American Benefit Corporation

National Labor Relations Board - Administrative Judge Opinions

Jul 2, 2009

09-CA-044679 (N.L.R.B. Jul. 2, 2009)

JD-32-09
Huntington, WV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
AMERICAN BENEFIT CORPORATION,
1
Respondent,
and Cases 9–CA–44679
9–CA–44701
TEAMSTERS LOCAL UNION NO. 505,
AFFILIATED WITH THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
Charging Party.
Julius U. Emetu, II, Esq. (Region 9, NLRB)
of Cincinnati, Ohio, for the General Counsel
Michael E. Estep, Esq. (Jenkins Fenstermaker, PLLC)
of Huntington, West Virginia, for the Respondent
George N. Davies, Esq. (Nakamura, Quinn, Walls, Weaver & Davies LLP)
of Birmingham, Alabama, for the Charging Party
DECISION
INTRODUCTION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This matter concerns (1) an
employer’s transfer of bargaining unit work to temporary nonunit employees, and (2)
the employer’s failure to timely provide information requested by the employees’ union
about the transfer of work and hiring of the temporary employees.
American Benefit Corporation (ABC or the Respondent) performs claims
processing and third-party administrator and actuarial work for a variety of pension and
health and welfare funds from its offices located in and near Huntington, West Virginia.
For many years its employees have been represented by Teamsters Local 505 (Union

1At the hearing, on my own motion, I amended the caption to state the correct name
of the Respondent.
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or Charging Party).2 The most recent and current collective-bargaining agreement (the
2006 Agreement) was effective June 9, 2006, and is scheduled to terminate no earlier
than June 8, 2011. ABC employs approximately 35 union-represented employees.
In October 2008, ABC temporarily hired seven nonbargaining unit employees to
work offsite and sent claims processing—typical bargaining unit work—to them to
perform. Five of the employees—primarily employed by another claims processing
company in Huntington—worked one weekend from their primary employer’s facility to
perform dental claims work for ABC. Two other employees, one in Maryland and one in
Illinois, were hired by ABC and performed medical claims work on their computers from
their homes for up to 30 days, into mid-November.
There is no serious dispute about the basic facts. ABC sent this work to these
employees without advance notice to the Union, and there was no realistic opportunity
to bargain. But ABC claims the terms of the collective-bargaining agreement permit it
to take this action unilaterally, without notice or providing an opportunity to bargain.
The Union does not agree. It grieved ABC’s use of the nonbargaining unit employees
to perform this work, but ABC refused to process the grievance on procedural grounds.
In addition, ABC did not, in the Union’s view, adequately respond to a request for
information concerning this matter.
STATEMENT OF THE CASE
On November 7, 2008, the Union filed a charge with Region 9 of the National
Labor Relations Board (Board) alleging unfair labor practices under the National Labor
Relations Act (the Act) against ABC. The charge was docketed by Region 9 as Case
9–CA–44679. An amended charge was filed November 19, and again on December 1,
2008. The Union filed a second unfair labor practice charge with Region 9, docketed
by the Region as Case 9–CA–44701, on December 1, 2008. By order dated February
9, 2009, the Regional Director for Region 9, acting on behalf of the Board’s General
Counsel, consolidated the two cases and, based on the Union’s unfair labor practice
charges, issued a consolidated complaint alleging that ABC had violated the Act.
According to the Government, ABC’s unilateral provision of work for the approximately
30-day period to nonunit employees, and ABC’s failure to provide requested
information to the Union, were violative of Section 8(a)(5) and, derivatively, Section
8(a)(1) of the Act. ABC filed a timely answer to the consolidated complaint denying all
violations of the Act.
This dispute was heard in Huntington, West Virginia, on April 28 and 29, 2009.
Counsel for the General Counsel, the Union, and the Respondent, filed briefs in support
of their positions on June 3, 2009. On the entire record, I make the following findings of
fact, conclusions of law, and recommendations.

2Specifically, the union-represented bargaining unit recognized by ABC is
composed of all employees employed by the Employer at its Huntington, West Virginia
location, but excluding all managerial employees, professional employees, guards, and
supervisors as defined in the National Labor Relations Act.
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JURISDICTION
The complaint alleges, ABC admits, and I find, that ABC maintained an office
and place of business in Huntington, West Virginia, at which it engaged in the business
of providing claims processing services for medical, dental, and pension benefit claims.
The complaint further alleges, ABC admits, and I find, that in conducting its operations,
in the last 12 months ABC purchased and received at its Huntington facility goods
valued in excess of $50,000 directly from points outside the State of West Virginia. The
complaint further alleges, ABC further admits, and I find, that at all material times ABC
has been an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. The complaint alleges, and I find, that at all material times the Union
has been a labor organization within the meaning of Section 2(5) of the Act.
Based on the foregoing, I find that these disputes affect commerce and that the
Board has proper jurisdiction of these cases, pursuant to Section 10(a) of the Act.
ALLEGED UNFAIR LABOR PRACTICES
FACTS
A. The Temporary Transfer of Work in October 2008
In September 2008,3 ABC found itself significantly behind in its processing of
certain claims. Of particular concern were claims from two of the groups administered
by Anthem, the PPO provider for three health care groups for which ABC served as
third-party administrator. Together, the three Anthem funds constitute 75–80 percent of
ABC’s revenues. These claims had begun accumulating during the summer when two
groups were added to ABC’s workload, including one, the Fourth District that had in
years past been ABC’s largest group in terms of medical claims. At some point in
October—on brief (R. Br. at 7) the Respondent asserts that it was mid-October, but the
record is unclear—a representative from Anthem contacted Ryan Jones, ABC’s CFO,
expressing concern over the claims backlog. Jones agreed with Anthem that ABC
would significantly reduce the backload within the next 30 days. In addition, ABC
became aware that a backlog for dental claims, which tend to increase in summer
months, had grown significantly since July or August.
In an effort to devise a way to bring the backload of claims down, ABC offered
overtime opportunities to currently working bargaining unit employees. Only one
employee signed up for overtime.4 ABC held a meeting with employees on Thursday,
October 9, to try to encourage employees to accept overtime for the coming weekend.

3Hereinafter, all dates are in 2008 unless otherwise indicated.
4The parties agree that under the terms of the 2006 Agreement overtime is
voluntary. (See Article 37, Section 4.)
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The meeting did not go well. Jones and ABC’s Director of Human Resources
Patty Bostic told employees that “the Company was in a bad position” and needed to
get more claims processed, and was 60 days behind in claims processing. Employees
reacted angrily. Many voiced outrage that they were being asked to work overtime
when employees laid off in past months and years had not been reinstated. The
meeting brought to the fore that a number of employees were refusing to sign up for
overtime because of these concerns. In addition, the fact that a September layoff had
occurred the day after a lavish party celebrating the Company’s 60th anniversary added
to some employees’ frustration.5
At the meeting, employee and Union Steward Sheila Lusk reiterated her belief to
Jones—in a reprise of a charge she had made several times in the recent past—that
management was “stealing” work from employees. This suspicion over the transfer of
work from the bargaining unit had been a continuing concern with some employees,
particularly Lusk, since ABC had been purchased by its new owner Bill Eastwood in
early 2007. Jones had repeatedly denied the charge, and denied it again at the
October 9 meeting. Lusk was disciplined for her role in the meeting and the Union filed
a grievance over it. The exact nature of the discipline is not clear from the record but
seems to have involved Lusk’s comments during the October 9 meeting. Notably, the
evidence suggests—and several witnesses testified about the October 9 meeting, and
about when they learned about the hiring of temporary employees—that at this meeting
ABC did not mention the prospect of hiring offsite nonbargaining unit employees.
In any event, the employees’ unwillingness to sign up for overtime did not last
long. When Union President and Business Agent Dennis Morgan heard about it, the
following week, he instructed Union Steward Pamela Kennedy to tell employees “you
guys need to get to work and cover this.” Kennedy, with ABC’s permission, sent a
mass email to employees on the Company’s email system asking employees to
reconsider, telling them that Morgan “told us to get to work, so to speak.” Employees
began accepting overtime assignments that weekend (the weekend of October 18).
Jones met with the auditors to discuss the extent of the backlog on Monday or
Tuesday, October 20 or 21. Although employees were, at this point, again willing to

5Much about the layoffs and the refusal to work overtime is contested by the parties.
The Respondent and the Union do not agree on which employees were laid off, and,
additionally, whether some of the laid-off employees were still eligible for reinstatement.
They do not agree on whether former and/or laid-off employees would have had the
skills to quickly learn to perform the available work, some of which was now done using
a computer software system—Basys—that ABC had purchased and implemented in
early 2008 for some funds. A couple of employees testified to their unsuccessful efforts
to return to work. While the issue of who was entitled to employment may well need to
be sorted out in the compliance stage of this case, it is not a matter that affects, or is
particularly relevant to, the case alleged by the General Counsel here. Accordingly, I
do not reach or determine issues of which employees were on layoff or whether any
employees on layoff had severed their employment with ABC. Of relevance, as
discussed below, is that the dispute roiled employee-employer relations.
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work overtime, Jones testified that he thought that “even if everybody signed up for
overtime every day, I didn’t think we could meet the goal of thirty (30) days” that he had
agreed to with Anthem to reduce the backlog. By the time Jones met with the auditors,
ABC had already decided that to catch up with the Anthem medical claims work, it
would temporarily hire some employees to work offsite to perform work that otherwise
would be performed by the bargaining unit employees. Indeed, with respect to medical
claims, that process had already begun when Jones met with the auditors to explain the
backlog problem. With regard to dental claims, that process had already begun, and
finished.
On October 21, ABC hired two employees—one in Illinois and one in Maryland—
to process medical claims using the Basys computer software system. Jones found the
two from contacts he had at Basys, the software vendor that ABC had used when it
began using the Basys system for certain automated claims earlier in the year. Jones
asked Basys if they knew of anyone “familiar with the nuances of dealing with Anthem”
and using the Basys system. On or about October 14, Basys gave him some people
he could contact. Jones was eager to find individuals who would not require training so
that ABC could make quick headway on the backlog. The two employees worked for
approximately 30 days (one performed significantly more work than the other within this
period). They processed electronic medical claims from their computers, and ABC
technicians made it possible for them to securely access the ABC files. Jones testified
that these employees helped the Company to significantly reduce the backlog in accord
with the goals set with Anthem. ABC employees were also working overtime during
this period. As discussed, the weekend of October 18, employees began working
overtime assignments again.
Jones testified that he was “pretty sure” he mentioned the hiring of temporary
employees working offsite to Morgan in a telephone call, also involving Bostic,
“[s]omewhere around the 20th or 21st [of October].” Morgan, who was traveling that
week, denied having received such a call, and asserted that his first conversation with
ABC management about the transfer of the work was with Bostic after October 27.6

