The B. F. Goodrich Co.

National Labor Relations Board - Board Decisions

Mar 16, 1972

195 N.L.R.B. 914 (N.L.R.B. 1972)

914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The B . F. Goodrich Company and Local Union No.
804, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 29-CA-1875
March 16, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING,
JENKINS, AND KENNEDY
On November 12, 1970, Trial Examiner Abraham
H. Mailer issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that Respondent had not engaged in certain
other unfair labor practices but did not recommend
that the allegations of the complaint pertaining thereto
be dismissed. Thereafter, Respondent, the General
Counsel, and the Charging Party filed exceptions and
supporting briefs.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, the oral
arguments, and the entire record in the case and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner only to the extent consist-
ent herewith.
The General Counsel excepts to the Trial Examiner's
failure to find that Respondent's Employee Stock, Pur-
chase and Savings Plan on its face contains unlawful
restrictions both on the right of represented employees
and unrepresented employees who later select a collec-
tive-bargaining agent to participate therein. The plan
contains the following eligibility provision:
Any person performing services for an Employer
shall ... be eligible to participate in the Plan for
any Plan Year, if, on the first day of such Plan
Year, he:
(1) is a salaried employee;
(5) is not represented by a collective bargain-
ing agent or, if so represented, is covered by
an agreement between his Employer and such
agent which incorporates the Plan;
*
If any such person at any time during such Plan
Year ceases-to meet the above eligibility require-
ments, he shall cease to be eligible to participate
during the balance of such Plan Year.
We find merit in the General Counsel's contention
that the plan contains an unlawful restriction on the
eligibility of unrepresented employees who may there-
after become represented by a collective-bargaining
agent. By its terms, the plan disqualifies employees
from participation immediately upon selection of a rep-
resentative and does not provide for their continued
coverage pending negotiations. Accordingly, we con-
clude, contrary to the Trial Examiner, that the plan on
its face interferes with, restrains, and coerces currently
unrepresented employees in their selection of a collec-
tive-bargaining representative in violation of Section
8(a)(1). On the other hand, in agreement with the Trial
Examiner, we do not find the plan unlawful as to em-
ployees who were represented on the effective date of
the plan, including the unit of warehouse employees
represented by the Union herein. As to these em-
ployees, the plan permits their collective-bargaining
agent to bargain with respect to their eligibility to par-
ticipate.2 Indeed, Respondent would be guilty of an
unfair labor practice if it unilaterally granted the
benefit to these employees.
The General Counsel further excepts to the Trial
Examiner's failure to find that Respondent's implemen-
tation of the plan whereby it excluded the unit of ware-
house employees from participation in the plan violated
Section 8(a)(1) and (3). As we, view the issues raised by
this exception, the question is not whether Respondent
unlawfully implemented the plan by excluding the
represented employees. Instead, the question is
whether, in the circumstances of this case, Respondent
could lawfully grant 'participation in _the plan to its
unorganized employees while withholding participa-
tion from its represented employees. For the reasons
stated hereafter, we find that by this conduct Respond-
ent violated Section 8(a)(1)'but did not violate Section
8(a)(3).
Our analysis of the problem starts with Shell Oil
Company, Incorporated, 77 NLRB 1306, 1310, where
the Board stated:
Absent an unlawful motive, an employer is privi-
leged to give wage increases to his unorganized
employees, at a time when his other employees are
seeking to bargain collectively through a statutory
representative. Likewise, an employer is under no
obligation under the Act to make such wage in-
creases applicable to union members, in the face of
collective bargaining negotiations on their behalf
' We correct the Trial Examiner's inadvertent reference to Lewis as
Kemp in sec IV, A, par. 5 of his Decision. See Rangaire, 157 NLRB 682.
195 NLRB No. 152
THE B. F. GOODRICH CO. 915
involving much higher stakes. [Citation omitted.]
