United States Smelting, Refining and Mining Co.,

National Labor Relations Board - Board Decisions

Dec 9, 1969

179 N.L.R.B. 1018 (N.L.R.B. 1969)

1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Smelting , Refining and Mining Co.,
and its wholly-owned subsidiary , Mueller Brass
Co. and International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW). Case 7-CA-6840
December 9, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On May 12, 1969, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged 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's Decision. The Trial
Examiner also found that the Respondent had not
engaged in certain other alleged unfair labor
practices. Thereafter, the Respondent and the
Charging Party filed exceptions and supporting
briefs and the General Counsel filed an answering
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, the
briefs, and the entire record in this case, and hereby
adopts the Trial Examiner's findings, conclusions,
and recommendations only to the extent consistent
herewith.
The Trial Examiner finds that the Respondent
understood the Union's request for continuation of
group insurance coverage , with the Union
reimbursing Respondent for the premiums, as
including the death benefit included in the salaried
employees' pension plan (the Security Trust). The
Respondent excepts to the finding. We find merit in
this exception.
The Union, just prior to the strike, requested
Respondent to continue in effect certain group
insurance policies covering the striking employees it
represents and Respondent agreed to do so provided
the Union would reimburse Respondent for the
premium payments. The Union agreed. Respondent
'Respondent correctly contends that the Trial Examiner violated the
Board 's rules (Sec. 102 42) when he denied Respondent's request for oral
argument at the close of the hearing . However , Respondent fully presented
its position at other times during the hearing , and in briefs to the Trial
Examiner and the Board. Accordingly , we find that the Trial Examiner's
erroneous denial of this request was not prejudicial.
Respondent 's request for oral argument before the Board is hereby
denied as the record and briefs adequately present the issues and positions
of the parties.
did keep several health and life insurance policies in
effect on that basis. However, Respondent did not
keep up the premium payments for the Security
Trust or its included death benefit. As a result this
policy lapsed with the effect that when employee
William Racely died while on strike his widow was
denied this benefit. Respondent contends that this
plan was not included in the Union's request.
In our opinion the evidence does not establish that
the Union's request was sufficiently clear that it
must have been understood by Respondent to
include the Security Trust or its included death
benefit. When McIntyre, the UAW International
Representative representing UAW Local 412, made
his initial request it was phrased in general terms
and did not include a specific reference to the
Security Trust or its included death benefit. It is not
difficult to comprehend how Respondent might not
understand this general request for continuation of
group insurance policies to include a retirement plan
or any of its included provisions. Moreover,
Respondent on three different occasions prior to
Racely's death put the Union on notice that it did
not understand the Union's request to include the
Security Trust or its death benefit and the Union
did nothing to change this impression. Within a day
or two after the strike began the Local 412 Bargain
Committee Chairman, Ivan Booth, asked George
Waters, Respondent's director of industrial
relations , about the Security Trust and was told by
Waters that he was not sure whether the UAW
would pick it up. Approximately a month prior to
Racely's death, Respondent sent the Union an
itemized bill for the premiums Respondent had paid.
The Security Trust clearly was not included.
Subsequently, approximately on June 1, Waters
telephoned Booth asking about the Union's tardiness
in making the premium payments. At that time
Booth again inquired about the Security Trust and
Waters again said that he did not know. There were
no further discussions between Respondent and the
Union about the Security Trust until after Racely's
death. Despite Respondent's communications to the
Union of the fact that it did not clearly understand
the Union's request to include the Security Trust or
its death benefit, the Union did nothing to clarify its
request until after Racely's death. Unlike the Trial
Examiner we cannot ignore this inaction on the
grounds that the Union lacked sufficient information
to make a clear request. Although it was not fully
aware of all the intricate financing arrangements,
the Union was fully aware of all the various benefits
enjoyed by the employees it represented and was
well aware that the Security Trust included a death
benefit." We conclude that the Union did have
sufficient information to clarify its request. In the
absence of a clarification we conclude that
Respondent had a right to assume that the action it
took was in accordance with the Union's request.
'In fact, during the negotiations prior to the strike Local 412 had agreed
179 NLRB No. 159
U. S. SMELTING, REFINING & MINING CO. 1019
As we find that Respondent did not clearly
understand- the request to include the Security Trust,
we shall dismiss the complaint . In so doing we do
not decide what Respondent ' s obligations , if any,
would have been had the Union clearly requested
that the Security Trust be continued during the
strike at Union expense.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
be, and it hereby is, dismissed in its entirety.
that the Security Trust should be continued as part of any collective-
bargaining agreement reached.
'As the Trial Examiner 's finding of an 8(a)(5) violation herein is
dependent upon a finding that the Union made a clear request , a finding
with which we disagree , we shall also dismiss this allegation of the
complaint.
Inasmuch as the issue is academic in this case we do not decide what
obligation , if any , the Respondent had to honor a request by an individual
striking employee for continuation of his group insurance coverage at his
expense.
TRIAL EXAMINER'S DECISION
Statement of the Case
THOMAS A. Ricci, Trial Examiner. A hearing in the
above-entitled proceeding was held before the duly
designated Trial Examiner on February 13 and 14, 1969,
at Port Huron, Michigan, on complaint of the General
Counsel against United States Smelting , Refining and
Mining Co., and its--wholly-owned subsidiary, Mueller
Brass Co., herein called the Respondent or the Company.
The 'charge was filed on dilly 12, 1968, and the complaint
issued on November 14. The questions presented are
whether the Respondent violated Sections 8(a) (3) and (5)
of the Act. A brief was filed after the close of the hearing
by the Respondent. -
Upon the entire record, and from,my observation of the
witnesses , I make the following:
Findings of Fact
I. THE BUSINESS OF THE RESPONDENT
Board jurisdiction is conceded in the answer . United
States Smelting, Refining and Mining Co., its principal
office in New Yark' City, maintains installations in at
least 40 States and is engaged in mining , refining,
processing and sale - of ores , metals, natural gas and
related products . Mueller Brass Co . is a wholly-owned
subsidiary of United States Smelting , and its operations
extend into the States of Ohio and Michigan , as well as
Canada . Mueller manufactures and sells brass mill
products , forgings , aluminum products and such things.
Only Mueller ' s installations in Port Huron and
Marysville , Michigan , are involved in this proceeding.
During the calendar year ending December 31, 1968, the
Respondent received at these Michigan locations goods
and materials valued in excess of $1 million of which an
amount in excess of ^ $50,000 was received from
out-of-State sources . During the same period from these
two locations it sold and distributed products valued in
excess of $1 million, of which an amount in excess of
$50,000 was shipped directly to out-of-State locations I
find that the Respondent is engaged in commerce within
the meaning of the Act and that it will effectuate the
policies of the Act to exercise jurisdiction herein
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW),
herein referred to as the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The questions presented
At the heart of this case there is a question of law, to
be considered in the light of the reality of our present day
industrial state. Racely, 24 years an employee of the
Respondent, died while on strike. Because he was an
employee he had for some years been covered by a group
life insurance policy, for which premiums were paid in
part by him and in part by the Respondent, the money
always handled by the Company's officials. At the start of
the strike his union offered to pay the premiums for this
life insurance, but the Company did not inform the Union
concerning what amounts of money were needed or how
the premiums could be paid; it refused to accomodate the
Union in this desire to protect the employees. While
continuing premium payments to the insurance company
on behalf of others on its payroll, it discontinued the
premiums necessary for the strikers. In consequence
Racely's widow, who would have received over $16,000
upon her husband's death had he not been on strike, has
been denied the benefit. Does an employee, or a union on
his behalf, have a right to pay premiums in toto for such
life insurance to protect his interest while on strike?
Restated: may an employer, without violating the
National Labor Relations Act, refuse the strikers' offer to
pay their own life insurance protection on the ground that
they have chosen to strike?
Apart from this issue of law, the Respondent defends
on the ground that, contrary to the allegation of the
complaint, the employees - either individually or through
their union - did not ask for an opportunity to pay the
premiums on the insurance in question, and that therefore
it need not be decided whether, in other circumstances, an
employer is duty bound to honor such a demand.
Alternatively, the Respondent also advances the direct
argument that in no event, regardless of any employee
request, is an employer required either to volunteer a
proposal that the Union, or the employees individually,
take over the burden of paying life insurance premiums,
or to make available its bookkeeping facilities necessary
for direct payment by the employees. The fundamental
premise for this all-embracing defense is that strikers, "at
war" with the employer, are entitled to literally nothing
from him.
Underlying facts
In Port Huron the Respondent operates a plant in the
name of Mueller Brass Co., a subsidiary, where there are
about 1,800 production and maintenance employees
represented by UAW Local 44, and about 70 salaried
persons, or technical employees, represented by UAW
Local 412, the Union which filed this charge. There are
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also mechanical or skilled craftsmen represented by IAM
Local 218, and other categories. All of these employees
are covered by a group insurance policy which pays
hospitalization, medical and death benefits. The Company
bears the entire cost for this insurance and coverage is
automatic from the fact of employment. There is also an
extended coverage on the matter of hospital and medical
bills, in larger amounts than the basic policy. This added
benefit is optional to individual employees, and those who
chose to have it pay for it through the employer. For all
of this the Company sends its check monthly to the
insurance company; the amount varies, depending upon
the age of the employees, and other such considerations.
The strike started on April 30, 1968, and was settled on
July 27. Throughout the period, and at the request of
Local 44 and Local 412, the Company paid these
premiums, sent a monthly statement for the precise
amount of the locals, who then reimbursed it. IAM Local
218 asked for the privilege of having those of its members
who so wished pay their individual premiums to the
employer, for forwarding to the insurance company, but
the Company said "it would create a tremendous
administrative problem for us," and refused the request.
The IAM employees also struck but were not covered by
this insurance during the strike. When Racely died his
wife was paid $7,000 under this life insurance protection.
Mueller Brass Co also maintains a retirement system,
called the Salaried Employees' Pension Plan. Participation
in this plan is optional to the employees and the entire
system is limited to salaried personnel. Thus the technical
employees represented by UAW Local 412 enjoy its
benefits but not the production and maintenance workers
covered by collective-bargaining agreement with Local 44.
The plan included two distinct facets, one providing for
retirement payments to employees who live beyond a
certain age, and leave the Company, and the other
providing for death benefits on behalf of those employees
who die before qualifying for retirement. The cost for
both these benefits is born in part by the Company and in
part by the employee who elects to participate, in the
form of regular payroll deductions. In its practical
application the plan is implemented by two separate
contracts, one with Massachusetts Mutual Life Insurance
Company, for the retirement fund, and one with
Prudential Insurance Company of America, for the life
insurance aspect.' There were received in evidence both
master agreements , that between Massachusetts Mutual
and the Company, and the one between Prudential
Insurance and the Company. On the total record as made
in this proceeding it is not possible to answer all factual
questions that might arise as to amounts of payments
made to the two insurance companies, or as to the
Respondent's methods for handling the combined funds
contributed by the employees and by itself and forwarding
them to the two companies. Certain facts, however,
particularly those pertinent to the questions here raised,
are clear.
The retirement trust fund agreement , whereby a corpus
of money is placed in the hands of the Massachusetts
Mutual, consists of over 75 pages of very technical
language and forms; only an expert in the field could
clearly understand all its direct application aspects. It does
'Before September 1967 the life insurance was provided for by a separate
group policy issued by Massachusetts Mutual itself; on that date, for
reasons bearing no relationship to this case , that group life insurance
policy was replaced by one issued by Prudential Insurance Company, and
in effect since
seem to establish the usual retirement trust fund, with
very detailed formulas as to retirement age, length of
service requirements, methods for calculating pension
payments based on past earnings and years of work, as
well as the basis for computing what cash payments need
be made into the fund regularly.