6Both Morgan and Jones were good witnesses, and generally credible. Jones
stated that he was “pretty sure” he and Bostic conveyed this information to Morgan.
Pressed, he would not endorse a more definitive recollection. This speaks well to his
credibility, but does not inspire confidence that the conversation occurred, especially in
the face of Morgan’s credible denial. Moreover, I note that Bostic, also allegedly on the
call, did not testify, and no notes of the call were produced. (Although Jones testified
that Bostic “very well may have” taken notes, “she usually takes notes on those types of
meetings.”) Given these factors, were I required to, I would credit Morgan’s denial over
Jones' testimony that he was “pretty sure” the conversation occurred. However, I do
not believe that it makes any difference to the outcome of this case whether or not
Morgan was told about the transfer of work on October 20, 21, or later. Accordingly, I
will assume, without deciding, that Jones and Bostic told Morgan in a phone
conversation on one of those dates that “there were outside people doing the work, that
weren’t coming into Huntington.”
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Five employees were hired to process dental claims. They were employees of
another claims processing company, Benefits Assistance Corporation (BAC) in
Huntington. The owner of BAC, Bill Howard, was a longtime friend of Eastwood, the
owner of ABC, and Jones had known Howard for many years. In fact, the two had
been in discussions regarding the potential sale of the dental portion of ABC’s claims
processing business to BAC. The sale did not occur, but Jones used the occasion to
ask if BAC employees could be approached about performing some work for ABC after
hours. Ultimately, five BAC employees, using the BAC office and equipment, worked
for approximately a day and a half (on Saturday, October 18, and Sunday, October 19)
performing dental claims processing work for ABC.
On Friday, October 17, an ABC supervisor, Angie Napier, brought the paper
dental claims from the ABC office to the BAC employees. All of these claims were
paper or “hard” claims.
The BAC dental employees worked only for a day and a half. According to
Jones, “[i]t proved to not be worth the trouble. . . . We weren’t getting the kind of
production that we needed to get to meet the goals.” In addition, while the dental
claims were backlogged, this backlog was not as serious as the medical backlog.
There was no outside entity, “holding our feet to fire like we did . . . with Anthem.” So
ABC stopped utilizing the temporary help with the dental claims and over the course of
the next few months reduced the dental backlog using ABC employees putting in
overtime.
The Union was not notified in advance that ABC was going to remove work and
bring it to BAC to have the dental claims work performed. ABC employees who came
to work on Saturday, October 18, to perform overtime work discovered that the dental
claims were missing and asked their supervisor where the claims were. The testimony
is vague, but suggests that the supervisor avoided directly answering. On Monday, an
ABC employee discovered that the claims had been handled by someone with initials
unknown to them. On Tuesday, October 21, they again pressed their supervisor for an
explanation. Bostic came to talk to the dental claims employees. She told them the
work had been performed out of the office so that ABC could get caught up. The
employees were upset and the discussion went back and forth, with the employees
contending that they should have been permitted to do this work. Bostic was unable to
answer some of the questions posed by employees, and at the conclusion of the
meeting Bostic told employee Colburn that if she had any more questions she could
write them down and Bostic would get back to her.
B. Requests for Information and the Union’s Grievance
On Tuesday, October 21, Morgan received calls from Colburn and Lusk. They
told Morgan that employees had discovered claims were missing and that they believed
they were not getting “straight answer[s]” from the supervisors. Morgan instructed
Colburn and Lusk to work together to put a request for a variety of information to Bostic.
Colburn wrote the following questions and submitted them to Bostic that day, or
possibly on the next day, October 22:
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1.) How much are these people getting paid: By the hour, by the claim. First
50–100 claim.
2.) After claims are caught up, are all the clerks laid off again? If so wouldn’t
we be back in the same position we are now in.
3.) As the Company quoted, what if these temps work long enough then
wouldn’t they be able to join the union – then what happens to the
employees’ (clerks) chance to bid on an auditor’s position. It is my
understanding you started from the bottom up. It is my understanding you
started from the bottom up. Not just jump right in + become auditor.
4.) How long did it take to find these people + where did you find them. Ad in
the paper; or the internet, or is it family? Or Company
5.) By the time upper management is having all these meetings some one
could be down + training a new person to be an auditor.
6.) [Suggestion:] Start them out slow with vision claims only with the group a
fund that actually works correctly, then to routine dental + working their
way up.
7.) What about HIPAA – privacy – SS# taken away from office?
8.) Problems and adjustments back to them?
9.) Barb will be back 1st of December
Will she have a job?
Bostic provided Colburn the following handwritten response in approximately
three days:
1. Paid contract rate per hour
2. We will have to give it time (after caught up_ to see what we need. We
will not make nasty move.
3. We do not plan to keep them past 30 days. They are working as temp.
employees.
4. Took approx. a week or so. We couldn’t find anyone locally who knew
systems. Basys found retired people for us. No family or company
people.
5. We will determine our staffing needs after we get caught up, then provide
training as necessary.
6. Appreciate the suggestion
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7. All HIPPA regs. Are complied to.
8. Any questions will come in during reg. hours here. We will respond the
best we can. Any issues you cannot handle give to Linda, Christa or
Angie.
9. Of course Barb still has a job. She is a regular employee still on payroll
with all Benefits.
Colburn provided Bostic’s response to Union Steward Lusk, who faxed it to
Morgan on October 27. After reviewing the fax, Morgan determined that, in his view,
ABC was violating the collective-bargaining agreement. He spoke with Bostic, who
took the position that ABC was within its rights, based on the “Temporary Employees”
provision (Article 31) of the labor agreement.7 Morgan dissented, and told Bostic that
in the past temporary employees had only been used in the Huntington facility. Morgan
told Bostic that ABC “had never taken work out of that facility and sent [it] to a
temporary employee.”
Morgan contended that a Memorandum of Agreement (MOA) negotiated with the
labor agreement and attached to it supported his position. That MOA prohibited
subcontracting and the transfer of bargaining unit work, with exceptions described in
the MOA. Morgan also expressed concern to Bostic that the employer had never used
temporary employees at all when bargaining unit employees were on layoff, as, Morgan
contended, was the case here.
Morgan was unable to convince Bostic. According to Morgan, “[s]he was hung
up on this temporary thing. So we filed a grievance [under the labor agreement] to
protest the Employer’s actions.” The Union’s grievance, dated November 11, alleged
that
ABC has unilaterally diverted/subcontracted bargaining unit work in
violation of the parties’ agreement, MO[A], and well established labor law.
On behalf of all affected employees, the Union hereby requests that all
such work be returned to the bargaining unit, that ABC cease its violations
of the agreement and that all affected employees be made whole in every
way.
ABC refused to process this grievance, alleging that it was untimely.
On November 19, Morgan sent Bostic an 11-numbered paragraph request for
information “necessary and relevant to the processing of current grievances and for it to
carry out its function as collective bargaining representative of the employees.” The
request covered the period January 1, 2008 to the present. The eleven requests were:

7The text of this, and other contractual provisions relevant to this dispute, are set
forth below in subsection C of this portion of this Decision.
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1. Please provide any and all documents that show the date the
company contacted any individuals the company contends are
temporary employees to do work that is or has been performed by
bargaining unit employees.
2. Please provide the names, addresses and phone numbers for any
and all individuals the company contends are temporary
employees doing work that is or has been performed by bargaining
unit employees.
3. Please provide the total compensation paid to each temporary
employee, including all salary and benefits. This information should
include all hours worked) including any hours considered or paid
as overtime. This request also includes any payroll records, W-2
forms or other documents that show earnings by temporary
employees.
4. Please provide copies of any and all applications, resumes,
curriculum vitas or other information submitted by individuals that
the company either considered for hire or did in fact hire as
temporary employees. This information should include any and all
documents and/or information that show which individuals the
company interviewed and any results of those interviews and the
basis for which the decision to hire was made.
5. Please provide any and all documents and information that show
how the company initially contacted any and all temporary
employees that were hired by the company.
6. Please provide the closest office location of the company for each
temporary employee hired by the company.
7. Please provide any and all information that shows how work was
sent out either in an electronic form or otherwise to these
temporary employees.
8. Please provide any and all information that shows what work was
sent out either in an electronic form or otherwise to these
temporary employees. Please include all dates in which the work
was sent to these temporary employees and the person or persons
who authorized the transfer of that work.
9. Please provide any and all information that shows how the work
was returned to the company by these temporary employees in a
completed or incomplete form, the dates that the work was
returned and the person or persons to whom the work was
returned.
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10. Please provide any and all information that shows which claims
that came into the office in written form that were removed from the
desks of employees on or about October 11, 2008 and sent out to
temporary employees. Please provide the names of the person or
persons who authorized the removal and transfer of this work and
any and all documents that state the reason for the removal and
transfer of the work.
11. With respect to request #10 above, please provide any and all
information that shows to whom the work was sent, including their
names, addresses, phone numbers and their rate of pay and
benefits for the work performed.
Morgan’s letter requested that the information be provided within five
calendar days. Bostic responded, by letter dated November 25, stating, in
relevant part:
I write in repo[n]se to you[r] letter of November 19, 2008 requesting
certain information that you contend is necessary for the Union to carry
out its functions as the collective bargaining representative of the
employees of American Benefit Corporation. It is American Benefit
Corporation’s position that many of the requests contained in your letter
are overly broad and seek irrelevant information. However, American
Benefits Corporation is in the processing of assessing these requests and
will respond to your requests in writing by December 5, 2008.
I acknowledge that this date is not within the five (5) calendar days as
requested in your letter, however, this time frame is necessary in order to
assess your requests and gather the necessary information, if any.
By letter dated December 5 (but received by Morgan via fax on December 8),
Bostic wrote to Morgan, stating, in relevant part:
I am following up on your information request dated November 19, 2008.
As you recall, I wrote to you stating the company required more time to
assess your request and that we would respond by today, December 5,
2008. We feel the request is overly broad and seeks information that is
not relevant to the Union’s role as the collective bargaining representative
for American Benefit Corporation’s employees. However, I am providing
you with the attached information which appears to the Company to be
relevant to the Union’s stated issue of subcontracting/diverting bargaining
unit work
The attached chart shows the dates temporary employees were used, the
number of employees used, type of work performed, number of hours
worked, arid rate of pay for these employees. None of these employees
received any benefits of any kind.
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The two employees paying medical claims received work electronically.
The five employees paying dental claims received paper claims which
were delivered to them. Management determined that since these five
employees would be working odd hours that it would be safer for them to
work closer to their homes. It was also determined that the work could be
performed at a location other than American Benefit’s office location,
therefore saving them time and gas.
The dental claims were removed on the evening of Friday, October 17,
2008, and returned to the office on Monday morning, October 20, 2008.
Please let me know if you have any questions.
The attachment to Bostic’s letter showed the following:
Hours Amount
Dental (5 employees)
10/18/2008
Emp 1 5.00
Emp 2 3.00
Emp 3 -
Emp 4 9.00
Emp 5 8.50
25.50
10/19/2008
Emp 1 5.00
Emp 2 12.75
Emp 3 7.00
Emp 4 5.00
Emp 5 10.00
39.75
Grand total Dental 65.25 hours
Rate 23.5 per hour
Medical (Anthem—2 employees)
Employee 6
10-21 to 10/31 51.5
11/1 to 11/14 50
11/17 to 11/21 24
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Total Emp 6 125.5 hours
Emp 7
11/1 to 11/14 15
11/17 to 11/21 8
Total Emp 7 23 hours
Total for Anthem 148.5
Rate 23.5 per hour
Gross Wages (Anthem) $ 3,489.75
Grand Total 213.75 hours
Grand Total $ 5,023.13
After Morgan received Bostic’s letter and the attachment, he responded to Bostic
with a letter, dated December 9, stating the following in relevant part:
I am in receipt of the company’s December 5, 2008 incomplete and
inadequate response to the Union’s November 19, 2008 information
request. In your response, you contend that the request “is overly broad
and seeks information that is not relevant to the Union’s role as collective
bargaining representative” of the company’s employees but you fail to
identify which requests the company is objecting to. Please specifically
identify which requests for information the company deems to be overly
broad and/or irrelevant and the basis for those objections. Please provide
a response to this letter by December 16, 2008.
Please contact me if you have any questions.
The record reveals no further correspondence from the Respondent, or from the
Union, concerning the information request. However, on April 24, 2009, four days
before the hearing in this matter, counsel for the Respondent provided the Union’s
counsel, and counsel for the General Counsel, with 44 additional pages of documents
responsive to the information request. These documents (entered into the record as
Union Exhibit 1) consist of copies of pay records, W-2 forms, time sheets, some emails,
and other such documents relating to the work of the temporary employees (both the
five employees who processed dental claims and the two employees processing
Anthem medical claims).
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C. Relevant Contractual Provisions
As referenced above, the 2006 Agreement was effective June 9, 2006, and
continues in effect by its terms until no earlier than midnight June 8, 2011. The 2006
Agreement was executed July 20, 2006, and signed by all members of the Union and
ABC bargaining committees. Attached to the 2006 Agreement, included in its table of
contents, and entered into evidence without objection as part of “the current collective-
bargaining agreement between American Benefit and Teamsters Local 505,” were
several memoranda and exhibits. These included two “Memorand[a] of Understanding”
and, of most significance to the instant cases, a Memorandum of Agreement
(previously denominated as the MOA). Each of these memoranda, like the 2006
Agreement, was executed July 20, 2006, by the same Union and ABC bargaining
committees. In addition, wage rate schedule exhibits, developed in August 2006, were
attached to the Agreement. Finally, a 2008 Memorandum of Agreement To The
Collective Bargaining Agreement was included in the document introduced into
evidence as a part of the current collective-bargaining agreement.8
The 2006 Agreement, of course, reflects the parties’ agreements reached at
negotiations in 2006. I recite from the provisions—that the parties, at least, believe to
be—of most relevance here.
The “Recognition” clause of the Agreement (Article 2) provides that ABC
recognizes the Union as the exclusive collective bargaining representative of “all
employees employed by the Employer at its Huntington, West Virginia location” (with
the typical exclusions for managers, professionals, guards, and supervisors).
A “zipper” clause (Article 1, Section 2) provides that:
[i]nasmuch as both parties have had a full opportunity to negotiate with
respect to all matters relating to wages, hours and all other terms and
conditions of employment, neither party is under any duty to bargain with
respect to any changes, modifications or additions to this agreement to

8There is some suggestion by ABC that the MOA was not part of the 2006
Agreement. It makes no difference to the outcome or analysis of this matter whether,
formally speaking, the Memorandum has been incorporated into the 2006 Agreement.
There is no doubt, that both documents are collectively-bargained documents, entered
into by the parties to address and govern workplace issues. They both matter to
someone attempting to interpret the parties’ contractual obligations and responsibilities.
I do note, however that the MOA was entered into evidence, without objection, as part
“the current collective-bargaining agreement,” which essentially constitutes an
admission that the Memorandum is part of the 2006 Agreement. Moreover, and equally
compelling, as referenced, supra, the MOA, along with the other attachments to the
2006 Agreement, is listed in the contract’s Table of Contents. Moreover, both
documents were negotiated as part of the same contract negotiations and entered into
by the same parties, at the same time, represented by the same individuals. Thus, I
find that the Memorandum is part of the 2006 Agreement.
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take effect during its term [except with regard to the establishment of new
classifications, a matter irrelevant to the instant dispute].
A management rights clause (Article 8) provides that:
the right to direct the work force and to determine and direct the policies,
mode and methods of operating the business is vested exclusively in the
Company, except as expressly limited by provisions of this agreement.
Among these rights are the right to hire, suspend, discharge, promote,
transfer, assign jobs, increase forces and decrease forces, create new
jobs or change existing jobs, provided that this Article will not be used in
violation of any of the other provisions of this agreement.
Article 31 of the Agreement is titled “Temporary Employees,” and states:
The Union recognizes the need for the Company to use outside
temporary employees in cases where the workload is of an immediate
nature such that it cannot be completed by regular employees during the
normal work day or during overtime hours.
The MOA is more difficult to selectively characterize or succinctly quote, but
generally, may be said to concern the issue of the transfer of work performed by the
bargaining unit employees to offsite nonbargaining unit personnel. It consists, in the
first instance, of an update to an agreement reached between the parties in 2004
regarding the performance of bargaining unit work by Maria Beimly.
Uncontroverted testimony at the hearing established that in 2004 the parties
negotiated an agreement permitting Ms. Beimly—a nonbargaining unit employee—to
perform work in Vandalia, Ohio, related to a particular client’s pension fund. ABC’s
then owner, Ken Joos, explained to the Union that Beimly was a longtime employee of
an I.B.E.W. fund, who performed work at the fund’s office in Vandalia, Ohio.
Essentially, as a condition of ABC taking over the third-party administrator business for
the fund, the fund insisted that Ms. Beimly be permitted to remain employed performing
a portion of the work that would otherwise be done by the ABC bargaining unit
employees in Huntington. ABC rented space in Vandalia, Ohio, and Beimly continued
to work there. As Morgan understood it, “[e]vidently Ms. Beimly was fairly old and they
didn't want to kick her to the curb, if you will. . . . [T]hey wanted to make sure that Ms.
Beimly had enough work. Ken Joos . . . told me it was critical to keep that business. It
was critical that Ms. Beimly be allowed to keep [working].”
The Union agreed to this arrangement in 2004, with the condition that upon
Beimly’s retirement the work would be returned to the bargaining unit in Huntington,
and with the further condition that “[t]he company agrees that there will be no further
subcontracting of bargaining unit work currently performed at the American Benefit
office in Huntington, WV.” In 2004, the Union believed, based on discussions with Joos
that the arrangement would not be longstanding, and Beimly would retire by 2006, the
end of the labor agreement then in effect.
Contrary to the Union’s (and presumably ABC’s) anticipation, when the time
came to negotiate the 2006 Agreement, Beimly continued to work and did not want to
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retire. In the 2006 negotiations, ABC pressed the same argument—to accommodate
the client—for permitting Beimly to continuing working. Again the Union agreed, but
with express conditions, set forth in the MOA, restricting Beimly from performing
additional bargaining unit work, and requiring the return of the work to the bargaining
unit upon Beimly’s severance. The MOA also resolved similar situations, in similar
manner, with regard to two Information Technology employees performing work
“outside the terms of the collective-bargaining agreement.” Finally, the MOA provides:
Further, t he Employer agrees that this memorandum will not be
interpreted as a waiver by the Union with regards to the subcontracting of
bargaining unit work in any fashion and that the Employer also agrees
that there will be no subcontracting or transfer of bargaining unit work in
the future absent a signed agreement by the parties to that effect.
LEGAL ANALYSIS
A. Unilateral Change Allegation
The complaint alleges that the Respondent’s temporary diversion of bargaining
unit work to offsite temporary employees, in October and November 2007, was
undertaken without providing the Union with notice and an opportunity to bargain. The
Government contends that the unilateral transfer of this work violates section 8(a)(5)
and derivatively, Section 8(a)(1) of the Act.
An employer violates Section 8(a)(5) of the Act if it makes a material unilateral
change during the course of a collective bargaining relationship on matters that are a
mandatory subject of bargaining. “[F]or it is a circumvention of the duty to negotiate
which frustrates the objectives of §8(a)(5) much as does a flat refusal.” NLRB v. Katz,
369 U.S. 736, 743 (1962); United Cerebral Palsy of New York City, 347 NLRB 603, 606
(2006). “Unilateral action by an employer without prior discussion with the union does
amount to a refusal to negotiate about the affected conditions of employment under
negotiation, and must of necessity obstruct bargaining, contrary to the congressional
policy.” Katz, supra at 747. "’The vice involved in [a unilateral change] is that the
employer has changed the existing conditions of employment. It is this change which is
prohibited and which forms the basis of the unfair labor practice charge.’" Daily News
of Los Angeles, 315 NLRB 1236, 1237 (1994) (bracketing added) (quoting NLRB v.
Dothan Eagle, Inc., 434 F.2d 93, 98 (5th Cir. 1970) (court’s emphasis)), enfd. 73 F.3d
406 (D.C. Cir. 1996), cert. denied 519 U.S. 1090 (1997).
As discussed below, I conclude that the transfer of work at issue was a unilateral
change in a mandatory subject of bargaining, and that ABC did not provide the Union
with meaningful notice and an opportunity to bargain before it undertook the transfer of
the work. In fact, the Respondent does not dispute these elements of the General
Counsel’s burden. Rather, the Respondent’s defense is that the Union waived the right
to bargain over this change in the collective-bargaining agreement.
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1. The transfer of work was a unilateral
change in a mandatory subject of bargaining
“Subcontracting of bargaining unit work that does not constitute a change in the
scope, nature, or direction of the enterprise but only substitution of one group of
workers for another to perform the same work is clearly a mandatory subject of
bargaining.” Spurlino Materials, Inc., 353 NLRB No. 125, slip op. at 21 (2009). See,
Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 211 (1964) (“To hold, as the
Board has done, that contracting out is a mandatory subject of collective bargaining
would promote the fundamental purpose of the Act by bringing a problem of vital
concern to labor and management within the framework established by Congress as
most conducive to industrial peace”); Regal Cinemas, Inc., 334 NLRB 304, 304 (2001)
(the "reclassification or transfer of bargaining unit work to managers or supervisors is a
mandatory subject of bargaining where it has an impact on unit work"), enfd. 317 F.3d
300 (D.C. Cir. 2003); St. George Warehouse, Inc., 341 NLRB 904 (2004)
(“Respondent’s unilateral transfer of unit work to temporary agency employees violated
Section 8(a)(5) and (1)”), enfd. 420 F.3d 294 (3d Cir. 2005).
In this case, the transfer of the dental and medical claims processing work was
core bargaining unit work, of exactly the type performed by the bargaining unit, using
the same technologies and processes. The conclusion is inescapable, and undisputed,
that the transfer of work involved a mandatory subject of bargaining.
I would add that, putting aside, for the moment, the Respondent’s assertion that
Article 31 of the 2006 Agreement privileged its actions, Morgan’s credited—and
undisputed assertion—was that ABC had never before diverted bargaining unit work to
temporary employees outside of the facility. This establishes that in transferring this
work ABC was not following an established practice that did not alter the status quo.
See Post Tribune Co., 337 NLRB 1279 (2002) (no unlawful unilateral change where
employer’s action does not alter the status quo, and thus there is no change in existing
conditions).9
Similarly, the fact that the Respondent asserts—for the first time, as far as the
record reveals—the right to transfer work offsite, when otherwise in accord with the
conditions of Article 31, establishes that ABC’s action represents a change in existing
conditions of employment, and not simply a one time application (or breach) of contract.
Again, putting aside, for the moment, the Respondent’s claim that the contract
sanctions its action, the transfer of work at issue constitutes the first overt declaration of
this position and policy. Whether or not otherwise permitted by law or contract, it is a
unilateral change in hitherto existing conditions.

