United States Testing Co.

National Labor Relations Board - Board Decisions

Oct 29, 1997

324 N.L.R.B. 854 (N.L.R.B. 1997)

854
324 NLRB No. 136
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In its exceptions, the Respondent contends that improper ex parte
communications occurred between counsel for the General Counsel
and Administrative Law Judge Davis. We have reviewed the relevant
correspondence concerning this claim and are satisfied that Associate
Chief Administrative Law Judge Biblowitz appropriately disposed of
it. No improper communications were shown to have occurred and,
accordingly, the relief requested by the Respondent was unwar-
ranted. The Respondent’s exceptions on this issue are, therefore, de-
nied.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent has also excepted to the judge’s failure to find
that a successor collective-bargaining agreement had been reached.
Any issues concerning such an agreement may be addressed in the
compliance phase.
3 The Respondent has excepted, inter alia, to the judge’s Order that
it provide the Union with certain information. As the judge set out
in his opinion, the Union met the relevancy test for information con-
cerning employees outside the unit, except with respect to claimants’
names. The judge carefully crafted his Order to reflect this analysis.
Thus, while the Order requires the Respondent to provide the names
of plan participants, it does not require the Respondent to provide
claimants’ names with the claims data to which the Union is entitled.
To clarify that the Union need not renew its information requests,
the Order is modified by replacing par. 2(b) with the following:
(b) Furnish to the Union in a timely manner the information re-
quested by the Union, both orally and in writing, on October 12,
14, 17, and 18, 1995, as follows:
(1) The names of each of Respondent’s employees and depend-
ents covered by Respondent’s medical and dental plans.
(2) The claims submitted and paid by Respondent for each and
every benefit provided for the cumulative policy year through
August, 1995.
United States Testing Company and Local Union
1936, International Brotherhood of Electrical
Workers. Case 22–CA–21101
October 29, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On October 21, 1996, Administrative Law Judge
Steven Davis issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs1 and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions and to adopt the rec-
ommended Order as modified.3
The Respondent argues that its refusal to provide the
claims information that the Union requested was based
on privacy concerns, citing Detroit Edison Co. v.
NLRB, 440 U.S. 301 (1979). However, Detroit Edison
is distinguishable. In that case, the employer made ef-
forts to accommodate the Union’s interest in seeing the
relevant information, while not compromising con-
fidentiality. In the instant case, the Respondent simply
rejected the Union’s request. Indeed, the Respondent
took it on itself to tell the Union what information it
needed, based on the Respondent’s narrow view of the
Union’s role in negotiating health care benefits. Health
care costs are clearly a mandatory subject of bargain-
ing and, as they have increased, negotiations over
health care benefits and costs have become an increas-
ingly important agenda item in bargaining. As health
care concessions continue to be sought at the bargain-
ing table, union attention is turning toward new and in-
novative cost containment strategies in contract nego-
tiations.
Thus the Respondent should not have been surprised
that the Union was seeking more than to juggle pre-
mium formulas, the role to which the Respondent
wished to confine it, but rather sought to participate
meaningfully in structuring the benefits for which the
Respondent wanted the bargaining unit to pay. In seek-
ing to play a role in the solution, rather than simply
making a substantial concession on the Respondent’s
say-so, the Union was fulfilling its role as the employ-
ees’ statutory bargaining representative.
With respect to the Respondent’s allegation that the
Union had engaged in dilatory tactics, on the one occa-
sion when the Union postponed a meeting, the meeting
was rescheduled for 2 days later and the Respondent
did not seek additional dates. On a subsequent occa-
sion, the Respondent itself rejected one of the Union’s
proffered dates. These facts present no basis for find-
ing that the Union engaged in a pattern or practice de-
signed to avoid bargaining.
Finally, with respect to the issue of impasse, the Re-
spondent failed to offer evidence that its financial situ-
ation was so dire that it either had to implement its
final offer when it did or suffer financial ruin. See
RBE Electronics of S.D., 320 NLRB 80 (1995).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified, and orders that the Respondent, United
States Testing Company, Fairfield, New Jersey, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the order.
Marguerite Greenfield, Esq., for the General Counsel.
Joseph Paranac, Esq. (Jasinski & Paranac, P.C.), of New-
ark, New Jersey, for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge filed by Local Union 1936, International Brotherhood
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855UNITED STATES TESTING CO.
1 All dates hereafter are in 1995, unless otherwise stated.
2 Following the close of the hearing, pursuant to a procedure I au-
thorized, Respondent submitted the affidavit of Frank Palavido,
which I have considered, and received in evidence with General
Counsel’s statement in opposition, as R. Exh. 10. Palavido’s state-
ment does not affect the findings I make here.
of Electrical Workers (the Union) on January 11, 1996, a
complaint was issued by the National Labor Relations Board
for Region 22 on March 28, 1996, against United States
Testing Company (Respondent).
The complaint, as amended at the hearing, alleges that dur-
ing collective-bargaining negotiations for a renewal agree-
ment, the Union requested certain information which Re-
spondent refused to supply. The complaint further alleges
that Respondent unlawfully implemented the terms of its
final collective-bargaining proposal without a valid impasse
having been reached, employees engaged in an unfair labor
practice strike, and Respondent unlawfully failed and refused
to reinstate them.
Respondent denied the material allegations of the com-
plaint, and on May 13 and June 13, 1996, a hearing was held
before me in Newark, New Jersey.
On the evidence presented in this proceeding, and my ob-
servation of the demeanor of the witnesses and after consid-
eration of the briefs filed by the General Counsel and Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, having its office and place of
business in Fairfield, New Jersey, has been engaged in the
business of providing consumer products testing. During the
past year, Respondent in the conduct of its business oper-
ations purchased and received at its Fairfield facility goods
valued in excess of $50,000, directly from points outside
New Jersey. Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Respondent also admits and I find that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Union represents a unit of approximately 11 techni-
cians employed in Respondent’s engineering department.
There are between 85 and 100 other employees employed by
Respondent.