The contract with Prudential Insurance Company is a
straight group life insurance policy, again a document
including nine pages of highly complex legal language, not
easily understandable to the layman. The exact monthly
payments due to Prudential Life for each employee
affected is set out exactly in its master agreement; these
premiums are also dependant upon the age and annual
salary of the individual employee. For an employee to be
included in this group life insurance he must be a
participant in the retirement fund, and this is why the two
programs together are called the pension plan. Salaried
supervisors are eligible, as well as the salaried technical
personnel with whom this case is concerned. Another clear
fact shown in the basic Prudential contract is that in the
event of death the employee is entitled to receive a sum
equal to twice his basic annual earnings (exclusive of
overtime, etc.), this regardless of length of time he has
been in the pension plan. The maximum death benefit for
any rank-and-file man is $60,000, but there is no
indication any of them earn as much as $30,000 annually.
Neither of these two documents the master
retirement fund agreement with Massachusetts Mutual or
the group life insurance policy with Prudential - was ever
shown to any of the employees or to any representative of
UAW 412. John Williams, the Company's industrial
relations director, testified he never explained to anyone
- employee or union - how the money is handled when
the Company collects part from the employee, adds some
of its own, and makes payments out. Indeed he candidly
admitted he himself had never even seen - before
Racely's death during the strike, the "master policy of the
security trust agreement."
A final important fact established by the documents in
evidence appears in a brochure distributed by the
Company to its employees; it is entitled- "Mueller Brass
Co. Salaried Employee Pension Plan," and succinctly and
briefly explains the benefits received on death or
retirement, the various options available to retirees, the
length of service requirements, and the precise
contribution required of the participating employees. They
pay - for both protection, life insurance and pension
rights - 3 percent of the first $400 monthly salary and 4
percent of monthly earnings above $400. The amount is
taken from their biweekly paychecks. It is also a fact that
the Company placed in the hands of each employee
affected a short form summary statement of the
Prudential Life group policy, to advise them basically of
the benefits and certain conditions of insurance.
1968 Events
UAW Local 44 has represented the production and
maintenance employees for some years ; Local 412 was
first certified for the salaried people in December 1966. It
started bargaining towards a contract in February 1967
and there were many meetings into the summer , without
results. Bargaining resumed in 1968 and by April it
appeared there would be a strike . By the end of the month
Local 218, of the IAM, had its craftsmen on strike. A
final bargaining session took place on April 29 in a motel
in town ; here the Company was dealing directly with
agents of Local 44 . As an observer - apparently because
U. S. SMELTING, REFINING & MINING CO. 1021
his employees planned-'to move with the members of Local
44, there was also Alex McIntyre, UAW representative of
Local 412. Assisted by a federal mediator the conference
lasted throughout the night, and the next morning the
parties gave up; by 9 a.m., production and maintenance,
as well as the salaried employees all quit work. As the
various negotiators were preparing to leave, McNeil, for
Local 44, asked that the Company continue in effect the
insurance covering its employees. Williams, for the
Company, said he would do so only on condition the
Union pay the premiums, and McNeil agreed. At this
point McIntyre said he too wanted insurance continued
for Local 412's people, on the same basis, and Williams
agreed.
It is at this point that the conflict in testimony is said
to arise. It will be recalled that the production and
maintenance employees were covered only by
hospitalization, medical and group life insurance, and
were not eligible for, and therefore did not participate in
the retirement fund and its associated additional group life
insurance. The salaried people were protected by both.
The General Counsel contends that that morning
McIntyre asked the Company to continue all the life
insurance then in effect, and not only that part tied to the
medical and hospitalization insurance, that this was the
necessary import of his words, and also necessarily the
understanding Williams must have formed. According to
the Respondent McIntyre told Williams he wanted to pay
premiums only for the overall broad insurance which
applied to McNeil's local, and that he was not speaking of
the Prudential Insurance grqup policy at all.
In the words of McIntyre at the hearing, McNeil asked
Williams "to keep the insurance for Local 44 employees
in effect as the life insurance , sick and accident insurance,
and the health insurance ," and that he, McIntyre, "asked
him [Williams] to keep the life insurance, the
hospitalization in effect for the salaried employees, and he
said he would . . providing the UAW would pay the
premiums." Asked did he know at the time that there
were more than one life insurance policy for the salaried
employees, McIntyre said: "I didn't know there was more
than one insurance . In fact , I didn 't know how many
insurances there might have been in effect. I knew there
was life insurance in effect . I was aware there was a death
benefit for the salaried employees who participated in the
security trust fund, I didn't know how it operated or
whether it was a separate insurance policy, or what." "I
knew there was a death benefit in connection with the
trust plan, but I didn't know of any specific policies,
insurance policies, that were in effect:"
Williams' version of this talk is that as the parties were
leaving the conference room "McNeil requested us to
carry the life and hospitalization for the people. . . I
believe I told Mr. McNeil that we,had, we would continue
to carry the hospitalization and life providing the
payments were made. in a lump sum, that we would not
take payments individually. We had rejected this with
another union, and if he did make the payment in a lump
sum that we would go ahead and transfer the money to
the insurance company." Williams continued to say that
after he had replied thusly to McNeil "Mr. McIntyre
indicated they wanted to do the same thing. . . . He
indicated they would like to be covered on the same basis
and I said as long as they made the premium payments it
is satisfactory to us." Williams also testified there was no
mention of "the security trust at all."
Richard Baker , manager of industrial relations, who
testified for the Respondent , said that McNeil asked
Williams "if the company would continue the Blue Cross
Blue Shield and life insurance," and that the response was
the Company would do so and "bill the union and the
union would pay in total."2 As to McIntyre's part in the
conversation, Baker said the Local 442 man did no more
than say: "me too, or `we want it too."' "To the best of
my knowledge, that was all of the conversation from Mr.
McIntyre on the subject of hospitalization and insurance,
and then we left the room and came back to the plant."
Beyond this, Baker recalled nothing else spoken by either
McIntyre or Williams on the subject.
loon Booth, an industrial engineer and a member of
Local 412's negotiating committee, testified that on May
1, the day after the strike started, the employees were
worried about this insurance and that therefore he and
McNeil, together with Ray Matheson, also of Local 44,
left strike headquarters and went to the office of George
Waters, manager of labor relations. He asked Waters
"whether or not the union was going to pick up 412's
insurance along with 44's, and I told him I had been
informed the UAW would pick it up if they were billed, to
carry on our insurance, and I asked Mr. Waters about our
security trust, how that would be taken care of, and he
said he didn't know but that he would let me know." "I
thought it was all one plan. I didn't know there was any
difference in it. I knew it carried life benefits or death
benefits, and I thought it was all just one unit." Booth
continued to testify;that he also asked Waters "About our
hospitalization and other life insurance and the security
trust plan," and that "He [Waters] didn't know for sure
whether the UAW would pick it up or not." Waters'
position, as Booth recalled it, was that he did not know
what would be done about the pension plan. Booth also
said at the hearing that at the time he knew there were
two separate life insurance policies, one a "death benefit"
as "part of the trust fund."
Waters remembered Booth coming to his office a day
or two after the strike started. "Mr. Booth came in and
told me the union would pick up the premium for the
hospital insurance and the life insurance. . . I think we
made it clear we were talking about the hospital insurance
and the regular group life insurance policies." While
conceding Booth that day "raised the question regarding
the security trust plan," the burden of Waters' testimony
on direct examination was that they were not talking
about any life insurance other than the blanket policy
which also covered the production and maintenance
employees, and he closed with agreeing with company
counsel that Booth did not "specifically request you or of
you that the union continue the security trust life
insurance." Waters also said he did not recall having
agreed to telephone Booth later.
On cross-examination he was asked again had Booth
requested the privilege that "the union be able to continue
the supplemental life insurance to the security trust fund."
He first equivocated. "He raised the question regarding
the security trust and I told him as far as I was
concerned, the only thing that was to be continued was the
hospitalization and the group, regular group life
insurance." Pressed to answer whether Booth requested,
as an individual, "or the employees as individuals, could
either pay the premiums or contribute to the security trust
fund," Waters then said: "I don't recall the direct
question. We did discuss the thing and I told him there
'There is an obvious typographical error in the transcript , on p. 151, 1
12, the name McIntyre appearing in place of that of McNeil. The record is
corrected accordingly.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was no provision for making any payments, that as far as
I knew, the agreement had been on the hospitalization and
the group life insurance."
Q. Is it possible he did ask you if individual
employees could make payment?
A. It is possible, but I don't recall him asking me
specifically whether they could or not.
There is also the testimony of employee Howard
Currens, an industrial engineer who has worked for the
Respondent 43 years. Currens was away on vacation when
the strike started; after he returned, and heard that Racely
had died and his widow had not been paid the 2-years
death benefit due her husband under the retirement plan
life insurance, he became concerned about his own
security; Currens is 63 years old. He went to the office to
learn what the situation really was. He started by telling
Waters, the manager of labor relations, that he, Currens,
had heard the Company "was picking up our insurance
and trust fund, and that the union would repay them,"
and did Waters know anything about it. Waters answered
he did not. From here Currens went to Harold Loftis, the
insurance manager, and asked the same question, and "I
asked him if I could pay my own, because at my age it
was serious business, and I was there to take care of it."
Loftis replied he could give no answer, "It was out of his
hands." An hour later, Currens was in the office of Mr.
James Sharkey, the Respondent's vice-president of
finance. "I told Mr. Sharkey that I had just come home
and I heard about what had happened and I was there to
pay my trust fund and my insurance, and I wanted to pay
it 6 months in advance because I didn't know how long I
was going to be out." The only response he received from
Sharkey was that the vice-president would telephone him
at home after 2 p.m. Currens left but Sharkey never did
call him back.
Of these three company officials, only Waters appeared
as a witness, and he made no reference to Currens'
testimony.
Analysis
For reasons which will be set out below, the record
testimony, considered together with the manner whereby
the life insurance of the salaried employees was handled
by the Company, suffices to prove the Respondent's
agents knew its employees' desired to continue their
insurance protection in effect during the strike and were
willing to pay its entire cost, including that portion
ordinarily paid by the employer. If, as the Respondent
argues, an employer is in no circumstances legally
obligated to accede to such a request by employees at the
inception of a strike, there would be no point in
commenting upon the sufficiency of the evidence on the
question of demand and refusal. But there is an additional
reason why the question of law must come first in this
case. At bottom, failure of an employer to cooperate with
its employees, or their union, in such a request violates the
statute only if the stated proscriptions do impose the duty
upon it. In turn, however, the nature and extent of the
duty must be judged in the light of certain realities
inherent in the modern industrial state in which we live
today. There was a time before the growth of corporate
giants, when conditions of employment were clearly
understood between the employee and the individual
master-craftsmen who hired him. Now, as is shown in this
very case, a substantial aspect of the well-being of any one
employee rests in the hands of the employer with little
chance that the working man knows how he is earning
protection for his old age or how his own contribution is
used to protect his family in case of death. And while the
sheer bigness of the employing organization may make
this paternalistic authority in the Company inevitable,
justice requires that this fact of life must be considered in
delineating whatever duty attaches to the power of
control.
