Union Carbide Corp.

UNION CARBIDE CORPORATION Union Carbide Corporation, Carbon Products Division and International Union of Electrical , Radio and Machine Workers, AFL-CIO-CLC, and its Local 749. Case 8-CA-5665 June 19, 1972 SUPPLEMENTAL DECISION BY MEMBERS FANNING, JENKINS, AND KENNEDY On December 9, 1970, the National Labor Rela- tions Board issued a Decision and Order,' wherein it found that the Respondent's refusal and failure to provide the Charging Union with certain requested data relating to the benefits received by retirees and disability retirees under Respondent's pension and insurance agreements constituted a violation of Section 8(a)(5) and (1) of the Act. On December 8, 1971, the United States Supreme Court issued its decision in Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Company, Chemical Division,2 wherein the Court concluded that retired employees are not "employ- ees" within the meaning of the Act and, consequent- ly, are not appropriately includable in the collective- bargaining unit, which normally encompasses only active workers. Correlatively, the Supreme Court also held that the matter of retirees' benefits under the employer's group health insurance plan was merely a permissive or voluntary, and not a mandatory, subject of bargaining under Section 8(d) of the Act. However, the Court also affirmed other well-estab- lished prior decisions of the Board and the courts that the matter of pension and insurance plans or benefits involving active employees constitutes a 1 187 NLRB No 10 2 404 U.S 157. 3 On February 3, 1972, the Board issued to the parties herein a Notice To Show Cause as to why the Board should not reconsider its decision in the light of the holding of the Supreme Court in Pittsburgh Plate Glass, supra. In response thereto, the parties averred that they did not object to and, in general, agreed with the Board's proposal as stated in said notice 4 In fact, the record shows that the Union never asked to bargain directly for the retired personnel with respect to their pension or disability benefits. 717 mandatory subject of bargaining in respect to which an employer commits an unfair labor practice should he act unilaterally or disdain bargaining concerning them.3 In our original decision herein, we adopted without change the Trial Examiner's findings, conclusions, and recommendations wherein he found the Respon- dent to be in violation of Section 8(a)(5) on alternative grounds. The Trial Examiner, relying on the Board's decision in Pittsburgh Plate Glass, found that retired persons were employees within the meaning of the Act and that, in any event, the information requested by the Union bearing on the Respondent's experience as to costs and benefits received by retirees under the pension and insurance plans the Respondent had negotiated with the Union was data necessary to enable the Union to bargain intelligently with respect to these matters in behalf of the active employees.4 While the Trial Examiner's first ground for finding the 8(a)(5) violation now becomes untenable in view of the Supreme Court's decision in Pittsburgh Plate Glass, supra, the Trial Examiner's second or alterna- tive basis for an 8(a)(5) finding, i.e., the Union's obvious need for the requested data in order that it can more intelligently bargain for the active employ- ees, still remains, in our opinion, a valid basis for our earlier finding that Section 8(a)(5) was violated by the Respondent's intransigence in this regard.5 Accordingly, we conclude that the Board's Deci- sion and Order herein was not overruled or rendered incorrect by the Supreme Court's decision in Pitts- burgh Plate Glass and we reaffirm the Board's earlier adoption of the Trial Examiner's findings, conclu- sions, and recommendations as modified by our decision herein. S See Weber Veneer & Plywood Company, 161 NLRB 1054 : also see Goodyear Aerospace Corporation, 157 NLRB 496, enfd. 388 F 2d 673 (C.A 6), for bargaining relevance of wage data demanded by union for employees not within the unit Cf. International Association of Machinists and Aerospace Workers, AFL-CIO (Franklin W. Nit), 172 NLRB 2079, finding respon- dent's refusal to provide union with cost information relating to group pension and insurance plans as violative of Sec 8 (a)(5). As here, those group insurance plans were noncontributory; i.e, respondent was directly defraying their entire cost 197 NLRB No. 109