Federal-Mogul Corp.

National Labor Relations Board - Board Decisions

Mar 4, 1974

209 N.L.R.B. 343 (N.L.R.B. 1974)

FEDERAL-MOGUL CORP.
Federal-Mogul Corporation , Bower Roller Bearing
Division and International Union , United Automo-
bile, Aerospace and Agricultural Implement Work-
ers of America (UAW). Case 7-CA-9092
March 4, 1974
DECISION AND ORDER
On November 9, 1972, Administrative Law Judge
Maurice S. Bush issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
a brief in answer to Respondent's exceptions.'
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
The facts, as more fully set forth in that Decision,
are as follows:
The Charging Party, hereinafter referred to as
UAW or Union, has represented a unit composed of
about 2,000 of Respondent's production and mainte-
nance employees since 1941. Until the events
occurring herein, the approximately 140 setup men
who prepare and check machines for other employ-
ees to operate were never included in the production
and maintenance unit. In fact, they were specifically
excluded from the current collective-bargaining
agreement between Respondent and the Union.
On April 29, 1971, an election was conducted
among the setup men in which they voted to be
represented for purposes of collective bargaining by
the UAW and so, according to the Notice of
Election, indicated "their desire to be included in the
existing production and maintenance unit currently
represented by" the UAW.
As a result of the election, the Regional Director
for Region 7 issued an amended certification with an
effective date of May 7, 1971, which certified that the
UAW "may bargain for the employees in the above-
named category as part of the group of employees
which it currently represents." The Administrative
Law Judge found, and we agree, that the result of the
revised certification was to make the setup men part
of the preexisting production and maintenance unit.
On May 12, 1971, Respondent's manager of
industrial relations informed the Union that Respon-
dent considered the setup men to be covered by the
current production and maintenance unit agreement
i Respondent 's request for oral argument is hereby denied, since the
record, exceptions , and briefs adequately present the positions of the
parties
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
343
and that, effective June 1, 1971, Respondent would
take action to implement the agreement with respect
to the Globed employees. Despite the Union's
objections Respondent on June 1 proceeded to apply
the agreement to the setup men. As a result of
Respondent's unilateral action the setup men lost
certain benefits they had enjoyed prior to the
certification and began receiving the same contractu-
al benefits as the production and maintenance
employees.
After Respondent implemented the contract, the
parties conducted a total of five bargaining sessions
between June 29 and September 15, 1971, to discuss
the setup men. At all the meetings the Union
continued to insist that the preelection benefits be
restored to setup men, while Respondent consistently
contended that the setup men were automatically
covered by the existing production and maintenance
contract and that their benefits were derived from it,
exclusively. After the fifth and final meeting, at
which Respondent declared it would agree only to
those union proposals which were included in the
existing contract, the Union filed unfair labor
practice charges. A complaint issued on May 5, 1972,
alleging that Respondent violated Section 8(a)(5) and
(1) of the Act by (1) its unilateral announcement of
the proposed change in benefits, (2) the unilateral
implementation of the production and maintenance
contract with respect to the setup men, and (3)
bargaining in bad faith by maintaining a fixed and
unalterable position in its subsequent negotiating
sessions with the Union.
Although Respondent has admitted the unilateral
announcement of and subsequent changes in the
setup men's benefit structure, it denies having
committed any violation of the Act, on the grounds
that as a matter of law it had an obligation or at least
a right to apply the terms of the production and
maintenance agreement to the setup men. We do not
agree.
In the instant case, the outstanding collective-
bargaining agreement was executed March 1, 1971,
to be effective through February 28, 1974. Though in
some industries parties commonly provide for cover-
age of "after-acquired" plants, stores, or groups,3
that was not the case here. On the contrary, as
previously indicated, the applicable, current contract
specifically excluded setup men, and no "bargain"
can be said to have been consciously made by the
parties for them. When the Union became certified
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd . 188 F.2d 362 (C.A 3, 1951 ). We have carefully
examined the record and find no basis for reversing his findings.
3 See, e g. St Louis Coca Cola Bottling Company, 188 NLRB 658 , Retail
Clerks Union, Local 870, Retail Clerks International Association, AFL-CIO,
192 NLRB 240, Smith 's Management Corporation d/b/a Frazier 's Market,
197 NLRB 1156
209 NLRB No. 51
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as their newly designated exclusive agent, the
Administrative Law Judge found-and we
agree-the Respondent became obligated to engage
in good-faith bargaining as to the appropriate
contractual terms to be applied to this new addition
to the previous unit.
We do not perceive either legal or practical
justification for permitting either party to escape its
normal bargaining obligation upon the theory that
this newly added group must somehow be automati-
cally bound to terms of a contract which, by its very
terms , excluded them. Such a determination would
appear to be at odds with the Supreme Court's
holding in H. K. Porter Co., Inc. v. N.L.R.B.4 In H.
K Porter, the Supreme Court noted that "while the
Board does have power ... to require employers
and employees to negotiate, it is without power to
compel a company or a union to agree to any
substantive contractual provision of a collective-
bargaining agreement." 5 Were the Board to require
unilateral application of the existing contract to the
setup men we would, in effect, be compelling both
parties to agree to specific contractual provisions in
clear violation of the H. K. Porter doctrine. We
understand the teaching of that case to be that we
have no statutory authority here to force on these
employees and their Union, as well as the Employer,
contractual responsibilities which neither party has
ever had the opportunity to negotiate.
Our decision promotes bargaining stability, since a
major consequence of the opposite view would be
that in contract negotiations both parties would be
held to be making agreements for groups of persons
whose identity and number would be totally un-
known to, and unpredictable by, either party. Costs
of wages and benefits under negotiation would thus
become equally unpredictable, and informed negoti-
ation of such benefits as health and pension plans
would become well-nigh impossible. The unpredicta-
ble scope of the number, age groups, and other
factors of coverage which are essential to develop
cost data as to such items would leave negotiators in
the dark as to how to make any reliable estimates of
future costs. Bargaining under such conditions would
be seriously handicapped.
This points to another element of unfairness
inherent in Respondent's position. Though in this
case it is the Employer which seeks to have the
Globed-in employees automatically covered by the
existing contract, if we were to adopt Respondent's
-and our dissenting colleagues'-view, the same
result would of course have to obtain in any case in
which a union were to take the same position. That
would create the only situation in law known to us in
which individuals theretofore not a party to an
agreement could, by their own unilateral action, vote
themselves a share of the bargain which the other
parties had agreed to between and for themselves.
Instances of this unfairness are not difficult to
envisage . For example, an employer may have agreed
with a union to a 2-week, paid sick leave benefit for
all employees in a unit , based on his awareness that
those employees were seldom sick in the past and
would not be likely to abuse the benefit. Thereafter, a
fringe group of employees, not previously included in
the unit and with a history of substantial, theretofore
unpaid absenteeism, decide to Globe themselves into
the existing unit and to insist that the special
provision for sick leave be immediately applicable to
them, despite the employer's concern that such a
benefit for the newly added group was never within
his contemplation, and would be extraordinarily
expensive when applied to them. Clearly, the
employer would be entitled to a negotiated, rather
than a unilaterally imposed , agreement for these
newly added employees, and to an opportunity to
achieve a quid pro quo for the sick leave benefit as it
applies to the new group. A similar situation would
prevail if a group of older employees, perhaps in a
previously excluded plant clerical classification, were
to vote themselves into a unit having a contract
providing a life insurance or pension program which,
when negotiated, was intended and possibly funded
to cover only the then-included group of younger
employees.
