Motor Wheel Corp.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 354 (N.L.R.B. 1969)

354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Motor Wheel Corporation and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW). Case
7-CA-7259
December 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
Upon a charge, as amended , filed by the
International Union , United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), herein called the Union , the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 7, issued a
Complaint and Notice of Hearing on May 28, 1969,
and on June 12, 1969, an Amendment to Complaint,
alleging that Motor Wheel Corporation , herein
called the Respondent, had engaged in and was
engaging in unfair labor practices within the
meaning of Section 8 (a)(1), (3), and (5) of the
National Labor Relations Act, as amended.
Subsequently , the Respondent filed answers to the
complaint and to the amended complaint , admitting
in part and denying in part the allegations set forth
therein . On August 28, 1969 , the Regional Director
issued an Order withdrawing the portions of the
complaint as amended and dismissing those portions
of the charge and amended charge alleging
violations of Section 8(a)(3) and (5) of the Act.
Copies of the charge , amended charge , complaint
and notice of hearing , the amended complaint, and
the Regional Director 's Order of August 28, 1969,
were duly served on the Respondent.
Thereafter, on September 8, 1969, the General
Counsel , by counsel , filed with the Board a Motion
to Transfer Case to and Continue Proceeding before
the Board and for Judgment on the Pleadings, in
which he requested that , in view of the Respondent's
admissions in its answer and amended answer, the
Board enter judgment on the pleadings , find that
Respondent has engaged in and is engaging in
violations of Section 8(a)(1) of the Act , and order
an appropriate remedy . On September 9, 1969, the
Board issued its Order Transferring Proceeding to
the Board and Notice to Show Cause . Thereafter,
on September 22, 1969 , the Respondent filed with
the Board its Memorandum in Opposition to the
Motion for Judgment on the Pleadings.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to a three-member panel.
Upon the entire record in this case , including the
Respondent 's Memorandum in Opposition to
Motion for Judgment on the Pleadings , the Board
makes the following:
RULING ON MOTION FOR JUDGMENT ON THE
PLEADINGS
The complaint, as amended and modified by the
Regional Director 's Order of August 28, 1969,
alleges, in substance , that at all times material to
this case the Respondent has maintained in effect
and publicized to its employees a Non-Contributory
Retirement Plan and a Retirement Annuity Plan
(Contributory), which on their face excluded from
participation salaried employees who have chosen to
be represented by a collective- bargaining
representative . By its answer and amended answer
the Respondent admits that since January 1, 1967, it
has maintained in effect for its salaried employees a
Non-Contributory Retirement Plan and a
Retirement Annuity Plan (Contributory) which
contain the following provisions:
Non-Contributory Retirement Plan
Article I - Definitions
5. "Employee", as used herein, shall mean any
employee who, at the time of his retirement or
other termination of employment, is a domestic
employee or foreign employee, as herein defined,
provided he is not represented by a collective
bargaining representative recognized by his
Employer.
Retirement Annuity Plan (Contributory)
Article III - Eligibility for Participation:
Employee Contributions
1. Eligibility for Participation . Each employee
may become a participant in the Plan on January
1, 1967, or on the first day of any succeeding
month, if he then meets all of the following
conditions: . . . (c) he is not represented by a
collective bargaining representative recognized by
the Company or by any subsidiary of the
Company by which he is employed.
2. Continuance of Participation. An employee
who has become a participant shall continue to
participate in the Plan so long as (a) he remains
an employee ... and does not become represented
by a collective bargaining representative
recognized by the Company or by any subsidiary
of the Company by which he is employed, and (b)
he continues to make all required contributions
and does not withdraw the contributions
theretofore made by him.
