Rehearings En Banc Denied February 17, 2000.
ROSEN, D. J., delivered the opinion of the court, in which MOORE, J., joined. NELSON, J. (pp. 454-56), delivered a separate dissenting opinion.
ROSEN, District Judge.
Petitioners Loral Defense Systems-Akron ("Loral") and Aircraft Braking Systems Corp. ("Aircraft") petition for review of the Decision and Order of the National Labor Relations Board (the "NLRB") finding that they violated Section 8(a)(5) of the National Labor Relations Act (the "Act"), 29 U.S.C. § 158(a)(5), by unilaterally changing health care plans covering employees represented by the UAW. The NLRB cross-petitions for enforcement of its Order.
I. FACTUAL BACKGROUND
In 1988, Loral and the UAW entered into a collective bargaining agreement ("CBA") which took effect on November 1, 1988. At the time that this first CBA was negotiated, Aircraft was a division of Loral and as a consequence, employees of both entities were covered by the same Agreement. Subsequently, Aircraft was severed from Loral and became an independent corporate entity.
The 1988 collective bargaining agreement covering Loral and Aircraft employees was to expire by its own terms on August 10, 1991. In order to enable it to negotiate its own contract, Aircraft filed a unit clarification petition with the NLRB. On July 26, 1991, the Board issued an order determining that the single collective bargaining unit was no longer appropriate in light of the new organizational structure of the companies and, accordingly, created separate units for the Aircraft and Loral employees. Aircraft and Loral continued to recognize the UAW as the exclusive bargaining representative of each unit. Further, both companies continued to operate under the 1988 CBA until its expiration date on August 10, 1991.
Both Loral and Aircraft engaged in contract negotiations with the union prior to the expiration date but were unable to reach agreements. On August 10, 1991, Aircraft unilaterally implemented its final contract offer. Loral continued to negotiate with the union after the August 10 expiration date, but the Loral negotiations also reached an impasse and on October 14, 1991, Loral implemented its final offer.
As implemented, Loral's final offer contained a provision to provide for "medical benefits under the 80/20 Option of the Comprehensive Medical plan." The agreement also provided that the "Medical Necessity" plan (the plan provided under the expired 1988 CBA) would be terminated. The Comprehensive Medical Plan contained the following provision:
Loral's reservation of the right to amend or modify the Comprehensive Medical Plan was opposed by the Union.
On April 2, 1992, the Union wrote a letter to Leonard Laden, Loral's President, advising him that the Union "stands ready to continue negotiations" for a mutually acceptable collective bargaining agreement. Pursuant to that letter, on July 16, 1992 Loral entered into a Memorandum of Agreement with the Union in which the parties agreed to meet for a period of 15 days for "clarification purposes only" concerning eleven listed subjects with the understanding that "[i]f clarification is reached between the Company and the Union with regard to the eleven items, the implemented contract shall be supplemented to reflect such clarification and the Union's bargaining committee shall unanimously recommend ratification of such modified agreement to the members of Local 856 of the Company." [See J.A. p. 173.] The list of items to be covered in these discussions included
[See J.A. p. 173, Memorandum of Agreement, § 1(A)(II).]
Gregory Myer, Loral's Director of Human Resources, met with the Union in these re-opened discussions. At the hearing before the ALJ, Myer testified that the Union "requested that we consider our position on [reserving the right to make] changes to comprehensive medical health plan during the life of the agreement." [J.A. p. 137.] When asked what he told the Union, Myer stated,
Id. No agreement was ever reached on any of the subjects.
On January 29, 1993, both Loral and Aircraft announced to the Union that effective May 1, 1993, the health care benefits plan for union employees would be changed from the Comprehensive Medical Plan set forth in the implemented proposals to the Aetna Managed Choices Plan.
Aircraft's Director of Human Resources, Edward Searle, first met with members of the Union's executive bargaining committee on December 17, 1992 to advise them of the soon-to-be announced change in medical benefits; he then met with Union representatives again on December 21 and January 28 or 29, 1993.
The Union protested the companies' announcement of the unilateral change in health care plans. [J.A. pp. 68, 169.]
