Dura Corp.

National Labor Relations Board - Board Decisions

Dec 22, 1965

156 N.L.R.B. 285 (N.L.R.B. 1965)

DURA CORPORATION 285
Dura Corporation and Local 10, Office Employees International
Union, AFL-CIO. Case No. 7-CA--5080. December 22, 1965
DECISION AND ORDER
On August 26, 1965, Trial Examiner Thomas N. Kessel issued his
Decision on Motion For Summary Judgment in the above-entitled
proceeding, finding that the Respondent had engaged in and was
amgaging 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. Thereafter, the
Respondent filed exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has considered the Trial Examiner's Decision, the excep-
tions, briefs, and the entire record in the case,' and hereby adopts the
findings,2 conclusions, and recommendations of the Trial Examiner.a
[The Board adopted the Trial Examiner's Recommended Order.]
The Respondent 's request for oral argument is hereby denied, as, in our opinion, the
record in this case, including the Respondent ' s answer to the charge , its reply to the order
to show cause , and its exceptions to the Trial Examiner 's Decision and supporting brief,
adequately presents the issues and positions of the parties.
' For purposes of this Decision we have , like the Trial Ei •aminer, accepted as true the
facts presented by the Respondent , and we therefore find that a hearing is unnecessary.
8 Nothing in this Decision shall be construed as precluding the right of either party to
require bargaining at an appropriate time concerning the termination , modification, or
amendment of the profit-sharing plan for salaried office and clerical employees at the
Ypsilanti plant , or the substitution of another therefor.
TRIAL EXAMINER 'S DECISION ON MOTION
FOR SUMMARY JUDGMENT
STATEMENT OF THE CASE
Upon a charge filed February 24, 1965, a first amended charge filed April 9, 1965,
and a second amended charge filed April 22, 1965, by Local 10, Office Employees
International Union , AFL-CIO, herein called the Union , against Dura Corporation,
herein called the Respondent , the General Counsel of the National Labor Relations
Board, herein called the Board , by the Acting Regional Director for Region 7, issued
a complaint dated April 30, 1965, alleging that the Respondent had engaged in con-
duct violative of Section 8(a)(1) and ( 3) and 2 ( 6) and (7) of the Act.
The complaint alleges the Respondent's violation of the Act by its maintenance of
a profit-sharing plan for employees whose benefits , as expressly provided in the plan,
are denied to employees who are members of "a Collective Bargaining Unit recog-
nized" by the Respondent , and by the denial of these benefits to a group of its employ-
ees because they had chosen to be represented in collective bargaining by the Union.
The Respondent 's answer denies generally the commission of the statutory violations
ascribed to it and also avers that in the course of contract negotiations in behalf of
the foregoing employees the Union had proposed a pension plan for them , that the
Respondent had bargained concerning this proposal , that the Union had abandoned
its demand for a pension plan and insisted upon the participation of the represented
156 NLRB No. 29.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the profit-sharing plan, but that while the Respondent continued its
willingness to negotiate a pension plan it refused to accede to the Union's demand
for participation in the profit-sharing plan by these employees. The General Counsel
thereupon filed a motion for summary judgment on the pleadings contending that
the answer admitted the facts pleaded in the complaint constituting the alleged vio-
lation of the Act and that no litigable issued remained requiring a hearing to take
evidence. That motion was referred to Trial Examiner Thomas N. Kessel for ruling.
On June 15, 1965, I ordered the Respondent to show cause why the General Coun-
sel's motion should not be granted. The Respondent filed with me a response to said
order opposing the grant of the motion. Included therein was a statement of facts
which the Respondent maintained were relevant to the issue in the case and which it
would proffer at a hearing. Argument and citation of authorities were submitted with
the Respondent's response. The General Counsel, answering the foregoing response
to the order to show cause, asserted that even if the facts which the Respondent
claimed it would proffer at a hearing were assumed to be true they would not estab-
lish a sufficient defense to the allegations admitted by the answer. Accordingly, the
General Counsel still insisted that no issue has been raised by the pleadings requiring
a hearing and renewed his demand for judgment on the pleadings.
