Manitowoc Ice, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 2005

344 N.L.R.B. 1222 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 145
1222
Manitowoc Ice, Inc. and International Association of
Machinists and Aerospace Workers, Clipper
City Lodge No. 516, AFL–CIO. Case 30–CA–
16270–1
July 29, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On December 30, 2003, Administrative Law Judge
David L. Evans issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief, and
the Respondent filed cross-exceptions, a supporting brief,
and an answering brief.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.2
Introduction
This case involves unilateral changes made by the Re-
spondent to its profit sharing plan. The General Counsel
and the Union contend that the Respondent’s action was
unlawful because the changes were made without first
bargaining with the Union. The Respondent asserts that
the Union acquiesced in the Respondent’s repeated posi-
tion that it retained sole discretion to amend the plan, and
thereby waived its asserted right to challenge the Re-
spondent’s unilateral changes. For the reasons set forth
below, we agree with the Respondent that, by failing to
dispute the Respondent’s assertions that it retained

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s credibility findings regarding Garber’s testi-
mony, we do not rely on the judge’s discussion of Garber’s use of the
phrase “a negotiated item” instead of the phrase “a negotiable item”
during his testimony.
2 Respondent filed a motion to strike General Counsel’s answering
brief to Respondent’s cross-exceptions, and counsel for the General
Counsel filed a motion to require conformance of Respondent’s reply
brief. Respondent’s motion is denied as the General Counsel’s An-
swering Brief to Cross-Exceptions substantially complies with the
Board’s Rules. In addition, we deny the General Counsel’s Motion to
Require Conformance. The Respondent asserts, without rebuttal, that
its failure to conform its Reply Brief to the Board’s Rules was because
it relied upon the default setting of its word-processing program. In
addition, it appears that, with a correct setting, the brief would have
exceeded the page limit only by a page or two. In view of the uninten-
tional nature of the error, and its limited impact, we will not further
delay this case by requiring conformance.
unlimited discretion with respect to the plan, the Union
bargained away its asserted right to challenge the Re-
spondent’s changes. Accordingly, we conclude that the
Respondent’s changes to the profit sharing plan did not
violate Section 8(a)(5) and (1). We further agree with
the judge that the Respondent did not violate Section
8(a)(5) and (1) through its alleged delay in providing the
Union with requested information.3
Factual Background
The facts, as set forth more fully in the judge’s deci-
sion, are as follows.
Respondent is a corporate subsidy of the Manitowoc
Company, Inc. (Manitowoc). In 1960, Manitowoc uni-
laterally created separate profit-sharing plans for the rep-
resented and nonrepresented employees of all its subsidi-
aries, including the Respondent. Under the plans, the
contributions for the employees of each subsidiary were
directly linked to the profitability of the subsidiary for
which they worked. The Respondent has historically
been one of the most profitable subsidiaries of Manito-
woc.
Over the years, Manitowoc made several changes to
the profit-sharing plans of its subsidiaries, including
changes to eligibility requirements and contribution for-
mulas. The Respondent never gave notice to or bar-
gained with the Union over those changes, and the Union
never complained to the Respondent or filed charges
with the Board in response to any of those changes.
In November 2000, Manitowoc, having decided that
retirement benefits for all of the subsidiaries should be
made more uniform, revised the profit-sharing plan for
the Respondent’s nonrepresented employees. Under the
plan revisions, contribution levels were linked to the
profitability of Manitowoc as a whole, not to the profit-
ability of the Respondent.
In February 2001, the Union and the Respondent en-
tered into negotiations for a new collective-bargaining
agreement. At the first bargaining session, the Union,
aware of the changes that had been made to the profit-
sharing plan of the Respondent’s nonrepresented em-
ployees, proposed that the Respondent agree to “guaran-
tee the current profit-sharing plan for the length of the
agreement.” In response, the Respondent stated that it
had always maintained a right to make changes to the

3 As the judge found, the oral information requests of the Union
were largely rhetorical in nature and, furthermore, the Union had inde-
pendent access to most of the general information requested. In addi-
tion, as the judge notes, the General Counsel did not contest the timeli-
ness or completeness of the Respondent’s provision of plan documents
in response to the Union’s request for information about the profit-
sharing plan, nor did the General Counsel question the adequacy of the
Respondent’s February 7 response to the Union’s oral inquiries.
MANITOWOC ICE, INC. 1223
profit-sharing plan and that it intended to maintain that
right in the future. The Union did not challenge the Re-
spondent’s statement.
At several subsequent bargaining sessions, the Union
reasserted its proposal that the Company guarantee the
profit-sharing plan, and, each time, the Respondent re-
sponded that the profit-sharing plan was not negotiable
and would not be included in any collective-bargaining
agreement. The Union did not contradict or challenge
the Respondent’s assertions, nor did the Union file any
charges with the Board alleging that the Respondent, by
maintaining that the profit-sharing plan was not subject
to negotiations, was failing to bargain in good faith.
On August 15, 2001, the parties reached agreement.
The resulting contract did not contain any specific refer-
ence to the profit-sharing plan, but it did contain a man-
agement-rights clause and a zipper clause.4 The change
involved herein occurred on February 22, 2002.
The Judge’s Decision
The judge concluded, inter alia, that the Respondent
did not violate Section 8(a)(5) and (1) of the Act by uni-
laterally changing its profit-sharing plan without first
bargaining with the Union. We agree with the judge, but
apply a different legal analysis than that set forth in his
decision.
Analysis
In finding that the Respondent was not required to bar-
gain with the Union prior to making changes to the
profit-sharing plan, the judge applied a traditional waiver
analysis. Specifically, the judge found that the issue of
the profit-sharing plan was “fully discussed and con-
sciously explored” during negotiations and that the Un-
ion “consciously yielded” its interest in bargaining over
any changes to the profit-sharing plan.
We analyze the matter somewhat differently, but we
reach the same result. The Board has long recognized
that principles of equitable estoppel will preclude a party
from complaining of a unilateral change in a term or
condition of employment where it has, by its conduct, led
the other party to reasonably believe that it could deal
unilaterally with the subject. See, e.g., Tucker Steel
Corp., 134 NLRB 323, 333 (1961). “Such an estoppel
may of course result even though the party estopped . . .
did not intend to lose or forego its existing rights or did
not consciously agree” that the other party was free to
make unilateral changes. Id.

4 In light of our disposition of this case, we find it unnecessary to
reach the issue whether the management-rights clause and zipper clause
operated as a waiver of the Union’s right to bargain regarding the
profit-sharing plan.
Consistent with these principles, the Board in Speidel
Corp., 120 NLRB 733 (1958), found lawful the em-
ployer’s unilateral discontinuation of a longtime Easter
bonus for unit employees 4 months after the parties had
signed a new contract that, like those before it, was silent
on the subject of bonuses. During contract negotiations,
the employer rejected a “Maintenance of Privileges”
clause proposed by the union and told the union that it
was doing so because it wanted to avoid making con-
tinuation of the bonus a contractual obligation. The un-
ion did not dispute the employer’s position or thereafter
press for acceptance of the proposed clause. As the
Board recognized, the employer
made it clear to the Union that it understood that the
proposed ‘Maintenance of Privileges’ clause covered
bonuses, and that it was adhering to its past position
that bonuses were matters of ‘management preroga-
tive.’ In the face of the Respondent’s bargaining posi-
tion, the Union’s complete silence, and its failure at any
time thereafter to contradict the Respondent’s interpre-
tation of the clause, must be taken to mean that the Un-
ion acquiesced in the Respondent’s understanding.
Speidel Corp., 120 NLRB at 741. On these facts, the Board
held that there was a clear understanding between the par-
ties that the subject of bonuses would remain a management
prerogative and that the union had, therefore, “bargained
away” its interest in the matter of bonuses. Id.
In the Speidel case, the Board cited with approval the
court’s opinion in NLRB v. Nash-Finch Co., 211 F.2d
622 (8th Cir. 1954), wherein the court rejected as “un-
tenable” the position that the employer was required to
maintain insurance benefits and a Christmas bonus for
unit employees after negotiating a collective-bargaining
agreement that did not provide for those benefits and
rejecting a maintenance of standards clause proposed by
the union. The court stated that the employer could
not be convicted of an unfair labor practice for doing
no more and no less for its union employees than its
collective bargaining agreement with them called for.
‘And it is clear that [the] Board may not, either directly
or indirectly, compel concessions or otherwise sit in
judgment upon the substantive terms of collective bar-
gaining agreements.’ . . . It seems to us that what the
Board has done, under the guise of remedying unfair
labor practices, is to attempt to bestow upon the re-
spondent’s union employees the benefits which it be-
lieves the Union should have obtained but failed to ob-
tain for them as a result of collective bargaining with
the respondent on their behalf.
Id. at 627 (internal citation and ellipses omitted).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1224
Applying these principles to the facts of this case, we
find that the Union has acquiesced in the Respondent’s
position that the terms of the profit-sharing plan are a
management prerogative and that, therefore, it is now
equitably estopped from asserting otherwise. As noted
above, the Respondent unilaterally created and, on sev-
eral occasions, modified the plan without giving the Un-
ion notice or an opportunity to bargain, and the Union
acquiesced in all of these unilateral changes. Further-
more, during negotiations for the 2001 agreement, the
Respondent rejected the Union’s proposal that the profit-
sharing plan be guaranteed for the life of the contract and
explained that it was doing so because the plan was a
nonnegotiable management prerogative. The Union re-
asserted its proposal a few times before dropping it, but
did not challenge the Respondent’s position and ulti-
mately entered into a new collective-bargaining agree-
ment that did not contain any reference to the profit-
sharing plan.
On these facts, we find that there was a “clear under-
standing” that the profit-sharing plan would remain a
management prerogative, and that the Union, by its con-
duct set forth above, “bargained away” its interest in the
plan. See Tucker Steel Corp., 134 NLRB at 333; Speidel
Corp., 120 NLRB at 741. By challenging the Respon-
dent’s unilateral changes to the plan, after abandoning its
effort in collective-bargaining to make the plan a con-
tractual benefit, the Union is, in effect, attempting to de-
prive the Respondent of the benefit of its bargain. Ac-
cordingly, because the Respondent has done “no more
and no less for its union employees than its collective
bargaining agreement with them called for,” we decline
to find that its conduct constituted an unfair labor prac-
tice.5 See NLRB v. Nash-Finch Co., 211 F.2d at 627.6
Our concurring colleague agrees that the Respondent
did not violate Section 8(a)(5) and (1) by unilaterally
modifying its profit-sharing plan in 2002, essentially for
the reasons stated above. Our colleague asserts, how-
ever, that because the Union has now challenged the Re-

5 Chairman Battista agrees that the Respondent was equitably es-
topped from protesting the unilateral change of the profit-sharing plan
in February 2002. However, he also relies upon the judge’s finding that
the Union “consciously yielded” its position on profit sharing, and it
did so during the bargaining for the 2001 contract. During those nego-
tiations, the Union sought a clause that would forbid unilateral changes
in profit sharing during the life of the contract. The Respondent re-
sisted, based on its asserted right to make such changes. The Union
withdrew the proposal. In these circumstances, the change of February
2002 was privileged.
6 Because we have dismissed this complaint allegation for the rea-
sons stated above, we find it unnecessary to address the Respondent’s
contention that the complaint also should be dismissed on a “contract
coverage” theory. See Honeywell International, Inc. v. NLRB, 253 F.3d
125 (D.C. Cir. 2001) (explaining contract coverage doctrine).
spondent’s “supposed management prerogative,” the
Respondent is now “on notice that it acts unilaterally at
its peril.”
The question of whether the Respondent has the right
to make further unilateral changes to the profit-sharing
plan is not before us. Accordingly, there is no need to
finally resolve that issue here. Our decision to not re-
spond to our colleague is not to be taken as an implied
agreement with her. Indeed, we have strong reservations
about her view.7
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
MEMBER LIEBMAN, concurring in part and dissenting in
part.
I write separately on two issues: First, I agree with the
majority that, in the unusual circumstances presented, the
Respondent did not violate the Act by unilaterally chang-
ing its profit-sharing plan. My colleagues reach back 40
years and more to find factually analogous cases, where
equitable estoppel principles were applied—as opposed
to the well-established waiver doctrine applied by the
judge here. While I have misgivings about appearing to
endorse yet another analytical approach to unilateral-
change cases,1 I conclude that the Respondent was free to
make the change at issue. But it also seems to me that
future changes would be a different story. Second, in
contrast to the majority and the judge, I would find that
the Respondent violated Section 8(a)(5) by its delay in
providing the Union with requested information.
I.
Profit-sharing plans are indisputably a mandatory sub-
ject of bargaining under the Act.2 Here, the Respondent
employer clearly seems to have violated Section 8(a)(5)
by refusing to bargain over its profit-sharing plan during
contract negotiations with the Union, despite the Union’s

7 Without deciding the issue, Chairman Battista also notes that,
given the Union’s “conscious yielding” during the negotiations for the
2002 contract on the issue of the Respondent’s right to make changes to
the profit-sharing plan, it would appear that the matter is resolved, in
favor of the right to change, for the life of that contract.
1 The “clear and unmistakable” waiver standard has long been estab-
lished in Board law. See, e.g., C & C Plywood Corp., 148 NLRB 414
(1964), enf. denied, 351 F.2d 224 (9th Cir. 1965), rev’d & remanded
for enforcement, 385 U.S. 421 (1967). As the majority’s decision
implicitly acknowledges (see fn. 1), the Board also has been urged to
adopt the so-called “contract coverage” doctrine, favored by some
appellate courts.
2 See, e.g., Dickten & Masch Mfg. Co., 129 NLRB 112 (1960). See
also Como Plastics, 143 NLRB 151, 155–156 (1963) (employer vio-
lated Section 8(a)(1) by threatening to refuse to bargain with union over
profit-sharing plan).
MANITOWOC ICE, INC. 1225
repeated efforts. But the Union failed to file a timely
unfair labor practice charge over the Respondent’s re-
fusal to bargain during negotiations. A charge was filed,
rather, only after the Respondent unilaterally changed the
plan, without giving the Union notice and an opportunity
to bargain.
The judge found no violation, concluding that the Un-
ion’s conduct during negotiations—in his words, it “con-
sciously yielded to the Respondent’s insistence that the
profit-sharing plan would continue to be a management
prerogative”—amounted to a clear and unmistakable
waiver of its right to bargain.
My colleagues reach the same result by a somewhat
different route. They find that the “Union has acquiesced
in the Respondent’s position that the terms of the profit-
sharing plan are a management prerogative, and is now
equitably estopped from asserting otherwise.” The ma-
jority cites: (1) the Union’s acquiescence in prior unilat-
eral changes to the profit-sharing plan; (2) the Respon-
dent’s rejection (asserting that the plan was non-
negotiable management prerogative) of union proposals
that the profit-sharing plan be guaranteed for the life of
the new contract; and (3) the Union’s failure to challenge
the Respondent’s position and its agreement to a new
contract that did not refer to the plan. As a result, say my
colleagues, the Union “‘bargained away’ its interest in
the plan.”
In my view, while a “clear and unmistakable” waiver
cannot be established,3 it is nevertheless fair to conclude
that the Union is estopped from challenging the specific
change at issue here. Given the Union’s failure to file a
charge during the negotiations, and its apparent acquies-
cence then in the (mistaken) view that the plan was a
management prerogative, the Respondent was entitled to
believe that it could make the change unilaterally.4 But

