Manitowoc Ice, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 30, 2003

30-CA-016270 (N.L.R.B. Dec. 30, 2003)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

5

MANITOWOC ICE, INC.

and
Case 30-CA-16270-1 10

INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
CLIPPER CITY LODGE NO. 516, AFL-CIO
15
Andrew S. Gollin and Joyce Seiser, Esqs., for the General Counsel.
Clifford B. Buelow and Joel S. Aziere, Esqs., of Milwaukee, WI, for the Respondent.
Cristina Munoz, Representative, of Westchester, IL, for the Charging Party.

20
Decision

Statement of the Case

David L. Evans, Administrative Law Judge. This case under the National Labor Relations Act 25
(the Act) was tried before me in Milwaukee, Wisconsin, on September 30 through October 2, 2003.
On December 5, 2002, in case 30–CA–16270-1, International Association of Machinists and
Aerospace Workers, Clipper City Lodge No. 516, AFL-CIO (the Union) filed a charge under Section
10(b) of the Act alleging that, in violation of Section 8(a)(5) of the Act, Manitowoc Ice, Inc. (the
Respondent), had failed and refused to bargain with the Union as the statutory representative of 30
certain of the Respondent’s employees by engaging in unilateral actions. On February 18, 2003, the
Union amended the charge to allege that, also in violation of Section 8(a)(5), the Respondent had
withheld from the Union information necessary for it to function as the collective-bargaining
representative of the same employees. Thereafter, the General Counsel of the National Labor
Relations Board (the Board) issued a complaint alleging that the Respondent had violated Section 35
8(a)(5) by unilaterally making changes to the profit-sharing plan of its employees who are
represented by the Union and by subsequently refusing to furnish the Union with information about
those changes. The Respondent duly filed an answer to the complaint admitting that this matter was
properly before the Board but denying the commission of any unfair labor practices.
40
Upon the testimony and exhibits entered at trial,1 and upon an exhibit submitted post hearing,2
and after consideration of the briefs that have been filed, I enter the following findings of fact and
conclusions of law.

I. Jurisdiction and Labor Organization’s Status 45

1 Certain passages of the transcript have been electronically reproduced; some corrections to punctuation have been
entered. Where I quote a witness who re-starts an answer, and that re-starting is meaningless, I sometimes eliminate,
without ellipses, words that have become extraneous; e.g., “Doe said, I mean, he asked ...” becomes “Doe asked ...”. All
bracketed words have been inserted by me. In quotations, I have replaced “profit sharing” with “profit-sharing” and
“Company wide” with “Company-wide.”
2 R. Ex. 51, certain proposals from negotiations between the parties, submitted post hearing with the consent of the
General Counsel and the Charging Party, is hereby received. The General Counsel’s letter of October 16, 2003, stating
his position on R. Ex. 51 is received as Administrative Law Judge’s exhibit 1; the Respondent’s reply letter, dated
October 27, 2003, is received as Administrative Law Judge’s exhibit 2.
As it admits, at all material times the Respondent has been a corporation with an office and
place of business in Manitowoc, Wisconsin, where it has been engaged in the business of
manufacturing commercial ice machines and storage bins. During the year ending December 31,
2002, the Respondent sold
and shipped goods and materials valued in excess of $50,000 directly to purchasers located at 5
points outside Wisconsin. Therefore, at all material times the Respondent has been an employer
that is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. As the
Respondent further admits, at all material times the Union has been a labor organization within
the meaning of Section 2(5) of the Act.
10
II. Alleged Unfair Labor Practices

A. Facts

1. Background and basic contentions 15

The Respondent is a corporate subsidiary of The Manitowoc Company, Inc. The
Manitowoc Company has about 40 other corporate subsidiaries throughout the world, including
several in various other states of the United States and several in other countries, including
France, Germany and China. The Manitowoc Company divides its subsidiaries into 3 groups: 20
Manitowoc Crane Group, Manitowoc Foodservice (as one word) Group, and Manitowoc Marine
Group. The Respondent is one of the 12 members of The Manitowoc Company’s Foodservice
Group. A member of The Manitowoc Company’s Crane Group is Manitowoc Cranes, Inc.
(Manitowoc Cranes), and a member of The Manitowoc Company’s Marine Group is Bay
Shipbuilding Corporation (Bay Ship). The Respondent and Manitowoc Cranes are located in 25
Manitowoc, Wisconsin; Bay Ship is located in Sturgeon Bay, Wisconsin. The Respondent,
Manitowoc Cranes and Bay Ship are sometimes referred to as The Manitowoc Company’s “old
companies” because they (or their corporate predecessors) pre-existed all other of the
subsidiaries.
30
From at least the 1950s the Union has represented all of the Respondent’s production and
maintenance employees in 2 separate units. The Union represents about 277 employees in a
“production workers’ unit,” and it represents about 10 employees in a “maintenance mechanics’
unit.” The Respondent and the Union have been parties to a great number of collective-
bargaining contracts over the years. Contracts for the 2 units that were negotiated in 1997 35
expired on July 1, 2001. The parties bargained for successor agreements from February 8, 2001,
until August 15, 2001 (the 2001 negotiations). On that date the parties entered contracts effective
from August 1, 2001, until March 31, 2005 (the 2001 contract).3

The Respondent employs approximately 100 other employees (hourly and salaried) who are 40
not represented by any labor organization (the non-represented employees). The Union also
represents some of the production and maintenance employees of Manitowoc Cranes. The record
does not disclose how many employees the Union represents at Manitowoc Cranes, but,
whatever the number, several other unions separately represent some of the remaining employees
of Manitowoc Cranes in other units. The Union does not represent any employees at Bay Ship; 45
some of the employees there are represented by several other unions in separate units.

The International Association of Machinists maintains a pension plan in which many
employers participate. Neither The Manitowoc Company nor the Respondent, however, is such
an employer. Over the years, however, The Manitowoc Company has provided benefits upon 50
which retired employees of its subsidiaries could draw. In 1960, The Manitowoc Company
created separate profit-sharing plans for the benefit of represented and unrepresented employees
of all of its then-subsidiaries including the Respondent, Manitowoc Cranes and Bay Ship.4 Also,
in 1997 The Manitowoc Company created Section 401(k) plans for the represented and non-

3 The two 2001 contracts, one each for the production workers’ unit and the maintenance mechanics’ unit, will be
referred to in the singular because they are identical in all significant respects (except, of course, the unit
descriptions).
4 At the time, the Respondent had a different corporate name.
JD–130–03
represented employees of the Respondent, Manitowoc Cranes and Bay Ship. The Manitowoc
Company and its subsidiaries created these benefits unilaterally; that is, they did not negotiate
with any union before creating and implementing the plans for the represented employees.
Specifically, the Respondent did not negotiate with the Union before creating and implementing
the profit-sharing plans and the Section 401(k) plans, even though the employees who were (and 5
are) represented by the Union became eligible to participate (and did participate) in those
benefits. In none of the contracts between the Respondent and the Union that has been entered
since 1960 has a profit-sharing plan (or a Section 401(k) plan) been mentioned. Over the years,
until the events of this case, The Manitowoc Company made several changes to the profit-
sharing plans of its subsidiaries. Joint exhibit 7 reflects such changes by amendments to the 10
profit-sharing plan that were made in 1961, 1963, 1973, 1984, 1989 and 1994; those changes
involved such matters as eligibility and contribution formulas. The Respondent never gave
notice to, or bargained with, the Union about the changes. Until the events of this case, the
Union never complained to the Respondent or filed charges with the Board about the
Respondent’s unilateral changes in the profit-sharing plan (or changes in the Section 401(k) 15
plan).

For each year from the inception of the profit-sharing plans until the events of this case, the
represented and non-represented employees of the Respondent, Manitowoc Cranes and Bay Ship
received contributions to their profit-sharing accounts at the rate of 15% of their annual earnings, 20
the maximum allowable under IRS regulations. The maximum was reached each year, in part,
because contributions were calculated on a subsidiary-by-subsidiary basis. The Respondent,
Manitowoc Cranes and Bay Ship are profitable subsidiaries of The Manitowoc Company, and
the Respondent has historically been the most profitable of all.
25
In 2000, The Manitowoc Company’s board of directors decided that retirement benefits for
all of the subsidiaries should be essentially the same. In November 2000, the Respondent
announced that, effective January 1, 2001, changes to the profit-sharing plan that covered the
non-represented employees of the Respondent, Manitowoc Cranes and Bay Ship would be based
on the combined profits of all subsidiaries of The Manitowoc Company, worldwide, and not just 30
the profits of the subsidiaries for which the employees worked. After the announcement, the
Respondent held meetings with the non-represented employees to explain the workings of their
profit-sharing plan as it was about to be modified.

