General Tire & Rubber Co.

GENERAL TIRE & RUBBER CO General Tire & Rubber Company and Local No. 665, International Union of the United Rubber, Cork, Linoleum and Plastic Workers of Amer- ica, AFL-CIO-CLC. Case 9-CA-19241 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon a charge filed 25 January 1983 by the Union, the General Counsel of the National Labor Relations Board issued a complaint on 11 October 1983. The complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act by unilaterally ceasing benefit payments for pensions, service awards, insurance benefits, and supplemental worker's compensation benefits to unit employees as provided by the appli- cable collective-bargaining agreement covering these employees. On 9 February 1984 the General Counsel, the Union, and the Respondent filed a "Stipulation and Motion to Transfer Case to the Board." The parties waived a,hearing and the issuance of a decision by an administrative law judge and submitted the case directly to the Board for findings of fact, conclu- sions of law, and decision. The parties also agreed that their formal stipulation of facts and the exhib- its attached thereto would constitute the entire record before the Board. On 27 April 1984 the Board issued an order granting the parties' motion, approving the stipula- tion, and transferring the proceeding to the Board. Thereafter, each of the parties filed a brief. On the entire record and the briefs, the Board makes the following FINDINGS OF FACT 1. JURISDICTION The Respondent is an Ohio corporation engaged in the manufacture of automobile and truck tires at its facility in Mayfield, Kentucky, where in the year prior to issuance of the complaint it sold and shipped goods and materials valued over $50,000 directly to sources outside the State of Kentucky. We find that the Respondent is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II ALLEGED UNFAIR LABOR PRACTICES 591 A. The Stipulated Facts The Union is the recognized exclusive collective- bargaining representative of the Respondent's pro- duction and maintenance employees at its Mayfield, Kentucky plant.' By letter dated 6 August 1982, the Union gave timely notice to the Respondent of its intent to terminate their 1977-1982 Master Agreement and Supplemental Agreement. Both agreements were due to expire 15 October 1982. New contract negotiations began 26 August 1982 and continued after these two contracts expired in 1982 Neither agreement was extended while nego- tiations continued About 13 October 1982, the Union informed the Respondent that the Union would not strike following the expiration of the current agreements and requested that the agree- ments be extended on a daily basis. The Respond- ent refused to extend these agreements and in- formed the Union that they would be working without agreements. The bargaining unit employees have never, prior to 1982, continued to work fol- lowing the expiration of a collective-bargaining agreement, without a new agreement being in place. 2 On 16 December 1982, at a contract negotiating session, H. C. Smith, the Respondent's corporate vice president of labor relations, informed the Union that effective 15 January 1983 all supple- mental agreement benefits provided by the Re- spondent would terminate. These supplemental agreement benefits included such benefits as life in- surance, accidental death and dismemberment, sur- vivor income benefits, hospital and medical bene- fits, major medical coverage, prescription drugs, pension benefits (other than vested), service awards, and supplemental worker's compensation benefits for unit employees except for pensioners. Prior to Smith's announcement, there had not been any discussion concerning these benefits at any of the parties' negotiating sessions. By letter dated 13 January 1983, the Respondent notified unit employees that their supplemental ' The Union is the Sec 9(b) exclusive representative of the following employees All production and maintenance employees in the Mayfield plant, or in any local expansion of the existing units thereof, now included in the bargaining units, subject to the inclusions and exclusions as set forth in the Certification of Respresentatives of the National Labor Relations Board following elections, or as mutually agreed between the employer and the local Union, excluding all office, all supervi- sion, time keepers, clerks, guards, quality control, production con- trol, trainees and confidential salaried employees, as well as all jobs presently paid on a salaried basis 2 We infer from these stipulated facts that after 15 October 1982, the unit employees worked without a collective-bargaining agreement and that no strike by the Union occurred with the expiration of the Master and Supplemental Agreements 274 NLRB No. 83 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement benefits would terminate effective 15 January 1983. These benefits, in fact, were termi- nated on 15 January 1983, 90 days after the expira- tion of the Supplemental Agreement. On one previous occasion, in 1973, the Respond- ent terminated supplemental agreement benefits 90 days after the parties' 1970-1973 Supplemental Agreement" expired. On that occasion, the supple- mental benefits were terminated during an employ- ee strike conducted by the Union. B. Contentions of the Parties Article IV, section 5, of the 1979-1982 Supple- mental Agreement provides: The International Union or the Employer may request renegotiation of the provisions of this Agreement and termination of the Labor Agreement and Supplemental Labor Agree- ments by giving a written notice to the other party not more than 75 days nor less