The above-quoted principles, which were recently
reaffirmed by the Board,' apply equally to the granting
of other new benefits, such as profit-sharing benefits. A
careful study of the underlying reasons for these princi-
ples leads us to reach different conclusions with regard
to the application of Section 8(a)(1) and Section 8(a)(3)
to the facts herein.
We conclude that the granting of new profit-sharing
benefits to unorganized employees but not to repre-
sented employees is not, standing alone,' prohibited
discrimination. The Act does not impose upon an em-
ployer the obligation to grant or confer upon repre-
sented employees the right to receive such benefits
solely on the basis that like benefits were conferred
elsewhere.' Indeed, efforts by an employer to extend
new benefits to represented employees would usually be
in derogation of the contractually established benefits
package. Such unilateral action may, indeed, constitute
an unlawful refusal to bargain.
Thus, regarding the grant of new benefits to unrepre-
sented workers, the most that can be said is that the Act
may impose on the employer the duty to bargain with
respect to providing the new benefits to represented
employees. We conclude, for reasons fully stated by the
Trial Examiner, that such an obligation arose in this
case and was breached. But Respondent's unlawful
refusal to bargain did not create any obligation au-
tomatically to grant the identical benefit to the repre-
sented employees. Thus, in the absence of discrimina-
tory motives in withholding a benefit from these
employees in order to encourage or discourage their
membership in or representation by a union, we find no
merit in the General Counsel's contention that Re-
spondent violated Section 8(a)(3) by granting the
profit-sharing benefit only to unrepresented employees.
However, Respondent's actions stand on a different
footing when viewed in terms of Section 8(a)(1). As
found by the Trial Examiner, the Union did not waive
its right to be consulted about the institution of this
type of benefit during the parties' negotiation of the
existing collective-bargaining agreement. By thereafter
instituting the plan for its unorganized employees while
unlawfully refusing to bargain with the Union as the
statutory representative of its warehouse employees,
Respondent deprived the latter employees of their right
to bargain collectively with respect to obtaining this
Chevron Oil Company, 182 NLRB 445, 449.
Had the grant been accompanied by statements encouraging the em-
ployees to abandon collective representation in order to secure the benefit,
for example, we would have clear evidence of unlawful 8(a)(3) motivation.
' In discussing the effect of the Taft-Hartley amendment adding Sec.
8(d), the Supreme Court stated in N.L.R.B. v. American National Insurance
Co., 343 U.S. 395, 404 (1952):
. the Board may not, either directly or indirectly, compel conces-
sions or otherwise sit in judgment upon the substantive terms of collec-
tive bargaining agreements.
additional benefit. As such conduct interferes with, re-
strains, and coerces the unit employees in the exercise
of their right to bargain collectively through represent-
atives of their own choosing, we conclude that Re-
spondent thereby further violated Section 8(a)(1).
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we will order it to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
We have found that the Respondent, by maintaining
its Employee Stock Purchase and Savings Plan which
contains a provision excluding employees from partici-
pation therein because they may choose in the future to
be represented by a labor organization in collective
bargaining in an appropriate unit, 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 above plan and any booklets
or publications describing said plan by including ap-
propriate language which explicitly provides for con-
tinued participation by such employees in the plan until
their collective-bargaining agent has negotiated an
agreement which disqualifies them from further partici-
pation therein.
While we adopt the Trial Examiner's finding that
Respondent violated the Act by refusing to bargain
with the Union with respect to the participation of unit
employees in the plan, we do not adopt that part of his
remedy which requires the Respondent to permit retro-
active participation by the unit employees in the plan.
Instead, we shall require that the Respondent bargain
with the Union concerning the participation of these
employees in the plan from its effective date.