In its opposition to the motion for judgment on
the pleadings , the Respondent argues that neither
the language nor the application of the language in
the plans for its salaried employees has interfered
with their statutory rights . In support of this
argument the Respondent contends that it is entitled
to a hearing in this matter to introduce evidence
180 NLRB No. 71
MOTOR WHEEL CORP.
that is relevant, material, and essential to the
Board's determination of the issues. More
particularly, the Respondent avers that it is entitled
to show that the disputed language was never
alluded to during . the course of the organizing
campaign leading to the Union's certification for a
unit of its salaried employees at Mendota, Illinois;
that since the certification of the Union the parties
have bargained with respect to a new pension plan
to replace the plans containing the disputed
language; that the employees represented by the
Union have continued to be covered by the plans
during the course of negotiations; that the
Respondent employs salaried employees who are
represented for purposes of collective bargaining
who are covered by negotiated pension plans; and
that it also employs salaried employees who are
unrepresented for purposes of collective bargaining
who are not covered by negotiated pension plans.
Assuming the verity of the facts relied on by the
Respondent in its argument for the necessity for a
hearing, we find that the record before us
established a prima facie violation of the Act, which
would not be rebutted by any or all of the evidence
proferred by the Respondent . As we have had
previous occasion to hold, employee benefit plans
which on their face are restricted to participation or
enjoyment by employees who are not members of a
union, or who have foregone their right to select and
bargain through a collective-bargaining
representative, are inherently restrictive of employee
rights guaranteed by Section 7 of the Act, and
without further evidence of interference, restraint, or
coercion are per se violations of Section 8(a)(1) of
the Act.'
In making this determination , we assume,
arguendo , that Respondent alleges, that its
continuation of the plan after employees had chosen
the Union was subject to pending negotiations; and
we further, assume, arguendo, that if the Employer's
pension plan had specifically provided for such
conditional continuation following selection of a
bargaining agent , no violation would have occurred.
But Respondent 's pension plan in the present case
did not so state . Employees considering selecting a
bargaining agent would therefore be impeded in
their free exercise of their right of selection by clear
and unequivocal language in Respondent's plan
indicating that they would suffer a loss of benefit if
they selected a Union and the Respondent
recognized it. In view of the Respondent's admission
by answer that it has maintained the retirement
plans containing the restrictive language in effect at
all times material to this case , and that the
provisions of the plans have been publicized to
salaried employees such as those currently
represented by the Union, we find that there are no
matters requiring hearing before a trial examiner.
' Melville Confections , Inc., 142 NLRB 1334, enfd . 327 F . 2d 689 (C.A.
7), cert . denied 377 U.S. 933.
355
Accordingly, it is appropriate that the General
Counsel's motion for judgment on the pleadings be,
and it hereby is, granted.
Upon the entire record before us, the Board
makes the following:
FINDINGS OF FACT
L THE BUSINESS OF RESPONDENT
Respondent is, and at all times material herein
has been, a corporation with its principal office and
place of business at Lansing, Michigan, and is
engaged in the manufacture, sale, and distribution of
automobile parts and related products. Respondent
maintains other places of business in other States of
the United States, including Indiana and Illinois.
During the year ending December 31, 1968, which
period is representative of its operations during all
times material herein, Respondent manufactured,
sold, and distributed at each of its Lansing,
Michigan, and Mendota, Illinois, places of business,
products valued in excess of $50,000, of which
products valued in excess of $50,000 were shipped
from each of said places of business directly to
points located outside the State of Michigan and
State of Illinois, respectively.
Respondent admits, and we find, that it is, and at
all times material herein has been, an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Respondent's Interference, Restraint, and
Coercion of Employees
Since January 1, 1967, and continuing at all times
since said date, the Respondent has maintained in
effect and has publicized to its employees, such as
those currently represented by the Union, retirement
plans for salaried employees which disqualify and
exclude from participation salaried employees who
have chosen to be represented by a
collective- bargaining representative. By the above
described acts and conduct the Respondent has
interfered with, restrained, and coerced, and is
interfering with, restraining, . and coercing, its
employees in the exercise of rights guaranteed in
Section 7 of the Act, and thereby did engage in and
is engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.2
'Melville Confections , Inc., supra, fn. 1, and cases therein cited.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The acts of Respondent set forth in section III,
above, occurring in connection with its operations as
described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and
commerce among the several States and tend to lead"
to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act, we shall
order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
We have found that by maintaining in effect those
provisions in its Non-Contributory Retirement Plan
and the Retirement Annuity Plan (Contributory),
for salaried employees, excluding from participation
therein otherwise eligible employees if they chose to
be represented by a collective-bargaining
representative recognized by it, the Respondent has
interfered with, restrained, and coerced its
employees in the exercise of their Section 7 rights.
We will accordingly order that the Respondent
amend the foregoing Non-Contributory Retirement
Plan and Retirement Annuity Plan (Contributory),
by eliminating from each of said plans, and the
booklets describing said plans, the provisions
disqualifying employees from participation therein
because they have become members of a
collective-bargaining unit or because they have
chosen to be represented by a labor organization in
collective bargaining in an appropriate unit.
It is further ordered that Respondent cease and
desist from in any like or related manner infringing
upon rights guaranteed to its employees by Section
7 of the Act. See Melville Confections, Inc., supra.
CONCLUSIONS OF LAW
1. Motor Wheel Corporation is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), is a labor organization within the
meaning of Section 2(5) of the Act.
3. By maintaining in effect a Non-Contributory
Retirement Plan and a Retirement Annuity Plan
(Contributory), for its salaried employees, each of
which provides for the exclusion from participation
therein of employees who become members of any
collective-bargaining unit represented by a labor
organization recognized by Respondent, the
Respondent has interfered with , restrained, and
coerced its employees in the exercise of their rights
guaranteed by Section 7 of the Act, and Respondent
has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Motor Wheel Corporation, Mendota, Illinois, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining in effect a Non-Contributory
Retirement Plan and a Retirement Annuity Plan
(Contributory), for its salaried employees, which
contain a provision excluding employees from
participation therein because they become members
of a collective-bargaining unit or choose to be
represented by a labor organization in collective
bargaining in an appropriate unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act.
(a) Amend its Non-Contributory Retirement Plan
and its Retirement Annuity Plan (Contributory), for
salaried employees, by the elimination from each the
provisions excluding from participation therein
employees who become members of any
collective-bargaining unit represented by a labor
organization recognized by Respondent, and
similarly amend the booklets, distributed by
Respondent to its salaried employees, by striking,
from each, the offensive language , more fully set
forth supra.
(b) Post at its plant in Mendota, Illinois, copies of
the attached notice marked "Appendix."3 Copies of
said notice on forms provided by the Regional
Director for Region 7, after being duly signed by
Respondent's representative, shall be posted by the
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,
including each of Respondent's bulletin boards.
Reasonable steps shall be taken by the Respondent
to insure that said notice is not altered, defaced, or
covered by any other material.
'In the event that the Board's 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 "
MOTOR WHEEL CORP.
(c) Notify the Regional Director for Region 7, in
writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES
Posted by order of the National Labor Relations Board
an agency of the United States Government
WE WILL amend our Non-Contributory Retirement
Plan and our Retirement Annuity Plan (Contributory),
each for salaried employees, and our booklet setting
forth such plans, by the elimination, from each of said
plans and each of said booklets, of the provision which
excludes from participation, in each plan, any salaried
employee who becomes a member of a
collective-bargaining unit recognized by us, or by any
subsidiary of this company by which he is employed.
WE WILL NOT disqualify our salaried employees from
eligibility, or threaten employees with loss of
participation in any of the enumerated plans, set forth
357
in the paragraph immediately above, because they
become members of a collective-bargaining unit or
choose to be represented by a labor organization for the
purposes of collective bargaining, in an appropriate
unit
Dated By
MOTOR WHEEL
CORPORATION
(Employer)
(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,
500 Book Building, 1249 Washington Boulevard, Detroit,
Michigan 48226, Telephone 313-226-3200