3 The Union did not remain silent in the face of the Respondent’s as-
serted management prerogative to make unilateral changes to the profit-
sharing plan. During the parties’ negotiations, the Union raised the
issue of profit-sharing on six separate occasions. On five out of six
occasions, the Union raised the issue after the Respondent’s initial
statement that profit sharing was nonnegotiable. Simply because the
Union was ultimately unsuccessful in pressing for inclusion of its
profit-sharing plan proposal in the parties’ contract does not mean that
it agreed that the profit-sharing plan was a nonnegotiable issue. See
Leeds & Northrup Co., 162 NLRB 987, 992–993 (1967), enfd. 391
F.2d 874 (3d Cir. 1968); Press Co., 121 NLRB 976 (1958). Nor does
the Union’s acquiescence to prior unilateral changes in the profit-
sharing plan support a waiver finding. See, e.g., Owens-Corning Fi-
berglass, 282 NLRB 609 (1987).
4 Arguably, the Respondent’s position in negotiations deprives it of
clean hands and weighs against permitting it to benefit from an equita-
ble doctrine. See Diversified Bank Installations, Inc., 324 NLRB 457,
461, 465 (1997). But the Union’s own failure to file an unfair labor
practice charge, challenging the Respondent’s refusal to negotiate,
that one-time reliance cannot provide a continuing basis
on which to act unilaterally with respect to the profit-
sharing plan, which remains a mandatory subject of bar-
gaining under the Act.5 The Union has now challenged
the Respondent’s supposed management prerogative, and
the Respondent is thus on notice that it acts unilaterally
at its own peril. Notably, no language in the current
agreement affirmatively authorizes the Respondent to act
unilaterally with respect to the plan. Cf. T.T.P. Corp.,
190 NLRB 240 (1971) (no waiver of right to bargain
over termination of unilaterally-established pension plan,
despite failure of collective-bargaining agreements to
refer to plan).
II.
Turning to the information-request issue, I would find
that the Respondent violated Section 8(a)(5) by its delay
in providing the Union with the requested information.
Immediately following the announcement of changes
to the unit employees’ profit-sharing plan on July 22,
2002, the Union requested information concerning those
changes. On August 7, 2002, the Union filed a grievance
over the unilateral changes. Thereafter, the Union made
additional requests for information, including a request
for the latest version of the plan documents. Although
those documents were requested on October 31, 2002,
the Respondent did not supply those documents until
December 3, 2002. Even then, the Respondent did not
fully respond to the Union’s questions until early 2003.
An employer must supply relevant information in a
timely fashion. Mary Thompson Hospital, 296 NLRB
1245, 1250 (1989). Contrary to the judge, the issue here
is not whether the Union was prejudiced by the delayed
receipt of the requested information, but whether that
relevant information was received in a timely manner. It
was not. Although the Union’s grievance was filed back
in August, and the Union requested copies of the plan
documents, it took the Respondent almost 2 months to
meet the Union’s request. Indeed, at the meetings over
the Union’s grievance, the Respondent’s representatives
were unable to answer the Union’s questions, making
such meetings unproductive. Nor was the Union’s right
to the information defeated merely because it could have
acquired the needed information through an independent
course of action. Kroger Co., 226 NLRB 512, 513
(1976). Accordingly, I would reverse the judge’s dis-
missal of this complaint allegation.

means that the Respondent’s apparently unlawful conduct is not before
us.
5 See, e.g., Owens-Brockway Plastic Products, 311 NLRB 519, 526
(1993); Exxon Research & Engineering Co., 317 NLRB 675, 685–686
(1995), enf. denied on other grounds 89 F.3d 228 (5th Cir. 1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1226
Andrew S. Gollin and Joyce Seiser, Esqs., for the General
Counsel.
Clifford B. Buelow and Joel S. Aziere, Esqs., of Milwaukee,
Wisconsin, for the Respondent.
Cristina Munoz, Representative, of Westchester, Illinois, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case un-
der the National Labor Relations Act (the Act) was tried before
me in Milwaukee, Wisconsin, on September 30 through Octo-
ber 2, 2003. On December 5, 2002, in Case 30–CA–16270–1,
International Association of Machinists and Aerospace Work-
ers, 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 Respon-
dent), had failed and refused to bargain with the Union as the
statutory representative of certain of the Respondent’s employ-
ees 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 Un-
ion 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 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.
Upon the testimony and exhibits entered at trial,1 and upon
an exhibit submitted posthearing,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
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 manu-
facturing commercial ice machines and storage bins. During
the year ending December 31, 2002, the Respondent sold and

1 Certain passages of the transcript have been electronically repro-
duced; some corrections to punctuation have been entered. Where I
quote a witness who restarts an answer, and that restarting is meaning-
less, 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. Exh. 51, certain proposals from negotiations between the par-
ties, submitted posthearing 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. Exh. 51 is received as
ALJ’s exh. 1; the Respondent’s reply letter, dated October 27, 2003, is
received as ALJ’s exh. 2.
shipped goods and materials valued in excess of $50,000 di-
rectly to purchasers located at 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 organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background and basic contentions
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 Mani-
towoc Company divides its subsidiaries into 3 groups: Manito-
woc 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 Shipbuild-
ing Corporation (Bay Ship). The Respondent and Manitowoc
Cranes are located in Manitowoc, Wisconsin; Bay Ship is lo-
cated in Sturgeon Bay, Wisconsin. The Respondent, Manito-
woc Cranes and Bay Ship are sometimes referred to as the
Manitowoc Company’s “old companies” because they (or their
corporate predecessors) preexisted all other of the subsidiaries.
From at least the 1950s, the Union has represented all of the
Respondent’s production and maintenance employees in two
separate units. The Union represents about 277 employees in a
“production workers’ unit,” and it represents about 10 employ-
ees 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 two units
that were negotiated in 1997 expired on July 1, 2001. The par-
ties 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 employ-
ees (hourly and salaried) who are not represented by any labor
organization (the nonrepresented 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; some of the employees there are represented by sev-
eral other unions in separate units.

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).
MANITOWOC ICE, INC. 1227
The International Association of Machinists maintains a pen-
sion 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 which retired employees of its sub-
sidiaries could draw. In 1960, the Manitowoc Company cre-
ated 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 nonrepresented employees of the
Respondent, Manitowoc Cranes, and Bay Ship. The Manito-
woc Company and its subsidiaries created these benefits unilat-
erally; that is, they did not negotiate with any union before
creating and implementing the plans for the represented em-
ployees. 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 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 re-
flects such changes by amendments to the profit-sharing plan
that were made in 1961, 1963, 1973, 1984, 1989, and 1994;
those changes involved such matters as eligibility and contribu-
tion formulas. The Respondent never gave notice to, or bar-
gained 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) 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 percent of their annual earnings, the
maximum allowable under IRS regulations. The maximum was
reached each year, in part, because contributions were calcu-
lated 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.
In 2000, the Manitowoc Company’s board of directors de-
cided 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 nonrepresented employees
of the Respondent, Manitowoc Cranes, and Bay Ship would be
based on the combined profits of all subsidiaries of the Mani-
towoc Company, worldwide, and not just the profits of the
subsidiaries for which the employees worked. After the an-
nouncement, the Respondent held meetings with the non-

