N L Industries, Inc.

National Labor Relations Board - Board Decisions

Aug 29, 1975

220 N.L.R.B. 41 (N.L.R.B. 1975)

N L INDUSTRIES, INC.
N L Industries , Inc. and Chemical Workers' Basic
Union Local No. 1744 of St. Louis, Missouri , affili-
ated with Brotherhood of Painters and Allied
Trades of America, AFL-CIO. Case 14-CA-8005
August 29, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND
PENELLO
On April 16, 1975, Administrative Law Judge Phil
Saunders issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel and the Re-
spondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, N L In-
dustries , Inc., St . Louis , Missouri, its officers , agents,
successors , and assigns, shall take the action set forth
in the said recommended Order, as modified below:
1. Substitute the following paragraph for para-
graph 1(a) of the Order:
"(a) Refusing to bargain collectively with Chemi-
cal Workers ' Basic Union No. 1744 of St . Louis, Mis-
souri , affiliated with Brotherhood of Painters and Al-
lied Trades of America , AFL-CIO, as the exclusive
representative of its employees in the following ap-
propriate unit , in regard to participation by said em-
ployees in the Respondent's savings plan for employ-
ees of N L Industries, Inc.:
All production and maintenance employees em-
ployed by us at our plant , known as the Titani-
um Pigment Division of N L Industries, Inc.,
located at River Des Peres and Mississippi Riv-
er, St. Louis County , Missouri , but excluding
guards , watchmen , professional employees, of-
fice clerical employees , and supervisors as de-
fined in the Act."
41
2. Substitute the attached notice for that of the
Administrative Law Judge.
1 We shall revise the Administrative Law Judge's recommended Order
and proposed notice to include the description of the appropriate collective-
bargaining unit involved.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to bargain collec-
tively with Local 1744, as the exclusive represen-
tative of our employees in the appropriate unit
described herein, with regard to participation by
said employees in the savings plan for employ-
ees of N L Industries, Inc., and, if an under-
standing is reached, embody such in a signed
agreement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights to self organization,
to form, join, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, and to engage in other con-
certed activities for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
WE WILL, upon request, bargain collectively
with Local 1744 with respect to participation by
the employees in the aforesaid appropriate unit
in the savings plan for employees of N L Indus-
tries, Inc., and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The appropriate collective-bargaining unit
is:
All production and maintenance employees
employed by us at our plant, known as the
Titanium Pigment Division of N L Industries,
Inc., located at River Des Peres and Mississip-
pi River, St. Louis County, Missouri, but ex-
cluding guards, watchmen, professional em-
ployees, office clerical employees, and
supervisors as defined in the Act.
N L INDUSTRIES INC.
DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS , Administrative Law Judge: Based on a
220 NLRB No. 7
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge filed on June 27, 1974,1 by Chemical Workers' Basic
Union, Local No. 1744 of St. Louis, Missouri, affiliated
with Brotherhood of Painters and Allied Trades of Ameri-
ca, AFL-CIO, herein called the Union or Local 1744, a
complaint against N L Industries, Inc., herein the Compa-
ny or the Respondent, was issued on January 23, 1975,
alleging violations of Section 8(a)(5) and (1) of the Nation-
al Labor Relations Act, as amended. Respondent filed an
answer to the complaint, denying it had engaged in the
alleged unfair labor practices. Both the General Counsel
and Respondent filed briefs in this manner.
Upon the entire record in this case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation organized under the laws of
New Jersey, and at all times material herein has main-
tained its Titanium Pigment Division St. Louis plant at
River Des Peres and Mississippi River, in the county of St.
Louis, Missouri. Respondent maintains other plants and
places of business in the States of Missouri, Illinois, and
other States, but the St. Louis County facility is the only
plant involved in this proceeding.
Respondent is engaged in the manufacture, sale, and dis-
tribution of titanium pigments and related products. Dur-
ing the year ending December 31, Respondent manufac-
tured, sold, and distributed at its Missouri plants products
valued in excess of $50,000, of which products valued in
excess of $50,000 were shipped from said plants directly to
points located outside the State of Missouri.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union named herein is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that commencing on or about
January 31 the Union requested Respondent to bargain
with it concerning the institution of a savings plan partially
funded by company contributions for the benefit of unit
employees represented by the Union, but the Respondent
refused to bargain with the Union over the matter. This
allegation adequately frames the single issue in this case.
At Respondent's St. Louis titanium plant there are three
collective-bargaining contracts in force and effect. One
covers production workers and is with Local 1744, the
Charging Party herein; another contract covers office
workers and related salaried employees and is with Local
5-225 of the Oil, Chemical & Atomic Workers' Union; and
the third contract covers the plant guards and is with Local
1 All dates are 1974 unless stated otherwise.
5-243 of the Oil, Chemical & Atomic Workers' Union. In
Local 1744 there are approximately 800 unit employees? In
the office employees group with Local 5-225, there are ap-
.proximately 60 employees, and in the guard unit there are
17 employees. The two union contracts we are mainly con-
cerned with here are those of Local 1744 and Local 5-225.
