N L Industries, Inc.

N L INDUSTRIES, INC. N L Industries, Inc. and Chemical Workers' Basic Union Local No. 1744 of St. Louis, Missouri , affili- ated with Brotherhood of Painters and Allied Trades of America, AFL-CIO. Case 14-CA-8005 August 29, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On April 16, 1975, Administrative Law Judge Phil Saunders issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel and the Re- spondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, N L In- dustries, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Substitute the following paragraph for para- graph 1(a) of the Order: "(a) Refusing to bargain collectively with Chemi- cal Workers' Basic Union No. 1744 of St . Louis, Mis- souri, affiliated with Brotherhood of Painters and Al- lied Trades of America, AFL-CIO, as the exclusive representative of its employees in the following ap- propriate unit, in regard to participation by said em- ployees in the Respondent's savings plan for employ- ees of N L Industries, Inc.: All production and maintenance employees em- ployed by us at our plant, known as the Titani- um Pigment Division of N L Industries, Inc., located at River Des Peres and Mississippi Riv- er, St. Louis County, Missouri, but excluding guards, watchmen, professional employees, of- fice clerical employees, and supervisors as de- fined in the Act." 41 2. Substitute the attached notice for that of the Administrative Law Judge. 1 We shall revise the Administrative Law Judge's recommended Order and proposed notice to include the description of the appropriate collective- bargaining unit involved. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail or refuse to bargain collec- tively with Local 1744, as the exclusive represen- tative of our employees in the appropriate unit described herein, with regard to participation by said employees in the savings plan for employ- ees of N L Industries, Inc., and, if an under- standing is reached, embody such in a signed agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL, upon request, bargain collectively with Local 1744 with respect to participation by the employees in the aforesaid appropriate unit in the savings plan for employees of N L Indus- tries, Inc., and, if an understanding is reached, embody such understanding in a signed agree- ment. The appropriate collective-bargaining unit is: All production and maintenance employees employed by us at our plant, known as the Titanium Pigment Division of N L Industries, Inc., located at River Des Peres and Mississip- pi River, St. Louis County, Missouri, but ex- cluding guards, watchmen, professional em- ployees, office clerical employees, and supervisors as defined in the Act. N L INDUSTRIES INC. DECISION STATEMENT OF THE CASE PHIL SAUNDERS, Administrative Law Judge: Based on a 220 NLRB No. 7 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge filed on June 27, 1974,1 by Chemical Workers' Basic Union, Local No. 1744 of St. Louis, Missouri, affiliated with Brotherhood of Painters and Allied Trades of Ameri- ca, AFL-CIO, herein called the Union or Local 1744, a complaint against N L Industries, Inc., herein the Compa- ny or the Respondent, was issued on January 23, 1975, alleging violations of Section 8(a)(5) and (1) of the Nation- al Labor Relations Act, as amended. Respondent filed an answer to the complaint, denying it had engaged in the alleged unfair labor practices. Both the General Counsel and Respondent filed briefs in this manner. Upon the entire record in this case, and from my obser- vation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a corporation organized under the laws of New Jersey, and at all times material herein has main- tained its Titanium Pigment Division St. Louis plant at River Des Peres and Mississippi River, in the county of St. Louis, Missouri. Respondent maintains other plants and places of business in the States of Missouri, Illinois, and other States, but the St. Louis County facility is the only plant involved in this proceeding. Respondent is engaged in the manufacture, sale, and dis- tribution of titanium pigments and related products. Dur- ing the year ending December 31, Respondent manufac- tured, sold, and distributed at its Missouri plants products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from said plants directly to points located outside the State of Missouri. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Union named herein is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleges that commencing on or about January 31 the Union requested Respondent to bargain with it concerning the institution of a savings plan partially funded by company contributions for the benefit of unit employees represented by the Union, but the Respondent refused to bargain with the Union over the matter. This allegation adequately frames the single issue in this case. At Respondent's St. Louis titanium plant there are three collective-bargaining contracts in force and effect. One covers production workers and is with Local 1744, the Charging Party herein; another contract covers office workers and related salaried employees and is with Local 5-225 of the Oil, Chemical & Atomic Workers' Union; and the third contract covers the plant guards and is with Local 1 All dates are 1974 unless stated otherwise. 5-243 of the Oil, Chemical & Atomic Workers' Union. In Local 1744 there are approximately 800 unit employees? In the office employees group with Local 5-225, there are ap- .proximately 60 employees, and in the guard unit there are 17 employees. The two union contracts we are mainly con- cerned with here are those of Local 1744 and Local 5-225. In 1944, Respondent effected a profit-sharing plan for its office and salaried employees represented by Local 5-225, but from its inception to the present date it has not covered any production and maintenance workers of Local 1744. However, the office workers covered under contracts with Local 5-225 have been continually participating in the profit-sharing plan since its inception. Commencing in 1956 and continuing thereafter, contract negotiators for Local 1744, in each negotiation, specifically listed as a demand the inclusion of their members in the Respondent's profit-sharing plan, but this demand, each time, was negotiated out of the final contract between the parties. In 1969, the demand by Local 1744 for the profit- sharing plan was then resolved by the substitution for it of a severance pay provision in lieu of profit sharing. Howev- er, in the 1972 negotiations, Local 1744 again made the demand for the profit-sharing plan, but it was not granted. In the negotiations on the current contract held in the summer and fall of 1973, the Union had as one of its de- mands a stock purchase plan, but this demand was dropped from the Union's request during the negotiations on the current contract. Local 1744 had taken the position that its stock purchase plan would be more advantageous to its members because the Respondent's profit-sharing plan had shown a "downward trend" and "wasn't paying off as well." Other than the above, there was no demand or discussion by the parties of any inclusion of hourly paid employees represented by the Union in the long-existing profit-sharing plan provided by Respondent to its salaried employees? In January, the existence of a 41-page "Savings Plan for Employees of N L Industries, Inc.," accompanied by a 6- page document captioned "Changes Are Being Made .. . In Your N L Industries Retirement and Profit-Sharing Plans," came to the attention of the Union, and as a result officials of Local 1744 immediately surmised that the sav- ings plan, as outlined in the above documents, was an en- tirely new benefit, and not merely a revision or amendment to the old profit-sharing plan. Accordingly, Union Presi- dent John Scott sent a letter to Respondent's employee relations superintendent, Thomas Payne, on January 31, requesting that employees represented by Local 1744 be granted inclusion in the new savings plan. In February, Scott and Payne engaged in a telephone call in which it was indicated that Respondent was unwilling to accede to the Union's request, and was not interested in extending savings plan coverage to the employees represented by the Union. Having received no formal reply, Scott sent Payne 2 The appropriate unit for collective bargaining represented by Local 1744 consists of all production and maintenance employees by Respondent in its plant known as the Titanium Pigment Division of N L Industries, Inc., but excluding guards, watchmen , professional employees, office clerical em- ployees, and supervisors as defined in the Act. 3 The present collective-bargaining agreement between Local 1744 and Respondent became effective September 20, 1973 N L INDUSTRIES, INC. 43 another letter on April 26 and formally demanded the sav- ings plan coverage for unit employees of Local 1744. On June 6, Payne wrote to Scott denying his request for cover- age or for bargaining meetings on the matter, and since this date the parties have engaged in no further bargaining or discussion over the issue of extending the savings plan cov- erage to employees represented by the Union. It is the Respondent's position that the profit-sharing plan had been demanded and bargained on by Local 1744 for a number of years, commencing in 1956, up through the current contract, and on each occasion it had been waived, given up, or withdrawn by Local 1744. The Respondent further contends that there is no new coverage of any bene- fits, and that all the Company did was to amend its old profit-sharing plan by calling it a savings plan, and allow- ing each salaried employee represented by Locals-225 and covered under the old profit-sharing plan to now become a contributing participant in the savings plan, which became effective on January 1. It is well-established Board law that an employer is un- der a duty to bargain during the existence of a bargaining agreement concerning any mandatory subject of bargain- ing which has not been specifically covered in the contract, and which the Union had not clearly and unmistakably waived 4 It is also well recognized that the absence of a reopener clause, likewise, does not excuse or relieve an em- ployer from bargaining during the term of the contract over a new benefit not waived by the Union during con- tract negotiations. The savings plan in the instant case is clearly a mandato- ry subject of bargaining, and on this particular point there is no contention otherwise. However, the Respondent does maintain that Local 1744 waived its right to bargain con- cerning the savings plan because in each of the contract negotiations the profit-sharing plan (now called the savings plan) was negotiated out of the final contracts between Local 1744 and the Respondent.' This record does show that throughout several of the negotiations and, in fact, up through 1972 the Union did continually request inclusion in the profit-sharing plan and was always denied, but the crucial negotiations for consid- eration here, in the final analysis, are those which took place in 1973 leading to the current contract, and in these negotiations clearly no waiver occurred 6 In the 1973 nego- tiations there was no request whatsoever by Local 1744 for inclusion in the profit-sharing plan, and the Union merely broached the subject in its specific request for a stock pur- chase plan because it had concluded that such a plan would be more advantageous to its members than the prof- 4 The Jacobs Manufacturing Company, 94 NLRB 1214 (1951) Also see The B. F Goodrich Company, 195 NLRB 914 (1972) S There is no contention by the General Counsel that during the 1973 negotiations Respondent made any misrepresentations to the Union regard- ing the savings plan-which was not in existence at that time The allegation is failure to bargain with Local 1744. 