Taylor-Winfield Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1976

225 N.L.R.B. 457 (N.L.R.B. 1976)

TAYLOR-WINFIELD CORP. 457
Taylor-Winfield Corporation and United Steelworkers
of America, Local Union 8337, AFL-CIO-CLC.
Case 8-CA-9195
June 30, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On April 30, 1976, Administrative Law Judge Al-
vin Lieberman issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed an answering brief.
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.
ORDER
1. Did respondent violate Section 8(a)(5) of the Act by,
in bad faith , offering the United Steelworkers of America,
Local Union 8337, AFL-CIO-CLC (Union), a pension
plan having less value with respect to employee retirement
income than the pension plan then in effect?
2. Did respondent and the Union bargain with each
other to an impasse?
3. Assuming an affirmative answer to the foregoing
question , did respondent violate Section 8(a)(5) of the Act
by unilaterally changing its employees ' terms and condi-
tions of employment?
Upon the entire record 4 upon my observation of the
witnesses and their demeanor while testifying , and having
taken into account the briefs submitted by the General
Counsel and respondent 5 and the arguments made by the
parties,6 I make the following:
FINDINGS OF FACT 7
1. JURISDICTION
Respondent, an Ohio corporation, is engaged at Warren,
Ohio, in the manufacture of welding equipment. Respon-
dent annually ships goods valued at more than $50,000 to
customers located outside the State of Ohio. Accordingly, I
find that respondent is engaged in commerce within the
meaning of the Act and that the assertion of jurisdiction
over this matter by the National Labor Relations Board
(Board) is warranted.
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 and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Administrative Law Judge: The hear-
ing in this proceeding, with all parties represented, was
held before me in Warren, Ohio, on several days between
November 18 and December 3, 1975, upon the General
Counsel's complaint I dated September 3, 1975,2 and
respondent's answer. In general, the issue litigated was
whether respondent violated Section 8(a)(5) of the Nation-
al Labor Relations Act, as amended (Act) .3 More particu-
larly, the questions for decision are as follows:
i During the hearing the complaint was amended by substituting the fol-
lowing paragraph for par 11(d)• "Commencing on or about April I i, 1975,
and continuing thereafter, Respondent has offered to the Union a pension
benefit plan having considerably less value with respect to employee retire-
ment income than the pension benefit plan then applicable to the employees
in the collective bargaining unit described above in paragraph 6, and there-
by refused to bargain collectively and is refusing to bargain collectively with
the representatives of its employees, and thereby did engage in and is engag-
ing in unfair labor practices within the meaning of Section 8(a)(5) of the
Act '
2 The complaint was issued pursuant to a charge filed on May 23, 1975
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. INTRODUCTION
Briefly, this case is concerned with events related to bar-
gaining between respondent and the Union. Among these
were respondent's claimed bad faith offer to the Union of
a pension plan stated in the complaint as being less valu-
able respecting employee retirement income than the pen-
sion plan then in effect,8 and respondent's unilateral
3 In pertinent part Sec 8(a)(5) of the Act provides
Sec 8(a) It shall be an unfair labor practice for an employer-
(5)
♦ ♦
to refuse to bargain collectively with the representatives of his
employees,
Issued simultaneously is a separate order correcting obvious errors in
the stenographic transcript of the trial in this proceeding included in this
order are corrections sought by respondent in a motion to correct the re-
cord [Order omitted from publication ]
5 Although represented by counsel, the charging party did not file a brief
6 Although all the arguments of the parties and the authorities cited by
them, whether made orally at the hearing or appearing in the briefs of the
General Counsel and respondent, may not be discussed in this Decision
each has been carefully weighed and considered
3 Respondent's motion made at the conclusion of the hearing, upon which
I reserved decision, is disposed of in accordance with the findings and con-
clusions set forth in this Decision
8 At the hearing this pension plan was frequently referred to as the "pre-
sent pension plan" and it will be similarly referred to in this Decision
225 NLRB No. 60
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changes in terms and conditions of employment . The fore - C. The Present Pension Plan
going , the General Counsel contends , constituted viola-
tions of Section 8(a)(5) of the Act.