A. A COMPARISON OF THE HEALTH CARE PLANS
Based upon the testimony and exhibits in the administrative proceedings
LORAL---------------------------------------------------------------- | TERMS | COMPREHENSIVE | MANAGED | MANAGED | | | | CHOICES | CHOICES | | | | IN | OUT OF | | | MEDICAL | NETWORK | NETWORK | |--------------|-----------------|---------------|---------------| | CHOICE OF | ANY | LIMITED TO | ANY | | DOCTORS/ | (PATIENT'S | DOCTORS/ | (PATIENT'S | | HOSPITALS | CHOICE) | HOSPITALS | CHOICE) | | | | IN NETWORK; | | | | | SPECIALISTS | | | | | ONLY AS | | | | | REFERRED | | | | | BY PRIMARY | | | | | IN-NETWORK | | | | | PHYSICIAN | | |--------------|-----------------|---------------|---------------| | DEDUCTIBLE | $200 PER | NONE (PAY | $500 PER | | | PERSON; | ONLY $15 | PERSON; | | | $600 FOR | PER | $1500 FOR | | | FAMILY | OFFICE | FAMILY | | | OF 3 OR | VISIT) | OF 3 OR | | | MORE | | MORE | |--------------|-----------------|---------------|---------------| | COPAYMENT | AFTER | NONE (PAY | AFTER | | | DEDUCTIBLE | ONLY $15 | DEDUCTIBLE | | | IS SATISFIED: | PER | IS SATISFIED:| | | 20% UP TO | OFFICE | 30% | | | CO-PAY | VISIT) | | | | MAXIMUM | | | ----------------------------------------------------------------
---------------------------------------------------------------- | PRESCRIPTION | $4.00 FOR | $5.00 PER | 20% OF | | DRUG CO- | GENERIC | GENERIC | THE PRICE | | PAYMENT | DRUGS; | DRUGS; | OF | | | $6.00 FOR | $5.00 PLUS | GENERIC | | | BRAND-NAME | DIFFERENCE | DRUGS; | | | DRUGS | BETWEEN | FOR | | | | COST OF | BRAND-NAME | | | | GENERIC | DRUGS, | | | | AND | 20% OF | | | | BRAND-NAME | THE PRICE | | | | FOR BRAND- | OF THE | | | | NAME DRUGS | BRAND-NAME | | | | | DRUG | | | | | PLUS | | | | | DIFFERENCE | | | | | BETWEEN | | | | | PRICE OF | | | | | BRAND-NAME | | | | | AND | | | | | GENERIC | |--------------|-----------------|---------------|---------------| | COPAYMENT | $1,500 | NO LIMIT | $3,500 PER | | MAXIMUM | | ON OUT-OF | PERSON; | | | | POCKET | $10,500 FOR | | | | EXPOSURE | FAMILY | | | | | OF 3 OR | | | | | MORE | |--------------|-----------------|---------------|---------------| | LIFETIME | UNLIMITED | $1,000,000 | $1,000,000 | | BENEFITS | | | | ----------------------------------------------------------------
AIRCRAFT----------------------------------------------------------------- | TERMS | COMPREHENSIVE | MANAGED | MANAGED | | | MEDICAL *| CHOICES | CHOICES | | | | IN | OUT OF | | | | NETWORK | NETWORK | |--------------|-----------------|---------------|---------------| | CHOICE OF | ANY (PAYMENT'S | LIMITED TO | ANY PAYMENT'S| | DOCTORS/ | CHOICE) | DOCTORS/HO | CHOICE) | | HOSPITALS | | SPITALS IN | | | | | NETWORK; | | | | | SPECIALISTS | | | | | ONLY AS | | | | | REFERRED | | | | | BY PRIMARY | | | | | IN-NETWORK | | | | | PHYSICIAN | | |--------------|-----------------|---------------|---------------| | DEDUCTIBLE | $100 PER | NONE (PAY | $500 PER | | | PERSON; | ONLY $15 | PERSON; | | | $300 FOR | PER | $1500 FOR | | | FAMILY | OFFICE | FAMILY | | | OF 3 OR | VISIT) | OF 3 OR | | | MORE | | MORE | |--------------|-----------------|---------------|---------------| | COPAYMENT | AFTER | NON (PAY | AFTER | | | DEDUCTIBLE | ONLY $15 | DEDUCTIBLE | | | IS SATISFIED: | PER | IS SATISFIED: | | | 15% UP TO | OFFICE | 30% | | | CO-PAY | VISIT) | | | | MAXIMUM | | | ----------------------------------------------------------------
