); Carpen-
ters Local 537 (E. I. DuPont), 303 NLRB 419, 419 fn. 2
(1991); Newspaper & Mail Deliverers’ Union (Macro-
media Publishing), 281 NLRB 588, 591 fn. 15 (1986),
affd. mem. 804 F.2d 1248 (3d Cir. 1986). For that rea-
son as well, we reject their proposal to rely on the gen-
eral definitional language in Article 5.1.1. to limit Arti-
cles 28 and 39, which address specifically the benefits at
issue here.9
For all of those reasons, we find that the General
Counsel demonstrated both that the striking employees’
medical and dental benefits were “accrued” and that the
Respondent withheld those benefits based on the em-
ployees’ participation in the strike.
2. The Respondent did not establish a legitimate and sub-
stantial business justification for discontinuing the strik-
ing employees’ benefits
Because the General Counsel has carried his initial
burden, the burden shifts to the Respondent to prove that
it had a “legitimate and substantial business justification”
for withholding medical and dental benefits from the
striking employees. The Respondent must show either
that the Union waived the striking employees’ right be
free from such discrimination or that the Respondent
relied on a nondiscriminatory contract interpretation that
was “reasonable” and “arguably correct.” Noel Corp.,

9 We also observe that other provisions of the 2008 Agreement tend
to cast further doubt on the Respondent’s and our colleague’s expansive
reading of Art. 5.1.1. The contractual “Sickness Disability Plan,” for
example, provided benefits to “employees” who experienced a “total
inability . . . to perform the duties of employment.” Similarly, the
2008 Agreement provided long-term disability coverage for “regular
full-time employees” who were “continuously and totally disabled,
under the care of a physician, and absent from work for twenty-six (26)
weeks.” Employees in either of those categories plainly received bene-
fits notwithstanding Art. 5.1.1.
315 NLRB 905, 911 (1994). We find that the Respond-
ent has failed to carry its burden.
The Respondent does not contend that the Union
waived its employees’ statutory rights, and there is no
evidence of such a waiver in any event. Rather, the Re-
spondent, joined by our dissenting colleague, essentially
contends that its termination of the striking employees’
medical and dental benefits was based on a reasonable
and nondiscriminatory reading of the 2008 Agreement.
But, for reasons largely explained above, we find that the
Respondent’s reading of the 2008 Agreement was not
reasonable. The Agreement provided for two specific
scenarios in which the provided benefits could be discon-
tinued—through agreement with the union, or once 30
days had passed from the cessation of an individual’s
employment—neither of which were even arguably im-
plicated by the brief work stoppage that took place.
The Respondent relies on additional language in Arti-
cles 28 and 39 to justify its action. Article 28 (medical)
stated that “The selection of the carrier and the admin-
istration of the medical plan will rest with the Company
provided the level and quality of the benefits remain the
same.” Similarly, Article 39 (dental) stated that “The
selection of the carrier and the administration of the Den-
tal Insurance Plan will rest with the Company provided
the level and quality of the benefit remains the same.”
The Respondent suggests that this supported its decision
to cancel striking employees’ coverage. The Respond-
ent’s discretion to select a carrier and administer a plan,
however, does not even arguably encompass the whole-
sale cancellation of coverage for employees, particularly
when that cancellation is on the basis of employees’ pro-
tected activity.
Finally, we find unpersuasive two cases heavily relied
upon by the Respondent and our colleague: General
Electric Co., 80 NLRB 510 (1948), and Simplex Wire &
Cable Co., 245 NLRB 543 (1979). In General Electric,
which was decided before Great Dane and Texaco, the
question was whether the employer unlawfully denied
striking employees continuous-service credit, which was
the basis for determining certain benefits including vaca-
tions and pensions, for the period they were on strike.
The Board found no violation as to the vacation and pen-
sion benefits, reasoning that the employer was not re-
quired to credit employees for service during the strike.
However, as pointed out by Member Murdock, dissent-
ing in part, the majority’s analysis utterly failed to con-
sider whether the right to continued service credit was
“accrued” under the parties’ agreement, as Great Dane
and Texaco now make clear is necessary. 80 NLRB at
514–515. As a result, General Electric is of dubious
standing today.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
The value of Simplex Wire, another pre-Texaco deci-
sion, is questionable for the same reason. In Simplex, the
Board found that the employer did not unlawfully with-
hold medical insurance benefits from striking employees,
but did not engage in the analysis now required under
Texaco. Thus, the Board made no inquiry into whether
those benefits were accrued under the applicable contrac-
tual provisions and, if they were, whether the employer
nonetheless established a legitimate and substantial busi-
ness justification for withholding them.10
We thus find, in agreement with the judge, that the Re-
spondent violated Sections 8(a)(1), (3), and (5) of the Act
by cancelling the accrued medical and dental benefits of
employees who participated in the work stoppage. We
emphasize, however, that this finding is based on our
application of the Great Dane-Texaco analytical frame-
work to the particular facts and circumstances of this
case. As such, there is no basis for our colleague’s claim
that our decision somehow alters Board precedent. Our
decision certainly does not—as our colleague suggests—
require all employers to provide medical benefits to em-
ployees who are not actively at work. It does not, as he
asserts, create an “open-ended” obligation on employers
to provide benefits for all employees who are not actual-
ly working for extended periods of time. This is not a
“preposterous” blank check: it does not impose an obli-
gation to continue health benefits in all strike cases. The
obligation in this case is a limited one that arises from
the collective-bargaining agreement created and agreed
to by the parties themselves. Indeed, because our deci-
sion is dependent on the language negotiated by the par-
ties, we acknowledge that a different outcome could well
obtain under a different contractual language. See, e.g.,
Ace Tank & Heater Co., 167 NLRB 663, 664 (1967). 11

10 Our colleague seems to suggest that Simplex Wire remains good
law because it was cited “with approval” in the post-Texaco decision
Beverly Health & Rehabilitation Services, 346 NLRB 1319, 1326 and
fn. 27 (2006). We disagree. It was cited in Beverly Health only for the
proposition that an employer is not generally required to continue pay-
ing health insurance premiums for employees who are on strike, or in
any way finance a strike against itself. The Board acknowledged and
affirmed this principle in Texaco, 285 NLRB at 245, but found that it
does not apply to employee benefits that, as in Texaco and here, have
accrued. Likewise, General Electric was cited favorably by Board in
Texaco solely for the proposition that the General Counsel must show
that (1) the benefit was accrued, due and payable on the date it was
denied, and (2) the benefit was withheld on the apparent basis of a
strike.
11 For essentially the same reasons given above, and contrary to our
colleague, we affirm the judge’s finding that the Respondent unlawfully
denied medical and dental benefits to employees who were on Union
leaves of absence during the strike.
As to all categories of employees, in adopting the judge’s finding
that the Respondent violated Sec. 8(a)(5) by unilaterally changing its
dental plan, we do not rely on the judge’s discussion of the standard for
B. The Respondent Unlawfully Mailed COBRA Notice
Packets to Strikers
Having found the Respondent unlawfully cancelled
striking employees’ medical and dental benefits, we also
agree with the judge that the Respondent violated Section
8(a)(1) by mailing COBRA notices to those strikers with
the date of insurance cancellation and information on
continued coverage. The strikers were statutory employ-
ees even when on strike, and, under the particular terms
of the contract agreed to by the parties in this case,
should have been covered by the Respondent’s insurance
plans. As the judge found, the COBRA notices “only
served to remind employees of the unlawful discontinua-
tion of benefits.” We reject the Respondent’s argument
that because coverage had ended, it was required by law
to mail COBRA notices to its employees. As we have
found, the Respondent unlawfully ended the coverage
and created the situation giving rise to any such duty; it
cannot now use that unlawful conduct to create a statuto-
ry COBRA notice obligation.
AMENDED REMEDY
The judge’s recommended remedy and Order includes
an award of make-whole relief. We adopt the make-
whole remedy, but in light of evidence that employees
may not have incurred out-of-pocket costs or other losses
as a result of the Respondent’s unlawful conduct, we
leave to compliance a determination of the extent of the
Respondent’s make-whole obligation.
In accordance with our decision in Kentucky River
Medical Center, 356 NLRB 6 (2010), we shall modify
the judge’s recommended Order to require that any mon-
etary make-whole relief shall be paid with interest com-
pounded on a daily basis. We shall also order the Re-
spondent to compensate all affected unit employees and
former unit employees for the adverse tax consequences,
if any, of receiving lump-sum make-whole awards and to
file a report allocating the make-whole awards to the
appropriate calendar quarters for each employee in ac-
cordance with our decisions in Don Chavas d/b/a Tortil-
las Don Chavas, 361 NLRB No. 10 (2014), and Ad-
voServ of New Jersey, Inc., 363 NLRB No. 143 (2016).
Excepting to the judge’s narrow cease-and-desist or-
der, the Respondent argues that it has already ceased the
conduct we find unlawful today and that the order is
therefore unnecessary. We disagree. The Board routine-

analyzing 8(d) violations because there is no 8(d) allegation in this
case. As we recently clarified, the two sections are analytically distinct.
See Springfield Day Nursery a/k/a Square One, 362 NLRB No. 30
(2015). Our finding thus rests on the points that the dental plan was a
mandatory subject of bargaining and that the Respondent unilaterally
changed its terms without giving the Union notice and an opportunity
to bargain.
HAWAIIAN TELCOM, INC. 7
ly issues cease-and-desist orders to remedy the violations
found. See Section 10(c) (upon finding an unfair labor
practice, the Board “shall issue and cause to be served on
such person an order requiring such person to cease and
desist from such unfair labor practice”). Doing so will
“prohibit the repetition by the Respondent of similar
conduct and subject[] [the] Respondent to contempt if it
continues its unlawful conduct.” Truck Drivers Local
705 (Gasoline Retailers), 210 NLRB 210, 211 (1974).
Finally, we shall modify the judge’s recommended
Order to conform to the Board’s standard remedial lan-
guage and the violations found. We shall substitute a
new notice to conform to the Order as modified and in
accordance with our decision in Durham School Ser-
vices, 360 NLRB No. 85 (2014).
ORDER
The National Labor Relations Board orders that the
Respondent, Hawaiian Telcom, Honolulu, Hawaii, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Cancelling health, drug, vision, and dental benefits
of employees who participated in a work stoppage on
November 10 and 11, 2011.
(b) Changing its dental insurance policy to eliminate
dental benefits for employees whose employment ends
due to a strike.
(c) Informing its employees who participated in the
work stoppage that their life, health, drug, vision, and
dental insurance were cancelled.
(d) Restricting unit members’ communication with the
Union by referring, in a Special Alert dated November
17, 2011, to potential discipline under its employment
policies.
(e) Applying its antiharassment rule against the Un-
ion’s Wall of Shame campaign in a manner that restricts
employees’ Section 7 rights.
(f) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole with interest all former strikers for any
accrued health, drug, vision, and/or dental benefits de-
nied them as a result of their participation in the strike in
the manner set forth in the remedy section of the judge’s
decision as amended in this decision, to the extent it has
not already done so.
(b) Compensate all affected unit employees and former
unit employees for the adverse tax consequences, if any,
of receiving lump-sum make-whole awards, and file with
the Regional Director for Region 20, within 21 days of
the date the amount of make-whole awards are fixed,
either by agreement or Board order, a report allocating
the make-whole awards to the appropriate calendar years
for each employee.
(c) Upon request, rescind the unilateral change elimi-
nating dental benefits for unit employees whose em-
ployment ends due to a strike to the extent it has not al-
ready done so.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Honolulu, Hawaii facility copies of the attached no-
tice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 20,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since September 1, 2011.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 20 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. February 23, 2017
______________________________________

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
ACTING CHAIRMANMISCIMARRA, dissenting.
One might wish for a world where people receive
wages and benefits without performing work. My col-
leagues have constructed one-half of this world in the
instant case. They do not require the payment of wages,1
but they impose an open-ended obligation on the Re-
spondent here to provide medical benefits for employees
who have stopped working in support of a strike. This
particular case involves a short strike, but the obligation
created by my colleagues is unlimited in duration. Under
their reasoning, the employer must continue paying for
medical benefits even if the nonworking employees
spend weeks, months or years—or the rest of their ca-
reers—refusing to work until the employer and union
have agreed upon further improvements in wages and
benefits.
I do not favor denying medical benefits or wages to
striking employees any more than I favor strikes, lock-
outs and other types of threatened or inflicted economic
injury that are protected by the National Labor Relations
Act (NLRA or Act). As I have stated previously, “[t]he
statute protects these types of economic weapons. Their
availability . . . has produced virtually all of the agree-
ments reached in the Act’s 80-year history.”2 By statuto-
ry design, parties in collective bargaining “proceed from
contrary and to an extent antagonistic viewpoints and
concepts of self-interest. . . . The presence of economic

1 Although wages are not at issue in the instant case, Board majori-
ties in recent decisions have found that employers—though prohibited
from making unilateral changes in wages without bargaining—are
required to unilaterally increase wages, even though such increases
have not been agreed to by the union, and even though bargaining over
the union’s wage demands has not produced an agreement or impasse.
See, e.g., Finley Hospital, 362 NLRB No. 102 (2015), enf. denied in
relevant part 827 F.3d 720 (8th Cir. 2016); Arc Bridges, Inc., 355
NLRB 1222 (2010), enf. denied in relevant part 662 F.3d 1235 (D.C.
Cir. 2011), on remand 362 NLRB No. 56 (2015). The Board’s deci-
sions in these cases have been divided, with dissenting opinions by one
or more participating members. See, e.g., Finley Hospital, 362 NLRB
No. 102, slip op. at 11–17 (Member Johnson, dissenting in part); Arc
Bridges, Inc., 362 NLRB No. 56, slip op. at 6–12 (2015) (Member
Miscimarra, dissenting).
2 American Baptist Homes of the West d/b/a Piedmont Gardens, 364
NLRB No. 13, slip op. at 10 (2016) (Member Miscimarra, dissenting in
part) (emphasis in original).
weapons in reserve, and their actual exercise on occasion
by the parties, is part and parcel of the system that the
Wagner and Taft-Hartley Acts have recognized.”3 Yet,
absent unusual circumstances not presented here, the
right to strike does not include an entitlement to receive
wages or benefits during periods that employees perform
no work because of the strike.4
My colleagues depart from this basic principle. There-
fore, I respectfully disagree with their assessment of the
merits, and the present case does not stand in isolation. In
other recent decisions, the Board has similarly gone too
far in the direction of imposing wage or benefit obliga-
tions in the absence of any contract, when the disputed
employment terms have not been agreed to by anyone
and remain under negotiation. In Lincoln Lutheran of
Racine,5 a Board majority held that, after contract expira-
tion, the employer must continue deducting union dues
and remitting them to the union, even though dues
checkoff remained under negotiation.6 In Finley Hospi-
tal,7 a Board majority held that the employer, after con-
tract expiration, was required to grant annual wage in-
creases of 3 percent (the same percentage increase pro-
vided to employees under the expired one-year labor
agreement), even though wages remained under negotia-
tion. The Court of Appeals for the Eighth Circuit reject-
ed the Board majority’s conclusion in Finley Hospital;
the court found there was no support for the Board ma-
jority’s “assumption” that the annual raises were part of
the status quo merely because they had been included in
the expired one-year agreement.8 In Arc Bridges, Inc.,9 a
Board majority held that the employer, during initial con-
tract negotiations, was required to pay a 3-percent wage

3 NLRB v. Insurance Agents’ International Union, 361 U.S. 477,
488–489 (1960).
4 See Texaco, Inc., 285 NLRB 241, 245 (1987) (“[A]n employer is
not required to finance a strike against itself by paying wages or similar
expenses dependent on the continuing performance of services for the
employer,” absent proof that the benefits in question were “accrued,”
which means “due and payable on the date on which the employer
denied [them].”) (citation omitted).
5 362 NLRB No. 188 (2015). Former Member Johnson and I dis-
sented in Lincoln Lutheran of Racine from the Board’s holding that
dues-checkoff obligations continue following contract expiration. Id.,
slip op. at 9–15 (Members Miscimarra and Johnson, dissenting in part).
6 In Lincoln Lutheran, supra, that Board majority held that the obli-
gation to continue deducting union dues arises from dues checkoff
provisions that existed in the expired collective- bargaining agreement,
and an employer would be permitted to discontinue dues checkoff after
the contract expires only if the employer bargains to an agreement or
impasse over new contract proposals under which dues checkoff is
eliminated.
7 Supra, 362 NLRB No. 102. Former Member Johnson dissented
from the Board majority’s decision in Finley Hospital. Id., slip op. at
11–17 (Member Johnson, dissenting in part).
8 Finley Hospital v. NLRB, 827 F.3d 720, 724–725 (8th Cir. 2016).
9 Supra, 355 NLRB at 1222.
HAWAIIAN TELCOM, INC. 9
increase, even though wages remained under negotiation
and the union was demanding a 50-percent wage in-
crease over a 3-year period.10 The Court of Appeals for
the D.C. Circuit rejected the holding in Arc Bridges that
the Act required the payment of the disputed 3-percent
wage increase, and the court stated that the Board’s anal-
ysis came “out of thin air” and was “nothing short of
arbitrary.”11 On remand, though accepting the court’s
criticisms “as the law of the case,”12 a Board majority
held the employer was still required to pay the disputed
3-percent wage increase because the majority conclud-
ed—over my dissent—that denying the increase consti-
tuted antiunion discrimination in violation of Section
8(a)(3).13
In the instant case, the majority is requiring the Re-
spondent to continue medical benefits even though no
contract exists, and even though the recipients have
stopped working and do not even report to work. The
NLRA provides critical protection to employees who
engage in a strike, and this protection makes it unlawful
to retaliate against striking employees by denying them
accrued benefits. Texaco, supra. However, this has nev-

10 In Arc Bridges, the Board reasoned that the employer had to pro-
vide the disputed 3 percent wage increase because (i) in the past em-
ployees who were unrepresented sometimes received an across-the-
board increase in July “if sufficient funds” existed (355 NLRB at 1223–
1224); (ii) these occasional wage increases were declared an “estab-
lished condition of employment” because they were given at some
times (though not given other times) (id.); and (iii) the failure to give
new wage increases during bargaining, according to the Board, was
“inherently destructive” of employee rights (id. at 1224–1225).
11 Arc Bridges, Inc. v. NLRB, 662 F.3d 1235, 1239 (D.C. Cir. 2011).
12 Arc Bridges, Inc., 362 NLRB No. 56, slip op. at 2 (2015).
13 One cannot succinctly summarize the deficiencies in Arc Bridges
that, in my view, rendered inappropriate the Board majority’s factual
and legal conclusions, and those deficiencies are enumerated in detail
in my dissenting opinion. See 362 NLRB No. 56, slip op. at 6–12
(Member Miscimarra, dissenting). However, as I pointed out, the D.C.
Circuit correctly held that annual wage increases clearly were not part
of the status quo, which meant the employer would have violated Sec.
8(a)(5) by unilaterally implementing a 3-percent increase (which the
union opposed) at a time when bargaining had not yet resulted in an
impasse or agreement. Id., slip op. at 7, 12. Thus, the Board majority
in Arc Bridges found that Sec. 8(a)(3) required the employer to unilat-
erally implement a 3-percent wage increase, even though implementing
the increase would have breached the employer’s bargaining obliga-
tions in violation of Sec. 8(a)(5) of the Act. As I stated in my dissent:
“The practical effect of the majority’s decision . . . [was] to put the
Respondent in a no-win situation. The Board cannot reasonably adopt
standards that cause parties to be in violation of the Act regardless of
the actions they take.” Id., slip op. at 12 (citing First National Mainte-
nance Corp. v. NLRB, 452 U.S. 666, 678–679 (1981)). See also Ad-
vanced Life Systems, Inc., 364 NLRB No. 117 (2016) (finding that
employer violated Sec. 8(a)(3) by freezing wages after employees
chose to be represented by a union, even though Sec. 8(a)(5) required
employer to freeze wages pending negotiations with the union for an
initial collective-bargaining agreement); see id., slip op. at 5–12 (Mem-
ber Miscimarra, dissenting in part).
er previously been interpreted to require employers to
continue contractual medical benefits when no collec-
tive-bargaining agreement exists and when employees
perform no work because of a strike. In my view, one
cannot reconcile this case, and the direction and outcome
of the other cases described above, with the limited role
that Congress envisioned for the NLRB as a neutral arbi-
ter of the collective-bargaining process. As the Supreme
Court stated in First National Maintenance Corp. v.
NLRB, 452 U.S. 666, 680 (1981), “the Act is not intend-
ed to serve either party’s individual interest, but to foster
in a neutral manner a system in which the conflict be-
tween these interests may be resolved.”14
Our statute prohibits the Board from imposing substan-
tive economic terms on parties,15 and the Board lacks
authority to change the balance struck by Congress when
devising the various economic weapons available to par-
ties in bargaining.16 In addition, when evaluating health

14 Similarly, in H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970), the
Supreme Court stressed that the Act imposes limits on the Board’s
authority to pass on substantive terms that have not been agreed to by
the parties in collective bargaining:
The object of this Act was not to allow governmental regulation of
the terms and conditions of employment, but rather to ensure that em-
ployers and their employees could work together to establish mutually
satisfactory conditions. The basic theme of the Act was that, through
collective bargaining, the passions, arguments, and struggles of prior
years would be channeled into constructive, open discussions leading, it
was hoped, to mutual agreement. But it was recognized from the be-
ginning that agreement might, in some cases, be impossible, and it was
never intended that the Government would, in such cases, step in, be-
come a party to the negotiations, and impose its own views of a desira-
ble settlement.
. . .
It is implicit in the entire structure of the Act that the Board acts to
oversee and referee the process of collective bargaining, leaving the
results of the contest to the bargaining strengths of the parties. It
would be anomalous indeed to hold that, while § 8(d) prohibits the
Board from relying on a refusal to agree as the sole evidence of bad
faith bargaining, the Act permits the Board to compel agreement in that
same dispute. The Board’s remedial powers under § 10 of the Act are
broad, but they are limited to carrying out the policies of the Act itself.
One of these fundamental policies is freedom of contract. While the
parties' freedom of contract is not absolute under the Act, allowing the
Board to compel agreement when the parties themselves are unable to
agree would violate the fundamental premise on which the Act is
based—private bargaining under governmental supervision of the pro-
cedure alone, without any official compulsion over the actual terms of
the contract.
Id. at 103–104, 107–108 (emphasis added; footnotes omitted).
15 Sec. 8(d) (providing that the obligation to bargain under the
NLRA “does not compel either party to agree to a proposal or require
the making of a concession”); H. K. Porter Co. v. NLRB, supra, 397
U.S. at 102 (“[W]hile the [NLRB] does have power . . . to require em-
ployers and employees to negotiate, it is without power to compel a
company or a union to agree to any substantive contractual provision
. . . .”).
16 See, e.g., NLRB v. Insurance Agents’ International Union, supra,
361 U.S. at 497 (It is not a proper function of the Board to act “as an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
insurance issues the Board may not disregard federal
benefits law, particularly the Employee Retirement In-
come Security Act (ERISA),17 nor may the Board misap-
ply other well-established principles of contract construc-
tion. Indeed, the Supreme Court has held that the Board
has no special expertise when interpreting collective-
bargaining agreements, and regarding these contract is-
sues, the courts will afford no deference to the Board’s
interpretation.18
In this case, I believe my colleagues impose an ex-
traordinary obligation that is not supported by our statute
or the parties’ collective-bargaining agreement. I also
believe my colleagues’ conclusion is contrary to the rec-
ord evidence. For these reasons, as explained more fully
below, I respectfully dissent.
Background
The Respondent and the Union were parties to a 2008–
2011 collective-bargaining agreement (CBA). By its
terms, the CBA expired on September 12, 2011. How-
ever, the parties attempted to negotiate a successor
agreement, and during these negotiations they agreed to
extend the term of the 2008–2011 CBA five times. The
fifth contract extension ended on October 24, 2011.
On November 10, 2011,19 the Union notified the Re-
spondent that it would engage in a work stoppage begin-
ning at 10:30 a.m. Employees engaged in a protected
work stoppage, which lasted two days, and Respondent
lawfully denied wages to employees for the time they
were not working because of the work stoppage. The

arbiter of the sort of economic weapons the parties can use in seeking
to gain acceptance of their bargaining demands.”); American Ship
Building Co. v. NLRB, 380 U.S. 300, 317 (1965) (The Board is not
vested with “general authority to assess the relative economic power of
the adversaries in the bargaining process and to deny weapons to one
party or the other because of its assessment of that party’s bargaining
power.”).
17 See Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942)
(“[T]he Board has not been commissioned to effectuate the policies of
the [Act] so single-mindedly that it may wholly ignore other and equal-
ly important Congressional objectives.”).
18 Litton Financial Printing Division, Litton Business Systems, Inc. v.
NLRB, 501 U.S. 190, 202–203 (1991) (“Although the Board has occa-
sion to interpret collective-bargaining agreements in the context of
unfair labor practice adjudication, . . . the Board is neither the sole nor
the primary source of authority in such matters. ‘Arbitrators and courts
are still the principal sources of contract interpretation.’”) (citing NLRB
v. C & C Plywood Corp., 385 U.S. 421 (1967), and quoting NLRB v.
Strong, 393 U.S. 357, 360–361 (1969)); Electrical Workers IBEW
Local 1395, v. NLRB, 797 F.2d 1027, 1030 (D.C. Cir. 1986) (“If defer-
ence were afforded the Board's interpretation of collective bargaining
agreements, the Board would be free to apply different . . . standards of
interpretation than those applied by the courts in Section 301 suits.”);
Retail Clerks Local 455 v. NLRB, 510 F.2d 802, 805 (D.C. Cir. 1975)
(“The Board's argument to the extent it relies on contract interpretation
alone . . . is entitled to no particular deference.”).
19 Unless otherwise noted, all dates are in 2011.
Respondent likewise discontinued medical and dental
benefits coverage for striking employees during the peri-
od of the strike.20 Consistent with the Consolidated Om-
nibus Budget Reconciliation Act of 1986 (COBRA),21
the Respondent mailed COBRA notices advising the
affected employees that they could elect to continue their
benefits coverage at their expense.22 After the strike
ended, the employees were re-enrolled in the employer-
provided medical and dental plans, and coverage was
restored retroactively (including the two days employees
were on strike) at the Respondent’s request.
There is no allegation that the Respondent unlawfully
denied any individual post-strike benefits coverage when
employees resumed working. However, my colleagues
find that the Respondent had a statutory obligation to
provide medical benefits during the period employees
performed no work while on strike. Specifically, the
majority finds that the Respondent’s discontinuation of
benefits during the period when employees performed no
work constituted antiunion discrimination in violation of
Section 8(a)(3) and (1) of the Act. The sole question
before the Board is whether our statute required the Re-
spondent, after contract expiration, to provide employer-
paid medical benefits to employees who were not per-
forming work.
Nothing in the NLRA directly requires an employer to
continue wages or benefits for employees who refuse to
work because they are on strike. However, the majority
creates this type of statutory obligation by reference to
the expired CBA. In my view, the expired CBA con-
tained several potentially relevant provisions that, read
together, clearly establish that the Respondent was under
no obligation to continue medical benefits during the
strike.

20 For ease of reference, although the instant case involves medical
and dental benefits, I use the term “medical benefits” to encompass
both, unless the context warrants differentiating between the two types
of benefits.
21 COBRA gives an employee the right to elect continued coverage,
at the employee’s expense, under the employer’s group health plan for
a prescribed period of time, even though he or she would otherwise lose
coverage because of a qualifying event such as termination of employ-
ment or, as is relevant here, a strike. See 26 C.F.R. § 54.4980B-4
(2012) (“[A] strike or a lockout is a termination or reduction of hours
that constitutes a qualifying event if the strike or lockout results in a
loss of coverage. . . .”). As noted in the text, COBRA also requires
employers to issue written notices to employees regarding their right to
elect continuation coverage when a qualifying event occurs. It also
imposes a limit on the cost amount that employees may be required to
pay for continuation coverage, among other requirements. There is no
allegation that the Respondent in the instant case failed to satisfy its
legal obligations under COBRA.
22 The Respondent did not send COBRA notices to employees on
approved military leave or approved leave under the Family and Medi-
cal Leave Act (FMLA).
HAWAIIAN TELCOM, INC. 11
Article 42 (“Duration of Agreement”) stated the CBA
was “effective and binding upon the parties from Sep-
tember 13, 2008 to and including September 12, 2011,”
subject to renewal from year to year absent 60 days’ no-
tice of termination or modification, and if either party
provides such notice, “then th[e] Agreement terminates
upon the expiration of its original term or its yearly ex-
tended term.”23 In the instant case, the parties agreed to
five contract extensions during negotiations for a new
contract, with the fifth extension ending on October 24,
2011.24
Article 5, Section 5.1.1 (“Interpretation”) defined the
term “employee” as “any person who performs work for
the Company for a regular stated compensation and
whose job duties are within the scope of the collective
bargaining unit.”25
Article 28 (“Medical Plan”) provided for the Respond-
ent to pay “the entire plan premium for regular full-time
employees and their dependents,” and in relevant part
stated as follows:
The Company will make available a medical plan to
employees covered by this Agreement. The selection of
the carrier and the administration of the medical plan
will rest with the Company provided the level and qual-
ity of the benefits remain the same. The benefits pro-
vided by this plan will not be discontinued or amended
without the agreement of the Company and Union.
. . .
For all regular full-time employees and their depend-
ents, the Company shall pay all of the premium for the
medical plans.
. . .
For all temporary employees, the Company shall pay
one-half (1/2) of the premium for the medical plans. . . .
. . .
Effective January 1, 2003, coverage for employees and
their dependents will end thirty (30) days after termina-
tion of employment. Coverage for dependents will end
on the date they become ineligible for coverage. Em-
ployees and their legal dependents may have an oppor-
tunity to continue to participate in the Plan in accord-

23 GC Exh. 2, Art. 42, Sec. 42.1–42.3, p. 55 (emphasis in original).
24 GC Exh. 3.
25 GC Exh. 2, Art. 5, Sec. 5.1.1, p. 3 (emphasis added).
ance with the Consolidated Omnibus Budget Reconcil-
iation Act (COBRA).26
Article 39 (“Dental Plan”) was similar to Article 28
and stated that the Company “will make available a Den-
tal Plan to employees covered by this Agreement,” that
the “benefits provided by this plan will not be discontin-
ued or amended without the agreement of the Company
and the Union,” that “the Company will pay all of the
premium equivalent for the Company Dental Plan” for
regular full-time employees and their dependents, that
(effective January 1, 2003) “coverage for employees and
their dependents will end thirty (30) days after termina-
tion of employment,” and that employees and dependents,
after their coverage ends, “may have an opportunity to
continue to participate in the Company’s dental plan in
accordance with [COBRA].”27
Article 32 (“Leave on Union Business”) provided for
Union officials to be granted leaves of absence without
pay, subject to the following additional provisions:
The number of such officials shall not exceed five at
any one time. Such leaves of absences shall not be
granted if the absence of the employees would disrupt
the operation of any work group of the Company.
. . .
While on leave, the Company agrees to cover the em-
ployee under the Retirement System as if the employee
remained in active service with the Company. Should
the employee be a member of the Company's Medical
and/or Dental Plans, the Company agrees to provide
medical coverage in accordance with Article 28 and/or
Article 39 of the Agreement.28

26 Id., Art. 28, Sec. 28.1, 28.2, 28.3, 28.12, pp. 38–39, 40 (emphasis
added).
27 Id., Art. 39, Sec. 39.1–39.3, p. 53 (emphasis added).
28 Id., Art. 32, Secs. 32.1–32.4, 32.6, p. 44 (emphasis added). The
expired CBA also included provisions regarding sickness disability and
long-term disability plans, military leave, and FMLA leave, which are
consistent with the requirements of Hawaii law. See Hawai’i Prepaid
Health Care Act, Hawaii Rev. Stat. §§ 393-1 through 393-51 (requiring
covered employers to provide health insurance to their employees, to
pay at least 50 percent of the cost of coverage, and to continue such
coverage for disabled employees for at least three months); Hawai’i
Temporary Disability Insurance Law, HRS Chapter 392 (generally
providing for partial wage replacement insurance coverage to eligible
disabled employees). Art. 27 of the expired CBA, Sickness Disability
Plan, provides that all regular employees and certain temporary em-
ployees “shall be qualified to receive payments . . . on account of phys-
ical disability to perform scheduled work by reason of sickness or acci-
dent outside of working hours, not covered by the Workers’ Compensa-
tion Law of the State of Hawaii.” Art. 31 provides for leaves of absence
for military service. Although Art. 31 makes no provision for continua-
tion of medical benefits during such leaves, the Federal Uniformed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Analysis
For more than 50 years, it has been firmly established
that “an employer is not required to finance a strike by
paying wages for work not performed,” and that wages,
for this purpose, include “vacation benefits and health
insurance premiums.” Ace Tank & Heater Co., 167
NLRB 663, 664 (1967) (citations omitted).29 However,
an exception exists where particular benefits, at the time
of a strike, had already “accrued,” meaning they were
“due and payable on the date on which the employer de-
nied them.”30 The standard governing whether or when
benefits are deemed “accrued” was established in Tex-
aco, Inc., supra, 285 NLRB at 245–246:
Under this test, the General Counsel bears the prima fa-
cie 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
benefit was accrued and (2) the benefit was withheld
on the apparent basis of a strike. We emphasize the
need for proof that the . . . benefit is accrued, that is,
“due and payable on the date on which the employer
denied [it].” Absent such proof, there is no basis for
finding an adverse effect on employee rights because
an employer is not required to finance a strike against
itself by paying wages or similar expenses dependent
on the continuing performance of services for the em-
ployer. . . . Proof of accrual on a case-by-case basis will
most often turn on interpretation of the relevant collec-

Services Employment and Reemployment Rights Act (USERRA) re-
quires employers to continue health plan coverage under certain cir-
cumstances for employees absent for military duty. See 43 U.S.C. §
4317. A Memorandum of Agreement between the parties regarding
FMLA leave (FMLA Memo) states that “[w]hile on FMLA leave,
eligible employees shall continue to receive company-paid life insur-
ance and medical/dental benefits to the extent provided to active em-
ployees.” A separate Memorandum of Agreement (LTD Memo) gov-
erns long-term disability (LTD) benefits. The LTD Memo provides
that employees may choose to enroll in a LTD plan that pays a portion
of the employee’s monthly pay in case of disability, with coverage paid
for solely by the employee, and the LTD Memo also provides that
“[d]uring the period LTD benefits are paid, eligible employees will
continue to receive life, medical and dental insurance coverage in ac-
cordance with the” CBA.
29 This principle was already clearly established when the Board de-
cided Ace Tank & Heater in 1967. See, e.g., General Electric Co., 80
NLRB 510, 511–512 (1948). See also Mooney Aircraft, Inc., 148
NLRB 1057 (1964), enfd. 366 F.2d 809 (5th Cir. 1966); W. W. Cross &
Co., 77 NLRB 1162, 1164 fn. 5 (1948), enfd. 174 F.2d 875 (1st Cir.
1949); Inland Steel Co., 77 NLRB 1 (1948), enfd. 170 F.2d 247 (7th
Cir. 1948), cert. denied in relevant part 336 U.S. 960 (1949).
30 E.L. Wiegand Division, Emerson Electric Co., 650 F.2d 463, 469
(3d Cir. 1981), cert. denied 455 U S. 939 (1982), enfg. in relevant part
Emerson Electric Co., 246 NLRB 1143 (1979); Texaco, Inc., supra, 285
NLRB at 245–246.
tive-bargaining agreement, benefit plan, or past prac-
tice.
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 forward with proof of a legitimate
and substantial business justification for its cessa-
tion of benefits. The employer may meet this burden
by proving that a collective-bargaining representa-
tive has clearly and unmistakably waived its em-
ployees' statutory right to be free of such discrimina-
tion or coercion. Waiver will not be inferred, but
must be explicit. If the employer does not seek to
prove waiver, it may still contest the . . . employee's
continued entitlement to benefits by demonstrating
reliance on a nondiscriminatory contract interpreta-
tion 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 employ-
er proves business justification, the Board may nev-
ertheless find that the employer has committed an
unfair labor practice if the conduct is demonstrated
to be "inherently destructive" of important employee
rights or motivated by antiunion intent.31
Three principles—each disregarded by my col-
leagues—are particularly relevant to the question of
whether the Respondent violated the Act by discontinu-
ing medical benefits for the period that employees ceased
working because of their strike.
First, as the Board emphasized in Texaco, when the
Board evaluates whether medical benefits were “ac-
crued,” which means “due and payable” even though
employees are no longer working,32 the Board’s role is
limited to determining whether the employer relied on an
interpretation of the contract that is “reasonable and . . .

