Intermountain Rural Electric Assn.

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 1189 (N.L.R.B. 1992)

1189
309 NLRB No. 176
INTERMOUNTAIN RURAL ELECTRIC ASSN.
1 See also R. Exh. 4 in the instant case.
Intermountain Rural Electric Association and Inter-
national Brotherhood of Electrical Workers,
Local 111, AFL–CIO, CLC. Case 27–CA–11543
December 16, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On March 20, 1992, Administrative Law Judge
James M. Kennedy issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Union filed briefs in
support of the judge’s decision and opposing the Re-
spondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
In this case the judge found, consistent with the
complaint allegations, that in the fall of 1990 the Re-
spondent made an offer to the Union to pay the full
amount of the pending annual increases in bargaining
unit employees’ medical and dental insurance pre-
miums, that the Union accepted this offer, and that the
Respondent subsequently repudiated their agreement in
violation of Section 8(a)(5) and (1). The judge also
found that the Respondent unlawfully deducted from
the employees’ paychecks amounts equivalent to these
annual increases in insurance premiums. We find how-
ever, that there was no ‘‘meeting of the minds’’ suffi-
cient to form an agreement between the Respondent
and the Union in the fall of 1990 and therefore no un-
lawful repudiation. Accordingly, we reverse the
judge’s decision and dismiss the complaint in its en-
tirety.
Facts
Some of the events and issues involved in a separate
unfair labor practice proceeding between the parties are
implicated in the arguments by the parties in this case,
so we find it useful first to set out that factual back-
ground here. In Intermountain Rural Electric Assn.,
305 NLRB 783 (1991), it was alleged, inter alia, that
in December 1988 the Respondent unlawfully failed to
pay the annual medical and dental insurance premium
increases required under the parties’ expired collective-
bargaining agreement while the parties were engaged
in negotiations for a new overall agreement, and that
instead the Respondent forced the bargaining unit em-
ployees to pay the premium increases by payroll de-
duction. It was further alleged that in March 1989 the
Respondent implemented its final bargaining offer, in-
cluding a proposal for payment of medical and dental
insurance premiums, without having reached a valid
impasse in negotiations. The judge in that case, whose
decision issued on October 10, 1990, concluded that
the Respondent did not violate the Act by engaging in
the unilateral changes set forth above. In its Decision
and Order, supra, the Board reversed the judge’s deci-
sion in significant part, finding that the Respondent’s
unilateral changes in terms and conditions of employ-
ment in fact violated Section 8(a)(5) and (1).
As reflected in the prior case, the parties tradition-
ally aligned the duration of their collective-bargaining
agreements with the health insurers’ annual revisions
of their programs and premium rates effective each
December l, thus allowing each new agreement to ac-
count for any rate changes. 305 NLRB 783, 784 fn. 3.
As further reflected in that case, in 1988 the parties
had been bargaining for a new collective-bargaining
agreement to replace the one whose term ran from De-
cember l, 1987, to November 30, 1988. Under article
27 of the 1987–1988 contract, the Respondent paid the
full amount of medical and dental insurance premiums
subject to certain conditions. With respect to medical
premiums, the Respondent’s ‘‘maximum contribution
to any of the medical insurance plans in effect for its
employees covered by this Agreement [was not to] ex-
ceed one hundred percent (100%) of the Blue Cross
and Blue Shield Insurance Company premiums.’’ With
respect to dental insurance, the Respondent agreed to
‘‘pay one hundred percent (100%) of the premiums for
the employees covered.’’ Id. at 793. At the start of the
1988 negotiations, however, the Respondent proposed
to pay specific maximum dollar amounts with respect
to the new medical and dental insurance premiums,
thereby replacing the ‘‘100%’’ language in the con-
tract. The Respondent’s initial offer was to pay spe-
cific dollar amounts constituting a partial contribution,
with the bargaining unit employees responsible for the
remainder. Eventually, the Respondent offered to pay,
and implemented as part of its final proposal in March
1989, specific maximum dollar amounts which were
sufficient to pay in full the cost of the new medical
and dental premiums. The Respondent’s proposal did
not characterize these contributions as ‘‘100%.’’ Id. at
793–794.1 The Union maintained, at least from the
time of the Respondent’s first unilateral change in ben-
efit payments in December 1988, that until the Re-
spondent bargained in good faith to impasse on a new
overall agreement, it was obligated to pay 100 percent
of all medical and dental insurance premiums, includ-
ing annual increases, under the terms of the agreement
which expired November 30, 1988. Id. at 794.
The prior Decision and Order does not explicitly ad-
dress events occurring between the parties after March
1190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1989. The instant case picks up roughly after that
point, covering the parties’ conduct with regard to the
annual insurance premium increases in the fall of 1989
and, more significantly, in the fall of 1990. The events
in this case took place while the previous proceeding
was pending before the Board.
The Respondent, by its attorney, sent the Union a
letter dated November 8, 1989, which stated in rel-
evant part:
Intermountain Rural Electric Association has
been notified by Blue Cross and Blue Shield of
Colorado that the premiums for the health insur-
ance programs offered by IREA to the members
of the bargaining unit effective December l, 1989
will be as follows:
Employee Only Employee Plus Dependents
Blue Cross/Blue Shield
$154.55 $417.53
HMO Colorado
$118.74 $323.50
IREA proposes, effective December l, 1989, to
pay for members of the bargaining unit up to a
maximum of Four Hundred Seventeen and 53/100
Dollars ($417.53) per month toward the cost of
the premium for family coverage in the medical
insurance plan maintained and made available to
the Association and One Hundred Fifty-Four and
55/100 Dollars ($154.55) per month for single
coverage toward the cost of the premium for sin-
gle coverage in the medical insurance plan main-
tained and made available to the Association.
If you have any objections to the Association
implementing this benefit for members of the bar-
gaining unit effective December l, 1989, please let
me know. Otherwise, IREA will implement this
benefit on December l, 1989.
The Union, by its attorney, responded with a letter
dated November 22, 1989, which stated in relevant
part:
As you fully are aware, it is the position of the
Union that the Company has not bargained in
good faith to impasse with the Union and, there-
fore, it is not privileged to implement any of its
bargaining proposals. The Union has taken that
position consistently.
