General Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 591 (N.L.R.B. 1985)

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