---------------------------------------------------------------- | PRESCRIPTION | $4.00 FOR | $5.00 FOR | 20% OF | | DRUG CO- | GENERIC | GENERIC | THE PRICE | | PAYMENT | DRUGS; | DRUGS; | OF | | | $6.00 FOR | $5.00 PLUS | GENERIC | | | BRAND-NAME | DIFFERENCE | DRUGS; | | | DRUGS | BETWEEN | FOR | | | | COST OF | BRAND-NAME | | | | GENERIC | DRUGS, | | | | AND | 20% OF | | | | BRAND-NAME | THE PRICE | | | | FOR | OF THE | | | | BRAND-NAME | BRAND-NAME | | | | DRUGS | DRUG | | | | | PLUS | | | | | DIFFERENCE | | | | | BETWEEN | | | | | PRICE OF | | | | | BRAND-NAME | | | | | AND | | | | | GENERIC | |--------------|-----------------|---------------|---------------| | COPAYMENT | $1,000 PER | NO LIMIT | $3,500 PER | | | PERSON; | ON OUT-OF- | PERSON; | | MAXIMUM | $1,500 PER | POCKET | $10,500 FOR | | | FAMILY | EXPOSURE | FAMILY | | | | | OF 3 OR | | | | | MORE | |--------------|-----------------|---------------|---------------| | LIFETIME | UNLIMITED | $1,000,000 | $1,000,000 | ----------------------------------------------------------------
B. THE ADMINISTRATIVE PROCEEDINGS
In the administrative proceedings before both the ALJ and the NLRB, Loral and Aircraft argued that they were entitled to unilaterally change health care providers by the language in their implemented 1991 final offers reserving to them "the right to amend or modify" any part of the Comprehensive Medical Plan. Both the ALJ and the Board found no merit in that argument and determined that by unilaterally changing health care plans, Loral and Aircraft violated Section 8(a)(5) of the Act.
Therefore, the Board concluded that Loral and Aircraft were obligated to bargain with the Union prior to changing the health care plans. Having implemented the Aetna Managed Choices Plan without bargaining with the Union over that plan change, the companies were found to be guilty of violating Section 8(a)(5). Therefore, the Board ordered the companies to "rescind the Aetna Managed Choices health insurance plan made effective May 1, 1993, and reinstate the Comprehensive Medical Plan as to bargaining unit employees and make such employees whole for any losses they may have suffered as a result of the plan change."
Loral and Aircraft now ask this Court to review and overturn the Board's decision.
A. STANDARD OF REVIEW
The standard of review in determining whether an employer's post-impasse change in terms or conditions of employment is "reasonably comprehended" within its final pre-impasse offer is a mixed question of fact and law. NLRB v. Plainville Ready Mix Concrete, 44 F.3d 1320, 1326 (6th Cir.), cert. denied, 516 U.S. 974, 116 S.Ct. 474, 133 L.Ed.2d 403 (1995). The Board's factual findings must be upheld if supported by substantial evidence on the record as a whole. Id., citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The Board's conclusions of law must be affirmed if they are based upon a reasonable defensible construction of the Act. Plainville Ready Mix, supra, citing Ford Motor Co. v. NLRB, 441 U.S. 488, 489, 99 S.Ct. 1842, 60 L.Ed.2d 420 (1979). Finally, as the Court observed in Plainville Ready Mix, "the facts and complexities of the bargaining process are `particularly amenable to the expertise of the Board as factfinder,' and `few issues are less suited to appellate judicial appraisal than evaluation of bargaining processes or
With respect to the substantial evidence standard, the Universal Camera Court explained that "substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 340 U.S. at 477, 71 S.Ct. 456 (internal quotation marks omitted), quoted in American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 522, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981) ("ATMI"). The reviewing court must consider "the record in its entirety . . ., including the body of evidence opposed to the Board's view." Id. at 487-88, 101 S.Ct. 2478. But, "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." ATMI, 452 U.S. at 523, 101 S.Ct. 2478 (internal quotation marks omitted).
More recently, in Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998), the court equated the substantial evidence standard with "whether on this record it would have been possible for a reasonable jury to reach the [agency's] conclusion." The "substantial evidence" test "gives the agency the benefit of the doubt, since it requires not the degree of evidence which satisfies the court that the requisite fact exists, but merely the degree that could satisfy a reasonable factfinder." Id., 118 S.Ct. at 828. The agency's findings, thus, will be set aside only "when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both." Universal Camera, 340 U.S. at 490, 71 S.Ct. 456. In other words, it is only when a court "cannot conscientiously find that the evidence supporting [the Board's] decision is substantial, when viewed in the light the record in its entirety furnishes, including the body of evidence opposed to the Board's view." Id. at 488, 71 S.Ct. 456.
B. THE UNILATERAL CHANGES IN MEDICAL COVERAGE WERE NOT "REASONABLY COMPREHENDED" WITHIN LORAL'S AND AIRCRAFT'S FINAL PRE-IMPASSE OFFERS
The controlling law in this Circuit on the issue of post-impasse changes in terms or conditions of employment is NLRB v. Plainville Ready Mix Concrete Company, 44 F.3d 1320 (6th Cir.), cert. denied, 516 U.S. 974, 116 S.Ct. 474 (1995).
In Plainville Ready Mix, the NLRB found that the company violated section 8(a)(5) of the NLRA, by implementing only portions of the wage and health plans presented in the company's final pre-impasse offer. Specifically, although the company retained the pre-impasse proposed fixed hourly rate, it did not implement three $.25 per hour wage increases, two incentive pay plans, an offer to pay for six holidays or improvements in the company's health plan which were also contained in the last pre-impasse proposal. The Board, therefore, ordered the company to rescind its unlawful implementations, and to reinstate both the wage plan that existed prior to bargaining impasse (which included the $9.50 per hour fixed wage rate plus incentive and gain sharing) and the health plan as it existed prior to impasse.
The Board subsequently petitioned the Sixth Circuit for enforcement of its Order and the Sixth Circuit granted that petition. In so doing, the Court took great pains to set out in detail the applicable law.
First, the Court examined the applicable statutory provisions and the policy underlying those provisions:
44 F.3d at 1325-26.
The Court then explained the "reasonably comprehended" exception to the mandatory collective bargaining requirement:
44 F.3d at 1326 (emphasis added).
Plainville Ready Mix makes clear that unilateral implementation of changes which are substantially different from what the employer proposed in its last pre-impasse proposal constitutes a violation of Section 8(a)(5).
Turning then to the instant action, there is substantial evidence in the record supporting the Board's factual finding that the
While the Board acknowledged, as does this Court, that in their last pre-impasse proposal, Aircraft and Loral reserved to their discretion the right to "amend" or "modify" the Comprehensive Medical Plan, more than substantial evidence in the record supports the Board's conclusion that the Aetna Managed Choices Plan constituted a replacement or substitution plan,
First of all, Edward Searle, Aircraft's Human Resources Director testified before the ALJ that Managed Choices is an entirely new plan. [See J.A. p. 35.] More importantly, an examination of the plan descriptions and comparisons which were part of the record in the administrative proceedings [see J.A. pp. 190-192; 199-245; 247-297; 419-436] demonstrates that Managed Choices is substantially different from the Comprehensive Plan in a number of important elements. First, for Aircraft employees, Managed Choices:
For both Aircraft and Loral employees, in order to retain the unfettered right to go to any doctor, the new Plan
Finally, however, the change with the most substantial impact for employees of both companies, regardless of whether they chose "in network" or "out-of-network" health care, is that the personal exposure for out-of-pocket costs is dramatically increased in the Managed Choices plan:
It was precisely because of similar substantial differences between the pre-impasse health care proposal and the proposal implemented by the employer in Plainville Ready Mix that the Sixth Circuit found a violation of section 8(a)(5). In Plainville, the employer's pre-impasse proposal called for an increase in health care insurance deductibles, employee co-payments, and premiums and also called for adding a number of new benefits, including prescription drug coverage, vision care and an emergency care plan. Post-impasse, the employer fragmented its pre-impasse proposal and implemented the increases in deductibles, employee co-payments and premiums, but did not implement any of the beneficial elements of the proposal. 44 F.3d at 1334. Because the unilaterally-implemented fragmented changes in the health care plan were substantially different from the employer's last pre-impasse proposal, the court determined that the employer violated Section 8(a)(5).
This case also presents facts substantially similar to Grondorf, Field, Black & Co. v. NLRB, 107 F.3d 882 (D.C.Cir.1997). In that case, during negotiations the employers did not propose substituting new benefit plans for the plans set forth in their final contract offer. The only proposal made by the employers was a proposal to limit the companies' contributions to the existing benefit plans. The court determined that having "failed to afford the union a genuine opportunity to bargain over the[ ] proposal to switch benefit plans,
107 F.3d at 886 (emphasis added).
The foregoing facts and authorities demonstrate that the Board did not err in finding that the unilaterally implemented Managed Choices health plan was not "reasonably comprehended" within Loral's and Aircraft's pre-impasse proposal. This finding is amply supported by substantial evidence in the record. Therefore, the Board correctly determined that the companies violated section 8(a)(5) by not affording the union the opportunity to bargain with them concerning this new plan.
Loral argues that it did bargain with the union to impasse on the change to the Managed Choices plan and in support of this contention, points to the July 1992 Memorandum of Agreement in which the Loral and the Union agreed to meet for a period of 15 days only for "clarification purposes only" concerning eleven listed subjects, with the understanding that "[i]f clarification is reached between the Company and the Union with regard to the eleven items, the implemented contract shall be supplemented to reflect such clarification and the Union's bargaining committee shall unanimously recommend ratification of such modified agreement to the members of Local 856 of the Company." [See J.A. p. 173.]
Admittedly, the list of items to be covered in these discussions included
Id. Again, nothing in Myer's testimony supports Loral's contention that the company and the Union bargained to impasse on the Managed Choices Plan.
The companies further argue that the fact they bargained on the Managed Choices Plan is evident from the fact that, after they announced their intent to implement the new plan on May 1, 1993 but before that date, they entertained the Union's request that they consider adding dental coverage to the Plan and, with respect
[J.A. p. 6.]
The ALJ's determination is supported by substantial evidence in the record. As indicated above, the ALJ credited the testimony of a number of Union witnesses who testified that both Loral's and Aircraft's Human Resources Directors, Edward Searle and Gregory Myer, told them in January 1993 that the decision to change from Comprehensive Medical to Managed Choices was effectively a "done deal" and not open to negotiation. Although the companies argue that the ALJ ignored their witnesses' testimony that they did not tell Union bargaining committee members that the matter was not negotiable, which witnesses' testimony is to be credited is a matter left to the finder of fact. The mere possibility of drawing two inconsistent conclusions from the evidence is not tantamount to a determination that the ALJ's finding is not supported by substantial evidence. American Textile Mfrs. Inst. v. Donovan, supra, 452 U.S. at 523, 101 S.Ct. 2478. As indicated above, the substantial evidence test "requires not the degree of evidence which satisfies the court that the requisite fact exists, but merely the degree that could satisfy a reasonable fact finder." Allentown Mack Sales & Serv., Inc. v. NLRB, supra, 118 S.Ct. at 828.
Further, nothing in the record even remotely suggests that after January 29, 1993 either company ever considered altering its stance with regard to implementing the change to Managed Choices. The best that can be said of the February-March 1993 dental coverage discussions was that they reflect an attempt by Aircraft and Loral to make acceptance of the new Managed Choices plan more palatable to the rank and file.