Additionally, it has been the Union’s consistent
position that because the Company has failed to
bargain to good faith impasse with the Union it
cannot make unilateral changes and, therefore,
must adhere to the wages, hours, and other terms
and conditions of employment set forth in the col-
lective bargaining agreement between Inter-
mountain Rural Electric Association and IBEW
Local 111 which agreement expired on November
30, 1988. While the agreement expired, Section
8(a)(5) of the National Labor Relations Act re-
quires the Company to maintain the status quo
prior to the expiration of that agreement until it
bargains to good faith impasse with the Union.
The status quo with respect to medical and den-
tal insurance is set forth in Article 27 at page 32
of that agreement. The agreement provides that
with respect to health insurance, the Association
will contribute 100% of the Blue Cross/Blue
Shield Insurance Company premiums.
The Union does not consent to the Company’s
implementation of anything. Nevertheless, the
Union has insisted and will insist that the Com-
pany pay 100% of the Blue Cross/Blue Shield In-
surance Company premiums at all times and un-
less and until the Company bargains to a good
faith and legal impasse with the Union.
The Respondent subsequently implemented its pro-
posal of November 8, thus contributing specific dollar
amounts covering all of the new medical insurance
premiums. In a memorandum to employees concerning
payment of the new premiums, the Respondent ex-
plained that the Union had been notified of the pro-
posal and had not requested bargaining.
Subsequently, by letter dated August 8, 1990, the
Respondent made the following proposal to the Union:
Intermountain Rural Electric Association has
decided that since Christmas Eve falls on Mon-
day, it will grant an additional holiday to its em-
ployees on December 24. This holiday will also
be extended to the members of the bargaining
unit.
If you have any objections to the Association’s
implementing this benefit for members of the bar-
gaining unit, please let me know immediately.
The Union’s response, by letter of August 13, 1990,
stated in relevant part:
I am in receipt of your letter dated August 8,
1990, regarding the additional holiday of Christ-
mas Eve, which falls on Monday, December 24th,
that the Association wishes to extend to the mem-
bers in the bargaining unit.
Please be advised, that by receipt of this letter,
Local Union 111, International Brotherhood of
Electrical Workers, acting as the exclusive bar-
gaining agent, does so concur with the Associa-
tion’s implementation of this benefit for the em-
ployees in the bargaining unit.
With respect to medical insurance premium in-
creases to be effective December l, 1990, the Respond-
1191INTERMOUNTAIN RURAL ELECTRIC ASSN.
ent sent a letter dated October 8, 1990, to the Union,
which stated in relevant part:
Intermountain Rural Electric Association has
been notified by Blue Cross/Blue Shield of Colo-
rado that the premiums for the health insurance
programs offered by IREA to the members of the
bargaining unit effective December l, 1990, will
be as follows:
Employee Only Employee Plus Dependents
Blue Cross/Blue Shield
$164.13 $443.42
HMO Colorado
$137.33 $374.15
IREA proposes, effective December l, 1990, to
pay for members of the bargaining unit up to
maximum of Four Hundred Forty-Three and
42/100 Dollars ($443.42) per month toward the
cost of the premium for family coverage in the
medical insurance plan maintained and made
available to the Association and One Hundred
Thirty-Seven and 33/100 Dollars ($137.33) per
month for single coverage toward the cost of the
premium for single coverage in the medical insur-
ance plan maintained and made available to the
Association.
If you have any objections to the Association
implementing this benefit for members of the bar-
gaining unit effective December l, 1990, please let
me know. Otherwise, IREA will implement this
benefit on December l, 1990.
The Union’s response, dated October 12, 1990, stated
in relevant part:
Our position with regard to your letter of Octo-
ber 8, 1990, is consistent with that stated in my
letter of November 22, 1989. The Company has
not bargained in good faith to impasse with the
Union and is, therefore, not privileged to imple-
ment any of its bargaining proposals.
Since the Company has failed to bargain to
good faith impasse with the Union, it cannot
make unilateral changes and, therefore, must ad-
here to the wages, hours, and other terms and
conditions of employment set forth in the collec-
tive bargaining agreement between IREA and
IBEW 111 which agreement expired on Novem-
ber 30, 1988. While the agreement expired,
§ 8(a)(5) of the National Labor Relations Act re-
quires the Company to maintain the status quo
prior to the expiration of that agreement until it
bargains to good faith impasse with the Union.
The status quo with respect to medical and den-
tal insurance is set forth in Article 27 at page 32
of that agreement. The agreement provides that
with respect to health insurance, the Association
will contribute 100% of the Blue Cross/Blue
Shield Insurance Company premiums.
The Union does not consent to the Company’s
implementation of anything. Nevertheless, the
Union has insisted and will insist that the Com-
pany pay 100% of the Blue Cross/Blue Shield In-
surance Company premiums at all times and un-
less and until the Company bargains to good faith
and legal impasse with the Union.
In the meantime, the Respondent sent a letter dated
October 11, 1990, to the Union correcting one of the
dollar figures in its October 8 letter to reflect that the
Respondent proposed to pay all the Blue Cross/Blue
Shield individual premium. The letter also set forth the
new rates for dental insurance premiums effective De-
cember l, 1990, and proposed to pay specific dollar
figures which would fully cover the cost of the new
premiums. The letter finished with the same final para-
graph as the October 8 letter, soliciting any objections
that the Union might have to implementation of the
proposal. The Union’s October 29, 1990 response re-
affirmed the Union’s position in its October 12 letter,
virtually repeating the final paragraph of that letter, as
set forth above.
By memoranda of October 29 and November l,
1990, the Respondent informed the unit employees
that, because of the Union’s refusal to consent to the
Respondent’s proposal to cover the pending increases
in medical and dental premiums, the Respondent
would maintain its current contributions, with the em-
ployees contributing the difference beginning Decem-
ber l. The employees also were informed that their
contributions would be made by payroll deduction un-
less they notified the Respondent (presumably to ar-
range an alternative payment method).
The Union replied to the Respondent’s announce-
ment to the unit employees by letter of November 16,
1990, which stated in relevant part:
I have received a memorandum from . . .
IREA to all bargaining unit employees at IREA
regarding payroll deductions dated November l,
1990.
As I stated to you in my letters to you dated
November 22, 1989, October 12, 1990, and Octo-
ber 29, 1990, the union will preserve its position
in this matter that the company must pay all in-
creases in health and dental premiums consistent
with its obligation to maintain the status quo prior
to the expiration of the most recent collective bar-
gaining agreement between the parties.
We also know that the company disagrees with
that position, and has solicited objections from the
1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The judge found it unnecessary to reach the General Counsel’s
alternative estoppel theories.
union to the association’s ‘‘implementation’’ of
payment of the increased premiums for members
of the bargaining unit.
Regardless of who is right, however, the in-
creased premiums should be paid by the company.
If the union is right, the company has no choice
but to pay the increases. If the company is right,
the union will not stand in the way of the pre-
mium increases being paid by the company. Such
action by the union would be inconsistent with
our position that the premium increases must be
paid by the company anyway. Furthermore, in
1989, an identical exchange of correspondence be-
tween the company and the union resulted in
agreement between the parties that the increases
for that year would be paid, with the parties re-
serving their differing positions as to why the in-
creases would be paid. The identical agreement
was reached between the parties with identical
correspondence in October of this year. Neverthe-
less, without informing the union of the same, the
company this year decided to inform the employ-
ees directly that they would be subject to payroll
deductions for this year’s increases only.
Thus, our position is that the company must
pay the increases and the union will take no ac-
tion against the company if the increases are paid.
If the increases for 1990 are not paid by the com-
pany, the union will take all legal action at its dis-
posal against the company seeking payment of the
1990 increases by the company.
Subsequently, the Respondent carried out the pro-
gram set forth to the unit employees in its October 29
and November 1 memoranda; there is no evidence con-
cerning whether the parties discussed the means by
which the unit employees would pay the increases in
medical and dental insurance premiums.
Discussion
The complaint in this proceeding is narrowly draft-
ed. Specifically, it alleges that the Respondent, by its
letters of October 8 and 11, 1990, proposed to pay the
full cost of the medical and dental insurance premiums
which would be effective December 1, 1990, and that
the Union, by its letters of October 12 and 29 and No-
vember 16, 1990, agreed to the Respondent’s propos-
als, the parties thereby reaching ‘‘full and complete
agreement.’’ The complaint further alleges that the Re-
spondent’s failure and refusal ‘‘to implement and abide
by the agreement’’ violated Section 8(a)(5) and (1).
The judge, after reviewing the background of litiga-
tion and the documents set forth above, reasoned that
none of the Union’s fall 1990 letters addressing the
Respondent’s offers could be seen as a rejection of the
offers, and that the Union’s November 16, 1990 letter
in particular constituted an acceptance of the offers
sufficient to form an agreement. He concluded that the
Respondent violated Section 8(a)(5) and (1) by its re-
pudiation of the agreement and by its concomitant uni-
lateral conduct in deducting unit employees’ insurance
contributions from their paychecks.2 For the reasons
that follow, we disagree with the judge.
The legal principles we apply are well settled. A
collective-bargaining agreement is formed only after a
‘‘meeting of the minds’’ on all substantive issues and
material terms of the contract. The question of contract
formation is one based on the parties’ expressed inten-
tions regarding the terms of a collective-bargaining
agreement, and this is true regardless whether a docu-
ment has yet been signed. The General Counsel bears
the burden of proving whether the requisite meeting of
the minds has occurred. See generally Kelly’s Private
Car Service, 289 NLRB 30, 39–40 (1988), and cases
cited there, enfd. 919 F.2d 839 (2d Cir. 1990). In de-
termining whether an agreement has been reached, the
Board uses general contract principles adapted to the
context of collective bargaining, but it is not bound
strictly by technical rules of contract law. See, e.g.,
NLRB v. Electra-Food Machinery, 621 F.2d 956 (9th
Cir. 1980).
Our primary focus is on the correspondence ex-
change between the Respondent and the Union in Oc-
tober and November 1990, because it is this exchange
that the complaint alleges, and the judge found, re-
sulted in a ‘‘full and complete agreement’’ which the
Respondent later repudiated. At first glance, although
the Respondent characterized its October 8, 1990 letter
as a ‘‘proposal,’’ it appears that the exchange of cor-
respondence reflects a trade of sharply differing legal
views rather than an example of real collective-bar-
gaining. In any event, taking the view of the contrac-
tual parties, the General Counsel, and the judge that
this was a contractual negotiating scenario rather than
merely an acrid exchange of legal points, ultimately
the fact is that there was no meeting of the minds on
all substantive issues between the parties.
A simple comparison of the parties’ exchange of
correspondence in August 1990 concerning an addi-
tional holiday benefit with the later fall 1990 exchange
tends to confirm the lack of acceptance of the Re-
spondent’s subsequent premium payment proposal.
Thus, in its August 13, 1990 letter answering the Re-
spondent’s August 8 proposal for the additional holi-
day and solicitation of ‘‘any objections,’’ the Union
stated that it ‘‘does so concur with the Association’s
implementation of this benefit.’’ No one would dispute
that this exchange reflected an offer and an acceptance
leading to an agreement on a term and condition of
employment. In the later fall exchange, however, in
reply to the Respondent’s October 8 and 11 proposals
1193INTERMOUNTAIN RURAL ELECTRIC ASSN.
3 The Board in fact found this interpretation of the contractual lan-
guage to be the appropriate one. 305 NLRB 783, 784.
4 Whether the Respondent’s conduct in the fall of 1989 was unlaw-
ful is not before us. Further, we note that the judge did not deter-
mine whether the parties reached an agreement in the fall of 1989.
to implement full payment of the new medical and
dental insurance premiums and solicitation of ‘‘any ob-
jections,’’ the Union’s October 12 and 29 letters stated
that it ‘‘does not consent to the Company’s implemen-
tation of anything.’’ The lack of anything resembling
an acceptance here is fairly obvious considered by
itself, and even more so in comparison with the Au-
gust exchange. It also appears that the Respondent per-
ceived that there was no ‘‘meeting of the minds,’’ in
view of its contemporaneous announcement to employ-
ees referring to the Union’s refusal to consent to the
Respondent’s proposal.
Most significantly, we are satisfied that the parties
understood, after the fall 1990 correspondence was ex-
changed, that the Respondent’s proposal to pay spe-
cific maximum dollar amounts with respect to the in-
surance premiums was consistent with the position it
had taken in the 1988 negotiations, with the nature of
its unilateral implementation in March 1989 concern-
ing insurance premiums payments, and with the pro-
posal it had made in the fall of 1989. The expired
1987–1988 collective-bargaining agreement called for
the Respondent to pay ‘‘100%’’ of the insurance pre-
miums, and it was always arguable, at the least, that
this comprehended an open-ended obligation to pay the
annual increases automatically.3 The Respondent’s
consistent desire from the 1988 negotiations forward
was to move away from the ‘‘100%’’ concept of pay-
ment to a payment of specific maximum dollar
amounts. This is reflected in its fall 1990 proposals to
pay specific dollar amounts, even though they in fact
represented payment of the full cost—100 percent—of
the new medical and dental premiums.
Similarly clear to the parties throughout the cor-
respondence exchanged in the fall of 1990, was that
the Union’s position was consistent with the position
it had been taking since December 1988, i.e., that the
Respondent was obligated under the expired contract
to pay 100 percent of the insurance premiums regard-
less of the annual increases as long as the Respondent
failed to bargain in good faith to impasse regarding an
overall collective-bargaining agreement to replace the
expired one. Correlatively, its consistent response to
the Respondent’s proposal to implement payments
based on specific dollar amounts—in place of an ac-
knowledgment of its continuing ‘‘100%’’ obligation—
was to reject the proposal out of hand.
The difference between the Respondent’s proposal—
setting forth the obligation it was willing to incur—and
the Union’s response—setting forth its view of the Re-
spondent’s preexisting obligation—is both stark and
substantive. Although under both the Respondent’s
proposal and the Union’s response the Respondent
would be required to pay the new annual insurance
premiums in full, material and substantive differences
in the effect of the two theories of payment are evi-
dent. For example, if the Union had agreed in full to
the Respondent’s proposal, the agreement conceivably
would have terminated the Respondent’s contested ob-
ligation under the expired contract to pay ‘‘100%’’ of
the medical and dental insurance premiums. Relatedly,
such an agreement would have set a concrete maxi-
mum dollar standard marking the Respondent’s obliga-
tion to pay, which would not automatically expand
with the insurance companies’ next annual premium
increases.
The steadfastness with which each party held to its
own view of the proper basis for insurance premium
payments further establishes the material and sub-
stantive nature of their disagreement. Consequently
there was no ‘‘meeting of the minds’’ and the parties
failed to reach a full and complete agreement. The
Union’s November 16, 1990 letter, far from establish-
ing the Union’s acceptance of the Respondent’s offers,
traces the depth of the chasm between the parties con-
cerning this issue. Thus, although the Union agreed
that the Respondent should pay the full amount of the
new premiums, it clearly set out the parties’ continuing
disagreement regarding the proper theory supporting
the Respondent’s payment obligation. In short, in this
letter as before, the Union did not accept the Respond-
ent’s proposal; it merely reminded the Respondent of
its Section 8(d) status quo obligation, extant from De-
cember 1988, as the Union perceived it.
Our conclusion that no agreement was formed in the
fall of 1990 is not undermined by the fact that the par-
ties engaged in an exchange of correspondence in the
fall of 1989 almost identical to that which gave rise to
the underlying complaint. We are mindful that the
1989 exchange was followed by the Respondent’s pay-
ment of the full insurance premiums. Although such
payment may lead one to surmise, as the Union did in
its November 16, 1990 letter, that an agreement had
been reached in 1989, the evidence is simply not ade-
quate to establish that the Respondent’s conduct in
paying the full premiums that year was based on a suf-
ficient ‘‘meeting of the minds.’’ On this record, it is
at least as likely that the Respondent acted pursuant to
a unilateral decision in the fall of 1989 to implement
its proposal in the face of the Union’s adamant refusal
to ‘‘consent to the implementation of anything.’’4 In
1989 as in 1990, it is evident that the parties did not
agree whether the obligation to pay the new insurance
premiums should emanate from the Respondent’s offer
to pay specific dollar amounts or from a perceived,
preexisting duty under the expired collective-bargain-
ing agreement to pay 100 percent of whatever the pre-
1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The Board previously has recognized the potential applicability
of the theory of promissory estoppel in a collective-bargaining con-
text. See Sonat Marine, 281 NLRB 87, 93–94 (1986).
6 To the extent that the General Counsel contends that what the
Respondent sought to induce was merely the Union’s forbearance
from objecting to the Respondent’s proposal, the contention still
misses the mark. It is clear that the Union substantially objected to
the proposal.
7 The Board has recognized the following elements of equitable es-
toppel: (1) lack of knowledge and the means to obtain knowledge
of the true facts; (2) good-faith reliance on the misleading conduct
of the party to be estopped; and (3) detriment or prejudice from such
reliance. See, e.g., Century Wine & Spirits, 304 NLRB 338 fn. 13
(1991).
miums were. Therefore, the parties’ previous conduct
and the Respondent’s ambiguous implementation in
December 1989 does not tend to show that there was
in fact an agreement in the fall of 1990.
Accordingly, we reverse the judge’s conclusion that
the Respondent unlawfully repudiated an agreement to
cover the costs of the unit employees’ new medical
and dental insurance premiums in the fall of 1990, be-
cause we conclude that the parties did not achieve a
meeting of the minds on all substantive, material
terms, and therefore, no agreement was reached.
The General Counsel and the Union both have con-
tended that, should it not be found that the Respondent
and the Union reached an actual agreement in the fall
of 1990, then common law principles of estoppel—ei-
ther promissory or equitable—require that the Re-
spondent be ordered to cover the full cost of the new
insurance premiums effective December 1, 1990. Al-
though it is not entirely clear from their contentions
which theory of estoppel we are invited to apply, ulti-
mately it does not matter because we find the cir-
cumstances inappropriate for application of either the-
ory. First and foremost, even if the facts of this case
fit the elements for an equitable conclusion that the
Respondent should be ordered to pay the full cost of
the insurance premiums, Section 8(d) and the Supreme
Court’s decision in H. K. Porter Co. v. NLRB, 397
U.S. 99 (1970), would likely preclude us from entering
an order compelling an agreement where the parties
themselves were unable to reach one. See also Operat-
ing Engineers Local 30 (Hyatt Management), 280
NLRB 205 (1986), petition for review denied sub nom.