We believe the far better-and fairer-result is to
adhere to the language of the amended certification,
that the Union "may bargain" for the setup men "as
part of the group of employees which it currently
represents ." To be sure , in 1974, when it comes time
to negotiate a new contract, the Union and the
Employer must bargain for a single contract to cover
the entire unit , including the setup men. In the
meantime, the Union must, of course, fairly repre-
sent all employees in the unit, including both setup
men and those previously included in the unit. But
we fail to perceive anything divisive, or even unusual,
about requiring interim bargaining for this new
group. If an agreement is reached, it will in all
likelihood be an addendum to the existing pro-
duction and maintenance contract. Insofar as it may
contain terms peculiarly applicable to setup men,
that seems to us a practical, acceptable, and not a
divisive, result. Single contracts often have separate
or special provisions for separate classifications,
departments, or shifts, depending upon the extent to
which the bargaining has developed agreement upon
whether all-inclusive provisions are adequate-or
4 397 L S 99 (1970).
5 Id at 102
FEDERAL-MOGUL CORP.
inadequate-to deal with the problems of each such
group . We believe this is what is needed to be
bargained here , and that such bargaining is to be
preferred , both legally and practically , over automat-
ically fitting the new group , sans bargaining, into a
fixed mold no matter how badly that mold may fit
either the employees' or the employer 's circum-
stances, needs, and desires at the time.6
The fairness of our election processes would also
be adversely affected by the logical consequences of
the views espoused by the dissent . While in this case
only one union is involved , in other Globe situations
there are , with some frequency, two unions, one of
which seeks a separate unit while the other is an
incumbent which has a collective -bargaining agree-
ment covering a larger existing unit . In such cases the
effect of the views expressed in the dissent would be
to interfere with the employees ' free choice by
putting the competing unions in disparate positions,
despite the fact that neither union consciously
reached a bargain with the employer for the new
group . If the employees were to vote for the
incumbent they would know in advance the precise
guarantees and limitations on their benefits and
obligations , since the dissenters would by fiat deem
the new group automatically covered by the existing
contract ; on the other hand , if they were to vote for
the other union they would have no such assurances
but, instead, would have whatever advantages or
disadvantages would inhere in the bargaining which
only a vote for the nonincumbent union would allow
to occur . It is not for the Board to weight the scales
in whatever way such disparate rules might affect
any given election.
The dissent relies on Lubbock Typographical Union
No. 888, International Typographical Union, AFL-CIO
(The Avalanche -Journal Publishing Company), 196
NLRB 177. We believe that case to be distinguisha-
ble. The respondent union there was found not guilty
of an unlawful refusal to bargain when it insisted on
its position that the contract applicable to other
employees in the unit should be applied to the newly
added group of proofreaders , while at the same time
offering to bargain about any amendments which the
company might think appropriate for this special
group . The company, however , took an equally
a Our colleagues concede that, as to some "matters not covered by the
existing contract and which were of unique concern to the setup men," the
parties have a duty to bargain We think it clear that the setup men's
compensation, here in issue, falls into that category The setup men's own
compensation is, of cour'e . unique to them, and the contract is unquestiona-
bly silent on this matter As we have noted, the contract is silent as to all
matters affecting setup men , since at the time of execution of the agreement
setup men were specifically excluded from its coverage
Our colleagues suggest that Respondent may have met whatever
bargaining obligation it had. We cannot agree Respondent advised the
Union on May 12, 1971, that, inter alia, it proposed to convert setup men to
an hourly basis and , when the Union replied on May 18 that bargaining was
345
adamant position that a wholly new and different
contract be negotiated, but failed to make any
concrete proposals. On those facts, the Trial Examin-
er recommended that the charges be dismissed and
the Board adopted his recommendation. There, as
here, the union sought to bargain for the Globed
employees as part of the existing unit, but offered to
negotiate a supplemental agreement with special
terms covering them. In the instant case, however,
the Respondent changed the terms and conditions of
the setup men by unilaterally applying the existing
production and maintenance contract to them in toto,
before offering the Union any opportunity to
bargain. We are not suggesting that the Respondent
here was precluded from asserting, as a bargaining
position, that the existing contract ought to apply
and inviting, as did the union in Lubbock, any
suggestions as to what specific modifications therein
should be made. But until negotiations can be had as
to the respective positions of the parties, Board
precedent requires that no unilateral changes be
made in the wages or benefits of the newly
represented employees.
Nor do we suggest that either party may adamantly
insist to impasse upon a totally separate agreement
so designed as to effectively destroy the basic
oneness of the unit which we have found appropri-
ate. It is in that light that the Trial Examiner in
Lubbock questioned, but did not then decide,
whether the "Company thereby, in effect, was
proposing to sever the proofreaders from the com-
posing room unit, and by a negotiating tactic annul
the Board's Decision and Certification. ..."
Neither do we need to reach that issue here, for the
evidence in this regard will not support such a
finding. While neither party appears to have quali-
fied as a model of flexibility, it was the Respondent
which unlawfully and unilaterally made changes in
benefits and which then adamantly insisted, as a
matter of law, that it did not have to bargain about
any of those items. The Union's position, while an
insistent one, was not tantamount to a rejection of a
contract which would encompass all employees in a
single unit; nor can its insistence upon discussing the
retention of previously enjoyed benefits be deemed a
first required , Respondent on May 25 informed the Union that it found it
"administratively necessary to proceed to implement immediately " that and
other changes . The obligation to bargain collectively is not normally
satisfied by an employers making changes first and then bargaining about
them later . Moreover, we are unable to divine which of the changes made
were, in our colleagues words, of "unique, oncern" to setup men, and thus
bargainable. Respondent made changes in setup men *% vacation benefits,
pension and health insurance , manner of recording work time , sick leave,
opportunity to participate in stock investment, et cetera We would, as
indicated, leave to collective bargaining the applicability of existing
contractural provisions to setup men.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tactic designed to annual the Board's certification by
destroying the integrity of the single unit.
Under these circumstances and for the above
reasons, we, like the Administrative Law Judge, find
that Respondent violated its obligations under
Section 8(a)(5) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Federal-Mogul
Corporation, Bower Roller Bearing Division, De-
troit , Michigan, its officers, agents, successors, and
assigns , shall take the action set forth in the said
recommended Order.
MEMBERS KENNEDY and PENELLO, dissenting:
We dissent from the majority's finding that
Respondent violated Section 8(a)(5) of the Act by
applying the terms of the existing contract to setup
men who voted in a mid-term election to join the
production and maintenance unit, and by simultane-
ously withdrawing those preelection benefits former-
ly enjoyed by the setup men which were inconsistent
with the contract. In our view, when a union, as a
result of an Armour-Globe election, is certified to
represent certain employees "as part of" an existing
bargaining unit for which the union has already
negotiated a contract, the provisions of that contract
apply automatically and equally to all individuals in
the unit, including those who are newly included.
For over 30 years, the Union (hereafter Union or
UAW) has been the certified representative of
Respondent's production and maintenance employ-
ees employed at Respondent's two Detroit plants.
During that. time, successive collective-bargaining
agreements have been negotiated in the production
and maintenance unit, the current agreement encom-
passing the period from March 1, 1971, through
February 28, 1974.
On April 29, 1971, an election was conducted
among Respondent's setup men in accordance with
the Board's Armour-Globe election procedures 7 to
determine whether they wished to abandon their
nonunion status in favor of UAW representation. A
majority of the setup men voted in favor of such
representation thereby indicating, according to the
Board's Notice of Election, a desire "to be included
in the existing production and maintenance unit
As a result of the election, the Board thereafter
issued a Certification of Results which certified that
the Union "may bargain" for the setup men "as part
of the group of employees which it currently
represents" (i.e., the production and maintenance
employees). Thereafter, Respondent informed the
Union that as a result of the Board's action, it
deemed the setup men to be "covered exclusively by
the existing Labor Agreement with respect to their
wages, hours, rates of pay and other conditions of
employment." Accordingly, Respondent advised that
it would implement the contract terms with respect
to the setup men as of a certain date, subject to
postimplementation bargaining on matters unique to
such employees.