Respondent denies that the pension plan it offered the
Union had less value in terms of employee retirement in-
come than the present plan. Admitting its unilateral
changes in its employees' terms and conditions of employ-
ment, respondent argues that it was privileged in making
the changes because an impasse had been reached in its
bargaining with the Union.
IV. PRELIMINARY FINDINGS AND CONCLUSIONSI0
A. The Union's Certification
In July 1974, the Union filed a representation petition.
On September 9, 1974, after prevailing at an election held
on its petition , the Union was certified as the bargaining
agent of respondent's employees in a unit described in the
complaint as consisting of "all office clerical and technical
employees." 11
B The Merit Review System
Before the Union filed its representation petition respon-
dent maintained in effect a merit review system pursuant
to which an employee progressed from the minimum to the
maximum rate of pay for his position. While the system
was in operation an employee's work was reviewed and
evaluated each year on about his employment anniversary
date. If deemed warranted as a result of this review, the
employee received a merit increase in wages. In this man-
ner the employee moved from the lowest rate to the top
rate established for his job.
Upon the filing of the Union's representation petition
respondent stopped granting merit increases. However, the
merit review system was not abandoned. As Nicholas
Pernice , respondent 's personnel manager , testified con-
cerning this, "the merit reviews were continued [up to the
point . . . of actually making the merit increase effective]
during the period when the system was not operating."
Because of the suspension of the granting of merit in-
creases the wages of respondent's employees were not
raised between July 1974 and April 14, 1975,12 when, as
will be shown, they received a $50-a month increase.13
9 Notwithstanding that the Union submitted no brief , it became apparent
during the hearing that its contentions concerning the issues in this case are
similar to the General Counsel's Accordingly , the contentions of the Gener-
al Counsel and the Union will bejointly referred to hereinafter as the Gen-
eral Counsel's contentions
10 The purpose of these findings and conclusions is to furnish a frame of
reference within which to consider the facts relating to respondent 's alleged
unfair labor practices To the extent that the contentions of the parties relate
to the findings and conclusions made here they will be treated here, al-
though they , as well as the findings and conclusions , may again be consid-
ered in other contexts
11 All subsequent mention of "employees" in this Decision without fur-
ther designation will have reference to the employees in this unit
12 All dates hereinafter mentioned without stating a year fall within 1975
13 The wage increase granted by respondent on April 14 is alleged in the
complaint as being one of the violative unilateral changes made by respon-
dent Also alleged in the complaint as a violative unilateral change is
respondent's reinstitution on the same day, as will appear below, of the
merit review system
For many years respondent's employees have been cov-
ered by a voluntary contributory pension plan , the salient
features of which are as follows:
1. Employees who desire to participate in the plan con-
tribute 2 percent of the first $7,800 of their annual salary
and 4 percent of the excess.
2. For each year of service a participating employee ac-
crues as a retirement benefit 1 percent of the first $7,800 of
his annual salary and 1.8 percent of the excess. Upon retir-
ing the employee receives as his monthly retirement benefit
the sum of each year's accrual divided by 12.
3. Vesting occurs at age 45 after 15 years of service.
4. A participating employee may retire at age 65. If he
continues to work beyond age 65, he accrues no additional
retirement benefits.
5. A participating employee retiring because of disabili-
ty must wait 12 months before receiving retirement bene-
fits.
D. The Bargaining 14
Between November 6, 1974, and April 11, 1975, inclu-
sive, respondent and the Union met for the purpose of
bargaining 18 times without arriving at a contract. Not-
withstanding this, there is no contention by the General
Counsel, except with regard to pensions, that respondent
bargained in bad faith. Even in this area the General
Counsel does not argue that respondent engaged in general
bad-faith bargaining. As he stated at the hearing,
respondent 's absence of good faith in its negotiations over
pensions consisted only of offering "a pension system that
would pay out less benefits than the existing pension sys-
tem" 15
The Union's chief negotiators were Vernon Boyer and
Thomas Clancy, representatives of the United Steelworkers
of America (USW), the Union's parent body. Among the
other negotiators for the Union were Leroy Conklin and
Phillip Guerra, respectively its president and vice presi-
dent. The principal negotiator for respondent was Nicholas
Pernice, its personnel manager, who has had much experi-
ence in negotiating collective-bargaining agreements, hav-
ing been so engaged on behalf of respondent and other
employers since about 1964.