31 Texaco, supra, 285 NLRB at 245–246 (emphasis added; fns. omit-
ted) (citing General Electric, 80 NLRB at 510; NLRB v. Great Dane
Trailers, 388 U.S. 26 (1967)).
32 The test under Texaco—whether the disputed benefits were “due
and payable” regardless of the fact that employees are performing no
work – involves the same type of analysis utilized by courts that have
evaluated whether retiree medical benefits are “vested.” See, e.g.,
M&G Polymers v. Tackett, 135 S.Ct. 926, 935–938 (2015). In both
contexts, the inquiry turns, in part, on whether the parties mutually
intended that the benefits would be a form of deferred compensation
based on services already performed. See, e.g., Texaco, 285 NLRB at
244 (benefits were “accrued” and “due and payable” to the extent “they
were based on . . . employees’ past performance” and did “‘not depend
on any return to work or on any future services to the employer’”)
(quoting Emerson Electric Co. v. NLRB, supra, 650 F.2d at 469); Tack-
ett, 135 S.Ct. at 936 (evaluating whether benefits were a “form of de-
ferred compensation”).
HAWAIIAN TELCOM, INC. 13
arguably correct.”33 In this area, the Board is not em-
powered to second-guess the employer’s reasonable in-
terpretation of the CBA, even though the Board might
resolve the question of contract interpretation in a differ-
ent manner. As the court stated in Vesuvius Crucible Co.
v. NLRB, 668 F.2d 162 (3d Cir. 1981):
We need not decide on this appeal whether Vesuvius,
or the Board, correctly interpreted the collective bar-
gaining agreement at issue here. Indeed, we believe that
in formulating its own interpretation of the contract,
the Board overstepped its authority and seriously mis-
perceived its role. The legitimacy of the company's
conduct for purposes of the analysis prescribed by
Great Dane depends not on the truth of its assertions
regarding its contractual obligations but rather on the
reasonableness and bona fides with which it held its be-
liefs. The mere fact that the NLRB construed the con-
tract differently from the way Vesuvius did should not,
without more, mean that Vesuvius ipso facto committed
an unfair labor practice. . . . Accordingly, we hold that,
in the absence of proof of anti-union motivation or a
finding that the company's conduct was inherently de-
structive of employee rights, a non-discriminatory re-
fusal to pay benefits to all employees based on a good
faith interpretation of the labor contract is insufficient
to make out a violation of the National Labor Relations
Act.
Id. at 167–168 (emphasis added). See also NLRB v. Borden,
Inc., 600 F.2d 313, 321 (1st Cir. 1979) (“Borden did come
forward with evidence of a business justification for its con-
duct, namely, the terms of the collective bargaining agree-
ment and past practice. The Board found this reason invalid
because its interpretation of the contract differed from that
of Borden’s. This, however, is not a question of contract
interpretation. The Board had a duty to determine whether
Borden was motivated by its reliance on the collective bar-
gaining agreement or by anti-union animus when it withheld
the accrued vacation benefits. We caution the Board that it
is neither our function nor the Board's to second-guess busi-
ness decisions. ‘The Act was not intended to guarantee that
business decisions be sound, only that they not be the prod-
uct of antiunion motivation.’”) (citation omitted; paragraph
structure altered); NLRB v. Sherwin-Williams Co., 714 F.2d
1095, 1101 (11th Cir.1983) (“In short, we conclude that
there is insufficient evidence on this record to support a
conclusion that Sherwin-Williams was motivated by any-
thing other than its good faith and reasonable interpretation
of the Disability Plan when it, consistent with past practice,
suspended disability benefits during work stoppages at the

33 Texaco, supra, 285 NLRB at 246 (emphasis added).
Morrow, Georgia facility. The Board’s determination that
the Company committed an unfair labor practice by with-
holding disability benefits from the named employees can-
not be sustained.”); Conoco, Inc. v. NLRB, 740 F.2d 811,
815 (1984) (“Under the Great Dane test, if the employer
presents evidence of a legitimate and substantial business
justification for withholding accrued benefits, the NLRB
must then prove anti-union animus. . . . [P]roof of good faith
reasonable reliance on the terms of the collective bargaining
agreement is sufficient to establish a substantial and legiti-
mate business justification. Further, the NLRB may not
formulate its own interpretation of the contract, but is lim-
ited to determining the truth of the employer’s assertions
regarding its contractual obligations, based upon ‘the rea-
sonableness and bona fides with which [the employer] held
its belief.’”) (quoting Vesuvius Crucible, supra at 167, and
citing Borden Chemical, supra, and Sherwin-Williams, su-
pra).
Second, medical coverage is considered a “welfare”
benefit under ERISA,34 and the Supreme Court has em-
phasized that ERISA principles governing welfare bene-
fits apply to medical coverage even when provided pur-
suant to a collective-bargaining agreement. Thus, in
M&G Polymers v. Tackett, the Court stated:
When collective-bargaining agreements create pension
or welfare benefits plans, those plans are subject to
rules established in ERISA. ERISA defines pension
plans as plans, funds, or programs that “provid[e] re-
tirement income to employees” or that “resul[t] in a de-
ferral of income.” § 1002(2)(A). It defines welfare ben-
efits plans as plans, funds, or programs established or
maintained to provide participants with additional ben-
efits, such as life insurance and disability coverage. §
1002(1).
ERISA treats these two types of plans differently. Alt-
hough ERISA imposes elaborate minimum funding
and vesting standards for pension plans, §§ 1053, 1082,
1083, 1084, it explicitly exempts welfare benefits plans
from those rules, §§ 1051(1), 1081(a)(1). Welfare ben-
efits plans must be “established and maintained pursu-
ant to a written instrument,” § 1102(a)(1), but
“[e]mployers or other plan sponsors are generally free
under ERISA, for any reason at any time, to adopt,
modify, or terminate welfare plans.” . . . As we have
previously recognized, “[E]mployers have large lee-
way to design disability and other welfare plans as they

34 29 U.S.C. § 1002(1)(A) (defining the terms “employee welfare
benefit plan” and “welfare plan” as including plans, funds or programs
established or maintained for the purpose of providing “medical, surgi-
cal, or hospital care or benefits, or benefits in the event of sick-
ness . . .”); Tackett, supra, 135 S.Ct. at 936 (citation omitted).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
see fit.” . . . And, we have observed, the rule that con-
tractual “provisions ordinarily should be enforced as
written is especially appropriate when enforcing an
ERISA [welfare benefits] plan.”35
The Court in Tackett further held that “‘[b]ecause vest-
ing of welfare plan benefits is not required by law, an
employer's commitment to vest such benefits is not to be
inferred lightly; the intent to vest must be found in the
plan documents and must be stated in clear and express
language.’”36 Even more relevant, the Supreme Court in
Tackett overruled International Union, UAW v. Yard-
Man, Inc., 716 F.2d 1476, 1479 (6th Cir. 1983), where
the Sixth Circuit had previously held that retiree medical
benefits—linked to the status of being retired—
warranted an inference that they were deferred compen-
sation for past services.37 The Supreme Court rejected
this proposition and stated that Yard-Man’s “premise”
(that retiree medical benefits constitute deferred compen-
sation for prior work) “is contrary to Congress’ determi-
nation otherwise.”38 The Supreme Court emphasized
that, in ERISA, only pension plans are defined as “a de-
ferral of income by employees.” Thus, the Court found
that, as a result of ERISA, welfare plans providing medi-
cal benefits “are not a form of deferred compensation.”39
Third, where collectively bargained medical benefits
are at issue, the benefits terminate upon the CBA’s expi-
ration, unless the CBA provides otherwise in explicit
contract language. When the Supreme Court in Tackett
overruled the Sixth Circuit’s Yard-Man decision, it
squarely rejected the notion that medical benefits were
unaffected by a CBA’s “general durational clause.”40
The Supreme Court’s analysis of this issue warrants its
quotation in full:

35 Tackett, supra, 135 S.Ct. at 933 (emphasis added) (quoting
Curtiss–Wright Corp. v. Schoonejongen, 514 U.S. 73, 78 (1995); Black
& Decker Disability Plan v. Nord, 538 U.S. 822, 833 (2003); and
Heimeshoff v. Hartford Life & Accident Ins. Co., 134 S.Ct. 604, 611–
612 (2013)).
36 Tackett, supra, 135 S.Ct. at 937 (emphasis added) (quoting Spra-
gue v. General Motors Corp., 133 F.3d 388, 400 (6th Cir. 1998)).
37 In Tackett, the Supreme Court specifically evaluated whether col-
lectively bargained retiree medical benefits were vested. However, the
principles articulated by the Supreme Court in Tackett apply with even
greater force to active employee medical benefits, which have consist-
ently been considered less likely than retiree medical benefits to be
considered a form of deferred compensation for past services. See, e.g.,
Tackett, supra, 135 S.Ct. at 933–934 (noting that in Yard-Man, the
Sixth Circuit inferred that retiree medical benefits were vested by con-
trasting such benefits with active employee medical coverage and find-
ing that retiree medical benefits were “in a sense ‘status’ benefits”
linked to the status of being retired) (citing Yard-Man, 716 F.2d at
1481–1482).
38 Tackett, supra, 135 S.Ct. at 936.
39 Id. (emphasis added; citations omitted.)
40 Id. at 934, 936–937.
[T]he Court of Appeals has refused to apply general
durational clauses to provisions governing retiree [med-
ical] benefits. Having inferred that parties would not
leave retiree benefits to the contingencies of future ne-
gotiations, and that retiree benefits generally last as
long as the recipient remains a retiree, the court in
Yard-Man explicitly concluded that these inferences
“outweigh[ed] any contrary implications derived from
a routine duration clause terminating the agreement
generally.” . . . The court's subsequent decisions went
even further, requiring a contract to include a specific
durational clause for retiree health care benefits to pre-
vent vesting. . . . These decisions distort the text of the
agreement and conflict with the principle of contract
law that the written agreement is presumed to encom-
pass the whole agreement of the parties. See 1 W. Sto-
ry, Law of Contracts § 780 (M. Bigelow ed., 5th ed.
1874); see also 11 Williston § 31:5.41
The Supreme Court in Tackett concluded that the Sixth Cir-
cuit in Yard-Man and similar cases had improperly “failed
to consider the traditional principle that ‘contractual obliga-
tions will cease, in the ordinary course, upon termination of
the bargaining agreement,’”42 and the Supreme Court held
that “when a contract is silent as to the duration of retiree
[medical] benefits, a court may not infer that the parties
intended those benefits to vest for life.”43
My colleagues agree that the principles stated in Tack-
ett are applicable to a determination of whether medical
benefits are accrued, but the majority here disregards
several of these principles. Although the Court in Tack-
ett held that collective-bargaining agreements are inter-
preted according to “ordinary principles of contract law,
at least when those principles are not inconsistent with
federal labor policy,”44 the Court emphasized that these
“ordinary principles of contract law” include (i) the rule
that a general durational clause limits the parties’ obliga-
tions to the term of the agreement,45 (ii) “the traditional
principle that courts should not construe ambiguous writ-

41 Id. at 936 (emphasis added) (quoting Yard-Man, supra, 716 F.2d at
1482–1483, and citing Noe v. PolyOne Corp., 520 F.3d 548, 555 (6th
Cir. 2008)).
42 Id. at 937 (quoting Litton Financial Printing Division v. NLRB,
supra, 501 U.S. at 207).
43 Id. The Supreme Court in Tackett recognized that the principle
that contract obligations ordinarily cease upon a CBA’s expiration
“does not preclude the conclusion that the parties intended to vest”
particular benefits, because “‘a collective-bargaining agreement [may]
provid[e] in explicit terms that certain benefits continue after the
agreement's expiration.’” Id. (quoting Litton Financial Printing Divi-
sion v. NLRB, supra, 501 U.S. at 207 (alterations in Tackett)).
44 135 S.Ct. at 933.
45 Id. at 936.
HAWAIIAN TELCOM, INC. 15
ings to create lifetime promises,”46 (iii) “the traditional
principle that contractual obligations will cease, in the
ordinary course, upon termination of the bargaining
agreement,”47 and (iv) the principle that, “[b]ecause vest-
ing of welfare plan benefits is not required by law, an
employer's commitment to vest such benefits is not to be
inferred lightly; the intent to vest must be found in the
plan documents and must be stated in clear and express
language.”48 My colleagues do not attempt to reconcile
their interpretation of the expired agreement with these
fundamental principles, each of which warrants a finding
that the disability benefits here were not “accrued” or
“due and payable” when applying the Board’s decision in
Texaco.
Nonetheless, my colleagues affirm the judge’s decision
finding that medical benefits were “due and payable” on
the basis of the employees’ past performance. The sole
bases for this conclusion are Articles 28 and 39 of the
expired CBA, which stated in part (i) that medical plan
and dental plan “coverage for employees and their de-
pendents will end thirty . . . days after termination of
employment,” and (ii) that “benefits provided by this plan
will not be discontinued or amended without the agree-
ment of the Company and Union” (emphasis added). My
colleagues interpret these provisions as follows:
Articles 28 and 39 of the 2008 Agreement clearly and
expressly establish that the relevant medical and dental
benefits were accrued. Each provision contained a
broad eligibility clause providing medical and dental
insurance benefits to all employees, and neither provi-
sion imposed a time-in-service requirement. In short,
employees were entitled to those benefits simply by
virtue of their employment with the Respondent. Each
provision, moreover, specified only two circumstances
in which the Respondent could discontinue providing
employees those benefits: by agreement between the
Respondent and the Union or upon 30 days after an
employee terminated his employment. Neither condi-
tion occurred in this case. . . . Further, the Respondent's
continuation of medical and dental benefits for em-
ployees who were not actively working for non-strike
related reasons, including those on military or FMLA
leave, indicates that the Respondent well understood
that such benefits were contractually “due and payable”
to employees based only on their ongoing employment
relationship with the Respondent, not the active per-
formance of work. For all of these reasons, we find in

46 Id.
47 Id. at 937 (internal quotation omitted).
48 Id. (internal quotation omitted).
the particular circumstances of this case that the Gen-
eral Counsel carried his initial burden to show that the
medical and dental benefits at issue were “accrued”
benefits on November 10, the day the strike began.
[Footnote omitted.]
By making these findings, my colleagues conclude that the
Respondent agreed to an open-ended obligation to give its
employees medical and dental benefits even if the employ-
ees perform no work for a period spanning months or even
years. It would be preposterous to suggest that an employer
agreed to assume a comparable obligation to pay wages for
an extended period when employees performed no work.
However, applying this type of open-ended obligation to
medical and dental benefits is no less remarkable, and such
an obligation has the same potential to be financially ruin-
ous for the employer. In this respect, my colleagues agree
with the judge, who found that the CBA confers a guarantee
upon every unit employee “by the end of his first day on the
job” that medical and dental benefits will be provided for
the rest of the employee’s career—regardless of whether the
CBA remains in effect and whether or not employees per-
form work—and the CBA does not even “contemplate a
scenario . . . under which their benefits could be cancelled”
unless and until the company terminates the person’s em-
ployment or the company and union enter into a different
agreement.
In my view, this conclusion is contradicted by the
CBA’s express provisions as well as the principles ar-
ticulated by the Supreme Court in Tackett that control the
duration of collectively bargained medical benefits.49
Regarding my view that the medical benefits here had
not “accrued,” the following considerations are especial-
ly compelling.
First, the CBA contained a “Duration of Agreement”
provision that applied to all contractual obligations, in-
cluding the medical benefits set forth in Article 28 and
the dental benefits set forth in Article 39, which demon-
strates that the parties contemplated that all contractual
obligations would cease upon the Agreement’s expira-
tion. The record leaves no doubt that the parties took the
CBA’s limited duration seriously: they entered into suc-
cessive extension agreements five times between Sep-
tember 12, 2011 (the stated expiration date in CBA Arti-
cle 39) and October 24, 2011 (the expiration date set
forth in the parties’ fifth extension agreement).50 Nor
can the Board disregard the general principle that a

