Missouri Farmers Association, Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1971

194 N.L.R.B. 495 (N.L.R.B. 1971)

MISSOURI FARMERS ASSOCIATION, INC. 495
Missouri Farmers Association , Inc., and Construction
and General Laborers' Local 957. Case
14-CA-5858
December 9, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING, JENKINS, AND KENNEDY
On April 13, 1971, Trial Examiner Thomas F.
Maher issued the attached Decision in this proceed-
ing. Thereafter, Respondent and the General Counsel
each filed exceptions and a supporting brief.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions only to the extent
consistent herewith.
1. We agree with the Trial Examiner's finding that
Respondent violated Section 8(a)(1) of the Act by
maintaining since January 1, 1965, a voluntary,
contributory disability and accidental death group
insurance plan for its employees which made any
employee who was "covered under any form of
collective bargaining" ineligible for participation.
2. Despite the absence of proven antiunion moti-
vation, the Trial Examiner 'found that Respondent
violated Section 8(a)(3) of the Act by maintaining the
unlawful eligibility standard because "the motive to
discriminate is inherent in Respondent's action." We
disagree.
Respondent instituted the companywide disability
and accidental death insurance plan on January 1,
1965. Several years later, Respondent recognized the
Union as the collective-bargaining representative of
certain persons employed at Respondent's Mexico,
Missouri, facility and the parties thereafter com-
menced negotiations for their first collective-bargain-
ing agreement. On May 1, 1970, three separate but
virtually identical collective-bargaining contracts
covering three bargaining units at the facility were
executed.
The contracts, which did not require union mem-
bership as a condition of continued 'employment,
contained no provisions whereby Respondent's insur-
ance plan was made available to bargaining unit
members. However, on January 11, 1971, Respondent
and the Union executed a supplemental agreement
retroactive to May 1, 1970, which provided for
payment to an injured employee of the difference
between the amount received by him through work-
men's compensation and 75 percent of his regular,
average pay, for the period of disability not exceeding
120 days. This disability income supplement program
for bargaining unit members was understood by the
parties to be a substitute for the companywide
insurance plan.
The General Counsel alleged in the complaint that
Respondent violated Section 8(a)(3) of the Act by
making the insurance plan unavailable to bargaining
unit members after May 1, 1970. We find no evidence
in the record that Respondent engaged in such
conduct prior to the adoption of the agreed-upon
substitute program. The Trial Examiner's reliance on
the statement made by Respondent's counsel at the
hearing held on January 11, 1971, that bargaining unit
members were excluded from the plan "because they
took the union program," to support his conclusion
that expulsions from the insurance policy occurred as
a result of the execution of the May 1, 1970, contracts
is misplaced, since counsel was obviously referring to
the supplement adopted by the parties on January 11.
We find, therefore, that General Counsel has not
proven by a preponderance of the evidence that
Respondent violated Section 8(a)(3) of ! the Act as
alleged. Accordingly, we shall dismiss this allegation
of the complaint.
The Trial Examiner ordered Respondent to make
the companywide insurance plan available to all
bargaining unit members under the same terms and
conditions as are presently applicable to all other
employees. However, inasmuch as the parties agreed
on a substitute plan for bargaining unit members, we
find the Trial Examiner's proposed remedy unwar-
ranted. Accordingly, we shall only order Respondent
to cease and desist from maintaining the unlawful
eligibility standard and to post the appropriate notice
to employees.
3. We find merit in the General Counsel's excep-
tions to the Trial Examiner's failure to order Respon-
dent to delete from the group insurance plan and
company booklets descriptive thereof the eligibility
exclusion found violative of Section 8(a)(1) of the
Act.' Since the group policy is available company-
wide, we agree with the General Counsel's exceptions
to the Trial Examiner's failure to order that the notice
be posted by Respondent at all of its facilities.
Accordingly, we shall correct the order to reflect our
agreement with the above exceptions.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Missouri Farmers Association, Inc., Columbia, Mis-
souri, its officers, agents, successors, and assigns,
shall:
1 See, e.g., Goodyear Tire & Rubber Company, 170 NLRB 539, 552.
194 NLRB No. 82
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Maintaining in its long-term disability and
accidental death voluntary insurance plan a require-
ment that any employee who is covered under any
form of collective bargaining is ineligible for partici-
pation.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise by
them of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Remove from the long-term disability and
accidental death voluntary insurance plan underwrit-
ten by Continental Casualty Company of Chicago,
Illinois, the eligibility standard which excludes any
employee who is covered under any form of collective
bargaining from participation and delete from all
company booklets and literature distributed to
employees any reference to that eligibility standard.
(b) Post at all offices and business locations, where
employees who are eligible for long-term disability
and accidental death voluntary insurance plan work,
copies of the attached notice marked "Appendix." 2
Copies of said notice, on forms provided by the
Regional Director for Region 14, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
violations of the Act not found herein.
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "POSTED BY
ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL remove from our long-term disability
and accidental death voluntary insurance plan
which is underwritten by Continental Casualty
Company of Chicago the eligibility , requirement
which excludes from participation any employee
who is covered under any form of collective
bargaining.
WE WILL remove from all company booklets
and literature distributed to employees any state-
ments that the insurance plan applies only to an
employee who is not covered under any form of
collective bargaining.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees in
the exercise by them of their rights guaranteed by
Section 7 of the National Labor Relations Act, as
amended.
This notice is being posted by us in all our offices
and business locations where employees who are
eligible for the insurance plan work.
MISSOURI FARMERS
ASSOCIATION, INC.
(Employer)
Dated By
(Representative) (Title)
This is'an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 210 North 12th Boulevard, Room 448, St.
Louis, Missouri 63101, Telephone 314-622-4142.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Trial Examiner: Upon a charge and
an amendment thereto filed on October 2 and November
16, 1970, respectively, by Construction and General
Laborers' Local 957, herein called the Union, against
Missouri Farmers Association, Inc., Respondent herein, the
Regional Director for Region 14, of the National Labor
Relations Board, herein called the Board, issued a
complaint on behalf of the General Counsel of the Board
on November 16, 1970, alleging violations of Section
8(a)(1), (3), and (5)of the National Labor Relations Act, as
amended (29 U.S.C., Sec. 151, et seq.), herein called the Act.
Respondent in its duly filed answer admitted certain
allegations of the complaint but denied the commission of
any unfair labor practice.
Pursuant to notice a trial was held before me in St . Louis,
Missouri, where the parties were present, represented by
counsel, and afforded full opportunity to be heard.
Preliminary to the taking of testimony the parties
announced that an amicable settlement had been reached
with respect to a number of matters at issue and that an
MISSOURI FARMERS ASSOCIATION, INC. 497
agreement as to facts had been reached as to the
outstanding unresolved issue, thus making the taking of
testimony unnecessary. Accordingly, the parties, by
stipulation into the record, amended the collective-bargain-
ing agreement between them to provide for the granting of
supplemental compensation, over and above workmen's
compensation to injured employees in the bargaining unit
involved, thereby remedying the failure to bargain on said
subject matter, the substance of the allegation in para-
graphs 5 and 7(a) of the complaint. As to portions of the
complaint still in issue the parties and counsel for the
General Counsel stipulated as to the truth and relevancy of
certain documents and facts. Upon these stipulated facts,
and upon the entire record in this case, including a brief
filed by counsel for the General Counsel, I make the
following:
,FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Missouri Farmers Association, Inc., Respondent, herein,
is a Missouri corporation with its principal office and place
of business in Columbia, Missouri, maintaining other
places of business including a facility at Mexico, Missouri,
the only facility involved in this proceeding. There and at
the other facilities it is engaged in the production, sale,
distribution, and processing of tools, chemicals, and
agricultural products. During the year ending June 30,
1970, Respondent, in the course and conduct of its business
operations, manufactured, sold, and distributed at its
Missouri places of. business, products valued in excess of
$50,000, of which products valued in excess of $50,000 were
shipped from said places of business directly to points
located outside the State of Missouri. During the same
period Respondent, likewise in the course and conduct of
its business operations, purchased and caused to be
transported and delivered to its Missouri places of business,
seed, chemicals, and petroleum products, and other goods
and materials valued in excess of $50,000, of which goods
and materials valued in excess of $50,000 were transported
and delivered to its places of business in Missouri, directly
from points located outside the State of Missouri.
Upon the foregoing facts agreed upon by all of the parties
it is also admitted that the Respondent is and I accordingly
conclude and find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Construction and General Laborers' Local 957, the
Union herein, is admitted to be and I accordingly conclude
and find it to be a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Stipulated Facts
Among Respondent 's 3,000 employees approximately 25
employed at its Mexico, Missouri, facility were members of
three bargaining units stipulated by all parties to be
appropriate for the purposes of collective bargaining, as
follows:
All production and maintenance employees employed
at Employer's soybean mill at 400 E. Holt, Mexico,
Missouri, excluding over-the-road truckdrivers, office
clerical, laboratory and professional employees, guards
and supervisors as defined in the Act.
All employees employed at the Employer's testing
laboratory at the Employer's facility at 400 E. Holt,
Mexico, Missouri, excluding over-the-road truckdrivers,
production and maintenance employees, guards and
supervisors as defined in the Act.
All over-the-road truckdrivers employed at the Employ-
er's soybean mill, 400 E. Holt, Mexico, Missouri,
excluding production and maintenance employees,
laboratory employees, office clerical employees, guards,
and supervisors as defined in the Act.
Prior to May 1, 1970, contracts were negotiated in behalf
of employees in the foregoing units by the Union and the
Respondent and they became effective on that date.
At the time of the execution of the contracts in behalf of
the employees in these bargaining units and for approxi-
mately 5 years prior thereto, since January 1, 1965, there
was in effect a disability and accidental death insurance
policy issued by Continental Casualty Company of
Chicago, Illinois, covering hourly paid employees of
Respondent earning more than $400 per month, the
premiums for which were paid in part by Respondent. In
addition to the monthly salary eligibility limitation noted
above the insurance policy contains the following provision
in the application form incorporated by reference into the
policy:
The following groups of employees are eligible:
All active full-time salaried employees or any hourly
paid employee who is:
* * *
(2) are (sic) not covered under any form of collective
bargaining.
In a booklet describing the insurance plan and distributed
to all employees by Respondent it is stated:
ELIGIBILITY
If you are an active full-time salaried employee or an
hourly paid employee earning $400 per month or more,
who is not covered under any form of collective bargaining,
and who is between the ages of 18 and 64, inclusive, you
are eligible for this coverage. [Emphasis supplied.]
At the trial before me counsel for the Respondent
conceded that as a consequence of the execution of the
collective agreement on May 1, 1970, the members of the
bargaining units covered by the agreement, be they
members of the Union or not, "are excluded from benefits
of the Continental plan because they took the union
program." In this respect a review of the collective
agreement discloses that union membership was not
required of employees in the units for their enjoyment of
the benefits to be derived from the contract. Thus it is
stated in the collective agreement:
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UNION SECURITY
Both the Company and Union pledge that they will not
coerce, intimidate or otherwise force any employee or
perspective employee to join or not join the Union as a
condition of employment, it being expressly understood
that all employees shall have the right to join or not join
the Union as they personally see fit without any
coercion or intimidation, directly or indirectly from
either the Company or the Union.
B. Conclusions
In essence the insurance coverage of Respondent's
employees has been made unavailable to those who, as a
group, "through representatives of their own choosing,"
have bargained collectively. The language of Section 7 of
the Act specifically guarantees employees their right to self-
organization and to bargaining. Clearly, then, the exclusion
of employees from benefits otherwise open to all employees
only because they have claimed this statutory right
interferes with, restrains, and coerces them in the exercise
of these rights. By thus depriving a segment of its employees
of benefits otherwise available to them had they not
exercised their statutory rights I conclude and find that
Respondent has thereby violated Section 8(a)(1) of the Act.
The Board has already found such conduct to be
unlawful in The Goodyear Tire & Rubber Company, 170
NLRB No. 79, wherein it sustained the Examiner's reliance
upon The Kroger Co., 164 NLRB 362, and other cases, to
sustain a finding of unlawful interference, restraint, and
coercion, but found it unnecessary to decide whether there
was unlawful discrimination in violation of Section 8(a)(3).
I am persuaded that in the instant case the Respondent has
not only interfered with, restrained, and coerced its
employees in the exercise of their statutory rights, as held in
the cited case, but it has also discriminated against them "to
encourage or discourage membership in any labor organi-
zation."
It is not enough to point, as Respondent does, to the
"open shop" agreement in the contract whereby union
membership is not a prerequisite- in the bargaining unit, as it
might have been under a more stringent union security
provision. The simple fact is that unless half of those voting
in the selection of the Union at the outset had not been
either union members or had not voted for it there would
have been no collective agreement. It goes without saying,
therefore, that regardless of its effect upon any minority of
employees in this unit who might not desire representation,
if such there are, those who did desire it were being
penalized for having selected the Union.
Nor can Respondent's motive in this respect be doubted.
In clear language it stated to its employees in a distributed
brochure (supra) that they would not be eligible for
insurance benefits if they were "covered under any form of
collective bargaining agreement." This, it would seem,
clearly announces to these people that they cannot be
insured if they enjoy the fruits of their union representation.
To expect that Respondent must spell out in some further
detail its intent to disadvantage these particular employees
would, it would seem, unnecessarily expand the bounds of
legalism . And simply because it seeks to distinguish
members from the nonmembers in the unit, or has not
explicitly referred to them as union members , or has not
seen fit to explain why it is making the distinction in the
insurance availability does not minimize the effect nor
obscure in any way what it intended to do. Here, it would
seem, is an analogous application of the principle of res ipse
loquitur. Because, therefore, I find that the motive to
discriminate is inherent in Respondent's action ' I conclude
and find that it has thereby discriminated against
employees for the purpose of discouraging their member-
ship in or support of the Union, in violation of Section
8(a)(3).
IV. THE REMEDY
I have found that by maintaining and enforcing the terms
and provisions of an insurance policy to the exclusion of
employees who were covered by a collective-bargaining
agreement Respondent has violated the Section 7 rights of
these employees and has unlawfully discriminated against
them. I will accordingly recommend that Respondent cease
and desist from such' conduct and that an order issue
requiring it to offer to employees covered by collective-
bargaining agreements insurance coverage under the same
terms and conditions as presently available to all other
employees who are otherwise similarly situated. I shall also
recommend that Respondent be required to post notices of
compliance with such order as shall be issued against it.
[Recommended Order omitted from publication.]
1 The Radio Officers' Union ' of the Commercial Telegraphers Union,
AFL v. N.L R B., 347 U.S 17 , 42-47, 51.