Post-Tribune Co.

National Labor Relations Board - Board Decisions

Sep 12, 2002

337 N.L.R.B. 1279 (N.L.R.B. 2002)

POST-TRIBUNE CO. 1279
The Post-Tribune Company, A Division of the Sun
Times Company, a Subsidiary of Hollinger In-
ternational Publishing, Inc. and Gary Newspa-
per Guild, TNG-CWA Local 34014. Case 13–
CA–39228–1
September 12, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On October 26, 2001, Administrative Law Judge Wil-
liam N. Cates issued the attached bench decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel and the Charging Party each filed an
answering brief and cross-exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.
The case involves an alleged unilateral increase in the
amount deducted from employees’ paychecks for health
insurance coverage. The judge found that the Respon-
dent violated Section 8(a)(5) and (1) in January 2001 by
increasing these deductions, in order to pass on to em-
ployees a portion of a premium increase imposed by the
Respondent’s insurance carrier, without giving the Union
notice and an opportunity to bargain. Because we find
that the Respondent followed an established past practice
and did not alter the status quo, we reverse the judge and
dismiss the complaint.
I. FACTS
In early 1998, the Respondent acquired the Post-
Tribune through an asset purchase. The Respondent set
initial terms and conditions of employment, hired a ma-
jority of its predecessor’s employees, and recognized the
Union. The parties began negotiating for a collective-
bargaining agreement, but had not reached an agreement
or impasse at the time of the events at issue here.
The Respondent’s initial terms and conditions, as
communicated to employees and the Union, listed the
amounts that would be deducted from employees’ pay-
checks for health insurance coverage. Although the list
stated these amounts in dollars rather than percentages,
the dollar amounts represented 20 percent of the pre-
mium for individual employee coverage and 40 percent
of the premium for spouse and dependent coverage. That
is, the premium cost for individual coverage was divided
between the Respondent and the employee on an 80/20-
percent basis, and the cost for spouse and dependent cov-
erage was divided on a 60/40-percent basis.
In both January and July 2000, in response to premium
increases by its insurance carrier, the Respondent in-
creased the dollar amounts of employees’ payroll deduc-
tions for health insurance. Each time, the Respondent
issued a memorandum notifying employees of the new
amounts to be deducted from their paychecks for health
insurance. Although the memoranda again expressed
these amounts in dollars rather than as percentages, the
new dollar amounts maintained an 80/20-percent and
60/40-percent allocation of the premium cost.1
About December 8, 2000, the Respondent announced
that it was changing insurance carriers.2 About Decem-
ber 15, 2000, the Respondent announced that employees’
biweekly insurance deductions would increase under the
new carrier, and that the new deductions would take ef-
fect on January 1, 2001. The memorandum announcing
this increase stated that “the company will continue to
pay the majority of the costs: 80% for individuals and
60% for dependents.” The memorandum then listed the
new, increased dollar amounts that employees would
pay.
On January 12, 2001, the Union sent a letter to the Re-
spondent objecting to the January 1, 2001 increase and
requesting bargaining. On March 30, 2001, the Union
filed a charge alleging that the increase was a unilateral
change in violation of Section 8(a)(5) and (1).
The judge found that the Respondent had “operated
under a policy of [an] 80/20, 60/40 ratio” with respect to
allocating insurance premium costs to employees, and
that the Respondent had, at least since 1999, shared any
of its carrier’s premium increases with employees ac-
cording to that ratio. Nevertheless, the judge found that
the January 2001 increase in employees’ payroll deduc-
tions for health insurance was a unilateral change in vio-
lation of Section 8(a)(5) and (1), because it was imple-
mented without giving the Union notice and an opportu-
nity to bargain. We reverse.
II. ANALYSIS
An employer violates Section 8(a)(5) and (1) if it
makes a unilateral change in wages, hours, or other terms
and conditions of employment without first giving the
Union notice and an opportunity to bargain. See NLRB

