Union Carbide Corp.

National Labor Relations Board - Board Decisions

Mar 24, 1971

189 N.L.R.B. 226 (N.L.R.B. 1971)

226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Carbide Corporation -Linde Division and Oil,
Chemical and Atomic Workers, Local 8-215. Case
3-CA-4098
March 24, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On October 30, 1970, Trial Examiner Maurice S.
Bush issued his Decision and on November 3, 1970,
an errata thereto in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner' Decision. Thereafter Res-
pondent filed exceptionsI to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner as hereinafter modified.
The Trial Examiner found that the Respondent
violated Section 8(a)(5) and (1) by refusing to bargain
with the Union on the subject of hospital-medical-
surgical benefits for retirees; in so doing he concluded
that he was bound by the Board's decision in
Pittsburgh Plate Glass Company, Chemical Division. 2
We agree.3
In addition to its contention that the Board should
reverse its findings in Pittsburgh Plate Glass, Respon-
dent contends that the Union waived or abandoned
its bargaining demand for retirees. The Trial Examin-
er found the Union did not waive or abandon that
i Respondent has requested oral argument This request is hereby
denied because the record, the exceptions, and the brief adequately present
the issues and positions of the parties
2 177 NLRB No. 114, enforcement denied 427 F 2d 936 (C A 6), cert
granted February 22, 1971.
3 Respondent, as it did in Union Carbide Corporation, Carbon Products
Division, 187 NLRB No 10, contends the Board should reverse its decision
in Pittsburgh Plate Glass in light of the Sixth Circuit's decision In 187
NLRB No 10 we indicated that we respectfully disagree with the court for
the reasons enunciated in our decision in Pittsburgh Plate Glass For the
same reason we reject Respondent's contention herein
4 Unless otherwise noted all dates are 1970
5 The medical agreement is supplemental to the principal collective-
bargaining agreement Under part A of the medical agreement Respondent
agreed to pay the full expense of hospital-medical-surgical insurance
demand . In so finding , however , the Trial Examiner
stated , "both the Company and the Union agreed to
keep the matter of hospital -medical-surgical benefits
for retirees open pending the outcome of the Pitts-
burgh Plate Glass Co., case in the Supreme Court, and
that the Company and the Union further agreed in the
event the Supreme Court rendered a decision favora-
ble to retirees that they would sit down and negotiate
on the matter." Were the Trial Examiner's finding
supported by the record, we would dismiss the
complaint as the Respondent would have fulfilled its
bargaining obligation . The record , however, does not
support the Trial Examiner 's finding that such an
agreement was reached.
The facts , which are more fully set forth in the Trial
Examiner 's Decision , show that in February 1970,4
the Union gave Respondent timely notice that it
would seek modification of the Special Medical
Agreements (hereinafter referred to as medical
agreement or supplemental medical agreement).
Pursuant to the Union's request a meeting was held on
April 3 ; the Union 's sole demand was that the medical
agreement be modified to cover retired employees.
Respondent indicated it would consider the request.
At the second meeting , held on April 17, Edward
Woods, Respondent 's manager of industrial relations,
stated Respondent 's position:
we informed the union that they are not . . . the
bargamng agent for retired employees . That their
charter . . . gave jurisdiction over active employ-
ees . . . we were not in a position to bargain for the
retired employees . . . . We did not consider them
part of the bargaining unit and as such we weren't
going to discuss the issue.
Woods further testified that after Krieger, the
president of the Local, insisted Respondent had to
negotiate for retirees , Woods mentioned the Pitts-
burgh Plate Glass 6 case which was in the courts and
said Respondent would accept the Court's
(presumably the Supreme Court) decision and that if
the Board's decision in Pittsburgh Plate Glass were
upheld Respondent would be willing to sit down and
negotiate with the Union. Woods testified Krieger
said he would agree to that "if we made it retroactive
Under part B it agreed to pay one -half of the insurance costs for a "Special
Medical Expense Plan" which provides insurance for unusually large
medical expenses due to major illness The supplemental medical
agreement was to remain in effect until May 2 , 1970, it is subject to
automatic renewal for periods of 1 year unless either party gives timely
notice (at least 30 days before expiration ) that it desires to modify or
terminate the agreement If no agreement is reached the Union is given the
right to strike "provided it does so within 48 hours following
expiration " It further provides If a strike does not occur during the
48-hour period , the no-stnke commitment of the principal Contract shall
again be in full force and effect " and the agreement automatically
renews for 1 year According to the agreement, disputes that apse
thereunder are not subject to arbitration.
6 427 F 2d 936
189 NLRB No. 28
UNION CARBIDE CORP.
and if the union 's position was upheld that retirees
would automatically get the Blue Cross and Blue
Shield benefits picked up by the Company"
(emphasis supplied). The Respondent rejected this
proposal indicating that it would only agree to sit
down and negotiate . Woods further testified that
before the meeting ended Krieger told him that the
Union was going to file charges with the NLRB.
Krieger's testimony with respect to the April 17
meeting was substantially similar to Wood's. On
April 22 the Union filed charges with the Board,
alleging an 8(a)(5) refusal to bargain with respect to
medical benefits for retirees.
Although the Trial Examiner does not mention it,
on April 17 the parties agreed to hold another
negotiating session on April 27. At Respondent's
suggestion a Federal mediator was to be present at
that meeting. Krieger testified that on April 27 he
informed Woods that because Respondent refused to
bargain with respect to retirees the Union would
demand that Respondent pay the full cost of the
extended or special benefits (part B of the supplemen-
tal agreement). When Woods asked Krieger if the new
demand meant the Union was dropping the demand
for retirees, Krieger replied he was not "but would do
everything in his power to fight this through the
NLRB and the Supreme Court if necessary."
Woods testified that on April 27 he told the Federal
mediator that Respondent felt the retired employees
were not part of the bargaining unit and the Union
had no right to bargain for them. Woods indicated
this position had been made clear to the Union.
Woods testified Krieger demanded Respondent pick
up special medical benefits for active employees since
Respondent would not bargain over retirees. Respon-
dent rejected the Union's demand. On cross-examina-
tion Woods admitted Krieger had not told him he was
abandoning the issue of medical benefits for retirees.
Woods' understanding of Krieger's position was
finally clarified by the Trial Examiner:
TRIAL EXAMINER: Didn't he make it clear to you
that the union would persist before the National
Labor Relations Board in getting an order requir-
ing the company to bargain with the union with
respect to health benefits for retirees?
THE WITNESS [Woods ]: He made it clear that he
was going to take the case before the NLRB on the
grounds that we should negotiate for retired
employees? 7
The Union did not strike during the 2-day period
provided in the contract. The Union chose not to
strike, according to Krieger, because the Company
"was . . . in a very serious situation as far as the
7 It is clear from the transcript that the question mark is a reporter's
error
8 In this connection , we note Woods ' admission that Krieger made it
227
completion dates on certain products." Respondent
neither denied nor refuted Krieger's alleged reason
for choosing not to strike. Instead of striking the
Union chose to seek an order from the Board to
compel Respondent to bargain on the subject of
retirees. This course of action was approved by the
Union's membership.
On these facts we are unable to conclude the parties
agreed to wait for Pittsburgh Plate Glass to be resolved
in the courts. Respondent initially made it clear that it
would not bargain with the Union over retirees (a
mandatory subject of bargaining under the Board's
Pittsburgh Plate Glass holding). Respondent then
proposed that it would bargain with the Union on
retirees' medical benefits if the Court (presumably the
Supreme Court) found for the union in Pittsburgh
Plate Glass. The Union counterproposed that it would
wait for the court decision if Respondent made
retirees' benefits retroactive. Respondent rejected this
counterproposal, putting the parties back where they
started. Moreover, Respondent, according to Woods'
testimony, made it clear it had not deviated from its
original position, when he informed the Federal
mediator on April 27 that Respondent felt it had no
duty to bargain with respect to retirees.
Finally, the finding that agreement was reached on
April 17 appears negated by the fact that Krieger not
only told Woods on April 17 that he would file a
charge with the NLRB but, in fact, filed such a charge
on April 22. Had the parties, in fact, reached any form
of agreement, it is unlikely that the Union would have
filed a refusal-to-bargain charge. Similarly, the fact
that the parties agreed to meet again, and that
Respondent insisted that a Federal mediator be
present, appears inconsistent with a finding that
agreement had been reached on April 17. In our
opinion, the conduct of both parties belies the fact
that agreement was reached.8 Accordingly, we find,
contrary to the Trial Examiner, that the parties did
not agree to hold the subject of medical benefits for
retirees open pending the outcome of Pittsburgh Plate
Glass in the Supreme Court.
Respondent excepts to the Trial Examiner's finding
that the Union did not waive or abandon its right to
bargain over medical benefits for retirees. One of the
Respondent's contentions, which we have disposed of
supra, is that the Union waived its demand by
agreeing to defer until the resolution of Pittsburgh
Plate Glass. The other grounds upon which Respon-
dent relies to show waiver are the fact that the Union
did not take the action required to avoid waiver under
the provisions of both the supplemental medical
agreement and the principal contract, and the entire
clear that the Union would file a charge on the grounds that Respondent
refused to negotiate for retirees and his statement to the Federal mediator
that Respondent had no duty to bargain on this subject
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
course of conduct between the parties during negotia-
tions.
Respondent contends, and the Union concedes,
that under the supplemental agreement (and the
principal contract) the only matter open for negotia-
tions was medical benefits. Respondent further
contends that since the supplemental agreement was
limited to bargaining unit employees (i.e., active
participating employees) no discussion of retirees was
permissible. In our opinion, however, this contention
goes to the very issue decided by the Board in
Pittsburgh Plate Glass (i.e., whether "retired employ-
ees are `employees ' within the meaning of the statute
for the purposes of bargaining about changes in
retirement benefits") and is, in fact, merely another
way of saying the Board's decision in Pittsburgh Plate
Glass is in error. As indicated supra, we adhere to our
decision in Pittsburgh Plate Glass.
Nor do we agree with Respondent's contention that
the Union waived and abandoned its right to bargain
for the retirees when, on April 27, Krieger requested
that Respondent pick up the full cost of the special or
extended benefits for the active employees. Contrary
to Respondent's contention, the union proposal was
not set forth as an "either or" proposition. Krieger set
forth the proposal because Respondent refused to
bargain with respect to the retired employees. More-
over, Woods reluctantly admitted that Krieger did not
tell him he was abandoning the issue of benefits for
retirees ; rather, "he (Krieger) made it clear he was
going to take the case before the NLRB . . . .
Finally Respondent contends that the Union
waived its bargaining rights by not striking within the
time period set forth in the supplemental agreement,
and that as a result the supplemental agreement
automatically renewed itself for another year. The
Board has consistently held that a waiver must be
clear and unequivocal, and there must be an unmis-
takable showing that the waiver was actually intend-
ed. The Union requested bargaining on a subject that
we have found to be a mandatory subject of
bargaining; Respondent refused to bargain on that
subject. The Union then filed an unfair labor practice
charge. We are unable to discern any logical justifica-
tion for the view that by filing a charge instead of
going on strike the Union waived its rights. To hold
otherwise would be tantamount to penalizing the
Union for exercising a statutory right. Moreover,
"[s]uch interpretation would seem to be disruptive
rather than fostering in its effect upon collective
bargaining . . .."9 Accordingly, we reject Respon-
dent's contention that the Union waived or aban-
doned its bargaining demand.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed order of the Trial Examiner and hereby orders that
the Respondent, Union Carbide Corporation-Linde
Division, Tonawanda, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order.'°
9 N L R B v J H Allison & Company, 165 F 2d 766, 768, enfg 70
NLRB 337, cert denied 335 U S 814, rehearing denied 335 U S 905
There, the union actually "dropped its request stating that the matter
would probably be settled in the proceedings which it had instituted before
the Board "
10 In footnote 2 of the Trial Examiner's Decision, substitute "20" for
"10" days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH , Trial Examiner : The complaint
herein charges the above-named Respondent Company
with violations of Section 8(a)(l) and (5) of the National
Labor Relations Act because of its refusal to discuss and
bargain with the Union on its request for hospital,
medical , and surgical benefits for retirees.
Respondent's defense is that its retirees are not employ-
ees within the meaning of Section 2(3) of the Act, that
similarly they are not members of the appropriate unit here
involved represented by the Union, that for these reasons
the Respondent is under no legal obligation to bargain
with the Union on the subject matter, and that the Board
for these reasons lacks jurisdiction to entertain the
complaint . Respondent's further defense is that the Union
under the terms of its collective -bargaining agreement with
the Company waived its right to bargain for the retirees by
its failure to call a strike to enforce its demand for
bargaining on the issue.
The complaint in the case was issued on June 18, 1970,
pursuant to a charge filed on April 22, 1970, and an
amended charge filed on May 12, 1970, copies of which
were duly served upon the Respondent.
The case was tried before the Trial Examiner on
September 9, 1970 , at Buffalo , New York. An able and
comprehensive brief filed in behalf of the Respondent has
been carefully reviewed and considered . General Counsel
has not filed a brief.
Upon the entire record and from his observation of the
witnesses , the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent Union Carbide Corporation-Linde Division,
a New York corporation , with its principal office and place
of business at East Park Drive and Woodward Avenue,
Tonawanda , New York, hereinafter called Tonawanda
plant, is engaged in the manufacture , sale, and distribution
of fabricated equipment to produce gases and related
UNION CARBIDE CORP.
products . Its Tonawanda plant is the only plant involved in
this proceeding . During the past year , the Respondent in
the course and conduct of its business operations at its
Tonawanda plant, purchased, transferred, and delivered to
its said plant various metals and other components and
materials , valued in excess of $50 ,000, of which goods and
materials valued in excess of $50 ,000 were transported to
the said plant directly from States of the United States
other than the State of New York. The Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Oil, Chemical and Atomic Workers, Local 8-215, is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Background Facts
Except for the facts in connection with the Respondent's
contention that the Union waived its right to bargain for
retirement benefits for retirees by its failure under the
collective-bargaining agreement to call a strike to compel
such bargaining, all other basic facts herein are undisputed.
The Union and its predecessor have been the certified
representative of an appropriate unit in Respondent's
Tonawanda plant since 1944. The unit consists of all
production, maintenance, laboratory, and plant clerical
employees on the payroll of the Company at its Tonawanda
plant, but excluding guards, office employees, salaried
employees and all supervisory employees with authority to
hire, discharge, discipline, or otherwise effect changes in the
status of the employees or effectively recommend such
action.
The present collective-bargaining agreement between the
Union and the Company, hereinafter called the principal
contract, is dated March 24, 1969, and expires March 24,
1971, subject to automatic renewal for a period of 1 year
unless either party by timely notice seeks discontinuance or
modification. (Resp. Exh. 2(a)). The preamble of the
contract provides that, "The Company and the Union
hereby expressly waive the right to bargain over any subject
during the term of this Contract, unless such right to
bargain is specifically provided for in this Contract." The
contract gives either party the right to seek termination or
modification thereof upon due notice in a stated period
prior to the indicated termination date of the contract.
Basically the principal contract covers rates of pay, wages,
hours of employment, and other conditions of employment.
Article III, sec. 26, of the contract specifically provides that,
"The matter of Group Insurance, Pensions, Hospitalization
and Surgical Insurance benefits is [to be] covered by
another agreement."
Pursuant to the above provision in the principal contract,
a supplemental contract entitled "Pension and Insurance
Agreement" was entered into between the Union and the
Company on June 5, 1969, to remain in effect until May 2,
1974, subject to automatic renewals for successive periods
of I year unless either party by timely notice notifies the
229
other that it desires to modify or terminate the agreement.
(Resp. Exh. 2(b).) The supplemental agreement provides for
a pension plan and a group insurance plan. Under the
pension plan, the Company pays all costs; under the group
life insurance plan, the employees contribute to the cost,
but with respect to sickness and accident insurance, the
entire cost is borne by the Company.
Similarly, pursuant to the aforementioned provision in
the principal contract, the Union and the Company entered
into a second supplemental contract, entitled "Special
Medical Agreement" on June 5, 1969, which was to remain
in effect until May 2, 1970, as contrasted to the first
supplemental contract which runs until May 2, 1974. Under
part A of the second supplemental agreement, the
Company agreed to pay "the entire amount of the rates for
each active employee (including his eligible dependents)" for
hospital and doctor bills through Blue Cross-Blue Shield
organizations. (Emphasis supplied.)