No change was made to the profit-sharing plan of the represented employees during 2001, 35
but on February 22, 2002, The Manitowoc Company’s board of directors approved a document
entitled “Resolutions of the Board of Directors Amending the Hourly5 Employees’ Deferred
Profit-Sharing Plans of Manitowoc Ice, Inc., Manitowoc Cranes, Inc., and Bay Shipbuilding
Corporation.”6 The resolution changed, retroactive to January 1, 2002, the method of computing
contributions to the represented employees’ profit-sharing accounts. Consistent with what had 40
been done to the profit-sharing plan of the non-represented employees, the 2002 change in the
profit-sharing plan established that computations for the represented employees’ profit-sharing
plan would be made on the basis of the combined earnings of all of The Manitowoc Company’s
subsidiaries, worldwide, rather than on the basis of the earnings of each company.7 As a result of
the changing of the basis for calculating contributions (and, according to the Respondent, as a 45
result of a downturn in business after September 11, 2001), for the year 2002 the employees of
the Respondent who are represented by the Union received contributions to their profit-sharing
accounts at the rate of 1.29% of their annual earnings. The Respondent held no meetings to
explain to the represented employees the changes that had been made to their profit-sharing plan.
50

5 In this instance, “hourly” was The Manitowoc Company’s terminology for union-represented employees.
6 R. Ex. 46(gg).
7 Or, as stated by the Respondent on brief, p. 8: “This change meant that, rather than determining the contribution
rate for each of the old companies based upon the earnings of that subsidiary, the contribution rate for all three
companies would be the same, based upon the overall consolidated earnings of The Manitowoc Company and its
subsidiaries.”
JD–130–03
The Respondent admits that it did not notify and bargain with the Union before it
implemented the change in the method of computing profit-sharing contributions pursuant to The
Manitowoc Company’s February 22, 2002 resolution.8 The complaint alleges that, by the
Respondent’s unilaterally changing the method of computing its contributions to the profit-
sharing accounts of its employees who are represented by the Union, with the resultant 5
diminutions in those contributions,9 the Respondent violated Section 8(a)(5). The General
Counsel further alleges that the Respondent violated Section 8(a)(5) by delaying from August
2002 until February 7, 2003, the furnishing of requested information about its changes to the
represented employees’s profit-sharing plan.10`
10
The Respondent first contends that the complaint’s allegations that it made unlawful
unilateral changes to the profit-sharing plan are not supported by a charge that was filed within
the six-month limitations period of Section 10(b) of the Act.11 Specifically, the Respondent notes
that the charge was not filed until December 5, 2002, but it had taken its unilateral action almost
10 months before that date, on February 22. The Respondent further contends it notified the 15
Union beforehand, by certified mail, on February 13, that it would take the action on February
22. The General Counsel, however, replies that the Union did not receive the certified-mail
notification and that the Union did not learn of the changes to the profit-sharing plan until it
came into possession of a July 22, 2002 letter by which the Respondent notified the represented
employees of the changes. The General Counsel contends, therefore, that the limitations period 20
of Section 10(b) did not begin to run against the Union until some time in late July.

The Respondent further contends that, even if the allegation of unlawful unilateral changes
to the profit-sharing plan is supported by a timely charge, the Union waived any right to compel
it to bargain about the changes by (1) its historical failures to object to unilateral changes in the 25
profit-sharing plan that the Respondent had made over the years (including the establishment of
the plan itself), (2) its entries into contracts that do not mention profit-sharing, including
specifically the 2001 contract, (3) its conduct during the 2001 negotiations, and (4) its agreement
to zipper and management rights clauses in the 2001 contract.12
30
In denying that it unlawfully delayed furnishing information about changes in the profit-
sharing plan, the Respondent contends that the Union did not make its requests for information
in writing and that the Union did not direct its oral requests to officials of The Manitowoc
Company, which was the sponsor of the profit-sharing plan. The Respondent further contends
that the Union actually possessed the information long before February 7, 2003. 35

2. The 2001 contract negotiations

During the 2001 negotiations, Russell Krings, business agent of District 10 of the IAM, was
the chief Union spokesman. Steve Garber is a production employee of the Respondent and 40
chairman of the Union’s internal “bargaining and shop” committee (which committee bargains
with the Respondent in negotiations of contracts and which also processes grievances for both

8 The Respondent further admits that it did not notify the Union that it was contemplating changes in the profit-
sharing plan, even though The Manitowoc Company’s board of directors had begun deliberating the issue in 2000
and even though the parties engaged in contract negotiations from February 8 through July 15, 2001, and even
though they had many other contacts, or opportunities for contacts, through January 2002.
9 Two of the General Counsel’s employee witnesses testified that for 2001, when the rate was 15%, they received
employer contributions to their profit-sharing accounts of about $6,000. For 2002, when the rate was 1.29%, they
received about $600.
10 Although the complaint alleges a continuing refusal to furnish information, the General Counsel concedes on
brief, as he did in his opening statement, that the Respondent furnished the requested information on February 7,
2003.
11 Section 10 (b) provides in pertinent part that “... no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof
upon the person against whom such charge is made.”
12 The Respondent further relies on certain testimony that, during negotiations prior to 2001, previous Union agents
conceded that the Respondent had the right to make unilateral changes in the profit-sharing plan. That testimony
was not rebutted, but I have found it unnecessary to rely upon it.
JD–130–03
the production workers’ and maintenance mechanics’ units). Garber assisted Krings in the
negotiations and stated the Union’s position many times. Gary Dworak, also a production
employee, is the Union’s vice president, and during negotiations he was a member of the
Union’s negotiating team; he also stated the Union’s position many times. Thomas Musial, who
is The Manitowoc Company’s senior vice president of human resources and administration, was 5
the Respondent’s chief spokesman at the 2001 negotiations. Doug Cayemberg, the Respondent’s
manufacturing superintendent, assisted Musial and served as the Respondent’s note-taker.

Even though Krings was the Union’s chief negotiator, the General Counsel did not ask
Krings about what happened concerning profit-sharing during the 2001 negotiations, or about 10
what happened before those negotiations began. Dworak, however, testified that: “Well, we had
heard prior to 2001 negotiations that the profit-sharing plan had changed for the non-bargaining-
unit people and the committee and its members felt that we needed to ensure that profit-sharing,
or some type of retirement plan, was in place for our members.” Therefore, the Union decided
that it would attempt in the 2001 negotiations to have profit-sharing become a term of a 15
collective-bargaining agreement for the first time.

During the February 8 bargaining session, the Union proposed that: “The Company will
agree to guarantee the current profit-sharing plan for the length of this agreement. The Company
shall also match the first 3% of any Union employee’s 401(k) contribution.”13 As noted, neither 20
the profit-sharing plan nor a Section 401(k) plan had been mentioned in prior contracts between
the parties. Garber testified on direct examination that the Union made these proposals because
he and other employees had heard that the Respondent had recently changed the profit-sharing
plan of the non-represented employees and “there was a little bit of nervousness out of our
membership.” On cross-examination Garber admitted that he knew before negotiations began 25
that the Respondent had changed the profit-sharing plan of the non-represented employees to a
basis of the earnings of The Manitowoc Company,14 and Garber admitted that the Union’s
bargaining committee knew that the non-represented employees were “not happy” about the
change.
30
To the Union’s February 8 proposal that the Respondent guarantee the profit-sharing plan
for the duration of the 2001 contract, Musial replied that the Respondent had always maintained
a right to make changes in the profit-sharing plan and that it intended to maintain that right in the
future.
35
Garber testified that Musial stated that profit-sharing was “not a negotiable item” and that
Krings responded “that we thought that it was a negotiated [sic] item.” Musial and Cayemburg
denied that anyone on the Union’s bargaining committee ever claimed that profit-sharing was
negotiable. Again, although Krings was the Union’s chief negotiator, the General Counsel did
not ask Krings, himself, to testify about what he did and did not say during the 2001 40
negotiations. Rather than ask Krings to corroborate Garber’s testimony that Krings had claimed
that profit-sharing was negotiable, the General Counsel called upon Dworak. Dworak, however,
testified that it was Garber (not Krings) who stated that profit-sharing was negotiable. I credit

13 The Union made this and other such proposals for both the production workers’ unit and the maintenance
mechanics’ unit; therefore, I shall refer to the proposals in the singular.
14 Garber was asked, and he testified:
Q. You knew that a meeting had been held with the salaried employees to explain the changes, correct?
A. Yes.
Q. And that the company had changed the salaried employees’ formula on the profit-sharing plan, correct?
A. I heard they had changed it, yes.
Q. To Company-wide earnings, correct?
A. Yes.
Q. And the EVA?
A. Yes.
EVA (Economic Value Added) is an aspect of the revised non-represented employees’ profit-sharing program that
is also based on the profits of all subsidiaries of The Manitowoc Company. The Manitowoc Company’s board of
directors initially considered implementing EVA for the represented employees of the Respondent, Manitowoc
Cranes and Bay Ship, but it later abandoned the idea.
JD–130–03
Musial and Cayemburg and find that during the 2001 negotiations neither Krings nor any other
member of the Union’s bargaining committee expressly challenged Musial’s statements that
profit-sharing was not negotiable.

Musial further testified that on February 8 Garber replied only that, if the Respondent was 5
not going to agree to profit-sharing being in the 2001 contract, the money could be put into the
IAM pension plan. Garber flatly denied mentioning the IAM pension plan at the February 8
meeting, even though he is squarely contradicted by the testimony and notes of Dworak. Garber
acknowledged making a proposal for the IAM pension plan later in negotiations and, of itself,
the point of when he first did so is not of great import. The conflict, however, is a good 10
demonstration of why I found Garber to be an unreliable witness. Also, Garber was evasive at
many points on cross-examination, and he claimed lack of memory too often to have much
confidence in his testimony where it conflicts with that of the Respondent’s witnesses. In making
my findings of fact, therefore, I have usually credited the Respondent’s witnesses over Garber,
even though Garber was usually supported by Dworak.15 15

During a February 22 bargaining session, Garber again stated that the Union wanted a
guarantee of the profit-sharing plan in the 2001 contract. Musial replied again that the
Respondent intended to retain all rights to change the plan. As Cayemburg credibly testified,
Garber replied, “We understand that. [We would] like to know where the Company is going with 20
profit-sharing so we can present our pension plan.”

During a February 23 bargaining session, the Union proposed: “The Company shall match
the first 3% of any Union employee’s 401(k) contribution. The Company will also contribute
$3.00 per hour to the bargaining unit employee’s IAM pension fund.” The Union’s proposal 25
made no reference to profit-sharing. Garber testified that the Union made the proposal for the
IAM pension plan in lieu of a profit-sharing provision for the 2001 contract because: “They
didn’t seem to be interested in our profit-sharing one. It wasn’t going anywhere so we thought
maybe they would be a little more interested in the IAM pension fund.” Garber further testified
that the Union arrived at the $3.00 an hour figure by estimating the value of the benefit to the 30
average represented employee of the profit-sharing plan during the period of the 1997-2001
contract. Musial asked several questions about the IAM pension plan and asked that the Union
furnish him a copy of the plan. (The Union agreed to do so, but never did.)

During a March 16 bargaining session, the Union proposed to drop its proposal for the IAM 35
pension plan if the Respondent would guarantee profit-sharing for the duration of the 2001
contract. Musial rejected the Union’s proposal by stating that neither the IAM pension plan, nor
profit-sharing, nor a Section 401(k) plan would be part of any proposal that the Respondent
would ever be making during the negotiations.
40
During a March 22 bargaining session, the Union resubmitted its proposal of February 22,
except that it dropped the requested amount of contributions to the IAM pension plan from $3.00
per hour to $2.50 per hour. Profit-sharing was omitted from this union proposal also. When that
proposal was not accepted, Garber stated that the Union would drop its proposal for the IAM
pension plan if the Respondent would guarantee the profit-sharing plan for the duration of the 45
2001 contract. Musial again stated that profit-sharing would not be contained in any of the
Respondent’s proposals.

On March 23, the Union conducted a ratification meeting on a complete contract proposal
that the Respondent had offered; that proposal did not include profit-sharing. The offer was 50
unanimously (217-0) rejected. On cross-examination, Garber acknowledged that profit-sharing
was discussed at the ratification meeting and that the failure of the Respondent to guarantee
profit-sharing was at least part of the reason for the rejection. Garber further conceded that the

15 The General Counsel, rather than asking his witnesses if events had happened, asked only if they could recall if
the events had happened. Negative answers to such questions, of course, were less than denials.
JD–130–03
members knew that “there was a possibility” that rates in the profit-sharing plan could be cut.
Garber added: “They didn’t know when the Company planned on doing this. Or if they would.”

During a July 12 bargaining session, the Union re-submitted its proposal of February 8 that:
“The Company will agree to guarantee the current profit-sharing plan for the length of this 5
agreement. The Company shall also match the first 3% of any Union employee’s 401(k)
contribution.” Musial testified that he responded that the Respondent intended to keep profit-
sharing as a matter of its discretion throughout the 2001 contract’s period.

During a July 31 bargaining session, the parties again addressed the Union’s proposal of a 10
guarantee of profit-sharing. Garber was asked, and he testified:

Q. What, if any, discussions were there between the company and the union regarding
this proposal?
A. The company again stated that it was not negotiable. 15
Q. And what, if anything, did the Union say in response?
A. And the Union through Russ Krings said that it was a negotiated [sic] item.
Q. What, if anything, did you say?
A. In fact I may have even said that I was the one who felt that it is a negotiated [sic]
item. 20

Again, the General Counsel did not ask Krings, the Union’s chief negotiator, to testify about this
heavily disputed factual issue. I strongly suspect that Garber knew that Krings would not be
asked, and I strongly suspect that Garber’s shifting to the testimony that it was he who made the
statement that profit-sharing was negotiable (or “a negotiated item”) was an attempt to cover for 25
the obvious vacuity in the General Counsel’s presentation, the failure to ask the chief negotiator
what had happened. Moreover, Garber was not an inarticulate individual; his tripping and using
“a negotiated item,” rather than testifying that he (or Krings) said that profit-sharing was “a
negotiable item” was, at least to this finder-of-fact, an apparent mental by-product of mendacity.
Again, Musial and Cayemburg testified that the Union never expressly claimed that profit-30
sharing was a negotiable item, and I credit that testimony.

During an August 1 bargaining session, the Union submitted a 7-page proposal for
modifications of the 1997 contract. The proposal included neither profit-sharing, nor an
employer match for the employee contributions to the Section 401(k) accounts, nor the IAM 35
pension plan. Garber acknowledged that the proposal was a “package” proposal, and he did not
deny that it was intended as a complete proposal for the 2001 contract, but he could not explain
why profit-sharing was not mentioned, except to say that it was “an oversight.” Musial testified
that the Union, at some point during this meeting, orally offered again to drop its proposal for the
IAM pension plan if the Respondent would agree to guarantee the profit-sharing plan. Musial did 40
not testify what he replied, and the Respondent’s notes do not indicate a reply, but Musial
undoubtedly replied again that profit-sharing and the IAM pension plan would not be part of any
of the Respondent’s proposals.

During an August 14 bargaining session, the Union submitted a written proposal that it 45
would drop its proposal for a 3% Section 401(k) match if “profit-sharing stays as it is or we have
[the] option to go to IAM pension plan.” Musial repeated the Respondent’s position that neither
profit-sharing, nor the Section 401(k) plan, nor the IAM pension plan would be in any contract
that the Respondent signed. The parties went on to other issues that remained between them.
50
During the early morning hours of August 15, the parties reached complete agreement that
included no reference to profit-sharing, the IAM pension plan or employer contributions to the
Section 401(k) accounts. Garber testified that during the session the Union withdrew its proposal
on profit-sharing (and some other issues between the parties, such as vacations) because:
55
We had to make a choice or an evaluation of the importance of the issues left and
which way we wanted to go, and we decided that the drug testing and the 401(k) and the
JD–130–03
union office and the profit-sharing language were not that important because—in particular
the profit-sharing because the Company had never said they were going to change our
profit-sharing plan. There was no proposal to do so. We were always getting the 15 percent
so we had decided to just take it off the table.
5
The 2001 contract went into effect, retroactive to August 1, with no reference to profit-sharing. It
does, however, contain the following management rights clause: “Unless specifically covered by
this Agreement, the conduct of all other phases of the Company’s operation is reserved
exclusively in the Company.” The contract also contains the following zipper clause: “This
Agreement represents the entire agreement between the Company and the Union. It replaces all 10
previous agreements[,] either written or verbal, and represents the conclusion of collective
bargaining.”

3. The 2002 alleged unilateral action
15
On February 12, 2002, the Respondent posted on each of its employee bulletin boards
copies of a 2-page a notice that is required by the IRS when an employer intends to change a tax-
exempt benefit plan. The notice states that on February 22 The Manitowoc Company was going
to apply for “advance determination on the qualification of ... Manitowoc Ice, Inc., Hourly Paid
Employees’ Deferred Profit-sharing Plan.” The notice states that “interested parties” have the 20
right, individually or collectively, to submit to the IRS “your comments as to whether this plan
meets the qualification requirements of the Internal Revenue Code.” On brief, page 23, the
Respondent states: “The IRS Notice advised employees that changes had been made to the union
employee profit-sharing plan and that The Manitowoc Company was seeking approval of those
amendments from the IRS.” This statement is false. The notice does not recite that any changes 25
“had been made,” or were going to be made, to the plan,16 and, most important, it does not recite
that those changes would have to do with using the earnings of all of The Manitowoc Company’s
subsidiaries, worldwide, rather than just the Respondent’s earnings, as a basis for calculating the
profit-sharing benefit.
30
The Respondent introduced evidence to prove, and I find, that on February 13, it caused to
be placed in the mail, certified with return receipts requested, properly addressed to each of the
10 unions that represent employees at the Respondent, Manitowoc Cranes and Bay Ship, a letter
stating:
35
On February 22, 2002, an application will be filed with the Internal Revenue Service
for a favorable determination letter confirming the tax-exempt status of [the full name of
the plan that covered the employees who were represented by the addressee was inserted
here]. A copy of the Notice to Interested Parties that is required by the IRS is to be posted
at the work sites of the employees eligible to participate in the Plan is enclosed for your 40
information.
A new favorable determination letter is regularly requested after the Plan has been
amended. The most recent previous application for a favorable determination letter was
filed in 1994, after the Plan was amended to comply with all of the changes required by the
Tax Reform Act of 1986, and the letter was issued in April 1995. 45
The changes made since the effective date of the last determination letter include
technical and boilerplate language changes required by statutes enacted since the prior
determination letter, updating Plan administrative provisions to be consistent with current
record-keeping procedures, using Company-wide earnings and sales as the basis for
determining yearly profit-sharing contributions, and allocating employer contributions only 50
on the basis of compensation instead of compensation and years of service. The following
legislation required changes to technical provisions of the Plan: [six statutes listed].

16 Similarly false is the Respondent’s statement on brief, p. 79, that “IAM grievance committee members at
[Manitowoc] Cranes advised Krings of the notice and informed him that changes had been made to the profit-
sharing plan.” Krings flatly denied that such happened, and the Respondent introduced no evidence to the contrary.
JD–130–03
Each letter was signed by Musial as representative of The Manitowoc Company. The 10
(certified, return receipt requested) letters were placed in the mail, one each for the business
agent of each represented bargaining unit at the Respondent, Manitowoc Cranes and Bay Ship,
except that 2 of the 10 letters were addressed to Krings, one as business agent for the
Respondent’s 2 units (again, the production workers’ unit and the maintenance mechanics’ unit) 5
and one as representative of certain production and maintenance employees at Manitowoc
Cranes.17 Krings, however, denied receiving either of the 2 letters, and the Respondent was
unable to produce for either letter a receipt that had been signed by Krings or anyone else from
the Union.
10
The Respondent adduced testimony that the Post Office utilizes procedures that should
virtually guarantee receipt when a properly addressed letter is certified and return receipt is
requested. The Respondent had no evidence, however, that Krings (or anyone else from the
Union) actually received the February 13 letters that were addressed to him. As well, Krings was
credible in his testimony that he did not receive them, and I do credit his testimony.18 15

On July 22, 2002, the “Retirement Plan Committee” of The Manitowoc Company sent to
each of the Respondent’s represented employees a letter enclosing a copy of “an updated
Summary Plan Description for your Profit-sharing Plan.” The letter contained an essential
repetition of the third paragraph of the February 13 letter to the business agents, which letter is 20
quoted above. The summary plan description which was included with the letters to the
employees recited:

The Manitowoc Company, Inc., sponsors the Plan. Subsidiary corporations of The
Manitowoc Company, Inc., are participating employees in the Plan. The Plan is also 25
maintained pursuant to the collective bargaining agreement between the Company and the
following union: International Association of Machinists and Aerospace Workers, Clipper
City Lodge No. 516.

(The Respondent offered testimony that this paragraph was required to be in the summary plan 30
description by IRS regulations, even though it is not literally true because profit-sharing has
never been mentioned in a collective-bargaining agreement between it and the Union. The
General Counsel does not take issue with that position. I quote the paragraph here only because a
witness of the General Counsel claims that he mentioned it to a supervisor when information was
being requested, as discussed below.) 35

Garber and Dworak, being current employees of the Respondent and participants in the
profit-sharing plan, received copies of the July 22 letter. The General Counsel concedes that the
receipts by Garber and Dworak constitute notices to the Union that the basis of employer
contributions to the profit-sharing plan had been changed to “Company-wide earnings.” The 40
General Counsel claims, however, that the receipt of the July 22 letter was the first time that the
Union (through the employees such as Garber and Dworak or otherwise) received notice that
there had been such a change.

4. The alleged delay in furnishing information 45

17 On brief, p. 25, the Respondent states that at a grievance meeting at Manitowoc Cranes on February 14, Musial
advised Krings and other Union representatives present that The Manitowoc Company was seeking “IRS approval
of recent amendments” to the profit-sharing plans, and that Musial specifically told Krings that he would be getting
2 letters advising him “of the change” in the profit-sharing plan because Krings represented employees at both the
Respondent and Manitowoc Cranes. These statements are false. Musial testified to no more than that he advised
those present that some letters were being sent “because we were going through this determination.” Musial did not
testify that he told persons present that changes to the profit-sharing plans had been made, and Musial did not testify
that he explained what kind of “determination” the Respondent was “going through.”
18 My credibility resolution is fortified by the testimony of the Respondent’s witness Jeffrey John Queen, window
manager of the Milwaukee post office, who estimated that the odds of a letter having been delivered, even though a
requested return receipt was not completed and returned to the sender, at “one out of 20,000.”
JD–130–03
All of the Union’s requests for information about the changes in the profit-sharing plan
were made orally in the form of questions that were placed to the Respondent’s supervisors.
Dworak testified that after he received his copy of The Manitowoc Company’s July 22 letter and
the summary plan description, he took them to the plant. He approached Dan Brandl, the
Respondent’s manager of production, with the documents and: 5

I says, “You know, we just finished negotiations last year, and in this thing here, it says
that the profit-sharing plan is maintained pursuant to the labor agreement between [the
Respondent and] the International Association of Machinists.”
And I says, “What does that mean? ... [W]e were told straight out it was non-10
negotiable; how can this [be]?
The other question I had for Dan [was], “Dan, explain to me what ‘Company-wide’ is.”
And Dan said, “I’m not familiar with what this is.” ...
[A]nd Dan says, “Well, I’m going to be out of town for a couple weeks. ... I’ll try and
get in touch with Tom Musial from corporate.” 15
And he says, “I’ll try and get you some answers.”

Dworak testified that Brandl never got back to him on the matter. Brandl did not testify.19

On August 7, 2002, Garber and Harold Olson (another member of the Union’s bargaining 20
and shop committee) filed Grievance No. 656 (the August 7 grievance). In a space for “Nature of
Grievance,” Garber and Olson entered “Changing the profit-sharing from base of Manitowoc
Ice, Inc. to Company-wide.” In a space for “Settlement Requested” (which has a boilerplate
entry of “Make employee(s) whole for all losses incurred”), Garber and Olson entered “Keep
profit-sharing the same and negotiate any changes.” In a space for the name of the employee who 25
was filing the grievance, Garber and Olson entered “All Union employees.” The Union’s
grievance committee met with first-level supervisor Ellen Dietrich on August 15. Garber
testified that the shop committee asked Dietrich whether the profit-sharing plan had been
changed; Dietrich said that she had no idea. The committee asked if there had been any changes
in vesting rules (years of participation required for vesting levels to be reached). Dietrich replied 30
that she did not know. Garber testified that, to both questions, “she told us she was going to get
us an answer back as soon as she talked to her superiors.” On September 10, Dietrich answered:

The Union contends that profit-sharing is a negotiated item and that profit-sharing
should be kept within each separate division rather than shared by all divisions. 35
Grievance 656 is denied; profit-sharing is not a negotiated item. There is no violation
by the Company within the Collective Bargaining Agreement.

Dietrich did not testify.
40
On September 25, the Union met with Cayemburg (again, the Respondent’s manufacturing
superintendent) in a second-step grievance meeting. Garber testified that he asked Cayemburg if
the profit-sharing plan had changed. Cayemburg replied that he did not know. Garber told
Cayemburg that Brandl had told Dworak that Musial would be getting answers to him.
Cayemburg responded that he did not know anything about that. Olson asked Cayemburg “if any 45
of the vesting had changed for the profit-sharing or if anything else had changed other than that.”
Cayemburg replied that he did not know. Cayemburg, further according to Garber, replied that
he would get answers to the Union “as soon as possible.” Cayemburg testified, but he did not
deny this testimony by Garber.
50
Later on September 25 Cayemburg returned the grievance stating:

19 On brief, p. 29, the Respondent states: “Brandl informed Dworak that because the profit-sharing plan was
completely controlled by corporate, he should contract Musial with any questions. (Tr. 189).” At p. 82, the
Respondent also states: “Brandl clearly directed Dworak to contact Tom Musial with any questions he or the Union
may have regarding the profit-sharing plan.” As the quotation of Dworak’s testimony demonstrates, these
statements are false.
JD–130–03

The substance of grievance #656 is the changing of the profit-sharing calculation,
changing it from the base of Manitowoc Ice, Inc., to a Company-wide base.
—The Union would like to know who made the decision.
—The Union’s position is that retirement benefits are a negotiated item. 5
—The Union would also like to know what the new information exactly means.
As settlement, the Union would like to keep the profit-sharing calculation the same as it
was, and to negotiate any future changes.
[Answer:] There is no violation of the collective-bargaining agreement; the grievance
is denied. 10

On October 3, the Union formally requested a third-step meeting on the August 7
grievance. A third-step grievance meeting had previously been scheduled for October 4. At least
through June 2002, the Respondent’s third-step representative had been Musial. One James
Mutsch, rather than Musial, however, appeared for the Respondent at the October 4 meeting. 15
Mutsch did not testify. Musial testified that Mutsch had been hired in July 2002 as “Domestic
Director of Human Relations.” Musial further testified that, upon being hired, Mutsch became
the Respondent’s representative at third-step meetings. Musial further testified that he (Musial)
did not appear at third-step meetings after Mutsch was hired. (If Musial ever communicated to
the Union that he would not be appearing at third-step grievance meetings after July, he did not 20
so testify.)