4 At the time, the Respondent had a different corporate name.
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 repre-
sented employees during 2001, 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 Manito-
woc 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 repre-
sented employees’ profit-sharing accounts. Consistent with
what had 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 employ-
ees’ profit-sharing plan would be made on the basis of the
combined earnings of all of the Manitowoc Company’s sub-
sidiaries, 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 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 percent of their annual earn-
ings. The Respondent held no meetings to explain to the repre-
sented employees the changes that had been made to their
profit-sharing plan.
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 Mani-
towoc Company’s February 22, 2002 resolution.8 The com-
plaint 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 diminutions in those contributions,9 the Re-
spondent violated Section 8(a)(5). The General Counsel further
alleges that the Respondent violated Section 8(a)(5) by delay-
ing from August 2002 until February 7, 2003, the furnishing of

5 In this instance, “hourly” was the Manitowoc Company’s termi-
nology for union-represented employees.
6 R. Exh. 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.”
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 ne-
gotiations 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 percent, they received employer contribu-
tions to their profit-sharing accounts of about $6000. For 2002, when
the rate was 1.29 percent, they received about $600.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1228
requested information about its changes to the represented em-
ployee’s profit-sharing plan.10
The Respondent first contends that the complaint’s allega-
tions that it made unlawful unilateral changes to the profit-
sharing plan are not supported by a charge that was filed within
the 6-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 Re-
spondent further contends it notified the 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 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 sup-
ported by a timely charge, the Union waived any right to com-
pel it to bargain about the changes by (1) its historical failures
to object to unilateral changes in the profit-sharing plan that the
Respondent had made over the years (including the establish-
ment 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 agree-
ment to zipper and management rights clauses in the 2001 con-
tract.12
In denying that it unlawfully delayed furnishing information
about changes in the profit-sharing plan, the Respondent con-
tends 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 Feb-
ruary 7, 2003.
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
chairman of the Union’s internal “bargaining and shop” com-
mittee (which committee bargains with the Respondent in ne-
gotiations of contracts and which also processes grievances for

10 Although the complaint alleges a continuing refusal to furnish in-
formation, the General Counsel concedes on brief, as he did in his
opening statement, that the Respondent furnished the requested infor-
mation 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.
both 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 negotia-
tions 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 the Respondent’s chief
spokesman at the 2001 negotiations. Doug Cayemburg, 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 con-
cerning profit-sharing during the 2001 negotiations, or about
what happened before those negotiations began. Dworak, how-
ever, testified that: “Well, we had heard prior to 2001 negotia-
tions 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 collective-bargaining
agreement for the first time.
During the February 8 bargaining session, the Union pro-
posed that: “The Company will agree to guarantee the current
profit-sharing plan for the length of this agreement. The Com-
pany shall also match the first 3% of any Union employee’s
401(k) contribution.”13 As noted, neither the profit-sharing
plan nor a 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 employ-
ees had heard that the Respondent had recently changed the
profit-sharing plan of the nonrepresented employees and “there
was a little bit of nervousness out of our membership.” On
cross-examination Garber admitted that he knew before nego-
tiations began that the Respondent had changed the profit-
sharing plan of the nonrepresented employees to a basis of the
earnings of the Manitowoc Company,14 and Garber admitted

13 The Union made this and other such proposals for both the pro-
duction 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 employ-
ees’ 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.
MANITOWOC ICE, INC. 1229
that the Union’s bargaining committee knew that the non-
represented employees were “not happy” about the change.
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 main-
tained a right to make changes in the profit-sharing plan and
that it intended to maintain that right in the future.
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 Cayem-
burg denied that anyone on the Union’s bargaining committee
ever claimed that profit-sharing was negotiable. Again, al-
though 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 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 negotia-
ble. I credit 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 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 importance. The conflict, however, is
a good 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
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 profit-
sharing so we can present our pension plan.”
During a February 23 bargaining session, the Union pro-
posed: “The Company shall match the first 3 percent 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 made no reference
to profit-sharing. Garber testified that the Union made the pro-

15 The General Counsel, rather than asking his witnesses if events
had happened, asked only if they could recall if the events had hap-
pened. Negative answers to such questions, of course, were less than
denials.
posal for the IAM pension plan in lieu of a profit-sharing provi-
sion 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 an hour figure by estimating the value of the
benefit to the 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 Un-
ion agreed to do so, but never did.)
During a March 16 bargaining session, the Union proposed
to drop its proposal for the IAM 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.
During a March 22 bargaining session, the Union resubmit-
ted its proposal of February 22, except that it dropped the re-
quested amount of contributions to the IAM pension plan from
$3 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 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
unanimously (217–0) rejected. On cross-examination, Garber
acknowledged that profit-sharing was discussed at the ratifica-
tion 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 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 resubmitted
its proposal of February 8 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 percent
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 con-
tract’s period.
During a July 31 bargaining session, the parties again ad-
dressed the Union’s proposal of a 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 negotia-
ble.
Q. And what, if anything, did the Union say in re-
sponse?
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1230
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.
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 the obvious vacuity in the General Counsel’s pres-
entation, the failure to ask the chief negotiator what had hap-
pened. 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-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 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 con-
tract, but he could not explain why profit-sharing was not men-
tioned, 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 Re-
spondent would agree to guarantee the profit-sharing plan.
Musial did 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 submit-
ted a written proposal that it would drop its proposal for a 3
percent Section 401(k) match if “profit-sharing stays as it is or
we have [the] option to go to IAM pension plan.” Musial re-
peated 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.
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) be-
cause:
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 de-
cided that the drug testing and the 401(k) and the union office
and the profit-sharing language were not that important be-
cause—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 get-
ting the 15 percent so we had decided to just take it off the ta-
ble.
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 Com-
pany.” The contract also contains the following zipper clause:
“This Agreement represents the entire agreement between the
Company and the Union. It replaces all previous agreements[,]
either written or verbal, and represents the conclusion of collec-
tive bargaining.”
3. The 2002 alleged unilateral action
On February 12, 2002, the Respondent posted on each of its
employee bulletin boards copies of a two-page 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 deter-
mination on the qualification of . . . Manitowoc Ice, Inc.,
Hourly Paid Employees’ Deferred Profit-sharing Plan.” The
notice states that “interested parties” have the right, individu-
ally 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 “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 earn-
ings of all of the Manitowoc Company’s subsidiaries, world-
wide, rather than just the Respondent’s earnings, as a basis for
calculating the profit-sharing benefit.
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, Manito-
woc Cranes and Bay Ship, a letter stating:
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 par-
ticipate in the Plan is enclosed for your information.
A new favorable determination letter is regularly re-
quested after the Plan has been amended. The most recent
previous application for a favorable determination letter

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.
MANITOWOC ICE, INC. 1231
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.
The changes made since the effective date of the last
determination letter include technical and boilerplate lan-
guage changes required by statutes enacted since the prior
determination letter, updating Plan administrative provi-
sions to be consistent with current record-keeping proce-
dures, using Company-wide earnings and sales as the basis
for determining yearly profit-sharing contributions, and al-
locating employer contributions only on the basis of com-
pensation instead of compensation and years of service.
The following legislation required changes to technical
provisions of the Plan: [six statutes listed].
Each letter was signed by Musial as representative of the Mani-
towoc 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, Manito-
woc 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 mainte-
nance mechanics’ unit) 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.
The Respondent adduced testimony that the Post Office util-
izes procedures that should virtually guarantee receipt when a
properly addressed letter is certified and return receipt is re-
quested. 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
On July 22, 2002, the “Retirement Plan Committee” of the
Manitowoc Company sent to each of the Respondent’s repre-
sented 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

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 seek-
ing “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 Re-
spondent’s witness Jeffrey John Queen, window manager of the Mil-
waukee 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, are “one out of 20,000.”
quoted above. The summary plan description which was in-
cluded with the letters to the employees recited:
The Manitowoc Company, Inc., sponsors the Plan. Subsidi-
ary corporations of The Manitowoc Company, Inc., are par-
ticipating employees in the Plan. The Plan is also 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 description by IRS regula-
tions, 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 be-
cause a witness of the General Counsel claims that he men-
tioned it to a supervisor when information was being requested,
as discussed below.)
Garber and Dworak, being current employees of the Respon-
dent 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
General Counsel claims, however, that the receipt of the July
22 letter was the first time that the Union (through the employ-
ees such as Garber and Dworak or otherwise) received notice
that there had been such a change.
4. The alleged delay in furnishing information
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 Manito-
woc Company’s July 22 letter and the summary plan descrip-
tion, he took them to the plant. He approached Dan Brandl, the
Respondent’s manager of production, with the documents and:
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 be-
tween [the Respondent and] the International Association
of Machinists.”
And I says, “What does that mean? . . . [W]e were told
straight out it was non-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.”
And he says, “I’ll try and get you some answers.”
Dworak testified that Brandl never got back to him on the mat-
ter. Brandl did not testify.19

19 On brief, p. 29, the Respondent states: “Brandl informed Dworak
that because the profit-sharing plan was completely controlled by cor-
porate, he should contract Musial with any questions. (Tr. 189).” At p.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1232
On August 7, 2002, Garber and Harold Olson (another mem-
ber of the Union’s bargaining and shop committee) filed Griev-
ance 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 em-
ployee who 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 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.
Grievance 656 is denied; profit-sharing is not a negoti-
ated item. There is no violation by the Company within
the Collective Bargaining Agreement.
Dietrich did not testify.
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 Cayem-
burg 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 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.
Later on September 25 Cayemburg returned the grievance
stating:
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 deci-
sion.
—The Union’s position is that retirement benefits are a
negotiated item.
—The Union would also like to know what the new in-
formation exactly means.

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 testi-
mony demonstrates, these statements are false.
As settlement, the Union would like to keep the profit-
sharing calculation the same as it was, and to negotiate any fu-
ture changes.
[Answer:] There is no violation of the collective-
bargaining agreement; the grievance is denied.
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, how-
ever, appeared for the Respondent at the October 4 meeting.
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 communi-
cated to the Union that he would not be appearing at third-step
grievance meetings after July, he did not so testify.)
There was no preset 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 dis-
cuss grievances when they are in the procedures, but what’s
with the profit-sharing and [Grievance 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 negotiations we were told this is non-negotiable.”
Mutsch replied that he did not know and asked what other ques-
tions Dworak had. Dworak asked “what changed in this whole
thing?” Mutsch replied that he did not know. The parties ad-
journed, Dworak further testified, with the understanding that
the August 7 grievance would be discussed at a later meeting.
On October 31, Garber sent a letter to the Respondent’s hu-
man resources department requesting “copies of all Plan docu-
ments 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 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.”
By letter dated December 3, Mutsch stated to the Union:
“Enclosed are the requested plan documents relevant to the