The Union disagreed with Respondent's position,
contending that the setup men were entitled to "fresh
bargaining" with regard to all of their working
conditions, and that until such time as complete
agreement could be reached they were entitled to a'
continuation of their preelection benefits.
On June 1, 1971, Respondent applied the existing
contract to the setup men with the result that certain
benefits which they had formerly enjoyed were
replaced by new benefits contained in the contract.
Five postimplementation bargaining sessions failed
to resolve the deadlock created by Union insistence
on the one hand that preelection benefits be restored
and Respondent's insistence , on the other hand, that
the setup men were automatically covered by the
existing contract and their benefits derived exclusive-
ly therefrom. Following adjournment of the fifth
meeting without an agreement, the Union filed the
instant charges. We cannot agree that Respondent's
conduct violated Section 8(a)(5) of the Act.
In the April Armour-Globe election , a majority of
Respondent's setup men elected to abandon more
than 30 years of unrepresented status in favor of
union representation. Their vote, however, reflected
more than a desire for union representation in
general; it reflected, in addition, a desire for
representation by a specific union in a specific
preexisting bargaining unit. These twin desires were
and are clearly preserved in the Board's Certification
of Results issued after the election wherein the UAW
is certified to represent the setup men "as part of" the
existing production and maintenance unit. UAW
representation of the production and maintenance
employees, in turn, is reflected in the benefits and
working conditions which it has negotiated and
incorporated into the production and maintenance
contracts. It follows, therefore, that if the setup men
are to be represented "as part of" the production and
maintenance employees, their benefits and working
7 Globe Machine & Stamping Co, 3 NLRB 294, Armour and Company,
119 NLRB 623 ; NLRB Field Manual, sec 110902c(l)
FEDERAL-MOGUL CORP.
conditions should likewise be derived exclusively
from the production and maintenance contracts.
The majority argues that such a result would
contravene the dictates of the U.S. Supreme Court,
as enunciated in H. K Porter Co., Inc. v. N.L.R.B.,
397 U.S. 99, because the effect would be to compel
"both parties. to agree to specific contractual provi-
sions...." Such an argument fails to take into
account the fundamental differences between a
regular Board election and an Armour-Globe election,
and the different bargaining obligations which flow
therefrom.
The purpose of a Board election conducted
pursuant to the filing of an RC petition is to
determine which union, if any, shall be certified to
represent the employees in an appropriate unit. In a
pure Armour-Globe election such as the one run here,
on the other hand, the question of which union will
be the certified representative in the preexisting unit
has already been determined-it will always be the
incumbent union-and the only purpose of the
election is to determine whether a fringe group of
unrepresented employees desires to share in the
representation provided by that incumbent union.
NLRB Field Manual, Section 11090.2 c(1). Accord-
ingly, when a majority of the voting fringe employees
vote in favor of such representation, a Certification
of Results rather than a Certification of Representa-
tive is issued by the Boards It is evident that a
Certification of Representative would be meaningless
following an Armour-Globe election because the issue
at stake is not who the representative shall be, but
precisely who shall be represented.
Given the above-described differences between a
regular Board election and an Armour-Globe election,
it must be recognized that different bargaining
obligations flow therefrom, and it is on this basis that
the Porter case must be distinguished. Following a
regular election in which the union is victorious, a
certification of representative is issued and the
employer is thereafter obligated to bargain with that
representative in a good-faith effort to reach a
collective-bargaining agreement covering the unit
employees. Following an Armour-Globe election in
which the fringe employees vote to join the preexist-
ing unit, on the other hand, the parties have already
discharged their duty to bargain, at least with regard
to contract provisions which are unitwide in scope
and which therefore apply equally to all unit
members. With respect to such provisions, the
incumbent union and the employer have already
8 NLRB Field Manual. supra We note that in the instant case, a
certification of representative erroneously issued on May 7, 1971, was
withdrawn and replaced 4 days later by a proper certification of results.
9 Under well-established precedent the Board would have conducted an
election in a separate residual unit of setup men if the Union had sought to
347
bargained in good faith, have already agreed to
specific terms, and have already incorporated those
terms into an executed contract covering each and
every employee in the unit. In short, with regard to
these provisions, no duty to bargain remains at the
time of the election.
The majority decision requires bargaining for the
setup men in a separate and distinct unit and only
"when it comes time to negotiate a new contract, the
Union and the Employer must bargain for a single
contract to cover the entire unit, including the setup
men." Thus, the majority would treat the setup men
as a separate unit for a period of time and thereafter
as a part of the existing bargaining unit. This concept
of double certification is not reconcilable with the
certification that issued in the election case .9 If the
majority believe that the setup men are not covered
by the production and maintenance contract, as
required by our certification and as voted by the
employees, in future cases the Board should not
entertain petitions or conduct Armour-Globe elec-
tions unless timely under established contract bar
rules with respect to the termination date of the
production and maintenance contract. We perceive
this to be the only way to avoid the majority's
concept of double certification.
Under our Armour-Globe certification, we believe
that the Employer had a limited postelection duty to
bargain on matters not covered by the existing
contract and which were of unique concern to the
setup men. The Employer could lawfully implement
the unitwide provisions of the contract with respect
to the setup men including changes in preelection
benefits in conflict therewith. As to those items
which were the unique concern of the setup men,
Respondent stood willing to bargain and did, in fact,
bargain.
Our position is supported by the Board's recent
decision in Lubbock Typographical Union No. 888,
International Typographical Union, AFL-CIO (The
Avalanche Journal Publishing Company), 196 NLRB
177, wherein Members Fanning and Jenkins joined
Member Kennedy in adopting, without comment, a
Trial Examiner's decision rejecting arguments similar
to those of the Union in the instant case. There, the
incumbent union had a collective-bargaining con-
tract covering the employer's composing room
employees. The employer's proofreaders voted in a
mid-term Globe election to be included in the
composing room unit and the union, as here, was
certified to represent them "as part of" the existing
represent them on that basis . But the Union sought to represent the setup
men as a part of the production and maintenance unit. The Union cannot
now be heard to complain of the Employer's treating them as a part of the
production and maintenance unit.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit. Following certification, the union insisted that
its existing contract automatically covered then
newly added proofreaders; the employer, on the
other hand, insisted on bargaining and reaching a
separate agreement. Thereafter, the employer filed
an 8(b)(3) charge. Although the Trial Examiner
recommended that the complaint be dismissed on the
basis of a factual finding that the company had never
actually requested the union to bargain, he neverthe-
less first discussed 10 the effect of separate bargaining
for the Globed employees in the following terms
which the panel adopted without comment:
The Union advanced the position that . . . the
proofreaders automatically were covered by the
existing composing room contract. . . . The
Company . . . insisted that it would negotiate
only for a separate and independent agreement
covering the proofreaders. This raises the interest-
ing question of whether the Company thereby, in
effect, was proposing to sever the proofreaders
from the composing room unit, and by a
negotiating tactic annul the Board's Decision and
Certification . . . which had added the proofread-
ers to the . . . composing room unit... .
General Counsel has not been able to explain to
my satisfaction how the Union "may bargain for
the [proofreaders] as part of the group of
employees [composing room] which it currently
represents" and yet engage in negotiations for the
proofreaders separate and apart from the balance
of the unit and enter into a separate and
independent contract covenng only the proof-
readers.
In Lubbock the Trial Examiner also noted (in his fn.