It is not disputed that life insurance protection, here
literally called a "death benefit" in the pension plan, is a
condition of employment, literally a benefit enjoyed in
return for working. As clearly is strike action concerted,
or union activity protected by the statute. And it cannot
be gainsaid that denial of this benefit necessarily has a
restraining effect upon the freedom to strike. In the sense
that withdrawal of this particular benefit acts as a
deterrent upon the statutory right to strike, it constitutes
restrain and coercion violative of Section 8(a)(1) of the
Act. Where denial of the benefit is limited to striking
employees while continued with respect to nonstrikers, it
constitutes disparate treatment among employees, or
discrimination in employment in violation of Section
8(a)(3). And when the collective-bargaining agent asks to
be informed of the amounts to be paid in order itself to
ensure continuance of employment benefits, and the
employer refuses to candidly and openly reveal data from
its books for this purpose, its conduct constitutes a refusal
to bargain in violation of Section 8(a)(5). Compare,
N L.R.B. v Truitt Mfg. Co, 351 U.S. 149. All of this, of
course, so long as it is employees who are involved, and
not strangers to the particular employer.
Essentially the legal argument to the contrary is that
strikers cease being employees the moment they choose to
withhold their services. The contention is too broad to
dispose of this case; decisional law makes clear that
strikers retain their employee status. As defined in the Act
the term "employee . . . shall include any individual whose
work has ceased as a consequence of, or in connection
with, any current labor dispute ..." Section 2(3). And "it
is well settled that, except to the extent that a striker may
be replaced during an economic strike, his employment
relationship cannot otherwise be severed or impaired
because of his strike activity." General Electric
Company, 80 NLRB 510, citing for authority, N.L R.B.
v. MacKay Radio & Telegraph Co., 304 U S. 333.
Strikers may not be treated differently from nonstriking
employees in the matter of accumulated seniority.
NL.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375.
They must be accorded preferential hiring if they so desire
even after replacement by new hires. The Laidlaw
Corporation, 171 NLRB No. 175. Strikers vote in
Board-conducted elections. And an employer must treat
strikers "uniformly with nonstrikers with respect to
whatever benefits accrue to the latter from the existance
of the employment relationship." Great Dane Trailers,
Inc., 150 NLRB 438, enfd. 388 U.S. 26.'
None of the above cases is squarely in point here. Is
continuing life insurance protection, life accumulated
seniority, the privilege to vote, and the right of recall even
after termination of a strike, an aspect of the employment
relationship that persists despite the temporary withdrawal
of services during a strike? The question is not answered
'The Respondent's argument is not strengthened by the assertion, true,
that no employer is required to help finance a strike against itself, and its
reliance upon cases holding that an employer need not continue paying
insurance premiums for striking employees is misplaced, as, for example,
Ace Tank and Heater Co., 167 NLRB No 94, where there was no request
by the employees or their union for the privilege of themselves paying the
premiums
U. S. SMELTING, REFINING & MINING CO. 1023
by the statement, in-the Respondent's brief, that "the
employer has no duty to accomodate those at war with
him by joining in to provide economic benefits for them."
The employer-employee relationship is not severed, and so
long as the striker wishes to protect himself at his own
expense and at no financial cost to the employer, there is
no persuasive reason, either in law or in equity, why the
employer should have the power to impose such an
additional penalty -for engaging in a strike. It is not as
though the striker were protected by an individual life
insurance policy between himself and Prudential Life and
wished to pay also that portion of the premium normally
contributed by his employer. Where the insurance
coverage is very broad, encompassing ,a very large group
of workmen, including categories other than the strikers,
and the Company is in sole charge of its overall
administration, the striker is enmeshed in a complex
situation beyond his comprehension and control. And it is
the very size of the corporate employer that forces him
into this dependent state. He- cannot deal separately and
independently with .the insurance carrier; while he is a
beneficiary, the insurance contract runs to the Company,
which apparently alone may continue the premium
arrangements to maintain the protection coverage. In a
real sense, therefore, the individual employee has no
choice but to leave a very substantial element of his
permanent well-being in the-hands of his employer.
If the complaint in this proceeding be taken literally, it
presupposes an employer, is also legally obligated, on
request, to assist and permit the strikers to make
payments, in lieu of the employer's contribution, to a
retirement fund building .up over the years to the benefit
of the employee. It was by no means clear at the hearing,
either from the evidence offered or from the equivocal
statements made 'by the General Counsel, that this
argument is made at all. The Government and the UAW
chose not to file post-hearing, briefs and therefore both the
extent of their basic contentions and their theories of
illegality remain obscured. In- any event, as it developed,
no striker was prejudiced in his retirement benefit position
because of the work stoppage; in fact, upon their return
they were credited with the -3-month period while they did
not work. In these circumstances the broader question
involving payment into the retirement fund would be
academic at best, and therefore need not be decided here.
There is also an ' indication in the complaint that even
where the strikers, or the Union, do not come forth to
demand the right to pay all life insurance premiums, it is
nevertheless the duty of the employer to advise them of
the necessity, of the danger to which they are exposed,
and to make clear to the employees both the total
amounts due and the mechanics whereby they could go
about assuming the entire financial responsibility during
the strike. This possible argument , too, does not emerge
clearly from the record as a whole, and again the failure
of the interested parties to explicate their contentions in
briefs confuses the issues . Accordingly, decision here is
not to be taken as' a ruling that an employer violates the
statute by mere failure to alert its employees or their
union at a time of a strike activity to the danger of life
insurance suspension , or voluntarily to offer its assistance
for the Union to pay total premiums if it should so wish.
Because of the nature of the Respondent's testimonial
defense to the assertion that the strikers did not attempt
to pay the premiums, it is appropriate to add that a very
persuasive argument could be made in support of a
holding that the employer is duty bound, even absent any
request by the employees, to volunteer the necessary
information to them and to make its records available for
their use.
United States Smelting and Refining is a very large
company; Mueller Brass, one subsidiary, alone employs
over 2,000 persons. Williams, director of industrial
relations, said that in the 20 years he held such positions,
no union or group of employees had ever seen the pension
plan itself; indeed he had not even himself read it. Clearly
the Union here, UAW Local 412, never saw it before
Racely's death. Nor was the master life insurance policy
with Prudential Life ever shown the employees. They
never know how much the premiums were for their life
insurance; they never knew how much the Company added
to their individual contributions and paid over to
Massachusetts Life to maintain the retirement benefits
listed in the succinct brochure put in their hands. What
they did know is that if they "terminated" their
employment, if they "quit" their jobs, the insurance would
cease, and all they would receive in place of retirement
credits was their own contributions paid back in cash,
with interest at 2 1/2 percent. It is clear in the law that
their employment did not terminate merely because of the
strike; they certainly intended to return as soon as the
labor dispute was settled. They were still employees of the
Respondent. Would it be too great a burden upon an
employer intending, as did the Respondent, to stop the
insurance payments, to tell the employees that it looked
upon them as persons who had quit and that they had
better look to doing something, and explaining the inner
workings of the plan so they could at least know how they
could protect themselves? The Prudential Group Life
policy provides for conversion to individual policies when
an employee is really separated from the Company. The
strikers had no reason to believe that they fell in that
class, and the Respondent, improperly looking upon them
as "quit," could at least have told them so.4 Striking an
economic balance between union and employer is one
thing; it is something else again to say that Currens, the
old man, checkbook in hand to pay for his own
protection, was "at war" with United States Smelting.
Like each of the strikers, his future financial security, and
that of his wife, were in the hands of the Company and
this was inevitable because with companies of this size
efficient and profitable operations can only succeed with a
centralized, uniform and skilled functioning of managerial
needs. Here the individual workman is a little speck in the
coherent mosaic of the large scale industrial process. With
overall power so necessarily centered in the hands of
management, there must exist a measure of responsibility
towards the human being who cannot escape the grinding
wheels of pure bigness.
Be that as it may, I hold as a matter of law that where
life insurance is concerned and both employer and
employee contribute to its cost, the employer is obligated
to accede to the demand of a union or of its employees
that they be permitted to pay the full premiums when they
are on strike, and to cooperate with them to that end. The
Respondent adds that the Union may not "demand the
right to use the Employer's facilities, its administrative
manpower, its personnel," for this purpose. There was no
problem sending both Local 44 and Local 412 the bills for
premiums due on the regular hospitalization and life
insurance covering almost 2,000 persons; the exhibits show
The uncontradicted testimony of Mrs Racely shows that when she
applied at the office of the Company for her husband's death benefit,
Sharkey, the vice president , said she would not receive it because her
husband "had terminated his employment at Mueller Brass."
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all this came in the form of printed sheets which emerged
from a data processing machine. Where a union offers to
pay full insurance costs, it will in all probability also
defray what little bookkeeping expense may be involved.
Demand and refusal
When McIntyre, for Local 412, on the morning of the
strike spoke of insurance and his union's desire to pay full
premiums, he did not in so many words refer to the
pension plan or the particular life insurance policy
associated with it. He adopted the position of the Local 44
spokesman, who had spoken of "life insurance, sick and
accident insurance and health insurance," and who, so far
as he was concerned, was, of course, necessarily referring
to the fully company paid insurance which was the only
one applicable to the production and maintenance
employees. McIntyre did, however, according to his
testimony, also say "life insurance," when expressing his
own concern to Williams, of the Company. According to
Williams, after, as he recalled, McNeil had "requested us
to carry the life and hospitalization for the people,"
McIntyre "indicated they wanted to do the same thing,"
"on the same basis." Williams did not deny that McIntyre
did talk about life insurance. The primary defense, based
upon the oral testimony given by the witnesses, is that the
Charging Union was not speaking about the Prudential
Group Life policy incidental to the retirement fund, but
had in mind only the broader insurance covering all shop
employees. And the proof is said to rest upon the fact that
McIntyre was not sufficiently specific in his request, that
he chose the wrong words if he really meant to pay for all
the life insurance then in effect.
Apparently in support of this basic position, the
Respondent points to language in the Prudential Life
Group policy, set out also in the summary statement given
the employees, saying:
Termination of employment [and therefore termination
of insurance] will, for all purposes of the Employee
Group Life Insurance, be deemed to occur when an
Employee ceases to be actively engaged in work on a
full time basis with the Policyholder.
The implication suggested by the Respondent's reliance
upon this phrase in its agreement with Prudential Life, is
that strikers are per force excluded from the insurance
and that therefore no matter how the case be viewed Mrs.
Racely's subsequent loss could in no event indicate
wrongdoing by the Company. Presumably a further
inference intended to be drawn from the selected policy
words is that they served to tell the Union once the
employees struck there was no way the insurance could
possibly be continued as to them, and therefore McIntyre
could not have asked to pay these premiums.
Construction of the policy contract language , of course,
bears no relationship to what union agents said to
company representatives and what they were told in
response. It is not claimed that the Company refused an
understandable request because of automatic policy
exclusion of strikers, or that any of its officers gave such
an excuse to the Union for its refusal. The policy makes
no mention of strikers. Rather, the language quoted above
is followed immediately by a further provision that
disabled employees, those granted a leave of absence or
temporarily laid off, and persons placed on part-time
employment, may, at the election of the Respondent, be
deemed as still employed full time for a specified period.