9Moreover, although technically, it did not involve a temporary employee under
Article 31, the Beimly situation is akin to the exception that proves the rule. Thus, when
ABC previously sought to transfer bargaining unit work to an offsite employee—Ms.
Beimly—the parties collectively bargained a resolution. This precedent illustrates, and
adds weight to, the conclusion that the issue is grist for the collective bargaining mill.
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2. The failure to give notice to the Union
In this case, the evidence demonstrates that—at the earliest—the Union was
told of the diversion of work after the dental work had been contracted out (and
returned), and the day after, or perhaps the day of the transfer of medical claims to the
temporary employees. The Respondent does not contend that this provided adequate
notice to provide the Union an opportunity to bargain.10 To the contrary, the
Respondent contends that it had no duty—based on a contractual waiver—to provide
the Union with notice and an opportunity to bargain over the transfer of work.
Still, while maintaining it had no duty to bargain, the Respondent claims (R. Br.
at 7, 12) that its employees’ unwillingness to work overtime gave it “no other option”
and “forced” it to use the temporary employees to solve its backlog problem. The
suggestion that circumstances precluded bargaining—had ABC been willing to
bargain—warrants comment.
Although the Respondent needed to respond to the growing backlog and—
particularly once Anthem called to complain—had to quickly develop a plan to lower the
backlog of medical claims, nothing about the situation would support a claim that
bargaining a solution was impractical. The backlog did not come out of nowhere, it built
over the summer and was recognized as a problem by August and September. In
October, the Respondent met with employees to urge them to accept overtime because
of the imperative to correct the backlog, but did not mention the possibility of hiring
temporary employees.
This is time that could have been spent bargaining with the Union. While the
length of time the Respondent would have been required to bargain before reaching
impasse, and the speed with which the Union would be obligated to respond to the
Respondent’s notice, would have been affected by the Respondent’s need to satisfy
Anthem, there is no basis on this record to believe that bargaining would have been
futile or impractical.

10It clearly did not. “To be timely, the notice must be given sufficiently in advance of
actual implementation of the change to allow a reasonable opportunity to bargain.
However if the notice is too short a time before implementation or because the
employer has no intention of changing its mind, then the notice is nothing more than
informing the Union of a fait accompli.” Ciba-Geigy Pharmaceuticals Division, 264
NLRB 1013, 1017 (1982) (footnotes omitted), enfd. 722 F.2d 1120 (3d. Cir. 1983).
“[A]n employer must at least inform the union of its proposed actions under
circumstances which afford a reasonable opportunity for counterarguments or
proposals." Pontiac Osteopathic Hospital, 336 NLRB 1021, 1023 (2001), quoting
NLRB v. Citizens Hotel, 326 F.2d 501, 505 (5th Cir. 1964). Toma Metals, 342 NLRB
787, 787 fn. 1 (2004) (announcement of layoffs on day they occurred does not satisfy
duty to provide notice and opportunity to bargain).
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Indeed, what the evidence shows is that Morgan moved immediately (and
successfully) to encourage employees to volunteer for overtime as soon as he learned
that they had failed to accept offers of overtime. What the evidence shows is that the
debate the Respondent had with its employees—about overtime, and about whether
employees on layoff should be recalled in lieu of overtime opportunities, is a debate the
Union and ABC could have had in the context of bargaining. Similarly, the issue of
whether laid off employees were qualified to perform the work the Respondent
contracted out did not have to be brought to the Board for resolution: it could have been
the subject of bargaining between the Union and ABC—had ABC notified the Union of
its intent to transfer the work to nonunit employees.
As it was, ABC had this debate with its employees at the October 9 meeting, but
without notifying the employees—much less the Union—of its intent to temporarily
contract out unit work. The raucousness, the disciplinary action against Lusk, and
failure of management to convince employees to volunteer for overtime—provide a
textbook example of how unilateral action and disregard of bargaining can contribute to
labor strife. Had ABC notified the Union of its intent to contract out, the ensuing
discussion regarding the employees’ willingness to work overtime and their anger over
ABC’s failure to recall former/laid off employees, might have looked very different. This
case spotlights the very point of the Act: collective bargaining as a promoter of peaceful
settlement of disputes. As the Supreme Court explained in Fibreboard, 379 U.S. at
211, 214, in reasoning directly applicable here:
One of the primary purposes of the Act is to promote the peaceful
settlement of industrial disputes by subjecting labor-management
controversies to the mediatory influence of negotiation. The Act was
framed with an awareness that refusals to confer and negotiate had been
one of the most prolific causes of industrial strife. Labor Board v. Jones &
Laughlin Steel Corp., 301 U.S. 1, 42–43 [1937]. To hold, as the Board has
done, that contracting out is a mandatory subject of collective bargaining
would promote the fundamental purpose of the Act by bringing a problem
of vital concern to labor and management within the framework
established by Congress as most conducive to industrial peace. . . .
. . . [A]lthough it is not possible to say whether a satisfactory solution
could be reached, national labor policy is founded upon the congressional
determination that the chances are good enough to warrant subjecting
such issues to the process of collective negotiation.
(footnote omitted).11

11I note that the Respondent does not advance an argument that “compelling
economic considerations” excused it from a duty to bargain. See RBE Electronics, 320
NLRB 80, 81 1995). Rather, it contends that it had no duty to bargain because of a
contractual waiver. Consistent with the discussion in the text, I would reject the claim
(had it been made) that “compelling economic circumstances” excused the duty to
bargain. Neither the backlog nor the decision to hire temporary employees was an
Continued
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3. The Respondent’s waiver defense
The Respondent’s defense is rooted in the contention that in the collective-
bargaining agreement the Union waived the right to bargain over the (temporary)
transfer of bargaining unit work to outside employees. ABC contends that the parties’
collective-bargaining agreement—specifically, Article 31, which provides conditions for
the use of temporary workers—justifies its actions, and establishes the Union’s waiver
of the right to bargain. To this, the Respondent adds arguments relying on the
management rights and zipper clauses found in the 2006 Agreement. The General
Counsel and the Union dispute this, contending that neither Article 31, nor other
provisions of the 2006 Agreement, establishes a waiver. Indeed, the General Counsel
and the Union point to the MOA, and its prohibition on subcontracting, to bolster their
claim that Article 31 does not provide contractual sanction for ABC’s transfer of work to
offsite temporary employees.
The outcome in this case is not determined by who is “right” in their reading of
the contract, but by the Board’s “clear and unmistakable waiver” rule. The Board
applies the “the clear and unmistakable waiver standard in determining whether an
employer has the right to make unilateral changes in unit employees’ terms and
conditions of employment during the life of the collective-bargaining agreement.”
Provena St. Joseph Medical Center, 350 NLRB 808, 810 (2007). Accord, Baptist
Hospital of East Tennessee, 351 NLRB 71, 71–72 (2007) (applying clear and
unmistakable waiver standard to find unilateral change lawful based on contractual
provision); Verizon North, Inc., 352 NLRB 1022 (2008) (applying “clear and
unmistakable waiver” standard to employer’s claim that contract language regarding
Family and Medical Leave Act was defense to 8(a)(5) unilateral change allegation);
Cardi Corp., 353 NLRB No. 97, slip op. at 1 fn. 5 (2009) (“Applying the ‘clear and
unmistakable waiver’ standard reaffirmed in Provena St. Joseph Medical Center,
[supra], we agree with the judge that the Union did not waive its right to bargain over
the Respondent’s driver’s license requirement,” notwithstanding employer’s contention
that deletion in current collective-bargaining agreement of clause that employees were
not required to own automobile demonstrated that parties had now contractually agreed
that licenses could be required).12
Under this rule, waivers of statutory rights are not to be lightly inferred, but
instead must be “clear and unmistakable.” Metropolitan Edison Co. v. NLRB, 460 U.S.
693, 708 (1983). Proof of a contractual waiver is an affirmative defense and it is the
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‘extraordinary’ . . . “unforeseen occurrence.” RBE Electronics, supra at 81, quoting
Hankins Lumber Co., 316 NLRB 837, 838 (1995). “Absent a dire financial emergency,
the Board has held that economic events such as loss of significant accounts or
contracts, operation at a competitive disadvantage, or supply shortages do not justify
unilateral action.” RBE Electronics, supra at 81 (footnotes omitted).
12Respondent does not dispute that this is the correct rule to apply. (See R. Br. at
10–14.)
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Respondent’s burden to show that the contractual waiver is explicitly stated, clear and
unmistakable. AlliedSignal Aerospace, 330 NLRB 1216, 1228 (2000), review denied,
253 F.3d 125 (2001); General Electric, 296 NLRB 844, 857 (1989), enfd. w/o op. 915
F.2d 738 (D.C. Cir. 1990).
In a unilateral change case a collectively-bargained provision may be deemed to
constitute a waiver by the union of the employer’s duty to bargain over the conduct, but
only if the contract’s text, or the parties’ practices and bargaining history “unequivocally
and specifically express their mutual intention to permit unilateral employer action with
respect to a particular employment term, notwithstanding the statutory duty to bargain
that would otherwise apply.” Provena, supra at 811.13

13The Board applies a different rule—one more deferential to the employer’s view of
its rights under the contract—in 8(a)(5) cases alleging a failure to abide by a collective-
bargaining agreement in violation of section 8(d) of the Act. Cases alleging a violation
of 8(d) of the Act are focused on allegations that the employer has modified and failed
to abide by the terms of the collective-bargaining agreement. In 8(d) cases, “[w]here an
employer has a ‘sound arguable basis’ for its interpretation of a contract and is not
‘motivated by union animus or . . . acting in bad faith,’ the Board ordinarily will not find a
violation. In such cases, there is, at most, a contract breach, rather than a contract
modification.” Bath Iron Works Corp., 345 NLRB 499, 500 (2005) (footnotes, internal
quotations and citations, omitted), enfd. 475 F.3d 14 (1st Cir. 2007). While the
delineation between the two standards may have, in years past, been less than clear,
at least since the Board’s decision in Bath Iron Works, supra, it is pellucid that the
“sound arguable basis” standard does not apply, where, as here, the General Counsel
alleges a unilateral change violation of Sec. 8(a)(5), and not an 8(d) violation of Sec.
8(a)(5). Bath Iron Works, supra at 501 (“In ‘unilateral change’ cases, where all that is
alleged is that a union had a statutory right to bargain before an employer's proposed
change, the Board has considered whether the union has clearly and unmistakably
waived its right to bargain over the change,” but that “is not the correct standard for an
allegation of an 8(d) contract modification”); Verizon North, supra at 1022 fn. 2
(unilateral change violation based on finding that union did not clearly and unmistakably
relinquish its right to bargain over disputed practice and noting that “[i]n making that
finding, we do not rely on the judge's citation of Bath Iron Works Corp., [supra]. That
case involved a different theory of violation and a different legal standard.”); Baptist
Hospital of East Tennessee, 351 NLRB at 72 fn. 5 (2007) (applying clear and
unmistakable waiver standard to find unilateral change lawful, and finding that while
“[a]t various times during the litigation of this case, the General Counsel appeared to
make the argument that the Respondent's actions ‘modified’ the contract, in violation of
Sec. 8(a)(5) –Sec. 8(d) . . . the General Counsel [is] master of the complaint” and “did
not clearly pursue an 8(d) contract modification theory in this case”).
Given the profoundly different—often result-altering—rules applied to 8(d) and
unilateral change cases by the Board, it is worth noting that the instant case—which
was pled and litigated as a unilateral change case, could have—based on the Union’s
contention that the labor agreement affirmatively prohibits ABC’s temporary diversion of
work—been pled as an 8(d) violation. It was not, and it is well-settled that the General
Counsel is the master of the complaint. The ramifications of the decision to prove a
Continued
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Application of this rule to the facts here leaves ABC with little in the way of
defense. The Respondent contends (R. Br. at 11) that the “Temporary Employees”
clause of the labor agreement (Article 31) establishes a clear and unmistakable waiver
of the duty to bargain over the contracting out of bargaining unit work to offsite
temporary employees. However, Article 31 does not expressly treat with the issue of
whether the temporary employees envisioned by the clause can work at noncompany
locations on bargaining unit work sent out of the facility. It is true that Article 31 does
not proscribe the employer from sending work out, but it does not expressly permit it
either, and, therefore, a “clear and unmistakable” waiver cannot be gleaned from Article
31. And even, assuming, wrongly, that Article 31 could be read as expressly permitting
the transfer of work offsite, other collectively-bargained provisions muddy—
dispositively, given our inquiry—the Respondent’s claim.
Specifically, the MOA negates any contention that the parties “unequivocally and
specifically express[ed] their mutual intention to permit unilateral employer action” with
regard to diversion of bargaining unit work to nonunit employees offsite. Provena
supra. The entirety of the MOA is devoted to listing permitted instances of bargaining
union work being performed offsite by nonunit individuals. These instances stand as
collectively-bargained exceptions to the further collectively-bargained provision in the
MOA that,
the Employer agrees that this memorandum will not be interpreted as a
waiver by the Union with regards to the subcontracting of bargaining unit
work in any fashion and that the Employer also agrees that there will be
no subcontracting or transfer of bargaining unit work in the future absent a
signed agreement by the parties to that effect.
Moreover, the MOA states that “the Employer agrees that this memorandum will not be
interpreted as a waiver by the Union with regards to the subcontracting of bargaining
unit work in any fashion.” This, of course, is the opposite of a waiver of the Union’s
bargaining rights—and vitiates any claim of a “clear and unmistakable” waiver.
Under the circumstances presented, application of the “clear and unmistakable”
standard thwarts every contention advanced by the Respondent. ABC suggests (R. Br.
at 11) that it is a “gross generalization” to call its temporary hiring of offsite employees
“subcontracting in any fashion” or “subcontracting or transfer of bargaining unit work,”
unilateral actions prohibited by the MOA. But this is far from clear, and one could,
indeed, mistake the diversion of work to outside employees—even temporarily—as a
manner of subcontracting, not to mention a transfer of bargaining unit work. It is
reasonable to read the language of the MOA as prohibiting ABC’s actions here.
_________________________
unilateral change case, and not a contract modification, include a more favorable
standard for the General Counsel, but also limitations in terms of remedy. “The remedy
for a[n 8(d)] contract modification is the more substantial one of ordering adherence to
the contract for its terms; the remedy for a unilateral change permits the restoration of
the change after bargaining to an impasse.” Bath Iron Works, supra.
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Accordingly, the argument that Article 31 is consistent with ABC’s action, and may
permit it, cannot add up to evidence showing a clear and unmistakable waiver.14
The Respondent argues that Article 31 is not subordinate to the MOA. That is
true, but neither is Article 31 superior to the MOA. Both were collectively-bargained, in
the same negotiations, and effective at the same time. There is no basis in law, logic,
or contract interpretation to ignore or devalue the MOA when attempting to assess
whether the Union has “clearly and unmistakably” waived its right to bargain over the
transfer of bargaining unit work. In the face of the MOA’s express prohibition on the
practice, and its conditioning of future subcontracting on an agreement between the
parties on the subject, it is not credible to conclude that the 2006 Agreement,
considered as a whole, “clearly and unmistakably” show that the parties intended to
waive the Union’s bargaining rights on this subject.15
ABC also asserts that the management rights and zipper clauses in the 2006
Agreement indicate a waiver of the Union’s right to bargain over the transfer of work.
However, a generally worded management rights clause, such as this one here, will not
be construed as a waiver of statutory bargaining rights when it does not specifically
make reference to a particular mandatory subject, and where there is also no evidence
that the parties discussed permitting the specific unilateral action under the

14Because my task is not to rule, as an arbitrator would, on the parties’ contractual
dispute, it is not necessary to determine whether the diversion of unit work to temporary
employees undertaken by the Respondent constitutes “subcontracting” or the “use [of]
outside temporary employees” as envisioned by the labor agreement and the MOA.
What I am determining is that based on the labor agreement, including the MOA, ABC’s
contractual right to engage in a temporary offsite diversion of work is not unambiguous
or unequivocal, and that a “clear and unmistakable” waiver has not been proven.
15ABC claims that Article 1, Section 4 of the 2006 Agreement supports the view that
the MOA is invalid in the face of conflicting provisions in the body of the 2006
Agreement. Article 1, Section 4 provides:
The Employer agrees not to enter into any verbal or written agreement
with the Union employees covered hereby, individually or collectively,
which in any way conflicts with the terms or provisions of this agreement.
ABC argues that, based on this language, any conflict between Article 31 and the MOA
is to be resolved in favor of Article 31. This is wrong three times over. It is wrong
because Article 31 conflicts with the MOA only if Article 31 is read to permit temporary
employees to perform unit work offsite, something it could mean, but, contrary to ABC’s
claim, does not have to. It is wrong because ABC’s contention assumes that the MOA
is not part of the 2006 Agreement, a contention, for reasons discussed, above, I reject.
But, even assuming these two premises, ABC’s contention is still wrong, because
Article 1 Section 4 prohibits ABC from entering into agreements with union employees
that conflict with the 2006 Agreement. The MOA is not between ABC and Union
employees, but between ABC and the Union, the exclusive bargaining representative of
the unit employees. Article 1, Section 4 does not suggest that collectively-bargained
agreements between ABC and the Union are subordinate to the 2006 Agreement.
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management rights clause. Hi-Tech Cable Corp., 309 NLRB 3, 4 (1992), enfd. w/o op.
25 F3d 1044 (5th Cir. 1994). Johnson-Bateman Co., 295 NLRB 180, 185 (1989)
(Board has consistently found that general management-rights clause does not
constitute a clear, unequivocal, and unmistakable waiver by union of its right to bargain
about implementation of a work rule not specifically mentioned in the clause).
Nor can the zipper clause (Article 1, Section 2) contained in the 2006 Agreement
justify the Respondent’s unilateral change in the status quo. Zipper clauses that are
broadly and conclusively worded can serve to “shield,” from a refusal to bargain charge,
a party on whom a mid-term bargaining demand is made. However, the Board holds
that broadly worded zipper clauses cannot be used as a “sword” to justify a unilateral
change without bargaining. ANG Newspapers, 350 NLRB 1175 fn. 3 (2007): Success
Village Apartments, Inc., 348 NLRB 579, 629 (2006); see, Michigan Bell Telephone,
Co., 306 NLRB 281, 282 (1992). This is precisely what the Respondent here
proposes: that the contract’s zipper clause justifies making unilateral changes in
mandatory subjects without having to bargain. However, there is nothing specific to the
zipper clause regarding the diversion of work, the hiring of temporary employees,
subcontracting, or any other label that one could reasonably attach to the subject in
dispute. “[T]he Board has held that generally worded management rights clauses or
zipper clauses will not be construed as waivers of statutory rights.” Windstream, supra
at 50. “Here, nothing in the language of Article I, Sec. [2, zipper clause] cited by the
Respondent, or elsewhere in that provision for that matter, makes reference to, much
less mentions, the right claimed by the Respondent to unilaterally institute [a diversion
of unit work offsite]. The clause thus lacks the degree of specificity required to
constitute a clear and unmistakable waiver of the Union's right to bargain over this
subject matter.” Pan American Grain Co., 343 NLRB 205, 217 (2004) (finding that
broadly worded zipper clause did not waive union’s right to bargain over midterm
unilateral change implemented by employer).
To the foregoing contentions by ABC, no bargaining history, and no past practice
of the use of temporary employees’ offsite, is added in an effort to show a “clear and
unmistakable” waiver by the Union of its bargaining rights. The Union’s claim,
undisputed by the Respondent, is that Article 31 has never in the past been interpreted
or relied upon to sanction offsite use of temporary employees for bargaining unit work.
In this regard, the only evidence of past examples of nonunit employees performing
bargaining unit off site are those set forth in the MOA as exceptions carved from the
general prohibition on diversion of unit work set forth in the MOA. Those are the
exceptions that prove—or at the least support the view—that the parties’ chosen rule is
that there is not a contractual right for the employer to unilaterally divert work offsite.
This is kind of evidence, of course, cuts directly against the claim that the Union
“consciously yielded” this issue in bargaining or that the Union “clearly and
unmistakably” waived the right to bargain through contract.
The Respondent has failed to demonstrate a clear and unmistakable waiver by
the Union of its right to bargain about the diversion of work. The Respondent failed to
provide the Union notice and an opportunity to bargain before unilaterally diverting
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bargaining unit work to temporary employees. Accordingly, the Respondent has
violated Section 8(a)(5) of the Act and, derivatively, Section 8(a)(1).16
B. Failure to Supply Requested Information
The complaint alleges that the Respondent unlawfully failed and refused to
furnish the Union with much of the eleven-numbered paragraphs of information
requested in the Union’s November 19, 2009 letter. Some of the requested information
was provided in the letter faxed to Morgan on December 8. Nothing more was provided
for over four months, when, on April 24, 2009, days before trial, the Respondent
provided 44 pages of additional information. Other information was never provided. As
I read the complaint, and the arguments advanced by the General Counsel and the
Union, they do not contend that the limited information provided December 8 was
untimely. The dispute is over the information not supplied until April 24, 2009, or not
supplied at all.
The applicable principles “regarding the obligation of an employer to submit
information is clear and not in dispute.” Monmouth Care Center, 354 NLRB No. 2, slip
op. at 41 (2009):
An employer, on request must provide a union with information that is
relevant to its carrying out its statutory duties and responsibilities in
representing employees. NLRB v. Acme Industrial Co., 385 U.S. 432
(1967); Dodger Theatricals, 347 NLRB 953, 867 (2006). The duty to
provide information includes information relevant to contract
administration and negotiation. National Broadcasting Co., 352 NLRB 90,
97 (2008); Pulaski Construction Co., 345 NLRB 931, 935 (2005).
Where the requested information concerns terms and condition of
employment of employees within the bargaining unit, the information is
presumptively relevant, and the employer has the burden of proving lack
of relevance. AK Steel Co., 324 NLRB 173, 183 (1997); Samaritan
Medical Center, 319 NLRB 392, 397 (1995). Where the information
sought concerns employees outside the bargaining unit, the union must
show that information is relevant to its representative functions. Dodger
Theatricals, supra at 14; Bryant Stratton Business Institute, 321 NLRB
1007, 1013 (1996). Although the union has the burden of showing the
relevance of nonunit information, that burden is not exceptionally heavy,
requiring only a showing of probability that the desired information is

16The Respondent’s violation of the Act is a derivative violation of Section 8(a)(1)
of the Act, "the rationale therefore being that an employer's refusal to bargain with the
representative of his employees necessarily discourages and otherwise impedes the
employees in their effort to bargain through their representative." Tennessee Coach
Co., 115 NLRB 677, 679 (1956), enfd. 237 F.2d 907 (6th Cir. 1956). See, ABF Freight
System, 325 NLRB 546 fn. 3 (1998).
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relevant, and that it would be use to the union in carrying out its duties
and responsibilities. Certco Distribution Center, 346 NLRB 1214, 1215
(2006); Bryant Stratton, supra.
The duty to furnish information requires a reasonable good-faith effort to respond
to the request as promptly as circumstances allow. Good Life Beverage Co., 312
NLRB 1060, 1062 fn. 9 (1993). ”An unreasonable delay in furnishing such information
is as much of a violation of Section 8(a)(5) of the Act as a refusal to furnish the
information at all. “ Valley Inventory Service, 295 NLRB 1163, 1166 (1989). “Absent
evidence justifying an employer's delay in furnishing a union with relevant information,
such a delay will constitute a violation of Section 8(a)(5) inasmuch ‘as the Union was
entitled to the information at the time it made its initial request, [and] it was
Respondent's duty to furnish it as promptly as possible.’” Woodland Clinic, 331 NLRB
735, 737 (2000) (Board’s brackets), quoting, Pennco, Inc., 212 NLRB 677, 678 (1974).
1. The relevance of the Union’s information request
As to nonunit information for which relevance must be demonstrated, the
General Counsel must present evidence either (1) that the union demonstrated
relevance of the nonunit information, or (2) that the relevance of the information should
have been apparent to the Respondent under the circumstances.” Disneyland Park,
350 NLRB 1256, 1258 (2007) (footnote omitted).
Board precedent views information about the contracting out of work from the
bargaining unit as a request for information that is not presumptively relevant.
Disneyland Park, 350 NLRB at 1258. Thus, a showing of relevance by the Union is
required. However, as noted, this means only a showing of a "probability that the
desired information is relevant, and that it would be of use to the union in carrying out
its statutory duties and responsibilities." Public Service Electric & Gas Co., 323 NLRB
1182, 1186 (1997), enfd. 157 F.3d 222 (3d Cir. 1998). A “discovery-type standard”
governs information-request cases under Section 8(a)(5) of the Act (NLRB v. Acme
Industrial Co., 385 U.S. 432, 437 (1967)), even where the relevance of the information
must be established, and is not presumed. Disneyland, supra at 1258; Shoppers Food
Warehouse, 315 NLRB 258, 259 (1994).
And where, as here, the information is requested in connection with a grievance,
the Board’s test for relevance remains a liberal one. In NLRB v. Acme Industrial Co.,
385 U.S. 432 (1967) the Supreme Court endorsed the Board’s view that a “liberal”
broad “discovery type” standard must apply to union information requests related to the
evaluation of grievances. Analogizing the grievance procedure to the pretrial discovery
phase of litigation, the Court quoted approvingly from the recognition in Moore’s
Federal Practice that "it must be borne in mind that the standard for determining
relevancy at a discovery examination is not as well defined as at the trial. … Since the
matters in dispute between the parties are not as well determined at discovery
examinations as at the trial, courts of necessity must follow a more liberal standard as
to relevancy." 385 U.S. at 437, fn. 6, quoting 4 Moore, Federal Practice P26.16[1],
1175–1176 (2d ed.). Board precedent has continued to abide by this standard. As the
Board explained in Pennsylvania Power Co., 301 NLRB 1104, 1105 (1991):
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the information need not be dispositive of the issue between the parties
but must merely have some bearing on it. In general, the Board and the
courts have held that information that aids the arbitral process is relevant
and should be provided . . . . Moreover, information of "probable
relevance" is not rendered irrelevant by an employer's claims that it will
neither raise a certain defense nor make certain factual contentions,
because "a union has the right and the responsibility to frame the issues
and advance whatever contentions it believes may lead to the successful
resolution of a grievance." Further, because the Board, in passing on an
information request, is not concerned with the merits of the grievance, it is
also not "willing to speculate regarding what defense or defenses an
employer will raise in an arbitration proceeding." [Citations omitted].
Applying this standard, the Board has regularly found relevant information
regarding nonunit employees performing the same tasks as bargaining unit employees.
See, e.g., United Graphics, 281 NLRB 463 (1986) (it is clear that information regarding
individuals who are engaged in performing the same tasks as rank-and-file employees
within the bargaining unit relates directly to the policing of contract terms); Certco
Distribution Center, 346 NLRB 1214, 1215 (2006) (union sought information about the
transfer of product to and the establishment, management, and staffing of employer’s
new nonunion facility. ALJ ordered production of only information related to transfer of
products. Board reversed, holding that “the Union has shown that it had a legitimate
concern about the possible transfer of unit work . . . and had filed a grievance related to
those concerns. In these circumstances, we find that the Union has shown that the
information requested about the nonunit [ ] operation was relevant”).
In this case, the information requested by the Union concerned details—the who,
what, where, when, and how—regarding ABC’s hire and use of nonunit employees to
perform bargaining unit work offsite. The request also sought information regarding the
nature of the unit work performed. Under the circumstances, the relevance of the
nonunit information should have been apparent to ABC. This was not a case where the
Union needed to cite additional facts to justify its desire for this information. First, there
was no dispute but that the diversion of work was the primary subject and motivation for
the information request. And there was no dispute but that the subcontracting/diversion
of work had occurred. The request for information was not motivated by rank suspicion
or speculation about a transfer of work by ABC. It had, occurred, although there was
much the Union did not know about it.

Second, at the time of the information request, there was no doubt, by either
party, that the Union believed that ABC’s actions violated the parties’ collective-
bargaining agreement. A grievance had been filed alleging just that. The information
request referenced pending grievances and stated that the information request was in
support of the grievances. From the beginning, the outlines of the contractual dispute
were clear to both parties, both from the grievance and from discussions between
Bostic and Morgan. ABC knew the Union believed that the MOA and other provisions,
prohibited ABC’s transfer/subcontracting of work to temporary employees working
offsite. Similarly, the Union knew that ABC believed its actions were justified by Article
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31—although even under ABC’s view, in order for the hiring of temporary employees to
be contractually permitted, regular unit employees must be unable to perform the work
during regular hours or overtime. The Union, which maintained that a number of unit
employees were on layoff, and had pending grievances to that effect, did not accept
that Article 31 could be invoked.
Accordingly, in this case, the Union’s request for detailed information on the
hiring and work of the temporary employees was directly related to contractual claims it
was advancing under the collective-bargaining agreement, and to defenses to the
claims advanced by ABC, and each party was aware of the other’s positions. This is
more than adequate to demonstrate the relevance of the requested information to the
Union’s representational duties. Of course, it is not necessary to agree with the Union’s
interpretation of the contract, or to believe that there was any violation of the contract,
for it to be readily apparent that the details of the transfer of work were relevant to the
Union’s claim, and thus, to its representational duties. The Union is entitled to request
and receive information that substantiates, undercuts, or in any way informs its good
faith efforts at contract administration. “The Board need only decide whether the
information sought has some ‘bearing’ on these issues, or would be of use to the
union.” Dodger Theatricals Holdings, 347 NLRB 953, 970 (2006). That is the point of a
“liberal discovery-type standard.” Shoppers Food Warehouse, 315 NLRB at 260
(reversing ALJ’s conclusion that “was tantamount to a determination on the merits that
the Union did not establish a contract violation. . . . . [T]he Board’s discovery-type
standard favoring disclosure is intended to facilitate the arbitral process by permitting a
union access to a broad scope of potentially useful information”). See also, Dodger
Theatricals Holdings, 347 NLRB 953, 970 (in information case it is “not for the Board to
make a determination on the merits that Union did not establish a contract violation”).17

17I note that the Board’s decision in Disneyland Park, 350 NLRB 1257 (2007)
refusing to find a violation for an employer’s failure to provide subcontracting
information is inapposite—instructively so. In that case, the Board found that the
relevance of a union’s request for subcontracting information had not been adequately
supported where, the Board majority reasoned, “pursuant to . . . the collective-
bargaining agreement, the Respondent could subcontract, provided that the
subcontracting did not result in a termination, layoff or a failure to recall unit employees
from layoff. However, the Union made no such claim.” 350 NLRB at 1258. Here, of
course, the gravamen of the Union’s claim—and the focus of the dispute with ABC—is
that subcontracting of unit work offsite is, without more, a violation of the collective-
bargaining agreement. Although the Union does claim employees were on layoff, the
Union’s claim that the contract was violated by ABC’s conduct is not premised on there
being layoffs. (At the same time, ABC’s defense to the grievance involves the claim
that was no qualified employees on layoff, a defense that further justifies the scope of
the Union’s information request.) The Union asserts the contractual position that the
Respondent’s temporary diversion of work—the fact of which is not and never was in
dispute—is illegitimate regardless of layoffs in the bargaining unit. The Union here has
shown the relevance of the requested information under the test laid down by the
majority in Disneyland: “[The Union] must demonstrate that the contract provision is
related to the matter about which information is sought, and that the matter is within the
Continued
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Turning to the specifics of the Union’s request, information about how and what
work was transferred, returned, authorized, the dates it was transferred, the
compensation paid, the date and manner in which the temporary employees were
contacted, is potentially relevant to understanding the timing of the Respondent’s
claims about when work was transferred, when the transferred employees were
engaged, and what remedies would be appropriate for the alleged contract breach.18
Information regarding the names, addresses, and other contact information for the
temporary employees is obviously designed to permit the Union to contact the
temporary employees: a matter squarely relevant to investigating the circumstances of
the alleged contract violation.19 The assessment of the qualifications of the individuals:
resumes, applications and notes, and manner in which they came to the Respondent’s
attention, is relevant for the Union’s understanding of how these temporary employees
compared to available bargaining unit employees, some of whom the Union claims are
on layoff and available and qualified to work.20 Finally, the request asked for the
closest ABC office to each hired temporary employee. This request, boils down to a
way of asking, as Morgan explained at the hearing, “if they weren’t working out of the
facility here for American Benefit what office of American Benefit were they working out
_________________________
union’s responsibilities as the collective bargaining representative.” 350 NLRB at 1258.
Given that ABC understood, from the grievance and from Bostic’s conversations with
Morgan, that the Union was broadly challenging the right of ABC to send this work
offsite, “the relevance of the information should have been apparent to the Respondent
under the circumstances.” Disneyland, supra at 1258.
18This information is also directly relevant to the Respondent’s stated defense to the
Union’s grievance: that, in accordance with Article 31, the transferred work could not be
performed during the work day or on overtime by bargaining unit employees. Indeed,
at the hearing, the Respondent made much of the employees’ refusal to work overtime
in early October. Determining the work and overtime circumstances prevailing at the
time that the temporary employees were hired is squarely relevant to the determination
of the applicability of Article 31, even under ABC’s interpretation of Article 31.
19Rule 26(b)(1) of the Federal Rules of Civil Procedure—the schema on which the
“broad discovery-type standard” followed by the Board is based—specifically provides
that the scope of discovery includes “the identity and location of persons who know of
any discoverable matter.” Thus, the Union’s interest in obtaining the names,
addresses, and contact information for temporary employees is so plain as to be
considered illustrative of the scope of the relevance standard by the authors of the
Federal Rules of Civil Procedure.
20In addition, as Morgan pointed out at trial, Article 17 of the 2006 Agreement, which
is cited in the subcontracting grievance, provides for the local union to be given “equal
opportunity with all other sources to provide suitable applicants” for consideration for
hire. This provision brings the temporary employees’ qualifications directly into issue.
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of.” The location of the work potentially would be relevant to the Union’s contention that
incumbent or laid off permanent employees were able to perform the work.21
Under a liberal discovery-type standard the Union should be able to request,
without additional justification, information squarely related to events that are the focus
of an articulated contractual dispute between the parties. In this case, that includes
information to explore and understand the full the relationship of the Respondent with
the temporary employees, the hiring of whom is disputed.
2. Information never provided
Requested information never provided includes information regarding the date
ABC contacted the temporary employees. At the hearing, Jones testified that there
might be some emails responsive to this request, but he was not sure. Some of the
temporary employees phone numbers were included in the information provided in
April. Others were not. Information showing which work and claims were sent to
employees and when, was not provided in any detail, as requested.22

21At the hearing, Morgan also expressed concern that the temporary employees
were working at some new “double breasted alter ego of American Benefit.” While the
Board requires a “reasonable belief supported by objective evidence for requesting . . .
information” related to the existence of an alter ego operation—and Morgan had no
evidence, or even belief, suggesting alter ego—the request is not, on its face, about
alter ego. It asks, somewhat incoherently, if they are not working in Huntington, where
are they working for American Benefit? In this case the Union knew that the temporary
employees were working somewhere else. It is potentially relevant to know what ABC
office they were working from. Notably, ABC’s limited response to the information
response went to some lengths to avoid mentioning where the temporary employees
were working, an innocuous piece of information that would have satisfied this request.
22I note that the Union’s request number 10 asked for information showing which
written claims were removed from employees desks on or about October 11 and sent to
temporary employees. By all evidence, the written “hard copy” dental claims were
removed on October 17, and not from employees’ desks, but from cabinets where the
claims had been stored. However, the information request must be considered in
context, and "the adequacy of a union's request for information must be judged in light
of 'the entire pattern of facts available to the (employer)' not just the bare words of the
request itself." Gloversville Embossing Corp., 314 NLRB 1258 (1994) (condemning
incomplete response based on alleged misreading of request for information), quoting
Ohio Power Co., 216 NLRB 987, 990 (1975). To its credit, the Respondent does not
contend that its failure to respond to request number 10 was based on a
misunderstanding of the information sought by the Union. The exchanges between
Morgan and Bostic, as well as the entire 11-paragraph information request, made it
clear to the Respondent that the Union was interested in the information about the
claims removed October 17. I find that “the Union's request, taken in context,
unambiguously informed the Respondent of the specific information the Union desired.”
Gloversville Embossing Corp., 314 NLRB at 1259.
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The Respondent should be able to easily identify for the Union the claims
worked on by the temporary employees. The failure to provide this relevant and
requested information is a violation of the Act. I will order such information be provided
as part of the remedy in this case.
The requests asking how the temporary employees were contacted, who
contacted them, where they worked, how the work was returned, and who authorized
the work, were covered in some depth at the hearing by ABC witnesses. While the
failure to provide this requested information constitutes a violation, I shall not order it to
be provided anew as part of the remedy in this case. At the hearing it was provided by
witnesses under oath, with an opportunity for cross examination. There is nothing more
or better that could be provided.
Testimony at the hearing convinces me that the Respondent does not possess
any applications or resumes submitted by temporary employees or applicants for such
positions. None were submitted. Similarly, I find, based on testimony at the hearing
that no interview notes exist. There were no interviews. There is, of course, no duty to
provide information that does not exist. Somewhat remarkably, in my estimation, a
recent Board majority held that the failure to inform the union that requested information
does not exist does not violate the Act, at least where, as here, the General Counsel
has not amended the complaint to so allege. Raley’s Supermarkets, 349 NLRB 26, 28
(2007). Accordingly, I find no violation as to these requested items.23
3. Information provided after a delay
In response to the Union’s November 19 information request, Bostic initially
responded by letter dated November 25. In that letter Bostic indicated, without
explanation, that ABC thought many of the requests were “overly broad and seek
irrelevant information.” However, the letter also indicated that ABC was “assessing
these requests and will respond to your requests in writing by December 5.”

23In Raley’s, the dissent explained:
[t]he notion that an employer's failure timely to indicate that it lacks
requested information is somehow distinguishable from a failure to
provide available information does a disservice to the Act. The purpose of
the Act's requirement that parties provide each other with relevant
information is to maximize communication between them and so minimize
industrial strife. For this purpose, it is elementary that parties must not
only provide requested information, but also timely inform each other
when they have none to provide. The failure to do either is obviously a
violation of the duty to provide relevant information.
349 NLRB at 30 (original emphasis).
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In the December 5 letter, received by Morgan December 8, Bostic continued to
maintain that the Union’s information request was “overly broad and seeks information
that is not relevant.” However, in her letter and its attachment, Bostic provided some
information responsive to the Union’s information request.
The hours worked, rate of hourly compensation, information about the (lack of)
benefits, and paid compensation for temporary employees performing dental claims
work was provided. This was also provided for the two employees performing medical
claims work. Information responsive to request 7 was included in the December 5
letter, explaining that the dental employees worked on paper claims and the medical
employees worked electronically. ABC also provided the date the work was sent to the
temporary dental claims employees. Also responsive, ABC stated the date the dental
claims work was returned to the Huntington office.
After Morgan received Bostic’s letter and the attachment, he responded to Bostic
with a letter, dated December 9, challenging Bostic to “specifically identify which
requests for information the company deems to be overly broad and/or irrelevant and
the basis for those objections.”
Bostic did not respond, and no further information was provided until April 24,
four days before the hearing in this matter. At that time, ABC’s counsel provided Union
counsel with additional information, including an array of payroll records, W-2 forms,
timesheets, direct deposit authorizations, and voided checks for the temporary
employees. There were also a few emails where the temporary employees performing
medical claims listed their hours. This gave the Union names, addresses, some phone
numbers, and a significant amount of information on the temporary employees’ work
hours and pay.
No excuse or explanation—either through testimony or in counsel’s brief—was
offered by the Respondent for the five month delay in providing this information.24 All
of the information provided in April 2009 appears to be information that ABC would
have possessed in November 2008 when the request was made, or within a few days.
As discussed, supra, it is axiomatic that, like a refusal to provide information, an

24On brief, the Respondent repeatedly contends (R. Br. at 17, 18, 22) that the Union
was not prejudiced by the delay in providing information. This is not an explanation,
and not a defense, and prejudice is not part of the General Counsel’s burden in proving
a violation. However, I reject the premise. The Respondent can only speculate on the
course of events had it timely provided the requested information as required by the
Act. Neither an employer nor union, faced with a relevant request for information, is
free to refuse to comply with the request so long as it believes that there is no prejudice
to the requesting party. Such an arrogation of the right to control the flow of information
would be recipe for a breakdown in the collective bargaining system and for increased
labor relations strife; consequences inimical to the purposes of the Act.
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unreasonable delay in providing requested relevant information is also violative of the
Act. This five month delay was unreasonable and a violation of the Act.25
CONCLUSIONS OF LAW
1. The Respondent American Benefit Corporation is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party Teamsters Local Union No. 505 (Union) is a labor
organization within the meaning of Section 2(5) of the Act.
3. At all material times the Union has been the designated exclusive collective-
bargaining representative of the following bargaining unit of Respondent’s
employees:
all employees employed by the Employer at its Huntington, West
Virginia location, but excluding all managerial employees,
professional employees, guards, and supervisors as defined in the
National Labor Relations Act.

4. The Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally
transferring bargaining unit work to offsite temporary nonbargaining unit
employees on or about October 18, 2008, without notifying the Union or
providing the opportunity to bargain.

25The complaint alleges a failure to provide requested information—not a failure to
timely provide information. However, the Board does not require separate complaint
allegations to cover these closely related violations. Care Manor of Farmington, 318
NLRB 330 (1995). In any event, the Board may find an unalleged violation "if the issue
is closely connected to the subject matter of the complaint and has been fully litigated."
Pergament United Sales, Inc., 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir.
1990). In this case both prongs of this test are met with regard to the delay in providing
information. The delayed information includes the very same information that—at the
time of the complaint’s issuance—had not been provided and was alleged in the
complaint to have not been provided. The only change was the Respondent’s decision,
four days before trial, to provide some of the information in dispute to the Union. Thus,
the allegation is “closely connected” to the pled 8(a)(5) case. The "determination of
whether a matter has been fully litigated rests in part on whether . . . the respondent
would have altered the conduct of its case at the hearing, had a specific allegation been
made." Pergament, supra at 335. In this case, the claim of delay was fully litigated
because the evidence is the same as the alleged refusal to provide information, except
that some of the information was provided on April 24, 2009. There is no factual
dispute on any relevant point.
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5. The Respondent violated Section 8(a)(1) and (5) of the Act by failing and
refusing to provide information requested by the Union and relevant to the
Union’s representational duties.
6. The Respondent violated Section 8(a)(1) and (5) of the Act by delaying the
furnishing of information requested by the Union and relevant to the Union’s
representational duties.
7. The unfair labor practices committed by the Respondent affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I find that it must be ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act. The Respondent shall
provide the Union with information that it has to date failed and refused to provide that
was requested by the Union in its November 19, 2008 information request to the
Respondent, as identified in the decision in this matter, including, information regarding
the date ABC contacted the temporary employees, phone numbers for temporary
employees not yet provided, information showing which work was sent to temporary
employees and when that work was sent.
The Respondent shall make whole its employees for losses in earnings and
other benefits which they may have suffered as a result of the Respondent's unlawful
unilateral transfer of bargaining unit work in October and November 2008 to offsite
temporary employees. All payments to employees are to be computed in the manner
set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971) as well as F.W. Woolworth Co., 90 NLRB 289 (1950), as appropriate,26 with
interest, as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
The Respondent shall reimburse the Union, with interest, for dues, if any, it
would have withheld and transmitted under the collective-bargaining agreement, in the
absence of its unlawful unilateral change, such sums to be calculated in the manner set
forth in Ogle Protection Service, supra. Interest on all such sums shall be computed as
prescribed in accordance with New Horizons for the Retarded, supra.

26The Ogle Protection formula applies in cases when the Board is remedying "a
violation of the Act which does not involve cessation of employment status or interim
earnings that would in the course of time reduce backpay." Ogle, supra at 683. The
Woolworth formula is otherwise appropriate in backpay cases. In this case, the
backpay remedy may involve either type of backpay remedy, or both, depending on
who is found to have suffered losses on account of the Respondent's conduct. That
determination is appropriate for resolution in a compliance hearing.
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The Respondent shall post an appropriate informational notice, as described in
the attached appendix. This notice shall be posted in the Respondent’s facility or
wherever the notices to employees are regularly posted for 60 days without anything
covering it up or defacing its contents. When the notice is issued to the Respondent, it
shall sign it or otherwise notify Region 9 of the Board what action it will take with
respect to this decision. In the event that, during the pendency of these proceedings,
the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees employed by the Respondent
at any time since October 18, 2008.
The Respondent shall, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended27
ORDER
The Respondent American Benefit Corporation, Huntington, West Virginia, its
officers, agents, successors, and assigns, shall
1. Cease and desist from:
a. Failing and refusing to bargain with the Union as the representative of its
employees in an appropriate bargaining unit by transferring bargaining
unit work to offsite temporary employees without providing the Union
notice and an opportunity to bargain.
b. Failing and refusing to bargain with the Union as the representative of its
employees in an appropriate bargaining unit by failing and refusing to
provide information requested by the Union that is relevant and necessary
to the Union’s representational duties.
c. Failing and refusing to bargain with the Union as the representative of its
employees in an appropriate bargaining unit by delaying the furnishing of
information requested by the Union that is relevant and necessary for the
Union’s representational duties.

27If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended 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.
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d. In any like or related manner interfering with, restraining or coercing
employees in the exercise of rights guaranteed to them by Section 7 of
the Act.
2. Take the following affirmative action which is necessary to effectuate the
purposes of the Act:
a. Make all affected employees whole, with interest, in the manner set
forth in the remedy section of this Decision and Order, for any loss of
earnings and other benefits suffered as a result of the Respondent’s
unilateral transfer of bargaining unit work to offsite temporary
employees that occurred during the months of October and November
2008.
b. Reimburse the Union, with interest, in the manner set forth in the
remedy section of this Decision and Order, for any dues it would have
been required to withhold and transmit under the collective-bargaining
agreement, had it not unilaterally transferred bargaining unit work to
offsite temporary employees during the months of October and
November 2008.
c. Provide the Union with information that it has to date failed and
refused to provide that was requested by the Union in its November
19, 2008 information request to the Respondent, including information
regarding the date ABC contacted the temporary employees, phone
numbers for temporary employees not yet provided, information
showing which work was sent to temporary employees and when that
work was sent.
d. Preserve and, within 14 days of a request, or such additional time as
the Regional Director may allow for good cause shown, make
available at a reasonable place designated by the Board or its agents
for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records, including an electronic copy of the records if stored in
electronic form, necessary to analyze the amount of backpay due
under the terms of this Order.
e. Within 14 days after service by the Region, post at its facility in
Huntington, West Virginia copies of the attached notice marked
“Appendix.”28 Copies of the notice, on forms provided by the Regional

28If 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.”
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Director for Region 9, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent 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. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former
employees employed by the Respondent at that facility at any time
since October 18, 2008.
f. Within 21 days after service by the Region, file with the Regional
Director of Region 9 a sworn certification of a responsible official on a
form provided by the Region attesting to the steps that Respondent
has taken to comply with the provisions of this Order.
Dated, Washington, D.C., July 2, 2009
_______________________
David I. Goldman
Administrative Law Judge
JD-32-09
Huntington, WV
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT unilaterally transfer bargaining unit work to offsite temporary employees
without providing the Union notice and an opportunity to bargain.
WE WILL NOT fail or refuse to provide the Union with information it requests that is
relevant to the Union’s representational duties.
WE WILL NOT delay in furnishing the Union with information it requests that is relevant
to the Union’s representational duties.
WE WILL make employees whole for any loss of earnings, with interest, incurred
because of our unilateral transfer of bargaining unit work to offsite temporary
employees in October and November 2008.
WE WILL reimburse the Union with interest for any dues we would have been required
to withhold and transmit under the collective-bargaining agreement, had we not
unilaterally transferred bargaining unit work to offsite temporary employees during the
months of October and November 2008.
WE WILL, provide the Union with information that we have to date failed and refused to
provide that was requested by the Union in its November 19, 2008 information request,
including information regarding the date ABC contacted the temporary employees,
phone numbers for temporary employees not yet provided, information showing which
work was sent to temporary employees and when that work was sent.
JD-32-09
Huntington, WV
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed them by Federal law.
AMERICAN BENEFIT CORPORATION
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National
Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation
and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights
under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the
Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
550 Main Street, Federal Office Building, Room 3003
Cincinnati, Ohio 45202-3271
Hours: 8:30 a.m. to 5 p.m.
513-684-3686.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 513-684-3663.