At the conclusion of each bargaining session, except that
of April 11, the parties either agreed upon the date of the
next meeting or agreed upon a definite method for fixing
that date.
Although the parties met many times, not every meeting
was eventful. The critical meetings were those held on No-
vember 6 and 26, 1974, January 30, March 12 and 25, and
April 1, 2, 8, and 11.
14 As noted, one of the issues in this case is whether, as contended by
respondent , its bargaining with the Union resulted in an impasse
fs In accordance with this argument the General Co„nscl , as set forth
earlier, amended the complaint to allege that respondent violated Sec
8(a)(5) of the Act by offering the Union "a pension benefit plan having
considerably less value with respect to employee retirement income than the
[present] pension plan " Whether this was in fact the case will be con-
sidered later
TAYLOR-WINFIELD CORP. 459
At the meeting of November 6, 1974, the first bargaining
session, the Union presented for respondent's review a
draft of a proposed contract 16 which included a provision,
section 2B, captioned "Local Working Condition," recit-
ing in pertinent part, "Practices and/or customs, written or
oral, which provide benefits that are in excess of or in addi-
tion to the benefits established by this Agreement shall re-
main in effect for the term of this Agreement." 17 The
Union's draft contained no details as to rates of pay, nor
did it contain a pension plan.
The parties next met on November 26, 1974. By the close
of this meeting, as Boyer, a chief negotiator for the Union,
testified, the Union and respondent were in agreement on
"at least 85 percent of the contract language ... in all
sections of the contract other than economics."
On January 30 the Union presented its pension plan, the
principal provisions of which follow:
1. All employees would be covered on a noncontributo-
ry basis.
2. Retirement income would be computed in accor-
dance with the formula set forth in the present plan, pro-
vided that the pension to be received by any retiree would
not be less than an amount calculated on the basis of $12 a
month for each year of service. The Union's rationale for
proposing these alternative benefit formulas was that the
longer service, higher salaried employees would fare better
under the former than they would under the latter, whereas
the reverse would be true regarding lower salaried employ-
ees with relatively short periods of service.
3. Disability pensions on the basis of $12 a month for
each year of service would be payable after 5 months from
the date of disablement, provided an employee had 10
years of service.
4. Employees would be eligible for early retirement after
10 years of service.
5. Vesting would occur after 10 years of service.
6. Employees' contributions to the present plan would
be returned upon termination of employment with interest
computed at a rate of 5 percent a year.
7. Employees remaining at work beyond age 65 would
continue to accrue retirement benefits.
At the meeting of March 12 respondent made its first
proposal on wages and presented a counterproposal as to
pensions. Included in respondent's wage proposal was a
provision for a merit review system similar to that then in
effect. This was rejected by the Union.
The pension plan offered by respondent at this meeting
provided, as the Union's did, that it would cover all em-
ployees and that it would be noncontributory. It differed
from the Union's proposal in several significant areas, in-
cluding the pension benefit formula and the interest rate
payable on the return of employees' contributions to the
present plan.
Concerning the latter, respondent proposed that the in-
terest rate be 3 percent a year, whereas the Union had
proposed 5 percent a year. Regarding the former, instead
of the alternative formulas sought by the Union respon-
dent proposed as a substitute, a single formula which, un-
like that contained in the present plan, would furnish re-
tirement income to all retirees figured on the basis of $10 a
month for each year of service.)
At the meeting of March 25 respondent presented its
second wage offer. This, like its predecessor, also made
provision for a merit review system. Unlike the former pro-
posal, however, it contemplated an automatic progression
from the minimum to the midpoint of the rate range for the
position involved. Thereafter, wage increases were to be on
a merit basis. As was the case with the first merit review
system proposed by respondent, this, too, was rejected by
the Union.
During the meeting held on April 1, respondent made its
third wage proposal. Because the Union had twice previ-
ously rejected a merit review system no mention of such a
system appeared in this proposal. However, in the discus-
sion attendant upon respondent's wage offer respondent's
negotiators again recommended a system for merit review
and the Union once more voiced its rejection.