20 I agree with the Respondent that, despite testimony by Dworak
that he was surprised that the August 7 grievance had not been men-
tioned earlier during the October 4 meeting, this quotation shows that
he had not really expected it to be discussed on that date. This is an-
other example of why I discredit Dworak (as well as Garber) in con-
flicts with the Respondent’s witnesses.
MANITOWOC ICE, INC. 1233
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].”
By letter dated December 11, Mutsch responded to the Au-
gust 7 grievance by stating: “Grievance denied. The grievance
was not filed in a timely manner. There was no violation of 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.
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 griev-
ance committee. Krings testified that the committee asked
Mutsch where Musial was and that Mutsch replied that “he
couldn’t 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 an-
swers, but he asked the following questions: (1) What had
changed in the profit-sharing plan? (2) Why had the Respon-
dent not held an informational meeting for the 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.”
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 evi-
dence of what those answers were is contained in the following
examination of Garber by the General Counsel:
Q. And what was Mr. Mutsch’s response to the Un-
ion’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 applied to other divisions?
A. He said yes, it did and particularly [to] Manitowoc
Crane.
Q. What, if anything, did he say concerning the Un-
ion’s question of whether vesting had changed?
A. He said no, the vesting had not changed.
Q. What, if anything, did he say as to how calcula-
tions were going to be done?
A. Oh. He said that the Company-wide earnings . . .
meant the whole Manitowoc Company, not just Manito-
woc Ice anymore.
Q. Okay. And what, if anything, did he say concern-
ing the Union’s question of why this wasn’t bargained
over?
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 answers to all outstanding
Union questions about the profit-sharing plan. (Again, the
General Counsel alleges only a delay in the Respondent’s fur-
nishing those responses.)
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 Un-
ion by computing the benefits of 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 ad-
mits 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 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 6-month
limitations period of Section 10(b).
1. The 10(b) defense
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 6-months
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 the Respon-
dent, 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 at-
tempt 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 unilat-
eral action until it received the Respondent’s July 22 letter from
the employees.22 Therefore, I reject the Respondent’s position
that the December 5, 2002 charge herein was filed outside the
6-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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1234
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 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
unmistakable, the contractual language as well as the negotia-
tions 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 Co.,
241 NLRB 869, 870 (1979); C & C Plywood Corp., supra.
That is, the law disfavors findings of 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 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 ne-
gotiations 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 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.
I disagree with the Respondent’s position on brief that the
absence of reference to the profit-sharing plan in the 2001 con-
tract, 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 Press Co., 121 NLRB
976 (1958). A union does not risk the peril of employer unilat-
eral actions in regard to a term or condition of employment just
because that union is unsuccessful in attempts to secure memo-
rialization 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 Re-

23 See Wayne Memorial Hospital Assn., 322 NLRB 100 (1996), and
cases cited therein.
spondent’s contention that the zipper clause of the 2001 con-
tract compels the finding of a waiver. In this case, the zipper
clause is extremely narrow, covering only “all previous agree-
ments,” and it says nothing about matters upon which there was
no agreement,24such as 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 bene-
fits.26 Therefore, I find that there is nothing within (or absent
from) the 2001 contract itself that demonstrates that the Union
waived its right to object to the unilateral action of the Respon-
dent in regard to profit sharing.
Whether the Union, by its conduct prior to and during the
2001 negotiations, waived its right to object to the Respon-
dent’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 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 unilat-
erally to the profit-sharing plan over the years. (4) The Union
knew that the Respondent had reduced the profit sharing benefit
of the nonrepresented employees by converting their plan to
one that is based on the earnings of all subsidiaries of the Mani-
towoc 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 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 repre-
sented employees, even though (a) the Union knew that the
Respondent had changed the 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

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 Press Co.
25 Radioear Corp., 214 NLRB 362 (1974), as cited by the Respon-
dent, 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
(1985) (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.)
MANITOWOC ICE, INC. 1235
401(k) accounts as replacements for the profit-sharing plan.
(10) The Respondent rejected those proposals as well, but the
Union nevertheless agreed to the 2001 contract without refer-
ence to retirement benefits.
On brief, the Respondent argues that these aspects of the bar-
gaining demonstrate that the Union waived its right to object to
the unilateral action, but it cites as authorities only cases in
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 bar-
gaining did not constitute a waiver, but each of those cases is
distinguishable on one or more significant factors.
In Press Co., 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 em-
ployer’s contention that during bargaining the union waived its
right to object to the unilateral 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 com-
missions, 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 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”) nonrepresented employees by chang-
ing 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 would do to the rep-
resented employees what it had done to the nonrepresented
employees. That is, unlike the union in Press Co., 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 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. Moreover, in Bunker Hill the em-
ployer 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 (1965), does
not contain an applicable holding; the Board, in fact, dismissed
the complaint, 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 & Finishing Co., 121 NLRB 953 (1958), em-
ployee workloads were not mentioned in the parties’ agree-

27 208 NLRB at 33.
ment. During the term of that agreement, the employer in-
creased the workloads unilaterally. The Board noted that, dur-
ing the bargaining that had resulted in the agreement, the em-
ployer had refused to discuss the matter, not because it consid-
ered workloads to be a management prerogative (as is the case
here), but because its competitors did not have workload re-
strictions in their labor agreements. At Beacon Piece Dyeing &
Finishing Co., 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 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 unilat-
eral action) it has acted unilaterally in regard to the profit-
sharing plan.
That the Union had resigned itself to the noncontinuation 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 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 em-
ployee of the profit-sharing plan during the period of the 1997–
2001 contract. As the Union proposed the 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 con-
tract.
Moreover, on March 16 and 22, the Union offered to drop its
proposals for the IAM 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 reproposed the profit sharing plan and added a pro-
posal for the Respondent to make 3 percent matching contribu-
tions to the employees’ 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 reassert its IAM pension
plan proposal. This left the Union with no retirement propos-
als, 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 pro-
posals (including 401(k) plan proposals), the Union offered to
drop its 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 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 reraising,
then redropping its demand that the Respondent continue the
profit-sharing plan as it had previously existed was not indica-
tive of a genuinely held belief that it had a right to object to