1 The Union did not object to, or request to bargain over, the January
and July 2000 increases, and the complaint does not allege them to be
unlawful.
2 The judge did not allow the General Counsel to litigate whether the
change in insurance carriers (or any change in benefits resulting from
the change in carriers) was itself an unlawful unilateral change. He
ruled that the existing complaint did not encompass that issue, and he
denied the General Counsel’s motion to amend the complaint. There
are no exceptions to these rulings.
337 NLRB No. 192
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1280
v. Katz, 369 U.S. 736, 743 (1962).3 “[T]he 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 un-
fair labor practice charge.” Daily News of Los Angeles,
315 NLRB 1236, 1237 (1994), enfd. 73 F.3d 406 (D.C.
Cir. 1996), cert. denied 519 U.S. 1090 (1997) (quoting
NLRB v. Dothan Eagle, 434 F.2d 93, 98 (5th Cir. 1970)).
Therefore, where an employer’s action does not change
existing conditions—that is, where it does not alter the
status quo—the employer does not violate Section
8(a)(5) and (1). See House of the Good Samaritan, 268
NLRB 236, 237 (1983). An established past practice can
become part of the status quo. See Katz, 369 U.S. at 746.
Accordingly, the Board has found no violation of Section
8(a)(5) and (1) where the employer simply followed a
well-established past practice. See, e.g., Luther Manor
Nursing Home, 270 NLRB 949, 959 (1984), affd. 772
F.2d 421 (8th Cir. 1985); A-V Corp., 209 NLRB 451,
452 (1974).
The Respondent argues that it had an established past
practice of allocating health insurance premiums on an
80/20-percent and 60/40-percent basis, and that this allo-
cation was the status quo. The Respondent argues that it
simply followed that practice in January 2001 by allocat-
ing its carrier’s premium increase according to the same
percentages. Therefore, the Respondent contends, the
increase in the dollar amount of employees’ payroll de-
ductions did not alter the status quo, because employees
continued to pay 20 percent or 40 percent of the new
premium. We agree. The Respondent’s position is sup-
ported by well-established precedent.
When the Respondent acquired the Post-Tribune in
early 1998, it set initial terms and conditions of employ-
ment, including the amounts employees would be re-
quired to pay for health insurance. These amounts repre-
sented a sharing of premiums between the Respondent
and employees on an 80/20-percent basis for individual
coverage and a 60/40-percent basis for spouse or de-
pendent coverage. The Respondent maintained these
percentages in January 2000 and again in July 2000,
when it allocated a portion of its carrier’s premium in-
creases to employees. Other than these two increases
and the January 2001 increase at issue here, there is no
evidence of any other premium increase by the carrier.
Therefore, we agree with the Respondent that at the time
of the January 2001 increase, the Respondent had a con-
sistent, established past practice of allocating health in-
surance premiums on an 80/20-percent and 60/40-percent

3 It is undisputed that the cost to employees for health insurance was
a term or condition of employment.
basis. In allocating a portion of the January 2001 in-
crease to employees, the Respondent maintained the
same 80/20-percent and 60/40-percent ratios it had con-
sistently applied ever since it established initial terms and
conditions of employment.
In several prior decisions, the Board has addressed this
very issue: whether an employer may unilaterally pass
on a portion of a carrier’s premium increase to employ-
ees. The Board has found no violation of Section 8(a)(5)
and (1) where, as here, the employer had a past practice
of sharing premium costs with employees according to a
particular percentage, and simply allocated the carrier’s
premium increase in a manner that maintained that per-
centage. See, e.g., Luther Manor Nursing Home, supra
at 959 (no violation of Sec. 8(a)(5) and (1) where the
employer, in accordance with past practice, paid one
third of an insurance premium increase itself and re-
quired employees to pay the remaining two thirds); A-V
Corp., supra at 452 (where the employer’s “consistent
practice with regard to increased insurance premium
costs . . . had been to allocate a portion of such costs to
its employees on a pro rata share basis,” the employer’s
allocation of a later premium increase in the same man-
ner “merely represent[ed] a continuation of its past prac-
tice rather than an unlawful unilateral change in condi-
tions of employment”).
The Board also addressed this issue in Maple Grove
Health Care Center, 330 NLRB 775 (2000). The Board
stated:

There are . . . circumstances in which an employer
might lawfully pass on part of an externally imposed
insurance premium increase to employees without first
bargaining with their collective-bargaining representa-
tive. Thus, if an employer had a practice of paying, for
example, 80 percent of the premiums and the employ-
ees 20 percent, no change in the status quo ante would
be found if both the employer and the employees con-
tinued, after the increase, to pay the same percentages
of the larger total.

330 NLRB at 780. In Maple Grove, however, unlike this
case, there was no indication that the employer had passed
on earlier premium increases to employees on a percentage
basis. Indeed, in Maple Grove there appeared to be no evi-
dence at all of what the status quo was. Therefore, the
Board found that the employer’s premium increase violated
Section 8(a)(5) and (1).4
4 In Maple Grove, the Board also remarked that the record did not
show “what, if any, understanding the Respondent had with its employ-
ees” about how premiums would be allocated. 330 NLRB at 780. In
this case, employees clearly were aware (through the January and July
2000 increases) of the Respondent’s practice of passing on a portion of
POST-TRIBUNE CO. 1281
By contrast, in this case, the record shows that the Re-
spondent had a consistent, established practice of allocat-
ing insurance premiums on an 80/20-percent and 60/40-
percent basis. We, therefore, find that this 80/20-percent
and 60/40-percent allocation was the status quo. The
January 2001 increase in employees’ payroll deductions
for health insurance did not alter the status quo, but sim-
ply maintained it. Accordingly, we find that the Respon-
dent did not violate Section 8(a)(5) and (1) as alleged in
the complaint.5
ORDER
The complaint is dismissed.

Kevin McCormick, Esq., for the General Counsel.
L. Michael Zinser, Esq. and Pamela A. Davidson, Esq., for the
Company.
Barbara L. Camens, Esq., for the Union.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is a
unilateral change in employees medical and dental biweekly
insurance deductions case. At the conclusion of a 1-day trial in
Chicago, Illinois, on October 5, 2001, and after hearing oral
argument by Government and Company Counsel, I issued a
Bench Decision pursuant to Section 102.35(a)(10) of the Na-
tional Labor Relations Board’s (the Board) Rules and Regula-
tions setting forth findings of fact and conclusions of law. This

its insurance carrier’s premium increases. Citing Maple Grove, how-
ever, the General Counsel and Union argue that because the Respon-
dent’s communications to employees expressed the employees’ share of
the premium in dollar amounts rather than as a percentage, there was no
“understanding” that the amounts paid by employees reflected an
80/20-percent or 60/40-percent allocation. The General Counsel and
the Union contend that in the absence of such an understanding, the
80/20-percent and 60/40-percent allocation cannot be the status quo.
Members Cowen and Bartlett do not read Maple Grove as requiring
such an understanding.
Member Liebman does not pass on whether Maple Grove requires
such an understanding. In her view, under Maple Grove, the existence
of an understanding would, at least, be evidence relevant to show what
the status quo was. To the extent that Maple Grove can also be read to
require an understanding (rather than simply considering it as evi-
dence), Member Liebman would find that requirement to be satisfied.
In doing so, she would rely on the Union’s failure to inquire about the
basis for the earlier premium increases and its acquiescence in those
increases. Cf. A-V Corp., 209 NLRB at 452 (union’s “apparent concur-
rence, or at least acquiescence” in past increases was a factor in the
Board’s conclusion that a later increase was not a unilateral change).
5 Because we find that the January 2001 increase did not change the
status quo, and we dismiss the complaint on that basis, we find it un-
necessary to pass on the Respondent’s argument that the Union waived
its right to bargain over the increase or the General Counsel’s argument
that the increase was presented as a fait accompli. Member Cowen
additionally finds it unnecessary to pass on the Respondent’s argument,
rejected by the judge, that the complaint allegations are barred by Sec.
10(b).
certification of that Bench Decision, along with the Order
which appears below, triggers the time period for filing an ap-
peal (Exceptions) to the Board.
For the reasons stated by me on the record at the close of the
trial, I found The Post-Tribune Company, a Division of the Sun
Times Company, a Division of Hollinger International Publish-
ing, Inc. (herein Company) violated Section 8(a)(5) and (1) of
the National Labor Relations Act, as amended (the Act) when
on January 1, 2001, it changed the medical and dental bi-
weekly insurance deductions for employees represented by
Newspaper Guild, TNG-CWA Local 34014 (herein Union),
without prior notice to the Union and without affording the
Union, as the exclusive collective bargaining representative of
the unit employees, an opportunity to bargain with respect to
these mandatory subjects of bargaining. I rejected the Com-
pany’s contention the Union, through the long standing admini-
stration of insurance at the Company, had waived its right to
object to the premium changes. Concerning the Company’s
waiver issue I noted that waivers of statutory rights are not to
be lightly inferred, but instead must be “clear and unmistak-
able.” Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708
(1983). In the instant case there was no evidence even of noti-
fication to the Union about the changes let alone that the issue
was discussed and consciously explored and/or that the Union
consciously yielded or clearly and unmistakably waived its
interest in the matter. I also concluded the fact the Union did
not protest or demand to bargain over previous unilateral
changes in health and dental premium deductions did not re-
quire a different result than I reached. The Board has consis-
tently held that a union that acquiesces in an employer’s unilat-
eral changes in terms and conditions of employment does not
irrevocably waive its right to bargain over such changes in the
future. Georgia Power Co., 325 NLRB 1, 2 fn. 9 (1998). I
likewise rejected, as clearly without merit, the Company’s de-
fense that the matter was barred either by the time limitations
set forth in Section 10(b) of the Act or by the doctrine of la-
ches.
I certify the accuracy of the portion of the transcript, as cor-
rected,1 pages 178 to 191, containing my Bench Decision, and I
attach a copy of that portion of the transcript, as corrected, as
“Appendix A.”
CONCLUSION OF LAW
The Company is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act; that it vio-
lated the Act in the particulars and for the reasons stated at trial
and summarized above and that its violations have affected and,
unless permanently enjoined, will continue to affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Company has engaged in certain un-
fair labor practices, I find it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
1 I have corrected the transcript pages containing my Bench Decision
and the corrections are as reflected in attached Appendix C [omitted
from publication].
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1282
Having found the Company effective January 1, 2001, uni-
laterally changed the biweekly medical and dental insurance
premium deductions for its employees in the bargaining unit,
represented by the Union herein, I shall recommend the Com-
pany be ordered to restore the status quo ante as existed prior to
January 1, 2001, and upon demand by the Union bargain in
good faith to an agreement or valid impasse regarding the
changes. I recommend the Company be ordered to immedi-
ately refund any increase in the biweekly premiums charged
after January 1, 2001. The refunded amounts may be held in
escrow by the Company for a reasonable time (not to exceed 6
months) while the parties attempt to negotiate a resolution of
this matter. If after 6 months the parties have not negotiated a
resolution of the matter the moneys shall be refunded to the
employees with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). I shall also recommend the
Company be ordered, within 14 days after service by the Re-
gion, to post an appropriate “Notice to Employees,” copies of
which are attached hereto as “Appendix B” for a period of 60
consecutive days in order that employees may be apprised of
their rights under the Act and the Company’s obligation to
remedy its unfair labor practices.
[Recommended Order omitted from publication.]
APPENDIX A
178
ASSOC. CHIEF JUDGE CATES: This is my decision in the Post
Tribune Company, a Division of the Sun Times Company, a
Subsidiary of Hollinger International Publishing Inc., herein
Company, in Case 13–CA–39228–1.
The charge in this case was filed by Gary Newspaper Guild
TNG-CWA Local 34014, herein, Union, on March 15 and
amended on March 30, 2001.
The Regional Director for Region 13 of the National Labor
Relations Board through an acting Regional Director, issued a
complaint and notice of hearing on June 20, 2001 following an
investigation by Region 13’s staff.
An answer was timely filed to the complaint on or about July
6, 2001 and the matter came to be heard before me on October
5, 2001 in Chicago, Illinois. Certain of the facts
179
herein are admitted or stipulated.
It is admitted that the Company is a corporation with an of-
fice and principal place of business in Merrillville, Indiana,
where it is engaged in the publication of a daily newspaper.
During the calendar year preceding the issuance of the com-
plaint, which is a representative period, the Company in con-
ducting its business operations that I have just described, de-
rived gross revenues in excess of $200,000 and held member-
ship in or subscribed to various inter-state news services in-
cluding the Associated Press and advertised various nationally
sold products, including Ford Motor Company and Chrysler
automobiles.
The parties admit the evidence establishes and I find that the
Company is an employer engaged in commerce within the
meeting of Section 2(2)(6)(7) of the Act. The parties
admit the evidence establishes and I find that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
The parties also admitted that Betty Villareal held the posi-
tion of the Company Publisher’s Administrative Assistant, and
that at all times material to this case, she was an agent of the
Company within the meaning of Section 2(13) of the Act.
In listening to the testimony of the various witnesses, I don’t
think there are contradicted facts between any of
180
the six witnesses who testified. The facts that I shall rely on,
however, I am specifically crediting those facts and am relying
on those facts whether I identify the speaker or not.
It appears that the Company herein has for a number of years
operated a newspaper with primary distribution in two counties
in and around errillville, Indiana. It appears that the Company
has had a somewhat longstanding relationship with the Union
herein.
Former President of the Local Union Joseph Conn testified
that the then Company and the Union executed a
collective bargaining agreement in November of 1990 that
had a four year duration. And that following the four year du-
ration of the contract, the parties exercised what I think he re-
ferred to as a green or greening provision of the collective bar-
gaining agreement that brought forward or
continued the terms of the collective bargaining agreement
for two separate two year extensions.
And that the parties started to negotiate a contract but were
unsuccessful in doing so, and that in, somewhere in the 1997 to
1998 time frame, any negotiations toward a new contract ac-
cording to former Union President Conn ground to a halt and
that the Company was sold from the Knight Ridder Newspaper
Industry to the current owner.
He placed the sales date as approximately February 2,
181
1998. Local, former Local Union President Conn testified that
the Company recognized the Union as its collective bargaining
representative in March of 1998 for employees in the following
unit.
The unit is “all full-time and regular part-time employees
employed in the editorial department of the Post Tribune ex-
cluding the Executive Editor, the Executive
Managing Editor, the Editorial Page Editor, the Metropolitan
Editor, the News Editor, the Features Editor, the Executive
Sports Editor, the Chief Photographer, the Assistant Managing
Editor, the Chief Librarian, the Copy Desk Chief, two Assistant
Metro Editors, as defined in the predecessor contract, and any
other Managers and Supervisors as defined in the National
Labor Relations Act, the Confidential Secretary to the Execu-
tive Editor, and the Executive Managing Editor and all other
employees.”
It is alleged the parties admit, and I find, that such constitutes
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
Based on the testimony of former Union President Conn, as
well as the complaint allegations and admissions thereto, I find
POST-TRIBUNE CO. 1283
that since at least March 4, 1998, and at all material times the
Union has been the designated exclusive collective bargaining
representative of the unit
182
as I have just described, and has been recognized by the Com-
pany as such.
The recognition was embodied in a recognition agreement as
testified to by former Union President Conn dated March 4,
1998. The complaint alleges, the parties admit, and I find that
at all times material based on Section 9(a) of the Act, the Union
has been and continues to be the exclusive bargaining represen-
tative of the unit employees.
The specific compliant allegations are as follows:

that on or about December 8 and 15, 2000 the Company an-
nounced changes in the unit employees’ medical and dental
insurance, including new bi-weekly insurance deductions to
be effective and implemented on January 1, 2001.

It goes without saying that the government alleges that the
changes related to wages and hours and other terms and condi-
tions of employment, and as such constituted a mandatory sub-
ject of collective bargaining. The government further specifi-
cally alleges that the failure of the Company to allegedly give
notice to the Union and bargain about the changes constituted
an unfair labor practice within the meaning of Section 8(a)(1)
and (5) of the Act.
The facts that are pertinent to this case that underlie the
complaint allegations for which I am to decide, are that the
Company has for an extended time provided to the
183
unit employees and perhaps other employees of this Company,
medical and dental health coverage.
The dental and health coverage has been provided by various
insurance providers over the applicable period of time herein.
The Company has operated under a policy of a 80/20, 60/40
ratio for the amount of costs that will be assessed to the em-
ployees. The 80/20 ratio applies to the employees themselves.
The 60/40 ratio applies to dependents or others as explained in
the various exhibits herein of which it is not necessary that I
allude to in detail.
The Company has, at least starting in 1999, passed on any
increases in premiums that it was assessed from the carrier on
to the employees and indirectly on to the dependents or others
covered under the policy in a 80/20, 60/40 ratio. The facts
demonstrate that there was notification to the Company of at
least three increases that were passed on to the employees in
the ratio just indicated.
The first of those particular to this case was in 1999, in per-
haps December, implemented in January of 2000, there was
again an increase from the carrier to the Company in mid-2000
that was passed on to the employees and indirectly to the other
individuals covered under the policies, and again at the end of
2000 there was
184
an increase that was passed on to the employees in the exact
same ratio each time.
Each time that there was an increase in premiums the Com-
pany notified the employees in writing that the increases were
forthcoming and that they would be implemented shortly after
notification to the employees.
Notification usually preceded by at least one pay period the
implementation.
For example the specific allegations in the complaint before
me indicate that the employees were notified on or about the
middle of December 2000. They were notified twice that the
new bi-weekly insurance premiums would go into effect in
January, specifically January 1, 2001.
The evidence indicates that the union was not specifically
and/or as an entity notified of any of the changes I have made
reference to, and specifically not given notification, as an en-
tity, on either December 8 or 15, 2000 that there was going to
be an increase in the medical and dental insurance premiums
effective January 1, 2001.
The evidence is quite clear that there were no negotiations
between the Company and the Union regarding any of the an-
nouncements of increases in insurance premiums and the im-
plementation of those premiums. There is
185
likewise no evidence that the union ever requested to bargain
about the increased premiums before their request to the Com-
pany following the January 1, 2001 implementation of the an-
nounced December 15, 2000 increase in premiums.
Following the January 1, 2001 implementation of the in-
crease in insurance premiums on a bi-weekly basis, the current
President of the Local Union, Puente, testified that co-workers
spoke with him about the changes indicating among other
things that they were having difficulty obtaining insurance
cards after the January 1, 2001 increase.
The Local Union President estified that he e-mailed the
Company about his concerns and the e-mail was received into
evidence. He also testified that he spoke with International
Union Representative Bruce Nelson and that International Rep-
resentative Nelson apprized the Local Union President that this
was what he believed to be a mandatory subject of bargaining
and that they should view it as such and proceed forward.
And then we come to the charge being filed and the subse-
quent complaint that I’m hearing being issued. Those are es-
sentially the facts that this case is based on. The Government
argues that number one, an increase in premiums
186
on insurance policies is a mandatory subject of bargaining, that
the announcement in December of 2000, like previous an-
nouncements was a fait accompli that the Union and the em-
ployees, to the extent the Union was notified, was merely that
this is what is taking place and the changes will take effect on a
given date, and here’s what the new rates will be.
The Government argues that since it is a mandatory subject
of bargaining and that no notice, based on the Government’s
argument was given to the Union, and no opportunity to bar-
gain, that the Company has violated the Act and must be order
to rescind their actions and negotiate either to an understanding
or an impasse and to refund or at least hold in abeyance the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1284
funds, additional funds that have been collected for the health
coverage, until the matter is properly egotiated.
The Union would argue consistent with the Government’s
position. The Company on the other hand would argue that it
was simply maintaining the status quo, that it had always, at
least in the times that are applicable to this case from 1999
forward, which would involve the current ownership of the
Company herein, has consistently and always passed on any
increase in premiums in the same percentage that it had previ-