AMENDED CONCLUSIONS
OF LAW
Renumber paragraphs 6 and 7 of the Trial Ex-
aminer's Conclusions of Law as paragraphs 8 and 9 and
insert the following:
6. By maintaining its Employee Stock Purchase and
Savings Plan which excludes from participation therein
employees who thereafter become represented by a col-
lective-bargaining agent without further providing for
their continued participation therein pending negotia-
tion of a collective-bargaining agreement which dis-
qualifies such employees from further participation, the
Respondent has interfered with, restrained, and co-
erced its employees in the exercise of their rights guar-
anteed by Section 7 in violation of Section 8(a)(1) of the
Act.
7. By granting to its unorganized employees partici-
pation in the above plan while refusing to bargain with
the Union concerning the participation by unit em-
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in the plan, the, Respondent has engaged in an
unfair labor practice within the meaning of Section
8(a)(1) of the, Act.
Add the following new paragraph:
10. Respondent has not violated the Act in respects
not found herein.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations -
Board hereby orders that the Respondent, The, B. F.
Goodrich Company, New York, New York, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Misrepresenting to the Union that its -Employee
Stock Purchase and Savings Plan excludes the unit
employees from participation therein.
(b) Maintaining such a plan which contains a provi-
sion excluding employees from participation therein
because they thereafter become members of a collec-
tive-bargaining unit or choose to be represented by a
labor organization in collective bargaining in an appro-
priate unit.
(c) Granting to its unorganized employees participa-
tion in the above plan while refusing to bargain with the
Union concerning the participation by unit employees
in the plan.
(d) Failing or refusing to bargain collectively with
Local Union No. 804; International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of its em-
ployees in the appropriate unit described below, with
regard to participation by said employees in The B. F.
Goodrich Company Employee Stock Purchase and
Savings Plan from the effective date thereof and, if an
understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is:
All warehousemen employed by Respondent at its
Staten Island warehouse, exclusive of all other em-
ployees, including office clericals, watchmen,
guards, and all supervisors as defined in Section
2(1,1) of the Act.
(e) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their right 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 concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative' action which is
necessary to effectuate the policies of the Act:
(a) Amend its Employee Stock Purchase and Savings
Plan and any booklets or publications issued to em-
ployees which describe said plan by including appropri-
ate language which explicitly provides for continued
participation in the plan by_ employees who thereafter
choose a collective-bargaining agent until their agent
has negotiated an agreement which disqualifies them
from further-participation in the plan.
(b) Upon request, bargain collectively with Local
Union No. 804, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America with respect to participation by the employees
in the aforesaid appropriate unit in The B. F. Goodrich
Company Employee Stock Purchase and Savings Plan'
from the effective date thereof and, if an understanding
is reached, embody such understanding in a signed
agreement.
(c) Post at its Staten Island, New York, warehouse
copies of the attached notice marked "Appendix."6 Co-
pies of said notice, on, forms provided by the Regional
Director for Region 29, after being duly signed by Re-
spondent's authorized representative, shall be posted
by the Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where
notices to employees are customarily posted. Reasona-
ble steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the `Respondent has taken to comply here-
with.
6 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 NOT misrepresent to the Union that
our Employee Stock Purchase and Savings Plan
excludes the employees represented by it from par-
ticipation therein.
WE WILL NOT maintain such a plan which con-
tains any provision excluding from participation
therein any employees because they thereafter
become members of a collective-bargaining unit or
choose to be represented by a labor organization
in collective bargaining in an appropriate unit.
WE WILL NOT grant to our unorganized em-
ployees participation in the above plan while refus-
THE B . F. GOODRICH CO. 917
ing to bargain with the Union concerning the par-
ticipation by unit employees in the plan.
WE WILL NOT fail or refuse to bargain collec-
tively with Local Union No. 804, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the -exclu-
sive representative of our employees in the appro-
priate unit described below, with regard to
participation by said employees in The B. F. Goo-
drich Company Employee Stock Purchase and
Savings Plan from the effective date thereof and,
if an understanding is reached, embody such un-
derstanding in a signed agreement. The bargaining
unit is:
All warehousemen employed by us at our
Staten Island warehouse, exclusive of all
other' employees, including office clericals,
watchmen, guards, and all supervisors as
defined in Section 2(11) of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to
form, join, or assist any labor organization, to bar-
gain collectively through representatives of their
own choosing, and to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any and all such activities.
WE WILL amend our Employee Stock Purchase
and Savings Plan and any booklets or publications
issued to employees which describe said plan by
including appropriate language which explicitly
provides for continued participation in the plan by
employees who thereafter choose a collective-bar-
gaining agent until their agent has negotiated an
agreement which disqualifies them from further
participation in the plan.
WE WILL, upon request, bargain collectively
with Local Union No. 804, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, with respect to participa-
tion by the employees in the aforesaid appropriate
unit in The B. F. Goodrich Company Employee
Stock Purchase and Savings Plan from the effec-
tive date thereof and, if an understanding is
reached, embody such understanding in a signed
agreement.
THE B . F. GOODRICH
COMPANY
(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, 16 Court Street, Fourth Floor, Brooklyn, New
York 11201, Telephone 212-596-3535.
TRIAL EXAMINER'S DECISION
ABRAHAM H. MALIER, Trial Examiner: On December 15,
1969, Local Union No. 804, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, filed a charge against The
B. F. Goodrich Company, herein called the Respondent.
Upon said charge, the Regional Director for Region 29 of the
National Labor Relations Board, herein called the Board, on
April 22, 1970, issued on behalf of the General Counsel a
complaint against the Respondent. Briefly, the complaint al-
leged that the Union is the exclusive bargaining representa-
tive of the employees in an appropriate unit of Respondent's
employees and that a collective-bargaining agreement exists
between the Respondent and the Union; that the Respondent
inaugurated and put into effect a stock purchase plan which
restricts the eligibility of employees of Respondent to partici-
pate in the plan and has denied the employees in the appropri-
ate unit represented by the Union the right to participate in
the plan and has refused to bargain with the Union concern-
ing the right of such employees to participate in the plan, in
violation of Section 8(a)(l),(3), and (5) of the National Labor
Relations Act, as amended (29 U.S.C.Sec. 151, et seq.), herein
called the Act. In its duly filed answer, the Respondent de-
nied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before me at Brook-
lyn, New York, on June 22, 1970. All parties were repre-
sented and were afforded full opportunity to be heard, to
introduce relevant evidence, to present oral argument, and to
file briefs with me. Briefs were filed by all parties. Upon
consideration of the entire record and the briefs, and upon my
observation of each of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times material
herein, a corporation duly organized under and existing by
virtue of the laws of the State of New York. At all times
material herein, Respondent has maintained its principal
office and place of business at 500 South Main Street, Akron,
Ohio, and operates a warehouse located at 2455 Forest Ave-
nue, Staten Island, in the Borough of Richmond, State of
New York, herein called the Staten Island warehouse, and
various other places of business in States throughout the
United States, where it is, and has been at all times material
herein, engaged in the manufacture, wholesale, and retail sale
and distribution of rubber tires and related products. During
the past year, which is representative of its annual operations
generally, Respondent, in the course and conduct of its busi-
ness operations, manufactured, sold, and distributed at its
various 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 in interstate commerce
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directly to States of the United States other than the State in
which they are located. During the past year, which period
is representative of its annual operations generally, Respond-
ent, in the course and conduct of its business, purchased and
caused to be transported and delivered to its Staten Island
warehouse rubber tires and related 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 Staten Island warehouse in interstate com-
merce directly from States of the United States other than the
State in which it is located. Accordingly, I find and conclude
that the Respondent is engaged in commerce within the
meaning of the Act and that it will effectuate the policies of
the Board to assert jurisdiction here.
II THE LABOR ORGANIZATION INVOLVED
Local Union No. 804, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America is
and has been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act.
III THE ISSUES
1. Whether the stock purchase plan on its face dis-
criminated against employees represented by the Union.