Therefore, the Court finds no error in the ALJ's determination that discussions with the Union leading to an agreement to amend coverage under Managed Choices
Loral and Aircraft also argue that the Court should overturn the Board's decision because it relied upon the ALJ's findings of facts, and the ALJ failed to address in his decision the evidence the companies presented which they contend contradict his findings. Specifically, they point to the ALJ's failure to acknowledge that Gregory Myer denied telling the Union representatives that implementation of Managed Choices was not negotiable and, instead, credited the Union witnesses' testimony that he told them the matter was not open to negotiation. The companies further argue that the ALJ blanketly credited the Union witnesses' testimony, failing to mention that one of the witnesses, Gregory Megois, was the Union secretary, and as such, was responsible for taking notes at Union meetings, However, Megois could not produce in the administrative proceedings before the ALJ any notes from any of the meetings with either Aircraft or Loral concerning implementation of the Managed Choices plan. According to the companies, this indicates that Megois lacks credibility and the ALJ, therefore,
However, as the First Circuit stated in its recent decision in NLRB v. Beverly Enterprises-Massachusetts, 174 F.3d 13 (1st Cir.1999), the fact that the ALJ's opinion failed to discuss all of the testimony and evidence presented to him does not mean that the ALJ "failed to consider" the evidence. Id. at 26. The Beverly court explained:
Id. (Citations omitted). See also, NLRB v. Katz's Delicatessen of Houston St., Inc., 80 F.3d 755, 765 (2d Cir.1996) (An ALJ may resolve credibility disputes implicitly rather than explicitly where his "treatment of the evidence is supported by the record as a whole.")
Although the ALJ's decision in this case may not be a model of clarity and detail, as was the case in Beverly and in Katz's Delicatessen, the ALJ's treatment of the evidence in this case is more than amply supported by the record as a whole.
The companies further argue that the Board's decision should be overruled because the ALJ "lumped together" his findings concerning Aircraft and Loral, and in so doing, misstated some facts. The ALJ's decision does, in fact, contain some misstatements of fact. For example, the ALJ failed to note the specific dates in December 1992 and January 1993 on which the respective companies' representatives met with the Union to announce their intention to implement Managed Choices. He also failed to note the differences between Aircraft's and Loral's versions of the Comprehensive Medical Plan, treating the two companies' versions of that Plan as one and the same. However, the Court does not find these misstatements of fact to be material inasmuch as they do not affect the Board's conclusion that the new Managed Choices Plan was substantially different from the replaced Comprehensive Medical Plan, and as indicated above, there is substantial evidence in the record to support that conclusion.
For all of the reasons stated above, Loral's and Aircraft's petition to review and overrule the NLRB's Decision and Order is DENIED and the Board's cross-petition for enforcement of that Order is GRANTED.
The medical plan that was implemented in 1991 expressly permitted the employer to make future unilateral modifications in any part of the plan—changing "employee contributions," e.g.—as long as the modifications applied to union and non-union employees alike. The administrative law judge would have held it impermissible, under the National Labor Relations Act, to reserve the right to change the plan unilaterally. The National Labor Relations Board declined to reach that issue; acknowledging the reservation of a unilateral right to amend or modify the 1991 plan on a non-discriminatory basis, the Board concluded that the unilaterally-implemented 1993 plan, although applicable to union and non-union employees alike, was "not merely an amendment or modification of an existing plan, but rather constituted a replacement of the plan with an entirely new delivery system for health insurance." As a replacement rather than an amendment, the Board held, the 1993 plan did not constitute a change "reasonably comprehended" within the unilateral change provision of the 1991 plan.
My colleagues on the panel agree with the Board. I do not. The 1993 plan, as I read it, did not replace the 1991 scheme with "an entirely new delivery system for health insurance." And I believe that the 1993 changes—some of which worked to the employees' advantage, as the union presumably recognized when, in subsequent bargaining, it accepted the 1993 plan—were reasonably comprehended within the 1991 provision that permitted non-discriminatory changes in "any part" of the plan.
I can find no support in the record for the proposition that the 1993 plan introduced "an entirely new delivery system for health insurance." The benefits provided under the 1993 version of the plan were funded by the employer and administered by Aetna—and so were the benefits provided under the 1991 version. There was no change in health care providers; employees were left free to choose among doctors and hospitals, just as they had been in 1991, the only change being that employees were given financial incentives to choose doctors and hospitals within the Aetna "network" and disincentives to go out-of-network.
It is true that the name of the plan was changed in 1993. I take it, however, that the name is as much a part of the plan as any other part. Surely a change in name is "reasonably comprehended" within a provision expressly reserving the right to amend or modify "any part" of the plan.
Not to have changed the name of the plan might have suggested that the 1993 version was less advantageous to employees than it really was. This is so because the full name given the Loral plan in 1991—"Loral Comprehensive Medical Plan (80/20)"—referred to a co-payment feature under which the employer paid only 80 percent of certain health costs, and the employee was required to pay the remaining 20 percent. For employees choosing doctors and hospitals within the Aetna network, this co-payment feature was essentially eliminated in 1993.
