476 F.2d 1079 (2nd Cir. 1973), 339, Connecticut Light & Power Co. v. N.L.R.B.

Docket Nº:339, 340, 72-1664, 72-1816.
Citation:476 F.2d 1079
Party Name:The CONNECTICUT LIGHT & POWER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Case Date:April 06, 1973
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 1079

476 F.2d 1079 (2nd Cir. 1973)

The CONNECTICUT LIGHT & POWER COMPANY, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 339, 340, 72-1664, 72-1816.

United States Court of Appeals, Second Circuit.

April 6, 1973

Argued Jan. 16, 1973.

Page 1080

Harold N. Mack, Boston, Mass. (Morgan, Brown, Kearns & Joy, Boston, Mass., on the brief), for petitioner.

Allison W. Brown, Jr., Atty., NLRB, Washington, D. C. (Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Steven C. Kahn, Atty., NLRB, Washington, D. C., on the brief), for respondent.

Milton A. Smith and Otto F. Wenzler, Washington, D. C., and Gerard C. Smetana and Lawrence M. Cohen, Chicago, Ill., for The Chamber of Commerce of the United States, amicus curiae.

Before FRIENDLY, Chief Judge, and OAKES and TIMBERS, Circuit Judges.

TIMBERS, Circuit Judge:

The Connecticut Light & Power Company (the Company) has petitioned to review and set aside an order of the National Labor Relations Board issued May 8, 1972, 196 N.L.R.B. No. 149 (1972), which essentially required that the Company bargain in good faith with the Union as to the selection of an insurance carrier for the Company's employee medical-surgical benefits plan. The Board has cross-petitioned for enforcement of its order. We agree with the Company that the selection of an insurance carrier under the circumstances presented here is not a mandatory subject for bargaining within Section 8(d) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(d) (1970). We therefore grant the petition to review and set aside the Board's order, and we deny the cross-petition to enforce the order.

I.

The Company is a Connecticut corporation. 1 It is a public utility engaged in the production, distribution and sale of electricity and gas. It is engaged in commerce within the meaning of the Act.

System Council U-24, International Brotherhood of Electrical Workers, AFL-CIO, and its Local Unions 420, 753, 1045, 1175, 1226, 1317 and 1817 (the Union), are labor organizations within the meaning of the Act. Together they serve as the exclusive representative for all the Company's employees within the relevant bargaining unit. For many years, the Company and the Union have had a collective bargaining relationship.

The Company has long provided its employees with a non-contributory, Company-paid medical-surgical insurance plan. Since 1967 the carrier of this insurance plan, which includes major medical coverage, has been the Aetna Life Insurance Company (Aetna). For several years prior to 1967, the Company had contracted with Blue Cross-Connecticut Medical Service (Blue Cross) for the basic medical-surgical insurance, and with the Hartford Accident and Indemnity Company for major medical insurance. 2

In 1969, the Union informed the Company of its dissatisfaction with Aetna's administration of the insurance plan. As a result, the Company secured various changes from Aetna. Nevertheless,

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during the 1971 collective bargaining negotiations, the Union again expressed its dissatisfaction with Aetna and sought to include in those negotiations the reinstatement of Blue Cross as the carrier for the employee insurance plan. The Company did bargain during the 1971 negotiations with respect to coverage, benefits and administration of the plan; but it steadfastly refused to bargain as to the selection of the carrier, maintaining that it had the right unilaterally to choose the carrier.

On May 14, 1971, the Union filed a charge with the...

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