8) that none of the parties contended that after the
expiration of the then-current agreement it would be
possible to insist on negotiating separate successor
agreements for the proofreaders and the rest of the
composing unit. He concluded that "Such position
would violate the certification . . . ." The same
rationale is applicable to the instant case.
Accordingly, we find that neither the Respondent's
postcertification application of the current pro-
duction and maintenance contract to the setup
employees, nor its simultaneous withdrawal of
inconsistent preelection benefits, violated Section
8(a)(5) of the Act.ii Accordingly, we would dismiss
the complaint in its entirety.
10 Lubbock, supra, 179
11 We are also of the opinion that the record does not support the
majority's conclusion that Respondent violated Sec 8(a)(5) by maintaining
a fixed and unalterable position throughout the five postimplementation
bargaining sessions The Respondent was obligated to bargain with respect
to only those subjects unique to the setup men The record discloses that the
Respondent met with the Union, considered its proposals , issued counter-
proposals , and tentatively accepted certain union demands
DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH , Administrative Law Judge: For more
than 30 years the above-named Union, together with one
of its locals , has been the exclusive bargaining representa-
tive of a unit in Respondent's two Detroit plants consisting
of all of its production and maintenance employees (P&M)
except for certain named excluded groups of employees.
As here pertinent, one of the excluded groups were the
setup men employed at the two plants. They were
unrepresented salaried employees.
On April 29, 1971, a majority of the set-up men in the
two plants voted in a Board -conducted election "to be
represented for purposes of collective bargaining" by the
same Union and thereby, in accordance with the preamble
of the "Notice of Election," indicated "their desire to be
included in the existing production and maintenance unit,
currently represented" by the Union.
As a result of the election , the Board on May 11, 1971,
under a corrected certification , certified that the Union
"may bargain" for the setup men "as part of the group of
employees [P&M ] which it currently represents." The
agreed result of the corrected certification was to make the
setup men part of the preexisting unit of the P&M
employees and to certify the Union as the collective-
bargaining representative of the setup employees , with the
consequence that the Union was now authorized to
represent the setup employees in addition to the P&M
employees it already represented under the current
collective-bargaining agreement.
On June 1, 1971, the Company unilaterally and against
the Union's protest extended the subsisting collective-
bargaining agreement it had with the Union for its P&M
employees, to its setup employees . As a consequence of this
unilateral action , the Company divested the setup employ-
ees of certain valuable preexisting benefits and placed
them under other valuable benefits the P&M employees
have under their contract as well as certain disadvantages.
The above action was taken by the Company pursuant to
advance notice in a letter dated May 12, 1971, to the
Union. In the letter the Respondent notified the Union
that as a result of the election, it deemed the setup
employees as "now covered exclusively by the existing
Labor Agreement [for P&M employees ] with respect to
their wages , hours, rates of pay and other conditions of
employment."
The Union on May 18, 1971, replied that it did not agree
with the Company' s assumption that the setup men "are
now covered" by the P&M contract and put the Company
on notice of its position "that arrangements are to be made
mutually to bargain collectively" in behalf of the setup
employees with respect to their wages , hours, rates of pay,
and other conditions of employment. In line with its
request for collective bargaining on these matters, the
Union further requested the Company to "refrain from the
matters of implementation detailed in your letter of May
12 until collective bargaining relative to the jobsetters
[setup employees] has been concluded."
The Company by reply dated May 25, 1971, reiterated its
position that "the job setters passed into the existing
FEDERAL-MOGUL CORP.
production and maintenance unit" from the date of the
Board's certification of the Union on May 7, 1971, as the
setup employees' exclusive bargaining representative and
declined to refrain from implementing as of June 1, 1971,
"those aspects of the present [P&M] collective bargaining
agreement" as set forth in its earlier letter of May 12, 1971.
However, the Company offered "to bargain with the
Union as to all of these matters" after its implementation
of June 1, 1971.
The implementation as noted above took place on June
1, 1971, with resulting changes in the benefits of the setup
employees, some detrimental and some beneficial com-
pared with the benefits they had prior to the certification of
the Union as their exclusive bargaining representative.
Thereafter at the Union's request a series of five
meetings were held between the Union and the Company,
concluding on September 15, 1971, for the purpose of
bargaining concerning the terms and conditions of employ-
ment of the recently certified group of setup employees. At
these meetings the Company never receded from its
original position that as a result of the certification and the
inclusion of the setup men in the long standing P&M unit,
the setup employees became automatically covered by the
preexisting collective-bargaining agreement the Company
had with its P&M employees. Similarly, the Union never
receded from its position that the certification did not
automatically put the set-up men under the P&M contract
and that the Company could not take away from the setup
employees any of the benefits they had prior to the
certification without bargaining and agreement thereon.
Failing to reach agreement on these conflicting positions,
the Union after the fifth and final meeting filed unfair
labor practice charges against the Respondent which
eventually resulted in the issuance of the complaint herein.
Under the above-admitted basic but skeletonized facts,
the issue under the pleadings may be stated as follows: The
setup employees having agreed to be included in the P&M
unit and having elected to be represented by the same
Union that represents the P&M unit, the question is
whether under such circumstances the Respondent's
unilateral application of its P&M collective-bargaining
agreement to its setup employees with notice but without
bargaining and against the Union's protests, with resulting
cancellation and withdrawal of preexisting benefits, consti-
tutes a refusal to bargain in good faith in violation of
Section 8(a)(1) and (5) of the National Labor Relations
Act?
The complaint herein was issued on May 5, 1972,
pursuant to a charge filed on November 10, 1971, and duly
served upon the Respondent. Respondent's answer denies
the alleged unfair labor practices.
I The issue as framed above is based on the allegations of par. 13 of the
complaint and Respondent's answer thereto . The key phrase in par. 13 is
that the Respondent "has refused to bargain in good faith" with the Union
Counsel in their respective briefs see multiple issues in the case but
essentially the issues they set forth in their briefs are embraced in the
unitary issue stated above. More bluntly, the Respondent sees the central
issue as, "Did the Respondent, by unilaterally implementing coverage of the
setup men by the P&M Unit collective-bargaining agreement, violate the
law?" More explicitly, General Counsel sees the central issue as follows.
349
The case was heard on July 10 and 12, 1972, at Detroit,
Michigan? Briefs filed by counsel on August 22, 1972,
have been carefully reviewed and considered.
For reasons hereinafter indicated, the Respondent is
found in violation of the Act as alleged in the complaint.
Upon the entire record in the case and from my
observations of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent, a Michigan corporation , maintains offices
and places of business at 3040 Hart Avenue and 11031
Shoemaker Avenue in Detroit, Michigan, herein called the
Hart Avenue and Shoemaker plants, or collectively, the
Detroit, Michigan, plants. At all times here material, the
Respondent has been engaged at the two Detroit plants in
the manufacture, sale, and distribution of roller bearings
and related products. The two indicated plants are the only
facilities involved in this proceeding. During the past year
which is representative, the Company manufactured, sold,
and distributed at its Detroit plants products valued in
excess of $500,000, of which products valued in excess of
$50,000 were shipped from said plants directly to points
located outside of the State of Michigan. Similarly, during
the past representative year the Company purchased and
caused to be transported and delivered at its Detroit plants
steel and other goods and materials valued in excess of
$100,000, of which goods and materials valued in excess of
$50,000 were transported and delivered to its plants in
Detroit directly from points located outside the State of
Michigan. By reason of these admitted facts, I find that the
Respondent is an employer engaged in commerce'within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Company at all times here material employed a total
of approximately 2,000 P&M employees and some 145
machinery setup employees at its two Detroit plants which
are operated around the clock in three shifts. Historically,
the P&M employees have been hourly rated, timeclock
employees. Historically, the setup men have been salaried
employees, not required to use a timeclock. The P&M
employees for many years have been represented by the
International Union and its Local 681. The setup employ-
ees up until 1971 were both unrepresented and specifically
and expressly excluded from the P&M unit contract.