than 60 days prior to October 15, 1982, or any Octo- ber 15, thereafter. In such event, if negotia- tions are not completed prior to the October 15 next following the giving of such written notice, this Agreement, together with the Labor Agreement shall terminate unless other- wise agreed upon. Notwithstanding the termi- nation of the Agreement for Pension, Service Award, Insurance and Supplemental Work- men's Compensation Benefits, the benefits de- scribed herein shall be provided for ninety (90) days following termination. The language of this contract provision has ap- peared in each successive supplemental agreement between the Union and the Respondent since the first such agreement was negotiated in 1962. The parties differ as to their respective interpretations of this provision, which is crucial to the resolution of the issues presented by this case. The Respondent interprets article IV, section 5 to constitute a contractual waiver of the Union's right to bargain about the discontinuation of sup- plemental agreement benefits. Under its interpreta- tion, the Respondent claims that it was expressly permitted to terminate these benefits 90 days fol- lowing the expiration of the Supplemental Agree- ment, which was 15 January 1983. In support of its waiver argument, the Respondent principally relies on Norris Industries, 231 NLRB 50 (1977).4 3 Since 1962 , there have been successive supplemental agreements be- tween the Union and the Respondent 4 We view this case as inapplicable to the facts at hand, because the contractual provision in Norris was an explicit termination of benefit pro- vision, which the union sought to reform mid-contract Contrary to the Respondent, the General Coun- sel and the Union take the position that article IV, section 5 is not a "clear and unmistakable" waiver. Rather, they consider this contract provision as merely providing 90 more days of coverage of these fringe benefits beyond the expiration date of the Supplemental Agreement. In their view, this extra coverage does not mean that the Union gave up its statutory right to bargain about the discon- tinuation of these benefits. According to the Gener- al Counsel and the Union's interpretation, article IV, section 5 merely shows that the Union and the Respondent have bargained as to what is to happen to these supplemental benefits during the first 90 days after the Supplemental Agreement expires. The General Counsel and the Union further ad- vance that these benefits are to remain the same and continue regardless of whether a strike, a lock- out, or an impasse in bargaining occurs during those first 90 days. The General Counsel and the Union claim that this contract provision does not address what is to happen after these 90 days expire; therefore, under prevailing Board law, the Respondent is obligated to bargain with the Union before any changes are made in these supplemental benefits. C. Discussion An employer violates its duty to bargain collec- tively when it institutes changes in employment conditions without notice to and bargaining with the exclusive collective-bargaining representative of its employees. NLRB v. Katz, 369 U.S. 736 (1962). However, the bargaining representative may contractually relinquish a statutory right if the relinquishment is expressed in clear and unmistak- able terms. Tide Water Associated Oil Co., 85 NLRB 1096, 1098 (1949); Timken Roller Bearing Co., 138 NLRB 15, 16 (1962). Thus, the representa- tive can waive its right to bargain about changes in fringe benefits established by a collective-bargain- ing agreement which has expired. Cauthorne Truck- ing, 256 NLRB 721 (1981). In the absence of waiver, fringe benefits, like the supplemental bene- fits at issue here, survive the expiration of the col- lective-bargaining agreement unless impasse is reached during the bargaining over the proposed changes to the benefits, or, at the time the employ- er made the changes, the representative did not have majority status or the employer had a good- faith doubt, based on objective considerations, of the representative's continuing majority status. Cauthorne Trucking, supra. The primary issue presented by this case is whether article IV, section 5 of the parties' Supple- mental Agreement is a waiver concerning the ter- GENERAL TIRE & RUBBER CO mination of supplemental benefits 90 days after the agreement expires. In analyzing this issue, we observe that there is no bargaining history concerning what the parties intended by this provision when it was first added and continuously included in their agreements over the years. We also consider the 1973 strike situa- tion, where strikers were not given the supplemen- tal benefits beyond 90 days after the contract had expired, markedly different from the situation at hand where employees remained on the job . Strik- ers are not ordinarily entitled to receive the type of fringe benefits at issue unless special provision is made by the parties . Therefore, for the supplemen- tal benefits to terminate in 1973 does not prove any waiver by the Union in the situation where em- ployees who are working are otherwise entitled to such benefits . Thus, we do not have the advantage of past application to the kind of situation with which we are faced by this case . This then leaves us with the plain language of the provision itself. In our view, this contract provision provides for an extra 90 days of contract coverage for supple- mental benefits beyond the 3 years provided for the other contract benefits available to the employees. This extra 90 days of coverage is contingent on only one event, i.e., the parties being unable to reach a new agreement within 90 days after the old agreement expires. The 90 days of coverage are not limited by any events that occur during the 90-day period after the old contract expires other than a new agreement. For example,, an impasse in negoti- ations, a strike, or a lockout does not have any effect on the supplemental benefits during the first 90-day period after the old contract expires. No- where in this contract provision is there mention of what is to occur to these supplemental benefits after the 90 days have expired. In these circum- stances, we find no clear and unmistakable waiver of the right to bargain over these supplemental benefits after the 90-day period. Accordingly, we find no waiver by the Union, and we conclude that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally ceasing payments for sup- plemental agreement benefits effective 15 January 1983. CONCLUSIONS OF LAW 1. The Respondent is an employer 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 following unit is appropriate for the pur- poses of collective bargaining: 593 All production and maintenance employees in the Mayfield plant, or in any local expan- sion of the existing units thereof, now included in the bargaining units, subject to the inclu- sions and exclusions as set forth in the Certifi- cation of Representatives of the National Labor Relations Board following elections, or as mutually agreed between the employer and the local Union, excluding all office, all super- vision, time keepers, clerks , guards, quality control, production control, trainees and confi- dential salaried employees , as well as all jobs presently paid on a salaried basis. 4. By unilaterally ceasing payments for pensions, service awards, insurance benefits , and supplemen- tal worker's compensation benefits for unit employ- ees 90 days after the expiration of the 1979-1982 Supplemental Agreement, the Respondent has en- gaged in an unfair labor practice within the mean- ing of Section 8(a)(5) and ( 1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist therefrom and take certain af- firmative action designed to effectuate the purposes of the Act. We shall order that the Respondent make the employees whole by paying all pensions, service awards, insurance benefits , and supplemen- tal worker's compensation benefits , as provided in the expired Supplemental Agreement , which have not been paid and which would have been paid absent the Respondent 's unlawful unilateral discon- tinuation of such payments5 and by reimbursing its employees for any expenses ensuing from the Re- spondent's unlawful discrimination of such pay- ments. ORDER The National Labor Relations Board orders that the Respondent, General Tire & Rubber Company, Mayfield, Kentucky, its officers, agents, successors, and assigns, shall 1. Cease and desist from 5 Because the provisions of employee benefit fund agreements are vari- able and complex , the Board does not provide at the adjudicatory stage of a proceeding for the addition of interest at a fixed rate on unlawfully withheld fund payments We leave to the compliance stage the question of whether the Respondent must pay any additional amounts into the benefit funds in order to satisfy our "make-whole" remedy These addi- tional amounts may be determined , depending on the circumstances of each case, by reference to provisions in the documents governing the funds at issue and, where there are no governing provisions , to evidence of any loss directly attributable to the unlawful withholding action, which might include the loss of return on investment of the portion of funds withheld, additional administrative costs , etc , but no collateral losses See Merryweather Optical Co , 240 NLRB 1213, 1216 fn 7 (1979) 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Unilaterally ceasing payments for supplemen- tal agreement benefits, including pensions, service awards, insurance benefits, and supplemental work- er's compensation benefits. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make its employees whole by paying all pen- sions, service awards, insurance benefits, and sup- plemental worker's compensation benefits, as pro- vided in the expired Supplemental Agreement, which have not been paid and which would have been paid absent the Respondent's unlawful unilat- eral discontinuance of such payments, and by reim- bursing its employees for any expenses ensuing from the Respondent's unlawful discontinuation of such payments, and continue such payments until such time as the Respondent negotiates in good faith to a new agreement or to an impasse. (b) Post at its facility in Mayfield, Kentucky, copies of the attached notice marked "Appendix."' Copies of the notice, on forms provided by the Re- gional Director for Region 9, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 6 If 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 Na- tional Labor Relations Board" Shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT unilaterally cease making pay- ments for supplemental agreement benefits. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make our employees whole by paying all pensions, service awards, insurance benefits, and supplemental worker's compensation benefits, as provided in the 1979-1982 Supplemental Agree- ment, which have not been paid and which would have been paid absent our unilateral discontinuance of such payments, and by reimbursing our employ- ees for any expenses ensuing from our unlawful dis- continuation of such payments, and continue such payments until such time as we negotiate in good faith to a new agreement or to an impasse. GENERAL TIRE & RUBBER COMPANY