National Fuel Corp.

National Labor Relations Board - Board Decisions

Sep 17, 1992

308 N.L.R.B. 841 (N.L.R.B. 1992)

841
308 NLRB No. 115
NATIONAL FUEL CORP.
1 On a charge filed by James M. Schlosser, on behalf of Local
Union 2279, International Brotherhood of Electrical Workers, AFL–
CIO, on August 24, 1990, and on amended charges filed on Septem-
ber 17, October 26, and December 31, 1990, the General Counsel
of the National Labor Relations Board issued a complaint on August
24, 1990, and an amended complaint on January 8, 1991. The Re-
spondent filed answers to the complaint and the amended complaint.
2 On May 28, 1991, the parties filed with the Board a stipulation
of facts and a joint motion to transfer this proceeding to the Board.
The parties waive a hearing before an administrative law judge, the
making of findings of fact and conclusions of law by an administra-
tive law judge, and the issuance of a decision by an administrative
law judge, and agree to submit the case directly to the Board for
findings of fact and conclusions of law, and the issuance of a Deci-
sion and Order. The parties agree that the charge and amended
charges, complaint and amended complaint, answer and amended an-
swer, and stipulation, with attached exhibits, shall constitute the en-
tire record in this case and that no oral testimony is necessary or
desired by any of the parties.
On July 29, 1991, the Board issued an order granting the motion,
approving the stipulation, and transferring the proceeding to the
Board. Thereafter, the General Counsel, the Respondent, and IBEW
Local 2154 filed briefs.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
National Fuel Gas Distribution Corporation, a
Wholly Owned Subsidiary of National Fuel
Gas Company and James M. Schlosser, on be-
half of Local Union 2279, International Broth-
erhood of Electrical Workers, AFL–CIO and
Local Union 2154, International Brotherhood
of Electrical Workers, AFL–CIO, Party in In-
terest. Case 3–CA–15852
September 17, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The unfair labor practice issues presented here con-
cern whether the Respondent has violated Section
8(a)(5), (3), and (1) of the Act by unilaterally repudiat-
ing certain terms in its collective-bargaining agree-
ments with IBEW Local Unions 2154 and 2279. Those
terms provide that employees who are on leaves of ab-
sence to serve as union officials will continue to re-
ceive retirement plan service credit and may continue
to participate in a thrift plan.1 These issues are to be
resolved directly by the Board on the basis of a stipu-
lated record.2
On the entire record the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a public utility incorporated in
New York State and engaged in the purchase, distribu-
tion, and retail sale of natural gas. It has a principal
office and place of business in Buffalo, New York, and
various facilities elsewhere in New York and in north-
western Pennsylvania. During the 12-month period pre-
ceding execution of the stipulation, the Respondent
purchased goods and services which were valued in
excess of $50,000 and were furnished to the Respond-
ent’s New York State facilities directly from points
outside of the State. The parties have stipulated, and
we find, that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act, and that the Unions are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
On March 16, 1964, IBEW Local 2154 was certified
as the exclusive collective-bargaining representative of
an appropriate unit of certain employees of the Re-
spondent. Since that date, the Respondent has recog-
nized Local 2154’s representative status and has en-
tered into successive collective-bargaining agreements,
including an agreement which was effective from Feb-
ruary 15, 1989, to February 14, 1992. Article XVII,
2(b) of that agreement stated, in relevant part:
A maximum of two regular employees of the
Company who are elected or appointed to the po-
sition of Business Manager or full time Officer of
the Union shall, upon making application, be
granted a leave of absence without pay for the pe-
riod for which he was elected or appointed, but
not to exceed a period of two (2) years. Applica-
tions for additional leave(s) for the same purpose
will be granted. During all such leaves the em-
ployee’s seniority shall be preserved and main-
tained in the same manner and to the same extent
as if he continued in his regular job. Employee
benefits of . . . Thrift Plan may be maintained
during such leave(s) at the option and at the ex-
pense of the employee . . . .