In ruling on the General Counsel's motion I have deemed as true the facts referred
to in the Respondent's answer and in its response to the order to show cause. Upon
consideration of the pleadings and the responses to the foregoing order and the
Respondent's proffer of facts, I conclude that no triable issue remains requiring a
hearing and grant the General Counsel's motion for judgment on the pleadings for
the reasons hereinafter stated.
From the record before me I make the following:
FINDINGS OF FACT
1. COMMERCE FACTS
The Respondent is a Michigan corporation with plants in several States, including
a plant at Ypsilanti, Michigan, where it manufactures automotive hardware and
other automotive parts. In the year preceding issuance of the complaint the Respond-
ent manufactured at and shipped from its Ypsilanti and Adrian, Michigan, plants to
points outside the State, products valued in excess of $1 million. I find from the
foregoing facts that the Respondent is an employer engaged in interstate commerce
within the Act's meaning and that the purposes of the Act will be effectuated by the
Board's assertion of jurisdiction in this case over its operations.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership the Respondent's
employees.
III. THE UNFAIR LABOR PRACTICES
Since 1948 the Respondent has continuously maintained an "Employees' Profit-
Sharing Plan" to which it makes contributions in behalf of its participating employ-
ees. The plan provides for payment of benefits to these employees upon termina-
tion of their employment. Eligibility for participation is extended to and qualified
by the following terms in the plan:
. any salaried employee ... who is not a member of a Collective Bargaining
Unit recognized by [the] Employer.
On October 9, 1964, pursuant to a consent election in Case No. 7-RC-6367, the
Union was issued the Board's certificate declaring it to be the exclusive collective-
'bargaining representative of an appropriate unit of the Respondent's office clerical
employees at its Ypsilanti, Michigan, plant. These are salaried employees within the
plan's meaning and who, before October 9, 1964, by the plan's terms were eligible
to participate in it and to receive its benefits.
. Following the certification the Union bargained collectively with the Respondent
in behalf of the unit, employees, and on March 26, 1965, the parties reached and
signed an agreement. The complaint alleges that in the negotiating meetings the
Union proposed that the eligibility of the unit employees for participation in the plan
be made an express term of the contract-but that.the Respondent rejected this pro-
posal on the ground that unit employees were excluded by the terms of the plan from
participation because they have become members of a collective-bargaining unit
recognized by the Respondent. The complaint further alleges that the Respondent
DURA CORPORATION 287
took this position at the January 25, 1965, bargaining meeting and has since then
refused to permit participation by the unit employees in the plan because they had
selected the Union as their collective-bargaining representative.
The Respondent by its answer and response to the order to show cause does not
deny that it rejected the Union's proposal for inclusion in the contract of a term for
participation in the plan by the unit employees. It relates, however, that its rejection
of the proposal came after the Union's initial demand for a pension plan for these
employees and resultant bargaining followed by the Union's abandonment of this
demand with insistence upon the plan's benefits for the employees as a term of the
contract. The details of these negotiations, as the Respondent asserts them, are set
out in its response to the order to show cause as follows:
Following certification by the Board and during the negotiations which led to
a collective bargaining agreement, the union made comprehensive contract and
economic proposals. Included in the union proposal was a request for a pension
plan. During negotiations, the company representatives discussed with union
representatives the terms of a proposed pension plan including proposed benefits
and estimated costs in connection therewith. During negotiations the company
offered to put into effect a pension plan containing certain benefits and the union
made certain counter proposals with respect to such a plan. At a subsequent
meeting, the company agreed to the counter proposals which had been made
by the union with respect to a pension plan, but therefatre the union stated it
no longer desired a pension plan and instead insisted that employees in the bar-
gaining unit should remain in the company's profit sharing plan. The company
refused to agree to this union proposal. All other economic and contractual
matters were ultimately resolved, but the union refused further discussion of
a pension plan and stated that it would file an unfair labor practice charge against
the company because the company was unwilling to amend its profit sharing
plan to making employees in the bargaining unit eligible participants.
As to the complaint allegation that it has since January 25, 1965, refused to permit
participation in the plan by the unit employees there is admission of such refusal by
the Respondent's answer but a denial that the selection by the unit employees of the
Union was the reason therefor. Instead, the answer states, the denial of participation
was attributable in accordance with the plan's provisions to the loss of eligibility by
the Ypsilanti employees when they became members of the recognized bargaining unit.