And when the strike ended all the living strikers came
back under coverage of the insurance contract; they were
not required to satisfy new physical examinations and
there is nothing to indicate they were treated any
differently than would have been the case following a
general economic layoff.' Most significant of all, nowhere
in its comprehensive and well articulated brief, does the
Respondent assert even now that had it chosen itself to
pay these premiums, or permitted the Union to attempt it,
Prudential insurance would not have accepted them. The
larger policy with Massachusetts Mutual, covering more
than the almost 1,900 persons who struck, was also a
group insurance contract, and for those people the
Respondent did cooperate with the locals in having the
premiums paid. Racely's widow collected on that one; it
may be presumed that that group policy, like the one with
Prudential Life, also requires, as a condition precedent for
coverage in fact, actual status as a member of the class at
the time of death.
Returning to the first conversation on this subject with
a representative of Local 412, it is clear at least that
Williams understood McIntyre was talking about life
insurance, whatever else he may have intended. As to
whether McIntyre then knew that there were two distinct
and separate group life policies for the salaried people his
testimony is confused. He first said he did not, and then
that he did; he then added all he knew was that there was
a "death benefit" somewhere connected with the
retirement fund. "I didn't know how it operated or
whether it was a separate insurance policy, or what." "I
knew if an employee died before retiring he was supposed
to get two times his annual rate of pay under the death
plan."
The more important question is what did Williams
know when Local 412 asked to pay the entire cost of "life
insurance." McIntyre's confusion may very well be
attributed to his basic ignorance of what the security trust
plan was all about. Nobody ever saw it or knew its inner
workings except management. Williams did know or he
should have known; he is the director of industrial
relations. It will not do for the various officers of the
Company's industrial relations department to pass this
buck back and forth among themselves as they did while
testifying, as though no one was responsible for even
knowing what was going on. Somebody had to know; the
employees were entitled to be told very precisely at that
critical moment. Williams did not tell McIntyre that there
would be two billings for life insurance, and that one - as
is now seen in the documents placed in evidence - called
for much higher premiums that the one which Local 44
was to pay. Local 412 might well have said it could not
pay that much, but its agents never knew these facts.
There may have been no duty upon the Company's
representatives on their own accord to alert the Union to
the danger its members might meet by striking, but with
these the pertinent facts there is little persuasion in
Williams' defense that McIntyre was not sufficiently
specific in his request language.
The next day Booth, a member of the negotiating
committee, speaks to Waters, the manager of labor
relations, because, as he said, the employees were worried
about their accumulated benefits. According to Booth he
talked to Waters "about our hospitalization and other life
'In explaining how the strikers were restored to their previous situation
without medical examination , Williams said "we waived the physical
requirement." If a new physical were indeed required under this policy, it
is doubtful Prudential Life would permit Williams to waive the condition
His statement instead strengthens the finding that the strikers never lost
their employee status , even under the insurance agreement.
U. S. SMELTING, REFINING & MINING CO.
insurance and the security, trust plan ," and asked was it
arranged "the UAW uld pick it up if they were billed."
He added Waters said ,he did not know, was "rather
doubtful," and would call Booth back to advise him.
Booth also said he told Waters "to find out for us what
we could do about it, if we had to pay it individually, or if
the UAW was going to pick it up ." As Water recalled this
visit, Booth talked of the premiums for "hospitalization
and the life insurance " and "raised the question regarding
the security trust plan." He answered that all he knew was
there had been agregmetif to continue "the hospitalization
and the regular group life." In conclusionary language
Waters then added "I think we made it clear we were
talking about the hospital insurance and the regular group
life policies." Later Waters admitted he discussed the
security trust fund with Booth, and "it is possible" the
Union man asked him if individual employees could make
payments, but that he answered "there was no provision
for making at}y payments."
Like McIntyre, moth knew very little about how the
retirement plan worked, ,or of how life insurance was
integrated with it, and Waters said he was not personally
familiar with the"operations 'of the life insurance program
under the security trust plan. But he did know Booth
talked about both life insurance and the trust plan. Waters
cannot hide behind alter cloak of ignorance . He must have
understood for the ldast `that the Union here was looking
for help in a very important concern to the employees,
and enlightenment in an area where organization of the
Company made it difficult for them to see clearly.
Although Waters denied, it, I credit Booth's testimony that
Waters promised to call him back, but did not. This is
what Booth would ask with the official saying he did not
know exactly what was taking place. And again there is a
situation where a company man, in whom there must be
direct knowledge ` of the pertinent facts, seeks to avoid
responsibility on the ground that the Union agent, much
less informed than he, was not exact in his language.
Waters said the same thing - that he did not know
how the pension fund was being handled by the Company
or whether the UAW was being billed for it - to Currens
when he came to inquire after Racely ' s death . Loftis and
Sharkey , also of the industrial relations department, gave
Currens no more satisfaction . Currens was talking about
his rights under the pension plan, for he had just learned
Racely's widow had been denied the 2 years' death benefit
payment towards which, the employees had long
contributed. Currens had worked here for 43 years, and
his old age nest egg play , in the pension fund; he feared the
possibility he might have it all reduced to his own
contribution . If he died while - on strike his widow too
would have been left empty handed. Currens is hale and
hearty and it is a good thing no one else died . But this is
after the event. Waters well knew that day what Currens
sought , because he certainly was aware of the payments
then being made for the separate group life insurance
covering the entire complement in the shop , and Currens
offered to pay his individual debt out of his own
checkbook. The Company was then paying premiums to
Prudential Life for those of its salaried people who were
not striking . Currens ' premium could as easily have been
included at his request . It was Waters ' duty , representing
the Company, to tell Currens how much his individual
premium would be and to accept it, or at least to advise
him openly and candidly of the facts , so the old man
could decide whether he could afford it.
This incident supports the finding, which I make, that
through Williams ' conversation with McIntyre , Waters'
1025
talk with Booth, and his later talk with Currens, the
Respondent understood the Union's and the employees'
request to be permitted to pay for the life insurance
protection associated with the pension plan, and refused to
cooperate with them to that end. I also conclude that by
that conduct Respondent violated Section 8(a)(3) and (1)
of the Act.
As set forth in the start of this report, refusal by an
employer to permit employees to continue their life
insurance in effect during a strike necessarily restrains
them in their legally protected right to engage in such
union and concerted activity, and it is for this reason that
the Respondent's conduct constituted a violation of the
statute. To rebut this conclusion the Respondent relies
heavily upon the fact that there is no direct evidence of
antiunion animus or of an intent either to "restrain and
coerce" or to discourage "union membership." But there
are some things that employers and unions do which run
afoul of the proscriptions of the statute and are therefore
"unlawful even absent a discriminatory motive" (Textile
Workers Union of America v. Darlington Manufacturing
Co., 380 U.S. 263, 269), and "whatever the employer's
motive" (N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21).
This is a case where "the intent is founded upon the
inherently discriminatory or destructive nature of the
conduct itself. The employer in such cases must be held to
intend the very consequences which forseeably and
inescapably flow from his actions ...." N.L.R B. v. Erie
Resistor Corp., 373 U.S. 221. See also, Great Lakes
Carbon Corporation v. N.L.R.B., 360 F.2d 19 (C.A.4),
and Radio Officers Union of Commercial Telegraphers
Union, A.F.L. v. N.L.R. B., 347 U.S. 17, 51.
This finding is not significantly weakened by the fact
that when the Respondent sent statements to Local 412
for the hospitalization insurance and its related group life
insurance policy, the premiums listed were in fact limited
to such insurance, and careful examination of the bills
would clearly have revealed this. The Union paid them,
but Booth, who received them in the mail and forwarded
them to Detroit, said he handled them cursorily, without
looking too closely. Apparently it was not his
responsibility to pay the bills but that of the UAW
insurance department, yet the fact remains that had he
taken the trouble to read the bills carefully he would have
known the greater insurance coverage of the Prudential
Life policy was not involved. From this it follows,
according to the Respondent, that the Union never asked
and never intended to pay for the Prudential insurance.
More, that if there was any negligence or indifference to
the plight of the striking employees it is chargeable to the
Union and not the Company. Under this view if there
resulted any confusion or misunderstanding from the
complex life insurance arrangements carried on by the
Company, it was the duty of the Union to unravel it, to
clarify things so the Respondent could understand its
desires. It is even said that the Union was remiss in not
repeating its request to the Company representatives if it
really wanted to protect its members. On the record as a
whole this position is not very persuasive, for the
Respondent alone was in possession of the important
facts, and the Union's limited information can well
explain what might otherwise appear as calculated
indifference.
Section 8(a)(5)
Had the Respondent agreed to cooperate with the
Union in its request to be permitted to pay the life
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insurance premiums, the matter could have been carried
out either by the Company itself paying the sums to
Prudential Life and then being reimbursed by the Union,
or by furnishing the Union with the necessary data from
the Company records for use by the Union to make direct
payments. Either method involved production of records,
intimately pertaining to the employees' condition of
employment, and necessary for the Union properly to
look after their such interests. The refusal to supply this
information, one way or the other, therefore also
constituted a refusal to bargain in violation of Section
8(a)(5) of the Act, and I so find.
This finding rests in no sense upon evidence relating to
events in the year 1967. The complaint alleges that during
certain bargaining sessions between the Company and
Local 412 at that time the Union requested copies of the
master agreement underlying the pension plan, or security
trust fund, and that the Respondent refused to produce it.
At the hearing the General Counsel spoke of a continuing
violation of Section 8(a)(5) resting in part upon such early
refusal and in part upon the events of 1968.
Although no agreement was reached in 1967 between
the parties, there was talk of the pension plan benefit the
employees enjoyed, among many other things. Documents
exchanged in the course of the bargaining show that the
Company offered to continue it in effect and the Union
agreed. There is no significant indication in the record
that in speaking about the total plan any serious questions
arose about its contents, or its application. It simply
appears that this was a condition of employment properly
belonging in a completed contract and that the parties
agreed to incorporate it. McIntyre, of Local 412, testified
he twice - in February and June 1967 - asked for a
copy of the master plan, but never received it. Company
representatives denied they had received any such requests
then. They were probably correct in their recollections. In
any event, it is clear nothing about the plan, or even the
question of whether or not to continue it at all, ever
became a matter of serious moment to either of the
parties. Asked at the hearing why, in view of his now
insistence that the Company had refused to produce such
a document, he had not filed any unfair labor practice
charge in 1967, McInyre said it was because "they hadn't
refused." To the extent that the complaint alleges there
was any improper contact by the Respondent in 1967, I
find the allegation unsupported by the proof.
IV. THE REMEDY
It having been found that the Respondent unlawfully
refused to cooperate with Local 412's expressed desire
either to pay life insurance premiums for its members
while they were on strike, or that the Respondent pay
them and arrange for the Union to reimburse it, the
Respondent must be ordered hereafter to cease and desist
from such conduct. A direct consequence of this unfair
labor practice was a monetary loss to the widow or the
estate of its employee William Racely. Purposeful remedy
to restore the status quo requires that the Respondent
make whole the man's estate or his widow, whatever the
case may be. Accordingly it will be ordered that the
Company pay to the estate or widow the face amount of
death benefit that would have been payable had Racely's
insurance premium been timely sent to Prudential
Insurance Company.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
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 thereof.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing to cooperate with the Union's expressed
desire to pay life insurance premiums for its members
while they were on strike the Respondent discriminated
against its employees and has thereby engaged in, and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By refusing to furnish information to the Union
respecting life insurance premiums payable for its
members while they were on strike the Respondent has
refused to bargain with the Union and has thereby
engaged in, and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
5. By the foregoing conduct the Respondent has
engaged in , and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
6. 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.]