Missouri Farmers Association, Inc.

MISSOURI FARMERS ASSOCIATION, INC. 495 Missouri Farmers Association , Inc., and Construction and General Laborers' Local 957. Case 14-CA-5858 December 9, 1971 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND KENNEDY On April 13, 1971, Trial Examiner Thomas F. Maher issued the attached Decision in this proceed- ing. Thereafter, Respondent and the General Counsel each filed exceptions and a supporting brief. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions only to the extent consistent herewith. 1. We agree with the Trial Examiner's finding that Respondent violated Section 8(a)(1) of the Act by maintaining since January 1, 1965, a voluntary, contributory disability and accidental death group insurance plan for its employees which made any employee who was "covered under any form of collective bargaining" ineligible for participation. 2. Despite the absence of proven antiunion moti- vation, the Trial Examiner 'found that Respondent violated Section 8(a)(3) of the Act by maintaining the unlawful eligibility standard because "the motive to discriminate is inherent in Respondent's action." We disagree. Respondent instituted the companywide disability and accidental death insurance plan on January 1, 1965. Several years later, Respondent recognized the Union as the collective-bargaining representative of certain persons employed at Respondent's Mexico, Missouri, facility and the parties thereafter com- menced negotiations for their first collective-bargain- ing agreement. On May 1, 1970, three separate but virtually identical collective-bargaining contracts covering three bargaining units at the facility were executed. The contracts, which did not require union mem- bership as a condition of continued 'employment, contained no provisions whereby Respondent's insur- ance plan was made available to bargaining unit members. However, on January 11, 1971, Respondent and the Union executed a supplemental agreement retroactive to May 1, 1970, which provided for payment to an injured employee of the difference between the amount received by him through work- men's compensation and 75 percent of his regular, average pay, for the period of disability not exceeding 120 days. This disability income supplement program for bargaining unit members was understood by the parties to be a substitute for the companywide insurance plan. The General Counsel alleged in the complaint that Respondent violated Section 8(a)(3) of the Act by making the insurance plan unavailable to bargaining unit members after May 1, 1970. We find no evidence in the record that Respondent engaged in such conduct prior to the adoption of the agreed-upon substitute program. The Trial Examiner's reliance on the statement made by Respondent's counsel at the hearing held on January 11, 1971, that bargaining unit members were excluded from the plan "because they took the union program," to support his conclusion that expulsions from the insurance policy occurred as a result of the execution of the May 1, 1970, contracts is misplaced, since counsel was obviously referring to the supplement adopted by the parties on January 11. We find, therefore, that General Counsel has not proven by a preponderance of the evidence that Respondent violated Section 8(a)(3) of ! the Act as alleged. Accordingly, we shall dismiss this allegation of the complaint. The Trial Examiner ordered Respondent to make the companywide insurance plan available to all bargaining unit members under the same terms and conditions as are presently applicable to all other employees. However, inasmuch as the parties agreed on a substitute plan for bargaining unit members, we find the Trial Examiner's proposed remedy unwar- ranted. Accordingly, we shall only order Respondent to cease and desist from maintaining the unlawful eligibility standard and to post the appropriate notice to employees. 3. We find merit in the General Counsel's excep- tions to the Trial Examiner's failure to order Respon- dent to delete from the group insurance plan and company booklets descriptive thereof the eligibility exclusion found violative of Section 8(a)(1) of the Act.' Since the group policy is available company- wide, we agree with the General Counsel's exceptions to the Trial Examiner's failure to order that the notice be posted by Respondent at all of its facilities. Accordingly, we shall correct the order to reflect our agreement with the above exceptions. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Missouri Farmers Association, Inc., Columbia, Mis- souri, its officers, agents, successors, and assigns, shall: 1 See, e.g., Goodyear Tire & Rubber Company, 170 NLRB 539, 552. 194 NLRB No. 82 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Maintaining in its long-term disability and accidental death voluntary insurance plan a require- ment that any employee who is covered under any form of collective bargaining is ineligible for partici- pation. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise by them of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Remove from the long-term disability and accidental death voluntary insurance plan underwrit- ten by Continental Casualty Company of Chicago, Illinois, the eligibility standard which excludes any employee who is covered under any form of collective bargaining from participation and delete from all company booklets and literature distributed to employees any reference to that eligibility standard. (b) Post at all offices and business locations, where employees who are eligible for long-term disability and accidental death voluntary insurance plan work, copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. 