There was no pre-set agenda for the October 4 grievance meeting, but Dworak brought up
the August 7 grievance late in that meeting by stating to Mutsch, “Jim, I know we don’t discuss
grievances when they are in the procedures, but what’s with the profit-sharing and [Grievance 25
No.] 656?”20 Mutsch replied that he did not know what Dworak was talking about. Dworak
testified that he referred to the July 22 letter from The Manitowoc Company’s profit-sharing
committee and stated that he had some questions. Dworak asked Mutsch how the summary plan
description that was enclosed with the letter could say that the profit-sharing plan was
maintained pursuant to a collective-bargaining agreement with the Union when “during 30
negotiations we were told this is non-negotiable.” Mutsch replied that he did not know and asked
what other questions Dworak had. Dworak asked “what changed in this whole thing?” Mutsch
replied that he did not know. The parties adjourned, Dworak further testified, with the
understanding that the August 7 grievance would be discussed at a later meeting.
35
On October 31, Garber sent a letter to the Respondent’s human resources department
requesting “copies of all Plan documents and any other Plan information that is relevant to the
profit-sharing plan for the Union Employees at Manitowoc Ice, Inc.”

On November 1, the parties conducted another third-step meeting. Dworak testified that he 40
asked again about the August 7 grievance and Mutsch replied, “I’m not prepared to discuss this
grievance at [this] time. Tom [Musial] will discuss it with the committee at a later time.” Also,
Garber testified that Mutsch stated to the Union’s committee that Musial was not there because
he “couldn’t make it.”
45
By letter dated December 3, Mutsch stated to the Union: “Enclosed are the requested plan
documents relevant to the Deferred Profit-Sharing Plan for the hourly-paid employees at
Manitowoc Ice, Inc. If you require any further information please call me at [telephone
number].”
50
By letter dated December 11, Mutsch responded to the August 7 grievance by stating:
“Grievance denied. The grievance was not filed in a timely manner. There was no violation of

20 I agree with the Respondent that, despite testimony by Dworak that he was surprised that the August 7 grievance
had not been mentioned earlier during the October 4 meeting, this quotation shows that he had not really expected it
to be discussed on that date. This is another example of why I discredit Dworak (as well as Garber) in conflicts with
the Respondent’s witnesses.
JD–130–03
the collective bargaining agreement.” (The 2001 contract has a 7-day limit for the filing of
grievances.)

By letter dated December 12, Krings informed Mutsch that the Union took the position that
the grievance was timely filed and that the Union was requesting a third-step meeting on it. 5
Krings further testified that he also called Mutsch to ask for a third-step meeting and that “we
had a meeting set up.”

On January 10, 2003, Mutsch met with the Union’s grievance committee. Krings testified
that the committee asked Mutsch where Musial was and that Mutsch replied that “he couldn’t 10
make it.” Dworak testified that Mutsch started the discussions by saying that he was then
prepared to write down the questions that the Union had about the August 7 grievance and profit-
sharing. Dworak expressed exasperation that Mutsch was there only to write down the questions
and not to give answers, but he asked the following questions: (1) What had changed in the
profit-sharing plan? (2) Why had the Respondent not held an informational meeting for the 15
employees to explain the changes that had been made? (3) Did the vesting periods change? (4)
What does the term “Company-wide” mean as it is used in The Manitowoc Company’s July 22
letter to the represented employees? And (5), did the plan for the other divisions of The
Manitowoc Company, “particularly Manitowoc Cranes,” change? Dworak further testified that:
“At the end of the meeting he [Mutsch] said Mr. Musial would get back to us with the answers.” 20

Musial did not contact the Union, but on February 7 Mutsch again met with the Union’s
grievance committee. At that time Mutsch orally gave answers to the Union’s questions about
the August 7 grievance and the profit-sharing plan. The only evidence of what those answers
were is contained in the following examination of Garber by the General Counsel: 25

Q. And what was Mr. Mutsch’s response to the Union’s question whether the plan had
changed?
A. He said yes, it had changed.
Q. Okay. And what was Mr. Mutsch’s response to the question of whether or not it 30
applied to other divisions?
A. He said yes, it did and particularly [to] Manitowoc Crane.
Q. What, if anything, did he say concerning the Union’s question of whether vesting
had changed?
A. He said no, the vesting had not changed. 35
Q. What, if anything, did he say as to how calculations were going to be done?
A. Oh. He said that the Company-wide earnings ... meant the whole Manitowoc
Company, not just Manitowoc Ice anymore.
Q. Okay. And what, if anything, did he say concerning the Union’s question of why
this wasn’t bargained over? 40
A. He said it wasn’t a bargaining issue on the changes.
Q. And how did the meeting end?
A. We took our answers and that was it then.

The General Counsel does not contest the adequacy of Mutsch’s February 7 responses as 45
answers to all outstanding Union questions about the profit-sharing plan. (Again, the General
Counsel alleges only a delay in the Respondent’s furnishing those responses.)

JD–130–03
B. Analysis and Conclusions

The principal allegation of the complaint is that, in violation of Section 8(a)(5), “in July
2002,” without prior notice to or bargaining with the Union, the Respondent changed the profit-
sharing plan of the employees who are represented by the Union by computing the benefits of 5
the plan on the basis of the company-wide earnings of The Manitowoc Company, rather than by
computing them on the basis of only the Respondent’s earnings, as had historically been done.
The Respondent admits that it acted without notice to or bargaining with the Union before it
implemented the change to the profit-sharing plan. The Respondent defends this action by stating
that the Union waived any right to complain about its unilateral action, and, even if the Union 10
did not commit a waiver, the unilateral action has not been made the subject of a valid complaint
because the Union did not file a charge about the action within the six-month limitations period
of Section 10(b).

1. The Section 10(b) defense 15

In asserting its Section 10(b) defense, the Respondent first points to the uncontested fact
that it made the change to the profit-sharing plan on February 22, 2002, not “July 2002" as the
complaint alleges. Because the charge was not filed until December 5, over 9 months after its
alleged unlawful conduct, the Respondent argues, the action is barred by the six-months 20
limitations period of Section 10(b). The Respondent does not dispute that the limitations period
of Section 10(b) will not be held to have begun to run against a charging party until that party
knew, or should have known, of the conduct that is the subject of the charge.21 The Respondent
nevertheless contends that the complaint is barred because the Charging Party knew of its action
within the week after it mailed its February 13 letters to the unions that represent employees at 25
the Respondent, Manitowoc Cranes and Bay Ship. However, because I have found that the
Union did not receive the February 13 letter (at any time), and because the Respondent made no
other attempt to notify the Union that the profit-sharing plan had been changed, I agree with the
General Counsel that the Respondent has not shown that the Union had notice of the alleged
unilateral action until it received the Respondent’s July 22 letter from the employees.22 30
Therefore, I reject the Respondent’s position that the December 5, 2002 charge herein was filed
outside the six-month limitations period of Section 10(b) of the Act.

21 See, for example, Southern California Edison Co., 284 NLRB 1205, 1209 (1987).
22 The burden of establishing notice is on the proponent of the 10(b) defense. Pennsylvania Energy Corp., 274
NLRB 1153, 1155 (1985).
JD–130–03
2. The Respondent’s unilateral action and the Union’s waiver

The law is that an employer is required to bargain about changes in the terms and
conditions of employment of union-represented employees unless the union has committed a
waiver of its right to bargain about such changes, and such waiver must be in “clear and 5
unmistakable” terms. See NLRB v. Pepsi Cola Distributing Co., 646 F.2d 1173, 1175 (6th Cir.
1981), cert. denied 456 U.S. 936 (1982); General Electric Co. v. NLRB, 414 F.2d 918, 923 (4th
Cir. 1969), cert. denied 396 U.S. 1005 (1970); Timken Roller Bearing Co. v. NLRB, 325 F.2d
746 (6th Cir. 1963), cert. denied 376 U.S. 971 (1964); C & C Plywood Corp., 148 NLRB 414,
416 (1964), affd. 385 U.S. 421 (1967). In determining whether the waiver is clear and 10
unmistakable, the contractual language as well as the negotiations surrounding the contract are
evaluated. See Angelus Block Co., 250 NLRB 868, 877 (1980); McDonnell Douglas Corp., 224
NLRB 881, 895 (1976). A waiver of such statutory rights is not to be lightly inferred. Rockwell
International Corp., 260 NLRB 1346 (1982); Pepsi-Cola Distributing Company of Knoxville,
241 NLRB 869, 870 (1979); C & C Plywood Corp., supra. That is, the law disfavors findings of 15
waivers of bargaining rights, and it will not find a waiver unless the contract language or the
conduct of the bargaining representative demonstrates the waiver in clear and unmistakable
terms. Or, as stated in Georgia Power Co., 325 NLRB 420, 420-421 (1998), enfd. mem. 176 F.3d
494 (11th Cir. 1999), before it is found that a union has waived its right to bargain over an issue,
“either the contract language relied on must be specific or the employer must show that the issue 20
was fully discussed and consciously explored and that the union consciously yielded or clearly
and unmistakably waived its interest in the matter.” Therefore, the issue in this case is whether
the 2001 contract itself, or the negotiations of that contract, or both, demonstrate that the Union
waived its right to object to the Respondent’s unilateral action of altering the basis for computing
the profit-sharing benefits of represented employees. The Respondent, who has the burden of 25
proving a waiver,23 contends that the waiver is found both in the language of the 2001 contract
and in the Union’s conduct during the 2001 negotiations. The General Counsel contends that the
contract makes no such indication and that the evidence shows that during the 2001 negotiations
the matter of profit-sharing was not consciously explored and that the Union did not clearly and
unmistakably waive its interest in that matter. 30