On April 2 respondent presented its fourth wage propos-
al to the Union 19 which, like its third, and for the same
reason, contained no reference to a merit review system. At
this meeting in addition to a discussion of wages there was
bargaining on pensions resulting in agreement on several
important points.
Thus, the parties agreed that disability pensions be pay-
able after 6 months from the date of disablement, provided
the employee concerned had 15 years of service; that the
interest rate on the return of employee contributions to the
present plan be computed at the rate of 3 percent a year;
that pensions vest after 10 years of service; that employees
remaining at work beyond age 65 would continue to accrue
retirement benefits; and that early retirement could take
place at age 55 after 15 years of service. The foregoing
agreements resulted from compromises made during the
course of give-and-take bargaining.
There were also changes in position but not agreement,
on other facets of the parties' pension proposals. Among
these was the Union's suggestion that the present pension
plan be continued with modifications as to the contribu-
tion formula, provided that the minimum pension to be
paid to any retiree be computed on the basis of $10 a
month for each year of service.20
At the April 8 bargaining session there was discussion on
the Union's 2B proposal. Being unwilling to agree to the
inclusive past practice provision in the form presented by
the Union on November 26, 1974,21 respondent requested,
18 As aptly stated in respondent's brief "this difference in pension benefit
proposals would prove to be a steel wall for the parties " And, as will be
seen, it was one of the principal issues, if not the principal issue, over which
barpining ultimately foundered
1 Each of respondent's successive wage proposals brought the parties
closer to agreement in this area of negotiations
20 It will be remembered that the Union originally sought a noncontribu-
tory pension plan calling for a minimum pension calculated at the rate of
$12 a month for each year of service and that respondent countered with an
offer, on which it stood throughout the negotiations, of a plan, also noncon-
tributory, but providing that the monthly income to all retirees be calculated
16 G C Exh 9 by multiplying the number of years of service by 10
17 There was much bargaining over this matter, which was referred to at 21 Although earlier set forth, the Union's 2B proposal is repeated here for
the hearing, and will at times be referred to in this Decision, as the 2B or ready reference Captioned "Local Working Conditions," it provided, inso-
past practice issue Continued
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as it had done many times before without success, that the
Union list the specific practices to which it made reference.
It was equally unsuccessful on this occasion. In this regard,
at no time through the meeting of April II did the Union
furnish respondent with such a list
By the end of the April 8 bargaining session the parties
had agreed upon virtually all items, except those relating to
economics, customarily found in collective-bargaining con-
tracts. Thus, agreement had been reached on, among other
things, union security, checkoff, grievance adjustment ma-
chinery, hours of work and scheduling holidays, vacations,
seniority, safety and health, and sick leave. The parties
were still apart on the 2B issue, wage rates, and pensions.
The April 11 meeting was a long one, starting at 10 a.m.
and ending at 7 p.m. Unlike previous bargaining sessions it
was, as characterized by Pernice, respondent's principal
negotiator, "a highly charged, emotional meeting where a
lot of tempers flew."
The discussion during the early part of the meeting relat-
ed to wages and the 2B matter. Concerning the former,
respondent made an offer, some parts of which were ac-
cepted by the Union. Respondent's wage offer, its highest
to this date, considered as a whole, would have resulted in
a salary increase of about $52 a month.22
Regarding the 2B issue, the Union substituted for its
original proposal one purporting to define the term "Local
Working Conditions" and providing that "such ... work-
ing practices as agreed to shall be continued and appear in
an appendix of this agreement." At the same time , as Clan-
cy, a principal negotiator for the Union, testified, he under-
took to "submit at the next meeting a list of the practices
that the [Union] wanted to include [in the appendix] "
The parties' attention then turned to pensions. This was
the last item taken up on April 11. It consumed most of the
meeting's bargaining time and much heat was generated
while the subject was on the table.
At the outset both parties stood on their previous pen-
sion proposals As the session wore on without any move-
ment by either party the Union's negotiating committee
caucused. At their caucus the Union's bargainers decided,
as Clancy testified, to "propose to the Company without
any modification, without any minimum, the present pen-
sion plan as is."
Upon the resumption of bargaining, the Union's negoti-
ators, in accordance with their decision at caucus, pro-
posed that the present pension plan be continued without
change. During the ensuing lengthy discussion the Union
made it clear, as Clancy recounted, that "the present pen-
sion plan is a must." With equal adamancy Pernice,
respondent's chief negotiator stated, as Clancy further tes-
tified, that respondent's "pension position ... was the
same as [it was on] April 2."
When it became apparent that respondent was unwilling
to move in the pension area in the direction sought by the
far as relevant, that "Practices and/or customs, written or oral, which pro-
vide benefits that are in excess of or in addition to the benefits established
by this Agreement shall remain in effect for the term of this Agreement"
22 Guerra, the Union's vice president and one of its negotiators, testified
that this wage offer amounted to an increase of between $52 and $54 a
month Pernice stated that it constituted an increase of $51 90 a month
Union; i.e., the continuation of the present pension plan,
characterized by Clancy, as noted above, as a "must," Boy-
er, the Union's other principal negotiator, announced to
Pernice, as the former testified, "when the Company has
something further to offer, call us." On this note of finality
the April 11 meeting closed.
In view of the contention by respondent that its bargain-
ing with the Union ended in an impasse, it is pertinent to
note the "understanding" of the negotiators on both sides
of the table "as to the state of negotiations" at the conclu-
sion of the April 11 meeting.23 In this regard Pernice,
respondent's chief negotiator, made the following state-
ments at various times during his lengthy testimony not
only as a witness for respondent, but also as a witness for
the General Counsel.
1. "I was very definitely and positively of the opinion
that we reached a stalemate . . . because of the position
the Union had taken in three consecutive meetings, the
second, the eighth, and the eleventh [of April]; and like I
said, the eleventh was a highly and emotionally charged
meeting. [I]t was very obvious that we were not making any
progress whatsoever. [The Union was] adamantly sticking
to [its] position [on] the pension plan and the 2-B areas.
The Company was also."
2. "[I felt] an impasse had been reached at that .. .
meeting . . . for one thing by the unusual manner in which
it was adjourned by Mr. Boyer [a principal negotiator for
the Union] standing up and saying `If you have anything
further to offer, call me.' That was a very unusual situation.
We always sat down and made some arrangements to set
up a further meeting."
3. "It was obvious that the parties were not moving in
the pension or the 2B area. We were not moving from our
position and the Union was not moving from [its] position.
If that isn't a stalemate, then I don't know from my expen-
ence what is a stalemate."
4. "We had been discussing back and forth across the
table in a highly emotional atmosphere the pension propos-
al, what the Union wanted and what the Company was
willing to do, and what [it] was not willing to do; and each
party kept insisting on their positions. The Union kept in-
sisting on the present pension plan, and the Company said,
`We are not going to give you the present pension plan.'
After you repeat that a dozen times, tempers flare, and
they did. You can't sit there hour after hour. The Union
said `No' and the Company said `Yes' and vice versa.
While this was going on [, Boyer,] the staff representative
of the Steelworkers Union stood up and said `If you have
got anything further to offer, call me.' If that is not a stale-
mate, then in my experience I don't know what a stalemate
is. We weren't budging, and the Union wasn't budging."
5. "[A]t the conclusion of that meeting [I] felt [absolute-
ly] that an impasse had been reached."
Conklin and Guerra, respectively the president and vice
president of the Union and also members of its negotiating
committee, likewise testified concerning their "under-
standing . . . as to the state of negotiations" at the end of
the April 11 meeting. In this regard, Conklin stated:
23 Taft Broadcasting Co, WDAFAM-FM TV, 163 NLRB 475, 478 ( 1967),
affd 395 F 2d 622 (C A D C, 1968)
TAYLOR-WINFIELD CORP. 461
1. "[On] pensions . . . we were very far apart on what
the Union was asking for, and what the Company was
offering."
2. "[W]e were very much in disagreement, particularly
on pensions . . . . I was wondering where do we go from
here, because I felt we were . . . at odds with the pension
plan to the point where we didn't know where we were
going to go. We weren't going to make any progress talking
to each other."
3. "I felt that . . . the union and the company were far
apart and, in fact, we had reached an impasse."
4. "[T]here appeared to be no hope [that the company
would offer the present plan, and the union was not pre-
pared to accept the plan as it had been offered by the
company.] As near as I could discern [the company was
fixed . . . on the proposed plan and the union was fixed on
its position that it would not accept what the company had
offered.]"