49 I agree with my colleagues that the judge erred in relying on Sec.
8(d) in her analysis of the issues presented by the Respondent’s modifi-
cation of its dental plan to clarify that striking employees are not cov-
ered, and I join them in adopting the findings of the judge as to which
no exceptions were filed.
50 GC Exh. 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
CBA’s fixed duration applies to medical benefits. As the
Supreme Court held in Tackett, medical benefits—like
other contract terms—are governed by the “traditional
principle that ‘contractual obligations will cease, in the
ordinary course, upon termination of the bargaining
agreement.’”51 See also Finley Hospital v. NLRB, supra,
827 F.3d at 725 (clause stating that employer would ad-
just wages 3 percent on employees’ anniversary date “for
the duration of this Agreement” created no contractual or
status quo obligation applicable after the contract ex-
pired).
Second, the medical and dental benefits language in
the CBA—set forth in Articles 28 and 39—expressly
stated that benefits would only be provided “to employ-
ees covered by this Agreement.” The existence of such a
specific durational limitation in the very contract provi-
sions that ostensibly are the source of the disputed bene-
fit obligation in this case precludes a reasonable conclu-
sion that the employer was contractually required to con-
tinue benefits after contract expiration—i.e., when em-
ployees ceased being “covered by this Agreement.” See
also Finley Hospital v. NLRB, supra (“One cannot sepa-
rate the [] term limit from the [] obligation.”).52
Third, as noted above, Articles 28 and 39 limited med-
ical and dental benefits to “employees,” and Article 5,
Section 5.1.1 defined the term “employee” to mean a
“person who performs work for the Company.” This
precludes a reasonable conclusion that the Respondent
was contractually required to continue benefits, post-
expiration, to individuals who were not even “employ-
ee[s]” within the meaning of the CBA, since they were
on strike and thus did not “perform[] work for the Com-
pany.”53
Fourth, the notion that every employee had an unalter-
able contractual entitlement to medical and dental bene-
fits “by the end of his first day on the job”—regardless
whether the CBA was in effect and regardless whether he

51 Tackett, supra, 135 S. Ct. at 937 (quoting Litton Financial Print-
ing Division v. NLRB, 501 U.S. at 207).
52 Of course, the Respondent remained subject to a non-contractual
duty to maintain the status quo following contract expiration as eluci-
dated in NLRB v. Katz, 369 U.S. 736 (1962). But the issue here,
whether the benefits were accrued, turns on whether a collective-
bargaining agreement establishes that the benefits were due and paya-
ble at the time of the strike. Texaco, supra; Tackett, supra. As shown,
that is not the case with respect to the benefits at issue here.
53 My colleagues assert that Art. 5.1.1 does not operate as a limita-
tion on eligibility for medical and dental benefits, reasoning that this
interpretation is inconsistent with Art. 27 and the LTD Memo, dis-
cussed above, which provide for the payment of benefits to disabled
“employees” even though those individuals are not currently perform-
ing work for the Respondent. I believe these provisions are entitled to
little weight in determining whether medical benefits were accrued for
strikers in light of the provisions of Hawaii law relative to the provision
of health insurance and disability benefits by employers in that state.
or she ceased being an “employee” within the meaning of
the CBA (since he or she was no longer performing
work)—is also contradicted by the fact that Respondent’s
medical and dental coverage constituted a “welfare” ben-
efit under ERISA. As the Supreme Court held in Tack-
ett, “[w]hen collective-bargaining agreements create . . .
welfare benefits plans, those plans are subject to rules
established in ERISA,” and “[e]mployers . . . are general-
ly free under ERISA, for any reason at any time, to
adopt, modify, or terminate welfare plans.”54
Finally, in light of the above points, the language in
Articles 28 and 39 upon which the majority relies—
which stated (i) that benefits “will not be discontinued or
amended without the agreement of the Company and
Union” and (ii) that “coverage” ends “thirty . . . days
after termination of employment”—does not necessarily
mean medical and dental benefits were intended to con-
tinue after the CBA’s expiration for individuals who per-
formed no work because of a strike. For starters, CBA
Article 42 (the “Duration of Agreement” provision) and
the five contract extensions ending October 24, 2011,
governed the entire CBA, including the statement that
benefits “will not be discontinued or amended.” There-
fore, even if one looks at the “will not be discontinued or
amended” language in isolation,55 this language may
reasonably be interpreted to mean that the parties intend-
ed to preclude amending or discontinuing medical bene-
fits for employees during the period the CBA remained
in effect, and this interpretation is reinforced by the
statements in Articles 28 and 39 that benefits would be
afforded only to employees “covered by this Agree-
ment.” Similarly, the second statement in Articles 28
and 39 (that “coverage” ends “thirty . . . days after termi-
nation of employment”) is likewise subject to Article 42
(the “Duration of Agreement” provision) and the parties’
five successive contract extensions ending October 24,
2011. Moreover, this interpretation does not deprive the
“termination of employment” language of significance.
Even if deemed applicable only during the CBA’s term,
that language still served the important function of speci-
fying how long benefits continue when an employment
termination occurs while the CBA remained in effect.
Here as well, other CBA provisions reinforce a conclu-
sion that the “termination of employment” language in

54 Tackett, supra, 135 S.Ct. at 936 (citations omitted).
55 Of course, contract language in CBAs and other agreements
should not be interpreted in isolation. As recognized in Tackett, it is a
“cardinal principle” of contract interpretation that “the intention of the
parties, to be gathered from the whole instrument, must prevail,” which
entails examining “the entire agreement. . . .” Tackett, supra, 135 S.Ct.
at 937–938 (Justices Ginsburg, Breyer, Sotomayor, and Kagan, concur-
ring) (emphasis added) (citing 11 R. Lord, Williston on Contracts §§
30:2, p. 27, and 30:4, pp. 55–58 (4th ed. 2012)).
HAWAIIAN TELCOM, INC. 17
Articles 28 and 39 was intended to be applicable only
during the CBA’s term: Articles 28 and 39 stated that
benefits will be afforded only to employees “covered by
this Agreement.” Again, it is also significant that Arti-
cles 28 and 39 afforded medical and dental benefits only
to “employees,” and Article 5, Section 5.1.1 defined
“employee” as a person “who performs work for the
Company,” which excludes individuals who do not per-
form work based on a strike.56
In short, the expired CBA contradicts my colleagues’
finding that when Respondent’s employees went on
strike and stopped performing work—after the CBA ex-
pired—medical and dental benefits had “accrued” and
were “due and payable” based on the employee’s past
work and were not tied to the “continued performance of
services.”57 To the contrary, (i) the CBA contained a
“Duration of Agreement” provision, and pursuant to that
provision (and the contract extensions) the CBA had ex-
pired by the time employees struck and ceased perform-
ing services; (ii) the CBA’s medical and dental provi-
sions provided benefits only to employees “covered by
this Agreement”; and (iii) the same provisions only con-
ferred a right to benefits coverage on “employees,” and
the CBA’s definition of “employee” excluded any person
who did not “perform[] work for the Company.” Moreo-
ver, the judge disregarded the ERISA principle that med-
ical and dental coverage constitute “welfare” benefits,
and “[e]mployers . . . are generally free under ERISA, for
any reason at any time, to adopt, modify, or terminate
welfare plans.”58
Even if some question may exist regarding the proper
interpretation of Respondent’s CBA, that would not pro-
vide a basis for finding Respondent’s actions in this case
violated the Act. The interpretation set forth above clear-
ly constitutes a reasonable “good faith interpretation of
the labor contract,” and I believe that by rejecting this
construction and substituting their own interpretation, the
Board majority has “overstepped its authority and seri-
ously misperceived its role.” Vesuvius Crucible Co. v.
NLRB, supra, 668 F.2d at 167. See also Texaco, supra,
285 NLRB at 245–246, and Borden, Sherwin-Williams,
and Conoco, supra.
Until today’s decision, the Board has consistently held
that medical benefits constitute compensation for present
services being performed, which means they may be

56 The Respondent properly maintained medical benefits for em-
ployees on military or FMLA leave, consistent with the provisions of
USERRA and the FMLA Memo, discussed above, which confer an
entitlement to such benefits that is independent of the provisions of
Arts. 28 and 39 governing the rights of active employees.
57 Texaco, 285 NLRB at 244. See also fn. 32, supra.
58 Tackett, supra, 135 S.Ct. at 936 (citations omitted).
withheld from active employees who stop working dur-
ing a strike. See Ace Tank & Heater, supra, 167 NLRB
at 664 (“[A]n employer is not required to finance a strike
by paying wages for work not performed, and …wages
include such deferred benefits as retirement and vacation
benefits and health insurance premiums.”).59 This con-
clusion reflects the seminal holding in General Electric
Co., supra, 80 NLRB at 511, that an employer is not re-
quired under the Act to finance an economic strike
against it by compensating the strikers for work not per-
formed.
Significantly, the right recognized in General Electric
to distinguish between active strikers and non-strikers in
the provision of benefits is based on the Act itself and
does not depend on the terms of a collective-bargaining
agreement. In General Electric, the Board specifically
rejected the argument that the benefits at issue there—
continued accrual of vacation and pension benefits under
a continuous service plan—could not lawfully be with-
held on the basis of a strike because the collective-
bargaining agreement provided that benefits would ac-
crue except in specified circumstances and did not pro-
vide for the tolling of those benefits during a strike. In-
stead, the Board held that the contract language “does not
necessarily mean, in our opinion, that the Respondent has
thereby contracted away its right to differentiate, in a
manner consistent with the Act, between strikers and
non-strikers in the application of the continuous service
plan. In any event, even though under the contract the
strikers may have enforceable rights in other forums, it
does not follow that the Respondent's treatment of the
strikers constituted per se an unfair labor practice.” 80
NLRB at 511 fn. 3.
The Board applied the same principle to medical bene-
fits in Simplex Wire & Cable Co., supra. There, the
Board rejected the claim that striking active employees
were entitled to continued medical benefits based on con-

59 See also Simplex Wire & Cable Co., 245 NLRB 543 (1979); Trad-
ing Port, 219 NLRB 298, 299 fn. 3 (1975). The Board has reached
different results on whether medical insurance coverage for disabled
employees was an accrued benefit under Texaco, depending on the
particular facts of the case. Compare Texaco, 285 NLRB at 247 (not
accrued) with Gulf & Western Mfg. Co., 286 NLRB 1122 (1987) (ac-
crued) and NFL Mgmt. Council, 309 NLRB 78, 85 (1992) (same).
Those holdings do not bear on the question of whether such benefits are
accrued with regard to active employees, the issue presented in this
case. For this same reason, I believe that the Respondent’s treatment of
disabled employees under the various provisions of the expired CBA
applicable to the provision of disability benefits, which by definition
are not paid to active employees, has no bearing on whether medical
benefits for active employees were accrued at the time of the strike.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
tract language strikingly similar to that present in this
case.60 The Board explained:
[T]he question is not whether the contract required Re-
spondent to pay the August premium because the P &
M employees performed “active employment’ on Au-
gust 1, as the General Counsel contends, but whether
the contract required Respondent to finance the strike
by the P & M employees, which began on August 3, by
paying the August premium. Considered in this respect,
Respondent's position that it was under no duty to do so
is well taken and based on sound legal principles.
245 NLRB at 545. See also Beverly Health & Rehabilita-
tion Services, 346 NLRB 1319, 1326 fn. 27 (2006) (citing
Simplex Wire with approval and reaffirming principle that
“an employer is not generally required to continue paying
health insurance premiums for employees who are on strike,
or in any way finance a strike against itself”).61
The majority cannot point to a single case in which the
Board has found that an employer violated the Act by
withholding medical benefits from striking active em-
ployees. To the contrary, until today’s unprecedented
decision the Board has uniformly held that an employer
acts lawfully when it withholds medical benefits in these
circumstances. My colleagues make no attempt to rec-
oncile their determination that the Respondent violated
the Act by withholding medical and dental benefits from
striking active employees with this precedent. Instead,
they refuse to apply it, arguing that, after Texaco, the
Board’s longstanding case law in this area has “dubious
standing” and “questionable” value. This position would
come as a surprise to the Board members who decided
Texaco, since they cited General Electric with approval

60 In Simplex Wire & Cable, the contract provided that “[a]ll active
employees, with the exception of probationary employees, are eligible
for the benefits” and that health insurance coverage terminated on
“[t]he last day of the month in which the employee terminates active
employment.” Based on this language, the General Counsel contended
in Simplex, similar to his contention here, that the employer was re-
quired to pay the health insurance premiums based on the employees’
past performance of work (i.e., whenever employees worked the first
day of the month). The Board rejected this contention.
61 In Beverly, the Board found that the employer violated Sec.
8(a)(5) by unilaterally deducting from striking employees’ pay the
premiums it paid for their insurance during the strike, contrary to its
established practice of allowing employees on unpaid leaves of absence
to choose whether to continue coverage by paying the premium them-
selves. No such facts are present in this case. Moreover, the Board’s
opinion in Beverly strongly suggests that the employer would not have
violated the Act had it simply ceased paying the premiums, as was the
case here. See 346 NLRB at 1325 fn. 27 (“Here, however, the Re-
spondent did more than simply cease paying its share of the insurance
premiums; rather, the Respondent paid the premiums and then deducted
from employees' paychecks a pro-rated share of the premiums for the 3
days that they were on strike.”).
and never questioned its holding in a comprehensive
opinion that broadly addressed then-existing Board prec-
edents dealing with accrued benefits. And it would also
surprise the Board members who decided Beverly, supra,
since they cited Simplex Wire with approval for the spe-
cific proposition that “an employer is not generally re-
quired to continue paying health insurance premiums for
employees who are on strike, or in any way finance a
strike against itself.” It defies reason to suggest that the
Beverly Board thought Simplex Wire was “questionable”
in these circumstances.
For similar reasons, I believe that the majority errone-
ously finds that the Respondent violated Section 8(a)(3)
by failing to continue medical and dental benefits for
individuals who were on a Union leave of absence pur-
suant to Article 32 of the expired CBA. Preliminarily, as
the judge noted, the complaint did not allege that the
discontinuation of benefits for employees on Union leave
violated the Act.62 Nonetheless, for two reasons—even
assuming this issue is properly before the Board—I be-
lieve the record fails to support a violation of Section
8(a)(3) regarding the discontinuation of medical and den-
tal benefits for employees on Union leave at the time of
the strike.
First, the judge’s finding of a violation as to employees
on Union leave was based in large part on the same rea-
sons that prompted the judge to find a violation when the
Respondent discontinued medical and dental benefits,
following contract expiration, for its other striking em-
ployees. In this regard, the judge addressed this issue—
even though it had not been alleged in the complaint—
because she found that the employees on Union leave
were “arguably” encompassed by the complaint allega-
tion relating to active employees, and the judge found the
Union leave issue was “predominantly a legal and textual
question identical to that regarding the mass of employ-
ees who went on strike.” Therefore, the same considera-
tions described above—which I believe preclude a find-
ing that Respondent violated Section 8(a)(3) by discon-

62 The complaint alleged that the Respondent discontinued benefits
for “certain employees” who “ceased work concertedly and engaged in
a strike.” Nonetheless, the judge addressed the discontinuation of
medical and dental benefits for employees on Union leave, even though
she stated that “it could be fairly argued that employees on leave did
not ‘cease work,’” as alleged in the complaint. I would find that the
General Counsel, having failed to allege this violation in the complaint,
is barred from litigating this issue except to the extent that the employ-
ees on Union leave are identically situated as the active employees who
ceased providing services based on the strike, which was the primary
basis for the judge’s finding of a violation. However, for the reasons
expressed in the text, even assuming this issue is properly before the
Board, I believe the record does not provide adequate support for a
finding that the medical and dental benefits were “accrued” as to em-
ployees on Union leave.
HAWAIIAN TELCOM, INC. 19
tinuing medical and dental benefits for active employ-
ees—likewise preclude a violation as to employees on
Union leave.
Second, Article 32 stated: “While on leave, the Com-
pany agrees to cover the employee under the Retirement
System as if the employee remained in active service
with the Company. Should the employee be a member of
the Company’s Medical and/or Dental Plans, the Com-
pany agrees to provide medical coverage in accordance
with Article 28 and/or Article 39 of the Agreement” (em-
phasis added). The judge found that Article 32 made the
case for finding a violation “even stronger” for individu-
als on Union leave. Contrary to the judge, I believe the
language in Article 32, if anything, weakens the argu-
ment that individuals on Union leave were entitled, fol-
lowing contract expiration, to continuing medical and
dental benefits while employees stopped performing
work during the strike. There are significant qualifica-
tions in Article 32, which (i) expressly referenced em-
ployees “in active service with the Company,” and (ii)
referred to coverage “in accordance with Article 28
and/or Article 39 of the Agreement.” Of course, Articles
28, 32 and 39 (along with the rest of the CBA) were ex-
pired at the time of the strike. And even if Article 32 is
deemed applicable following contract expiration (which I
believe would be contrary to Article 42, the “Duration of
Agreement” provision), the reference to “active service”
appears to contemplate, at a minimum, that some em-
ployees would be in “active service” while Article 32
benefits are being provided.
More importantly, Article 32 only provides for medi-
cal and dental benefits to an “employee.” As noted
above, Article 5, Section 5.1.1 defines the term “employ-
ee” as a person “who performs work for the Company,”
which excludes individuals who are not performing work
during a strike.63 Additionally, Article 32 only makes
medical and dental benefits available “in accordance with
Article 28 and/or Article 39 of the Agreement,” and
those provisions, as noted above, limit medical and den-
tal benefits to employees “covered by this Agreement.”
Article 32 does not confer any greater benefits entitle-
ment than provided under Articles 28 and 39. As ex-
plained at length above, neither Article 28 nor Article 39
support a finding that individuals performing no work
during a strike, following contract expiration, have an
“accrued” right to receive medical and dental benefits.

63 There is no dispute that all of the strikers in this case were, at all
material times, statutory employees under the plain terms of the Act.
See NLRA Sec. 2(3). But their statutory employee status, alone, does
not determine their entitlement to continued receipt of benefits during a
strike. See Texaco, Inc., supra; General Electric, supra.
As a final matter, I believe the Board should dismiss
the complaint allegation that the Respondent violated
Section 8(a)(1) by sending COBRA notices to employees
in connection with the discontinuation of medical and
dental benefits. See Trading Port, supra (employer did
not violate Act by informing strikers that it was discon-
tinuing health insurance for strikers). Those letters simp-
ly informed employees that their benefits had been can-
celled effective November 10 based on “your qualifying
event” and provided information on their ability “to con-
tinue coverage through COBRA.” The letters did not
disparage the union or the employees’ decision to strike;
they did not even identify the strike as the reason that
health and dental benefits had been cancelled. Especially
in light of the Respondent’s undisputed COBRA obliga-
tions, I believe the Board cannot reasonably find that
these letters violated the Act. See Southern Steamship
Co. v. NLRB, supra, 316 U.S. at 47 (“[T]he Board has not
been commissioned to effectuate the policies of the [Act]
so single-mindedly that it may wholly ignore other and
equally important Congressional objectives.”).
Conclusion
In NLRB v. Insurance Agents’ International Union,
supra, 361 U.S. 477, the Supreme Court stated: “Con-
gress intended that the parties should have wide latitude
in their negotiations, unrestricted by any governmental
power to regulate the substantive solution of their differ-
ences.”64 The Court explained:
[W]e think the Board's approach involves an intrusion
into the substantive aspects of the bargaining pro-
cess. . . . Thus the Board in the guise of determining
good or bad faith in negotiations could regulate what
economic weapons a party might summon to its aid.
And if the Board could regulate the choice of economic
weapons that may be used as part of collective bargain-
ing, it would be in a position to exercise considerable
influence upon the substantive terms on which the par-
ties contract. As the parties' own devices became more
limited, the Government might have to enter even more
directly into the negotiation of collective agreements.
Our labor policy is not presently erected on a founda-
tion of government control of the results of negotia-
tions. . . . Nor does it contain a charter for the National
Labor Relations Board to act at large in equalizing
disparities of bargaining power between employer and
union.65

64 Id. at 488 (citing Teamsters Union v. Oliver, 358 U.S. 283
(1959)).
65 Id. at 490 (emphasis added; citations omitted). See also American
Ship Building Co. v. NLRB, 380 U.S. 300, 316 (1965) (stating that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
One of the most fundamental principles that govern
employment relationships is that employees must per-
form services in order to receive wages and medical ben-
efits. In the instant case, I believe the Board’s departure
from this principle does violence to well-established le-
gal principles embodied in our statute. I believe my col-
leagues also disregard ERISA principles that address the
benefits at issue here, and the Board improperly adopts a
flawed interpretation of selective provisions contained in
the parties’ CBA. Especially in this last respect, I be-
lieve the Board majority, though armed with good inten-
tions, has “overstepped its authority and seriously mis-
perceived its role.” Vesuvius Crucible Co. v. NLRB, 668
F.2d at 167–168.
Accordingly, I respectfully dissent.
Dated, Washington, D.C. February 23, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
NATIONAL LABOR RELATIONS BOARD
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT cancel health, drug, vision, and dental
benefits for those of you who participated in a work
stoppage on November 10 and 11, 2011.
WE WILL NOT change our dental insurance policy to
eliminate dental benefits for those of you whose em-
ployment ends due to a strike.

Board lacks “general authority to define national labor policy by bal-
ancing the competing interests of labor and management”).
WE WILL NOT inform those of you who participated in
the work stoppage that your life, health, drug, vision, and
dental insurance were cancelled.
WE WILL NOT unlawfully restrict your communication
with the Union by referring, in a Special Alert, to poten-
tial discipline under our employment policies.
WE WILL NOT unlawfully apply our antiharassment
rule against the Union’s Wall of Shame campaign in a
manner that restricts your rights described above.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
described above.
WE WILL make whole with interest all former strikers
for any accrued health, drug, vision, and/or dental bene-
fits denied them as a result of their participation in the
strike to the extent we have not already done so.
WE WILL compensate all affected unit employees and
former unit employees for the adverse tax consequences,
if any, of receiving lump-sum make-whole awards, and
WE WILL file a report with the Regional Director for Re-
gion 20 allocating the make-whole awards to the appro-
priate calendar years for each employee.
WE WILL, upon the Union’s request, rescind the unilat-
eral change eliminating dental benefits for unit employ-
ees whose employment ends due to a strike to the extent
we have not already done so.
HAWAIIAN TELCOM, INC.
The Board’s decision can be found at
www.nlrb.gov/case/20–CA–069432 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Meredith Burns, Esq., for the Acting General Counsel.
Perry W. Confalone and Michael J. Scanlon, Esq.
(Carlsmith Ball, LLP), for the Respondent.
Scot Long, for IBEW Local 1357.
HAWAIIAN TELCOM, INC. 21
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge. This case,
heard in Honolulu, Hawaii, on June 6, 2012, raises allegations that
Hawaiian Telcom, Inc. (Company or Respondent) violated the National
Labor Relations Act (the Act) by, inter alia, engaging in activity inher-
ently destructive of employee Section 7 rights. The International Broth-
erhood of Electrical Workers, Local 1357 (Union or Charging Party),
filed both of the captioned charges on November 22, 2011,1 and
amended both charges on February 28, 2012. The Acting Regional
Director for Region 20 of the National Labor Relations Board (NLRB
or Board) consolidated the cases and issued a consolidated complaint
(complaint) and notice of hearing on February 29, 2012, alleging that
Respondent violated Section 8(a)(1), (3), and (5) of the Act. 2 Respond-
ent filed a timely answer denying that it engaged in the unfair labor
practices alleged in the complaint and interposing 21 affirmative de-
fenses.
Having carefully considered the entire record together with
the demeanor of the witnesses, and after considering the argu-
ments provided in the briefs filed by the Acting General Coun-
sel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Company, a corporation with an office and place of
business in Honolulu, Hawaii, furnishes telecommunications
services to commercial and residential customers. During the
12-month period ending January 31, 2012, the Company de-
rived gross revenues in excess of $100,000 from the conduct of
its business at Honolulu. During the period, the Company pur-
chased and received at its Honolulu, Hawaii, facility goods
valued in excess of $5000 directly from locations outside the
State of Hawaii. The Company admits, and I find, that it is, and
has been at all material times, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. The Company also admits, and I find, that the Union is,
and has been at all material times, a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Relevant facts
The Union was initially certified as the exclusive representa-
tive of an appropriate unit of employees on September 29,
1943. The evidence establishes that the unit has expanded over
the years by agreement of the parties. The complaint alleges,
but answer denies, that the current unit represented by the Un-
ion consists of the following:

1 All further dates refer to the 2011 calendar year unless otherwise
indicated.
2 Under Sec. 8(a)(1) an employer may not “interfere with, restrain
or coerce” employees who exercise rights guaranteed them in Sec. 7.
That section gives employees the right to engage in union or other
concerted activities for purposes of collective bargaining or other mu-
tual aid and protection or the right to refuse to engage in those activi-
ties. Sec. 8(a)(3) bars employers from discriminating against employees
in order to encourage or discourage union membership. Sec. 8(a)(5)
requires an employer to bargain in good faith with the representative of
its employees.
All employees employed by Respondent in the State of Ha-
waii, excluding managerial, supervisory, administrative and
professional employees, engineers, confidential employees,
guards or security attendants, secretaries to officers and de-
partment heads, stenographers (Office Services), stenog-
raphers (Special Agent), Security Assistant, Clerks in the
Human Resources Department, Communications Consultants,
Coin Telephone Promotion Consultants and Telephone Plan-
ning Consultants.
I find the unit allegation set forth in the Acting General Coun-
sel’s complaint amounts to an accurate summary of the unit
described in the parties’ most recent collective-bargaining
agreement. (GC Exh. 2, pp 1-2.) For that reason, I find the unit
alleged by the Acting General Counsel to be an appropriate unit
and further find that the Union is the exclusive representative of
the employees in that unit within the meaning of Section 9(a) of
the Act.
By its terms, the parties’ most recent collective-bargaining
agreement (agreement) covering the unit was effective Septem-
ber 13, 2008, through September 12, 2011.3 Prior to the end of
the agreement, the parties commenced negotiations for a new
agreement. During these negotiations for a successor agree-
ment, the parties agreed to extend the term of the 2008–2011
agreement five times. The fifth extension ran through October
24. (GC Exh. 3.)
Under provisions of the agreement, the Company provided
the unit employees with medical, dental and life insurance. The
medical coverage included health, drug, and vision benefits.
Typically, a newly hired employee attends an in-house benefits
orientation during the first week of employment. Following
that, the employee may select and register for specific benefit
plans online from any location by using the “PlanSource” en-
rollment software provided by one of the Company’s vendors.
The PlanSource program codes the unit employees as “Union”
when they register for their benefit plans.
The contractual provisions for the medical coverage are set
forth in article 28 of the agreement. In relevant part it provides:
28.1 The Company will make available a medical plan to em-
ployees covered by this Agreement. The selection of the car-
rier and the administration of the medical plan will rest with
the Company provided the level and quality of the benefits
remain the same. The benefits provided by this plan will not
be discontinued or amended without the agreement of the
Company and Union. The following classes of employees
may voluntarily enroll under and become members of any of
the medical plans provided.
1. Regular employee
2. Probationary employee
3. Temporary employee who has completed six
months of continuous full-time service provided tenure of
employment is extended by at least six (6) months at the
time the employee completed six (6) months of service.
Article 28 provides that the Company will pay the entire plan

3 The agreement includes basic contract terms plus a series of exhib-
its and memoranda of agreements covering miscellaneous topics.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
premium for regular full-time employees and their dependents.
Temporary employees selecting coverage pay half of the pre-
mium for their own coverage plus the full amount of premium
for dependent coverage. The remainder of article 28 addresses
various options and special situations not pertinent here appli-
cable to employees whose coverage is cancelled by the insur-
ance provider, newly married employees, pensioners, depend-
ents of deceased pensioners, and former employees. The final
provision in article 28 provides:
28.12 Effective January 1, 2003, coverage for employees and
their dependents will end thirty (30) days after termination of
employment. Coverage for dependents will end on the date
they become ineligible for coverage. Employees and their le-
gal dependents may have an opportunity to continue to partic-
ipate in the Plan in accordance with the Consolidated Omni-
bus Budget Reconciliation Act (COBRA).
Pursuant to these provisions, the Company makes two medi-
cal plans available for selection by its employees. One, provid-
ed by the Hawaii Medical Services Association, is a Blue
Cross–Blue Shield plan. The other is a Kaiser Permanente plan.
Article 38 of the agreement sets forth the parties bargain
with respect to dental insurance. It provides:
DENTAL PLAN
39.1 The Company will make available a Dental Plan to em-
ployees covered by this Agreement. The selection of the car-
rier and the administration of the Dental Insurance Plan will
rest with the Company provided the level and quality of the
benefit remains the same. The benefits provided by this plan
will not be discontinued or amended without the agreement of
the Company and the Union.
39.2 For all regular full-time employees and their de-
pendents, the Company will pay all of the premium equiv-
alent for the Company Dental Plan.
39.3 Effective January 1, 2003, coverage for employ-
ees and their dependents will end thirty (30) days after
termination of employment. Coverage for dependents will
end on the date they become ineligible for coverage. Em-
ployees and their legal dependents may have an opportuni-
ty to continue to participate in the Company's dental plan
in accordance with the Consolidated Omnibus Budget
Reconciliation Act (COBRA).
The Company also makes two dental plans available for se-
lection by the unit employees. One plan is provided by the Ha-
waii Dental Service and the other by MetLife. In anticipation of
a potential work stoppage during the negotiations for a new
agreement, the Company arranged through exchanges with
MetLife agents in July and August 2011 to modify that dental
plan’s rider to provide, in effect, that an employee’s dental
benefits would end immediately if the employee’s active work
ceased due to a strike. (GC Exhs. 5 and 17.) In other situations,
the benefit continues for a period of 30 days following the end
of the employee’s employment. This changed rider became
effective September 1.
Admittedly, the Company took this action to obtain a change
in the dental plan rider without prior notice to the Union or any
offer to bargain about the change to the rider. In doing so, the
Company relied on a memorandum of agreement with the Un-
ion contained in the agreement that provides:
The [Dental] Plan will be administered solely in accordance
with its provisions and no matter concerning the Plan or any
difference arising thereunder shall be subject to the grievance
or arbitration procedure of the Collective Bargaining Agree-
ment. The selection of the Plan Administrator, the administra-
tion of the Plan and all the terms and conditions relating there-
to, and the resolution of any disputes involving the terms,
conditions, interpretation, administration, or benefits payable
shall be determined by and at the sole discretion of the Com-
pany.
(GC Exh. 2, p. 75, par. 6.)
Absent some unusual situation, once a unit employee elects
coverage under the medical and dental benefit plans provided
for in the agreement, that coverage continues for up to 30 days
following the termination of the worker’s employment. (Tr.
43.)
Article 38 of the agreement sets forth the provision providing
for a group life insurance benefit. It provides:
GROUP LIFE INSURANCE PLAN
38.1 The Company will make available a Life Insurance Plan
to employees covered by this Agreement. The selection of the
carrier and the administration of the Life Insurance Plan will
rest with the Company provided the level and quality of the
benefit remains the same. The benefits provided by the plan
will not be discontinued or amended without the agreement of
the Company and Union. Details of the plan will be described
in a pamphlet which will be distributed to all employees.
38.2 Effective January 1, 2003, coverage will end thir-
ty (30) days after termination of employment.
The Company pays the premium for a basic level of coverage.
Employees may elect higher levels of coverage but must pay
the premium charged for the added coverage.
The Company pays the premiums due for its employees’
medical and dental benefits on the 15 of the month for the
month involved. Hence, the premiums for coverage during the
month of November 2011 would have been paid by the Com-
pany on November 15, 2011.
Following the expiration of the fifth extension of the agree-
ment on October 25, the Union informally told the Company
that it was considering a work stoppage. As early as October
30, Sheri Braunthal, the Company’s senior benefits manager,
notified the agents of the fringe benefit providers about the
possibility of a strike. In an email to the providers’ agents she
said: “As of now we are planning for a walkout at any time
which means we will be stopping benefits for our active Union
employees (approx. 700 employees) immediately once a strike
is called (benefits will continue for Union retirees).” She sug-
gested that the provider agents “revisit the plans that we had
previously discussed with you on canceling benefits and
COBRA enrollment/billing” and informed them that the Com-
pany would prepare COBRA notices internally for distribution
no later than the day following the date the strike begins. (GC
Exh. 9, p. 2.)
HAWAIIAN TELCOM, INC. 23
In a letter dated November 10, the Union notified the Com-
pany that it would “engage in strike, picketing and/or concerted
activity” at 10:30 a.m. that day. The letter further advised that
the striking employees would return to work on November 11
at 8 p.m. (GC Exh. 8.) In fact, the work stoppage announced by
this letter began and ended at the times set out in the Union’s
notice to the Company.
Braunthal emailed the providers’ agents at 10:31 a.m. on
November 10 stating that the Company had received notice that
the work stoppage would begin at 10:30 a.m. that day. She
went on to state: “This email is official notice that we are be-
ginning our process for canceling all benefits for striking union
employees effective immediately.” (GC Exh. 9, p. 1, emphasis
in the original.) She instructed Erika Munk, the PlanSource
agent, to “begin the process for stopping all benefits for em-
ployees in the PlanSource system that have a ‘Union’ status
code.” (Id., p. 2.) After sending these email notices, Braunthal
spoke personally to Munk and the MetLife agent to inform
them that her cancellation notice applied only to the dental plan
and not to the life insurance plan. All of the benefit providers
except Kaiser cancelled benefits for striking employees as in-
structed.4
Later that day, the Company mailed COBRA packets to each
of the strikers.5 This packet consisted of a COBRA rights notice
showing the benefits that would be discontinued, the employ-
ee’s eligibility to continue coverage individually and a COBRA
application form. The COBRA packets were not sent to unit
employees who continued to work, who were on an approved
leave under the Family and Medical Leave Act or an approved
military leave. According to Braunthal, the strikers would have
become eligible to exercise their COBRA rights on November
11.
When the striking employees began returning for their as-
signed shifts at 8 p.m. on Friday, November 11, Braunthal noti-
fied the carriers to re-enroll those employees in the benefit
plans they had previously been enrolled. Because of the inter-
vening weekend, the re-enrollment process did not get under-
way until Monday, November 14. As far as Braunthal knew,
the re-enrollment process was completed by November 15. As
the Company made arrangements for the benefits to be restored
retroactive to November 11 when the work stoppage ended, the
unit employees whose benefits had been cancelled were again
able to submit claims, including claims for expenses incurred
on November 10 and 11. (Tr. 74, 85)
Near midday on November 17, Union Financial Secretary—
Business Manager Scot Long sent an email to the Union’s ne-

