Duncan Foundry and Machine Works, Inc.

DUNCAN FOUNDRY AND MACHINE WORKS, INC. 529 Duncan Foundry and Machine Works, Inc. and Mrs. Melvin T. Bell and Boatmen's Bank of St. Louis, Party in Interest. Case 14-CA-5291 under the plan and any discriminatory withholding of benefit thereafter will be subject to remedy through ordinary complaint procedures. November 10, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On June 4, 1970, Trial Examiner Josephine H. Klein issued her Decision in the above-entitled proceeding, finding that the Respondents had not engaged in certain unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, but with jurisdiction retained in the Board to reopen the proceedings and reconsider the complaint either upon the Board's own motion or upon motion made by any party based on facts occurring hereafter. Thereafter the Respondent and the General Counsel each filed exceptions to the Trial Examiner's Decision accompanied by supporting briefs, and the Charging Parry filed exceptions to the Trial Examiner's Deci- sion and a statement in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications. The complaint alleged, inter aria, that the Respon- dent discriminatorily refused, and continues to refuse, payment of M.T. Bell's share in its profit-sharing plan to his widow because of his union activity. The Trial Examiner recommended that the complaint herein be dismissed but that jurisdiction be retained because "relevant questions remain unresolved." We agree with the Trial Examiner that the issue of discrimina- tion has been prematurely raised as the amount due under the profit-sharing plan is at present undeter- minable. However, when litigation of the proceedings in the related cases referred to in the Trial Examiner's Decision has terminated, either by compliance or by court order, the Respondent will have possession of all facts, including those relevant to the status of strikers both before and after the eligibility date, necessary to determine the amounts of all shares 1 Respondent's unopposed motion to correct record is hereby granted 2 National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519, ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Trial Examiner: Upon a charge filed against Duncan Foundry and Machine Works, Inc., Respondent, by Mrs. Melvin T. (Bertha) Bell, on Septem- ber 18, 1969, a complaint was issued by the Regional Director on February 5, 1970. Pursuant to due notice, a hearing was conducted on the complaint in St. Louis, Missouri, on March 9, 1970. All parties, including Boatmen's Bank of St. Louis, Party in Interest, were represented by counsel and were given opportunity to present evidence and to examine and cross-examine witnesses. The parties waived oral argument and thereafter bnefs were filed by the General Counsel, the Charging Party, and Respondent. Upon the entire record,' observation of the witnesses, and consideration of the bnefs, the Trial Examiner makes the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS It is admitted and has previously been determined by the Board that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act2 and that United Steelworkers of America, AFL-CIO, the Union here involved, is a labor organization within the meaning of Section 2(5) of the Act. Duncan Foundry & Machine Works, Inc., 176 NLRB No. 31; idem, TXD-83-70 [185 NLRB No. 2]. II. THE ALLEGED UNFAIR LABOR PRACTICE A. The Issues Mrs. Bell, the Charging Party, is the widow of Reverend Melvin T. Bell, a former employee of Respondent. In March 1969, shortly after Reverend Bell's death, Mrs. Bell requested payment of her deceased husband's share of the Company's profit-sharing fund. She was informed that no payment could be made at that time because of inability to determine amounts payable. A second request by Mrs. Bell in April evoked a similar reply. In September 1969 Mrs. Bell's attorney, who also represents the Union in other proceedings involving Respondent, requested payment on 29 U S C. Sec 151, et seq^) 186 NLRB No. 62 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her behalf and received the same response. To date no payment has been forthcoming. The complaint alleges that Respondent has withheld payment to Mrs. Bell because of her husband's activities on behalf of the Union and because Respondent's employees engaged in an economic strike. Respondent asserts that all payments from the fund have been suspended on a nondiscriminatory basis because it is presently impossible to determine the amount payable to any claimant. Respondent also maintains that the complaint is barred under Section 10(b) and that Respondent is powerless to make payment because the profit-sharing fund is controlled by an administrative committee separate from Respondent.3 In the extensive litigation in the representation proceed- ing and the ensuing refusal-to-bargain unfair labor practice proceeding, Respondent has maintained that 1865 strikers were ineligible to vote in the election because they were not employees at the eligibility date, i.e., during the payroll period ended October 21, 1967. The major claimed bases of noneligibility were, generally stated, that some employees had quit Respondent's employ; some had been permanent- ly replaced or their jobs had been eliminated; and some had been guilty of strike violence which disqualified them for employment. All but six of Respondent's challenges were overruled by the Regional Director, whose rulings were affirmed by the Board. B. The Facts 1. Labor relations and litigation Employees Association of Duncan Foundry & Machine Works, Inc., an independent union, was the certified representative of Respondent's employees from 1942 until July 19, 1966, when, after winning an election over the independent union, the Steelworkers was certified. Case 14-RC-5356. On January 29, 1967, the Steelworkers Union called an economic strike in support of its contract demands. In September 1967, while the Steelworkers' strike was still in progress, Respondent and the independent union filed petitions for an election. Cases 14-RC-5787 and 14-RM-327, consolidated. An election was held on January 26 through 28, 1968. The Steelworkers' Union won the election and thereupon, as of January 31, ended the strike. After extended litigation,4 the Union was certified, for the second time, on December 4, 1968. However, Respondent refused to recognize and bargain with the Union and an unfair labor practice proceeding ensued. Case 14-CA-5216 [185 NLRB No. 21. On February 10, 1970, Trial Examiner George A. Downing issued a Decision holding Respondent guilty of refusing to bargain, in violation of Section 8(a)(5) of the Act. TXD-83-70 [185 NLRB No. 21. That case is now pending before the Board on Respondent's exceptions to the Trial Examiner's Decision. On May 29, 1969, the Board found Respondent guilty of unfair labor practices in violation of Section 8(a)(1) and (3) of the Act in discriminatorily denying seniority rights and vacation pay to strikers in 1967 and 1968. 176 NLRB No. 31 (Case 14-CA-4608). In Case 14-CA-5216, Trial Examiner Downing found Respondent in violation of Section 8(a)(3) since May 1, 1969, by its admitted conduct in pursuing the vacation pay practice found violative in the Board's prior decision. 3 Respondent's answer to the complaint stated that "The Employer is precluded from making payment from said Plan, inasmuch as it is prevented from doing so under applicable state and federal statutes." No support was offered for this contention and it is not pursued in Respondent's brief. 4 The chronology in the representation proceeding is summarized in the Trial Examiner's Decision in Case 14-CA-5216 [185 NLRB No. 21. 5 As found in 176 NLRB No. 31, of Respondent's approximately 350 employees, 244 went out on strike. Around 44 returned to work before the end of the strike and 40 were reinstated thereafter. 6 The plan was actually established by Respondent's parent corporation, 2. The profit-sharing plan In 1960 Respondent6 established a profit-sharing plan to avail itself of the advantages of sections 401-404 of the internal revenue code . Although Boatmen's National Bank of St. Louis is named as trustee of the fund, it serves only as a custodian, with all substantive power in an administrative committee,7 which consists of Respondent's president and its personnel manager.8 Generally stated, all employees9 with at least 1 full year of service participate in the plan. As of November 30 of each year, the Company, in its sole discretion, decides how much, if any, money it will contribute to the profit-sharing fund for the fiscal year just ended. As of November 30 each year the assets of the fund are allocated to the accounts of the participating employees. Employees' proportionate shares are determined on the basis of their years of service and their compensation. Employees with 6 or more years of coverage in the fund who quit or are terminated and the beneficiaries or estates of such employees who die during the year are paid a portion of the amounts cumulatively allocated to them as of the previous November 30. Employees with 30 years' service or who are 60 years old receive 100 percent. Employees terminated with less than 6 years' participation do not receive any payment from the fund. The portion paid to other employees varies from 10 percent for those with 6 years' participation to 100 percent for those with 15 full years or more of participation. When an employee dies or is terminated, he or his beneficiary is paid the vested percentage of the amount allocated to his account as of the last preceeding November 30; the rest of his allocated share is deemed forfeited and is reallocated among the other participants on the next November 30. Thus an employee's share as computed on each November 30th includes a pro rata part of any amounts forfeited by terminated employees during the preceding 12 months. In addition, each employee's account reflects a pro rata share Illinois Stoker Company. This fact is of no importance to the present proceeding. I "The Administrative Committee shall have complete control of the administration of the profit-sharing plan herein embodied, with all powers necessary to enable it properly to carry out its duties in that respect. . . . It shall decide all questions relating to the eligibility of employees to participate in the benefits of this Trust." 8 "Such Committee shall consist of ... the . . . President or Chief Executive Officer of the Company . . . [and] an Employee-Participant appointed by the Company." 