On March 19, 1969, Local 2279 was certified as the
exclusive collective-bargaining representative of an-
other appropriate unit of certain employees of the Re-
spondent. Since that date, the Respondent has recog-
nized Local 2279’s representative status and has en-
tered into successive collective-bargaining agreements,
including an agreement which is effective from April
26, 1990, to April 13, 1993. Section 15, paragraph 4
of that agreement states, in relevant part:
Any regular employee of the COMPANIES who
is elected or appointed to the position of Business
Manager of the UNION shall, upon making appli-
cation, be granted a leave of absence without pay
for the period for which he was elected or ap-
pointed, not to extend beyond the termination date
of this Agreement. During any such leave the em-
ployee’s seniority shall be preserved and main-
tained in the same manner and to the same extent
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 All subsequent dates are in 1990, unless otherwise indicated.
4 This is the phrase used by the parties in their stipulation. It refers
to service credits for pension plan purposes.
5 The retirement plan is fully funded. The Respondent has not been
required to make contributions on behalf of unit employees since
1986.
as if he continued in his regular job, and the
COMPANIES shall contribute one-half (1/2) of
his Retirement Program payments.
From July 1, 1987, to June 30, 1990, employee Dan-
iel Gallagher took an unpaid leave of absence to serve
as a business manager for Local 2154. From July 1,
1968, to June 30, 1972, from July 1, 1985, to June 30,
1987, and again from July 1, 1990, to at least May 28,
1991 (the date of the parties’ stipulation of facts), em-
ployee Stanley Bosinski took unpaid leaves of absence
to serve as business manager for Local 2154. At all
relevant times since July 1980, employee James
Schlosser has been on unpaid leave of absence while
serving as business manager for Local 2279.
Gallagher, Bosinski, and Schlosser have vested in-
terests in the Respondent’s pension plan. Prior to
March 19, 1990,3 the Respondent indicated that it
would credit Local 2154 and Local 2279 business
managers with ‘‘years of retirement plan benefit serv-
ice’’4 while on the unpaid leaves of absence permitted
by their respective collective-bargaining agreements.5
In addition, prior to April 20, 1990, the Respondent
permitted Local 2154 Business Managers Gallagher
and Bosinski to participate in the Respondent’s thrift
plan by sending checks on a monthly basis to the Re-
spondent for deposit in their thrift plan accounts. The
Respondent made matching contributions.
On January 16 and March 16, the Respondent met
with representatives of both Unions. It announced that
it could no longer allow business managers on leaves
of absence from their unit jobs to accrue years of re-
tirement plan benefit service. The Respondent relied on
the Third Circuit’s decision in Trailways Lines v.
Trailways Joint Council, 785 F.2d 101 (1986). The Re-
spondent also refused to permit these persons to par-
ticipate in the Respondent’s thrift plan because of
Trailways and Federal tax regulations. The Respondent
requested that the Unions cooperate in a ‘‘friendly’’
Federal law suit to test the Trailways holding. The
Unions were unwilling to cooperate in the proposed
legal action.
On March 19 and 20, the Respondent individually
notified Gallagher and Schlosser that they could not
accrue years of benefit service under the retirement
plan for times these employees were, and had been, on
leaves of absence serving as business managers. On
April 20, the Respondent gave the same notice to
Bosinski.
On April 20 and May 24, respectively, the Respond-
ent informed Bosinski and Gallagher that they could
not participate in the Respondent’s thrift plan while on
unpaid leave serving as business managers for Local
2154. Prior contributions made by these employees
while on unpaid leave were returned to them, and prior
matching contributions by the Respondent were de-
clared forfeited.
B. Contentions of the Parties
The General Counsel and Party in Interest Local
2154 allege that the Respondent violated Section
8(a)(5) by unilaterally discontinuing existing contrac-
tual benefits which were mandatory subjects of bar-
gaining. They further allege that the Respondent’s con-
duct violated Section 8(a)(3) because it was inherently
destructive of employees’ statutory rights.
The Respondent contends that the discontinued ben-
efits violated Section 302 of the Act, section 415 of
the United States Internal Revenue Code, and United
States Department of the Treasury Regulation 1.414—
2(d)(1), et seq. Therefore, it argues, the benefits were
illegal, rather than mandatory, subjects of bargaining,
and their unilateral discontinuation did not violate Sec-
tion 8(a)(5) or (3). Finally, the Respondent contends
that it met its obligation to bargain in good faith with
the Unions by informing and discussing with them the
alleged legal mandates with which it felt constrained to
comply.
C. Discussion and Conclusions
1. The alleged 8(a)(5) violation
Section 302(a) of the Act states in pertinent part:
(a) It shall be unlawful for any employer . . .
to pay, lend, or deliver, or agree to pay, lend, or
deliver any money or other thing of value—
(1) to any representative of any of his employ-
ees who are employed in any industry affecting
commerce; or
(2) to any labor organization, or any officer or
employee thereof, which represents, seeks to rep-
resent, or would admit to membership, any of the
employees of such employer who are employed in
an industry affecting commerce . . . .
The fundamental purpose of Section 302(a) is to
prevent bribery and extortion schemes between em-
ployers and union officials. Section 302(c) exempts
several specific situations from Section 302(a). Of par-
ticular relevance to this proceeding, Section 302(c)
states that the prohibition and criminal sanction provi-
sions shall not apply
(1) in respect to any money or other thing of
value payable by an Employer . . . to any officer
or employee of a labor organization, who is also
an employee or former employee of such em-
843NATIONAL FUEL CORP.
6 BASF Wyandotte Corp., 274 NLRB 978 (1985), enfd. 798 F.2d
849 (5th Cir. 1986).
7 As stated in BASF Wyandotte, 274 NLRB at 979:
If [the Board] refused to consider a contention that a contract
provision violates Section 302, the Board would risk placing a
party in the position of being required to comply with two con-
flicting statutory mandates: adhere to the contract provision and
violate Section 302 or unilaterally cease to honor the provision
and violate Section 8(a)(5) or 8(b)(3). In addition, because both
Section 302 and the National Labor Relations Act, as amended,
are encompassed in the LMRA, it would be particularly incon-
gruous for Section 8 of the National Labor Relations Act to be
interpreted and applied in isolation from Section 302.
8 785 F.2d at 105.
9 Id. at 105 fn. 5.
10 We note that the contractual provision at issue in Trailways per-
mitted employees on leaves of absence to serve as union officials
to ‘‘retain and accumulate their seniority while in such service.’’
Trailways, 785 F.2d at 103 fn. 1. There was no apparent challenge
to the legality of this benefit.
11 Sec. 15, par. 4 of the Local 2279 contract does expressly require
the Respondent to contribute one-half of retirement plan payments
on behalf of employees on leaves of absence to serve as union offi-
cials. Because the Respondent has not made any payments pursuant
to this provision, we need not pass on the legality of this contractual
requirement.
12 The 302(c)(1) exemption applies equally to employees and to
former employees. We therefore need not decide whether unit em-
ployees on leaves of absences pursuant to the terms of the Respond-
ent’s collective-bargaining agreements with the Unions are employ-
ees or former employees within the meaning of this section.
ployer, as compensation for, or by reason of, his
service as an employee of such employer.
Authority to restrain violations of Section 302 is
vested in the United States district courts by Section
302(d) and (e). The Board has no authority to enforce
Section 302. Nevertheless, the Board has held that it
would, if necessary, decide whether contract provisions
violated Section 302 ‘‘in the course of determining
whether an unfair labor practice has occurred.’’6 We
therefore find it appropriate in this case to decide the
merits of the Respondent’s Section 302 defense in de-
termining whether its unilateral abrogation of contrac-
tual benefits violated Section 8(a)(5) and/or (3).7
As previously indicated, the Respondent’s Section
302 defense is premised on the Third Circuit’s deci-
sion in Trailways. The court there held that contrac-
tually mandated payments to a jointly administered
pension fund on behalf of union officers who were on
leave from their employment with Trailways violated
Section 302(a). In so holding, it rejected the union’s
argument that the payments were exempt, and there-
fore legal, pursuant to the terms of Section 302(c)(1).
Regarding the exemption, the court stated that
‘‘[c]learly, the statute contemplates payments to former
employees for past services actually rendered by those
former employees while they were employees of the
company.’’8 The court emphasized that the amount of
pension fund contributions was measured by the sala-
ries received by former employees ‘‘in their current
union positions, thereby indicating that the pension
fund contributions made on their behalf are geared to
the contemporaneous services to the Union.’’9 Accord-
ingly, the court found that those contributions were not
‘‘compensation for, or by reason of’’ former employ-
ees’ service to Trailways within the meaning of the
302(c)(1) exemption.
Contrary to the Respondent, we find that the holding
of Trailways does not compel a finding of illegality as
to either of the contractual benefits at issue here. Ini-
tially, we note that the benefit which the court found
to be illegal in Trailways entailed a direct payment of
money to a pension fund. By contrast, the retirement
plan here was fully funded. The Respondent has made
no contributions on behalf of any unit employees, in-
cluding Gallagher, Bosinski, and Schlosser, since 1986.
Consequently, the retirement plan seniority credit ac-
corded these individuals did not involve any present
payment to, or specific promise to pay money on be-
half of, the union officials on leaves of absence from
their jobs with the Respondent. In the absence of the
requisite payment or promise to pay, the provisions of
Section 302(a) do not apply.10 Accordingly, we find
that the retirement plan service credit provisions in the
Respondent’s contracts with Local 2154 and Local
2279 were not illegal within the meaning of Section
302.11
Unlike the retirement plan service credit, the thrift
plan benefit in the Local 2154 bargaining agreement
did entail payment by the Respondent of matching
contributions on behalf of employees who paid into the
plan while on leave from their jobs and serving as offi-
cials of that union. We nevertheless find that the hold-
ing of Trailways does not control the issue of the le-
gality of this thrift plan benefit. In addition, for pur-
poses of this part of the analysis, we assume arguendo
that the service credits under the retirement plan have
a monetary value and are therefore covered by Section
302(a). For the reasons which follow, we find that both
benefits are exempt under Section 302(c)(1) from the
provisions of Section 302(a) because they represent
compensation to an employee or former employee12
‘‘by reason of’’ their service as employees of the Re-
spondent.
As previously indicated, the Trailways court found
that the pension fund contributions were not exempt
under Section 302(c)(1) because: (1) the amount of the
pension fund payments was measured by the amount
of the employees’ current union wage; and (2) the em-
ployees were not currently performing services in ex-
change for those payments. The court did not indicate,
however, whether compensation continuing beyond an
employee’s service with an employer could still be ex-
empt as a compensation ‘‘by reason of’’ such service
if it was not measured by the payment for services cur-
rently performed for another employer, i.e., the union.
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 883 F.2d at 1304.
In agreement with the judicial opinions discussed
below, we find that the exemption should apply in
such circumstances.
In BASF Wyandotte Corp. v. Chemical Workers
Local 277, 791 F.2d 1046 (2d Cir. 1986), the court of
appeals examined the significance of Section
302(c)(1)’s disjunctive phrase ‘‘as compensation for, or
by reason of’’ in holding that contractual ‘‘no-dock-
ing’’ provisions, which protected union stewards from
loss of pay for time spent on union business, were ex-
empt under that provision:
It appears that in using the alternative formula-
tions ‘‘for’’ and ‘‘by reason of,’’ Congress in-
tended to cover two general categories of em-
ployee compensation: (1) wages, i.e., sums paid to
an employee specifically for the work he per-
forms, and (2) compensation occasioned by the
fact that the employee has performed or will per-
form work for the employer, but which is not
payment directly for that work.
In Communications Workers v. Bell Atlantic, 670
F.Supp 416 (D.D.C. 1987), the court relied on BASF
Wyandotte in upholding the legality of several contract
benefit provisions for union officers on leave from
their employment with Bell Atlantic. One of those pro-
visions permitted accrual of years of service toward re-
tirement benefits, essentially the same benefit as the
retirement plan service credit at issue in this case. The
district court found that these benefits were compensa-
tion ‘‘by reason of’’ past services performed for the
employer, and thus were intended by Congress to be
exempt under Section 302(c)(1) from the general pro-
hibition in Section 302(a). The court said that the case
did not present the Trailways danger of bribery of em-
ployee representatives or extortion of employers, the
evils at which Section 302(a) is aimed. It also noted
that none of the benefits were determined, as in Trail-
ways, by current union compensation or services. Fi-
nally, the court emphasized that the benefit provisions
were the result of collective bargaining.
In Toth v. USX Corp., 883 F.2d 1297 (1989), the
Seventh Circuit endorsed the reasoning of the courts in
BASF Wyandotte and in Bell Atlantic with respect to
the meaning of Section 302(c)(1). It viewed the ex-
emption as
permitting payments to former employees as long
as those payments are in some way motivated by
past services.
One obvious instance in which continuing pay-
ments constitute recompense for past services is
when those continuing payments were bargained
for and formed part of a collective bargaining
agreement. . . . Employees might accept lower
wages now in return for future benefits; the work
they subsequently perform is as surely performed
in order to earn those future benefits as it is to
earn current wages. In those cases future benefits
would be ‘‘in compensation for’’ or ‘‘by reason
of’’ past employment.13
In the instant case, only those union officials who
have performed services in employment with the Re-
spondent and who are on contractually limited leaves
of absence from that employment are eligible to re-
ceive the benefits at issue. Furthermore, the eligibility
for those benefits was not governed in any way by the
rendering of present services to the Unions. It is true
that in a literal sense pension accruals were derived
from that employment. Likewise, it is true that the
business agents’ wages for such services may have
been the source of their contributions to the Respond-
ent’s thrift plan and that the Respondent’s matching
contributions in turn were determined by the employ-
ees’ own contribution level. However, unlike Trail-
ways, supra, there is no evidence that the amount of
any contribution was based on the level of wages
earned by the employee from the Union. In these cir-
cumstances, any nexus between the benefits and cur-
rent employment by the Union does not negate the link
between those benefits and past service with the Re-
spondent. In fact, the benefits are the express result of
collective bargaining between the Unions and the Re-
spondent about present and future compensation of
unit employees for work performed for the Respond-
ent. In accord with the judicial precedent reviewed
above, we find that the retirement plan seniority credit
and the thrift plan eligibility provisions for unit em-
ployees on leave from jobs with the Respondent to
serve as union officials constitute compensation ‘‘by
reason of’’ services performed for the Respondent.
Those contractual provisions are therefore exempt from
Section 302(a) pursuant to Section 302(c)(1). Accord-
ingly, the Respondent’s claim that the contractual ben-
efits at issue are illegal under Section 302 is without
merit.
Respondent also relies on section 415 of the Internal
Revenue Code and interpretive Treasury Regulation
1.415—2(d)(1), et seq. These provisions set forth the
qualification requirements for certain tax preferences
accorded to an employee benefit trust, like the thrift
plan involved herein. In relevant part, these provisions
limit annual contributions on behalf of a trust fund par-
ticipant to the lesser of $30,000 or 25 percent of the
participant’s compensation for services ‘‘actually ren-
dered’’ while working for the employer. The Respond-
ent argues that employees on leave while serving as
union officials for a full year receive no compensation
for work performed for the Respondent. Therefore, the
lesser of the two figures discussed above is said to be
‘‘zero.’’ Accordingly, Respondent says that it is pre-
845NATIONAL FUEL CORP.
14 Compare par. 13.03 of the retirement plan, entitled ‘‘Intended
That Plan Qualify,’’ which expressly provides that the retirement
plan be construed in a manner consistent with the requirements of
the ERISA and the Internal Revenue Code.
15 See Bil-Mar Foods, 286 NLRB 786, 789 (1987), and case cited
there.
cluded from contributing anything into a qualified
thrift plan. Furthermore, the Respondent contends that
permitting those individuals to participate in the thrift
plan could jeopardize the thrift plan’s tax-preference
qualified status.
We find no merit in the Respondent’s reliance on
these Federal tax provisions as justification for its uni-
lateral repudiation of contractual thrift plan obligations.
The Respondent has not presented any authority under
which the Internal Revenue Service has disqualified a
benefit trust plan that included the benefit at issue
here. Nor does the Respondent seem to be arguing
here that the thrift plan authorized the Respondent to
make such changes in its contribution practices so as
to preserve the qualified tax status of the plan.14 Even
if it were clear, however, that the thrift plan would be
disqualified as the result of participation by employees
who are on unpaid leave and serving as union officials,
this would not mean that Respondent would be forbid-
den from participation. Internal Revenue Code section
415 does not forbid anything and it does not entail
criminal sanctions. It merely sets forth the qualifica-
tions for preferred tax treatment of an employee bene-
fit trust. Thus, the subject is not an illegal subject.
Rather, because contributions are an emolument of em-
ployment, such a trust is a mandatory subject of bar-
gaining, whether or not it qualifies for preferential tax
treatment. Although a loss of tax-preference qualified
status due to maintenance of the contractual provision
at issue might entail significant financial costs for the
thrift plan, the appropriate mechanism for consider-
ation of that potential consequence is collective bar-
gaining, not unilateral repudiation of a contract term.
Based on the foregoing, we find that neither the
contractual retirement plan seniority credit nor the con-
tractual thrift plan eligibility provision for employees
on leave to serve as union officials were illegal sub-
jects of bargaining. The Respondent concedes that the
discontinued benefits relate to unit employees’ wages,
hours, and other terms and conditions of employment.
Therefore, we find that those benefits are mandatory
subjects of bargaining. We turn, then, to the question
of whether the Respondent has met its statutory bar-
gaining obligation prior to terminating those contrac-
tual benefits.
The Respondent contends essentially that it did all
that it was required to do by notifying the Unions and
discussing with them what the Respondent perceived
to be a legally mandated repudiation of contract terms.
It does not contend, nor do the stipulated facts show,
that the parties actually bargained about the matter. At
the January 16 and March 16, 1990 meetings, the Re-
spondent merely presented the Unions with a fait
accompli and an invitation to go to court. The Unions’
refusal to cooperate in a lawsuit clearly did not con-
stitute a waiver of their bargaining rights with respect
to established contractual terms. Accordingly, we find
that the Respondent’s subsequent unilateral termination
of existing contractual retirement plan and thrift plan
benefits for employees on leave to serve as union offi-
cials violated Section 8(a)(5).
2. The alleged 8(a)(3) violation
The General Counsel argues that the Respondent’s
termination of contract benefits for employees on leave
to serve as union officials also violated Section 8(a)(3),
even in the absence of independent evidence of dis-
criminatory motivation, because the Respondent’s con-
duct was ‘‘inherently destructive of important em-
ployee rights.’’ See NLRB v. Great Dane Trailers, 388
U.S. 26 (1967). We find, however, that the Respond-
ent’s termination of the contract benefits involved here,
based on a good-faith, albeit erroneous interpretation
of law and regulations, was not of the breadth or char-
acter of conduct which the Board and courts have de-
fined as ‘‘inherently destructive.’’15 Accordingly, we
shall dismiss the complaint allegations that the Re-
spondent violated Section 8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, National Fuel Gas Distribution
Corporation, a wholly owned Subsidiary of National
Fuel Gas Company, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Local Unions 2154 and 2279, International Broth-
erhood of Electrical Workers, AFL–CIO are labor or-
ganizations within the meaning of Section 2(5) of the
Act.
3. (a) The following employees of the Respondent
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act:
All operating employees including all production
and maintenance employees, meter readers, and
sub-foreman B employees, excluding all office
clerical employees, professional employees,
watchmen and senior watchmen, employees in
areas not served Iroquois Gas Corporation, all
other employees, and guards and supervisors as
defined in the Act.
(b) IBEW Local 2154 is, and at all material times
has been, the exclusive collective-bargaining represent-
ative, within the meaning of Section 9(a) of the Act,
of the employees in the above-described unit.
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. (a) The following employees of the Respondent
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act:
All production, maintenance, pumping station and
distribution employees of the Respondent, exclud-
ing field clerks, office clerical employees in gen-
eral offices and commercial offices of the Re-
spondent, gas dispatchers in the general office and
guards, professional employees and supervisors as
defined in the Act.
(b) IBEW Local 2279 is, and at all material times
has been, the exclusive collective-bargaining represent-
ative, within the meaning of Section 9(a) of the Act,
of the employees in the above-described unit.
5. By unilaterally terminating contractual retirement
plan seniority credit for employees who had served or
were serving as union officials for Local 2154 and
Local 2279, and by unilaterally terminating contractual
thrift plan eligibility for employees who had served or
were serving as union officials for Local 2154, the Re-
spondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
7. The Respondent has not otherwise violated the
Act.