To support the argument presented in its response to the order to show cause that
neither the plan nor the exclusion of the unit employees under the terms of the plan
are violative of the Act, the Respondent proffered certain facts which it contends are
relevant to a consideration of the issues raised by the pleadings and which it would
have introduced as evidence at a hearing. In effect, these facts are proffered as con-
text for the Respondent's admitted conduct to dissipate the unlawful effects attributed
by the General Counsel to this conduct. This is the Respondent's proffer:
[The Respondent] maintains 13 manufacturing plants in the States of Michi-
gan, Ohio, Kentucky, South Dakota, Illinois, Colorado, Indiana and Oregon.
At its principal office no manufacturing operations take place, and only salaried
employees are employed. At each of its plant locations it employs both salaried
office and clerical workers and hourly paid production and maintenance employ-
ees. At many plants it also employs salaried technical and professional
employees.
1856 production and maintenance employees employed in ten plants are rep-
resented in collective bargaining negotiations by five different unions comprising
12 separate bargaining units. For each collective bargaining unit a separate
union collective bargaining agreement is in effect. Seven collective bargaining
agreements provide pension benefits covering 1,704 employees. One plant
employing 54 production and maintenance employees has a pension plan with-
out a collective bargaining agreement with a union. This plan was instituted
when the company was purchased on September 1, 1964.
The only salaried employees represented by a union are the 28 office and
clerical employees of the Motor State Products Division at Ypsilanti, Michigan.
(These are the employees herein involved who selected the Union as their col-
lective bargaining representative.)
The General Counsel contends, in effect, that the facts of the instant case do not
differ significantly from those of other cases where the Board held that an employer's
maintenance of a profit sharing plan whose terms exclude from participation therein
employees who are represented by a labor organization is violative of the Act. Thus,
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Jim O'Donnell, Inc., 123 NLRB 1639, such conduct was held violative of Section
8(a)(1) and (3) of the Act, and in Melville Confections, Inc., 142 NLRB 1334,
enfd. 327 F. 2d 689 (C.A. 7), cert. denied 377 U.S. 933, and in Channel Master
Corporation, 148 NLRB 1343, said conduct was held violative of Section 8(a) (1) of
the Act.
The Respondent contends that the foregoing cited cases are inapposite for in each
of those cases the employees covered by a profit-sharing plan were all employed at
a single plant in one location, whereas, here the covered salaried employees are
employed in numerous plants in several States. This circumstance and the fact that
the represented employees at Ypsilanti number only 28 of the Respondent's 1,066
salaried employees at all of its plants are viewed by the Respondent as insuperable
obstacles to participation in the plan by these 28 employees. The Respondent
observes that if these employees were to continue their participation it would be obli-
gated to bargain with the Union concerning any changes in the plan which the Union
were to seek or which the Respondent might itself wish to make. As the Respondent
sees it, such negotiated changes must necessarily affect the plan's total coverage.
Should this occur, the Respondent would be bargaining with the Union in behalf of
conditions affecting 1,038 salaried employees whom the Union does not represent.
This says the Respondent, is not only impractical but unlawful. Moreover, the
Union's insistence upon negotiating changes for the 28 Ypsilanti employees could
occur in numerous other situations where other labor organizations might become rep-
resentatives of unit of salaried employees at the Respondent's various locations.
Bargaining with all these unions concerning changes each might propose in the plan
could result in "unresolvable disagreements." This would defeat the Respondent's
intent to maintain a single plan for all covered employees. The Respondent would
also "lose completely its right to amend the Plan."
The Respondent further argues that neither the terms of the plan nor its administra-
tion in the special circumstances described by the Respondent's proffer was intended
to or has the effect on employees of encouraging or discouraging their membership
in a labor organization. This, states the Respondent, is revealed by the fact that its
production employees are represented by several.unions with whom it is required to
bargain concerning profit sharing, pensions, or other economic benefits. The Respond-
ent claims that its bargaining history with these unions "representing employees in
various bargaining units makes clear that employees are free to select a union as
bargaining representative without detrimental economic effect."