4 No explanation has been provided for Kaiser’s failure to cancel
benefits as requested.
5 Lisa Parran, who was on an approved union leave when the work
stoppage occurred, said that COBRA packet she received was post-
marked November 10 but she recalled receiving it at her home in the
evening of that very day. Company Vice President and General Coun-
sel John Komeiji testified that he gave the direction to send the packets
around 11 a.m. on November 10. Despite Parran’s recollection concern-
ing receipt, I have no reason to discount the knowledgeable assertions
by Komeiji and Braunthal that the COBRA packets were not prepared
and mailed until sometime time after the work stoppage commenced on
November 10.
gotiating committee that was purportedly blind copied to the
Union’s membership. In it Long said that the negotiating com-
mittee was “validating information on those that have crossed
[the November 10-11 picket line] for the ‘wall of shame.’” The
email requests that those having “proof of a scab” contact “us,”
an unmistakable reference to the Union’s officials or a member
of the negotiating committee. The email also cautions confron-
tations and states that the recipients should “not engage with
members who crossed, be professional but, if at all possible
avoid conversation.” The email then concludes with a report on
the status of the negotiations with the Company.
Company Vice President and General Counsel Komeiji is-
sued a “Special Alert 2011-62” to all employees in response to
the Union’s “wall of shame” email. In his special alert, Komeiji
notes that the Union’s negotiating committee has circulated an
email to “employees/union members that talks about the Un-
ion’s ‘hall of shame’ and urges employees to report each other
in retaliation for reporting to work during the Union’s stop-
page.” Komeiji’s alert calls attention to the provisions in the
Company’s Code of Business Conduct concerning harassment
and intimidation as well as its policy on workplace violence.
The former provides:
[Respondent] strives to provide a work environment free of
sexual or any other kind of harassment whether committed by
or against a supervisor, co-worker, customer, vendor or visitor
based on a person's race, color, religion, national origin, citi-
zenship, ancestry, age, disability, marital status, sexual orien-
tation, arrest and court record, military/veteran's status, or any
other classification protected by federal or state law. Employ-
ees shall not engage in any behavior that ridicules, belittles,
intimidates, threatens or otherwise demeans co-workers or
others associated with the Company. [Respondent] will not
tolerate harassment in any form—conduct, speech, written
notes, photos cartoon or electronic mail.
The latter provides:
[Respondent] strictly prohibits any violent, threatening or
abusive behavior, including, but not limited to: brandishing
weapons, physically harming another person or property, har-
assing, intimidating, coercing, threatening harm, or attempting
or desiring to engage in any such conduct, or the use of pro-
fane, vulgar or offensive language.
Following his reference to these two Company policies Ko-
meiji’s Special Alert 2011-62 goes on to state:
Unlawful employee conduct that is intended to intimidate,
threaten or demean a fellow employee or others associated
with the Company is strictly prohibited under both the Com-
pany's Code of Business Conduct and the Workplace Vio-
lence guidelines. Facilitating or assisting with unlawful intim-
idation or threats toward fellow employees - even if planned
to be carried out by others- will also not be tolerated. The
threats, bullying tactics, and other hostile treatment that have
occurred, directed toward a co-worker based on his or her de-
cision to exercise their legally protected right to report to work
during a strike, are forms of prohibited threats and harass-
ment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
Violations of the Code of Business Conduct and/or the Com-
pany's guideline on Workplace Violence are subject to disci-
pline, up to and including termination of employment.
Employees are required to immediately report any unusual or
suspicious activity or incident of violent, threatening or abu-
sive behavior to any supervisor, Corporate Security or the
Human Resources Department. Threats or assaults must im-
mediately be reported to Corporate Security at 643-7111 (on
all islands) or local law enforcement at 911.
(Emphasis in the original.)
B. The Complaint Allegations
Central to this case is the complaint allegation in paragraph 9
which alleges that Respondent violated Section 8(a)(1), (3), and
(5) by cancelling the employees’ health, drug, vision and dental
insurance on November 10 because they engaged in a strike on
that day and the next. The complaint also alleges that Respond-
ent violated Section 8(a)(1), (3), and (5) by changing the em-
ployees dental insurance policy on September 1 to eliminate
dental benefits for employees whose employment ends due to a
strike.
The complaint contains four independent 8(a)(1) allegations.
Initially, the complaint alleges that Respondent's harassment
and intimidation policy, as written, constitutes a restraint on
Section 7 activities. Second, the complaint alleges, in effect,
that Special-Alert 2011-62 is unlawful because it applies Re-
spondent’s harassment and intimidation policy and its work-
place violence policy to restrict employee communication with
the Union. Third, the complaint alleges that the notice to em-
ployees who engaged in the work stoppage that their life insur-
ance had been canceled is unlawful. And fourth, the complaint
alleges the notice to employees who engaged in the work stop-
page that their medical and dental benefits had been cancelled
is unlawful. These allegations are set forth in complaint para-
graphs 7 and 8
Analysis
I. RESPONDENT VIOLATED SECTION 8(A)(1), (3) AND (5) OF THE ACT
BY CANCELLING ACCRUED BENEFITS OF STRIKING EMPLOYEES
A. Background Law
Section 8 of the Act declares that “it shall be an unfair labor
practice for an employer . . . by discrimination in regard to hire
or tenure of employment or any term or condition of employ-
ment to encourage or discourage membership in any labor or-
ganization.” As the Supreme Court explained, the words “dis-
crimination” and “to . . . discourage” import a requirement that
the employer be motivated by an antiunion purpose. NLRB v.
Great Dane Trailers, Inc., 388 U.S. 26, 33 (1967). Thus, ordi-
narily, the General Counsel must prove an illicit motive to es-
tablish a violation. Id. In the same opinion, however, the Court
recognized that certain employer conduct is so “inherently de-
structive” of employee rights that it “bears its own indicia of
intent.” Id. Cases in this category do not require a demonstra-
tion of intent. Id. Rather, it is the employer who has the burden
of coming forward with proof of a legitimate business justifica-
tion for its conduct. Id. That said, even if the employer presents
a business justification, the Board may balance the proffered
business justification against the impact on employee rights in
order to find a violation. Id.
Where an employer wrongly withholds health and welfare
benefits from striking employees, its conduct is considered
“inherently destructive” per Great Dane. E.g., Texaco, Inc., 285
NLRB 241, 245–246 (1987). Under the framework outlined in
Texaco, the General Counsel bears the initial, prima facie bur-
den of establishing some adverse effect on employee rights. Id.
at 245. “The General Counsel can meet this burden by showing
that (1) the benefit was accrued and (2) the benefit was with-
held on the apparent basis of a strike.” Id. The Board laid em-
phasis on the accrual requirement, specifying that “accrued”
means “due and payable on the date on which the employer
denied [it].” Id. (alteration in original) (quoting Emerson Elec.
Co. v. NLRB, 650 F.2d 463, 469 (3d Cir. 1981), cert. denied
455 U.S. 939 (1982)). Absent proof of accrual, no violation can
be found without running afoul of the well-worn principle that
“an employer is not required to finance a strike against itself.”
Id. (citing General Electric Co., 80 NLRB 510 (1948)). The
accrual question, the Board offered, would “most often turn on
interpretation of the relevant collective-bargaining agreement,
benefit plan, or past practice.” Id. at 246.
If the General Counsel meets its prima facie burden, then, as
Great Dane teaches, the burden shifts to the employer to come
forward with a legitimate and substantial business justification
for suspending benefits. Id. Texaco identified two ways in
which an employer could meet this burden. Id. First, it can
demonstrate that “a collective-bargaining representative has
clearly and unmistakably waived its employees’ statutory right
to be free of such discrimination or coercion.” Id. This waiver
must be explicit and cannot be inferred. Id. Second, it can
demonstrate that it reasonably relied on a nondiscriminatory
contract interpretation that is “‘reasonable and arguably cor-
rect.’” Id. (quoting Vesuvius Crucible Co. v. NLRB, 668 F.2d
162, 168 (3d Cir. 1981)). That said, even if the employer proves
a legitimate and substantial business justification, the inquiry is
not yet ended. Pursuant to Great Dane, the Board may still find
a violation “if the conduct is demonstrated to be ‘inherently
destructive’ of employee rights or motivated by antiunion in-
tent. Id.
B. The General Counsel’s Case
On November 10, Respondent asked its providers to cancel
benefits for its striking employees, and every provider, with the
exception of Kaiser, complied. On its face, this appears to
demonstrate the first element of the General Counsel’s case,
viz., that a benefit was withheld on the basis of a strike. The
complication underneath the surface is that, once the strike
ended, benefits were retroactively restored at the company’s
request. By November 15, employees were once again able to
submit insurance claims, including claims for bills incurred on
November 10 and 11 (the dates of the strike). On this basis,
Respondent argues that since no employee suffered an actual
loss of benefit, no violation will lie from its actions. It quotes
the following language from Texaco in support of its position:
Even assuming that the medical plan was an accrued benefit,
it does not appear that disabled or striking employees suffered
any actual deprivation of that benefit. By agreement of the
HAWAIIAN TELCOM, INC. 25
Union and the Respondent, the employees’ insurance cover-
age remained intact, their premium contribution rates re-
mained the same, and for two months of the strike the Re-
spondent’s premium contributions were paid from a surplus
account created in large part from unused portions of the Re-
spondent’s prior contributions.
Id. at 247. Given these facts, the Board refused to find a viola-
tion. Id.
Whether or not Respondent is correct that no employee suf-
fered out-of-pocket costs as a result of the cancellation, its ar-
gument miscarries. The reason is that the facts in Texaco are
distinguishable from those in the present matter. In Texaco,
there was never an interlude in coverage under the medical
plan, not even a retroactively-filled gap. Id. The surplus ac-
count referenced in the quoted text guaranteed that premiums
would be paid and coverage would continue. Id. The striking
employees of Respondent faced a different situation. As their
employer requested, their coverage, except for life insurance,
did in fact cease during the tenure of the strike. The fact that it
was eventually restored does not change the reality that it was,
for a period of time, taken away from them.
The second element of the General Counsel’s prima facie
case (accrual) is established by language in the expired agree-
ment that unqualifiedly entitles employees to receive benefits
for 30 days after the conclusion of their employment. The por-
tions of the agreement dealing with medical, dental,6 and life7
insurance benefits all contain the same relevant text. Each in-
cludes a guarantee that “coverage for employees and their de-
pendents will end thirty (30) days after termination of employ-
ment.” It is also promised that “[t]he benefits provided by this
plan will not be discontinued or amended without the agree-
ment of the Company and Union.”
Read together, these two clauses guarantee any employee
that the company will provide benefits until either (1) the Un-
ion and Company agree to a modification or (2) the employee
ceases working for the employer and 30 days have passed.
These are the only two conditions under which Respondent
could refuse to furnish benefits—in other words, the only two
conditions under which benefits would not be due and owing.
An employee has already earned this entitlement by the end of
his first day on the job. Cf. Gulf & W. Mfg. Co., 286 NLRB
1122, 1123 (1987) (finding accrual after explaining that “once
an employee meets the eligibility requirement of subsection a,
his entitlement to health insurance ‘without cost’ continues
until one of the conditions for termination set out in subsection
b is met.”). As the General Counsel expresses it, “A unit em-
ployee’s eligibility for these benefits arises out of the existence

6 The plan documents (not the agreement) for the dental plan con-
tain an exception to the 30-day principle for striking employees. This
was a recent alteration to the plan, one that I find to be unlawful in a
later section of this decision. Thus, reliance upon it does not save the
cancellation of the dental benefits from illegality.
7 Although employees were told that it was being halted, life insur-
ance was never actually cancelled. The ramifications of the Respondent
informing employees that life insurance coverage would be stopped are
discussed in more detail in the section of this decision addressing the
COBRA notice to employees.
of the employment relationship itself and is not dependent on
the continued performance of services.” (GC Br. 16.) Had the
employees continued to receive benefits during the work stop-
page, the company would not have been forced to finance a
strike but only to pay what it owes to any employee who leaves
work for any reason.
The Respondent argues that the health and welfare plans8 at
issue are governed by ERISA9 and that principles of ERISA
interpretation establish that benefits under those plans had not
accrued to striking employees. (R. Br. 40.) Without addressing
the issue of ERISA coverage or the relevance of ERISA princi-
ples to the interpretation of collective-bargaining agreements, I
am convinced that Respondent’s argument cannot succeed.
Relying on Geiger v. Hartford Life Insurance Co., 348
F.Supp. 2d 1097, 1108 (ED Cal 2004), Respondent argues
against accrual:
Under ERISA, a welfare benefit accrues when it is paid for.
As was recently stated by the United States District Court for
the District of Northern California, an employee’s rights to a
welfare benefit plan under ERISA “do not accrue prospective-
ly. [The beneficiary does] not, upon initial determination of
eligibility, accrue a right to benefits indefinitely; instead his
right to those benefits accrues as the payments become due.”
Id. (alteration in the original) (quoting Hackett v. Xerox, 315
F.3d 771, 774 (7th Cir. 2003)). The quoted language is mislead-
ing, however, as it deals with a different notion of accrual than
that at stake in this litigation. Geiger dealt with changes to the
provisions of an ERISA plan that would affect benefits to be
paid thereafter. Geiger, 348 F.Supp. 2d at 1106–1108. Specifi-
cally, the Geiger plaintiff was arguing that his benefits had
vested under the terms of an earlier iteration of the plan and
could not be modified by subsequent changes to the plan. Id. at
1108. ERISA prevents such modifications where the benefits
are vested. Id. In the language cited by Respondent, the court
was simply explaining why the plaintiff’s right to benefits had
not accrued/vested within the meaning of this area of ERISA
law. The issue before the court, whether ERISA barred a plan
modification, is distinct from the question of an employer’s
obligations under a given plan at a given time under the
Board’s definition of accrual.
C. The Respondent’s Business Justification Argument
In rebuttal, Respondent claims that its actions were counte-
nanced by a reasonable interpretation of the agreement and
relevant plan documents. It argues first from the silence of the
agreement on the continuation of benefits during a strike.10 In
this regard, it points out that under Board law, striking workers
are still considered employees. As such, their employment has
not “terminated” and they do not qualify under the 30-day
guarantee. It further points to clauses that grant the Respondent
“Administrator” status and seemingly broad discretion in