2. Whether the Respondent misrepresented the plan to the
Union as excluding the possibility of bargaining concerning
a condition of employment and thereby interfered with the
protected right of employees to engage in collective bargain-
ing.
3. Whether in the negotiations for the existing collective-
bargaining agreement between the Respondent and the
Union the Union had waived its right to seek inclusion of the
employees it represented in a stock purchase plan.
4. Whether the Respondent was required to bargain with
the Union concerning a stock purchase plan during the exist-
ence of the current collective-bargaining agreement.
IV THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The facts in this case are uncontroverted. Since about Oc-
tober 1966 Respondent has recognized and has had collec-
tive-bargaining agreements with the Union covering a unit of
warehousemen employed at Respondent's Staten Island
warehouse. There is at present a collective-bargaining agree-
ment which is effective from October 1, 1968, to October 1,
1971.
In September 1968 the Respondent and the Union met
several times to negotiate the current agreement. The Re-
spondent was represented by Kenneth Kemp, a union rela-
tions representative and its chief spokesman; J. B. Lewis, sales
and service manager of the Staten Island warehouse; and
Vaughn James, assistant sales and service manager. The
Union was represented by Pat Pagnanella, business agent and
trustee, Ronald Cary, president; Leonard Morotla, and Tom
O'Connor. There was also present throughout the negotia-
tions an employee committee consisting of Marco Saputo,
then shop steward, and John Hornak, assistant shop steward.
At one of the early negotiating meetings, Hornak stated
that he had read in a magazine or a paper that either B. F.
Goodrich or Goodyear or a lot of companies were consider-
ing going into stock purchase plans and asked if the em-
ployees at the Staten Island warehouse would be able to
participate. Kemp replied that it was not company policy to
have a stock purchase plan, that the Respondent did not have
any stock option plan for any employees at that time, and he
refused to discuss the subject further. Thereafter, Hornak and
Saputo individually again inquired whether the unit em-
ployees would be able to participate in-a stock option plan,
if the Respondent instituted such a plan. Lewis replied that
it was not company policy to have a plan and again refused
to discuss the subject. Still later, Pagnanella or Cary asked
whether the Respondent had any intention of instituting a
stock purchase plan, and Kemp replied that he could not
foresee it in the near future and refused to discuss it further.
Approximately 6 months later, on March 25, 1969, Re-
spondent's stockholders approved The B. F. Goodrich Com-
pany Employees Stock Purchase and Savings Plan, herein
referred to as the Plan, to become effective October 1, 1969.
Article II of the Plan sets forth the eligibility requirements
and provides for participation only by any employee who "is
not represented by a collective-bargaining agent or, if so
represented, is covered- by an agreement between his Em-
ployer and such agent which incorporates the Plan."'
Respondent never notified the Union that the Plan had
been approved and would be instituted.- About the second
week of September 1969 Hornak was told by a coworker that
the Respondent was going to institute a stock purchase plan
on October 1, 1969. On or about the following day, after
having been informed by Hornak about this, Pagnanella tele-
phoned Lewis to determine whether such a plan was going to
be instituted. Lewis replied in the affirmative. Pagnanella
then asked him what the qualifications for participation
would be, and Lewis replied that employees represented by
a collective-bargaining agent could not participate. Pag-
nanella then said that this was discrimination against the
union people, and Kemp replied that the union people had
received everything coming to them in the current agreement.
Pagnanella asked if anything could be done about it, and
Kemp stated that he would call the main office in Akron,
because the matter was out of his hands. Two days later
Pagnanella again called Lewis and asked him if,.he had re-
ceived an answer. Lewis replied that the answer from the
main office in Akron was the same, viz., that only people not
in a bargaining unit would be able to participate.
Pagnanella then telephoned Respondent's Akron offices
and was referred to Kemp who confirmed that employees in
the bargaining unit were excluded and that their only re-
course was to wait until October 1, 1971, when the current
contract expired, and then try to negotiate the Plan into a new
agreement.
The Union, however, was not willing to wait 2 years to
negotiate concerning coverage of the Plan for employees in
the unit. On October 2, Pagnanella sent a letter to the Re-
spondent requesting that unit employees be permitted to par-
ticipate in the Plan, or in the alternative, that the Respondent
negotiate with the Union concerning the Plan. On October
14, Lewis responded by letter denying that the Plan was
discriminatory and `stated that insofar as the bargaining unit
employees were concerned the Plan was subject for discussion
"at negotiations in accordance with the terms of the existing
Agreement."
Under date of November 10, Stanley M. Berman, attorney
for the Union, wrote to the Respondent and made a formal
demand that negotiation concerning the Plan begin immedi-
ately. Under date of November 21, Respondent, by Paul W.
Roman, union relations representative, wrote Attorney Ber-
man stating that the Respondent considered it appropriate to
negotiate concerning the Plan at the expiration of the existing
collective-bargaining agreement.
' It was stipulated that all the employees in the unit represented by the
Union meet the other requirements of eligibility
THE B . F. GOODRICH CO. 919
B. The Validity of the Plan
It is well settled that employee-participation plans which
have the effect of excluding employees because they are union
members are inherently discriminatory. Toffenetti Restaurant
Company, Inc., 136 NLRB 1156, 1173, enfd. 311 F.2d 219
(C.A. 2), cert. den. 372 U.S. 977; Dura Corporation, 156
NLRB 285, enfd. 380 F.2d 970 (C.A. 6). The Plan in the
instant case, however, differs from those involved in the cases
cited, in that participation therein by persons represented by
a collective-bargaining agent was not completely foreclosed.
Instead, it left open the door to participation by providing for
participation by those employees who are "covered by an
agreement between his Employer and such agent which in-
corporates the Plan." In the recent case of The Rangaire
Corporation, 157 NLRB 682, the Board held that the inclu-
sion of a similar provision prevented the plan from being
unlawful, because the "continuation of coverage was left to
bargaining rather than being completely foreclosed" (Id. at p.
684).2
Rangaire is squarely in point with the case at bar in other
respects as well. Although the Board held that the plan as
promulgated was lawful, it concluded that the employer's
chief negotiator had, either deliberately or mistakenly,
materially misrepresented the language of the plan in stating
to the Union that it excluded employees represented by a
union . The Board said:
A plainly misleading statement of fact which purports to
exclude the possibility of bargaining over continuation of
an existing condition of employment interferes with the
protected right of employees to engage in collective bar-
gaining.... Since the ground given for removing the
possibility of continuation of the benefit was exercised by
unit employees of a Section 7 right to select a union 'to
represent them, Lincoln's [the negotiator's] statement
also tended to coerce employees in exercising this right.
For these reasons, we find the September 14 statement
by Lincoln as to the terms of the exclusion in the pension
plan to have violated Section 8(aXl). (Id. at p. 684).
In the instant case, Lewis, both before and after checking
the matter with the main office in Akron, misrepresented the
Plan to the union representatives and stated that only people
not in a bargaining unit would be able to participate, and this
was later confirmed by Kemp. In view of the foregoing, I find
and conclude that the foregoing conduct of the Respondent
violated Section 8(a)(1) of the Act.
C. Respondent's Refusal to Bargain Concerning the Plan
Respondent admittedly refused the Union's request to bar-
gain concerning the Plan. It took the position then, and
argues now , that it was under no duty to bargain concerning
the Plan until the contract is open for negotiation in 1971. In
support of its contention, it relies upon and quotes extensively
from the dissenting opinion of Member Reynolds in The
Jacobs Manufacturing Company, 94 NLRB 1214, enfd. 196
F.2d 680 (C.A. 2). In a decision which has withstood the test
of time,' the Board held in Jacobs that an employer is under
a duty to bargain during the existence of a collective-bargain-
ing agreement concerning any mandatory subject of bargain-
ing which has not been specifically covered in the contract
and which the union has not clearly and unmistakably
' The Board in Rangaire spoke of the "continuation of coverage" because
the profit-sharing plan in that case had been in effect before the employees
were represented by a collective-bargaining representative, whereas in the
instant case the collective-bargaining representation preceded the effective
date of the Plan. The difference is not material.
3 See, e .g. The Press Company, Incorporated, 121 NLRB 976, 977-978.
waived. Respondent is plainly asking me to overrule that
decision. I do not have that authority, even if I were to agree
with the Respondent's contention.
The Plan in the instant case is clearly a manadatory subject
of bargaining. See, e.g., Inland Steel Company, 77 NLRB 1
(pension plan); Como Plastics, Inc., 143 NLRB 151 (profit-
sharing plan); The Kroger Co., 164 NLRB 362 (savings and
profit-sharing plan). It follows, therefore, that Respondent's
admitted refusal to bargain concerning participation of the
unit employees in the Plan was violative of Section 8(a)(5) of
the Act, and I so find.
D. Respondent's Contention that the Union Waived its
Right to Bargain Concerning the Plan
The second defense urged by the Respondent is that the
Union waived its right to bargain concerning the Plan be-
cause of the inquiries made about a stock plan during the
contract negotiations. The contention is unsupported by the
facts and is wholly untenable. The conversations upon which
the Respondent relies occurred before the Plan was in exist-
ence and were without reference to anything more specific
than "a stock plan." The Union broached the subject in the
form of an inquiry stimulated by rumors it had heard. It made
no proposals concerning such a plan, and the Respondent
refused to discuss the matter, expressly stating that no stock
plan existed or was contemplated. 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 intended and ex-
pressed. (Perkins Machine Company, 141 NLRB 98,
102.)
To the same effect, see Beacon Piece Dyeing and Finishing
Co., Inc., 121 NLRB 953, 957; The Press Company, Incor-
porated, supra, at page 978. In the case at bar, there is no
evidence whatsoever that points to a "conscious relinquish-
ment" by the Union of any right to bargain about the Plan.
Rather, the Union accepted the Respondent's assertion that
no stock plan was being contemplated and submitted to its
refusal to discuss the subject. The alternative would have
been for the Union to endanger the entire negotiations by
pushing the issue of a stock plan, when to do so under the
circumstances would have been futile and meaningless. I
therefore find and conclude that the Union did not waive its
right to bargain concerning the Plan during the contract
negotiations.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with the operations of the
Respondent set forth in section I, above, have a close, inti-
mate, 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
thereof.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
v i THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a)(1) and (5)
of the Act, I shall recommend that it cease and desist there-
from and that it take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent has refused to bargain
with the Union regarding participation by the unit employees
in the Plan in violation of Section 8(a)(5) and (1) of the Act,
1 shall recommend that it be ordered to bargain in good faith
with the Union , upon request , as the exclusive representative
of the unit employees concerning participation by unit em-
ployees in the Plan and , if an understanding is reached, em-
body such an understanding in a signed agreement.
The General Counsel and the Charging Party contend that
a prospective bargaining order standing alone will not ade-
quately remedy the Respondent 's unfair labor practices. The
contention is meritorious . By deliberately misrepresenting
the Plan to the Union before it became effective , thereby
depriving the Union of the opportunity of bargaining before
the Plan became effective , and by refusing to bargain with the
Union thereafter concerning the participation by the unit
employees therein, the Respondent has deprived those em-
ployees of the benefits of the Plan.
The Board has the power to fashion a remedy which will
make whole the employees who have been adversely affected
by the Respondent 's unfair labor practices by requiring an
employer to grant benefits retroactively . Hinson v. N. L.R.B.,
428 F . 2d 133 (C.A. 8), enfg. 175 NLRB No. 100; Chamber-
tin, Inc., 183 NLRB No. 80. And the Board has exercised
that power in cases involving participation in profit-sharing
plans by requiring , the employer to permit participation re-
troactively . Dura Corporation, 156 NLRB 285; The Kroger
Co., 164 NLRB 362, modified 401 F.2d 682 (C.A. 6).4 Since
the Plan in the instant case, unlike those in Dura and Kroger,
provides for coverage if contracted for by the Union and the
Respondent , the precise remedies applied in those cases
In Dura, as previously indicated , the profit-sharing plan excluded par-
ticipation by any salaried employee who was a member of a collective-
bargaining unit and contained no provision , as in the instant case , for partici-
pation by such employees if they are covered by a collective -bargaining
agreement with the employer In that case , the Board 's order required the
Respondent to
Restore to and permit participation in its profit-sharing plan for salaried
employees by all old and new salaried employees who have been dis-
qualified for participation in the plan because they have become mem-
bers of the collective -bargaining unit represented by the Union with all
the interest , emoluments rights , and privileges in said plan that would
have accrued to them but for such disqualification
In Kroger, which likewise excluded represented employees, the Board's
order required the employer to
Restore , in a manner to be determined hereinafter at the compliance
stage of this proceeding , to the status in the Kroger Savings and Profit-
Sharing Plan which they would have enjoyed had they not withdrawn
from the plan , all those employees who were required , on or after
March 13 , 1965 , to withdraw from the plan in consequence of the terms
of paragraph 4 of that plan pertaining to coverage by collective -bargain-
ing agreements , as explained above under the section of the Decision
entitled "The Remedy "
The Court of Appeals declined to enforce that portion of the Board's Order
However , the Board has not acquiesced in the decision of the Court of
Appeals
would be inappropriate . Consequently , although Respondent
should offer the employees full participation in the Plan re-
troactively to October 1, 1969, such participation should con-
tinue until the occurrence of the earliest of the following
conditions: ( 1) The parties reach agreement concerning the
application of the Plan to the employees ; (2) a bona fide
impasse in bargaining ; (3) the failure of the Union to request
bargaining within 10 days of this Decision , or to commence
negotiations within 10 days after the Respondent 's notice of
its desire to bargain with the Union ; or (4) the subsequent
failure of the Union to bargain in good faith.
Respondent , relying upon the Sixth Circuit 's refusal to
enforce the pertinent portion of the Board 's remedy in Kro-
ger, argues that permitting the employees to participate re-
troactively in the Plan will give them an undue advantage
that they would not have had, had they participated when the
Plan became effective . Respondent argues that, considering
the action of the stock market since October 1, 1969, these
employees now have the benefit of hindsight . This is true. But
it is the result only of Respondent's violation of the Act. It
may well be that in these circumstances some of these em-
ployees may not desire to participate in the Plan. Further-
more, in order to qualify under the Plan retroactively to
October 1 , 1969, they would be required to make their pay-
ments retroactively to that date . Those who were not willing
to carry this burden will gain nothing by a retroactive order.
Those who are willing to do so can contribute only within the
limits established by the Plan, and the Respondent's contri-
bution will be based on the same formula as for those em-
ployees who were not deprived of the right to participate.
The remedy which I recommend is not prohibited by' H. K
Porter Company v. N..L.R . B., 397 U.S. 99 , nor by the Board's
recent decision in Ex-Cell-O Corporation, 185 NLRB No. 20,
as it does not compel the Respondent to enter into a contract
with the Union providing for participation by the unit em-
ployees in the Plan. It merely permits the employees to par-
ticipate in the Plan until there can be meaningful bargaining.
CONCLUSIONS OF LAW
1. 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 in section IV, above, of this Decision
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 of the aforesaid
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By misrepresenting to the Union the eligibility provi-
sions of the Plan the Respondent engaged in an unfair labor
practice within the meaning of Section 8(a)(1) of the Act.
6. By refusing to bargain collectively with the Union con-
cerning the participation by unit employees in the Plan, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a)(5) and (1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]