On April 29, 1971, the heretofore excluded setup men
"Whether the existence of a contract covering a unit of Production and
Maintenance employees , relieved the Respondent of its bargaining
obligation with respect to a new group of employees who were being added
to this Production and Maintenance unit pursuant to the Board's Armour-
Globe election procedure "
2 The unopposed motion of General Counsel, filed simultaneously with
his brief, to correct three obvious errors in the transcript of testimony is
granted.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voted in a Board -conducted election by a majority vote to
be included in the existing P&M unit and to be represented
by the same Union that represents the P&M employees.
As a result of the election the Board on May 11 , 1971, in
a corrected certification , certified that the International
Union "may bargain for the employees in the above-
named category [setup men in the two Detroit plants] as
part of the group employees [P&M] which it currently
represents."
In the preelection campaign the Company opposed the
efforts of the Union to organize the setup men by letters
and speeches by its industrial relations manager, J. E.
Steinhelper . Just prior to the election Steinhelper held
about 10 meetings with small groups of setup employees to
cover all such men working in the three shifts. At these
meetings , Steinhelper told the setup men that if they voted
for union representation there "was a possibility benefits
could be changed and they might lose some of their
benefits."
But Steinhelper admits that he did not tell the setup men
at these meetings that if they voted to be represented by the
Union that they would automatically come under the
coverage of the P&M unit contract , or that the Company
intended to terminate the benefits they currently enjoyed
as salaried employees if they voted for the Union , or that
the Company even planned to exchange the benefits they
currently received as salaried employees for the benefits
the P&M employees receive if they voted for the Union.
The Union also held preelection meetings with the setup
men. At one of these meetings the setup men raised the
question whether they would lose their salaried position if
they voted for the Union. The union organizer in charge of
the meeting advised them that "under the law they could
not lose any of their current benefits, as far as them
automatically being taken away ." (Emphasis supplied.)
After the election the Company for the first time by
letter dated May 12 , 1971, notified the Union that as a
result of the Board 's certification of the Union as the
exclusive bargaining agent for the setup men , the Company
deemed the setup men as "now covered exclusively" by the
existing P&M unit contract3 and that it would take steps to
implement the provisions of the P&M contract to the setup
employees as of June 1, 1971. The Company admits that its
original decision to extend the P&M contract to the setup
employees was based "solely" on its belief that as a result
of the certification , the setup men "are covered exclusively
by the existing agreement with respect to hours, rates of
pay and other conditions of employment."
But at the trial herein, the Company for the first time
advanced a new and second ground as a further justifica-
tion for its unilateral decision to extend the P&M unit
collective-bargaining agreement to the setup men. As a
second defense for applying the current P&M unit contract
to the setup men , the Company relies on the contents of
one of the paragraphs of the P&M Unit agreement
although the contract itself specifically excludes the setup
employees from its application to them . The paragraph of
the P&M agreement relied on by the Company reads as
follows:
180. When new hourly rated classifications are
established , the Union will be advised as to the
temporary hourly rate to be paid . The Union may then
initiate negotiations on the rate to be paid by written
notice to the Company at any time within the first
thirty (30) days after an employee has been assigned to
and worked in the classification.
In support of this second defense , the Respondent cites
the Board 's decision in Vickers, Incorporated 153 NLRB
561 (1964). In the Vickers case, the Board adopted the Trial
Examiner's decision therein without discussion. The
Vickers case also involved ( 1) excluded employees who
voted to be included into the larger P&M unit and (2) an
existing P&M collective-bargaining agreement with a
clause or paragraph substantially the same as the para-
graph quoted above from the P&M unit contract involved
in the instant case . In Vickers the Trial Examiner held,
"Under all circumstances , I find that Respondent's
unilateral changes in the status of the schedulers and
expediters [the excluded employees who voted to be
included into the P&M unit] from salaried employees to
hourly paid employees did not constitute an unlawful
refusal to bargain with the Union ." In the discussion below
it will be shown that the "all the circumstances" in the
Vickers case were radically different than they are in the
present case.
The Union by letter dated May 18 , 1971, put the
Company on notice that it was in complete disagreement
with the Company 's position that the setup men as the
result of the certification were now covered exclusively by
the existing P&M unit collective -bargaining agreement and
stated its position to be that all matters pertaining to the
setup employees' wages, hours , rates of pay , and other
conditions of employment were subject to collective
bargaining . The Union also requested that the Company
"refrain from the matters of implementation detailed" in
the Company's letter "until collective bargaining relative to
the jobsetters has been concluded."
Notwithstanding the Union 's protest and request for
bargaining prior to any changes in the existing working
conditions of the setup men , the Company on June 1, 1971,
by its own admitted unilateral action implemented its prior
announced decision to place the setup employees under the
P&M unit contract by applying a number of the provisions
of the P&M contract to them . This resulted in depriving
the setup men, without bargaining , of numerous benefits
they had prior to the Union 's certification as their exclusive
bargaining representative . The following are some of the
benefits the setup employees lost by reason of the
Company's unilateral action:
1. Loss of salary status, which the setup personnel
wished to retain , by the Company's action of converting
them into hourly paid employees. (However, it is noted
that the conversation gave the setup employees precisely
the same take-home pay as hourly paid employees as they
had had as salaried employees prior to the certification.)
2. Loss of their prior right as salaried employees to
S The current P&M unit contract commenced on March 1, 1971, and
continues in effect through March 1, 1974
FEDERAL-MOGUL CORP.
check in and out of work on an honor card system by the
Company's action in requiring them to use a timeclock.
3. Loss of 4 days' sick leave they had as salaried
employees.
4. Loss of casual absence leave unrelated to sick leave
they had as salaried employees.
5. Reduction of bereavement leave from 5 days to 3
days.
6. Reduction of life insurance benefits from a maxi-
mum of about $30,000 to $11 ,000 in some areas.
7. Loss of investment plan for purchase of Company
stock.
8. Loss of marriage leave and leave for illness in the
immediate family.
9. Loss of major medical benefits by substitution of less
medical benefits provided for in P&M Unit contract.
10. Loss of assigned parking space.
The Company 's unilateral application of the P&M Unit
contract to the setup men also had the affect of giving them
without request or bargaining certain benefits they did not
have as salaried employees prior to their unionization.
Among such benefits are the following:
1. Grievance and arbitration procedures.
2. Job transfer rights and shift preferences within the
plant.
3. Right to bid for posted openings.
4. Supplemental unemployment benefits.
5. Improved accident and sickness insurance benefits.
6. Extended disability benefits.
7. Prescription drug benefits.
8. Blue Cross and Blue Shield coverage.
9. Combined UAW and company retirement benefits.
10. Paid up life insurance policies to retirees.
As heretofore noted, at the time the Company extended
the P&M unit agreement to the setup men, it took such
action solely because of its belief that the setup employees
became exclusively covered by the existing P&M contract
by the event of the Union's certification as their bargaining
representative.
It was only after the Company, against the Union's
protest, had taken its unilateral action of extending the
P&M unit contract to the setup men, that bargaining at the
Union's request began between the Company and the
Union on the future status of the setup employees. There
were five such bargaining meetings in all, commencing on
June 29 and concluding on September 15, 1971. It is only
on the basis of these postevent4 bargaining sessions with
the Union that the Respondent claims good faith bargain-
ing with the Union on the future status of the setup
employees under the Union's certification.