5. "I felt [regarding pensions the company's position
was fixed and] I felt we [the Union] had gone as far as we
could."
Concerning the matter here under discussion Guerra
gave the following testimony:
1. "[T]he pension area was the one area we felt we had
to come to an agreement on to get a contract, and that was
the one area that we were just miles apart on."
2. "[B]oth sides were . . . holding fast as to what they
were after [on pensions]."
3. "At the conclusion of the ... meeting, the Company
had made a statement that [it] had gone as far as [it] could
with what was offered, and we [the Union] were standing
fast."
4. "I got no indication [that the Company . . . would
move at all on the formula of $10 per month] . . . . I think
it was made clear [that the Union would not accept the
Company's offer on the pension benefit]."
Also bearing on the issue of whether the parties had
reached an impasse in their bargaining on pensions are
statements made at the hearing by Boyer and Clancy, the
Union's principal bargainers. Thus, Boyer testified that the
Union was not "on April 11 ... or at any time prior to the
filing of the charge, willing to agree to the pension benefit
formula which had been suggested . . . and offered by the
Company." In like vein, Clancy said that "the Union was
[not] on April 11, 1975, willing to accept the pension pro-
posal that the Company had offered."
As I have already several times mentioned, respondent
argues that the parties had reached an impasse in bargain-
ing on at least two issues. These respondent states, on brief,
were "the pension benefit formula and . . . the past prac-
tice clause or `2-B' clause."
"Whether a bargaining impasse exists is a matter ' of
judgment. The bargaining history, the good faith of the
parties in negotiations, the length of the negotiations, the
importance of the issue or issues as to which there is dis-
agreement, the contemporaneous understanding of the par-
ties as to the state of the negotiations are all relevant fac-
tors to be considered in deciding whether an impasse in
bargaining existed." Taft Broadcasting Co., etc., 163 NLRB
475, 478, affd. 395 F.2d 622 (C.A.D.C., 1968).
Regarding the first "relevant factor" mentioned by the
Board in Taft-"bargaining history"-there is none be-
tween respondent and the Union. To the extent disclosed
by the record, neither the Union nor any other labor orga-
nization ever in the past bargained with respondent on be-
half of the employees here concerned; namely, respon-
dent's office clerical and technical employees. For such
value as it might have insofar as respondent's bargaining
history is concerned, I note that for many years a sister
local of the Union has represented respondent's production
and maintenance employees and, as Boyer, a representa-
tive of USW, testified, that union has had "a good working
relationship with [respondent]."
"[T]he good faith of the parties in negotiations" is the
second "relevant factor" mentioned in Taft. As to this,
there is no contention by the General Counsel, except re-
specting pensions, that respondent bargained in bad faith.
Even in this area, as earlier set forth, the General Counsel
does not claim that respondent bargained generally in bad
faith. Respondent's bad-faith bargaining regarding pen-
sions, the General Counsel asserted at trial in accordance
with his complaint, as amended, consisted only of offering
to the Union "a pension system that would pay out less
benefits than the existing pension system." As will be
shown below, however, this argument is not supported by
the evidence. I find, therefore, that respondent did bargain
with the Union in good faith.
The next "relevant factor" to be considered is the
"length of the negotiations." In this regard, the negotia-
tions between the parties, although not resulting in agree-
ment upon a contract, encompassed a period of more than
5 months during which time the parties met and bargained
18 times. It is apparent, in view of this, that the bargaining
was sufficiently lengthy to satisfy the "relevant factor" here
under consideration.
The fourth "relevant factor" stated in Taft is "the impor-
tance of the issue or issues as to which there is dis-
agreement." That the pension issue over which the parties
disagreed is an important issue can not be gainsaid.
The final "relevant factor," explicated in Taft to be used
as a guidepost in determining whether an impasse arose
during the parties' bargaining on April 11, is "the contem-
poraneous understanding of the parties as to the state of
the negotiations." As I have pointed out above, it was the
"understanding" of negotiators on both sides of the table
that on April 11 respondent and the Union had, in fact,
arrived at the point of irreconcilable disagreement on the
pension issue.