In 1944, Respondent effected a profit-sharing plan for its
office and salaried employees represented by Local 5-225,
but from its inception to the present date it has not covered
any production and maintenance workers of Local 1744.
However, the office workers covered under contracts with
Local 5-225 have been continually participating in the
profit-sharing plan since its inception.
Commencing in 1956 and continuing thereafter, contract
negotiators for Local 1744, in each negotiation, specifically
listed as a demand the inclusion of their members in the
Respondent's profit-sharing plan, but this demand, each
time, was negotiated out of the final contract between the
parties. In 1969, the demand by Local 1744 for the profit-
sharing plan was then resolved by the substitution for it of
a severance pay provision in lieu of profit sharing. Howev-
er, in the 1972 negotiations, Local 1744 again made the
demand for the profit-sharing plan, but it was not granted.
In the negotiations on the current contract held in the
summer and fall of 1973, the Union had as one of its de-
mands a stock purchase plan, but this demand was
dropped from the Union's request during the negotiations
on the current contract. Local 1744 had taken the position
that its stock purchase plan would be more advantageous
to its members because the Respondent's profit-sharing
plan had shown a "downward trend" and "wasn't paying
off as well." Other than the above, there was no demand or
discussion by the parties of any inclusion of hourly paid
employees represented by the Union in the long-existing
profit-sharing plan provided by Respondent to its salaried
employees?
In January, the existence of a 41-page "Savings Plan for
Employees of N L Industries, Inc.," accompanied by a 6-
page document captioned "Changes Are Being Made .. .
In Your N L Industries Retirement and Profit-Sharing
Plans," came to the attention of the Union, and as a result
officials of Local 1744 immediately surmised that the sav-
ings plan, as outlined in the above documents, was an en-
tirely new benefit, and not merely a revision or amendment
to the old profit-sharing plan. Accordingly, Union Presi-
dent John Scott sent a letter to Respondent's employee
relations superintendent, Thomas Payne, on January 31,
requesting that employees represented by Local 1744 be
granted inclusion in the new savings plan. In February,
Scott and Payne engaged in a telephone call in which it
was indicated that Respondent was unwilling to accede to
the Union's request, and was not interested in extending
savings plan coverage to the employees represented by the
Union. Having received no formal reply, Scott sent Payne
2 The appropriate unit for collective bargaining represented by Local
1744 consists of all production and maintenance employees by Respondent
in its plant known as the Titanium Pigment Division of N L Industries, Inc.,
but excluding guards, watchmen , professional employees , office clerical em-
ployees, and supervisors as defined in the Act.
3 The present collective-bargaining agreement between Local 1744 and
Respondent became effective September 20, 1973
N L INDUSTRIES, INC. 43
another letter on April 26 and formally demanded the sav-
ings plan coverage for unit employees of Local 1744. On
June 6, Payne wrote to Scott denying his request for cover-
age or for bargaining meetings on the matter, and since this
date the parties have engaged in no further bargaining or
discussion over the issue of extending the savings plan cov-
erage to employees represented by the Union.
It is the Respondent's position that the profit-sharing
plan had been demanded and bargained on by Local 1744
for a number of years, commencing in 1956, up through the
current contract, and on each occasion it had been waived,
given up, or withdrawn by Local 1744. The Respondent
further contends that there is no new coverage of any bene-
fits , and that all the Company did was to amend its old
profit-sharing plan by calling it a savings plan, and allow-
ing each salaried employee represented by Locals-225 and
covered under the old profit-sharing plan to now become a
contributing participant in the savings plan, which became
effective on January 1.
It is well-established Board law that an employer is un-
der a duty to bargain during the existence of a bargaining
agreement concerning any mandatory subject of bargain-
ing which has not been specifically covered in the contract,
and which the Union had not clearly and unmistakably
waived 4 It is also well recognized that the absence of a
reopener clause, likewise, does not excuse or relieve an em-
ployer from bargaining during the term of the contract
over a new benefit not waived by the Union during con-
tract negotiations.
The savings plan in the instant case is clearly a mandato-
ry subject of bargaining, and on this particular point there
is no contention otherwise. However, the Respondent does
maintain that Local 1744 waived its right to bargain con-
cerning the savings plan because in each of the contract
negotiations the profit-sharing plan (now called the savings
plan) was negotiated out of the final contracts between
Local 1744 and the Respondent.'
This record does show that throughout several of the
negotiations and, in fact, up through 1972 the Union did
continually request inclusion in the profit-sharing plan and
was always denied, but the crucial negotiations for consid-
eration here, in the final analysis, are those which took
place in 1973 leading to the current contract, and in these
negotiations clearly no waiver occurred 6 In the 1973 nego-
tiations there was no request whatsoever by Local 1744 for
inclusion in the profit-sharing plan, and the Union merely
broached the subject in its specific request for a stock pur-
chase plan because it had concluded that such a plan
would be more advantageous to its members than the prof-
4 The Jacobs Manufacturing Company, 94 NLRB 1214 (1951) Also see The
B. F Goodrich Company, 195 NLRB 914 (1972)
S There is no contention by the General Counsel that during the 1973
negotiations Respondent made any misrepresentations to the Union regard-
ing the savings plan-which was not in existence at that time The allegation
is failure to bargain with Local 1744.
6 The Union's withdrawal in the 1969 negotiations of its request for inclu-
sion in the profit-sharing plan and its acceptance of a severance pay provi-
sion, as aforestated, must be limited to the 1969 negotiations because admit-
tedly in the 1972 negotiations the Union came right back with its proposal
to be included in the profit -sharing plan , and, therefore , the 1969 "tradeoff"
is not available for the subsequent proposals and contracts between the
parties.
it-sharing plan. However, in the 1973 negotiations leading
to the current contract, the Union made absolutely no pro-
posals, requests, or demands to be included in the profit-
sharing plan, and there were no discussions between the
parties on this subject matter. As pointed out in B. F.
Goodrich Co., supra, "It is inconceivable that a party to an
agreement can waive something which was not in existence
or even proposed at the time of the alleged waiver."
In any event, the law is well settled that:
a purported waiver will not be lightly inferred in
the absence of "clear and unequivocal" language.
Even when the parties consciously explore the matter
during negotiations and the contract fails to touch
upon it, something more is required before the union
will be held to have bargained away its rights, namely,
a conscious relinquishment by the union, clearly in-
tended and expressed. [Perkins Machine Company, 141
NLRB 98, 102 (1963).]
In the instant case, there is no evidence that points to a
"conscious relinquishment" in the 1973 negotiations by the
Union of any right to bargain about the profit-sharing
plan. Rather, the Union accepted the Respondent' s refusal
to include its members in the stock purchase plan, but
thereafter did not press, offer, or substitute any proposal
on profit sharing. Moreover, the Union certainly did not
waive its rights to bargain over the institution of the type of
benefits now reflected in the Respondent's savings plan
covering salaried employees, as this plan is far more than
the old profit-sharing plan operating under a new name.
The old profit-sharing plan provided no benefit for em-
ployee beneficiaries unless Respondent's operations were
profitable, and its accounting procedures analyzed these
operations to reflect a profit. Section III of the old profit-
sharing plan provided,t inter alia, that after certain deduc-
tions the Company shall make in each" taxable year a con-
tribution to the trust fund equal to 5 percent of the "con-
solidated net income" or, under some circumstances, if the
amount of income be less than 5 percent, then the contri-
bution shall be equal to the "highest full percentage of such
income."
The savings plan, which became effective on January 1
covering salaried employees, as aforestated, provides, inter
alia, that the Company shall contribute to the trust fund
"One Dollar for each Dollar of a Contributing
Participant's Basic Contribution which is based on the first
three percent of his compensation, plus Fifty Cents for
each Dollar of a Contributing Participant's Basic Contri-
bution which is based on the next three percent of his
Compensation." 8 In other words a participating employee
in the new savings plan, by depositing or contributing a
certain amount of money to the trust fund as provided for
in the new plan, can force Respondent automatically to
make a contribution accruing to the employee's account.
As pointed out, it is thus clear that not only does the sav-
ings plan constitute a much more desirable fringe benefit
than something as speculative as profit sharing, but the
initiation and impetus for company contributions lie now
with the employees themselves, rather than with the Re-
G.C Exh 9
B See G C. Exh. 10, sec. IV, par. 4 1
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent, as under the old profit-sharing plan. Since Local
1744 never sought, demanded, or tried to negotiate for a
savings plan of this sort at any time, it could never have
waived its right to bargain for such a benefit.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent has refused to bargain
collectively with the Union as the exclusive representative
of its employees in an appropriate unit, I will recommend
that, upon request, the Respondent bargain collectively
with the Union concerning the savings plan and, if an un-
derstanding is reached, embody such in a signed agree-
ment.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The unit described herein constitutes an appropriate
unit for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
4. The Union has been at all times material herein the
exclusive representative of the employees in the aforesaid
appropriate unit for the purpose of collective bargaining.
5. By refusing to bargain with the Union concerning the
participation of unit employees in the savings plan, the Re-
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a)(5) and (1) of
the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2 (6) and (7) of the
Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in this case, and
pursuant to Section 10(c) of the Act , I hereby issue the
following recommended:
ORDERS
The Respondent, N L Industries, Inc., St. Louis, Missou-
ri, its officers, agents, successors, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 1744 as
the exclusive representative of its employees in the appro-
priate unit as found herein, in regard to participation by
said employees in the Respondent's savings plan for em-
ployees.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
right to self-organization, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purpose of mutual aid or pro-
tection as guaranteed in Section 7 of the Act, or to refrain
from any and all such activities.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain with Local 1744 with respect
to participation by the employees in the aforementioned
appropriate unit in the savings plan for Employees of N L
Industries, Inc., and if an understanding is reached, em-
body such understanding in a signed agreement.
(b) Post at its place of business and plant copies of the
attached notice marked "Appendix." 10 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 14, after being duly signed by Respondent's represen-
tative, 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. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 14, in writ-
ing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.
9In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order and all objections thereto shall be
deemed waived for all purposes.
10 In the event 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "