Mack Trucks, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1989

294 N.L.R.B. 864 (N.L.R.B. 1989)

864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mack ' Trucks, Inc. and International Union , United
Automobile , Aerospace and Agricultural Imple-
ment Workers of America and Local Union No.
229. Case 22-CA-15827
June 12, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, HIGGINS, AND
DEVANEY
On October 25, 1988, the Regional Director for
Region 22 of the National Labor Relations Board
issued a complaint and notice of hearing and, on
December 6, 1988, an order dismissing complaint in
part and approving partial withdrawal of charge,
alleging that the Respondent has engaged in and is
engaging in certain unfair labor practices affecting
commerce within the meaning of Section 8(a)(1)
and (5), Section 8(d), and Section 2(6) and (7) of
the National Labor Relations Act. Subsequently,
the Respondent filed an answer, admitting in part
and denying in part the allegations of the complaint
and requesting that the complaint be dismissed in
its entirety.
Thereafter, on January 3, 1989, the General
Counsel, by counsel, filed with the Board in Wash-
ington, D.C., a Motion for Summary Judgment and
memorandum in support, with exhibits attached.
The General Counsel submits that there is no genu-
ine issue about any material fact and that summary
judgment should be granted. The General Counsel
requests that the Board find that the Respondent
has violated Section 8(a)(1) and (5) of the Act and
issue an order requiring the Respondent to cease
and desist.
On January 9, 1989, the Board issued an order
transferring the proceeding to the Board and a
Notice to Show Cause why the General Counsel's
motion should not be granted. On January 25,
1989, the Respondent filed a memorandum of law,
with exhibits attached, in opposition to the General
Counsel's Motion for Summary Judgment.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
The General Counsel alleges that the Respond-
ent about June 13, 1988, announced and unilaterally
implemented changes in the contractual wage rates
of new hires, at its Somerset, New Jersey facility,
without the consent of the Unions as the exclusive
bargaining representative of the Respondent's em-
ployees. The Respondent admits that it announced
and implemented an increase in the wage rate of
new hires without the consent of the Unions. The
Respondent, however, defends its action on
grounds of business necessity, asserting an inability
to attract new employees at the existing wage rate.
For the reasons set forth below, we grant the Gen-
eral Counsel's Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Respondent, a corporation manufacturing
heavy-duty trucks with various facilities through-
out the world, has its parts operation headquarters
at its facility in Somerset, New Jersey, the only lo-
cation involved here, where, during the 12 months
preceding issuance of the complaint, it purchased
and received products, goods, and materials valued
in excess of $50,000 directly from points outside
the State of New Jersey. The Respondent admits,
and we find that it is an employer engaged in com-
merce' within the meaning of Section .2(6) and (7)
of the Act and that the Unions are labor organiza-
tions within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Unit
The following employees of Respondent consti-
tute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act:
All office employees at Respondent's Parts Di-
vision at Somerset, New Jersey, excluding fac-
tory representatives, auditors, draftsmen, per-
sonnel department employees, dispensary de-
partment employees, buyers, assistant buyers,
methods and equipment engineers, confidential
payroll clerks, confidential secretaries, supervi-
sors, assistant supervisors, clerical supervisors
(subject to Article 29, Section 9(c) of the
Local Supplement), executives, executive as-
sistants and all other supervisors with the au-
thority to hire, promote, discharge, discipline
or otherwise effect changes in the status of
employees or effectively recommend such
action.
At all times material the Unions have been the
recognized exclusive collective-bargaining repre-
sentative of the unit. Recognition has been em-
bodied in successive master and local collective-
bargaining agreements, the most recent of which
are effective from May 4, 1987, to November 3,
1992, and February 2, 1987, to February 1, 1993,
respectively.
294 NLRB No. 71
MACK TRUCKS
B. The Unilateral Changes
The complaint alleges that the Respondent,
about June 13, 1988, announced and implemented a
change in the contractual wage rate for new hires
without the consent of the Unions, during the term
of the parties' collective-bargaining agreements, in
violation of Section 8(a)(5) and (1) of the Act. The
Respondent admits that it announced and imple-
mented an increase in the wage rate of new hires
without the consent of the Unions. Indeed, in its
memorandum in opposition to the Motion for Sum-
mary Judgment the Respondent concedes it is im-
mediately apparent that "the dispute over summary
judgment in this case is not whether any facts are
in dispute between the parties." The Respondent
defends its action on business necessity. Thus, ac-
cording to an affidavit by a Human Resources As-
sistant in the Somerset facility, although Mack had
never experienced difficulty in obtaining qualified
applicants in the past, it had "a great deal of diffi-
culty obtaining a qualified person who was willing
to work for the starting rate fixed by the collective
bargaining agreement" in the spring of 1988. The
Respondent then approached the Unions seeking
approval of a wage change. The Unions in turn
sought other changes. The parties did not reach
agreement, the Unions withheld consent to the
change, and the Respondent implemented the new
wage unilaterally. As a defense to the complaint,
the Respondent asserts that the Supreme Court and
the Board have recognized "the possibility that ex-
tenuating circumstances might justify unilateral
mid-term modification of the terms of a collective
bargaining agreement." From this, the Respondent
argues that summary judgment is inappropriate,
and "a hearing is necessary so that the company
can fully present this defense."
The General Counsel contends that the Respond-
ent's answer obviates the need for a hearing, that
the Respondent has admitted unilaterally imple-
menting a wage change during the term of the col-
lective-bargaining agreement without the bargain-
ing representatives' consent and that the proffered
business justification is essentially irrelevant. We
agree with the General Counsel. As the Board
stated in Oak Cliff-Golman Baking Co., 207 NLRB
1063 at 1064 (1973):
The unambiguous language of Section 8(d) of
the Act explicitly: (1) forbade Respondent's
midterm modification of the contract's wage
provisions without the Union's consent; and
(2) granted the Union the privilege it exercised
to refuse to grant consent.
The proscribed action is not excused by the prof-
fered economic need , or by the fact that it may
865
serve what may appear to the Board to be a desira-
ble objective. Ibid. The fact that the Unions agreed
to discuss the Respondent's proposed modification
and offered counterproposals does not signify that
the Unions agreed to reopen the contract, nor is
there any such contention by the parties. Accord-
ingly, these discussions do not affect the result
here. Herman Bros., 273 NLRB 124 fn. 1 (1984);
Connecticut Light & Power, 271 NLRB 766 (1984).
Accordingly, the General Counsel's Motion for
Summary Judgment is granted.
. CONCLUSIONS OF LAW
1. The Respondent, Mack Trucks, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Unions are labor organizations within the
meaning of Section 2(5) of the Act.
3. By announcing and implementing changes in
the contractual wage rates of new hires during the
term of collective-bargaining agreements without
the consent of the'collective-bargaining representa-
tive, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and
(5), Section 8(d), 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 and to take certain affirmative
action designed to effectuate the policies of the
Act. Thus, we shall require that the Respondent
revoke the unilateral wage increase if the Unions,
as the exclusive collective-bargaining representa-
tive, so requests.
ORDER
The National Labor Relations Board orders that
the Respondent, Mack Trucks, Inc., Somerset,
New Jersey, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America and Local Union
No. 229 by unilaterally announcing and implement-
ing wage raises during the term of collective-bar-
gaining contracts without the consent of the bar-
gaining representative.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights them guaranteed by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) On request by the designated bargaining rep-
resentative, rescind the unilateral increases in wage
rates of new hires at its Somerset, New Jersey fa-
cility.
(b) Post at its facility in Somerset, New Jersey,
copies of the attached notice marked "Appendix."'
Copies of the notice, on forms provided by the Re-
gional Director for Region 22, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable 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.
' 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 Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
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.
WE WILL NOT refuse to bargain with Internation-
al Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America and Local
Union No. 229 by unilaterally granting wage in-
creases during the term of collective-bargaining
agreements without the consent of the employees'
designated representative.
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, on request by the designated bargain-
ing representative, rescind the wage increase for
new hires we unilaterally implemented for unit em-
ployees during the term of our collective-bargain-
ing agreements. The appropriate unit is:
All office employees at Mack Truck, Inc.'s
Parts Division at Somerset, New Jersey, ex-
cluding factory representatives, auditors,
draftsmen, personnel department employees,
dispensary department employees, buyers, as-
sistant buyers, methods and equipment engi-
neers, confidential payroll clerks, confidential
secretaries, supervisors, assistant supervisors,
clerical supervisors (subject to Article 29, Sec-
tion 9(c) of the Local Supplement), executives,
executive assistants and all other supervisors
with the authority to hire, promote, discharge,
discipline or otherwise effect changes in the
status of employees or effectively recommend
such action.
MACK TRUCKS, INC.