ously done.
Whatever the insurance provider charged in addition to
187
what it had previously charged, that is the increases, were
passed on to the employees and indirectly to their dependents
and others on the same percentage basis. The Company would
argue that it was simply maintaining the status quo.
The Company would further argue, that even if it had an ob-
ligation to bargain about the matter, that the Union acquiesced
in the increases and that by its inaction it had waived its right to
negotiate over the increase in premiums, and that as such the
complaint should be dismissed.
The Company in support of that position would further argue
that if the Union ever had any compliant about it, it neither
challenged nor objected to it, and that it must now live with the
procedure that it has for a number of times acquiesced in.
An employer, such as the Company herein, has a duty to
bargain over terms and conditions of employment for its bar-
gaining unit employees. I don’t think there’s any dispute in this
case, but that the Company had, and continues to have a bar-
gaining obligation with the Union.
At issue herein is whether that obligation extended to the in-
stant issue, that is the changes in the unit employees’ medical
and dental insurance premiums that went into effect on January
1, 2001. Medical insurance coverage has been held to involve
terms and conditions of
188
employment such as to require bargaining thereon. Stated dif-
ferently, medical and dental insurance coverage and premiums
are mandatory subjects of bargaining. I find that the Company
did not give the Union, as an entity, any prior notice or offer to
bargain about the changes in the amount of premiums for the
medical and dental insurance that it announced on December 8
and 15, 2000 that was to take effect on, and did take effect on
January 1, 2001.
I find that the Company’s failure to do so, absence some
valid defense, violates Section 8(a)(1) and (5) of the Act. Did
the Union by its actions prior to the January 1, 2001 implemen-
tation waive its right to bargain on this matter?
I find they did not waive their right. Waivers of statutory
rights are not to be lightly inferred. But must instead be clear
and unmistakable. Even when an employer, such as the Com-
pany herein, would attempt to rely on past notification of
changes in terms and conditions in the policies of health, medi-
cal and dental coverage, nothing in those prior notifications
would indicate that the Union, by notcomplaining about such,
waived its right to bargain over such.
For there to be a waiver the issue must be fully discussed,
onscientiously explored, and the Union must conscientiously
yield or clearly and unmistakably waive its
189
interest in the matter. There has been no such showing in this
case. The fact that the Union did not protest or demand to bar-
gain over previous unilateral changes as set forth in 1999 and
2000, does not require a different result.
The Board has consistently held that a Union that acquiesces
in an employer’s unilateral changes in terms and conditions of
employment does not irrevocably waive its right to bargain
over such changes in the future. The Company in one of its
various defenses alleges that the complaint allegations herein
are barred by the statutory limitations set forth in Section 10(b)
of the Act.
There has been absolutely to showing in this record of any
alleged violation that would be precluded under Section 10(b)
of the Act. I find that the Company as alleged in the complaint
unilaterally changed the premiums for the medical and dental
insurance coverage on January 1, 2001, and that it did so
without any legal bargaining justification. That is it gave no
prior notice to, nor did it afford the Union an opportunity to
bargain with respect to this conduct. And as such its actions
violated Section 8(a)(1) and (5) of the Act.
And I shall order that the Company rescind the increased
premiums, hold such premiums in escrow, until such time as
the Union and the Company have negotiated an
190
agreement on this matter or they have reached impasse. If at
that point it has not been resolved, then the additional charges
should be returned to the individual employees.
I find all of this independent of the statement of position
provided by the Company to the Government dated April 11,
2001, but I stand in full agreement with Co-Counsel for the
Company’s assessment as reflected in her position paper that
“The Post Tribune understands that the cost of insurance pre-
miums is a mandatory subject of bargaining. On or about De-
cember 2000 the Post Tribune unilaterally increased the insur-
ance premiums of bargaining unit employees without notice
and without bargaining.” Perhaps she had it right.
In due time the Court Reporter will serve on me a copy of
the transcript of this proceeding. At that point I will certify to
the Board those pages of the transcript that constitute my deci-
sion with corrections and it is from that certification forward
that the appeals period runs. Or at least that’s my understand-
ing of the Board’s rules and regulations.
However, I would invite you to review the Board’s rules and
regulations for yourself and not be bound by my understanding
of them. As a matter of procedure, once I receive the transcript
I will make corrections thereon and will make an attachment
showing you precisely what
191
corrections I made. I will attach a notice that is to be posted by
the Company for the appropriate period, and I will incorporate

POST-TRIBUNE CO. 1285
a summary of the order that I have included herein. And then
any party is privileged if they care to to take exceptions from
that period forward.
Let me state that it has been a pleasure to be in Chi-
cago, Illinois and with that this trial is closed. (Where-
upon, the proceedings concluded at 3:45 p.m.)