Under part B of the same second supplemental agree-
ment, the Company also agreed to make available to all its
participating active employees a "Special Medical Expense
Plan" which provides insurance against unusually large
expenses due to major illness or sickness . But unlike the
Blue Cross-Blue Shield coverage offered by the Company
without charge to all active employees, the "Special
Medical Expense Plan" is offered to its employees on a
contributory basis under which the Company and employ-
ee each pay one-half of the insurance costs.
The second supplemental agreement, like the first
supplemental agreement, is subject to automatic renewal
for successive periods of 1 year unless either party by timely
notice notifies the other that it desires to modify or
terminate the agreement. The second supplemental agree-
ment further provides that, upon due notice, negotiations
are to be commenced at least 30 days prior to the expiration
date of the agreement. It gives the Union, in the event no
agreement is reached on the Union's proposals, the right to
strike "provided it does so within 48 hours following the
expiration of this agreement ." However, the agreement
provides that during the term of the agreement the
Company shall have no obligation to negotiate or bargain
with the Union with respect to insured or other payment
plans covering expenditures for physical or mental
treatments incurred by the employee or his dependents.
The second supplemental agreement further provides
that "if a strike does not occur during the 48-hour period,
the no-strike commitments in the principal Contract shall
again be in full force and effect and the Agreement shall
remain in effect for successive periods of one year ... .
It is under the two above-mentioned provisions of the
second supplemental agreement that the Company claims
that the Union waived the right to discuss and bargain with
the Company on the Union's request that the Company
pick up the full costs of Blue Cross -Blue Shield benefits for
retired employees of the Company because the Union
upon the Respondent's refusal to bargain on the matter did
not elect to strike within the allowable 48-hour period and
this allowed the no-strike commitments in the principal
contract to be in full force and effect and thereby "waived"
the right to pursue bargaining on hospital and doctor
benefits for retired employees.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Chronology of Events
As heretofore noted, the second supplemental agreement
gave all active employees of the Company a valuable fringe
benefit in the form of Blue Cross-Blue Shield benefits paid
for in full by the Company. There is no such provision in
the agreement for identical or similar benefits for retired
employees of the Company. The Company employs some
500 active employees who receive Blue \Cross-Blue Shield
benefits without cost to them and 247 retirees, formerly
hourly paid members of the appropriate unit here involved,
who if they have Blue Cross-Blue Shield benefits, pay all
the costs for such benefits directly to the Blue Cross-Blue
Shield organization without any contribution by the
Company.
The Union, by timely notice dated February 13, 1970,
notified the Company that it would seek a modification of
the second supplemental agreement and requested a
meeting for this purpose which was held on April 3, 1970.
The Union's sole request to the Company at the meeting
was for a modification of the agreement so that the retired,
former hourly paid employees of the Company, be given
Blue Cross-Blue Shield benefits without cost to them by
the Company, the same as the Company was doing for its
active working employees. The Company made no reply to
the request, but stated it would give it consideration and
would state its position at the next bargaining session
which by mutual consent was set for April 17, 1970.
At the April 17 meeting, the Company through its
manager of industrial relations, Edward T. Woods,
informed the union representatives that it would not discuss
or bargain with the Union on its request for the involved
hospital and doctor bill benefits for retirees on the ground
that the Union was not the bargaining agent for such
retirees, but only for active hourly employees of the
Company. In his own words, Woods testified that he told
the union representatives that the Company took the
following position on their request:
... we informed the union that they were not . . . the
bargaining agent for retired employees. That their
charter, as such, gavejunsdiction over active employees
at the Tonawanda property, that's hourly employees
... we were not in a position to bargain for the retired
employees. . . . We did not consider them part of the
bargaining unit and as such, we weren't going to discuss
the issue.
At the meeting Mr. Wood called attention to a recent
court decision favorable to the Respondent's position
herein in which a court of appeals had denied enforcement
of a Board order which had required the Pittsburgh Plate
Glass Co., to bargain with a union on the subject of
retirement benefits for retirees. Pittsburgh Plate Glass
Company, Chemical Division v. N.L.R.B.,427 F.2d936 (C.A.
6), enfd. denied, 177 NLRB No. 114. In the Board decision
in that case, the Board had held "that retired employees'
retirement benefits are embraced by the bargaining
obligation of Section 8(a)(5)...... In denying enforcement
of the Board's bargaining order, the Sixth Circuit held,
"that retired employees are not within the bargaining unit,
and that under the plain meaning of the Act, employers
have no statutory duty to renegotiate with their unions
improvements in retired employees' pension benefits."
The Union's position at the meeting was just as adamant
that the Company was under a legal obligation to bargain
with the Union on the matter of Blue Cross-Blue Shield
benefits for retirees.
The record is clear that the representatives of both the
Union and Company agreed that ultimately the question of
whether the Company had to bargain with the Union on
the matter of health benefits for retirees would have to be
decided by the Supreme Court, expectantly in the
Pittsburgh Plate Glass Co., case.
Due to the Company's absolute refusal to even discuss
the subject of health benefits for retirees the Local's long-
time president and company employee, Norman Krieger,
"offered to go along with whatever the ruling the courts
made in this particular case [Pittsburgh case], provided
there was some retroactive consideration involved." The
Company flatly rejected any agreement on retroactivity,
but agreed that if and when the Supreme Court handed
down a decision favorable to retirees in the Pittsburgh case
that the Company's representatives would then "be glad to
sit down and negotiate" the Union's request for Blue
Cross-Blue Shield benefits at company expense for its
retirees. With this impasse, Krieger stated that he would
pursue the Union's contention before the Board by filing
unfair labor charges under Section 8(a)(5) against the
Company for refusal to bargain with the Union on the
matter. Such charges were filed 5 days later on April 22,
1970, and are the charges which led to the present
proceedings.
The Union under its second supplemental agreement had
a 2-day period following the expiration of that agreement
on May 2, 1970, to strike to enforce its demand that the
Company bargain with it on retirement benefits for
retirees, but if it failed to strike within that 2-day period, it
was thereafter barred for 1 year from striking for such
purpose by a nonstrike provision in the principal collec-
tive-bargaining agreement. Instead of striking, the Union
chose to seek an order from the Board to compel the
Company to bargain on the matter. At the conference of
April 17, the Union through Mr. Krieger made it
emphatically clear to the company representatives that by
not exercising its right to strike it was not in any way
abandoning its demand that the Company bargain with the
Union on health benefits for retirees. This is further
evidenced by the fact that the Union as aforenoted filed its
unfair charge against the Company within 5 days after the
April 17, 1970, conference . From the record as a whole, the
Examiner finds and concludes that the Company under-
stood at all times that the Union was not waiving or
abandoning its claim that the Company was under a legal
obligation to bargain with it on the matter of hospital and
medical care insurance protection for retirees . The Union
chose not to pursue the path of a strike to enforce its
demand for bargaining on the issue because, as is shown by
Krieger's testimony, the Company "was . . . in a very
serious situation as far as the completion dates on certain
products." Krieger's undisputed testimony further shows
"these products had to be completed by a July date and a
shutdown at that point would have been very detrimental
to the company.... We would not be in a position to bid
on further boxes.... And weighing all issues at 'that
UNION CARBIDE CORP.
particular point , this was my recommendation to [the]
membership , that we handle the thing through the courts
and that we leave the hospital surgical [Blue Cross-Blue
Shield] plan as it is ." This course of action was authorized
by the members of the Local at a membership meeting.
From the record as a whole, the Examiner finds and
concludes that the Umon and Company at the meeting of
April 17, 1970, decided by mutual agreement for the time
being to leave the Union 's request for bargaining on Blue
Cross-Blue Shield protection for retirees in abeyance,
pending the ultimate outcome of the Pittsburgh Plate Glass
case and to pick up the matter for discussion and
bargaining in the event the Supreme Court in that case
rendered a decision favorable to the Union 's position in
the present case.
The record shows that the Company's hourly employees
are terminated from its payroll on the first day of the month
after their 65th birthday as a matter of routine and uniform
practice Thereafter they draw no wages; accumulate no
more seniority; are not entitled to reemployment, and have
no expectation thereof, and are not placed on any recall list.
Upon retirement, they no longer participate in numerous
contractual benefits provided active employees. Company
policy has been to employ no retirees for over 13 years.
Retirees ' benefits are fixed on the date of retirement.
They receive a paid up life insurance policy on their
retirement day. They are also allowed, not by the
Company but by the Blue Cross-Blue Shield organization,
to enter a separate medical insurance group providing
benefits for retirees over the age of 65 which is essentially a
medicare supplement . Their prior employment with the
Company gives them, in this regard, no rate reduction or
other financial preference whatever. The entry into such
group is handled directly between the retiree and the Blue
Cross-Blue Shield organization . Pension checks for its
retirees are not issued by the Company but by pension plan
trustee, the Prudential Insurance Company. Pension
benefits have recently been increased by unilateral action
of the Company after prodding by Union President
Krieger. Upon retirement, an employee-member of the
Union is issued an honorary withdrawal card which allows
him to attend all local union functions and meetings where
he is allowed a voice but not allowed to vote.
Notwithstanding their severance from the Company as
active employees upon retirement, the retirees still regard
themselves, as "employees" of the Company by reason of
their former long term active employment by the Company.
Discussion and Conclusions
In its brief, the Respondent summarizes its principal
contentions for the dismissal of the complaint herein as
follows:
The individuals for whom the Union sought to bargain
were and are not "employees" under Section 2(3) of the
Act, and consequently not within the Board's jurisdic-
tion at all. Moreover, the Company herein has no duty
or obligation, under Sections 8(a)(5) and (9) of the Act,
to bargain with a Union which purports to represent
persons other than "his employees.". .. The Union has
no authority to bargain for them at all, where such
individuals have no further connection with the
231
employees in the certified unit for whom the Union was
certified and designated to represent.
Contentions such as the above were fully considered and
rejected by the Board in its decision in Pittsburgh Plate
Glass Co, supra, and no useful purpose would be served
here in restating the Board 's position on the matter It is
sufficient to note that the Board in the Pittsburgh case
under substantially similar facts held that retirees are
"employees" within the meaning of the Act and that
accordingly "retired employees' retirement benefits are
embraced by the bargaining obligation of Section 8(a)(5)"
of the Act.
The fact that the Court of Appeals for the Sixth Circuit
disagreed with the Board's conclusions in the Pittsburgh
case and denied enforcement therein is not binding on the
Board as it has not indicated acquiescence in the court
decision. It is the expectation of the parties that the Sixth
Circuit's decision in the Pittsburgh Plate Glass case will
reach the Supreme Court for ultimate decision In the
Examiner's opinion, the Board's decision that a retiree is an
employee for the purposes here under consideration is the
sounder view. In any event, the Trial Examiner is bound by
the Board's decision in the Pittsburgh case. Iowa Beef
Packers, Inc., 144 NLRB 615, 616.
The Examiner finds and concludes that the Company's
retirees on the issue here involved are employees within the
meaning of Section 2(3) of the Act. It accordingly follows
that the Company is under obligation under Section 8(a)(5)
to bargain with the Union on the matter of Blue Cross-Blue
Shield benefits for such retirees. In view of the finding that
the retirees are employees under the Act, Respondent's
motion for the dismissal of the complaint for lack of
jurisdiction is denied
Respondent's final contention is that the Union "clearly
waived and abondoned its bargaining demands for
retirees" by its failure to strike within the allowable 48-hour
period after the expiration of the second supplemental
agreement, to compel bargaining on the involved retire-
ment benefits for retirees. The Respondent contends that
the effect of this failure to strike was to cause the automatic
renewal of the second supplemental agreement for another
period of 1 year during which under the terms of the
agreement the Company "shall have no obligation to
negotiate or bargain with the Union with respect to insured
or other payment plans covering expenditures for physical
or mental treatments incurred by the employee or his
dependents." With the renewal of the contract, Respondent
further argues that the Union is barred from again raising
the issue of retirement benefits for retirees for a period of 1
year.
The difficulty with these contentions is that it overlooks
the elementary rule of law that the parties to any written
contract have the right at any time by mutual agreement to
alter the terms of their contract. The record in the present
case and the above findings show that both the Company
and the Union agreed to keep the matter of hospital-
medical-surgical benefits for retirees open pending the
outcome of the Pittsburgh Plate Glass Co. case in the
Supreme Court, and that the Company and the Union
further agreed in the event the Supreme Court rendered a
decision favorable to retirees that they would sit down and
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiate on the matter. It is immaterial that the Union
proposed and the Company rejected the Union's proposal
for retroactivity on any agreement reached for retiree
benefits as the result of subsequent negotiations after a
favorable decision for retirees in the Pittsburgh Plate Glass
case. The important thing is that there was a mutual
agreement for negotiations in the event of a favorable
decision for retirees in the Pittsburgh case.
In summary it is found that the Union never at any time
waived or abandoned its right to bargain with management
on the subject of hospital medical-surgical-benefits for
retirees and that the Respondent agreed to hold that matter
open for discussion and bargaining in the event the
Supreme Court rendered a favorable decision for retirees
in the Pittsburgh Plate Glass Co. case.
The Examiner finds and concludes that the Respondent
has engaged in unfair labor practices in violation of Section
8(a)(1) and (5) of the Act by its refusal to bargain with the
Union on the subject of providing hospital, medical, and
surgical benefits for retirees as requested.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
It having been found that the Respondent engaged in
unfair labor practices in violation of Section 8(a)(1) and (5)
of the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon
the record as a whole, I make the following:
CONCLUSIONS OF LAW
1. Union Carbide Corporation-Linde Division, is an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce and business effecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Oil, Chemical and Atomic Workers, Local 8-215, is a
labor organization within the meaning of Section 2(5) of the
Act
3. A unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act
consists of:
All production, maintenance, laboratory and plant
clerical employees on the hourly payroll of the
Respondent employed at its Tonawanda, New York
plant exclusive of guards, office employees, salaried
employees and all supervisors as defined in the Act.
4. Since March 24, 1969, Oil, Chemical and Atomic
Workers, Local 8-215, has been the exclusive bargaining
representative of the employees in the said appropriate unit
and Respondent since that time has been under a statutory
obligation to recognize and bargain with Local 8-215 as
such representative concerning rates of pay, wages, hours of
employment, and other conditions of employment.
5. Hospital, medical, and surgical benefits for retirees
who were employed in said appropriate unit at the time of
their retirement are subjects of mandatory bargaining
between Local 8-215 and Respondent.
6. By refusing to bargain with Local 8-215 on the
subject of hospital, medical, and surgical benefits for
retirees, Respondent has violated Section 8(a)(5) and (1) of
the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in the case, it
is recommended that Respondent Union Carbide
Corporation-Linde Division, its officers, agents, succes-
sors, and assigns, with respect to its plant at Tonawanda,
New York, shall'
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 8-215 with
respect to benefits for retired employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Upon request of Local 8-215, bargain collectively
with said Union with respect to benefits for retired
employees.
(b) Mail a copy of the attached notice marked
"Appendix" i to each retired employee formerly working in
said appropriate unit and post copies thereof in its plant at
Tonawanda, New York. Copies of said notice, on forms
provided by the Regional Director for Region 3, after
being signed by Respondent's representative thereunto
duly authorized, shall be posted 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 displayed.
Reasonable steps shall be taken by Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 3, in writing,
within 20 days from the receipt of this Decision, what steps
Respondent has taken to comply herewith.2
I 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 , recommendations , 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 In the event
that the Board's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
2 In the event that this recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply therewith "
UNION CARBIDE CORP.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain with OIL, CHEMI-
CAL AND ATOMIC WORKER , LOCAL 8-215, with
respect to retirement benefits for retirees who are no
longer active employees of the Company.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
Dated By
UNION CARBIDE
CORPORATION-LINDE
DIVISION
(Employer)
233
(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,
Fourth Floor The 120 Building , 120 Delaware Ave.,
Buffalo , New York 14202 , Telephone 716-842-3100.