The first two or three meetings were rather exploratory in
nature, but from the first through the last meeting the
Union requested the restoration of the benefits the setup
men enjoyed prior to unionization and the Respondent
would not budge from its original position that the setup
men became automatically covered by the existing P&M
unit collective-bargaining agreement as a consequence of
351
the Union 's certification and accordingly no longer
entitled to the benefits they had prior to their unionization.
The first meeting was held on June 29, 1971 . About the
only positive thing to come out of that meeting was a
tentative agreement between the parties that the setup men
would be temporarily represented by the P&M steward in
the area in which they worked for the processing of
grievances . From the date of that meeting until the date of
trial herein about a year later , the setup men, under this
temporary agreement, have filed more than 100 grievances,
but more than half of these were complaints about the loss
of the benefits they had enjoyed prior to their unionization.
The second meeting was held on August 25, 1971. At this
meeting the Company furnished to the Union, pursuant to
its prior request , a written summary of the items that the
setup men had enjoyed as salaried employees prior to the
Company's unilateral act of placing them under the P&M
unit collective-bargaining contract . Each item was dis-
cussed but the meeting ended in a stalemate on the
Company's refusal to restore these preunionization bene-
fits. However , the parties agreed to meet again.
The third meeting was held on August 31, 1971. The
Union at that meeting presented its written contractual
'demands to the Company consisting of 30 separate items.
Some of these items asked for provisions that were in the
current P&M Unit contract, but for the most part called
for the restoration of the benefits the setup men had prior
to unionization . The items were discussed point by point
but no agreement was reached . The meeting was adjourned
to give the Company further opportunity to study the
Union's demands and prepare a response.
The fourth meeting was held on September 10, 1971. At
this meeting the parties resumed their discussion of the
Union's contractual demands, but were unable to reach
agreement. Again the controversy was chiefly over the
Union's demand for the restoration of the set-up men's
preunionization benefits. The Company through Steinhel-
per as its spokesman reiterated its position that the setup
men should fall under the P&M Unit contract and the
Union again rejected that position.
The fifth and final meeting took place on September 15,
1971. At this meeting the Respondent presented a written
response to the Union 's itemized contract demands. The
Respondent's opening response was that, "The Company
deems that as a result of this certification, these employees
[setup men ] are now covered exclusively by the existing
labor agreement [the P&M Unit contract ] with respect to
their wages, hours, rates of pay and other conditions of
employment." In line with this position the Company
agreed only to the nine items in the Union 's demands
which corresponded with the language in certain para-
graphs of the P&M unit contract and rejected all demands
for the restoration of preunionization benefits and all other
demands unrelated to the provisions of the P&M Unit
contract.
In the credited and undisputed words of James Sawyer,
president of Local 681 , the last thing that happened at the
final meeting of September 15 was that International
Union Spokesman Gordon Buchanan, "asked Mr. Stein-
4 That is, bargaining sessions that took place after the fact of the
Company's unilateral extension of the P&M unit contract to the setup men.
k
DECISIONS OF NATIONAL LABOR RELATIONS BOARD352
helper [company spokesman ] . . . to change his position
about the setup men coming under the current [P&M unit]
agreement." Steinhelper as at previous meetings declined
the request, Buchanan thereupon informed Steinhelper
that the Union would turn the issue over to its legal
department and the meeting broke up.
Steinhelper, as Respondent's spokesman at all the
meetings, admits that the Union at no time made a
conscious waiver of the benefits the setup men enjoyed as
salaried employees prior to their unionization. The record
shows that the Union at all times asserted that the setup
employees' preunionization benefits could not be cancelled
and withdrawn without bargaining and agreement thereon.
Discussion and Conclusions
As heretofore noted the Board on May 11, 1971, certified
the Union following a Board-conducted election. The
election was held under well established Globe-Armour
procedures. Globe Machine & Stamping Co., 3 NLRB 294;
Armour & Company, 5 NLRB 535; United States Gypsum
Company, 107 NLRB 122. In the election the Respondent's
salaried and unrepresented setup employees indicated their
desire to be "Globed" in, that is, to become a part of
Respondent's production and maintenance unit and voted
to be represented by the Union which also represented the
production and maintenance employees. The Board in its
certification, as corrected, certified that the Union "may
bargain" for the setup employees "as part of" the
production and maintenance unit currently represented by
the Union.
Based upon the Board's certification, the Respondent
defends and contends, as a matter of law, that its setup
employees as of the date of the certification became
automatically covered by the terms and conditions of the
existing production and maintenance collective-bargaining
agreement although the setup men are not a party thereto;
and from this premise justifies as lawful its admitted
unilateral cancellation and withdrawal of the benefits the
setup men enjoyed prior to their unionization. Thus in
Respondent's answer to the complaint's allegation that it
had "engaged in bad faith bargaining in that it maintained
a fixed and unalterable position throughout that the `setup
men' were automatically covered in all respects by the
[P&M unit] contract," Respondent pleads that it, "Admits
that it has maintained its position that, as a matter of law,
the setup men are now subject to the provisions of the
production and maintenance collective-bargaining agree-
ment. It has maintained this position because of its
conviction as to what the law requires of it and under no
circumstances should this in and of itself be deemed a
violation of Section 8(a)(5) of the Act."
As shown above Respondent's original decision to
extend its P&M unit agreement to its setup employees was
based "solely" upon its belief that "as a result of this
certification these employees are covered exclusively by the
existing labor agreement with respect to hours, rates of pay
and other conditions of employment." Conversely, this
original belief and conduct pursuant thereto was not based
on any of the provisions of the P&M Unit contract
although Respondent now also relies on the contract as
justification for its conduct as will be shown below.
Respondent's position that the Board's certification by
itself compelled it as a matter of law to apply its P&M unit
contract to its setup employees cannot be justified by the
language of the certification itself. This is obvious from the
literal language of the certification which reads:
IT IS HEREBY CERTIFIED that the said organization
[Union) may bargain for the employees in the above-
named category [all setup men employed by the
Employer at its Hart Avenue and Shoemaker Avenue
Plants] as part of the group of employees [P&M] which
it currently represents.
No authority has been cited to support Respondent's
contention that the mere decision of a small unrepresented
group of employees to become part of a larger represented
group of employees has the affect of putting the small
group of employees under the collective-bargaining agree-
ment of the larger group. On the contrary, Board decisions
show that when such an enlargement of an existing unit
takes place, the Union has the right to bargain separately
for the newly allied group of employees as part of the
larger unit. Thus the Board in Bingham-Herbrand Corpora-
tion, 97 NLRB 65, 67, held that, "If a majority of the
employees voting cast ballots for the Petitioner [the
Union], they will be taken to have indicated their desires to
be part of the production and maintenance unit, and the
Petitioner may bargain for them as part of the existing unit. "
(Emphasis supplied.) See also to same affect, Martin Parry
Corporation, 95 NLRB 1506, 1508.
As the Board's certification by its very terms gives the
Union a clear and unqualified right to bargain for the
setup employees as part of the larger P&M unit, it
necessarily follows and is found that the certification per
se, as claimed, did not give the Respondent the unilateral
right to extend the existing P&M contract to its set-up
employees as this would be inconsistent with the Union's
officially authorized right to bargain for the setup
employees.
Insofar as the Respondent seeks justification for its
refusal to bargain with the Union over the restoration of
the setup employees' preunionization benefits solely on the
basis of the Board's certification, I find that the Respon-
dent's refusal to bargain with the Union on that matter
constitutes a refusal to bargain in good faith with the
Union in violation of Section 8(a)(1) and (5) of the Act.
Respondent's second defense-asserted for the first time
at the trial-for its unilateral application of the P&M unit
contract to its setup employees, is that such application
was authorized by the above-quoted paragraph 180 of the
P&M unit contract itself under the precedent of a Board
decision in Vickers, Incorporated, supra. This defense now
appears from Respondent's brief to be its chief defense.
The Vickers case also involved a Globe-type election where
FEDERAL-MOGUL CORP.
unrepresented employees chose to become a part of the
employer's large organized P&M unit and voted to be
represented by the same union as represented the P&M
unit. As conceded by counsel for General Counsel, the
P&M contract in Vickers contained a clause, paragraph
162,5 essentially the same in meaning as paragraph 180 of
the agreement in the present case.
As heretofore noted, in Vickers the Trial Examiner held
that, "Under all the circumstances, I find that Respondent's
unilateral changes in the status of the schedulers and
expediters from salaried employees to hourly paid employ-
ees did not constitute an unlawful refusal to bargain with
the Union." (Emphasis supplied.)
Any reading of "all the circumstances" in the Vickers
case shows they were factually essentially different and far
more complex than the circumstances in the instant case.
In Vickers one of the circumstances that the Trial
Examiner based his decision on was the presence of
paragraph 162 (as set forth in fn. 5) in the subsisting P&M
unit contract in that case. Paragraph 162 in Vickers and
paragraph 180 of the contract in the instant case provide,
essentially, that the employer may establish a temporary
rate job for new classifications of employees in the P&M
unit. All postelection factual resemblances between Vickers
and the present case begin and end with that single
resemblance.
It is evident from the Examiner's decision in the Vickers
that the Trial Examiner was searching for the intent of the
union and the company on the question of whether they
had mutually agreed that the existing P&M unit agreement
was to be made applicable to the newly added employees
to the unit. In the Vickers case there is abundant evidence
that the "Globed" employees desired and intended to be
placed under the existing P&M unit contract. After the
"Globe" election in Vickers the company immediately
notified the union in writing that it was establishing a
temporary hourly rate for the newly "Globed" employees
pursuant to paragraph 162 of the existing contract. Then
followed a most significant step or fact not present in the
instant case. After the receipt of the notice and before the
union in Vickers filed its charges, both the union and the
company agreed to change the recognition clause in the
existing collective-bargaining P&M agreement to add the
newly "Globed" employees to the contractual unit of "hourly
paid production and maintenance employees." This in
Vickers is the clearest evidence of intent by the union as
agents for the newly added employees that the existing
P&M unit collective-bargaining agreement was to be made
applicable to them. By contrast, in the present case the
Company never at any time notified the Union in writing
or orally that they were relying on any contractual clause
in the existing P&M unit contract for its authority to
extend the P&M unit contract to its setup employees. Such
reliance or defense in the instant case was at most an
afterthought first brought up at the teal. Similarly in the
instant case neither the Company or the Union ever
suggested changing the recognition clause to include
In Vickers the comparable contractual clause under paragraph 162
reads as follows "When the Company establishes and places in use a new
job classification or makes a revision of an existing classification that
materially affects the applied skills and responsibilities of the operator, a
353
recognition of the setup men as "hourly rated employees."
Thus the recognition clause in the instant case stands
unaltered with the setup men expressly excluded from the
P&M unit collective-bargaining agreement . The record
herein moreover shows that the setup men through their
Union not only never agreed to the Company's conversion
of their salary status to that of hourly rated employees but
that they have always, on the contrary, demanded the
restoration of the salary status and benefits they enjoyed
prior to the certification of the Union as their exclusive
bargaining representative.
Only one other indication in Vickers of the intent of the
"Globed" employees to be placed under the existing P&M
unit collective-bargaining agreement need be noted. At the
time of the "Globing" in Vickers the agreement was
expiring and up for renegotiation. At the suggestion of the
employer in Vickers the union agreed that "any disagree-
ment concerning the schedulers [one of the two groups of
"Globed" employees] be discussed as part of the general
negotiations in progress." This is another clear indication
of the intent of the "Globed" employees in Vickers through
their union to forego their former status and benefits as
salaried employees in favor of general negotiations for all
employees in the unit, including themselves. Nothing of
this sort occurred in the instant case.
In summary I find and conclude that Respondent never
at any time in its postcertification negotiations with the
Union on the then status of the setup men relied on
paragraph 180 of the existing collective-bargaining agree-
ment for its authority to extend that agreement to its setup
employees. I further find and conclude that paragraph 180,
standing alone as it does without any supporting evidence
of intent by the setup men to go along with that clause, did
not give the Respondent the authority to impose the
existing contract on its setup employees with resulting loss
of their prior benefits and status as salaried employees.
The fact that the setup men became the beneficiaries of
some new benefits as heretofore outlined under Respon-
dent's unilateral imposition on them of the existing P&M
unit contract cannot legitimatize or make more palatable
the fact that in doing so the Respondent took from them
without their consent and against their opposition certain
valuable benefits they enjoyed before they voted to have
the Union represent them. The fact is that they were not
consulted in this swap of new benefits for their existing
benefits. The new benefits were admittedly thrust upon the
setup men without opportunity or power to disavow by
Respondent's unilateral and opposed extension of the
existing contract to them. The use by the setup men of the
contract's grievance procedures cannot be deemed an
implied agreement to come under the existing P&M
agreement for the use of such grievance procedure is the
normal concomitant of union representation. By virtue of
the certification, the Union would have had the right to
present grievances in behalf of the setup men, even if the
existing P&M unit agreement had no grievance clauses in
it. It is especially noteworthy that the majority of the
temporary rate shall be established by the Company and written notice of
the rate and job classification will be furnished to the Local President."
Compare with par 180, supra
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievances filed by the setup men were complaints about
the prior benefits the Company had taken away from them
after they became unionized.
Respondent's final argument or defense is perhaps best
stated by a quotation from its brief, towit: "It is
Respondent's position that the terms of the existing P&M
unit agreement were applicable in every way, except the
law requires immediate good faith bargaining as to the
newly included members of the unit."
Respondent's contention "that the terms of the existing
P&M unit contract agreement was applicable in every
way" is based on its interpretation of the Trial Examiner's
decision in the Vickers case . But as shown above the Trial
Examiner's decision in that case was based in his own
words on "all the circumstances" in that matter, only one
of which is present in this case , namely , the essential
similarity of paragraph 180 of the collective-bargaining
agreement in the instant matter with paragraph 162 of the
agreement in the Vickers case . As noted above, that
circumstance is not of itself sufficient to bring the present
case under the precedent of Vickers, either under the
language of the Board's certification of the Union or under
the existing collective -bargaining agreement inasmuch as
the agreement expressly excludes the setup employees from
its operation Moreover, unlike the situation in Vickers, the
Respondent herein in its postcertification negotiations with
the Union on the status of the setup employees never once
indicated that it was relying on paragraph 180 of the
existing agreement for its authority to unilaterally apply
that agreement to the setup employees.
But even if Respondent's full premise is accepted "that
the terms of the existing P&M unit agreement were
applicable in every way, except the law requires immediate
good faith bargaining as to the newly included members of
the unit," Respondent's defense thereunder is not sustained
because the record fails to show any good-faith bargaining
by the Respondent on the status of the newly included
setup men in the P&M unit. On the contrary, the record
unmistakingly shows bad-faith bargaining by Respondent
because in the five postcertification negotiation meetings
with the Union on the status of the setup men, the
Company never once receded from the fait accompli of its
unilateral application of the existing P&M unit agreement
to its setup employees. At such meetings the Company
refused to enter into any bargaining on any of the Union's
demands for the restoration of the setup employees'
preunionization benefits because of its unyielding position
that the certification per se gave it the right to apply the
existing P&M unit contract to the setup men with
consequent automatic loss of their precertification benefits.