Hyatt Management Corp. v. NLRB, 817 F.2d 140
(D.C. Cir. 1987).
Assuming, arguendo, that it is appropriate in this
case to address the promissory estoppel theory ad-
vanced by the General Counsel, we would still con-
clude that the situation does not merit such a remedy.5
Black’s Law Dictionary, 1093 (5th ed. 1979), defines
promissory estoppel as:
That which arises when there is a promise which
promisor should reasonably expect to induce ac-
tion or forbearance of a definite and substantial
character on part of promisee, and which does in-
duce such action or forbearance, and such promise
is binding if injustice can be avoided only by en-
forcement of promise. ‘‘Moore’’ Burger, Inc. v.
Phillips Petroleum Co., Tex., 492 S.W. 2d 934.
It is reasonably inferable that the ‘‘action or forbear-
ance’’ which the Respondent, as promisor, expected to
induce from the Union, as promisee, was an agreement
with the Respondent’s proposals in the fall of 1990 for
specific dollar amount payments of insurance pre-
miums, distinct from the ‘‘100%’’ language of the ex-
pired collective-bargaining agreement. The Union in
fact was not so induced, i.e., the Union clearly did not
agree to the ‘‘specific dollar amount’’ theory of the
Respondent’s proposal. In the absence of this induced
action, promissory estoppel is not applicable.6
Further assuming, arguendo, that it is appropriate
here to address an equitable estoppel theory, as the
Union appears to suggest by arguing that the parties’
fall 1989 conduct sheds light on their fall 1990 con-
duct, we similarly conclude that the circumstances do
not warrant this kind of remedy.7 Thus, the Union con-
tends that the fall of 1989 exchange of correspondence
followed by the Respondent’s implementation of its
proposal led the Union to believe that the parties had
reached an agreement, and it further contends that it
relied in good faith on this past conduct in responding
similarly to the Respondent’s similar proposal in the
fall of 1990. This contention implicitly depends on the
assumption that the Union’s November 22, 1989 re-
sponse—refusing to ‘‘consent to the Company’s imple-
mentation of anything’’—represented, objectively, an
acceptance of the Respondent’s proposal. We think this
assumption unreasonable. As we stated above, the Re-
spondent’s decision to implement in December 1989
appears ambiguous at best on this record; it was not
clear whether the implementation was based on an
‘‘agreement’’ or a unilateral decision. The Union did
not lack the means to clarify the situation at that time,
i.e., to seek from the Respondent an explanation of the
basis for its implementation. Further, because of this
ambiguity, the Company’s fall 1989 conduct was not
so misleading that the Union could reasonably rely on
it in the fall 1990 exchange.
A critical factor in our contractual analysis above, as
well as implicitly in our estoppel analyses, is the
Union’s consistent position in the circumstances of this
case that the Respondent was obligated under the ex-
pired 1987–1988 agreement and Section 8(d) to pay
100 percent of the insurance premiums, regardless of
annual increases, until it bargained in good faith to im-
passe with the Union. Although that position is con-
sistent with the Board’s rationale in the previous pro-
ceeding between these parties, we find that regardless
of the merits of this position, it goes beyond the nar-
1195INTERMOUNTAIN RURAL ELECTRIC ASSN.
8 The judge found that the Respondent’s unilateral payroll deduc-
tions from unit employees’ wages was also unlawful. We note that
the Respondent contends that this conduct was neither alleged as un-
lawful nor litigated. In light of our dismissal of the 8(a)(5) repudi-
ation allegation—the sole allegation of unlawful conduct in the com-
plaint—there is no independent support for an unlawful unilateral
change theory in this case, premised as it was on the existence of
the parties’ purported agreement in the fall of 1990. Whether the Re-
spondent, however, is required to maintain 100 percent coverage pre-
mised on the terms of the expired 1987–1988 collective-bargaining
agreement is a matter to be resolved in the compliance stage of the
above-referenced Board Decision and Order.
1 Intermountain Rural Electric Assn., 305 NLRB 783 (1991).
(Cases 27–CA–10711, 27–CA–10711–3, and 27–CA–10890.)
row scope of the complaint in this case; viz, whether
the parties reached agreement in the fall of 1990. Our
decision here that there was no such agreement reflects
no more than the constraints imposed by the com-
plaint. We do not intend, nor should our decision be
interpreted as having, any effect on the Board’s Deci-
sion and Order at 305 NLRB 783.8
ORDER
The complaint is dismissed.
Donald E. Chavez, for the General Counsel.
Martin Semple and Patrick Mooney (Semple & Jackson), of
Denver, Colorado, for the Respondent.
Joseph M. Goldhammer (Brauer, Buescher, Valentine,
Goldhammer & Kelman), of Denver, Colorado, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried before me in Denver, Colorado, on October 29,
1991, upon a complaint issued by the Regional Director for
Region 27 of the National Labor Relations Board on January
11, 1991. The complaint is based upon a charge filed by
International Brotherhood of Electrical Workers, Local 111,
AFL–CIO, CLC (the Union) on December 28, 1990. It al-
leges that Intermountain Rural Electric Association (Re-
spondent) has committed certain violations of Section 8(a)(5)
and (1) of the National Labor Relations Act (the Act).
Issues
The only issue which is presented here is whether or not
Respondent was privileged to decline to pay an increase in
the medical and dental insurance premiums beginning De-
cember 1, 1990. The General Counsel asserts that it was ob-
ligated to do so by virtue of an actual agreement which Re-
spondent has disavowed; Respondent asserts it simply made
an offer which the Union rejected.
Alternatively, the General Counsel contends that the doc-
trine of equitable estoppel requires Respondent to pay the
amounts in question.
The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. The General
Counsel and Respondent have both filed briefs which have
been carefully considered. Based upon the entire record of
the case, as well as my observation of the witnesses and their
demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a public utility engaged in the supply and
transmission of electrical power with a principal office lo-
cated in Sedalia, Colorado. It annually derives gross revenue
in excess of $250,000 and each year sells services to Colo-
rado enterprises which are directly engaged in interstate com-
merce valued in excess of $50,000; additionally, it annually
purchases and receives goods, materials, and services valued
in excess of $50,000 from sources and points outside Colo-
rado. Accordingly, Respondent admits and I find it to be, an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits the Union is a labor organization with-
in the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
Background
The Union represents Respondent’s production and main-
tenance employees at Sedalia, Strasburg, Woodland Park, and
Conifer, Colorado. The most recent collective-bargaining
contract was from December 1, 1987, through November 30,
1988. Since that time the parties have been without a con-
tract and certain litigation before the Board has occurred, re-
sulting in a hearing before Administrative Law Judge Wil-
liam J. Pannier III and review by the Board. That proceeding
involved, inter alia, the question of whether a valid impasse
had occurred privileging Respondent to make certain unilat-
eral changes including declining to pay a health insurance
premium increase and transferring the cost of that increase
to the employees. Judge Pannier found in Respondent’s
favor, but the Board reversed.1 It held, with respect to the
health insurance issue, that Respondent was not privileged to
pass the premium increases on to the employees and that Re-
spondent had failed to bargain over the issue by simply an-
nouncing it to the Union as a fait accompli. It further held
that the Union had not waived the right to bargain over that
change.
The matters under scrutiny in the case before Judge Pan-
nier involved conduct occurring in late 1988 and early 1989.
In the case at bar, we are focusing on matters which oc-
curred toward the end of 1990. Both proceedings have arisen
because of certain language in the expired collective-bargain-
ing agreement. The parties have disagreed for several years
regarding how that language is to be interpreted as it applies
to the annual premium increases. Part of the problem arises
from a disagreement regarding whether or not a legitimate
impasse occurred in 1988–1989 privileging the unilateral
changes, as litigated earlier. Part of it stems from the parties’
differing perceptions dealing with what their respective du-
ties are toward one another. For whatever reason, the parties
seem unwilling to talk to each other about problems which
1196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
occur. That is unfortunate, because these problems are not in-
surmountable and the only injured persons are the employees
who, as the facts will demonstrate, are being held hostage by
each party.
As Judge Pannier pointed out in his decision, the collec-
tive-bargaining contracts over the years have provided that
the employees will be covered by a Blue Cross/Blue Shield
health plan. The Board and Judge Pannier both observed that
each year that insurance company company adjusts its pre-
miums effective December 1. To account for that expect-
ancy, the parties’ collective-bargaining contracts have been
only for 1 year and have had expiration dates allowing for
sufficient time to accommodate the changed premium rates.
Until 1988 the parties had always reached a new contract
shortly after the new insurance rates became known.
In late 1989, when the new rates for 1990 were set, no
unfair labor practice charges were filed over Respondent’s
handling of the new rates. Nonetheless, the parties became
involved in a theory imbroglio over how it should be ana-
lyzed and handled. That squabble over theory resulted in the
instant litigation when the 1991 rates were announced.
The Evidence
Article 27 of the expired collective-bargaining contract
contains the following language:
A. [Respondent] agrees to keep in full force and ef-
fect during the term of this Agreement the medical in-
surance coverage currently in effect for its permanent,
full-time employees covered by this Agreement. How-
ever, [Respondent] reserves the right to change insur-
ance carriers during the term of this Agreement pro-
vided the new insurance coverage is substantially the
same as the existing coverage.
B. [Respondent’s] maximum contribution to any of
the medical insurance plans in effect for its employees
covered by this Agreement shall not exceed one hun-
dred percent (100%) of the Blue Cross and Blue Shield
Insurance Company premiums. Employees eligible for
any individual medical plan insurance shall not have a
contribution made by [Respondent] for their benefit to
any medical insurance plan in excess of the Blue Cross
and Blue Shield Insurance Company premium for indi-
vidual medical insurance. Employees eligible for family
plan medical insurance shall not have a contribution
made by [Respondent] for their benefit to any medical
insurance plan in excess of the premium for Blue Cross
and Blue Shield Insurance Company Family Plan Medi-
cal Insurance.
C. [Respondent] will keep in full force and effect
during the term of this Agreement the Delta Dental
Plan of Colorado for its permanent, full-time employ-
ees. [Respondent] will pay one hundred percent (100%)
of the premiums for the employees covered by this
agreement. However, [Respondent] retains the right to
change the dental insurance carrier during the term of
this Agreement.
In November 1989, a year before the complaint’s concern,
Respondent dealt with the annual Blue Cross/Blue Shield
premium increase by notifying the Union of the increase. By
letter dated November 8, Respondent’s attorney, Martin
Semple, advised the Union’s business manager, John Davis,
of the increases and presented a short chart describing them.
In his letter, he said: ‘‘[Respondent] proposes, effective De-
cember 1, 1989, to pay for members of the bargaining unit
up to a maximum of [same figure as listed in the chart] . . .
If you have any objections to [Respondent] implementing
this benefit for members of the bargaining unit effective De-
cember 1, 1989, please let me know. Otherwise [Respondent]
will implement this benefit on [that date].’’
Semple’s letter triggered the following response from the
Union’s attorney, Joseph Goldhammer: ‘‘[I]t is the position
of the Union that the Company has not bargained in good
faith to impasse with the Union and, therefore, must adhere
to the wages, hours and other terms and conditions of em-
ployment set forth [in the expired collective bargaining
agreement]. While the agreement expired, Section 8(a)(5) of
the [Act] requires the Company to maintain the status quo
. . . . The status quo with respect to the medical and dental
insurance is set forth in [the above-quoted article of the col-
lective bargaining agreement]. The agreement provides that
with respect to health insurance, [Respondent] will contribute
100% of the Blue Cross/Blue Shield Insurance Company pre-
miums . . . . The Union does not consent to the Company’s
implementation of anything. Nevertheless, the Union has in-
sisted and will insist that the Company pay 100% of the Blue
Cross/Blue Shield Insurance Company premiums at all times
unless and until the Company bargains to a good faith and
legal impasse with the Union.’’
Respondent thereupon implemented the payment of the
new, increased premiums. In its memo to employees explain-
ing the increased premium payment, its assistant general
manager, John Pope, asserted that it was doing so because
the Union, after having been advised of the proposal, had not
requested bargaining over it.
In August, Semple wrote Davis to advise him that Re-
spondent proposed an additional paid holiday on Christmas
Eve since it fell on a Monday that year. He again asked to
be advised if the Union had any objection. Five days later,
Davis advised that he ‘‘concur[red] with [Respondent’s] im-
plementation of this benefit.’’
It is the following evidence which is the factual predicate
for the complaint. On October 8, 1990, Semple again advised
the Union, via a letter and chart virtually identical to the
1988 notice, of the new premium rates. Again using ‘‘pro-
posal’’ language, he said Respondent wished to pay the
amount called for by the preceding chart. As before, he
asked Davis to advise him if he had any objections to the
new premium payments being paid on behalf of bargaining
unit members for, if not, Respondent would begin paying
those amounts on their behalf as of December 1, 1990.
[There followed some correspondence from Semple dated
October 11, 1990, relating to a correction of one of the fig-
ures and a notice of increase in the dental premiums].
Again Goldhammer responded. In his letter of October 12,
1990, he said: ‘‘Our position with regard to your letter of
October 8, 1990 is consistent with that stated in my letter of
November 22, 1989 [recited supra]. The Company has not
bargained in good faith to impasse with the Union and is,
therefore, not privileged to implement any of its bargaining
proposals . . . . Since the Company has failed to bargain to
good faith impasse with the Union, it cannot make unilateral
changes and, therefore, must adhere to the wages, hours and
1197INTERMOUNTAIN RURAL ELECTRIC ASSN.
other terms and conditions of employment set forth [in the
expired collective bargaining agreement]. While the agree-
ment expired, Section 8(a)(5) of the [Act] requires the Com-
pany to maintain the status quo prior to the expiration of that
agreement until it bargains to good faith impasse with the
Union . . . . The status quo with respect to the medical and
dental insurance is set forth in [above quoted article of the
collective bargaining agreement]. The agreement provides
that with respect to health insurance, [Respondent] will con-
tribute 100% of the Blue Cross/Blue Shield Insurance Com-
pany premiums.’’
As in his 1989 letter, Goldhammer concluded with: ‘‘The
Union does not consent to the Company’s implementation of
anything. Nevertheless, the Union has insisted and will insist
that the Company pay 100% of the Blue Cross/Blue Shield
Insurance Company premiums at all times unless and until
the Company bargains to a good faith and legal impasse with
the Union.’’ [Emphasis added.]
Subsequently, on October 29, 1990, Goldhammer re-
sponded to the October 11 letter correcting one of the figures
and announcing the dental premium hike. He concluded that
letter with: ‘‘I will, then, simply reiterate that the Union does
not consent to the Company’s implementation of any-
thing. . . . [and repeats his contention that Respondent is
obligated to pay 100% of the premiums].
Also on October 29, Karen Evans, Respondent’s assistant
to the general manager and manager of human resources,
wrote a memo to the employees. It begins with an assertion
that a memo from Davis to the employees (which is not in
evidence) demanded a response. She first argued that Davis
was incorrect regarding who was responsible for the absence
of a wage increase saying the Union was to blame, not the
Company. She then turned to the health and dental insurance
matters and quoted Goldhammer’s October 12 letter, arguing
it was a Union admission that it had blocked such increases.
She quotes Goldhammer’s statement that ‘‘the Union does
not consent to the Company’s implementation of anything’’
and ended saying, because of the Union’s position, ‘‘[Re-
spondent] can only continue to pay the current contributions
for health and dental insurance . . . and you will pay the dif-
ference . . . The Personnel Department plans to provide for
the appropriate payroll deduction unless you notify them im-
mediately.’’
On November 1, 1990, Evans advised each employee what
his or her payroll deduction would be and notified them that
the deduction would be taken from their 20th of the month
paycheck beginning in December.
On November 1, 1990, Davis responded with a memo of
his own, which attempted to put the previous correspondence
in what he deemed to be the proper perspective. He accuses
Respondent of selective quotation and refers to the fact that
Judge Pannier’s decision had been appealed.
On November 16, 1990, Goldhammer wrote Semple a let-
ter acknowledging that the Union and Respondent have a dis-
agreement over the meaning of the collective-bargaining con-
tract’s language (whether it provided for a ceiling on the size
of the premium as Respondent contends or for full coverage
no matter what the premium, as the Union contends). In an
apparent effort to ameliorate their differences, Goldhammer
said:
Regardless of who is right, . . . the increased pre-
miums should be paid by the company. If the union is
right, the company has no choice but to pay the in-
creases. If the company is right, the union will not
stand in the way of the premium increases being paid
by the company. Such action by the union would be in-
consistent with our position that the premium increases
must be paid by the company anyway.’’ [Emphasis
added.]
He said the correspondence the previous year had resulted in
an agreement that the higher premiums be paid, with the par-
ties reserving their respective positions regarding why they
should be paid. He claimed a similar agreement had been
reached in October 1990, but that Respondent had gone di-
rectly to the employees to advise them that they would have
to shoulder the increase. He concluded:
[O]ur position is that the company must pay the in-
creases and the union will take no action against the
company if the increases are paid. [He goes on to say
if Respondent does not pay, the Union will take legal
action to obtain payment; underscore in original.]
Up to the date of the hearing, Respondent had continued
to decline to make the payments in full, requiring the em-
ployees to make up the difference. Moreover, it never sought
to discuss with the Union the means by which the increases
would be paid, whether by payroll deduction or by independ-
ent payment.
IV. ANALYSIS AND CONCLUSIONS
If one were to look for the reasons for this dispute, with-
out any concern for complying with one’s duty under the
law, there is blame which can be assigned to each party.
Moreover, both messengers Semple and Goldhammer can
rightly be faulted for petty posturing. This entire dispute has
elements suggesting it is both contrived and artificial. The
employees in question face real and difficult health coverage
concerns, yet both lawyers, in the guise of concern for those
employees’ well-being, are playing a game of chicken, each
trying to force the other off the road. That attitude does not
speak well for either of them.
My job, however, is to perform a factual analysis and
apply the appropriate law. In this instance, I conclude that
the General Counsel has demonstrated that Respondent has
entered into and reneged upon an agreement to pay the full
amount of the premiums which it offered on October 8 (as
corrected and expanded upon on October 11), 1990. In that
letter, Respondent advised the Union of the premium pay-
ments it intended to make. That offer did not require the em-
ployees to contribute to the payment of any premiums, either
the medical insurance or the dental. Furthermore, that offer
was never withdrawn. The only thing which happened was
Goldhammer’s immoderate remarks that the Union was not
‘‘consenting’’ to anything which Respondent chose to do.
I agree with Respondent that Goldhammer’s words could
be read as a rejection of the bargaining obligation and there-
fore a rejection of an offer. It could also be interpreted as
an angry waiver of the right to bargain and an authorization
for Respondent to proceed. Yet, in context, it was neither. In-
stead, it was a testy statement that the Union would not, be-
cause it was concerned with remedying what it believed to
be previous unfair labor practices, waive its statutory right to
1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Frankly, I have difficulty in perceiving Respondent’s so-called
‘‘offer’’ as a legitimate bargaining proposal. Sec. 8(d) of the Act,
upon the contract’s expiration, had set the levels of wages, hours and
conditions of employment for the employees, including the levels of
health and dental insurance coverage. It did not set the price for
those benefits. Respondent’s only duty, therefore, was either to
maintain the levels of coverage or propose changes in them. Its cost
to either maintain or change those levels of coverage was therefore
not a mandatory subject of bargaining which it was obligated to pro-
pose to the Union when the insurance companies increased their bil-
lings. It is, instead, only a business overhead matter. Of course the
price of insurance might become a topic to be discussed at the bar-
gaining table if wages became an issue and the parties were forced
to allocate between wages and fringe benefits, but standing alone it
is nothing more than a business expense.
In a sense therefore, Respondent’s ‘‘offer’’ may be seen as an at-
tempt to hurry the Union simply by bringing the subject to its atten-
tion. Clearly Respondent’s price for insurance was of very little in-
terest to the Union. It had no ability to influence it through the col-
lective-bargaining process. Therefore, it had no counterproposal to
make and Semple knew it. The Union’s replies to Respondent’s bait
were unfortunate and it fell into Respondent’s trap of engaging in
an unnecessary word war.
bargain over unilateral changes. Semple knew that; it had
been the center of litigation before Judge Pannier.
Moreover, as a practical matter, Respondent had no inten-
tion of depriving the employees of health coverage. If it had,
it would not have made the offer it did. The entire scenario,
as Semple readily saw, provided Respondent with an oppor-
tunity to take a free shot at the Union. It was prepared to
pay the full premium amounts and could afford to do so. At
the same time, it was undergoing litigation and having com-
munication problems with the Union. By blaming the Union
for the wage deductions, Respondent knew it would lose
nothing financially, but might sting the Union in a way
which would cause it severe internal discomfort. Conceiv-
ably, it might even result in membership disaffection. And,
even if Respondent lost any ensuing litigation over the mat-
ter, it didn’t affect the budget one way or another. If ordered
to make the employees whole for premiums they shouldn’t
have had to pay, the money was always there and Respond-
ent was always prepared to pay it. The whole battle could
have been avoided had Goldhammer simply replied, as Davis
had with the Christmas Eve proposal, that the Union had no
objections. Instead, he provided Semple with a chain, and
Semple yanked it.
Even so, Goldhammer’s comments were not a directive to
Respondent to not implement the proposal. When he learned
Respondent was treating his response as a rejection, he
quickly, and timely, corrected any misapprehension Respond-
ent may legitimately have had. His letter of November 16,
1990, clearly advised Respondent that it was free to imple-
ment its proposal. He said, ‘‘[T]he union will not stand in
the way of the premium increases’’ previously proposed by
Respondent. He even went on to say the Union would take
no action against Respondent if it paid those moneys. His
letter was more than a month before the December 20 pay-
check, the first in which payroll deductions were to be taken.
Moreover, taking Respondent’s ‘‘offer’’ language at face
value,2 Goldhammer’s letter can reasonably be seen as an ac-
ceptance of an unwithdrawn offer. Indeed, none of
Goldhammer’s letters can be seen as a rejection of that offer.
Therefore, Respondent’s argument that the offer was with-
drawn by the Union’s act of declination is rejected. More-
over, the Board, affirmed by the circuit courts of appeal, has
frequently held that that particular rule of contract law is not
usually applicable in cases arising under the Act. Pepsi-Cola
Bottling Co. of Mason City v. NLRB, 659 F.2d 87, 89 (8th
Cir. 1981), vacated on other grounds 466 U.S. 901 (1884);
Presto Casting Co. v. NLRB, 708 F.2d 495, 497 (9th Cir.
1983); Georgia Kraft Co. v. NLRB, 696 F.2d 931, 937–938
(11th Cir. 1983). Respondent, therefore, has no valid jus-
tification for refusing to honor its own commitment. Accord-
ingly, I find that refusal to be an unlawful repudiation within
the meaning of Section 8(a)(5) and (1). See Indiana &
Michigan Electric Co., 284 NLRB 53 and cases cited at 59
(1987).
Having made the above findings, it is unnecessary to again
determine whether the language of the collective-bargaining
contract requires Respondent to pay 100 percent of any pre-
mium charged by the insurance company or whether it limits
the amount to be paid to that set by the insurance company
during the 1987–1988 insurance year. The Board, in the ear-
lier case, determined that the Union’s argument over contract
interpretation was the better and observed that Respondent’s
argument was not even available insofar as the dental insur-
ance was concerned. Even so, it is not necessary to follow
that track here. While the facts are somewhat similar to the
previous case, they more strongly support a finding of offer,
acceptance and disavowal. It is also unnecessary to determine
if the doctrine of promissory estoppel should be invoked.
THE REMEDY
Having found Respondent to have engaged in certain vio-
lations of Section 8(a)(5) and (1) of the Act, I shall rec-
ommend that it be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
policies of the Act. In addition, it shall be ordered to make
whole, with interest, those employees for whom it unlawfully
deducted from their paychecks moneys used to pay health
and dental insurance premiums. In this regard, interest shall
be paid in accordance with New Horizons for the Retarded,
283 NLRB 1173 (1987). Since this benefit involves term
health and dental insurance, rather than an ongoing savings
or pension plan no order under Ogle Protection Service, 183
NLRB 682 (1970), is required. However, if any employee
was deprived of those coverages for failing to pay the in-
crease, he or she (or his/her family if that coverage had been
chosen) shall be reimbursed for out-of-pocket expenses in-
curred. Otherwise, Respondent shall pay the exact amounts
deducted or separately paid plus interest.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following
CONCLUSION OF LAW
By refusing to pay the agreed-upon health and dental in-
surance premium increases and by unilaterally and without
negotiating with the Union regarding the manner in which
they were to be paid, Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]