I disagree with the Respondent’s position on brief that the absence of reference to the
profit-sharing plan in the 2001 contract, of itself, proves that the Union waived any right to
object to any unilateral action in regard to that benefit. The Board squarely rejected such an
argument in The Press Company, Inc., 121 NLRB 976 (1958). A union does not risk the peril of 35
employer unilateral actions in regard to a term or condition of employment just because that
union is unsuccessful in attempts to secure memorialization of that term or condition in a
collective-bargaining agreement. To hold otherwise would stultify bargaining and thwart the
purposes of the Act. I further disagree with the Respondent’s contention that the zipper clause of
the 2001 contract compels the finding of a waiver. In this case, the zipper clause is extremely 40
narrow, covering only “all previous agreements,” and it says nothing about matters upon which
there was no agreement,24 such a profit-sharing.25 And I do not agree with the Respondent’s
contention that the management rights clause of the 2001 contract gave the Respondent the right
to act unilaterally in regard to profit-sharing. That clause literally refers to the Respondent’s
operations, not to employee benefits.26 Therefore, I find that there is nothing within (or absent 45
from) the 2001 contract itself that demonstrates that the Union waived its right to object to the
unilateral action of the Respondent in regard to profit-sharing.

23 See Wayne Memorial Hospital Assn., 322 NLRB 100 (1996) and cases cited therein.
24 To argue that the Union’s yielding on the issue of profit-sharing, by itself, was an “agreement” on profit-sharing
is to reject the principle of The Press Company.
25 Radioear Corp., 214 NLRB 362 (1974), as cited by the Respondent, had a zipper clause that included waiver of
bargaining rights on issues that had not even been mentioned during negotiations.
26 See Suffolk Child Development Center, 277 NLRB 1345. 1350 (management rights clause which states that
operation of the business is within the employer’s control did not give employer right to unilaterally change health
insurance benefits.)
JD–130–03
Whether the Union, by its conduct prior to and during the 2001 negotiations, waived its
right to object to the Respondent’s 2002 unilateral action in regard to profit-sharing is a far more
difficult question.

The determining aspects of the bargaining and bargaining history in this case are: (1) The 5
Respondent had created and implemented the profit-sharing plan without bargaining with the
Union. (2) In the many contracts between the parties, the subject of profit-sharing was never
mentioned. (3) The Union did not object to the changes that the Respondent made unilaterally to
the profit-sharing plan over the years. (4) The Union knew that the Respondent had reduced the
profit-sharing benefit of the non-represented employees by converting their plan to one that is 10
based on the earnings of all subsidiaries of The Manitowoc Company. (5) Because of this
knowledge, and because of “nervousness” on the part of the membership (according to Garber)
the Union proposed that the Respondent guarantee the continuance of the profit-sharing plan
throughout the term of the 2001 contract. (6) The Respondent, throughout the 2001 negotiations,
consistently and adamantly refused to agree to guarantee, or even mention, profit-sharing in the 15
2001 contract. (7) The Respondent based its continued and consistent refusals on the basis that it
had created, and changed, the profit-sharing plan for years and that it intended to continue to do
so. (8) The Union never contended that profit-sharing was a negotiable item, nor did it threaten
to file an unfair labor practice charge if the Respondent changed the profit-sharing plan of the
represented employees, even though (a) the Union knew that the Respondent had changed the 20
profit-sharing plan of the non-represented employees to those employees’ disadvantage, (b)
those employees were “not happy” about the changes to their plan, and (c) the represented
employees knew that “there was a possibility” (Garber’s words) that the rates of their profit-
sharing plan could be cut. (9) Instead, the Union proposed the IAM pension plan and increases to
the employees’ Section 401(k) accounts as replacements for the profit-sharing plan. (10) The 25
Respondent rejected those proposals as well, but the Union nevertheless agreed to the 2001
contract without reference to retirement benefits.

On brief, the Respondent argues that these aspects of the bargaining demonstrate that the
Union waived its right to object to the unilateral action, but it cites as authorities only cases in 30
which employer violations, not union waivers, were found. On the other hand, the General
Counsel cites several cases for the proposition that the conduct of the Union during the 2001
bargaining did not constitute a waiver, but each of those cases is distinguishable on one or more
significant factors.
35
In The Press Company, Inc., supra, the language of which the General Counsel quotes at
length, the employer unilaterally changed employee sales commissions during a contract term.
As noted above, the Board found no waiver of the union’s right to object to that unilateral action
in the fact that commissions were not mentioned in the contract. The Board further rejected the
employer’s contention that during bargaining the union waived its right to object to the unilateral 40
action. In so doing, however, the Board noted that during the bargaining the employer had
assured the union that it had no intention of changing the commissions, and the union stated that
it would file unfair labor practice charges if the employer did so without bargaining. The Board
held that, because of these factors, the union did not waive (and could not have waived) its
interest in the matter. In this case, however, the Respondent did not mislead the Union into 45
believing that it had no intention of changing the profit-sharing plan. Moreover, the Union did
not threaten to file an unfair labor practice charge, and it agreed to the 2001 contract knowing
that the Respondent had reduced the profit-sharing plan of the (“not happy”) non-represented
employees by changing the basis of their profit-sharing plan. The Union in this case therefore
necessarily had every reasonable expectation that the Respondent and The Manitowoc Company 50
would do to the represented employees what it had done to the non-represented employees. That
is, unlike the union in The Press Company, the Union had not been misled when it signed the
2001 contract.

Other cases that are cited by the General Counsel are also readily distinguishable. In 55
Bunker Hill Co., 208 NLRB 27 (1973), the employer did not defend the complaint on the basis
of the union’s conduct during bargaining; it defended solely on the basis of a zipper clause.
JD–130–03
Moreover, in Bunker Hill the employer acted unilaterally in regard to wage incentive plans, but
the Board stated that: “It should be noted that in the instant case, there is no actual evidence of
any ‘prior negotiations’ concerning incentive wage plans.”27 In this case, however, there were, in
fact, negotiations, albeit brief, about profit-sharing. New York Mirror, 151 NLRB 834, 841
(1956), does not contain an applicable holding; the Board, in fact, dismissed the complaint, 5
holding that the employer acted unilaterally only because of “pressing economic necessity” and
that it would not effectuate the policies of the Act to issue a remedial order, “even if a technical
violation were found.” And in Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB 953
(1958), employee workloads were not mentioned in the parties’ agreement. During the term of
that agreement, the employer increased the workloads unilaterally. The Board noted that, during 10
the bargaining that had resulted in the agreement, the employer had refused to discuss the matter,
not because it considered workloads to be a management prerogative (as is the case here), but
because its competitors did not have workload restrictions in their labor agreements. At 121
NLRB 958, the Board found: “the evidence clearly shows that the respondent, as well as the
union, has always considered workload to be a bargainable matter.” In this case, the Respondent 15
has never acknowledged that profit-sharing was a negotiable (or “bargainable”) issue. Instead,
without any Union challenge (except for the Union’s charge in this case that came over 4 months
after it learned of the unilateral action) it has acted unilaterally in regard to the profit-sharing
plan.
20
That the Union had resigned itself to the non-continuation of profit-sharing was made clear
by Garber’s testimony about the Union’s February 23 proposal. Garber testified that the Union
proposed a $3.00 per hour contribution to the IAM pension plan for each employee because that
amount was what the Union had estimated as the benefit to the average represented employee of
the profit-sharing plan during the period of the 1997-2001 contract. As the Union proposed the 25
IAM pension plan, it simultaneously dropped its proposal for inclusion of the profit-sharing plan.
Therefore, the Union knew, and then accepted, that profit-sharing was not going to be part of the
2001 contract.

Moreover, on March 16 and 22, the Union offered to drop its proposals for the IAM 30
pension plan if the Respondent would guarantee the continuation of the profit-sharing plan. Then
on July 12, the Union abandoned its proposal for the IAM pension plan and re-proposed the
profit-sharing plan and added a proposal for the Respondent to make 3% matching contributions
to the employees’ Section 401(k) accounts. Then on August 1, the Union dropped its profit-
sharing proposal and its Section 401(k) plan proposal, and it did not re-assert its IAM pension 35
plan proposal. This left the Union with no retirement proposals, an apparent concession that
retirement would continue to go without mention in the parties’ contracts.28 On August 14,
acting as if it had not already dropped all of its retirement proposals (including Section 401(k)
plan proposals), the Union offered to drop its Section 401(k) plan proposal “if the profit-sharing
stays as it is or we have the option to go to the I.A.M. Pension Plan.” Then, as the August 14 40
session went into August 15, the Union again dropped all of its retirement proposals while
getting nothing in return.29 The Union’s raising, then dropping, then re-raising, then re-dropping
its demand that the Respondent continue the profit-sharing plan as it had previously existed was
not indicative of a genuinely held belief that it had a right to object to what the Respondent
obviously intended to do with the plan. Rather, the Union’s conduct was indicative of an 45
acknowledgment that the Respondent had a right to act unilaterally in regard to the profit-sharing
plan.

It is again to be noted that Krings, the business agent of the Union and its chief negotiator,
did not testify about the bargaining over profit-sharing. And if the Union nevertheless approved 50

27 208 NLRB at 33.
28 Garber’s testimony that the Union’s failure to include any suggestion of retirement benefits in its August 1
proposal was “an oversight” was absolutely incredible.
29 The General Counsel’s argument that the Union dropped its position on the profit-sharing plan in exchange for
other concessions is without foundation. The Union did get other concessions, but there is no evidence that those
concessions were given in exchange for the Union’s dropping its proposal on profit-sharing (or anything else).
JD–130–03
of Garber’s and Dworak’s attempt to acquire a contractual guarantee of the profit-sharing plan,
Krings never opened his mouth to say so during bargaining, even though there was the obvious
threat that the Respondent would do to the represented employees what it had done to the non-
represented employees. It is further to be noted that Krings and the Union did not file charges
over the unilateral action in regard to the Manitowoc Cranes employees’ profit-sharing plan, 5
even though Krings and the Union represent the production and maintenance employees of
Manitowoc Cranes, and even though Manitowoc Cranes and The Manitowoc Company did to
the plan of the employees of Manitowoc Cranes exactly what the Respondent and The
Manitowoc Company did to the plan of the Respondent’s represented employees. (In fact, the
Union-represented employees of Manitowoc Cranes were covered by the same profit-sharing 10
plan that covered the represented employees of the Respondent.) The Union’s failure to file
charges against Manitowoc Cranes speaks volumes. The General Counsel makes no attempt to
explain why the Union would not file a charge over the unilateral action by Manitowoc Cranes if
it really believed that the plan could not be changed unilaterally.30
15
It appears to me, therefore, that the Union never really held, and did not express during
bargaining, a continuing interest in the profit-sharing plan that the Respondent had unilaterally
created, sustained, and historically changed. That is, the issue of the profit-sharing plan was fully
discussed and consciously explored during bargaining, and during that bargaining the Union
consciously yielded to the Respondent’s insistence that the profit-sharing plan would continue to 20
be a management prerogative. The Union yielded by its silence when the Respondent claimed
that profit-sharing was a management prerogative and by its attempted substitution of the IAM
pension plan and increased employer contributions to employees’ Section 401(k) accounts for
the profit-sharing plan. The Respondent’s insistence that the profit-sharing plan would remain a
management prerogative was lawful,31 and the Union acquiesced in that insistence. By that 25
conduct the Union clearly and unmistakably waived its interest in the matter of the profit-sharing
plan.32 Accordingly, I shall recommend dismissal of the allegation that the Respondent
unlawfully modified the profit-sharing plan.

3. The alleged unlawful delay in furnishing information 30

The General Counsel acknowledges that on December 3, 2002, the Respondent furnished
the documentary information about the profit-sharing plan that the Union requested in writing on
October 31. Specifically, the General Counsel does not contest the timeliness or completeness of
that response. The General Counsel does, however, contend that the Respondent unlawfully 35
delayed in answering the questions that the Union orally asked about the changes to the profit-
sharing plan after receiving the July 22 letter that The Manitowoc Company had sent to all
represented employees. To analyze the General Counsel’s position, the first questions of fact are
(1) for what pieces of information did the Union ask, and (2) when did the Union ask for each
piece. Only after those facts are established is the timeliness of the responses to be examined. 40
The General Counsel’s brief assumes that, from July 2002 through January 2003, the Union
asked the same questions, but such is not the case.33

Shortly after the July 22 letter was issued, Dworak asked Brandl (1) how the summary plan
description that accompanied the letter could say that the profit-sharing plan was maintained 45

30 As discussed below, the Union knew of the changes to the profit-sharing plan of the employees of Manitowoc
Cranes by January 10, 2003, if not before.
31 The General Counsel does not contend that it was unlawful for the Respondent’s to insist during the 2001
negotiations that the profit-sharing plan was not negotiable. Also compare Proctor Mfg. Co., 131 NLRB 1166, 1168
(1961), in which the Board found a violation where the employer made unilateral changes in work quotas and
piecework rates, in part, because that employer “did not expressly claim during the negotiations that the matter of
establishing work quotas and piecework rates was within its management prerogative.”
32 See Speidel Corporation, 120 NLRB 733, 740 (1958), which dismissed an allegation that unilateral actions on
bonuses violated Section 8(a)(5) because the employer had rejected a maintenance of benefits proposal thereby
“reiterating in effect its previous position in substance that bonuses were a subject of ‘management prerogative,’
and the union by its complete silence acquiesced in this position.”
33 At brief, p. 58, the General Counsel’s listing of the Union’s January 10, 2003, questions is inaccurate, as is his
statement that they were “the same questions it [the Union] had been asking for months.”
JD–130–03
pursuant to a collective-bargaining agreement with the Union, and (2) what did the letter mean
where it said that Company-wide earnings would be used to figure contributions to the profit-
sharing plan. Brandl replied that he did not know the answers to those questions, but he told
Dworak that he (Brandl) would find out from Musial and return with answers. Neither Brandl
nor Musial returned with answers. 5

On August 7, Garber filed the grievance over the implementation of changes to the profit-
sharing plan.34 The grievance did not request information, but it did allege that the Respondent
had violated the 2001 contract by: “Changing the profit-sharing from the base of Manitowoc Ice,
Inc. to Company-wide.” 10

At the first-step grievance meeting on August 15, Garber asked Dietrich (1) what changes
had been made to the profit-sharing plan, and, specifically, (2) had the vesting requirements
changed. Although Dietrich did not answer those questions, she did recite in her first-step answer
that “The Union contends that profit-sharing is a negotiated item and that profit-sharing should 15
be kept within each separate division rather than shared by all divisions.”

At the second-step grievance meeting on September 25, the Union asked Cayemburg the
same questions that it had asked Dietrich. Cayemburg replied that he would get answers, but
Cayemburg did not do anything except deny the grievance and recite that the Union wanted to 20
know who had made the decision about “changing of the profit-sharing calculation, changing it
from the base of Manitowoc Ice, Inc., to a Company-wide base.”

At the October 4 third-step meeting, the Union asked Mutsch (1) what had changed about
the profit-sharing plan and (2) how the summary plan description could say that the plan was 25
maintained pursuant to a collective-bargaining agreement with the Union. Mutsch replied that he
did not know the answer to either question.

At the January 10 meeting, the Union repeated the first question of October 4, omitted the
second question of that date, repeated the previous question about the meaning of “Company-30
wide” in the July 22 letter, repeated the previous question about vesting, and added 2 more
questions: (1) why had not the Respondent held informational meetings about the plan changes,
and (2) did the profit-sharing plan for the other divisions of The Manitowoc Company,
“particularly Manitowoc Cranes” change. Again, Mutsch gave no answers.
35
At the February 7 meeting, according to Garber, Mutsch told the Union only that the plan
had, in fact, changed, that the changes applied to Manitowoc Cranes and all other subsidiaries of
The Manitowoc Company, that the vesting requirements had not changed and that “Company-
wide” earnings meant the earnings of all subsidiaries of The Manitowoc Company. Garber did
not testify that Mutsch replied to the question about why informational meetings had not been 40
held. (The General Counsel did not ask Garber what Mutsch replied to the question about why
informational meetings were not held. Instead, as quoted above, the General Counsel asked
Garber only what Mutsch replied to a question of why the Respondent had not bargained about
profit-sharing. Garber had not testified that the Union had asked that question, but Garber then
responded to the General Counsel that Mutsch had said that the Respondent did not bargain 45
about changes to the profit-sharing plan because profit-sharing was not a negotiable issue, which
was no more than what the Respondent had contended throughout the 2001 bargaining.)

Although Mutsch’s February 7 answers were extremely cryptic, the General Counsel does
not question their adequacy; the General Counsel questions only the lapse of time involved in 50

34 The Respondent contends that the August 7 grievance was filed and processed only on behalf of the production
workers’ unit, not the maintenance mechanics’ unit. In his testimony, Dworak placed Paul Krejcarek, as
representative of the maintenance mechanics’ unit, at the February 7 meeting. Garber, however, testified that no
representative of the maintenance mechanics’ unit was present at any of the meetings on the August 7 grievance.
Garber would not have so testified if Krejcarek had been present at the February 7 meeting. I credit Garber.
Nevertheless, the grievance was filed on behalf of “[a]ll Union employees,” and this would include the employees
in the maintenance mechanics’ unit, as well as those in the production workers’ unit.
JD–130–03
getting those answers to the Union. In so doing, the General Counsel treats all questions as
having been asked since July 2002, and the General Counsel further assumes that the Union had
none of the information when the questions were asked. Neither assumption is well founded.

The first question that Dworak asked Brandl in July was how the July 22 letter to 5
employees could enclose a summary plan description of the profit-sharing plan that indicated
that the profit-sharing plan was maintained pursuant to a collective-bargaining agreement with
the Union when the Respondent had refused to bargain about the profit-sharing plan during the
2001 negotiations. The General Counsel does not suggest how the answer to this question could
help the Union process grievances, or bargain, in the future.35 The General Counsel can make no 10
such suggestion because the “question” was not really question. It was, at most, a rhetorical
question, an argumentative statement that was only in the form of a question. The Union was, in
effect, arguing that the Respondent was admitting by the statement in the summary plan
description that profit-sharing was a negotiable issue. The Respondent had no duty to respond to
such a rhetorical question. 15

The second question that Dworak asked Brandl in July was what “Company-wide” earnings
meant as used in the July 22 letter. Brandl did not reply (except to say that Musial would be in
touch), but the Union knew early in the process that “Company-wide” earnings meant the
earnings of all of the subsidiaries of The Manitowoc Company, not just the earnings of 20
Manitowoc Ice, Inc., as had been the case in the past. The July 22 letter, itself, which the General
Counsel accepts as notice to the Union of the changes in the profit-sharing plan, was sent by the
“Retirement Plan Committee” of The Manitowoc Company, not a committee of the Respondent.
The letter gave notice that profit-sharing would be calculated by “using Company-wide earnings
and sales as the basis for determining yearly profit-sharing contributions.” The statement was not 25
limited to any one subsidiary of The Manitowoc Company; it plainly included all subsidiaries, as
any objective reading would have disclosed. The August 7 grievance, itself, shows that the
Union knew at all times since July 22 what “Company-wide” earnings meant because that
grievance complains of: “Changing the profit-sharing from the base of Manitowoc Ice, Inc. to
Company-wide.” The employment of this phraseology demonstrates that the Union already knew 30
that “Company-wide” and “Manitowoc Ice, Inc.” were 2 different frames of reference.
Additionally, Dietrich’s September 10 first-step grievance answer stated that the Union was
contending that “profit-sharing should be kept within each separate division rather than shared
by all divisions,” and Cayemburg’s September 25 second-step answer included the statement
that the Union was alleging that the Respondent had violated the 2001 contract by “changing of 35
the profit-sharing calculation, changing it from the base of Manitowoc Ice, Inc., to a Company-
wide base.” Therefore, even if the Union could not comprehend the plain meaning of the July 22
letter, and even if the Union did not actually make the contentions that Dietrich and Cayemburg
recite in their answers, they knew well enough what “Company-wide” earnings meant after they
received those answers. That is, from shortly after July 22, and throughout the process, the 40
Union knew perfectly well what “Company-wide” earnings meant, and it could not have been
prejudiced by Mutsch’s not repeating what that term meant until February 7.

On August 15, September 25, October 4, and January 10 the Union asked how the profit-
sharing plan had changed. The Union received the answers when, on December 3, the 45
Respondent complied with Garber’s October 31 written request for all documents relating to the
plan. The General Counsel makes no argument of how the Union was prejudiced by receiving
the answers in this form, especially since Mutsch expressly offered to supply any additional
information about the supplied materials upon request. Moreover, the General Counsel makes no
argument that the Respondent’s February 7 answer to the question of what had changed is 50
inadequate. That answer, according to Garber, was no more than that “it had changed.” The
Union, of course, knew that the profit-sharing plan had changed; that is why the Union filed the
August 7 grievance in the first place. If this answer was satisfactory on February 7, it would have
been a satisfactory answer when the Union asked it earlier.
55

35 No more negotiations were expected until 2005, when the 2001 contract would approach expiration.
JD–130–03
The question about whether the vesting requirements had changed was first asked in the
September 25 second-step grievance meeting. This question, as well, was answered in the
Respondent’s December 3 submission. (The vesting provisions of the 1997 summary plan
description were the same as those of the 2002 summary plan description.) Again, the General
Counsel makes no suggestion of how the Union could have been prejudiced by the lapse between 5
September and December 3 (again, especially since Mutsch offered to explain anything in the
documents). And, again, the Union was not prejudiced by Mutsch’s not repeating the answer
until February 7.

On January 10, the Union added the questions of why no informational meetings about the 10
profit-sharing plan changes had been held and whether the plans of other divisions, particularly
Manitowoc Cranes, had changed. The General Counsel did not ask Garber what Mutsch
responded to the question about the informational meetings, probably because the General
Counsel recognized that the question was no more than another statement in rhetorical-question
form. It was designed only to state that the Respondent had not acted consistently because it had 15
provided informational meetings for the non-represented employees before their plan was
changed, something that the Union already knew and could easily prove during any subsequent
grievance proceedings. Again, the Respondent is not required to reply to rhetorical devices
merely because they are advanced in the form of questions.
20
On February 7, Mutsch did tell the Union for the first time that the profit-sharing plans for
other subsidiaries of The Manitowoc Company changed, including that of Manitowoc Cranes. Of
course, that question had not been asked until January 10, and the General Counsel has shown no
prejudice to the Union by the one-month time lapse. Moreover, since Krings represented some of
the employees at Manitowoc Cranes, he undoubtedly knew well before that time (probably 25
immediately after the July 22 letters were issued to the Respondent’s employees) that the profit-
sharing plan of the Manitowoc Cranes employees had also changed. At any rate, the information
about what had happened to the other units was not presumptively relevant,36 and the General
Counsel has made no showing of relevance in this case. (In fact, the General Counsel is in the
position of contending that what happened elsewhere is not relevant, as shown by his failure to 30
explain why the Union did not object to the changes that were made to the profit-sharing plan of
the employees whom the Union represented at Manitowoc Cranes.)

I do not accept the Respondent’s defenses that there is no violation because the Union
never placed its requests for information in writing37 or that the Union should have addressed its 35
requests to Musial rather than to subordinate supervisors.38 Nevertheless, I cannot agree with the
conclusion of the General Counsel’s brief on the information issue (at p. 62):

Respondent’s delay in getting the Union answers to its questions about the changes to the
profit-sharing plan meant that the Union could not represent its members or ensure 40
compliance with the collective bargaining agreement or the Act. Additionally, the failure to
timely provide the requested information made meaningful effects bargaining impossible.
As such, the delay constitutes a violation of Respondent’s duty to bargain in good faith.

For these arguments, the General Counsel has alluded to no facts that would support the 45
requested conclusion that the Union could have used the information that it requested if it had
gotten that information faster, and no such facts are in the record. I would therefore, recommend
dismissal of this allegation of the complaint on that basis alone. Moreover, I have found that the

36 See NLRB v. Rockwell-Standard Corporation, 410 F.2d 953, 957 (1969), citing NLRB v. Acme Industrial Co.,
385 U.S. 432, 437 (1967).
37 Tubari, Ltd., 299 NLRB 1223 (1990) (“There is no legal requirement that information requests be in writing, nor
that they be repeated.”)
38 See Arch of West Virginia, 304 NLRB 1089 (1991) where, at fn. 1, the Board found a violation stating: “The
respondent has not shown that it has requested any information not in its possession from its parent corporation and
sister subsidiaries and that they have refused to provide the respondent with such additional information.”
Moreover, as I have indicated above, the Respondent’s argument that Mutsch directed the Union to Musial for
answers relies on a blatant misrepresentation of the record.
JD–130–03
Respondent did not have a duty to bargain about the 2002 changes in the profit-sharing plan;
therefore, the Respondent had no duty to bargain about the effects of those changes, and the
General Counsel’s argument on that point necessarily fails.

I therefore find and conclude that the Respondent did not violate Section 8(a)(5) by failing 5
until February 7, 2003, to furnish to the Union information that the Union already possessed, or
possessed soon after asking, about the profit-sharing plan of the represented employees or by
failing to reply to the Union’s rhetorical questions about the Respondent’s unilateral changes to
the Respondent’s profit-sharing plan.
10
Accordingly, I issue the following recommended39

ORDER

The complaint is dismissed in its entirety. 15

Dated at Washington, D.C.,

_____________________ 20
David L. Evans
Administrative Law Judge

39 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.