9 Including officers and executive personnel. DUNCAN FOUNDRY AND MACHINE WORKS, INC. 531 of appreciation or depreciation in the value of the fund's assets and expenses of administration. Claims for terminated employees' shares were paid according to the terms of the plan until November 30, 1967. Included in such payments was one of $142.17 (representing 10 percent of his account as of November 30, 1966) on June 22, 1967, to employee Eddie W. Arnold, who, while on strike, signed a quit slip . In the representation case Arnold was later found to have been an employee entitled to vote in the election in January 1968. So far as appears, no other employees who received payment from the fund during the strike attempted to vote in the election in January 1968. On or about November 30, 1967, Respondent decided not to make any contribution to the profit-sharing plan for the fiscal year then ending . In addition, Respondent's president, Sam W. Duncan, and its personnel manager, E. J. Green, decided that no further payments would be made from the fund to employee-participants. According to Respondent, this decision was based on uncertainty as to the amounts allocable , the uncertainty arising out of the dispute between the parties as to the employee status of the strikers, an issue first sought to be raised by Respondent in the preelection hearing in October 1967.10 No general announcement was made to the employee- participants of the decision to suspend payment of all claims. However, Green's testimony was undisputed that each person making a claim since November 30, 1967, has been so advised. Since that date around 50 employees have been terminated for various reasons. Included among such terminated employees are several unit employees who did not join the strike and some nonunit employees . None of them has been paid anything from the profit-sharing fund. 3. Melvin T. Bell Reverend Melvin T. Bell commenced work for Respon- dent in 1941. As of November 30, 1966, his allocated share of the profit-sharing fund was $1,504.33. He went out on strike in February 1967. In the election in January 1968, Respondent, challenging Bell's ballot, maintained that his employment, along with that of other strikers, had been terminated in September 1967. This challenge was rejected by the Regional Director and the Board. After the termination of the strike, Bell applied for reinstatement.11 He was not reinstated. He died on February 14, 1969. On or about March 5, 1969, Mrs. Bell, beneficiary of the employee's interest in the profit-sharing account, requested payment. E. J. Green, Respondent's personnel manager, informed her that no employee-participant claims were being paid from the fund at that time because it was impossible to determine the amounts due to anybody. According to Mrs. Bell, Green said the fund was tied up 10 This fact appears in the Regional Director's Decision and Direction of Election issued on October 30, 1967. Counsel for the Charging Party is thus not accurate in contending, as he does in his brief, that "on November 30, 1967... the status of strikers had not even been put in question!" II In Case 14-CA-4608 (176 NLRB No. 31) the Board found that "On January 31, 1968, ... the Steelworkers on behalf of the strikers offered unconditionally their return to work." On February 29, 1968, Bell individually advised Respondent, in writing, of his desire and availability for work. because of Board proceedings. Green testified that he assured her that "there was money in the profit sharing plan ... and the payment would be made to her as soon as we were able to calculate it." On or about March 19, Mrs. Bell again requested payment and received the same reply. On September 9, counsel for Mrs. Bell,12 addressed a demand to the Bank, as trustee of the fund. The Bank replied that it had forwarded counsel's letter to the administrative committee for advice. On September 18, with no payment forthcoming, counsel filed the present charge on Mrs. Bell's behalf. D. Discussion 1. Section 10(b) The complaint alleges that "Since on or about a date unknown to the Regional Director in March 1969, and continuing to date Respondent, after appropriate request, has failed and refused to cause payment to be made." The evidence establishes that it was on March 5 that Mrs. Bell first requested payment of Green. Thus Reverend Bell died and Mrs. Bell made her first demand for payment more than 6 months before September 18, when the charge was filed. Respondent affirmatively pleaded Section 10(b) as a defense to the complaint. In its brief, Respondent argues that the decisive date is November 30, 1967, when the decision was made not to pay any claims for the indefinite future. The Examiner expresses no opinion as to whether the decision made in November 1967, whether generally announced or not, could have constituted an unfair labor practice. Whatever the answer to that question may be, subsequent refusal to pay a particular claim when it became due is an independent operative and actionable event. Swift Service Stores, Inc., 169 NLRB No. 33. The plan provides that distribution thereunder shall be made "on or before ninety (90) days after the Employee- Participant shall become entitled to the benefit" and payment to a deceased employee's beneficiary within 6 months of proof of death "shall be conclusively deemed to be full compliance." Thus payment of Bell's share was not legally "due" until May 15, 1969, 90 days after his death, at the earliest. Accordingly, a charge alleging an unlawful refusal to pay was not time barred in September 1969.13 2. Respondent's responsibility In its brief, Respondent says: Though the Complaint in the subject case runs against the Company, the record evidence establishes that it was not the Company which made the decision affecting Mrs. Bell's claim, rather it was the Committee 12 Mrs. Bell's counsel represents the Union in other proceedings involving Respondent. 