8 That is to say, not the collective-bargaining agreement, but the
plan documents.
9 Employee Retirement Income Security Act, 29 U.S.C. §1002.
10 As previously mentioned, the dental plan as modified by Re-
spondent did explicitly address strikes. Respondent’s arguments here
relate to the health and life insurance plans.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
manging the plan. For instance, the agreement states, “The
selection of the carrier and the administration of the Dental
Insurance Plan will rest with the Company provided that the
level and quality of benefits remains the same.” It goes on to
declare:
The Plan will be administered solely in accordance with its
provisions and no matter concerning the Plan or any differ-
ence arising thereunder shall be subject to the grievance or ar-
bitration procedure of the Collective Bargaining Agreement.
The selection of the Plan Administrator, the administration of
the Plan and all the terms and conditions relating thereto, and
the resolution of any disputes involving the terms, conditions,
interpretation, administration or benefits payable shall be de-
termined by and at the sole discretion of the Company.
(Memorandum of Agreement re Dental Plan (GC Exh. 2, p.
75).) The dental plan documents themselves bestow additional
interpretive authority:
In carrying out their respective responsibilities under the Plan,
the Plan Administrator and other Plan fiduciaries shall have
discretionary authority to interpret the terms of the Plan and to
determine eligibility for and entitlement to Plan benefits in ac-
cordance with the terms of the plan. Any interpretation or de-
termination made pursuant to such discretionary authority
shall be given full force and effect, unless it can be shown that
the interpretation was arbitrary and capricious.
(Dental Expense Benefits, GC Exh. 16, unnumbered page con-
tained in “Additional Information.”)
Respondent argues that these broad grants of discretion ren-
dered it at least reasonable to believe that it possessed the con-
tractual authority to cancel benefits for the striking workers.
The reasonableness of this interpretation, it contends, was fur-
ther supported by Board law and ERISA principles. With re-
gard to Board law, Respondent cites the adage that an employer
is not required to finance a strike against itself. It claims that
the existence of this well-known background principle rendered
it reasonable to interpret the contract as allowing cancellation.
It further argues that the principle stands as an obstacle to the
conclusion urged by the General Counsel. In its brief, Respond-
ent states:
It cannot be that the Act will impose, as a default term, an ob-
ligation to provide welfare benefits to striking workers where
a contract is silent as to that issue.
To hold otherwise would require an employer in Hawaiian
Telcom’s position to provide welfare benefits to even long-
term strikers because such strikers maintain their status as
employees until they have “obtained ‘other regular and sub-
stantially equivalent employment.’” As a consequence, all
employers wishing to exercise their statutory right not to fi-
nance a strike against themselves would have either (1) to re-
fuse to allow benefits to extend past a bargaining unit em-
ployee’s last work day; or (2) to bargain for an explicit carve
out for striking workers. This would turn the statute on its
head because, instead of requiring a union to bargain for the
right of having benefits provided to striking workers, the law
would force an employer to bargain to avoid having to pay for
the benefits of striking workers.
(R. Br. 39 (citations omitted).) In regards to ERISA, the Re-
spondent asserts that, “where the administrator of an ERISA
plan has retained the discretion to interpret the plan, the admin-
istrator’s exercise of that discretion will not be set aside unless
the administrator’s exercise of that discretion is arbitrary or
capricious.” (R. Br. 41 citing Salomaa v. Honda Long Term
Disability Plan, 642 F.3d 666, 673 (9th Cir. 2011).)
I reject Respondent’s business justification argument for
several reasons. First, although the agreement does not express-
ly address the subject of benefits during a strike, its logic en-
compasses them. Even if the Respondent is correct and the
striking employees remained employees whose employment
did not “terminate” in the relevant sense, there are still only two
conditions under which benefits can be halted. If the employees
were still employees, the agreement does not contemplate a
scenario (apart from agreement by Respondent and the Union)
under which their benefits could be cancelled.
Second, while the text of the agreement and plan documents
do grant the Respondent substantial discretion, the agreement
also places strict boundaries on that authority. As previously
described, the agreement prohibits plan benefits from being
“discontinued or amended without the agreement of the Com-
pany and the Union” and rigidly sets a 30-day timetable for
halting benefits to those who cease their employment. Thus,
while the agreement and plan documents leave the minutiae of
a large insurance program to Respondent’s judgment, it gives
the Respondent no discretion in the decision whether or not to
furnish the benefits in the first place.
Third, Respondent’s ERISA argument fails for similar rea-
sons. While I again take no position on the applicability of
ERISA principles, I find that, even assuming their relevance,
the law cited by Respondent does not establish its point. The
case Respondent references does confer great interpretive au-
thority on the administrator of an ERISA plan. However, its
own language reveals the limits on that authority, which runs
only so far as “the administrator of an ERISA plan has retained
the discretion to interpret the plan.” In the present case, the
agreement restricts Respondent’s authority to administrative
details, denying it the power to cancel benefits outright without
the agreement of the Union.
Fourth, Respondent’s argument from Board law is overstat-
ed. While it may be reasonable to consider background princi-
ples of labor law in construing the provisions of collective-
bargaining agreements, the principle cited by Respondent in
support of its interpretation—i.e., that an employer is not re-
quired to finance a strike—in this context unacceptably begs
the question. In the absence of express language, the question
of whether benefits are due and owing under the terms of a
collective-bargaining agreement cannot be decided so easily.
Otherwise, every case involving ambiguous language would
resolve in favor of the employer who represents that it relied on
the principle to read the contract to allow it to cancel benefits.
This result would defeat in application a further Board princi-
ple, that of Texaco, which distinguishes between paying ac-
crued benefits and the financing of a strike. In other words, the
principle would swallow the exception under the guise of a
HAWAIIAN TELCOM, INC. 27
reasonable contract interpretation.
Respondent’s related argument that a ruling in favor of the
General Counsel would turn the strike-finance principle on its
head is likewise exaggerated. Refusing to accept Respondent’s
proposed interpretation of the contract as reasonable would not
establish a duty to finance a strike as “a default term.” At most,
it makes it a default term where, as here, the agreement com-
bines a rigid guarantee of continued benefits with a broad
promise to continue paying those benefits for a period of time
after employment ends. It is this combination of terms that has
placed the Respondent in a position where it cannot cancel
benefits for persons who have gone on strike. If the agreement
instead had only promised 30 days of continued support to
employees who were laid-off, retired, or terminated for cause,
the Respondent’s legal position would be different. Moreover,
even under the agreement as it stands, there is a 30-day limita-
tion to the time Respondent must continue to furnish benefits
after an employee has ceased working. That this contract guar-
antee may also require the inclusion of employees who ceased
working concertedly is but the consequence of the Texaco deci-
sion.
Fifth and finally, Respondent ignores a prominent limitation
that Texaco established on the invocation of a reasonable con-
tract interpretation by an employer to defend its conduct.
Namely, the contract interpretation relied upon must not only
be reasonable, but it must be nondiscriminatory as well. Tex-
aco, 285 NLRB at 246. Rather than subsume striking employ-
ees into a broader category, the Respondent’s interpretation
simply assumes that the agreement does not contemplate the
continuation of benefits for strikers. An interpretation of the
contract that singles out striking workers for worse treatment
than, for example, employees who leave their tasks inde-
pendently is not a nondiscriminatory interpretation.
D. Employees on Leave
In its brief, the General Counsel argues that the cancellation
of benefits for employees on union leave also violated Section
8(a)(3) of the Act. The Respondent objects to the General
Counsel’s position on the grounds that these employees were
not mentioned in the complaint. However, as Respondent
points out, paragraph 8 of the complaint identifies the wronged
employees as “certain employees of Respondent” who “ceased
work concertedly and engaged in a strike.” While it could be
fairly argued that employees on leave did not “cease work,”
Respondent itself admits they engaged in a strike. It writes in
its brief, “Here, it is undisputed that each of the employees on
union leave joined the strike.” (R. Br. 35), and it cites the testi-
mony of various on-leave employees to support its claim.
Since the complaint at least arguably encompasses the em-
ployees on leave, the matter was plainly put in issue at the hear-
ing. Moreover, the matter is predominantly a legal and textual
question identical to that regarding the mass of employees who
went on strike. Thus, I find it appropriate to consider whether a
violation was committed against the employees on leave as
well.
In article 32 of the agreement, the Respondent agrees to cov-
er employees on union leave under the medical and dental
plans. The agreement states that they are to be treated in ac-
cordance with the sections of the agreement (arts. 28 and 39)
governing the plans for active employees. As a result, the case
for finding a violation with respect to employees on leave is
even stronger than that for the larger group. Not only are these
employees the beneficiaries of the same contractual guarantees
discussed above in relation to ordinary employees, but they
further enjoy the benefit of article 32’s promise of benefits
while on leave. As such, the argument for accrual of benefits is
even stronger, and the Respondent’s proffered contract inter-
pretation less powerful and pertinent. I thus find that Respond-
ent violated Section 8(a)(3) with respect to the employees on
leave as well as those on active duty. Thus, based on the above
analysis, I find that Respondent violated Section 8(a)(1) and (3)
of the Act by cancelling health, drug, vision, and dental insur-
ance of employees who participated in the November 10-11
work stoppage.
E. The 8(a)(1) and (5) Allegation
As I have previously found, the agreement entitled the strik-
ing workers to continued benefits. By canceling them, Re-
spondent breached the terms of the agreement, an act tanta-
mount to a unilateral modification forbidden by Section 8(d).
See Nick Robilotto, Inc., 292 NLRB 1279, 1279 (1989) (“It is
well established that Section 8(a)(1) and (5) and Section 8(d) of
the Act prohibit an employer that is a party to an existing col-
lective-bargaining agreement from modifying the terms and
conditions of employment established by that agreement with-
out obtaining the consent of the union.”).
For its part, Respondent cites Trading Port, Inc., 219 NLRB
298 (1975). There, the Board declared, “[T]he nonpayment of
benefits to strikers during their period of striking is not a matter
about which a company has an obligation to bargain.” Trading
Port, 219 NLRB at 299. The quoted principle, however, is too
unequivocal to capture the true state of the law. While a sensi-
ble extension of the maxim that an employer need not finance a
strike against itself, it fails to account for the exception to that
rule for accrued benefits. Indeed, in a case where the General
Counsel established that an employer violated Section 8(a)(3)
by withholding accrued vacation pay to striking workers, the
Board also found the employer had violated Section 8(a)(5) by
deviating from the underlying contractual guarantee. Glover
Bottled Gas Corp., 292 NLRB 873, 882 (1989), enfd. 905 F.2d
681 (2d Cir. 1990). Thus, I find that Respondent violated Sec-
tion 8(a)(1) and (5) by failing to adhere to the terms of the
agreement.
II. RESPONDENT VIOLATED SECTION 8(A)(1), (3), AND (5) OF THE
ACT BY SPECIFICALLY EXCLUDING STRIKING WORKERS FROM THE
COVERAGE OF ITS DENTAL PLAN
Without consulting the Union, Respondent modified the
terms of its dental plan to provide that “if your employment
ends due to strike, all of your benefits will end the date your
employment ends.” (GC Exh. 17.) Otherwise, the plan contin-
ued to assure employees that “[a]ll of your benefits will end 30
days following the date your employment ends.” Id.
According to Section 8, “[I]t shall be an unfair labor practice
for an employer . . . by discrimination in regard to hire or ten-
ure of employment or any term or condition of employment to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
encourage or discourage membership in any labor organiza-
tion.” Respondent’s alteration to the dental plan baldly discrim-
inates between employees who leave their posts as union sup-
porters, i.e., those who strike, and those who abandon their
tasks nonconcertedly as individuals. This demarcation is inher-
ently destructive conduct within the meaning of Great Dane.
As the Board has said, “Inherently destructive conduct has been
described as action which has ‘far reaching effects which would
hinder future bargaining, or . . . discriminates solely upon the
basis of participation in strikes or union activity . . . .’” Mont-
fort of Colorado, 298 NLRB 73, 78 fn. 21 (1990), enfd. in part
965 F.2d 1538 (10th Cir. 1992) (alteration in the original)
(quoting Portland Willamette Co. v. NLRB, 534 F.2d 1331,
1334 (9th Cir. 1976)).
Respondent, in its brief, does not specifically address the
change to the dental plan vis-à-vis the 8(a)(3) allegations. It
does, however, attempt to justify the change, as an act within its
authority under the agreement and plan documents, in the con-
text of defending the 8(a)(5) allegations. Therefore, in the ab-
sence of a substantial business justification, I find that Re-
spondent violated Section 8(a)(1) and (3) of the Act by modify-
ing the terms of its dental plan to specially exclude striking
workers.
Turning to the 8(a)(1) and (5) allegation regarding change in
the dental plan, Section 8(d) of the Act forbids a party to a col-
lective-bargaining agreement from modifying the agreement
while it remains in effect without offering to bargain with the
opposite party. The Board distinguishes those cases in which a
unilateral modification of the collective-bargaining agreement
is alleged from those in which mere failure to bargain is assert-
ed. Bath Iron Works Corp., 345 NLRB 499, 501 (2005), affd.
sub nom. Bath Marine Draftsmen’s Assn. v. NLRB, 475 F.3d 14
(1st Cir. 2007). “In the ‘contract modification’ case, the Gen-
eral Counsel must show a contractual provision, and that the
employer has modified the provision.” Id. In short, “The allega-
tion is a failure to adhere to the contract.” Id. Hence, an em-
ployer can defend itself by showing that the alleged “modifica-
tion” did not run afoul of the contract’s terms. In the Board’s
words, “Where an employer has a ‘sound arguable basis’ for its
interpretation of a contract and is not ‘motivated by union ani-
mus or . . . acting in bad faith,’ the Board ordinarily will not
find a violation.” Id. at 502 (alteration in original) (quoting
NCR Corp., 271 NLRB 1212, 1213 (1984)).
Respondent defends its change to the language of the dental
plan based on what it asserts is a sound arguable basis for inter-
preting the contract to be consistent with its actions. It cites a
memorandum of agreement between it and the Union that con-
fers it with discretionary authority in administering the plan:
This Plan will be administered solely in accordance with its
provisions and no matter concerning the Plan or any differ-
ence arising thereunder shall be subject to the grievance or ar-
bitration procedure of the Collective Bargaining Agreement.
The selection of the Plan Administrator, the administration of
the Plan and all the terms and conditions relating thereto, and
the resolution of any disputes involving the terms, conditions,
interpretation, administration, or benefits payable shall be de-
termined by and at the sole discretion of the company.
(GC Exh. 2.) It further relies on language in the plan documents
vesting the Administrator with interpretive authority:
In carrying out their respective responsibilities under the Plan,
the Plan Administrator and other Plan fiduciaries shall have
discretionary authority to interpret the terms of the plan and to
determine eligibility and entitlement to Plan benefits in ac-
cordance with the terms of the Plan. Any interpretation or de-
termination made pursuant to such discretionary authority
shall be given full force and effect, unless it can be shown that
the interpretation was arbitrary and capricious.
(GC Exh. 16.) Respondent argues that these broad assignments
of authority render it at least reasonable to believe that the con-
tract permitted it to make the changes it made to the terms of
the dental plan.
In order for Respondent to succeed with this argument, it
must prove that the Union clearly and unmistakably waived its
right to bargain about the existence of dental benefits for strik-
ers. Clearly, the Union did not have any opportunity to do so
although the Plan explicitly reserves that right to the Union.
The Plan states, “The benefits provided by this plan will not be
discontinued or amended without the agreement of the compa-
ny and the union.” The parties agree, however, that discontinu-
ance of dental benefits for strikers was not the subject of bar-
gaining.
In disagreement with Respondent, I find that there is not a
sound arguable basis for reading the contract to license—or
even to leave open the possibility for11—changing the terms of
dental plan to exclude striking workers. The reason is that a
change to the language of the plan itself so as to deny benefits
outright to a group of employees exceeds the administrative
authority bestowed on Respondent and invades the substantive
guarantee of the agreement. On brief, Respondent itself only
argues that it was allowed to make “non-substantive changes,”
but a categorical denial of benefits to persons previously eligi-
ble12 for them crosses out of the realm of ministerial detail and
into the domain of substance.
Respondent cites Bath Iron Works as a case where the Board
found the employer had sufficient contractual authority to shel-
ter it from an allegation of unilateral modification. The facts of
Bath, however, differ instructively from those in the present
matter. The plan documents in that case gave the employer the
express authority to “modify or amend” the Plan or even to
terminate it. Bath Iron Works, 345 NLRB at 503. On these
facts, the Board had little trouble deciding that a reasonable
reading of the contract and plan documents permitted Respond-
ent to merge the pension plan at issue with another one. Id. Our
case is manifestly different in that the Respondent’s discretion-
ary authority does not extend to modifying benefits or terminat-
ing them outright. As article 39 of the agreement states, “The
benefits provided by this [dental] plan will not be discontinued

11 As the Board explained under similar facts in Bath Iron Works,
“[T]he issue here is whether the contract forbade the conduct.” Bath
Iron Works, 345 NLRB at 502.
12 As I have already stated, the agreement only provided for two
conditions under which an employee could be denied benefits: agree-
ment of Respondent and the Union and the passing of 30 days from the
date of termination of employment.
HAWAIIAN TELCOM, INC. 29
or amended without the agreement of the Company and Un-
ion.” (GC Exh. 2.) Moreover, the interpretive authority men-
tioned in the plan documents is just that, interpretive authority,
which, by definition, does not extend to modification of the
terms to be interpreted.
In light of my rejection of Respondent’s proffered interpreta-
tion, I find that Respondent’s modification to the terms of the
dental plan was prohibited by the agreement. Accordingly, I
find the alteration violated Section 8(a)(5) of the Act.
III. RESPONDENT VIOLATED SECTION 8(A)(1) BY SENDING
COBRA PACKETS
The General Counsel separately alleges violations of Section
8(a)(1) with respect to the COBRA packets Respondent mailed
on November 10, the date of the strike. The packets included a
notice that specified for each category of benefits the date of
cancellation and information on continued enrollment under
COBRA. Although the letter reports the cancellation of life
insurance benefits along with health and dental coverage, life
insurance was not actually stopped.
In general, it is an unfair labor practice for an employer to
threaten to withdraw wages or other benefits for engaging in
concerted activity. E.g., Prestige Ford, 320 NLRB 1172 (1996)
(finding an employer violated Section 8(a)(1) by threatening to
prevent salesman from using demonstration car). Of course,
where the termination of benefits itself is lawful, announcing
their cancellation is also legitimate. Trading Port, Inc., 219
NLRB 298, 300 fn. 3 (1975). In this case, however, I found
supra that Respondent violated Section 8(a)(1), (3), and (5) by
cancelling the accrued benefits of striking employees. Under
these circumstances, the announcement also violates Section
8(a)(1). See Texaco, Inc., 291 NLRB 508, 510 (1988) (finding a
prestrike announcement of termination of benefits itself viola-
tive of Section 8(a)(1) where the cancellation itself had already
been deemed discriminatory).
Generally, when benefits are discontinued, a COBRA notice
is mandated by Federal law. Under COBRA, a strike is consid-
ered a qualifying event that compels an employer to give notice
to its employees of their right to elect continued coverage. 26
C.F.R. § 54.4980B-4 (2012); see also Communications Workers
of Am., Dist. One v. NYNEX Corp., 898 F.2d 887, 888 (1990)
(treating a strike as a qualifying event because it resulted in a
reduction of hours). Respondent argues that to find the distribu-
tion of the COBRA packets to be a freestanding violation
would place it and other employers in an unacceptable legal
dilemma.
I disagree. In my view, COBRA does not apply in a situation
in which benefits have been unlawfully discontinued. To insist
that COBRA mandated reminding employees of Respondent’s
unlawful discontinuance of benefits is unwarranted. In such an
instance, the notice only served to remind employees of the
unlawful discontinuance of benefits.
IV. RESPONDENT DID NOT VIOLATE SECTION 8(A)(1) BY
MAINTENANCE OF ITS HARASSMENT RULE
A. Legal Background
According to Section 8(a)(1) of the Act, an employer com-
mits an unfair labor practice if it “interfere[s] with, restrain[s],
or coerce[s] employees in the exercise of the rights guaranteed
in Section 7.” A workplace rule violates Section 8(a)(1) if it
would “reasonably tend to chill employees in the exercise of
their Section 7 rights.” Lafayette Park Hotel, 326 NLRB 824,
825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999) (unpublished
mem. decision). Where a rule does not explicitly restrict Sec-
tion 7 activity, the Board may still find a violation in one of
three ways: “(1) [E]mployees would reasonably construe the
language to prohibit Section 7 activity; (2) the rule was prom-
ulgated in response to union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights.” Lutheran
Heritage Village-Livonia, 343 NLRB 646, 647 (2004).
The test for how employees would reasonably construe the
language of a rule is an objective one; neither the employer’s
motivation nor the subjective response of the employees is
relevant to the inquiry. See Uforma/Shelby Bus. Forms, Inc.,
320 NLRB 71, 71 fn. 4 (1995), affd. in relevant part 111 F.3d
1284 (6th Cir. 1997). In evaluating a challenged rule, the Board
does not read particular phrases in isolation and does not pre-
sume improper interference with employee rights. Lutheran
Heritage, 343 NLRB at 646 (citing Lafayette Park, 326 NLRB
at 825, 827). That said, an ambiguous rule must be construed
against the employer as the promulgator of the rule. Lafayette
Park, 326 NLRB at 828 (citing Norris/O’Bannon, 307 NLRB
1236, 1245 (1992)).
B. Respondent’s Harassment Rule is Facially Lawful
The General Counsel argues that employees could reasona-
bly construe the broad provisions of Respondent’s antiharass-
ment policy to reach protected activity. It points to language
forbidding “any behavior that ridicules, belittles, intimidates,
threatens or otherwise demeans coworkers or others associated
with the company” and a catch-all provision disallowing “har-
assment in any form.” It asserts that employees could reasona-
bly construe these words to prohibit protected activities like
calling a fellow employee a scab, complaining about a manag-
er, or persistently soliciting coworkers.
The Board in Lutheran Heritage gave a measure of latitude
to employers who establish antiharassment rules. Adopting the
position of the Court of Appeals for the District of Columbia
Circuit, the Board recognized that “employers have a legitimate
right to establish a ‘civil and decent work place.’” Lutheran
Heritage, 343 NLRB at 647 (quoting Adtranz ABB Daimler-
Benz Transp., N.A., Inc. v. NLRB, 253 F.3d 19, 25 (D.C. Cir.
2001)). Reiterating the principle from a different perspective, it
proclaimed, “[E]mployees have a right to a workplace free of
unlawful harassment, and both employees and employers have
a substantial interest in promoting a workplace that is “civil and
decent.’” Id. at 648–649 (quoting Adtranz, 253 F.3d at 25). In
coming to its decision, the Board was mindful of an employer’s
legal duty to keep its workplace free from harassment. Address-
ing a rule against profane language, it made clear, “[E]mployers
have a legitimate right to adopt prophylactic rules banning such
language because employers are subject to civil liability under
federal and state law should they fail to maintain ‘a workplace
free of racial, sexual, and other harassment’ and ‘abusive lan-
guage can constitute verbal harassment triggering liability un-
der state or federal law.’” Id. at 647 (quoting Adtranz, 253 F.3d
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
at 27).
The Board ultimately upheld the challenged rules in Luther-
an Heritage which prohibited employees from:
Using abusive or profane language in the presence of, or di-
rected toward, a supervisor, another employee, a resident, a
doctor, a visitor, a member of a resident's family, or any other
person on company property (the premises).
. . .
Harassment of other employees, supervisors and any other in-
dividuals in any way.
. . .
Verbally, mentally or physically abusing a resident, a member
of a resident’s family, a fellow employee or a supervisor un-
der any circumstances. This includes physical and verbal
threats.
Id. at 654–655. Examining these rules, the Board concluded
that a reasonable employee would understand them only to
embrace activity of a certain magnitude, i.e., actions that rise to
the level of harassment, leaving Section 7 activity unrestricted.
Id. at 648 (“We see no justification for concluding that employ-
ees will interpret the rule unreasonably to prohibit conduct that
does not rise to the level of harassment . . . .”).
Subsequent cases in which the Board has applied the Luther-
an Heritage standard are instructive. In Hyundai Shipping
Agency, Inc., 357 NLRB 860 (2011), the employer’s rule barred
“[t]hreatening, intimidating, coercing, harassing or interfering
with the work of fellow employees or indulging in harmful
gossip.” The challenge to the rule centered on the prohibition of
“indulging in harmful gossip. Citing the dictionary definition of
“gossip” (“‘rumor or report of an intimate nature’ or ‘chatty
talk’”), the Board found employees would not reasonably con-
strue the rule to prohibit Section 7 activity. Id., slip op. at 861–
862. Turning to Palms Hotel & Casino, 344 NLRB 1363
(2005), the rule in that case banned “any type of conduct, which
is or has the effect of being injurious, offensive, threatening,
intimidating, coercing, or interfering with fellow Team Mem-
bers or patrons.” Id., 344 NLRB at 1367–1368. Upholding the
rule against challenge, the Board explained that the type of bad
behavior named, like the profane language proscribed in Lu-
theran Heritage, was not “inherently entwined” with protected
activity. Id. at 1368. It further noted, “Nor are the rule’s terms
so amorphous that reasonable employees would be incapable of
grasping the expectation that they comport themselves with
general notions of civility and decorum in the workplace.” Id.
On its behalf, the General Counsel cites to cases in which the
Board reached the opposite conclusion. These also serve to
define the contours of a permissible antiharassment rule. Ad-
vance Transportation Co., 310 NLRB 920, 925 (1993) (rule
barring “harassment, intimidation, distraction, or disruption of
another employee unlawful because “it is vague and ambiguous
and so overly broad as to fail to define permissible conduct
thereby fortifying Respondent with power to define its terms
and inhibit employees in exercising rights under Section 7 of
the Act. “citing Great Lakes Steel, 236 NLRB 1033 (1978),
enfd. 625 F.2d 131 (6th Cir. 1980)). More recently, the Board
had little trouble finding that a rule banning “derogatory state-
ments concerning any employee, supervisor, the hotel and/or
the parent corporation” infringed on Section 7 rights. HTH
Corp., 356 NLRB 1397, 1421 fn. 21 (2011). The Board also
rejected a rule that prohibited “negative conversations about
associates or managers.”13 KSL Claremont Resort, Inc., 344
NLRB 832, 832 (2005). It thought the rule could reasonably be
construed to forbid employees from discussing complaints
about supervisors with their coworkers. Id.
Considering the above cases, a few guiding principle can be
gleaned. First, the Board is tolerant of language that connotes
severe or extreme behavior, words like “abuse,” “intimidating,”
or “coercing.”14 It believes that employees will understand these
terms to restrict only words and actions that constitute mere ad
hominem aggression or exceed the bounds of basic decency and
decorum (four-letter words for instance). See Lutheran Herit-
age, 343 NLRB at 648. Second, terms that are ambiguous, ge-
neric, and mild, e.g., “derogatory statements,” “negative con-
versations,” and “distraction or disruption of other employees,”
spell a rule’s doom. Significantly, these rules “fail to define
permissible conduct” leaving the employer with a threatening
power to apply them as it sees fit. Advance Transp., 310 NLRB
at 925. Third, rules that protect supervisors are less likely to be
found lawful than those that merely ban harassment of employ-
ees. Compare Claremont Resort, 344 NLRB at 832, with
Hyundai Shipping, 357 NLRB 860 (2011).
Respondent’s harassment policy is as follows:
[Respondent] strives to provide a work environment free of
sexual or any other kind of harassment whether committed by
or against a supervisor, co-worker, customer, vendor or visitor
based on a person’s race, color, religion, national origin, citi-
zenship, ancestry, age, disability, marital status, sexual orien-
tation, arrest and court record, military/veteran’s status, or any
other classification protected by federal or state law. Employ-
ees shall not engage in any behavior that ridicules, belittles,
intimidates, threatens or otherwise demeans co-workers or
others associated with the Company. [Respondent] will not
tolerate harassment in any form—conduct, speech, written
notes, photos, cartoons or electronic mail.
I find that a reasonable employee would not understand this
rule to prohibit protected activity. First, I note that the initial
sentence (the laundry list of protected categories) sets the tone
of the policy. In the eyes of the reasonable employee, the open-
ing sentence makes the policy appear to be, in a manner of
speaking, a mini Civil Rights Act. In other words, it gives the
appearance that the policy’s concern is with those forms of
identity-based discrimination (like racial or gender prejudice)
that are rightly regarded as taboo in modern society. In addi-
tion, the words used in the second sentence—“ridicule,” “belit-

13 I should mention here that the Board in Hyundai Shipping distin-
guished the case before it from Claremont Resort on the grounds that
the rule in Claremont barred comments about supervisors and not just
fellow employees. Hyundai Shipping, 357 NLRB at 861.
14 On the other hand (but for similar underlying reasons), the Board
is also tolerant of bans on “gossip,” an activity that while petty, also
carries with it integral negative connotations sufficient to adequately
restrict its meaning for employees.
HAWAIIAN TELCOM, INC. 31
tle,” “intimidate,” “threaten,” and “demean”—possess negative
connotations that inform employees that mere criticism or ag-
gressive advocacy, as opposed to threats and bullying, do not
fall within the rule’s scope. Put another way, these words, un-
like words like “criticize” or “protest,” are rarely used to praise
a person’s behavior in the workplace setting. For example, it is
never a compliment to call someone a “bully.” By the same
token, it is the workplace bully who “ridicules” and “belittles” a
fellow employee. Admittedly, a word like “demean” is less
clear-cut than a word like “threaten.” Nevertheless, the Board
has given its imprimatur to a rule barring “gossip,” an activity
also considered mean and malignant that likewise falls short of
threats or intimidation.
For these reasons, I find that the rule as a whole would not
be reasonably understood by employees to prohibit protected
concerted activity. Consequently, I reject the General Counsel’s
facial challenge.
V. RESPONDENT VIOLATED SECTION 8(A)(1) BY SENDING THE
“SPECIAL ALERT”
General Counsel argues that the Special Alert issued by Re-
spondent on November 17 unlawfully restricted unit members’
communication with the Union by threatening disciplinary
action against employees who assisted the Union in compiling
the names of those who worked during the strike for its “Wall
of Shame.” As noted in United Technologies Corp., 274 NLRB
1069, 1079 (1985), enfd. sub nom. NLRB v. Pratt & Whitney
Air Craft Division, 789 F.3d 121 (2d Cir. 1986), publishing
such a list is protected activity. Respondent's Special Alert
stated:
The Company is aware that [the Union’s] negotiating com-
mittee has circulated an email to employees/union members
that talks about the Union’s ‘hall of shame’ and urges em-
ployees to report each other in retaliation for reporting to
work during the Union’s work stoppage. Employees should
review the Company’s Code of Business Conduct and Guide-
line 201.G11:Workplace Violence immediately to avoid
committing any violations or misconduct.
Unlawful employee conduct that is intended to intimidate,
threaten or demean a fellow employee or others associated
with the Company is strictly prohibited under both the Com-
pany’s Code of Business conduct and the Workplace Vio-
lence guidelines. Facilitating or assisting with unlawful intim-
idation or threats toward fellow employees—even if planned
to be carried out by others—will also not be tolerated. The
threats, bullying tactics, and other hostile treatment that have
occurred, directed toward a co-worker based on his or her de-
cision to exercise their legally protected right to report to work
during a strike, are forms of prohibited threats and harass-
ment.
Violations of the Code of Business Conduct and/or the Com-
pany’s guideline on Workplace Violence are subject to disci-
pline, up to and including the termination of employment.
Employees are required to immediately report any unusual or
suspicious activity or incident of violent, threatening or abu-
sive behavior to any supervisor, Corporate Security or the
Human Resources Department. Threats or assaults must im-
mediately be reported to Corporate Security at 643–7111 (on
all islands) or local law enforcement at 911.
(GC Exh. 18.) The Code of Business conduct includes the har-
assment policy discussed in the preceding section. The under-
lined terms were web links to the named policies.
I find that a reasonable employee could understand the Spe-
cial Alert as a threat of discipline for assisting the Union in
compiling its “Wall of Shame.” A reasonable employee would
notice from the outset what prompted the Alert to be sent,
namely, the Union email dispatched the same day soliciting
support for the Wall. Although the Alert does not expressly
declare assisting the Wall project to be a punishable offense, it
implies as much. After mentioning the Union email, it reminds
employees about the Code of Conduct, stating that employees
should read it “immediately to avoid committing any violations
or misconduct.” The implication is that the action suggested by
the email (reporting fellow employees for the Wall of Shame)
is at least potentially misconduct that employees should think
twice about committing. In the next paragraph, the Alert decries
“[f]acilitating or assisting with unlawful intimidation or threats
toward fellow employees.” An employee could understand this
to prohibit the mere communication of an employee’s name to
the Union for listing on the Wall.
The Respondent makes several points in defense of the Alert.
Of tangential relevance is the fact that the Alert uses the past
tense, speaking of “the threats, bullying tactics, and other hos-
tile treatment that have occurred,” when the Union letter had
been sent the same day. I do not read very much into this par-
ticular detail however; the Wall of Shame campaign may well
have preceded the Union’s email. Another detail, the fact that
the Alert speaks of “unlawful employee conduct,” weighs in
favor of reading the prohibitions to only encompass unprotect-
ed activity. In this regard, Respondent argues that it was past
reports of harassment that prompted the letter and that it was
this harassment which the Alert was aimed at remedying. It
quotes the testimony of its Vice President and General Counsel
John Komeiji:
So after the strike concluded, I would get daily reports of
employees complaining that someone would make snide com-
ments to them or threatening comments under their breath or
talk to someone else. We actually had a physical confrontation
between a couple of employees a couple of days before the
17th. So we were getting a lot of complaints from people who
had crossed the line who were getting—who believed that they
were getting threatened and bullied.
(Tr. 119:24–120:7). Based on this testimony, Respondent anal-
ogizes to Stanadyne Automotive Corp., 345 NLRB 85 (2005),
vacated in relevant part sub nom Auto Workers v. NLRB, 520
F.3d 192 (2d Cir. 2008). In Stanadyne, the employer told its
employees the following:
[I]t has come to my attention that some union supporters, not
all, but some, are harassing fellow employees. You can disa-
gree with the Company position; you can be for the Union.
You can be for anything you want to, but no one should be
harassed. Harassment of any type is not tolerated by this
company and will be dealt with.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
Stanadyne, 345 NLRB at 86 (alteration in original). Despite the
express references to “union supporters,” the Board found the
statement lawful. Id. at 87. It emphasized that the statement was
made in the context of unsolicited employee reports of mis-
treatment and that it reassured employees they were free to
support the Union.
Although the details Respondent cites do support an interpre-
tation of the Alert as aimed at collateral, past threats and har-
assment, I am convinced that a reasonable employee would
view the Alert as a whole as a message about the Wall of
Shame and the Union’s email. As for the analogy to Stanadyne,
I find that it is incomplete. The Stanadyne Board emphasized
that the employer indicated that employees were free to support
the Union. No such explicit, equivalent qualifying language
appears in the Alert. Furthermore, the Stanadyne statement
made clear that it was addressing reports of harassment that it
had received. While Respondent argues it had received similar
reports of bad behavior, it is not clear from its message that this
is the target of the Alert. Rather, it appears that it is the Wall of
Shame and the Union email which prompted Respondent to
take action.
VI. RESPONDENT VIOLATED SECTION 8(A)(1) BY THREATENING TO
APPLY ITS HARASSMENT RULE TO RESTRICT PROTECTED ACTIVITY
The text of the Special Alert references the Respondent’s
Code of Business Conduct, which contains its harassment poli-
cy. The Alert treats the Code, and the Guideline on Workplace
Violence15 more specifically, as the authoritative basis for the
discipline it threatens. As Lutheran Heritage teaches, an other-
wise lawful rule may be applied in an unlawful manner to re-
strict Section 7 activity. Lutheran Heritage, 343 NLRB at 647.
Although I found that mere maintenance of the harassment rule
did not constitute a violation of Section 8(a)(1), the Respondent
threatened to unlawfully apply it when it sent the Special Alert.
Accordingly, I find that the application of the harassment poli-
cy as applied against the Wall of Shame campaign violates
Section 8(a)(1).
CONCLUSIONS OF LAW
1. By cancelling health, drug, vision, and dental benefits of
employees who participated in a work stoppage on November
10 and 11, 2011, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act.
2. By changing its dental insurance policy to eliminate dental
benefits for employees whose employment ends due to a strike,
Respondent violated Section 8(a)(1), (3), and (5).
3. By informing employees who participated in the work
stoppage that their life, health, drug, vision, and dental insur-
ance were cancelled, Respondent violated Section 8(a)(1).
4. By email dated November 17, 2011, Respondent applied
its Harassment and Intimidation Policy and its Workplace Vio-
lence Policy to restrict employee communication with the Un-
ion in violation of Section 8(a)(1).
REMEDY
Having found that the Respondent has engaged in certain un-

15 This rule is distinct from the harassment policy at issue.
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The Respondent having unlawfully
cancelled health, drug, vision and dental benefits of employees
and changed employees' dental insurance benefits and having
unlawfully eliminated dental benefits for employees whose
employment ended due to a strike, must make employees
whole, with interest, for any accrued benefits denied them as a
result of the strike to the extent they have not already been
made whole.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended16
ORDER
The Respondent, Hawaiian Telcom, Honolulu, Hawaii, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Cancelling health, drug, vision, and dental benefits of
employees who participated in a work stoppage on November
10 and 11, 2011.
(b) Changing its dental insurance policy to eliminate dental
benefits for employees whose employment ends due to a strike.
(c) Informing its employees who participated in the work
stoppage that their life, health, drug, vision, and dental insur-
ance were cancelled.
(d) Applying its Harassment and Intimidation Policy and its
Workplace Violence Policy to restrict employee communica-
tion with the Union.
(e) In any other like or related manner, interfering with, re-
straining, or coercing employees in the exercise of their Section
7 rights.
2. Take the following affirmative actions necessary to effec-
tuate the policies of the Act.
(a) Make whole with interest all former strikers for any ac-
crued health, drug, vision, and/or dental benefits denied them as
a result of their participation in the strike.
(b) Upon request, rescind the unilateral change eliminating
dental benefits for employees whose employment ends due to a
strike.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cilities copies of the attached notice marked “Appendix.”17

16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
17 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
HAWAIIAN TELCOM, INC. 33
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 20, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the
notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since September 1, 2011.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. September 5, 2012
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
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT cancel health, drug, vision, and dental benefits
of employees who participated in a work stoppage on Novem-
ber 10 and 11, 2011.
WE WILL NOT change our dental insurance policy to eliminate
dental benefits for employees whose employment ends due to a
strike.
WE WILL NOT inform our employees who participated in the
work stoppage that that their life, health, drug, vision, and den-
tal insurance were cancelled.
WE WILL NOT apply our Harassment and Intimidation Policy
and our Workplace Violence Policy to restrict employee com-
munication with the Union.
WE WILL NOT in any like or related manner interfere with, re-
straining, or coercing you in the exercise of their Section 7
rights.
WE WILL make whole all former strikers who were denied
health, drug, vision, and dental benefits which accrued before
the November 10–11, 2011 strike.
WE WILL, upon the Union's request, rescind the change to our
dental benefits for employees whose employment ends due to a
strike.
HAWAIIAN TELCOM, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/20–CA–069432 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.