Accordingly, I conclude that the parties, on April 11,
had reached an impasse in their bargaining on the issue of
pensions.24
In reaching the foregoing conclusion I have also taken
into account the atypical manner in which the April 11
bargaining session ended. At the close of each of the previ-
ous 17 meetings the parties agreed upon the date for the
following meeting or upon a definite method for fixing that
date. This was not done on April 11. Instead, after a long,
24 This being the case, it is unnecessary to decide whether the parties were
also at an impasse on the 2B issue , for "a deadlock as still a deadlock
whether produced by one or a number of significant and unresolved differ-
ences in positions" Taft Broadcasting Co, supra at 478
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
emotional, highly charged discussion on pensions Boyer, a
principal negotiator for the Union, brought the meeting to
an end by standing up and proclaiming to respondent's
bargaining agents that they should inform the Union when
respondent had "something further to offer." No other
meeting having ended on such a note of finality, it is, in my
opinion, another and important "relevant factor" in de-
termining that the parties had stalemated in their pension
negotiations.
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts, Contentions, and Conclusions Concerning
Respondent's Alleged Violations of Section 8(a)(5) of the
Act by Its Pension Plan Offer
As noted,25 the complaint, as amended, alleges that re-
spondent violated Section 8(a)(5) of the Act by offering the
Union "a pension benefit plan having considerably less
value with respect to employee retirement income than the
pension benefit plan then applicable to the employees in
the collective bargaining unit." The General Counsel con-
tends that respondent was motivated by bad faith in mak-
ing this offer.
It will be demonstrated that the evidence does not show
that the pension plan offered by respondent, to which the
allegation makes reference, in fact had "less value with
respect to employee retirement income" than the present
plan. The absence of evidence to support the allegation
obviates an inquiry into respondent's motive in offering the
plan.
It is undisputed that, as testified by Frederick Bass,
whose expertise as a pension actuary was abundantly es-
tablished, "70 percent of [the people ... presently enrolled
in the pension plan] would have earned greater benefits
under [respondent's] proposed plan than they would have
earned under the present plan."
The employees falling within the remaining 30 percent,
those having longer periods of service and earning higher
salaries than the other 70 percent, would have received a
smaller raw benefit 26 under respondent's proposed pension
plan (proposed plan). Nevertheless, the proposed plan
would have provided them with benefits not available un-
der the present plan.
Among these additional benefits are the following:
1. The proposed plan would have covered all employees,
whereas the present plan covers only those employees mak-
ing the required contributions. The inclusive coverage of
the proposed plan would, therefore, provide a retirement
income to the long service, higher salaried employees who
refrained from enrolling in the present plan because of the
necessity of contributing a not inconsiderable portion of
their salary.
2. The present plan is contributory, whereas the pro-
posed plan would have been noncontributory. As earlier
found, employees enrolled in the present plan are required
to contribute 2 percent of the first $7,800 of their salary
and 4 percent of the excess 27 As Bass testified, this contri-
bution, not required by the proposed plan, "can [be] look-
[ed] at [as] additional money that the employees would
have to put away for their retirement, and therefore greatly
increasing the value of the . . . retirement income."
3. Under the proposed plan employee contributions al-
ready made into the present plan would have been re-
turned upon retirement with interest computed at the rate
of 3 percent a year. "This," as Bass also testified, "further
enhances the value of . . . retirement income for employ-
ees, because it is additional money to provide them with
benefits."
4. The present plan provides that employees retiring be-
cause of disability must wait a year before receiving retire-
ment benefits. The proposed plan would have cut the wait-
ing period to 6 months.
5. Under the present plan employees earn no additional
benefits by continuing to work beyond age 65. The pro-
posed plan would have changed this by permitting the ac-
crual of retirement benefits by employees remaining at
work beyond age 65.
6. The proposed plan would have allowed early retire-
ment at age 55 after 15 years of service. Insofar as can be
ascertained from the record, the present plan does not con-
tain a corresponding provision.
It is not open to question that 70 percent of the employ-
ees would have received a larger retirement income under
the proposed plan than provided for by the present plan.
Regarding the remaining 30 percent, although their raw
benefit would have been smaller under the proposed plan
than the raw benefit furnished by the present plan, the pot
would have been sweetened, so to speak, by the inclusion
of the foregoing benefits contemplated by the proposed
plan which are not available under the present plan.