The parties have had collective-bargaining agreements for
many years. The last agreement was due to expire on Octo-
ber 18, 1995.1
On August 1, Respondent’s attorney, David Jasinski, wrote
to the Union, advising it of Respondent’s desire to begin ne-
gotiations, and of its availability in August to do so. On Au-
gust 15, the Union responded that it sought negotiations.
Six sessions were held. Spokesmen were Union Inter-
national Representative Anthony Makris and Respondent’s
attorney, Jasinski.
The first session was held on August 31, where the parties
agreed to present and discuss noneconomic proposals at the
next session.
Jasinski testified that at the August 31 meeting he told the
Union that the Respondent was experiencing financial dif-
ficulties, was ‘‘bleeding,’’ and sought to obtain cost reduc-
tions in negotiations, specifically, that the unit employees
pay for part of their health insurance. Jasinski stated that he
mentioned that the nonunit employees had been paying 20
percent of their health care costs, and that their contribution
had been recently increased to 30 percent. Jasinski further
stated that Union Financial Secretary Frank Razzuoli said
that the Union had not agreed to a 20-percent contribution
in the past, and it would not agree to any contribution now.
Union Officials Makris and Razzuoli could not recall
whether Jasinski asked that unit employees pay for part of
their health insurance.
At the next meeting, held on September 20, the parties ex-
changed their written noneconomic proposals, and provided
explanations for their demands. A new date was set for Octo-
ber 10. Thereafter, Makris called and advised Jasinski that he
was unavailable on October 10, and they agreed to meet on
October 12.
At the October 12 session, agreement was reached on pro-
bationary period and a streamlining of the grievance proce-
dure, and the parties exchanged their economic proposals.
Jasinski testified that at this session, he stated that due to Re-
spondent’s financial situation, and inasmuch as the nonunit
employees contributed 30 percent of their health insurance
costs, Respondent sought to have the unit employees contrib-
ute the same amount to the health plan which covered both
groups. Makris requested a copy of the costs of the health
care plan and the experience rating for the unit employees.
Respondent also proposed a 10-percent wage reduction
and a reduction in the number of paid holidays from 11 to
8.
The parties reviewed the Union’s economic proposals,
which included a 25-percent wage raise and three additional
paid holidays, and the same 401(k) plan that was offered to
nonunit employees.
Respondent provided the Union with a copy of its vacation
policy for nonunion employees and a copy of the names of
the unit employees and the departments in which they
worked. Both documents had been requested by the Union
at the prior meeting.
The Union requested that a Federal mediator attend the ne-
gotiations and Respondent agreed, and they agreed to meet
on October 14.
At the October 14 session, Makris responded to each of
Respondent’s economic proposals, and explained why the
Union either rejected each or how it would affect the unit
employees.
Makris rejected Respondent’s proposal that the unit mem-
bers pay 30 percent of their health insurance premium. He
testified that he told Jasinski that before he could make any
counterproposals concerning the health plan, he needed cer-
tain information, including the names of the employees and
their dependents who participate in the plan—both unit and
nonunit employees; the claims submitted by each of the
members in the plan, and the benefits paid by Respondent
for each claim submitted for 1995, up to August 1995.2
Makris testified that Jasinski asked why he wanted infor-
mation about the nonunit employees, adding that he did not
need such information. Makris replied that he needed it in
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856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
order to offer counterproposals which could satisfy Respond-
ent’s needs to reduce the health plan cost 30 percent. Jasinski
responded that the Union does not need, and is not entitled
to, the information concerning nonbargaining unit employees.
Makris stated that Respondent may have raised the issue
of whether the nonbargaining unit was entitled to privacy or
confidentiality with respect to the medical claims submitted
by those workers. Makris noted that the Union did not seek
the diagnosis of the patient, but only the amount of the bill,
and the sum that was paid.
At that meeting, Respondent gave the Union certain infor-
mation it requested at the prior meeting. The data turned
over consisted of (a) the premium rate and premium paid for
the unit employees, who were not identified by name issued
by U.S. Healthcare, (b) a ‘‘benefit and service analysis’’ con-
sisting of the coverage rates, charges, and adjustments for
medical and dental benefits for all employees, issued by
Aetna’s administrative system, and (c) a benefits’ cost analy-
sis prepared by Respondent, for single and family coverage
under Aetna and U.S. Healthcare, showing the premium per
month, employee cost per month, and the percentage of the
premium paid by employee at 30 percent—in other words,
what employees would pay under Respondent’s proposal.
Makris responded that none of the material furnished satis-
fied the Union’s requests, and such information did not help
the Union. Makris told Jasinski that the Union needed the
names of the employees and their dependents, the claims
submitted by each of them, and the claims paid by the insur-
ance company, and that such information was needed in
order to make a counterproposal. Makris also asked for the
experience rating, which is the ratio of the premiums paid
and the claims paid.
Specifically, Makris told Jasinski that he needed informa-
tion concerning nonbargaining unit employees, because he
sought to determine what types of claims generated the high-
est costs, and from such information make counterproposals,
which might include a higher deductible or higher out-of-
pocket payments for the employees.
At the hearing, Makris stated that he needed individual
claims information in order to determine the type of claims
submitted and to ascertain which claims resulted in the most
payments. Thus, if most of the large claims were for sur-
geries as opposed to physicians’ visits and X-rays, he would
then examine the plan documents, determine what type of
coverage was provided for surgeries, and recommend
changes in the plan in order to reduce the costs to the em-
ployer. Thus, Makris might propose managed care treatment,
preadmission testing, and out-patient surgery. He might also
propose that employees pay a higher deductible, or be sub-
ject to a copayment requirement.
At the negotiation session, Jasinski responded that the
Union did not need such information, and is not entitled to
such data concerning nonbargaining unit employees. Makris
then rejected the Respondent’s health care proposal, because
of Jasinski’s refusal to provide any further information.
Jasinski asked Makris to make a written request for the in-
formation. The request stated, in material part, as follows:
The names of each company employee and dependent
covered by the company’s medical and dental plan; the
names and claims submitted and paid by the company
for each and every benefit provided for the cumulative
policy year up to August, 1995. I request the above
mentioned information in order for the negotiating com-
mittee to intelligently and fairly respond to your health
insurance proposal.