28 Garber’s testimony that the Union’s failure to include any sugges-
tion 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 posi-
tion 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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1236
what the Respondent obviously intended to do with the plan.
Rather, the Union’s conduct was indicative of an acknowledg-
ment that the Respondent had a right to act unilaterally in re-
gard 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 bargain-
ing over profit-sharing. And if the Union nevertheless ap-
proved of Garber’s and Dworak’s attempt to acquire a contrac-
tual 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 repre-
sented employees what it had done to the nonrepresented em-
ployees. It is further to be noted that Krings and the Union did
not file charges over the unilateral action in regard to the Mani-
towoc Cranes employees’ profit-sharing plan, 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 Respon-
dent’s represented employees. (In fact, the Union-represented
employees of Manitowoc Cranes were covered by the same
profit-sharing 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
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 be a management
prerogative. The Union yielded by its silence when the Re-
spondent claimed that profit sharing was a management pre-
rogative and by its attempted substitution of the IAM pension
plan and increased employer contributions to employees’ Sec-
tion 401(k) accounts for the profit-sharing plan. The Respon-
dent’s insistence that the profit sharing plan would remain a
management prerogative was lawful,31 and the Union acqui-
esced in that insistence. By that conduct the Union clearly and
unmistakably waived its interest in the matter of the profit-

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. Corp.,
131 NLRB 1166, 1168 (1961), in which the Board found a violation
where the employer made unilateral changes in work quotas and piece-
work 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.”
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
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 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. 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
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.
On August 7, Garber filed the grievance over the implemen-
tation of changes to the profit-sharing plan.34 The grievance
did not request information, but it did allege that the Respon-
dent had violated the 2001 contract by: “Changing the profit-
sharing from the base of Manitowoc Ice, Inc. to Company-
wide.”
At the first-step grievance meeting on August 15, Garber
asked Dietrich (1) what changes had been made to the profit-

32 See Speidel Corp., 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 Janu-
ary 10, 2003 questions is inaccurate, as is his statement that they were
“the same questions it [the Union] had been asking for months.”
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 Kre-
jcarek had been present at the February 7 meeting. I credit Garber.
Nevertheless, the grievance was filed on behalf of “[a]ll Union employ-
ees,” and this would include the employees in the maintenance mechan-
ics’ unit, as well as those in the production workers’ unit.
MANITOWOC ICE, INC. 1237
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 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 know who had made the deci-
sion 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 main-
tained pursuant to a collective-bargaining agreement with the
Union. Mutsch replied that he did not know the answer to ei-
ther question.
At the January 10 meeting, the Union repeated the first ques-
tion of October 4, omitted the second question of that date,
repeated the previous question about the meaning of “Com-
pany-wide” in the July 22 letter, repeated the previous question
about vesting, and added two 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 divi-
sions of the Manitowoc Company, “particularly Manitowoc
Cranes” change. Again, Mutsch gave no answers.
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. Gar-
ber did not testify that Mutsch replied to the question about
why informational meetings had not been 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 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 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 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 griev-
ances, or bargain, in the future.35 The General Counsel can
make no such suggestion because the “question” was not really
a question. It was, at most, a rhetorical question, an argumenta-
tive statement that was only in the form of a question. The
Union was, in effect, arguing that the Respondent was admit-
ting by the statement in the summary plan description that prof-
it sharing was a negotiable issue. The Respondent had no duty
to respond to such a rhetorical question.
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 “Com-
pany-wide” earnings meant the earnings of all of the subsidiar-
ies of the Manitowoc Company, not just the earnings of Mani-
towoc 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 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 that “Company-wide” and “Manitowoc
Ice, Inc.” were two 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 divi-
sions,” 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 the
profit-sharing calculation, changing it from the base of Mani-
towoc 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 con-
tentions 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 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

35 No more negotiations were expected until 2005, when the 2001
contract would approach expiration.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1238
Union received the answers when, on December 3, the Respon-
dent 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 materi-
als upon request. Moreover, the General Counsel makes no
argument that the Respondent’s February 7 answer to the ques-
tion of what had changed is inadequate. That answer, accord-
ing 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.
The question about whether the vesting requirements had
changed was first asked in the September 25 second-step griev-
ance meeting. This question, as well, was answered in the Re-
spondent’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 Coun-
sel makes no suggestion of how the Union could have been
prejudiced by the lapse between 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 in-
formational meetings about the 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 state-
ment in rhetorical-question form. It was designed only to state
that the Respondent had not acted consistently because it had
provided informational meetings for the nonrepresented em-
ployees before their plan was changed, something that the Un-
ion 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.
On February 7, Mutsch did tell the Union for the first time
that the profit-sharing plans for other subsidiaries of the Mani-
towoc 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 1-month time lapse. Moreover, since Krings represented
some of the employees at Manitowoc Cranes, he undoubtedly
knew well before that time (probably 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

36 See NLRB v. Rockwell-Standard Corp., 410 F.2d 953, 957 (1969),
citing NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967).
contending that what happened elsewhere is not relevant, as
shown by his failure to 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 infor-
mation in writing37 or that the Union should have addressed its
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 ques-
tions about the changes to the profit-sharing plan meant that
the Union could not represent its members or ensure compli-
ance with the collective bargaining agreement or the Act.
Additionally, the failure to timely provide the requested in-
formation 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 requested conclusion that the Un-
ion could have used the information that it requested if it had
gotten that information faster, and no such facts are in the re-
cord. I would therefore, recommend dismissal of this allegation
of the complaint on that basis alone. Moreover, I have found
that the Respondent did not have a duty to bargain about the
2002 changes in the profit-sharing plan; therefore, the Respon-
dent 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 until February 7, 2003, to
furnish to the Union information that the Union already pos-
sessed, 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.
Accordingly, I issue the following recommended39
ORDER
The complaint is dismissed in its entirety.

37 Tubari, Ltd., 299 NLRB 1223 (1990) (“There is no legal require-
ment that information requests be in writing, nor that they be re-
peated.”).
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 par-
ent 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 misrepre-
sentation of the record.
39 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.