Overall, therefore, I find that the proposed plan does
not, as alleged in the complaint, have "less value with re-
spect to employee retirement income than the [present
Plan]." Accordingly, I conclude that respondent did not
violate Section 8(a)(5) of the Act by offering the proposed
plan to the Union.
B. Facts, Contentions, and Conclusions Concerning
Respondent's Alleged Violations of Section 8(a)(5) of the
Act by Unilaterally Changing Terms and Conditions of
Employment
On April 14, 1975, the first business day following the
impasse in bargaining which, as found, occurred on April
11, respondent unilaterally granted its employees a general
salary increase of $50 a month and, in addition, reactivated
and implemented its merit review system. This was done
pursuant to recommendations made by Nicholas Pernice,
respondent's personnel manager, because, he testified, "it
had been several months since the employees received a
wage increase ;28 [that their] morale was going lower by the
day [and that this] was reflected in [their] work perfor-
mance."
27 Pursuant to this formula the contribution of a senior engineer earning
25 See fn 1, above $15,600 a year (G C Exhs 2, 3, and 4 and C P Exh 1) is $468 a year
26 Bass defined the term "raw benefit" as being "the number of dollars 28 I have found, in this regard, that the employees had received their
that a retiree would receive each month " previous salary increase in July 1974
TAYLOR-WINFIELD CORP. 463
The General Counsel contends that by instituting the
foregoing changes in terms and conditions of employment
unilaterally respondent violated Section 8(a)(5) of the Act.
Respondent argues, and I agree, that the unilateral changes
it made were privileged because of the impasse reached in
its bargaining with the Union.
It is well settled that after an impasse in bargaining be-
tween an employer and a union the employer may unilater-
ally change terms and conditions of employment . In doing
so, however, he may not exceed what was offered to,29 or
rejected 30 by the Union.
I find that the unilateral action taken by respondent on
April 14 following the impasse in bargaining that occurred,
as has been determined, on April 11 remained within the
foregoing limits. Insofar as the general salary increase is
concerned , I have found that respondent 's wage proposal
made at the April 11 bargaining session, its highest to that
date , consisted of a package which would have resulted in
a salary increase of about $52 a month. Accordingly, by
granting an increase of $50 a month after the impasse re-
spondent did not exceed what it offered during the bar-
gaining.
Concerning the reactivation of the merit increase system,
it has been found that respondent proposed that this be
done on three occasions while bargaining was in progress
and that each time this proposal was rejected by the
Union.31 This being the case, I find that by reactivating the
merit review system respondent stayed within the permissi-
ble bounds of employer unilateral action following an im-
passe in bargaining.
Accordingly, I conclude that respondent did not violate
Section 8(a)(5) of the Act by unilaterally changing its em-
ployees' terms and conditions of employment . Having also
concluded that respondent did not violate Section 8(a)(5)
by offering the proposed pension plan to the Union, and
no other violation of the Act having been alleged in the
complaint, my order will provide for the complaint's dis-
missal.
Upon the foregoing findings of fact , and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2 (2) of the Act and 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. Respondent has not violated Section 8(a)(5) or (1) of
the Act in any manner alleged in the complaint.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
29 N L R B v Benne Katz, et a!, d/b/a Williamsburg Steel Products Com-
pany, 369 US 736, 745 (1962), Eddie's Chop House, Inc, 165 NLRB 861,
863 (1967)
30 N L R B v Crompton-Highland Mills, Inc , 337 U S 217, 224 (1949),
Ht-Way Billboards, Inc, 206 NLRB 22, 23 (1973), reversed on other grounds
500 F 2d 181 (CA 5, 1974); Vickers, Incorporated, 153 NLRB 561, 562
(1965)
31 Briefly recapitulating my findings in this regard, ment review proposals
were made by respondent , and rejected by the Union, at the meetings held
on March 12 and 25 and April I
ORDER32
It is ordered that the complaint be, and the same hereby
is, dismissed.
72 In 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 Order herein shall , as provided in Sec 102.48 of the Rules
and Regulations , be adopted by the Board and become its findings, conclu-
sions and Order and all objections thereto shall be deemed waived for all
purposes