Respondent made concessions concerning its proposals, as
follows: Although Respondent had proposed a 3-year collec-
tive-bargaining agreement, it agreed to the Union’s request
for a 1-year contract. It also offered to increase its offer of
the number of holidays from eight to nine; and agreed to the
Union’s proposal that overtime be paid after 35 hours, and
not after 40, as Respondent had originally proposed.
Jasinski testified that the session concluded when, less
than 3 hours after it began, Makris announced that the Union
‘‘had enough for today’’ and that it would return on October
17. Jasinski replied that he was ready to stay all day if nec-
essary.
A Federal mediator was present at the final two sessions,
those of October 17 and 18, at the Union’s request and Re-
spondent’s agreement.
At the October 17 meeting, Respondent provided a docu-
ment entitled, ‘‘Aetna experience monitoring—1995–96, cu-
mulative policy year as of August, 1995.’’ The document
shows for all the employees, unit and nonunit, for the period
March through August 1995, the total claims paid, the pre-
miums paid, and the ratio of the two numbers. In each
month, the claims paid exceeded the premiums paid. This
constitutes the experience rating.
On receiving this information, Makris informed Jasinski
that this was not what the Union sought. He said that the
document omits the name of the claimant and the nature of
the claim, and the individual claims for all employees, union
and nonunion, covered under the plan. According to Makris,
Jasinski became angry, and announced that this document
was all that the Union was entitled to, and that was all that
it would receive. Makris then rejected Respondent’s health
insurance proposal.
Jasinski testified that he again stated that he was con-
cerned about violating the privacy of those nonunion claim-
ants whom the Union did not represent. He further stated that
this was the first time that the Union requested the claims
by category. In this respect, it should be noted that Makris
testified that certain matters were discussed at the previous,
October 14 meeting, which Jasinski attributed to this meet-
ing.
Also at this session, the Union made counterproposals con-
cerning its economic demands, by decreasing its holiday pro-
posal. Respondent also provided the Union with a copy of
the health and welfare plan and pension plan.
The next meeting was held on October 18. On midnight
of that day, the contract was due to expire. The unit employ-
ees worked that day, and certain employees removed their
personal belongings from their work stations during the
workday.
At the meeting, Respondent presented further information
to the Union. It consisted of a listing, by name, of all unit
employees, and the premiums paid by them, and the claims
paid, from January 1994 through August 1995. It shows that
in 1994, premiums paid were $55,122, and claims paid were
$27,116. In 1995, premiums paid were $37,659, and claims
paid were $22,441.
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857UNITED STATES TESTING CO.
Another document given to the Union at that time set forth
total amounts of premiums paid and claims paid for union
employees, nonunion employees, and the total for the entire
Company for the same period of time as the first document.
These documents showed that in 1994, the premiums paid
for union and nonunion personnel exceeded the claims paid
by 55 percent. However, in 1995, the claims paid for non-
union employees exceeded the premiums paid by 39 percent,
while the premiums paid for union workers exceeded the
claims paid in their behalf by 60 percent. The figure for the
entire Company in 1995 was that the claims paid exceeded
the premiums paid by 30 percent.
Makris informed Jasinski that these documents were not
what he had asked for. Makris stated that he was not seeking
total numbers, rather the Union sought individual claims by
each member and their dependents. Makris further noted that
the information provided was of no help, because it did not
identify the costs of the benefits, although he conceded that
his request was somewhat satisfied with respect to the first
document which listed the union employee name.
At the meeting, the Union withdrew about nine of its pro-
posals, modified one or two others, and refused to alter a
couple of others.
Makris testified that there was no other movement on any
other proposals that day. He asked Jasinski to continue the
negotiations since the Union had not been given an oppor-
tunity to ‘‘go into depth’’ in the negotiations. Jasinski replied
that Respondent’s final proposal was on the table. Makris
asked that Jasinski put the final proposal in writing. Jasinski
did so and Makris said that the Union’s committee rejected
it, but that he would present it to the union membership, and
advise Respondent.
Jasinski testified that following his presentation of the ex-
perience rating information to the Union, Makris asked for
the individual claims for the nonunit employees. Jasinski re-
plied that he could not provide it because of privacy con-
cerns. It should be noted that in his pretrial affidavit, Jasinski
said that he did not furnish the information about the claims
history of the nonunit employees, because the Union did not
explain why such information was relevant. The affidavit
was silent about privacy concerns. However, Jasinski’s bar-
gaining notes record that he did raise that issue, and I find
that he did. It should be noted that Makris testified, as noted
above, that Jasinski may have raised that issue at the October
14 session.
Jasinski further stated that at the last session, Respondent
increased its offer of holidays, from 9 to 10, and also pro-
posed a 401(k) plan for unit employees. The Union proposed
(a) a 3-year collective-bargaining agreement, notwithstanding
that a agreement on a 1-year term had been reached in the
prior session, (b) wage raises of 6 percent in each of the 3
years, and (c) no contributions to the health and welfare
fund. The Union rejected Respondent’s wage and health in-
surance proposal.
Jasinski stated that after Respondent made its proposal for
a 401(k) plan, Makris said that there was no movement.
Jasinski then said that ‘‘we are at an impasse.’’ Makris re-
plied that Respondent should make its final offer and he
would have the membership vote on it. Jasinski denied that
Makris told him that the parties should continue to negotiate,
because they did not have an opportunity to go into depth
with the negotiations.
Before the workday began the following morning, October
19, the Union’s negotiating team met with the unit employ-
ees. Respondent’s final offer was explained in detail to the
membership. The employees asked questions such as whether
the Employer modified certain of its proposals, and whether
the Union responded to certain proposals. Makris told the
employees that the Union had ‘‘no opportunity to respond.’’
The employees voted to reject Respondent’s final proposal.
Union Official and Respondent employee Razzuoli testi-
fied that at that meeting, no one liked Respondent’s final
offer, and no one wanted to work under those conditions.
The employees believed that the contract was not fair in that
it would mean a 30-percent cut overall in their pay and bene-
fits. The negotiating committee members told the union
members that they recommended rejection of the proposal,
because it was ‘‘general knowledge’’ that Respondent was
‘‘taking us on’’ and wanted to ‘‘get rid of them.’’
Makris stated that it has been the parties’ practice, for the
past 20 years, that Respondent would not present its com-
plete offer in its final package, but that the membership
would vote, and reject its final offer as presented, then work
for 2 to 3 days under the expired agreement, and then agree-
ment on a new contract would be reached. The employees
also voted that a letter be given to Respondent.
The letter, signed by Union President Tom Fuller, was
presented to Respondent on October 19. It stated that the
union membership rejected the Respondent’s ‘‘most recent
proposal,’’ but that the Union wishes to continue to nego-
tiate. The letter advised that the employees are willing to
continue to work under the existing terms and conditions of
the expired agreement ‘‘for a reasonable period of time while
we continue to negotiate.’’
Respondent replied the same day with the following letter.
It states in material part:
Your conditional offer to return to work under the
terms and conditions of the expired collective-bargain-
ing agreement . . . is rejected.
We have reached an impasse in the negotiations and
this is to advise you that [Respondent] hereby imple-
ments the terms and conditions set forth in its final
offer.
The members of Local 1936 may return to work only
under the implemented terms and conditions of the
Company’s final offer.
Makris testified that prior to that letter, Respondent had
not mentioned the word ‘‘impasse.’’ The employees picketed
with signs that said that they were locked out.
Respondent Manager Pepe testified that in the first days of
the strike, supervisors and managers performed the work of
the striking employees. However, the workload was too great
and, on October 22, an advertisement was placed in a news-
paper.
On October 25, Union President Fuller addressed a letter
to one of Respondent’s customers, which advised it that the
Union has been involved in a labor dispute with Respondent
concerning its technical employees who test the customer’s
product. Fuller stated that in his opinion ‘‘there are no expe-
rienced or qualified technicians performing testing proce-
dures at this time,’’ and advised the customer to ‘‘check all
test reports for accuracy . . . and visit the plant to observe
for yourself why jobs are late and how the tests are being
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858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The fact that a successor agreement was executed is relevant in
view of other evidence received concerning events occurring after
the commission of the alleged unfair labor practices.
performed. Our technicians have been performing these tests
on your products for well over 20 years and, in my opinion,
have been the only people qualified to perform such tests.
Those doing the testing now haven’t used the equipment in
years, or in some cases, may never have used the equip-
ment.’’
In early November, Pepe interviewed applicants, and in
mid-November, hired permanent replacements. He stated that
he believed that it was necessary to hire permanent replace-
ments, because the technical expertise required by the job
was at a fairly high skill level.
Razzuoli stated that on one day in December, he and oth-
ers distributed leaflets at Respondent’s Hoboken head-
quarters. The leaflet stated as follows:
Informational Notice
U.S. Testing President, Ken Elkin locks out Local
Union 1936 at Fairfield branch with unreasonable pro-
posals
10% reduction in wages
No paid absences (sick days)
Reduce holidays by one
35 hr. work week
Mandatory overtime—paid only after 40 hrs. work
No company contributions to existing pension plan
Over 275 years of dedicated service lost for no good
reason
What next for U.S. Testing employees?
On December 11, the union membership voted to accept
Respondent’s final offer. Makris informed Respondent of
this, and said that the employees wished to return to work.
In response, a letter was addressed that day from Jasinski to
the Union, which states in material part:
In response to Local 1936’s offer to return to work
under [Respondent’s] implemented terms and conditions
of employment, this is to advise you that four positions
have been eliminated and nine permanent replacements
have been hired to fill the remaining positions. There
are no vacant positions available at this time.
Any striking employee who makes or has made an
unconditional offer to return to work will be placed on
a preferential recall list on the basis of seniority. In the
event that a position becomes available, those employ-
ees on that list will be recalled.
As of the date of the hearing, Respondent has not rein-
stated any employees. However, additional bargaining ses-
sions were held in January and February 1996, resulting in
the parties entering into a successor collective-bargaining
agreement.3
William Mulcahy, a health insurance underwriter, testified
in behalf of Respondent that premiums paid by an employer
may be reduced by transferring the costs to the employees
by (a) having them pay part of the premium, and (b) a
change of the plan design so that employees pay more of the
out-of-pocket costs, such as deductible expenses and coinsur-
ance.
Mulcahy offered the opinion that a change in a plan to
shift costs through a higher deductible or copayment requires
no information from the insurance company. Nor would the
insurance carrier need the names of the employees covered
by the plan, or require the individual claims history for each
employee covered by the plan. He noted that the insurance
company would be able to advise how much of a cost saving
would be achieved if the deductible or coinsurance payment
was raised.
A. Positions of the Parties
The General Counsel argues that the information requested
by the Union was relevant and necessary to the performance
of its duties as the collective-bargaining representative of the
unit employees, and that Respondent’s failure to produce the
data violated the Act.
The General Counsel contends further that Respondent’s
failure to produce the information prevented a valid impasse
from occurring since, if the Union had that information, it
could have made proposals which may have resulted in
agreement being reached, thereby avoiding impasse. Thus, it
is argued, that Respondent’s failure to provide the informa-
tion precluded the Union from making a counterproposal,
thereby preventing a valid impasse from occurring. It is ar-
gued, in the alternative, that aside from the information issue,
the evidence does not establish that a valid impasse had been
reached.
The General Counsel asserts that the strike constituted an
unfair labor practice strike, because Respondent’s unfair
labor practices in refusing to provide the information or, al-
ternatively, implementing its final offer without a valid im-
passe having been reached, ‘‘inherently tainted and pro-
longed negotiations.’’
Finally, the General Counsel argues that, as unfair labor
practice strikers, the employees could not validly be perma-
nently replaced, and on their offer to return to work, should
have been immediately reinstated.
Respondent argues that the information sought was irrele-
vant, confidential, and unduly burdensome, and that it had no
obligation to furnish the Union with such information. It con-
tends that a valid impasse was reached in view of the
Union’s ‘‘bad faith’’ during negotiations, and that it was jus-
tified in implementing its final proposal.
Respondent further contends that there is no causal nexus
between its alleged failure to provide the information re-
quested and the strike. Accordingly, it is argued that the
strike was an economic strike which permitted Respondent to
employ permanent replacements for the strikers.
B. Analysis and Discussion
1. The refusal to furnish information
The complaint alleges that Respondent has failed and re-
fused to furnish the Union with the following information:
(a) the names of each of Respondent’s employees and de-
pendents covered by Respondent’s medical and dental plans,
and (b) the names and claims submitted and paid by Re-
spondent for each and every benefit provided for the cumu-
lative policy year through August 1995.
It is well settled that an employer must provide a union
with information that is relevant to its carrying out its statu-
tory duties and responsibilities in representing employees.
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859UNITED STATES TESTING CO.
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). This
duty to provide information includes information relevant to
negotiations. Barnard Engineering Co., 282 NLRB 617, 619
(1987).
Respondent supplied some of the information sought, spe-
cifically the names of the bargaining unit members, the pre-
miums paid on their behalf, and the claims paid, and the ex-
perience rating. Further information furnished included the
total amounts of premiums paid and claims paid for all em-
ployees, unit and nonunit.
The information sought by the Union, which was not
turned over, concerns matters outside the bargaining unit,
specifically data concerning nonunit employees’ and their de-
pendents’ names and their claims.
Where, as here, the information sought concerns matters
outside the bargaining unit, the Union bears the burden of es-
tablishing the relevance of the requested information. Reiss
Viking, 312 NLRB 622, 625 (1993); Duquesne Light Co.,
306 NLRB 1042 (92). A union has satisfied its burden when
it demonstrates a reasonable belief supported by objective
evidence for requesting the information. Knappton Maritime
Corp., 292 NLRB 236, 238–239 (1988).
The Board uses a broad, discovery-type standard in
determining relevance in information requests, including
those for which a special demonstration of relevance is
needed, and potential or probable relevance is sufficient
to give rise to an employer’s obligation to provide in-
formation. [Shoppers Food Warehouse, 315 NLRB 258,
259 (1994).]
I find that the Union has satisfied its burden of establish-
ing the relevance of the requested information. In seeking the
information, the Union set forth its reason in writing at the
October 14 session—to intelligently and fairly respond to
Respondent’s health insurance proposal. Notwithstanding
Jasinski’s testimony that no reason was given by the Union
for seeking such information, I find that the reason set forth
was sufficient.
Respondent’s proposal, to require employees to pay part of
their insurance premium, represented a drastic departure from
the employees’ experience. For as long as the employees
have enjoyed health insurance, the Respondent paid the en-
tire premium. Accordingly, Respondent’s request that the
workers pay 30 percent of the premium constituted an ex-
treme measure.
The information requested was clearly relevant to the
Union’s ability to ‘‘properly assess the employer’s proposals
and, concomitantly, to properly formulate bargaining propos-
als of its own.’’ Decker Coal Co., 301 NLRB 729, 740
(1991).
First, it must be observed that according to the information
furnished the Union, it appears that one reason for Respond-
ent’s demand that the unit employees contribute to the health
insurance premiums was that the benefits paid exceeded the
premiums paid, and that Respondent was thereby ‘‘bleed-
ing,’’ as Jasinski mentioned in his initial statement to the
Union.
Further, as set forth in the documents presented on Octo-
ber 18, in 1995, the nonunit employees’ benefits paid ex-
ceeded their premiums paid, while the unit employees’ pre-
miums exceeded their benefits paid. Simply stated, the unit
employees’ health care experience was profitable for Re-
spondent, while Respondent was losing money due to the
poor claims experience of its nonunit employees.
Thus, inasmuch as both groups are members of the same
plan, the unit employees were apparently being asked to con-
tribute to the health plan because of the unprofitable claims
experience of the unit employees. Accordingly, information
sought regarding the nonunit employees which caused the
unprofitable claims experience for the company as a whole
was properly sought. See Langston Cos., 304 NLRB 1022,
1071 (1991), where the Board upheld a union’s request for
information concerning a ‘‘corporatewide policy’’ which re-
lates to unit and nonunit employees.
Based on the documents turned over by Respondent, the
Union’s obvious concern was with the difference in claims
experience between the unit and nonunit employees, and it
was entitled to examine such an issue, and thereby justify its
position that the unit employees not contribute toward the
health insurance premium. See Martin Marietta Energy Sys-
tems, 316 NLRB 868, 874 (1995), where the Board required
the employer to furnish information concerning health care
costs on the ground that the information sought ‘‘was rel-
evant to proposals being explored by the union for presen-
tation to the respondent . . . [and] was relevant to the
union’s collective-bargaining responsibilities.’’
It must be noted that although the information sought,
strictly speaking, concerns the nonunit employees, such in-
formation directly relates to, and has an unequivocal effect
on, the unit employees. Thus, both groups are members of
one health plan. The poor claims experience of the nonunit
employees was apparently being used by Respondent to im-
prove its experience rating, by shifting to its unit employees
the obligation to pay part of their premiums.
Thus, as Makris testified, in preparing its counteroffer, the
Union sought such information as the category of the claims
in order to determine in which medical areas the claims pre-
dominated. With such information, the Union expected to ex-
amine the plan and determine what counteroffer could be
proposed, such as increasing the deductible for surgeries if
that medical specialty was frequently utilized. In addition, as
set forth above, such proposals might include higher deduct-
ible and out of pocket payments for the employees, or
changes in the plan, such as managed care treatment,
preadmission testing, and outpatient surgery, or a copayment
requirement.
The Union has clearly satisfied its obligation to prove that
the information requested has potential or probable relevance
to the negotiations, and specifically to Respondent’s pro-
posal, and the Union’s formulation of its counteroffer.
I cannot find, however, that the Union’s request for the
names of the claimants is relevant. The Union was con-
cerned, foremost, with obtaining information concerning the
nature of the claims, their frequency, and the premiums and
payments made for each claim. As set forth above, I find that
Jasinski raised the issue of the confidentiality of the claim-
ants’ names during bargaining. I do not find that there is any
proper purpose for the Union’s receipt of the names of the
claimants which, when connected with the claim itself, may
reveal the private nature of the medical claim. However, I
find that all other information requested by the Union, as set
forth in the complaint, is relevant. The claims information
which I shall direct to be furnished to the Union shall not
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860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Bohemia, Inc., 272 NLRB 1128 (1984), relied on by Respondent,
is distinguishable. The information requested by the union there was
found not to be relevant, because the request was based solely on
the suspicion, without any objective factual basis, that work had
been transferred to another location, and because the union did not
raise the subject matter of the information request during the collec-
tive-bargaining negotiations. In contrast, here the Union had an ob-
jective basis for making the request and the matter was discussed
during bargaining.
contain the names of the claimants, but shall specify whether
the claim was submitted by a unit employee or a nonunit em-
ployee.