The main thrust of the Respondent's arguments appears to be that unless the
Respondent retains the right unilaterally to continue the plan with or without change
the variations in the plan which might result from collective bargaining with the
Union for the Ypsilanti employees or with any other labor organization representing
a group of its salaried employees would destroy the plan's present uniformity and
-create chaos in its administration. This argument and the suppositions on which it
is based carries no logical persuasion. It assumes contingencies with which there is
no present need to cope. There is no need for preoccupation with the consequences
•envisaged by the Respondent should the Union demand alterations in the plan just for
the Ypsilanti employees. Such demands were not made. All that is presently
involved is the Union's demand that the represented Ypsilanti employees be accorded
the same rights for participation in the plan as the Respondent extends to its other
employees who, like the Ypsilanti employees, are salaried, and the denial to these
employees of such rights by the plan's terms and their application by the Respondent
simply because they have selected the Union as their collective bargaining represent-
ative. These facts are not altered by the circumstances concerning the Respondent's
multiplant structure and the dispersal of other salaried employees among its several
plants. Nor is the situation significantly changed by the Respondent's history of bar-
gaining with several unions representing its production employees. The fact remains
that the plan discriminatorily excludes a particular group of employees from sharing
its benefits because they have become members of a collective-bargaining unit. This,
in other words, means they have been excluded by the plan and its application by the
Respondent because they chose to be represented in collective bargaining by the
Union. Here, no less than in the above-cited cases, the plan's discriminatory terms
and their application by the Respondent are inherently violative of Section 8 (a) (1)
of the Act.
Whether the Respondent actually intended to encourage or discourage membership
in a labor organization by its employees by the commission of the foregoing conduct,
or whether such conduct had such effect upon employees is immaterial to the finding
of statutory violation hereinabove made. As stated by the Court of Appeals for the
Seventh Circuit in the Melville Confections case, supra, terms such as those which are
DURA CORPORATION 289
present in the Respondent 's plan are per se violative of Section 8 (a)1() of the Act
and "no independent evidence of additional acts of the company either directly
establishing animus or specific intent to abrogate employee Section 7 rights, or from
which such animus or intent might reasonably be inferred , [ is] necessary to support a
finding of a Section 8 (a) (1) violation ." Consistent with the Board's Jim O'Donnell
holding , supra , I find that the Respondent 's disqualification of its employees from par-
ticipation in the plan 's benefits because they had selected the Union as their collec-
tive-bargaining representative was also violative of Section 8(a)(3) of the Act.
The foregoing findings of statutory violation do not preclude the Respondent's good
faith insistence upon the preservation of the plan 's uniformity and from the advance-
ment of arguments , such as those presented here, to support its insistence against
changes proposed by the Union or any other labor organization representing segments
of the Respondent 's total complement of salaried employees . These positions and
arguments , however, are more appropriate for expression at the bargaining table.
They are not valid defenses to the Respondent 's discriminatory exclusion of the Ypsi-
lanti employees from the Plan 's coverage.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection 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.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices
I will 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 maintaining and enforcing the provision in its profit -sharing
plan for salaried employees excluding from participation therein otherwise eligible
employees who become members of a collective-bargaining unit, the Respondent
violated Section 7 rights of its employees and also unlawfully discriminated against
them with respect to their terms and conditions of employment . I will accordingly
recommend that the Respondent be ordered to amend the foregoing profit-sharing
plan by the elimination of the provision disqualifying employees from participation
therein because they have become members of a collective -bargaining unit or because
they have chosen to be represented by a labor organization in collective bargaining
in an appropriate unit. I will also recommend that the Respondent be ordered to
restore and permit participation in the profit -sharing plan to all old and new salaried
employees who were or have been so disqualified , with all the interest , emoluments,
rights, and privileges in said plan that would have accrued to them but for such
disqualification.
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. Dura Corporation is an employer within the meaning of Section 2 ( 2) of the
Act and is engaged in commerce within the meaning of Section 2 ( 6) and (7) of
the Act.
2. Local 10, Office Employees International Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By maintaining and enforcing a profit-sharing plan for its salaried employees
which excludes from participation therein those employees who become members of
a collective -bargaining unit or select a labor organization as their collective -bargaining
representative in an appropriate unit the Respondent has intervened with, restrained,
and coerced its employees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act and has discriminated against employees with respect to their terms
and conditions of employment in violation of Section 8 (a) (1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, and pursuant to Section 10(c) of the National
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Act, as amended, I recommend that Respondent, Dura Corporation,
Ypsilanti, Michigan, its officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Maintaining and enforcing a profit-sharing plan for its salaried employees
which contains a provision excluding employees from participation therein because
they become members of a collective-bargaining unit or choose to be represented by
a labor organization in collective bargaining in an appropriate unit.
(b) Disqualifying its employees from eligibility to participate in a profit-sharing
plan for salaried employees because they become members of a collective-bargaining
unit or choose to be represented by a labor organization for the purposes of collective
bargaining in an appropriate unit.
(c) In like or related manner interfering with, restraining, or coercing its employ-
ees in the exercise of their right to self-organization, to form, join, or assist Local 10,
Office Employees International Union, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from engaging in such activities except to the extent that
such rights may be affected by an agreement requiring membership in a labor orga-
nization as a condition of employment as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act.
(a) Amend its profit-sharing plan for.salaried employes by the elimination there-
from of the provision excluding from participation therein of employees who become
members of a collective-bargaining unit, or who select a labor organization to repre-
sent them in collective bargaining in an appropriate unit.
(b) Restore to and permit participation in its profit-sharing plan for salaried
employees by all old and new salaried employees who have been disqualified for
participation in the plan because they have become members of the collective-
bargaining unit represented by the Union with all the interest, emoluments, rights, and
privileges in said plan that would have accrued to them but for such disqualification.
(c) Post at its plan in Ypsilanti, Michigan, copies of the attached notice marked
"Appendix." 1 Copies of said notice, to be furnished by the Regional Director for
Region 7, shall, after being duly signed by an authorized representative of the
Respondent, be posted by it immediately upon' receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Upon request, make available to the Board or its agent for examination or
copying all payroll records, social security payment records, timecards, and all other
records maintained in the administration of the Respondent's profit-sharing plan for
salaried employees necessary to determine the rights of employees thereunder.
(e) Notify the Regional Director for Region 7, in writing, within 20 days from
the receipt of this Decision, and what steps it has taken to comply herewith.
i In the event that this Recommended Order shall be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
2In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 7, in writing, within
10 days from the date of receipt of this Order, what steps the Respondent has taken to
comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the polices of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL amend our profit-sharing plan for salaried employees by the elimina-
tion therefrom of the provision which excludes from participation therein any
salaried employee who becomes a member of a collective-bargaining unit rec-
ognized by us.
VERA LADIES BELT & NOVELTY CORP., ETC. 291
WE WILL restore to and permit participation in our profit-sharing plan for
salaried employees by all old and new salaried employees who were or have
been disqualified from participation therein because they have become members
of a collective-bargaining unit recognized by us or have chosen to be represented
for collective bargaining in an appropriate unit by Local 10, Office Employees
International Union, AFL-CIO.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of their rights of self-organization, to form labor orga-
nizations, to join or assist Local 10, Office Employees International Union,
AFL-CIO, or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities except to the extent that such rights may be
affected by an agreement requiring membership in a labor organization as a con-
dition of employment as authorized by Section 8(a)(3) of the Act.
DURA CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 963-9330.
Vera Ladies Belt & Novelty Corp . and Nandor Mayer and Local
29, Retail , Wholesale & Department Store Union, AFL-CIO,
Party to the Contract
Local 29, Retail , Whole & Department Store Union , AFL-CIO
(Vera Ladies Belt & Novelty Corp. ) and Nandor Mayer and
Vera Ladies Belt & Novelty Corp., Party to the Contract.
Cases Nos. 2-CA-10243 and 2-CB-4110. December 23,1965
DECISION AND ORDER
On September 14, 1965, Trial Examiner Abraham H. Mailer issued
his Decision in the above-entitled proceedings, finding that Respond-
ents had engaged in certain unfair labor practices within the meaning
of the National Labor Relations Act, as amended, and recommending
that they cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. Thereafter,
Respondent Vera Ladies Belt & Novelty Corporation, herein called
Respondent Vera, filed certain exceptions to the Decision and a sup-
porting brief, and Respondent Local 29, Retail, Wholesale & Depart-
ment Store Union, AFL-CIO, herein called Respondent Local 29,
filed an answering brief to Respondent Vera's exceptions.'
1 No exceptions were directed to the unfair labor practice findings of the Trial Examiner.
156 NLRB No. 34.
217-919-66-vol. 156-20