Thus of the 30 contract demands the Union made, the
Company agreed only to those 9 of such demands which
comported with parallel clauses of the existing P&M unit
agreement. All other contractual demands unrelated to the
agreement were rejected.
In summary, based on all the facts and circumstances of
record, I find and conclude that Respondent has at all
times refused to bargain in good faith with the Union as
the exclusive collective-bargaining representative of its
setup employees in accordance with the Board's certifica-
tion of the Union, as alleged in the complaint.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Federal-Mogul Corporation, Bow-
er Roller Bearing Division , is now and has been at all times
material herein an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW),
is and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
Federal-Mogul Corporation, Bower Roller Bearing Divi-
sion , employed at its 3040 Hart Avenue and 11031
Shoemaker Avenue, Detroit, Michigan, plants excluding
superintendents , assistant superintendents , foremen, fore-
ladies, assistant foremen , setup men (sometimes calledjob
setters), timekeepers , time study engineers , plant protection
employees, temperature equipment operators, professional
employees including chemists , metallurgists, research and
development technicians and first aid employees, followup
men, draftsmen , experimental engineers , office clerical
employees , shipping and receiving clerks, confidential
clerks and female counselors , constitute a unit appropriate
for the purpose of collective bargaining within the meaning
of Section 9(b) of the Act.
4. On April 29, 1971, a majority of the setup men
employed by the Respondent at its 3040 Hart Avenue and
11031 Shoemaker Avenue, Detroit, Michigan, plants, by
secret ballot election, designated the above -named labor
organization as their exclusive representative for purposes
of collective bargaining and by doing so indicated a desire
to be and were included in and became a part of the
appropriate unit designated above.
5. Since on or about December 6, 1941, the above-
named labor organization has been the exclusive collective-
bargaining representative of the employees in the aforesaid
appropriate unit within the meaning of Section 9(a) of the
Act and since May 7, 1971 has also been the certified
exclusive collective -bargaining representative of the setup
men who were included in and became a part of the
appropriate unit designated above.
6. By unilaterally, and without prior notice to and/or
bargaining with the above-named labor organization,
announcing that as a result of the May 7, 1971 certifica-
tion , referred to above , the setup men were covered
exclusively by the terms and conditions of employment
embodied in the current collective -bargaining agreement
then in effect between the Respondent and the above-
named labor organization and that implementation of said
contract terms to the setup men would begin effective June
1, 1971, the Respondent has refused to bargain collectively
with the above-named labor organization and has thereby
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
7. By unilaterally and without prior notice to and/or
bargaining with the above-named labor organization, and
notwithstanding the objection of the above -named labor
organization , withdrawing all benefits enjoyed by the setup
men prior to their unionization and applying to them the
FEDERAL-MOGUL CORP.
current collective-bargaining agreement then in effect
between the Respondent and the above-named labor
organization, Respondent has refused to bargain collec-
tively with the above-named labor organization, and has
thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
8. By maintaining a fixed and unalterable position
throughout the meetings between the Respondent and the
above-named labor organization, that the setup men were
automatically covered in all respects by the current
collective-bargaining agreement then in effect between the
Respondent and the above-named labor organization, and
by agreeing only to those proposals by the above-named
labor organization which were identical with the terms of
this collective-bargaining agreement, Respondent has
refused to bargain collectively with the above-named labor
organization, and has thereby engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
10. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)(l)
and (5) of the Act, I shall recommend that the Respondent
be ordered to cease and desist therefrom and from in any
other manner infringing upon its employees' Section 7
rights, and that it take certain affirmative action designed
to effectuate the policies of the Act.
As I have found that the Respondent unilaterally
changed the terms and conditions of employment of its
setup men by withdrawing the benefits and other condi-
tions of employment which they enjoyed prior to their
unionization and replacing said benefits and conditions of
employment with the existing collective-bargaining agree-
ment between Local 681, International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), and the Respondent, I shall
recommend that the Respondent be ordered to reinstate
the status quo ante as it existed for the setup men prior to
June 1, 1971, except for such postcertification unilateral
changes to which the Charging Party has acquiesced .6 I
shall also recommend that the Respondent make the setup
men whole for any losses occasioned by said unilateral
action.
Having also found that the Respondent unlawfully
6 It appears for example that the Charging Party, as could be expected,
acquiesced in the Company's invocation of the Union dues checkoff clause
of the existing agreement. In his summation at the conclusion of the
hearing, the lay representative of the Charging Party urged a status quo ante
order subject only to exceptions for such acquiescences I am of the opinion
that exceptions for such acquiescences would do away with any practical
difficulties in applying a status quo ante order.
355
refused to bargain with the above-named labor organiza-
tion as the certified representative of its setup employees, I
shall recommend that upon request it bargain collectively
and exclusively with said duly designated representative,
concerning rates of pay, wages, hours of work, and other
terms and conditions of employment.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following
recommended:
ORDER?
The Respondent, Federal-Mogul Corporation, Bower
Roller Bearing Division, Detroit, Michigan, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unilaterally applying the existing collective-bargain-
ing agreement we have with International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), and its Local 681, or
unilaterally changing the wages, rates of pay and other
conditions of employment, for employees in the unit set
forth below, who by voting to be represented have
indicated their desire to be included in the existing
production and maintenance unit currently represented by
the above-named labor organization.
All setup men employed by the Employer at its Hart
Avenue and Shoemaker Avenue plants in Detroit,
Michigan, excluding office clerical employees, profes-
sional employees, guards and supervisors as defined in
the Act and all other employees.
(b) Refusing to bargain collectively with the above-
named labor organization as the exclusive collective-
bargaining representative of the employees in the unit set
forth above.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action:
(a) Upon request, bargain collective with the above-
named labor organization, as the exclusive collective-
bargaining representative of the employees in the unit set
forth above.
(b) Reinstate the status quo ante as it existed prior to June
1, 1971, with respect to employees in the unit set forth
above, except for such changes to which the Union has
acquiesced, and make said employees whole for any losses
occasioned by our unilateral actions.
(c) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all
payroll records and reports and all other records necessary
to analyze and give effect to the status quo ante order
herein.
(d) Post at its Detroit, Michigan, Hart Avenue and
r In 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.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shoemaker Avenue plants, copies of - the attached notice
marked "Appendix."8 Copies of said notice, to be
furnished by the Regional Director for Region 7, shall,
after being duly signed by the Respondent's representative,
be posted by the 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 the Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
8 In the event that 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 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 are posting this notice to inform you of the rights
guaranteed to you by the National Labor Relations Act.
WE WILL NOT unilaterally apply the existing collec-
tive-bargaining agreement we have with Local 681,
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
(UAW) or unilaterally change the wages, rates of pay
and other conditions of employment, for employees in
the unit set forth below, who by voting to be
represented have indicated their desire to be included
in the existing production and maintenance unit
currently represented by the above-named labor
organization.
All setup men employed by the Employer at its
Hart Avenue and Shoemaker Avenue plants in
Detroit, Michigan , excluding office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act and all other
employees.
WE WILL NOT refuse to bargain collectively with the
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), as the exclusive representative of the employee
unit set forth above.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of your rights
guaranteed in Section 7 of the Act.
WE WILL upon request bargain collectively with the
above-named labor organization, as the exclusive
bargaining representative of the employees in the unit
set forth above.
WE WILL reinstate the status quo ante as it existed
prior to June 1, 1971, with respect to employees in the
unit set forth above, except for such changes to which
the above-named Union acquiesced and make said
employees whole for any loss occasioned by our
unilateral actions.
FEDERAL-MOGUL
CORPORATION, BOWER
ROLLER BEARING DIVISION
(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, 500
Book Building, 1249 Washington Boulevard, Detroit,
Michigan 48226, Telephone 313-226-3200.