REMEDY
Having found that Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease
and desist and to take certain affirmative action nec-
essary to effectuate the policies of the Act. We shall
order that, on request of the Unions, the Respondent
reinstate the existing contractual practices of permitting
employees serving as officials of Locals 2154 and
2279 while on leave from jobs with the Respondent to
continue to accrue years of benefit service under the
Respondent’s retirement plan and to maintain their eli-
gibility to participate in the Respondent’s thrift plan.
We shall further order the Respondent to credit James
Schlosser, Stanley Bosinski, and Daniel Gallagher with
benefit service under the Respondent’s retirement plan
for the times these employees spent serving as business
managers for the Unions while on leave from their
jobs with the Respondent. Finally, we shall order the
Respondent to make these employees whole for any
losses that they may have suffered as a result of the
Respondent’s unlawful unilateral changes. Such losses
shall be computed in the manner set forth in Ogle Pro-
tection Service, 183 NLRB 682 (1970), and New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, National Fuel Gas Distribution Corpora-
tion, a wholly owned Subsidiary of National Gas Com-
pany, Buffalo, New York, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Unilaterally changing existing terms and condi-
tions of employment of employees in appropriate bar-
gaining units represented by IBEW Locals 2154 and
2279 by refusing to permit unit employees serving as
union officials while on leave from their jobs with the
Respondent to accrue years of benefit service under the
Respondent’s retirement plan.
(b) Unilaterally changing existing terms and condi-
tions of employment of employees in the Local 2154
bargaining unit by refusing to permit employees serv-
ing as union officials while on leave from their jobs
with the Respondent to participate in the Respondent’s
thrift plan.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request of the Unions, reinstate and adhere
to the existing contractual practice of permitting unit
employees represented by both Unions to accrue serv-
ice credit under the Respondent’s retirement plan for
time spent as union officials while on leave from jobs
with the Respondent.
(b) On request of Local 2154, reinstate and adhere
to the existing contractual practice of permitting unit
employees represented by that Union to participate in
the Respondent’s thrift plan.
(c) Credit James Schlosser, Stanley Bosinski, and
Daniel Gallagher with benefit service under the Re-
spondent’s retirement plan for the times these employ-
ees spent serving as business managers for the Unions
while on leave from the jobs with the Respondent, and
make these employees whole for any losses or ex-
penses they may have suffered as a result of Respond-
ent’s failure to adhere to the applicable collective-bar-
gaining agreements with the Unions, in the manner set
forth in the remedy section of this decision.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at each of its facilities where unit employ-
ees work in New York State and Northwestern Penn-
sylvania, copies of the attached notice marked ‘‘Ap-
847NATIONAL FUEL CORP.
16 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
pendix.’’16 Copies of the notice, on forms provided by
the Regional Director for Region 3, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not
specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Local Unions
2279 and 2154, International Brotherhood of Electrical
Workers, AFL–CIO as exclusive bargaining representa-
tives of our employees in separate appropriate bargain-
ing units, by unilaterally repudiating the terms our col-
lective-bargaining agreements with the Unions which
permit unit employees serving as union officials while
on leave from their jobs with us to accrue years of
benefit service under our retirement plan.
WE WILL NOT refuse to bargain with Local Union
2154 by unilaterally repudiating the terms our collec-
tive-bargaining agreement with that Union which per-
mit unit employees serving as union officials while on
leave from their jobs with us to participate in our thrift
plan.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request of the Unions, reinstate and
adhere to the existing contractual practice of permitting
unit employees represented by both Unions to accrue
service credit under the retirement plan for time spent
as union officials while on leave from their jobs with
us.
WE WILL, on request of Local 2154, reinstate and
adhere to the existing contractual practice of permitting
unit employees represented by that Union to participate
in the Respondent’s thrift plan while on leave from
their jobs with us to serve as union officials.
WE WILL credit James Schlosser, Stanley Bosinski,
and Daniel Gallagher with benefit service under the re-
tirement plan for the times these employees spent serv-
ing as business managers for the Unions while on
leave from their jobs with us, and WE WILL make these
employees whole for any losses or expenses they may
have suffered as a result of our failure to adhere to the
applicable collective-bargaining agreements with the
Unions.
NATIONAL FUEL GAS DISTRIBUTION
CORPORATION, A WHOLLY OWNED SUB-
SIDIARY OF NATIONAL FUEL GAS COM-
PANY