Before the 1993 changes, the record shows, an unmarried Loral employee not only had to pay the first $200 in annual health costs out of his own pocket, he had to pay 20 percent of all additional costs until the additional costs reached $7,500. After the 1993 changes, by contrast, an employee who chose doctors and hospitals outside the Aetna network would face a $500 deductible and a 30 percent co-payment obligation. If the employee chose doctors and hospitals within the Aetna network, however, he got a better deal than that provided under the old "80/20" plan;
I confess that I should find myself hard pressed to explain to an employee who needed, say, $7,700 worth of health care and who was content to use network doctors and hospitals why the virtual elimination of the deductible and co-payment features of the "80/20" plan was not "reasonably comprehended" within the plan's non-discriminatory unilateral change provision. I am not sure that such an employee would be particularly sympathetic to an argument that he would be better off paying $1,700 ($200 plus 20 percent of $7,500) out of his own pocket rather than paying only $15 per office visit, notwithstanding the theoretical possibility that at some point during his lifetime the employer's obligation to continue paying his health costs might bump against the $1 million-per-employee cap introduced in 1993.
From the employee's standpoint, obviously, the 1993 changes included both pluses and minuses. I have referred to some of the minuses here, and others are mentioned in the majority opinion. But the fact that not all of the changes were beneficial to the employee hardly means that the pluses and minuses added up to "an entirely new delivery system" not comprehended within a unilateral change provision permitting non-discriminatory modifications in "any part" of the plan, "including employee contributions ...."
Nothing in NLRB v. Plainville Ready Mix Concrete Co., 44 F.3d 1320 (6th Cir.), cert. denied, 516 U.S. 974, 116 S.Ct. 474, 133 L.Ed.2d 403 (1995), suggests otherwise. That case did not involve a unilateral change provision; this case does.
Finally, nothing in the testimony of Human Resources Director E.L. Searle suggests to me that Mr. Searle viewed the 1993 changes as falling outside the unilateral change provision of the 1991 plan. Under cover of a letter dated January 29, 1993, Searle sent the employees of Aircraft Braking Systems Corp. a brochure describing ABSC's new benefit program. The letter begins with this sentence: "The attached brochure provides you with an overview of the benefit changes that will become effective on May 1, 1993." Cross-examined about his letter, Mr. Searle testified as follows:
As far as I can see, this testimony neither adds to nor detracts from the documentary evidence. And what the documentary evidence shows, in my view, is a set of changes clearly comprehended within the unilateral change provision of the 1991 plan.
But if the rationale employed by the Board in this case was erroneous, as I believe it was, what of the rationale employed by the ALJ? Notwithstanding the
My colleagues on the panel having seen the case differently, I respectfully dissent.
1. At the request of Donald Hurr, Chairman of the Union's Bargaining Committee, a meeting was held between Donald Hurr and Greg T. Myer, Manager of Industrial Relations for the Company, at which time Mr. Hurr stated that certain issues must be clarified before the contract implemented by the Company can be ratified. As a result of that meeting, the parties agree as follows:
[J.A. pp. 173-74.]
At least to the extent that employees suffered losses as a result of company's unilateral implementation of the new plan from May 1, 1993 (the date of implementation of Managed Choices) through December 11, 1996, the effective date of the new CBA, at least the make-whole portion of enforcement Order is certainly not moot. As for the rescission and reinstatement provisions, the Order does not mandate such rescission and reinstatement; rather that portion of the order will take effect only if the Union so requests. Presumably, having entered into a new Agreement in which it has agreed to the Managed Choices Plan, the Union will not request rescission of that plan.
In any event, as the Board has pointed out, such matters are best reserved for determination in separate compliance proceedings. See, Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 901-902, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984) (approving Board's practice of modifying its orders in subsequent compliance proceedings); NLRB v. Deena Artware, Inc., 361 U.S. 398, 412, 80 S.Ct. 441, 4 L.Ed.2d 400 (1960); NLRB v. Katz's Delicatessen of Houston Street, Inc., supra, 80 F.3d at 770-771.