Western Foundries, Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1977

233 N.L.R.B. 1033 (N.L.R.B. 1977)

WESTERN FOUNDRIES, INC.
Western Foundries, Inc. and International Molders &
Allied Workers Union of North America, Local
188. Case 27-CA-5098
December 8, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On August 1, 1977, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a brief in answer thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.2
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 Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Western Foundries, Inc., Longmont, Colorado,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
1. Substitute the following for paragraph l(e):
"(e) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
The Administrative Law Judge dismissed the allegation that Respon-
dent refused to bargain with the Union, in violation of Sec. 8(aXS), by
dealing directly with the bargaining unit employees concerning their terms
and conditions of employment. In the absence of an exception thereto, we
adopt this finding.
2 In par. 1(e) of his recommended Order, the Administrative Law Judge
uses the narrow cease-and-desist language, "in any like or related manner,"
rather than the broad injunctive language, "in any other manner," which the
Board traditionally provides in cases involving senous 8(aX3) discriminato-
ry conduct. See N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4,
1941). We shall modify the recommended Order accordingly.
233 NLRB No. 154
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in the
International Molders & Allied Workers Union
of North America, Local 188, or any other labor
organization, by promulgating, maintaining, or
enforcing an exclusionary clause which disquali-
fies or excludes from participation in a profit-
sharing plan or any other employment benefit
plan employees who are members of a union
which has a contract with us.
WE WILL NOT disqualify employees who are
represented by the above-named Union from
eligibility to participate in our profit-sharing plan
because they are members of the Union.
WE WILL NOT refuse to bargain collectively with
the above-described Union as the exclusive
representative of all our foundry employees
concerning their participation in our profit-shar-
ing plan.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
WE WILL reinstate in our profit-sharing plan
the accounts of any foundry employees whose
accounts were forfeited subsequent to October 1,
1976, because they became a member of Interna-
tional Molders & Allied Workers Union of North
America, Local 188, and WE WILL open accounts
in the names of those foundry employees who but
for their membership in this Union would have
been eligible to participate in said plan subse-
quent to October 1, 1976, and prior to compliance
with the Order of the National Labor Relations
Board.
WE WILL make whole the employees referred to
in the paragraph immediately above by paying
into each of said accounts a sum of money, the
amount of which is to be determined hereinafter
at the compliance stage of this proceeding.
WE WILL amend the summary description of
our profit-sharing plan by deleting from it that
portion which disqualifies or excludes from
participation employees covered by our contract
with the above-named Union if they are members
of that Union.
WE WILL, upon request, bargain collectively
and in good faith with the above-named Union,
as the exclusive representative of our foundry
1033
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, concerning the foundry employees'
participation in our profit-sharing plan.
WESTERN FOUNDRIES,
INC.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: Upon
a charge filed on October 12, 1976, by International
Molders & Allied Workers Union of North America, Local
188, herein called the Union, the General Counsel of the
National Labor Relations Board, by the Regional Director
for Region 27, issued a complaint and notice of hearing on
December 1, 1976, against Western Foundries, Inc., herein
called Respondent. The complaint alleges that Respondent
has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended. In substance,
Respondent is alleged to have violated Section 8(a)(1) and
(3) of the Act by informing its employees who are not
members of the Union that it had instituted an employee
profit-sharing plan which excluded from its coverage
employees who "are a member of a union and are covered
by a collective bargaining agreement which does not
provide for your participation in this Plan." The complaint
further alleges that Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to meet and bargain with the
Union about "the exclusion of union employees from
Respondent's profit-sharing plan," and by attempting to
deal directly with the employees represented by the Union
about the profit-sharing plan.' On December 19, 1976,
Respondent filed an answer denying the commission of
any unfair labor practices.
On May 23, 1977, Respondent, the Charging Party, and
the General Counsel entered into a stipulation of facts and
requested that an Administrative Law Judge accept the
stipulation and set a date for the filing of briefs. The parties
agreed to submit this proceeding, without a hearing,
directly to the Administrative Law Judge for recommended
findings of fact, conclusions of law, and order. The parties
stipulated that the entire record before the Board in this
matter, in addition to their formal stipulation and the
exhibits thereto, should consist of charge, complaint, and
answer to the complaint.
On June 27, 1977, I was designated to prepare and issue a
decision in this proceeding and permission was granted for
the filing of briefs. Thereafter, the General Counsel and
Respondent filed briefs in support of their respective
positions.
Upon the basis of the stipulation and exhibits thereto,
the briefs, and the entire record in this case, I make the
following:
I Counsels for the General Counsel in their brief argue that Respondent
also violated Sec. 8(aX5) and (1) by unilaterally implementing its profit-
sharing plan without prior notice to or consultation with the Union.
However, the complaint does not allege this as a violation nor is this
contention fairly comprehended within the language of the complaint, nor
does the parties' stipulation of facts indicate that the matter was litigated. It
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Respondent, Western Foundries, Inc., is, and at all
times material herein has been, a corporation duly
organized under, and existing by virtue of, the laws of the
State of Colorado. Respondent maintains its office and
principal place of business in Longmont, Colorado, where
it is engaged in the manufacture for sale of casting for
pumps and pump parts. Respondent annually sells and
ships goods and materials valued in excess of $50,000
directly to points and places outside the State of Colorado.
Respondent admits, and I find, that it is, and at all times
material herein has been, an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that International
Molders & Allied Workers of North America, Local 188,
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Union has represented the foundry employees
employed by Respondent at its Longmont, Colorado,
plant, the only facility involved in this proceeding, since
1959 when, as the result of a Board-conducted election, the
Union was certified as the employees' exclusive collective-
bargaining representative. The parties' current collective-
bargaining contract covering the foundry employees was
entered into July 3, 1976, and is effective from July 1, 1976,
until June 30, 1978. The contract does not contain a union-
security agreement. Article 2, in part, provides that "union
membership will not be a condition of employment . . .
although employees are free to join or refrain from joining
the Union as a matter of individual choice." During the
time period material to this case approximately 50 percent
of the employees covered by the contract were dues-paying
members of the Union.
During the collective-bargaining negotiations which
resulted in the current collective-bargaining contract,
Respondent's employees were not covered by a profit-
sharing plan. There was no discussion about such a plan
during the contract negotiations.2 However, Respondent's
parent company maintained a profit-sharing plan for its
own employees which did not cover Respondent's employ-
ees. In 1976, on an unspecified date, Respondent's parent
company was advised by its lawyers that for the parent
company's profit-sharing plan to comply with the Employ-
ees' Retirement Income Security Act of 1974 (ERISA), an
identical plan must be established for Respondent's eligible
is for these reasons that I have not considered the General Counsel's claim
that Respondent violated the Act by engaging in impermissible unilateral
conduct.
2 The Union's negotiators did propose, and Respondent's negotiators
rejected, a pension plan.
1034
WESTERN FOUNDRIES, INC.
employees. Thereafter, on October 1, 1976, following the
advice of its parent company's lawyers, Respondent
instituted a profit-sharing plan, herein sometimes called the
plan, for the employees at the Longmont plant. The plan
known as the "Western Foundries, Inc. Employees' Profit-
Sharing Plan" was made effective retroactive to January 1,
1976.
The plan is administered by a committee of two or three
persons, at least two of whom are officials of Respondent.
Respondent retains the right to terminate, cancel, or
amend the plan. Participation in the plan is voluntary.
Those eligible must be at least 25 years of age and
employed by the Company for a period of I year. Annual
contributions, based solely on a percentage of the Compa-
ny's profits, are made by the Company into a trust fund
with shares allocated on a pro rata basis to personal
accounts set up for each participating employee. In
general, the Company's contribution for a given period is
allocated among the accounts of the participants in
accordance with each participant's compensation during
that period, except that the contribution is not to exceed
the maximum allowable tax deduction.3 Participants (or
their designated beneficiaries) are entitled to receive the
amounts credited to their accounts upon their retirement,
death, or disability. In the event of discharge or voluntary
resignation, employees who have participated in the plan
for at least 10 years receive the full amount in their
accounts, those who have participated for at least 4 but less
than 10 years receive 40 percent to 90 percent, and those
who have participated less than 4 years receive nothing. If
a participant's account is distributed due to retirement,
death, or disability, payment commences 60 days after the
close of the fiscal year and, in the case of retirement or
disability, the participant may receive the moneys owed in
either one lump sum payment or in quarterly installments
or in United States Government Retirement Bonds. If,
however, a participant's account is distributed for reasons
other than death or retirement or disability, i.e., discharge
or voluntary termination, the vested portion of the account
must be paid 60 days after the last day of the fiscal year in
which the participant's normal retirement would occur, but
with the committee's consent the employee can elect to
receive the distribution of this money prior to retirement
age.
On October 1, 1976, Respondent distributed to its
employees who were eligible to participate in the plan a 19-
page document entitled, "Summary Plan Description for
[Respondent's] Employees' Profit-Sharing Plan," which in
substance informed the employees that Respondent had
adopted a profit-sharing plan for their benefit, summarized
the plan, and informed the employees that if they had any
questions about the plan or if they desired to review the
plan and its trust agreement, to contact the members of the
committee who administer the plan. The final page of the
"Summary Plan Description" cautions the employees that
the plan's operation is governed by the specific provisions
contained in the plan and its trust agreement, not the
3 Each participant may elect, on a voluntary basis, to contribute to the
plan's trust during each fiscal year a percentage, not in excess of 10 percent,
of his compensation for such fiscal year. Such contributions do not affect
the participant's share of employer contnbutions.
summary, and urged the employees to study the plan and
its trust agreement.
Section 3 of the "Summary Plan Description" entitled
"when do I become eligible to enter the Plan," in substance
states that to be eligible an employee must be at least 25
years of age and employed by the Company for I year, but
then goes on to state that, "(e)ven though you satisfy these
requirements, however, you will not be eligible to enter the
Plan . .. if you are a member of a union and are covered
by a collective bargaining agreement which does not
provide for your participation in this Plan." The "Summary
Plan Description" was distributed to the employees in
accordance with this eligibility provision. The employees
represented by the Union who were union members did
not receive a copy of the summary, whereas all employees
who were not union members received a copy.
The above-described eligibility exclusionary language
included in the "Summary Plan Description," which was
distributed to the employees, was erroneous insofar as it
excluded "a member of a union" from participating in the
plan. The actual text of the plan which deals with this
matter makes no mention of union membership but simply
excludes from participating in the plan, "a person covered
by a collective bargaining agreement which does not
provide for his participation in this Plan."
On or about November 17, 1976, Ben Martinez, a union
business agent, spoke to George Losacco about the profit-
sharing plan. Losacco, the plant manager, was Respon-
dent's chief negotiator during the recent contract negotia-
tions and is one of the committee members who adminis-
ters the plan.4 Martinez spoke to Losacco concerning the
exclusion of union members from the profit-sharing plan.
Losacco told him that the plan was already written, that he
had no authority to renegotiate any of the provisions that
might change the signed collective-bargaining contract,
and that Martinez should contact George Wilfley, Respon-
dent's president. Neither Martinez nor anyone else from
the Union contacted Wilfley about this matter.
In January 1977, the employees covered by the parties'
collective-bargaining contract, who were not union mem-
bers, were informed by Plant Manager Losacco they were
eligible to participate in the plan, and Losacco invited them
to actively participate. The result is that the employees
covered by the current collective-bargaining contract who
are not union members, and are otherwise eligible to
participate in the plan, are all participating, whereas those
employees who are union members are not participating in
the plan.
B. Discussion
1. The alleged 8(aX1) and (3) violations
The complaint in substance alleges that on or about
October 1, 1976, by informing employees who were not
union members that they were not eligible to participate in
Respondent's profit-sharing plan "if you are a member of a
union covered by a collective bargaining agreement which
does not provide for your participation in this Plan," that
4 Losacco also executed the current contract for Respondent.
1035
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent promulgated a discriminatory profit-sharing
plan which discourages union membership, in violation of
Section 8(a)(1) and (3) of the Act.
On October 1, 1976, as described in detail supra,
Respondent instituted an employee profit-sharing plan and
on that date distributed a summary of the plan to the
employees eligible to participate. The summary, among
other things, stated that "you will not be eligible to enter
the Plan . . . if you are a member of a union and are
covered by a collective bargaining agreement which does
not provide for your participation in this Plan." Respon-
dent's employees are covered by a collective-bargaining
agreement negotiated by the Union which does not provide
for their participation in the plan. The agreement does not
include a union-security clause and approximately 50
percent of the bargaining unit's employees are not union
members. It was this group of employees who were in effect
told they were eligible to participate in the plan if they
refrained from joining the Union. Clearly, the plan's
eligibility provision, as explained to these employees, was
calculated to coercively dissuade them from joining the
Union inasmuch as it indicated that union membership
would result in less favorable working conditions. It is
settled that "employee benefit plans which on their face are
restricted to participation or enjoyment by employees who
are not members of a union . . . are inherently restrictive
of employee rights guaranteed by Section 7 of the Act, and
without further evidence of interference, restraint, or
coercion are per se violations of Section 8(a)(1) of the Act."
Motor Wheel Corporation, 180 NLRB 354, 355 (1969),
citing Melville Confections, Inc., 142 NLRB 1334 (1963),
enfd. 327 F.2d 689, 690-692 (C.A. 7, 1964), cert. denied,
377 U.S. 933 (1964). Publicizing to the employees that
Respondent was instituting a profit-sharing plan which
restricted participation to those employees represented by
the Union who are not members of the Union is no less
violative of the Act. See White Sulphur Springs Company,
d/b/a Greenbrier Hotel, 216 NLRB 721, 727 (1975). In so
concluding, I have considered that the plan's summary
description materially misrepresented the plan's exclusion-
ary language which makes no mention of union member-
ship, but simply lawfully excludes "a person covered by a
collective bargaining agreement which does not provide for
his participation in this plan." See The Rangaire Corpora-
tion, 157 NLRB 682 (1966). However, Respondent's
representatives never brought the plan's actual language to
the employees' attention or told them they would not be
disqualified from participating in the plan if they became
union members, nor did Respondent otherwise neutralize
the summary's coercive effects. To the contrary, consistent
with the exclusionary language included in the plan's
5 This is not a situation where an employer has granted participation in a
profit-sharing plan to its unorganized employees while withholding
participation from its represented employees. See The B. F Goodrich
Company, 195 NLRB 914(1972).
6 I reject Respondent's characterization of the instant case as simply one
wherein an employer inadvertently administered its profit-sharing plan so
that it discriminated against union members. Quite the contrary, there is no
evidence that Respondent has ever corrected the discriminatory eligibility
language contained in the summary description of the plan or otherwise
notified the employees that the summary was in error in that respect. In
addition, several weeks after the complaint, which unambiguously accused
Respondent of promulgating a discriminatory profit-sharing plan, issued in
summary description Respondent treated bargaining unit
employees, who were union members, differently from
nonmembers. The employees who were not union members
were invited to participate in the plan whereas the
members were excluded. Under all of these circumstances,
the fact that the plan's eligibility clause is not unlawful and
employees were urged by Respondent to study the plan
itself is insufficient to neutralize the coercive effects of
Respondent's unfair labor practices.
Based on the foregoing, I find that Respondent, by
informing bargaining unit employees who were not
members of the Union that the Company's profit-sharing
plan was not available to a union member, who otherwise
was eligible to participate in the plan, thereby restrained
and coerced employees in their statutory right to become
members of the Union. Accordingly, Respondent violated
Section 8(a)(l) of the Act.
I further find that Respondent, by giving more remuner-
ation (in the form of a profit-sharing plan) to nonunion
members than to union members for work which bargain-
ing unit employees performed, 5 thereby discriminated in
regard to a term or condition of employment in a manner
which would tend to discourage membership in the Union.
Therefore, I find that Respondent violated Section 8(aX3),
as well as Section 8(aXlI), of the Act. In this regard the
record establishes that in addition to announcing that
union members employed in the bargaining unit were not
eligible to participate in the profit-sharing plan, Respon-
dent gave effect to this illegal announcement and actually
excluded unit employees from participation on the basis of
their union membership. Consistent with the exclusionary
language included in the plan's summary description,
Respondent has treated unit employees who are members
of the Union differently from those who are not members.
The nonmembers have been invited to participate in the
plan, whereas the members of the Union have been
excluded. In other words, Respondent has ignored the
terms of the plan as written and, consistent with the plan's
summary description, has in fact promulgated, maintained,
and enforced a profit-sharing plan which discriminates on
the basis of union membership in that it excludes from
participation therein those employees covered by the
parties' collective-bargaining contract who are members of
the Union.6 Such discriminatory conduct is a per se
violation of Section 8(aX3), as well as Section 8(a)(1), of the
Act. See, e.g., Toffenetti Restaurant Comrpany, Inc., 136
NLRB 1156, 1173 (1962), enfd. per curiarn 311 F.2d 219,
220 (C.A. 2, 1962), cert. denied, 372 U.S. 977 (1963); Dura
Corporation v. N.LRB., 380 F.2d 970, 972-973 (C.A. 6,
1967). For Respondent to deprive otherwise eligible
employees of employment benefits solely because they are
this proceeding, Respondent invited the unit employees who were not
members of the Union to participate in the plan, but excluded those unit
employees who were union members. These circumstances, viewed in the
context of the discriminatory language contained in the summary descrip-
tion of the plan distributed to the employees, indicates that Respondent,
which has the power to amend the plan, in effect did amend the plan so as to
promulgate, maintain, and enforce a plan which discriminates against its
employees represented by the Union on the basis of their union member-
ship. Moreover, it is a fair inference to also conclude that Respondent did
not act in this regard inadvertently but instead acted with the specific intent
to discriminate against bargaining unit employees because of their union
membership.
1036
WESTERN FOUNDRIES, INC.
members of a labor organization constitutes discrimination
tending to discourage union membership. In the absence of
a valid business justification for such discrimination (and
none was offered by Respondent in this case), Respondent
violated Section 8(aX3) of the Act. See N.LR.B. v. Great
Dane Trailers, Inc., 388 U.S. 26, 33-34 (1967), and N.L.RB.
v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378-381 (1967).
2. The alleged 8(a)(5) and (I) violations
The complaint alleges that since on or about October 1,
1976, Respondent has refused to bargain collectively with
the Union in violation of Section 8(aX5) and (1) of the Act
in that it has failed and refused to meet and bargain with
the Union concerning "the exclusion of union employees
from Respondent's profit-sharing plan," and dealt directly
with employees represented by the Union about their terms
and conditions of employment without consulting with and
in derogation of the Union's status as their exclusive
bargaining agent.
On October i, 1976, Respondent instituted a profit-
sharing plan for its employees which, as implemented,
excluded bargaining unit employees from participation on
the basis of their union membership, that is, employees
covered by Respondent's contract with the Union who are
union members are not eligible, whereas employees who
are not union members are eligible to participate in the
plan. On October 12, 1976, Respondent was served with a
copy of the Union's charge filed in this case which in
pertinent part alleges, in substance, that Respondent failed
and refused to bargain with the Union by establishing and
maintaining a profit-sharing plan for employees represent-
ed by the Union without notice to, or consultation with, the
Union. On November 17, 1976, Union Business Agent
Martinez spoke to Respondent's Plant Manager Losacco
about the exclusion of the Union's members from partici-
pating in the Company's profit-sharing plan. In reply,
Losacco stated he could do nothing about the matter since
the plan was already written and he had no authority to
renegotiate any provisions that might change the current
collective-bargaining contract. He told Martinez to contact
Respondent's president. Based on the foregoing, I am
satisfied Respondent, as alleged in the complaint, refused
to meet and bargain with the Union concerning the
exclusion of employees represented by the Union who are
union members from participation in Respondent's profit-
sharing plan.7 The Union's failure to contact Respondent's
president and renew its bargaining demand does not
detract from this conclusion. During the recently conclud-
ed collective-bargaining negotiations, Plant Manager Lo-
sacco was the Company's chief negotiator and signed the
collective-bargaining contract on its behalf. In addition, he
is one of the plan's administrators and the summary of the
plan distributed to the employees indicated this. Under
these circumstances, the Union had every reason to believe
The stipulation of facts does not set forth the words Martinez used
when he spoke to Losacco about the exclusion of union members from the
plan. However, it is plain from the context in which the conversation took
place - the Union had recently filed an unfair labor practice charge
accusing Respondent of refusing to barbain about the matter - and
Losacco's part of the conversation, that Martinez asked Losacco to bargain
about Respondent's exclusion of union members from its profit-sharing plan
that Losacco, as Respondent's designated agent for the
purpose of collective bargaining, had the authority to meet
with the Union's representative to discuss the exclusion of
union members from participating in Respondent's profit-
sharing plan. Considering Losacco's position and his
statement to Martinez, it was reasonable for the Union to
believe that Respondent regarded the matter of profit
sharing as nonbargainable for the duration of the contract
and that any further effort to persuade Respondent to alter
its position would have been futile.
It is settled that an employer violates Section 8(a)(5) and
(1) of the Act when, absent waiver by the appropriate
bargaining representative of its employees, it refuses to
bargain about the employees' terms and conditions of
employment. This obligation encompasses the subject of an
employee profit-sharing plan,8 and the obligation contin-
ues during the term of an existing collective-bargaining
contract. N L Industries, Inc. v. N.LR.B., 536 F.2d 786
(C.A. 8, 1976), enfg. 220 NLRB 41 (1975); The B. F.
Goodrich Company, 195 NLRB 914 (1972); N.LR.B. v. The
Jacobs Manufacturing Company, 196 F.2d 680 (C.A. 2,
1952). This is especially true where, as here, Respondent
increased the employment benefits of some of the Union-
represented employees by including them in the Respon-
dent's profit-sharing plan. As one court has stated, "if an
employer increases benefits during the term of a contract
he must be prepared to bargain with the Union" N.LR.B.
v. General Electric Company and International Union of
Electrical, Radio, and Machine Workers, AFL-CIO, 418
F.2d 736, 748 (C.A. 2, 1969).
Guided by these principles, I find that when, during the
term of the current collective-bargaining contract, Respon-
dent instituted a profit-sharing plan which covered bar-
gaining unit employees who were not union members, that
Respondent was obligated, upon the Union's request, to
bargain about the exclusion of union members, unless for
the duration of the contract the Union had waived its right
to bargain about the profit-sharing plan. On the question of
whether there was such a waiver, in a situation analagous
to the instant case, a court has recently stated, "absent
waiver manifested by the terms of the contract or by actual
negotiations, the Act requires bargaining upon request on a
mandatory subject during the term of the contract" and
"any waiver . . . must be in 'clear and unmistakable
language.' " N L Industries, Inc. v. N.LRB., 536 F.2d at
789. In the instant case there is a lack of evidence that the
Union clearly and unmistakably waived its right to bargain
about the profit-sharing plan for the duration of the current
contract. Neither the profit-sharing plan nor the subject of
profit sharing was discussed during the negotiations for the
current contract. Indeed, there is no evidence that the
parties had the slightest idea that the profit-sharing plan of
Respondent's parent company would be extended to cover
Respondent's eligible employees. Thus, since "the parties
could not have contemplated this [plan] as a bargaining
and that Losacco understood this was Martinez' purpose in bringing up the
matter.
s Profit-shanng plans are a form of compensation to employees and
hence a mandatory subject of bargaining. The Kroger Company v. N.LR.B.,
401 F.2d 682, 687 (C.A. 6, 1968), and N.LR.B. v. Black-Clawson Company.
210 F.2d 523, 524 (C.A. 6, 1954).
1037
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subject," the Union can hardly be said to have "clearly and
unmistakably waived" its right to bargain about this
subject.9 N L Industries, Inc. v. N.L R.B., supra at 789, enfg.
220 NLRB 41, 43; The B. F. Goodrich Company, supra at
919. In addition, in view of the fact that the profit-sharing
plan is not mentioned in the current contract, was not
discussed during the contract negotiations, and was not in
existence at the time the current contract was negotiated,
there was no waiver by the Union of its right to bargain
about this subject by virtue of the contract's so-called
zipper clause. See Federal Compress & Warehouse Company
v. N.L.R.B., 398 F.2d 631 (C.A. 6, 1968). The language of
this clause, included in article 21 of the contract,10 follows
the language of Section 8(d) of the Act,1 hence, it does not
excuse Respondent's conduct inasmuch as Section 8(d) was
designed for the protection of the party to a contract who
wishes to preserve the status quo as to matters covered
therein, not for the party who wishes to change it. N.L.R.B.
v. General Electric Company, supra at 747-748. Nor does
the zipper clause directly or by implication state that the
Union waives its right to bargain about matters not
referred to or covered by the current contract, even though
such matters may not have been within the parties'
knowledge or contemplation. Compare N.L.R.B. v. Auto
Crane Company, 536 F.2d 310 (C.A. 10, 1976), with Federal
Compress & Warehouse Company v. N.L.R.B., supra at 636
wherein the Court in discussing a zipper clause similar to
the one in this case stated "in order to effectuate the
relinquishment of a collective bargaining right under the
provisions of a collective bargaining agreement, the
language [in the zipper clause] must be clear and
unmistakable. Silence in the bargaining agreement on such
an issue does not meet this test." For the aforesaid reasons
I conclude the Union did not waive its statutory right to
bargain about Respondent's profit-sharing plan.
Based on the foregoing I conclude that by refusing to
bargain about the exclusion of employees represented by
the Union from participating in the company profit-
sharing plan, Respondent has refused to bargain with the
Union in violation of Section 8(a)(5) of the Act and, as
such conduct interferes with, restrains, and coerces the unit
employees in the exercise of their right to bargain
collectively through a representative of their own choosing,
I conclude that Respondent further violated Section 8(aX)(I)
of the Act.
The complaint as described, supra, also alleges that
Respondent has refused to bargain with the Union in
violation of Section 8(a)(5) and (1) of the Act by bypassing
the Union and dealing directly with the bargaining unit
employees concerning their terms and conditions of
9 I have considered that during the recent negotiations the Union
proposed a pension plan. Since no evidence was presented concerning the
substance of the Union's pension proposal, I assume, as is usually the case,
the Union's pension proposal and Respondent's profit-sharing plan provide
different kinds of benefits. Accordingly, "'p]rofit sharing, therefore may be
a subject of collective bargaining, independent of the subject of pensions"
The Kroger Company v. N.LR.B., supra. Also, see Winn-Dixie Stores, Inc.,
224 NLRB 1418, 1418-20(1976).
1' The clause reads:
It is the intent of the parties hereto that this agreement embodies all of
the issues, proposals, and subjects pertaining to wages, hours and other
terms and conditions of employment whether or not specifically herein
employment. I disagree. Respondent instituted a profit-
sharing plan and notified certain employees represented by
the Union that they were eligible to participate, explained
the plan to them and invited them to participate. This
conduct "amounted to no more than notification to the
employees of a predetermined course of action to which
Respondent was committed." Oak Cliff-Golman Baking
Company, 202 NLRB 614, 617 (1973); Johnson's Industrial
Caterers, Inc., 197 NLRB 352, 356 (1972); Huttig Sash and
Door Company, Incorporated 154 NLRB 811, 817 (1965).
Accordingly, I shall recommend that this portion of the
complaint be dismissed.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
i. The Respondent, Western Foundries, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union, International Molders & Allied Workers
Union of North America, Local 188, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All foundry employees employed by Respondent at
its Longmont, Colorado, plant, but excluding office clerical
employees, metallurgists, planners, and supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. The Union is the exclusive representative of all the
employees in the aforesaid unit for the purposes of
collective bargaining within the meaning of Section 9(a) of
the Act.
5. By notifying employees employed in the aforesaid
bargaining unit that they would not be eligible to
participate in Respondent's profit-sharing plan if they
became union members, Respondent violated Section
8(a)(1) of the Act.
6. By promulgating, maintaining, and enforcing a
profit-sharing plan which excluded from participation
therein employees who were members of the Union,
Respondent violated Section 8(a)(3) and (1) of the Act.
7. By refusing to bargain with the Union about the
exclusion from its profit-sharing plan of the employees
referred to in paragraph 6 immediately above, Respondent
violated Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
9. Respondent has not otherwise violated the Act.
set forth and it is agreed that no further proposals for negotiations will
be presented by either party dunng the life of this Agreement, except as
otherwise expressly herein provided.
" Sec. 8(d) in pertinent part reads:
. . . the duties so imposed shall not be construed as requinng either
party to discuss or agree to any modification of the terms and
conditions contained in a contract for a fixed period, if such
modification is to become effective before such terms and conditions
can be reopened under the provisions of the contract.
1038
WESTERN FOUNDRIES, INC.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
I have found that by promulgating, maintaining, and
enforcing a profit-sharing plan excluding from participa-
tion therein otherwise eligible employees who are members
of the Union, Respondent violated employees' Section 7
rights and also unlawfully discriminated against them with
respect to their terms and conditions of employment. I will
accordingly recommend that Respondent be ordered to
amend the summary description of the profit-sharing plan
by the elimination of the provision disqualifying employees
from participation therein because they are members of a
union. I will also recommend that Respondent be ordered
to open accounts in the names of those employees who
would have otherwise become eligible to participate in the
plan subsequent to October 1, 1976,12 and to reinstate in
the plan the accounts of any employees whom Respondent
deemed to have forfeited them as a result of having become
a member of the Union. I further shall recommend that
Respondent make said employees' accounts whole for any
losses of company contributions and the earnings those
accounts would have earned in the same ratio as contribu-
tions and earned income are reflected in the active
employee accounts during the period from October 1, 1976,
to the date Respondent complies with this Order herein.
See Winn-Dixie Stores, Inc., 224 NLRB 1418, 1421-22
(1976), and Dura Corporation, 156 NLRB 285, 289 (1965),
enfd. 380 F.2d 970 (C.A. 6, 1967). Finally, I shall
recommend in connection with the refusal to bargain
found herein that, upon the request of the Union,
Respondent bargain collectively with the Union with
respect to the profit-sharing plan.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 13
The Respondent, Western Foundries, Inc., Longmont,
Colorado, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the International Mold-
ers & Allied Workers Union of North America, Local 188,
or any other labor organization, by promulgating, main-
taining, or enforcing an exclusionary clause which disquali-
fies or excludes from participation in a profit-sharing plan
12 The record, described supra, establishes that but for the discrimination
against them the union m.lembers represented by the Union, who were
otherwise eligible to participate in the profit-sharing plan, would have done
so like their fellow unit employees who were nonmembers. I recognize that
employee participation in the plan is voluntary. However, inasmuch as
participation imposes absolutely no expense to the employee or other
obligation and holds out the possibility of substantial monetary benefits, it is
a fair inference that but for Respondent's unfair labor practices all of the
members of the Union, who were otherwise eligible to participate in the
plan, would have done so just like the nonmembers. In any event, assuming
arguendo that the answer to the question of whether all of the union
members in the unit would have opted to participate in the plan is an
or other employment benefit plan employees who are
members of a union which has a contract with Respondent.
(b) Disqualifying its employees who are represented by
the aforesaid Union from eligibility to participate in its
profit-sharing plan because they are members of the
Union.
(c) Notifying employees represented by the aforesaid
Union they are not eligible to participate in Respondent's
profit-sharing plan because they are members of the
Union.
(d) Refusing to bargain collectively with the aforesaid
Union, as the exclusive representative of all the employees
in the bargaining unit described hereinabove, concerning
unit employees' participation in Respondent's profit-shar-
ing plan.
(e) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Amend the summary description of its profit-sharing
plan by deleting therefrom that portion which disqualifies
or excludes from participation employees employed in the
bargaining unit described hereinabove who are members of
a union.
(b) Reinstate in its profit-sharing plan the accounts of
any bargaining unit employees whose accounts were
forfeited subsequent to October 1, 1976, because they
became members of the Union and open accounts in the
names of those bargaining unit employees who, but for
their membership in the Union, would have otherwise
become eligible to participate in said plan subsequent to
October 1, 1976, and prior to compliance with our Order
herein.
(c) Make whole the employees referred to in subpara-
graph (b) immediately above, by paying into said accounts
a sum of money, the amount of which is to be determined
hereinafter at the compliance stage of this proceeding in
the manner explained in the section of this Decision
entitled "The Remedy."
(d) Upon request, bargain collectively and in good faith
with the above-named Union, as the exclusive representa-
tive of all the employees in the unit described hereinabove,
concerning unit employees' participation in its profit-
sharing plan.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
including those maintained in the administration of
uncertain one, established principles dictate that the burden of the
uncertainty must fairly rest on the wrongdoer, Respondent, rather than with
the union members who were the victims of Respondent's unfair labor
practices. Story Parchment Company v. Paterson Parchment Paper Companv.,
et al, 282 U.S. 555. 563 (1931), and Bigelow et al. v. RKO Radio Pictures. Inc..
327 U.S. 251, 265 (1946).
13 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and 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.
1039
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's profit-sharing plan necessary to analyze the
rights of the employees covered by the terms of this Order.
(f) Post at its place of business in Longmont, Colorado,
copies of the attached notice marked "Appendix."' 4
Copies of said notice, on forms provided by the Regional
Director for Region 27, after being duly signed by
Respondent's representative, shall be posted by Respon-
dent 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
14 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 read "Posted Pursuant
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
1040