I have considered Respondent’s argument, and the testi-
mony of William Mulcahy, an independent health insurance
underwriter, that no information was needed from the insur-
ance carrier in order to change an existing health plan in
order to shift the cost of premiums to employees. He testified
that such a change could be brought about by providing for
a higher deductible or copayment, and that, on request, a car-
rier could advise as to the amount of reduction of the pre-
mium if the deductible or coinsurance payment was raised by
a certain amount.
I accept Mulcahy’s testimony that the information re-
quested by the Union, such as the names of the claimants
and the experience rating, was irrelevant to the impact on the
costs of the health insurance plan, because it had no bearing
on the amount of reduction the insurance company would as-
sign given a request to increase the deductible or coinsur-
ance. However, such information was quite relevant to the
Union’s appraisal of the claims experience of the employees,
both unit and nonunit, and its appreciation of Respondent’s
demands that employees contribute to the plans, and the for-
mulation of its own proposals and counteroffers to meet the
Respondent’s asserted needs to reduce its costs with respect
to the health insurance plan.4
2. The alleged impasse and Respondent’s
implementation of its final offer
The complaint alleges that Respondent unlawfully imple-
mented the terms of its final proposal without a valid im-
passe having been reached.
The General Counsel argues that Respondent’s failure to
furnish the information to the Union which it requested pre-
cluded a lawful impasse. I agree.
A legally recognized impasse cannot exist where the
employer has failed to satisfy its statutory obligation to
provide information needed by the bargaining agent to
engage in meaningful negotiations. A failure to supply
information relevant and necessary to bargain con-
stitutes a failure to bargain in good faith in violation of
Section 8(a)(5), and no genuine impasse could be
reached in these circumstances. [Decker Coal Co., 301
NLRB 729, 740 (1991).]
Genstar Stone Products Co., 317 NLRB 1293, 1294
(1995), involved a situation, similar to the instant case,
where employees had not contributed toward health insur-
ance premiums during their 16-year coverage by the health
plan. The employer sought ‘‘substantial concessions’’ from
the union, including employee contributions to the health
plan, which ‘‘became a major dividing point in negotia-
tions.’’ The union’s requests for information for health care
cost financial records were not complied with, such informa-
tion being needed by the union to evaluate the employer’s
proposal. The Board held that the employer’s ‘‘unlawful re-
fusal to provide information precluded a lawful impasse,’’
and that it was, therefore, not privileged to unilaterally im-
plement its final offer.
I, accordingly, find that Respondent’s refusal to furnish
such requested information which I have found relevant pre-
cluded a lawful impasse from being declared. Such informa-
tion was needed by the Union in order to engage in meaning-
ful negotiations about major concessions being demanded
concerning the health plan. This was the first time that em-
ployees had been requested to contribute to the cost of the
health plan, and the demanded 30-percent contribution rep-
resented a substantial concession.
On receiving the information, the Union would then be in
a better position to make an informed assessment of Re-
spondent’s proposal, focus its inquiry into those areas of the
health plan suffering the worst experience rating, and make
an accurate, pointed proposal toward remedying the poor ex-
perience rating borne by Respondent. The process of collec-
tive bargaining would thereby be enhanced and speeded if
the Union had such information, and it could reasonably be
expected that impasse could have been avoided.
Apart from my finding that the declaration of impasse was
unlawful because of Respondent’s refusal to furnish certain
information to the Union, I further find that no impasse had
occurred on October 19, 1995, when Respondent imple-
mented the terms of its final proposal.
The Board has defined impasse as the point in time
of negotiations when the parties are warranted in as-
suming that further bargaining would be futile. Both
parties must believe that they are at the end of their
rope. [Larsdale, Inc., 310 NLRB 1317, 1318 (1993).]
It was only at the fourth of six sessions that the parties
exchanged their economic proposals, and at the fifth session
that the proposals were responded to and discussed in detail.
Minor agreements on certain, few noneconomic terms were
reached by the end of the bargaining, but the few actual bar-
gaining sessions did not leave sufficient time for substantial
discussion on the major issues of concern to the parties. In
addition, since most of the discussion that did occur centered
around the Respondent’s health care proposal, not much time
was left for negotiation of other matters, particularly Re-
spondent’s demand for a 10-percent wage reduction.
The Union demonstrated its ability to be flexible by reduc-
ing its demand for additional holidays, and agreeing to Re-
spondent’s proposals for probationary period and a streamlin-
ing of the grievance procedure. I have considered Respond-
ent’s arguments that the Union was predisposed to refusing
to reach agreement by its cancellation of one meeting, refus-
ing to stay for a longer time at another meeting, and the em-
ployees’ removal of their personal belongings on their last
day of work. However, these minor impediments to the bar-
gaining process did not excuse the premature declaration of
impasse.
‘‘Respondent was required to give the bargaining process
a chance to work. The purpose of the duty to bargain is to
give the collective-bargaining process a chance to operate re-
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861UNITED STATES TESTING CO.
gardless of the possibility of success.’’ A.M.F. Bowling Co.,
314 NLRB 969, 978 (1994).
Given the relatively few bargaining sessions, the substan-
tial concessions sought by Respondent, including a 30-per-
cent contribution to the health plan and a 10-percent wage
reduction, there simply was insufficient time to bargain.
When one considers that the full economic proposals were
exchanged at the fourth session, discussed at the fifth ses-
sion, and the contract expired at midnight of the sixth ses-
sion, it is obvious that impasse was declared prematurely.
In addition, at the last session, the Union withdrew nine
of its proposals. Although it is disputed whether Makris, at
the last session, said that he wanted to negotiate further be-
cause the Union did not have an opportunity to go into
‘‘depth’’ in the bargaining, nevertheless, after the vote to re-
ject Respondent’s final offer, the Union presented its letter
on October 19 advising Respondent that it wished to nego-
tiate further.
Based on all the above, I find and conclude that there was
no genuine impasse on October 18, and that by subsequently
implementing its proposals, Respondent violated Section
8(a)(5) and (1) of the Act.
3. The unfair labor practice strike
The complaint alleges that the strike was an unfair labor
practice strike from its inception, and was caused by Re-
spondent’s unfair labor practices. Respondent argues that the
strike was an economic strike.
Just prior to the vote to reject Respondent’s final offer, the
Union’s negotiating team explained to the employees in de-
tail Respondent’s final offer. Questions were asked whether
Respondent modified its proposals and whether the Union re-
sponded to Respondent’s proposals. Makris testified that the
Union had ‘‘no opportunity’’ to respond to certain proposals.
Although Makris’ testimony is not clear, a proper finding
may be made that his statement to the employees that the
Union had no opportunity to respond, was in answer to a
question concerning health benefits. Thus, Makris’ October
14 letter requesting information stated that he needed the in-
formation in order to respond to Respondent’s health insur-
ance proposal. It may be inferred that Makris’ statement to
the employees that he could not respond to certain Respond-
ent’s proposals referred to the fact that the Union did not re-
ceive the information it requested in order to properly re-
spond.
As testified by Razzuoli, the employees rejected the offer,
in part because of the drastic, 30-percent cut in their pay and
benefits which they believed would be the result of the offer.
In view of the above limited testimony given by Makris
and Razzuoli, I cannot make a definite finding that employ-
ees decided to strike because of Respondent’s refusal to fur-
nish information to the Union.
However, such a finding is not necessary in view of the
facts here. Thus, as set forth above, on October 19, after re-
jecting Respondent’s final offer, the Union told Respondent
that it wished to negotiate further, and that the employees
would ‘‘continue to work’’ under the terms of the expired
contract. The employees had not yet struck. Respondent re-
jected this offer, and required that they continue to work
‘‘only under the implemented terms and conditions of the
Company’s final offer.’’
Thus, Respondent caused the strike by refusing to permit
the employees to continue to work unless they agreed to ac-
cept the unlawfully implemented terms of its final offer. As
I have found above, Respondent’s final offer was imple-
mented unlawfully because there was no genuine impasse
and, if there was an impasse, it was tainted by Respondent’s
unlawful refusal to supply the requested information to the
Union. Indeed, in the absence of a lawful impasse, Respond-
ent’s conduct in refusing to permit the employees to continue
to work because they would not accept the implemented
terms and conditions of employment, and Respondent’s hire
of replacement employees to perform unit work, appears to
constitute an unlawful lockout. Branch International Serv-
ices, 310 NLRB 1092, 1105 (1993). However, the complaint
does not allege that Respondent locked out its employees,
and I make no such finding.
Thus, it was Respondent which caused the strike. The
union members did not vote to strike. They only voted to re-
ject the Respondent’s final offer, and in fact requested per-
mission to continue to work while negotiations continued. In
response, Respondent refused to permit them to continue to
work unless they agreed to accept its unlawfully imple-
mented proposal. As discussed above, it cannot be found that
the Union had determined to strike before its vote to reject
the Respondent’s final offer. Thus, the facts that certain em-
ployees had removed their personal belongings from the
premises, and that employees had asked an employer rep-
resentative if he wanted their keys, do not mean that employ-
ees were predisposed to strike, or that such actions justified
Respondent’s conduct in not permitting them to work unless
they agreed to accept its implemented terms.
In Henry Miller Spring Co., 273 NLRB 472, 477 (1984),
a very similar situation, the Board held that the union’s strike
was an unfair labor practice strike:
Respondent . . . committed the unfair labor practice of
announcing that, as to the contract items still open, it
would implement its most recent contract proposals.
While work was available on June 6, it was available
only under those conditions. The Union suggested con-
tinuing to work under the terms of the existing contract,
but Respondent refused. . . . The Union, unwilling to
work under those reduced conditions, went on strike.
Clearly the reason for the Union’s refusal to work was
Respondent’s unfair labor practices. The cause-and-ef-
fect relationship between the Respondent’s unfair labor
practices and the Union’s refusal to work is manifest,
and I conclude that Respondent’s unfair labor practices
caused the strike . . . .
Accordingly, the Respondent caused the Union to strike.
The employees were refused entry to Respondent’s facility,
and denied permission to work unless they agreed to Re-
spondent’s unlawfully implemented final proposal. The cause
of the strike was thus a direct result of Respondent’s refusal
to allow the employees to work.
I, accordingly, find that the strike which began on October
19 was an unfair labor practice strike from its inception.
4. The rights of the strikers
On December 11, the striking employees voted to accept
the Respondent’s final offer and return to work. Makris in-
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862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
formed Respondent that the employees were willing to return
to work. This constitutes an unconditional offer to return to
work, as noted in Respondent’s written response, which re-
fers to the [Union’s] ‘‘offer to return to work under [Re-
spondent’s] implemented terms and conditions of employ-
ment . . . .’’
Thus, the Union in behalf of the striking employees made
an unconditional offer to return to work, and was told that
four positions had been eliminated and nine permanent re-
placements had been hired to fill the remaining positions,
and that there were no vacant positions available. The Union
was further told that the employees would be placed on a
preferential recall list. The letter added that the strikers could
not return to work since they were permanently replaced.
Unfair labor practice strikers cannot be permanently re-
placed, but must be offered immediate and full reinstatement
on their unconditional offer to return to work. Walnut Creek
Honda, 316 NLRB 139, 142 (1995). By permanently replac-
ing the striking employees and refusing to reinstate them,
and instead placing them on a preferential recall list, Re-
spondent violated Section 8(a)(3) and (1) of the Act. Walnut
Creek, supra.
CONCLUSIONS OF LAW
1. The Respondent, United States Testing Company, is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union, Local Union 1936, International Brother-
hood of Electrical Workers, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing and refusing to furnish the Union with the
following requested information, Respondent has violated
Section 8(a)(5) and (1) of the Act:
(a) The names of each of Respondent’s employees and de-
pendents covered by Respondent’s medical and dental plans.