2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL remove from our long-term disability and accidental death voluntary insurance plan which is underwritten by Continental Casualty Company of Chicago the eligibility ,requirement which excludes from participation any employee who is covered under any form of collective bargaining. WE WILL remove from all company booklets and literature distributed to employees any state- ments that the insurance plan applies only to an employee who is not covered under any form of collective bargaining. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise by them of their rights guaranteed by Section 7 of the National Labor Relations Act, as amended. This notice is being posted by us in all our offices and business locations where employees who are eligible for the insurance plan work. MISSOURI FARMERS ASSOCIATION, INC. (Employer) Dated By (Representative) (Title) This is'an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4142. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS F. MAHER, Trial Examiner: Upon a charge and an amendment thereto filed on October 2 and November 16, 1970, respectively, by Construction and General Laborers' Local 957, herein called the Union, against Missouri Farmers Association, Inc., Respondent herein, the Regional Director for Region 14, of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on November 16, 1970, alleging violations of Section 8(a)(1), (3), and (5)of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. Respondent in its duly filed answer admitted certain allegations of the complaint but denied the commission of any unfair labor practice. Pursuant to notice a trial was held before me in St . Louis, Missouri, where the parties were present, represented by counsel, and afforded full opportunity to be heard. Preliminary to the taking of testimony the parties announced that an amicable settlement had been reached with respect to a number of matters at issue and that an MISSOURI FARMERS ASSOCIATION, INC. 497 agreement as to facts had been reached as to the outstanding unresolved issue, thus making the taking of testimony unnecessary. Accordingly, the parties, by stipulation into the record, amended the collective-bargain- ing agreement between them to provide for the granting of supplemental compensation, over and above workmen's compensation to injured employees in the bargaining unit involved, thereby remedying the failure to bargain on said subject matter, the substance of the allegation in para- graphs 5 and 7(a) of the complaint. As to portions of the complaint still in issue the parties and counsel for the General Counsel stipulated as to the truth and relevancy of certain documents and facts. Upon these stipulated facts, and upon the entire record in this case, including a brief filed by counsel for the General Counsel, I make the following: ,FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT Missouri Farmers Association, Inc., Respondent, herein, is a Missouri corporation with its principal office and place of business in Columbia, Missouri, maintaining other places of business including a facility at Mexico, Missouri, the only facility involved in this proceeding. There and at the other facilities it is engaged in the production, sale, distribution, and processing of tools, chemicals, and agricultural products. During the year ending June 30, 1970, Respondent, in the course and conduct of its business operations, manufactured, sold, and distributed at its Missouri places of. business, products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from said places of business directly to points located outside the State of Missouri. During the same period Respondent, likewise in the course and conduct of its business operations, purchased and caused to be transported and delivered to its Missouri places of business, seed, chemicals, and petroleum products, and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its places of business in Missouri, directly from points located outside the State of Missouri. Upon the foregoing facts agreed upon by all of the parties it is also admitted that the Respondent is and I accordingly conclude and find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Construction and General Laborers' Local 957, the Union herein, is admitted to be and I accordingly conclude and find it to be a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Stipulated Facts Among Respondent's 3,000 employees approximately 25 employed at its Mexico, Missouri, facility were members of three bargaining units stipulated by all parties to be appropriate for the purposes of collective bargaining, as follows: All production and maintenance employees employed at Employer's soybean mill at 400 E. Holt, Mexico, Missouri, excluding over-the-road truckdrivers, office clerical, laboratory and professional employees, guards and supervisors as defined in the Act. All employees employed at the Employer's testing laboratory at the Employer's facility at 400 E. Holt, Mexico, Missouri, excluding over-the-road truckdrivers, production and maintenance employees, guards and supervisors as defined in the Act. All over-the-road truckdrivers employed at the Employ- er's soybean mill, 400 E. Holt, Mexico, Missouri, excluding production and maintenance employees, laboratory employees, office clerical employees, guards, and supervisors as defined in the Act. Prior to May 1, 1970, contracts were negotiated in behalf of employees in the foregoing units by the Union and the Respondent and they became effective on that date. At the time of the execution of the contracts in behalf of the employees in these bargaining units and for approxi- mately 5 years prior thereto, since January 1, 1965, there was in effect a disability and accidental death insurance policy issued by Continental Casualty Company of Chicago, Illinois, covering hourly paid employees of Respondent earning more than $400 per month, the premiums for which were paid in part by Respondent. In addition to the monthly salary eligibility limitation noted above the insurance policy contains the following provision in the application form incorporated by reference into the policy: The following groups of employees are eligible: All active full-time salaried employees or any hourly paid employee who is: * * * (2) are (sic) not covered under any form of collective bargaining. In a booklet describing the insurance plan and distributed to all employees by Respondent it is stated: ELIGIBILITY If you are an active full-time salaried employee or an hourly paid employee earning $400 per month or more, who is not covered under any form of collective bargaining, and who is between the ages of 18 and 64, inclusive, you are eligible for this coverage. [Emphasis supplied.] At the trial before me counsel for the Respondent conceded that as a consequence of the execution of the collective agreement on May 1, 1970, the members of the bargaining units covered by the agreement, be they members of the Union or not, "are excluded from benefits of the Continental plan because they took the union program." In this respect a review of the collective agreement discloses that union membership was not required of employees in the units for their enjoyment of the benefits to be derived from the contract. Thus it is stated in the collective agreement: 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD UNION SECURITY Both the Company and Union pledge that they will not coerce, intimidate or otherwise force any employee or perspective employee to join or not join the Union as a condition of employment, it being expressly understood that all employees shall have the right to join or not join the Union as they personally see fit without any coercion or intimidation, directly or indirectly from either the Company or the Union. B. Conclusions In essence the insurance coverage of Respondent's employees has been made unavailable to those who, as a group, "through representatives of their own choosing," have bargained collectively. The language of Section 7 of the Act specifically guarantees employees their right to self- organization and to bargaining. Clearly, then, the exclusion of employees from benefits otherwise open to all employees only because they have claimed this statutory right interferes with, restrains, and coerces them in the exercise of these rights. By thus depriving a segment of its employees of benefits otherwise available to them had they not exercised their statutory rights I conclude and find that Respondent has thereby violated Section 8(a)(1) of the Act. The Board has already found such conduct to be unlawful in The Goodyear Tire & Rubber Company, 170 NLRB No. 79, wherein it sustained the Examiner's reliance upon The Kroger Co., 164 NLRB 362, and other cases, to sustain a finding of unlawful interference, restraint, and coercion, but found it unnecessary to decide whether there was unlawful discrimination in violation of Section 8(a)(3). I am persuaded that in the instant case the Respondent has not only interfered with, restrained, and coerced its employees in the exercise of their statutory rights, as held in the cited case, but it has also discriminated against them "to encourage or discourage membership in any labor organi- zation." It is not enough to point, as Respondent does, to the "open shop" agreement in the contract whereby union membership is not a prerequisite- in the bargaining unit, as it might have been under a more stringent union security provision. The simple fact is that unless half of those voting in the selection of the Union at the outset had not been either union members or had not voted for it there would have been no collective agreement. It goes without saying, therefore, that regardless of its effect upon any minority of employees in this unit who might not desire representation, if such there are, those who did desire it were being penalized for having selected the Union. Nor can Respondent's motive in this respect be doubted. In clear language it stated to its employees in a distributed brochure (supra) that they would not be eligible for insurance benefits if they were "covered under any form of collective bargaining agreement." This, it would seem, clearly announces to these people that they cannot be insured if they enjoy the fruits of their union representation. To expect that Respondent must spell out in some further detail its intent to disadvantage these particular employees would, it would seem, unnecessarily expand the bounds of legalism. And simply because it seeks to distinguish members from the nonmembers in the unit, or has not explicitly referred to them as union members, or has not seen fit to explain why it is making the distinction in the insurance availability does not minimize the effect nor obscure in any way what it intended to do. Here, it would seem, is an analogous application of the principle of res ipse loquitur. Because, therefore, I find that the motive to discriminate is inherent in Respondent's action ' I conclude and find that it has thereby discriminated against employees for the purpose of discouraging their member- ship in or support of the Union, in violation of Section 8(a)(3). IV. THE REMEDY I have found that by maintaining and enforcing the terms and provisions of an insurance policy to the exclusion of employees who were covered by a collective-bargaining agreement Respondent has violated the Section 7 rights of these employees and has unlawfully discriminated against them. I will accordingly recommend that Respondent cease and desist from such' conduct and that an order issue requiring it to offer to employees covered by collective- bargaining agreements insurance coverage under the same terms and conditions as presently available to all other employees who are otherwise similarly situated. I shall also recommend that Respondent be required to post notices of compliance with such order as shall be issued against it. [Recommended Order omitted from publication.] 1 The Radio Officers' Union ' of the Commercial Telegraphers Union, AFL v. N.L R B., 347 U.S 17, 42-47, 51.