13 Because of this holding, it is unnecessary to pass on the contention, advanced by the General Counsel at the hearing and by the Charging Party in her brief, that Respondent's withholding of payment is a "continuing violation." In addition, the present Decision herein is not to be read as implying that any charge related to a claim against the fund would be barred 6 months after distribution became due under the terms of the plan. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that decided not to pay out claims after November 30, 1967. As previously noted, the administrative committee, which has complete control of the administration of the fund, is composed of the president and personnel manager of the Company. The evidence establishes, as would be expected, that Personnel Manager Green has never disagreed with the decisions of President Duncan. The plan expressly provides that the committee need not even go through the formality of holding meetings. Duncan alone determines the company contributions which constitute the fund' s assets. Respondent's argument that the Company and the administrative committee are separate, independent entities and that "in no way does the Company exercise its discretion over the operation of the Plan," is rejected as frivolous. 3. Alleged misconduct The complaint alleges that Respondent has "failed and refused" to have payment made because of Reverend Bell's union activity, because employees engaged in an economic strike, "and because of Respondent's insistence that payment from the Plan fund will not be affected until judicial determination of the certification of the Union" in the representation case. There is no evidence that Reverend Bell had been particularly active on behalf of the Union. Nor is there any basis for finding that Respondent was motivated by any special animus against Bell as distinguished from all the other strikers. However, the record in this case, including decisions in other cases, of which the Examiner takes official notice, clearly establishes Respondent's strong antiunion animus and its determination to travel every available avenue to rid itself of the Union. Basic to Respondent's strategy is its contention that Bell's employment, along with that of the other strikers, was terminated in September 1967, before the eligibility date for voting in the election. That contention has been rejected by the Board both in the representation proceeding and in Case 14-CA-4608 (176 NLRB No. 31). The representation case is not ripe for judicial review, since the refusal-to-bargain case (14-CA-5216) is still pending before the Board. And Case 14-CA-4608 has not as yet been submitted to a court for enforcement or review. As the General Counsel concedes, the amount due Mrs. Bell depends, in part at least, on the employee status of the strikers. At the hearing, the General Counsel urged that Respondent be required forthwith to pay Mrs. Bell the amount vested in Mr. Bell as of November 30, 1966 (10 percent of his allocated account), with further payment to 14 Personnel Manager Green testified in part as follows : "Q. [By General Counsel J Did you and Mr. Duncan decide when this was going to happen that you could make the proper calculations, have you decided that that's not going to happen until you get a final decision in the first and second cases before the NLRB, is that what you decided? A. We will decide that as soon as we know who is a participant and who isn't a participant. I told this same thing to everyone on this list that have talked to me about it . We want to pay as soon as we can but we can't pay until we can calculate it and we can't calculate it until we can tell them who has left in the period so they can make the calculations . Q. And you have no idea now whether it is going to be ten years from now when you can make those calculations? A. No, sir.. . .TRIAL EXAMINER: . . . What is it going to be made when final calculations could be made. Respon- dent's counsel conceded "that Bell is entitled to 10 percent of $1,500 . . . He's entitled to it now." But counsel contended further that Respondent could not be compelled now to make "part payment" since the amount "vested" on November 30, 1966, would be subject to fluctuation if it were later found that Bell had retained his employee status. According to Respondent's counsel, it was at least theoretically possible that the $150 "vested" as of November 30, 1966, could decline with time through depreciation in the value of the fund's assets and expenses of administration. In his brief, the General Counsel abandons a request for any immediate payment and requests "a remedial order requiring that payment of benefits be made individually with the amount to be fixed in the compliance stage of proceeding." In his brief, the Charging Party's counsel "suggests that the entire amount of Rev. Bell's fund has vested since he remained an employee until his demise." However, Bell's employment status was not litigated in the present proceeding. To the extent that it has been or is being litigated in other proceedings, no such finding has become "final" by judicial enforcement. Additionally, a finding as to Bell's employment status would not in itself necessarily permit calculation of his profit-sharing entitlement, since, if he remained an employee until his death, the amount payable would depend on facts subsequent to November 30, 1967, including forfeitures. And the amount made available by forfeitures will depend in major part on the employee status of other strikers. In short, it is clear that so long as there are unresolved issues concerning the employment status of Bell and other employees, the amount payable to Mrs. Bell, or any other claimant, cannot be determined. To some extent, these issues are now in the course of litigation in the other proceedings discussed herein. Another problem, however, suggests itself. As indicated by Trial Examiner Downing in his Decision, Case 14-CA-5216 will not result in a finding concerning the employment status of the nonreinstated strikers beyond October 21, 1967, the eligibility date for voting in the January 1968 election. Although Respondent's representa- tives were far from forthright at the hearing, they were at apparent pains not to promise payment upon final decision in the litigation now pending.14 It was at least intimated that, if it is finally decided that Bell and the 180 other nonreinstated strikers were employees eligible to vote in the election, Respondent may then seek to establish that their employment was terminated at a later date, but before Reverend Bell's death or the date as of which his share in the fund was to be computed.15 Respondent's course of depend on? THE WITNESS: Just as soon as we know who is a participant and who isn't a participant.... TRIAL EXAMINER:. . . what event are you waiting for before you send notice to the bank? THE WITNESS : I don't believe I am in a position to answer that. All we want to know legally is who is a participant and who isn't.... I'm not a lawyer and there may be a number of different things that could affect this, and once it is effective legally, we hope to make payments, and it is just a matter that we have to know who is and who isn't and for how long, and then we will make payments right away." 15 There would be two potential accountings (November 30, 1967, and November 30, 1968) between the eligibility date (October 21, 1967) and Bell's death (February 1969). DUNCAN FOUNDRY AND MACHINE WORKS , INC. 533 conduct to date indicates that it might well seize on any theory or maneuver that legal imagination can devise, as a pretext for avoiding or at least indefinitely postponing payment of the present claim. F. Conclusion The Trial Examiner has no doubt that Respondent's failure and refusal to pay Mrs. Bell's claim is motivated in large part by a desire to defeat the Union and to penalize the strikers. As such , it may be violative of Section 8(a)(1) and (3) of the Act even though, as asserted by Respondent, nonstrikers and nonunion members have also been innocent victims. See, e.g., Wilbraham Manufacturing Corp., 174 NLRB No. 41; Chevron Oil Co., 182 NLRB No. 64; Wood Manufacturing Co, 95 NLRB 633, 641; Somerset Classics, Inc., 90 NLRB 1676, 1678-79.16 All hough the Trial Examiner is satisfied that Respon- dent's conduct involved in this case is dictated in substantial part by unlawful considerations, the fact remains that the amount distributable to Mrs. Bell cannot now be determined and Respondent is now in other proceedings litigating at least some issues germane to the present situation. The Trial Examiner is of the opinion that, unless it is determined that Board and/ or court processes are being abused (Cf. N.L. R.B. v. Smith &IWesson , 424 F.2d 1072 (C.A. 1); N.L.R B. v. Athbro Precision Engineer- ing Corp, 423 F.2d 573 (C.A. 1)), Respondent cannot be said to have committed an unfair labor practice by deferring payment of Mrs. Bell's claim so long as relevant questions remain unresolved and Respondent is taking reasonable steps to have them resolved. The Trial Examiner is not holding that Respondent can indefinitely postpone the day of reckoning. A time may be reached when Respondent no longer can have any reasonable doubt as to the amount due to Mrs. Bell for her husband's share of the Company's profit-sharing plan. Respondent's conduct to date establishes the desirability of administrative action to assure that Respondent acts with appropriate dispatch to remove the existing impediment to payment of an employee benefit admittedly due. Appropriate action in the present case can best be determined in the light of developments in other pending proceedings . In this respect the case is not unlike situations in which Board action may depend on the results of arbitration proceedings. In such cases the Board has deferred action ')Dubo Manufacturing Corp., 142 NLRB 431) or retained jurisdiction (Local 485, IUE (Automotive Plating Corp.)„ '170 NLRB No. 121; Port Drum Co., 170 NLRB No. 51, modified 180 NLRB No. 90). Accordingly, the Trial Examiner will recommend that an order be issued dismissing the complaint but retaining jurisdiction in the Board to reopen the proceedings either on the Board's own motion or on motion of any of the parties. CONCLUSIONS OF LAW 1. Respondent, Duncan Foundry and Machine Works, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. The evidence fails to establish that Respondent has refused or failed to pay Mrs. Melvin T. Bell the share of Respondent's profit-sharing fund due her as the widow and beneficiary of deceased employee Melvin T. Bell in contravention of Section 8(a)(1) and (3) of the Act. 3. The record establishes that it is appropriate and advisable for the Board to retain jurisdiction to reconsider appropriate action in the light of subsequent events. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that the complaint herein be dismissed with jurisdiction retained in the Board to reopen the proceedings and reconsider the complaint either on the Board's own motion or upon motion made by any party based on facts occurring hereafter. i6 11 a violation were found , the affirmative remedy would undoubtedly be the same whether or not Respondent was found to have violated Sec 8(a)(3) as well as Section 8(a)(1) Coca-Cola Bottling Co, 97 NLRB 151, 152