(b) The claims submitted and paid by Respondent for each
and every benefit provided for the cumulative policy year
through August 1995.
4. By implementing changes in its employees terms and
conditions on or about October 19, 1995, at which time no
valid bargaining impasse existed, Respondent refused to bar-
gain in good faith in violation of Section 8(a)(5) and (1) of
the Act.
5. The strike which began on October 19, 1995, was an
unfair labor practice strike from its inception, and the strik-
ing employees were unfair labor practice strikers.
6. By permanently replacing the unfair labor practice strik-
ers and failing and refusing to reinstate them immediately on
their unconditional offer to return to work, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
7. The unfair labor practices found above constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, it is recommended that the Respondent be ordered
to cease and desist therefrom and to take the affirmative ac-
tion described below which is designed to effectuate the poli-
cies of the Act.
Inasmuch as the strike, which began on October 19, 1995,
was an unfair labor practice strike, it is recommended that
the strikers as to all of whom an unconditional offer to return
to work was made on December 11, 1995, be reinstated to
their former jobs or a substantially equivalent position, with-
out prejudice to their seniority or other rights and privileges
previously enjoyed. Respondent shall also be ordered to
make all of those employees whole for any loss of pay or
benefits they may have suffered, less interim earnings, be-
cause they were not immediately reinstated on the Union’s
offer to return to work, and because of the implementation
of unilateral changes in employment terms on October 19,
1995. Backpay shall be computed in the manner established
by the Board in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the
Retarded, 233 NLRB 1173 (1987).
It shall be further directed that Respondent be directed to
bargain in good faith with the Union until agreement has
been reached or a valid impasse has been reached. In addi-
tion, it shall be ordered to restore terms and conditions pre-
vailing in the collective-bargaining agreement which expired
on October 18, 1995, and to make whole employees for any
lost wages or benefits incurred as a result of the unilateral
changes made in those terms and conditions of employment
on October 19, 1995. It shall be ordered to maintain those
terms and conditions of employment in effect until the par-
ties have bargaining to agreement or to impasse.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, United States Testing Company, Fair-
field, New Jersey, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
Local Union 1936, International Brotherhood of Electrical
Workers as the exclusive representative of employees in the
appropriate unit of employees at its Fairfield, New Jersey fa-
cility, by failing and refusing to furnish information to the
Union, and by declaring impasse prematurely, and by imple-
menting its final contract offer without having reached a
valid impasse.
(b) Permanently replacing the unfair labor practice strikers
and failing and refusing to reinstate them immediately on
their unconditional offer to return to work.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement:
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863UNITED STATES TESTING CO.
6 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.’’
Employees in the classifications specified in Section 5.1
of the most recently-expired collective bargaining
agreement between the Union and Respondent and cas-
uals employed in the Engineering Services Department
of the Testing Division of the Respondent.
(b) On request furnish the Union with the following infor-
mation:
(1) The names of each of Respondent’s employees and de-
pendents covered by Respondent’s medical and dental plans.
(2) The claims submitted and paid by Respondent for each
and every benefit provided for the cumulative policy year
through August 1995.
(c) Restore employment terms to the levels set forth in the
collective-bargaining agreement which expired on October
18, 1995, and maintain them until such time as the parties
have bargained in good faith and reached agreement or, alter-
natively, until a valid impasse is reached.
(d) Within 14 days from the date of this Order, offer full
reinstatement to the unfair labor practice strikers to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
(e) Make whole all unfair labor practice strikers for any
losses they may have suffered as a result of discrimination
against them, and the implementation of unilateral changes in
employment terms on October 19, 1995, in the manner set
forth in the remedy section of this decision.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discrimination
against the unfair labor practice strikers and notify them in
writing that this has been done and that the discrimination
will not be used against them in any way.
(g) Preserve and, within 14 days of a request, make avail-
able 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.
(h) Within 14 days after service by the Region, post at its
Fairfield, New Jersey facility copies of the attached notice
marked ‘‘Appendix.’’6 Copies of the notice, on forms pro-
vided by the Regional Director for Region 22, 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 in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since January 11, 1996.
(i) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail and refuse to bargain in good faith with
Local Union 1936, International Brotherhood of Electrical
Workers as the exclusive representative of employees in the
appropriate unit of employees at our Fairfield, New Jersey
facility, by failing and refusing to furnish information to the
Union, by declaring impasse prematurely, or by implement-
ing our final contract offer without having reached a valid
impasse.
WE WILL NOT permanently replace unfair labor practice
strikers and failing and refusing to reinstate them imme-
diately on their unconditional offer to return to work.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the exclu-
sive representative of the employees in the following appro-
priate unit concerning terms and conditions of employment
and, if an understanding is reached, embody the understand-
ing in a signed agreement:
Employees in the classifications specified in Section 5.1
of the most recently-expired collective bargaining
agreement between the Union and Respondent and cas-
uals employed in our Engineering Services Department
of the Testing Division.
WE WILL, on request, furnish the Union with the following
information:
(a) The names of each of the Employer’s employees and
dependents covered by Employer’s medical and dental plans.
(b) The claims submitted and paid by Respondent for each
and every benefit provided for the cumulative policy year
through August 1995.
WE WILL restore employment terms to the levels set forth
in the collective-bargaining agreement which expired on Oc-
tober 18, 1995, and maintain them until such time as the par-
ties have bargained in good faith and reached agreement, or
alternatively, until a valid impasse is reached.
WE WILL within 14 days from the date of this Order, offer
full reinstatement to the unfair labor practice strikers to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
WE WILL make whole all unfair labor practice strikers for
any losses they may have suffered as a result of discrimina-
tion against them, and the implementation of unilateral
changes in employment terms on October 19, 1995.
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864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL within 14 days from the date of this Order, re-
move from our files any reference to the unlawful discrimi-
nation against the unfair labor practice strikers and notify
them in writing that this has been done and that the discrimi-
nation will not be used against them in any way.
UNITED STATES TESTING COMPANY
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