6 The Union's withdrawal in the 1969 negotiations of its request for inclu- sion in the profit-sharing plan and its acceptance of a severance pay provi- sion, as aforestated, must be limited to the 1969 negotiations because admit- tedly in the 1972 negotiations the Union came right back with its proposal to be included in the profit-sharing plan, and, therefore, the 1969 "tradeoff" is not available for the subsequent proposals and contracts between the parties. it-sharing plan. However, in the 1973 negotiations leading to the current contract, the Union made absolutely no pro- posals, requests, or demands to be included in the profit- sharing plan, and there were no discussions between the parties on this subject matter. As pointed out in B. F. Goodrich Co., supra, "It is inconceivable that a party to an agreement can waive something which was not in existence or even proposed at the time of the alleged waiver." In any event, the law is well settled that: a purported waiver will not be lightly inferred in the absence of "clear and unequivocal" language. Even when the parties consciously explore the matter during negotiations and the contract fails to touch upon it, something more is required before the union will be held to have bargained away its rights, namely, a conscious relinquishment by the union, clearly in- tended and expressed. [Perkins Machine Company, 141 NLRB 98, 102 (1963).] In the instant case, there is no evidence that points to a "conscious relinquishment" in the 1973 negotiations by the Union of any right to bargain about the profit-sharing plan. Rather, the Union accepted the Respondent' s refusal to include its members in the stock purchase plan, but thereafter did not press, offer, or substitute any proposal on profit sharing. Moreover, the Union certainly did not waive its rights to bargain over the institution of the type of benefits now reflected in the Respondent's savings plan covering salaried employees, as this plan is far more than the old profit-sharing plan operating under a new name. The old profit-sharing plan provided no benefit for em- ployee beneficiaries unless Respondent's operations were profitable, and its accounting procedures analyzed these operations to reflect a profit. Section III of the old profit- sharing plan provided,t inter alia, that after certain deduc- tions the Company shall make in each" taxable year a con- tribution to the trust fund equal to 5 percent of the "con- solidated net income" or, under some circumstances, if the amount of income be less than 5 percent, then the contri- bution shall be equal to the "highest full percentage of such income." The savings plan, which became effective on January 1 covering salaried employees, as aforestated, provides, inter alia, that the Company shall contribute to the trust fund "One Dollar for each Dollar of a Contributing Participant's Basic Contribution which is based on the first three percent of his compensation, plus Fifty Cents for each Dollar of a Contributing Participant's Basic Contri- bution which is based on the next three percent of his Compensation." 8 In other words a participating employee in the new savings plan, by depositing or contributing a certain amount of money to the trust fund as provided for in the new plan, can force Respondent automatically to make a contribution accruing to the employee's account. As pointed out, it is thus clear that not only does the sav- ings plan constitute a much more desirable fringe benefit than something as speculative as profit sharing, but the initiation and impetus for company contributions lie now with the employees themselves, rather than with the Re- G.C Exh 9 B See G C. Exh. 10, sec. IV, par. 4 1 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent, as under the old profit-sharing plan. Since Local 1744 never sought, demanded, or tried to negotiate for a savings plan of this sort at any time, it could never have waived its right to bargain for such a benefit. IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, I will recommend that, upon request, the Respondent bargain collectively with the Union concerning the savings plan and, if an un- derstanding is reached, embody such in a signed agree- ment. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The unit described herein constitutes an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union has been at all times material herein the exclusive representative of the employees in the aforesaid appropriate unit for the purpose of collective bargaining. 5. By refusing to bargain with the Union concerning the participation of unit employees in the savings plan, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The Respondent, N L Industries, Inc., St. Louis, Missou- ri, its officers, agents, successors, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local 1744 as the exclusive representative of its employees in the appro- priate unit as found herein, in regard to participation by said employees in the Respondent's savings plan for em- ployees. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or pro- tection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act: (a) Upon request, bargain with Local 1744 with respect to participation by the employees in the aforementioned appropriate unit in the savings plan for Employees of N L Industries, Inc., and if an understanding is reached, em- body such understanding in a signed agreement. (b) Post at its place of business and plant copies of the attached notice marked "Appendix." 10 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 14, after being duly signed by Respondent's represen- tative, 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. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 14, in writ- ing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. 9In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order and all objections thereto shall be deemed waived for all purposes. 10 In the event the Board's 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "