Olin Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 707 (N.L.R.B. 1993)

707
312 NLRB No. 118
OLIN CORP.
1 We note that the Respondent did, in fact, offer to provide the
Group Universal Life Plan to the Charging Unions on the same
terms that it was offered to, and accepted by, the other unions. Thus,
we agree with the judge that the other unions were not offered great-
er overall economic packages.
1 The IBEW unit is stipulated to be:
All electricians first class, linemen first class, electrician group
leaders, linemen group leaders, journeymen electrical-electronic
technicians and trainees, journeymen, electrical-electronic techni-
cians, group leaders, and electrician apprentices employed at the
Respondent’s East Alton, Illinois facility, EXCLUDING all em-
ployees in the ZONE 2 Maintenance Department, all office cler-
ical and professional employees, guards, supervisors as defined
by the Act, and all other employees.
The Pipefitters unit is alleged and admitted to be:
All pipefitters first class, pipecoverers (insulators) first class,
pipefitter apprentices, pipecoverer trainees, and pipefitter group
leaders employed at the Respondent’s East Alton, Illinois facil-
ity, EXCLUDING all office clerical and professional employees,
guards, supervisors as defined in the Act, all employees em-
ployed in the powder mill maintenance department, and all other
employees.
Olin Corporation and International Brotherhood of
Electrical Workers, AFL–CIO & CLC, Local
Union 649 and United Association of Journey-
men & Apprentices of the Plumbing & Pipe-
fitting Industry of the United States and Can-
ada, Local #555, AFL–CIO. Cases 14–CA–
22280 and 14–CA–22281
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On July 13, 1993, Administrative Law Judge Claude
R. Wolfe issued the attached decision. The General
Counsel and the Respondent filed exceptions and sup-
porting briefs and the Respondent filed a reply brief.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,
findings, and conclusions1 and to adopt the rec-
ommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Kathy J. Talbott-Schehl and Robert S. Siegel, Esqs., for the
General Counsel.
Diana R. Francis, Esq., for Respondent Olin Corporation.
Barry J. Levine, Esq., for both Charging Party Unions.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This con-
solidated proceeding was litigated before me at St. Louis,
Missouri, on May 11, 1993, pursuant to charges filed by the
Charging Unions and served on Respondent on January 19,
1993, and a consolidated complaint issued on March 1, 1993,
alleging Olin Corporation (Respondent) has violated Section
8(a)(1) and (5) of the National Labor Relations Act (the
Act). Respondent denies it has violated the Act as alleged.
On the entire record, and after considering the demeanor
of the witnesses and the posttrial briefs of the parties, I make
the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
The complaint alleges, Respondent admits, and I find Re-
spondent is a corporation with an office and place of busi-
ness in East Alton, Illinois, manufactures brass and ammuni-
tion products and, during the 12-month period ending Janu-
ary 31, 1993, in the course of conducting this business, sold
and shipped products, goods, and materials valued in excess
of $50,000 directly from its East Alton, Illinois location to
points located outside the State of Illinois. Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
At all times material to this proceeding the Charging Party
Unions have been and continue to be labor organizations
within the meaning of Section 2(5) of the Act.
III. SUPERVISORS AND AGENTS
The following individuals at all times material to this pro-
ceeding held the positions set forth after their respective
names and have been supervisors and agents of Respondent
within the meaning of Section 2(11) and (13) of the Act.
Timothy Sutter—Manager of Employee Benefits
Edward G. Warden—Manager of Labor Relations &
Services
Paul Fultz—Director of Industrial Relations
Randy Timmerman—Associate Director of Industrial
Relations
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Relevant Facts
Both Charging Party Unions (the IBEW and the Pipe-
fitters) have been the designated and recognized collective-
bargaining representatives of units of Respondent’s employ-
ees for many years1 and have long had collective-bargaining
agreements with Respondent covering those employees. The
last such agreements between Respondent and these two
labor organizations became effective on their terms on De-
cember 7, 1992, and expire on December 3, 1995. These cur-
rent agreements were reached after several bargaining ses-
sions in late 1992. The Unions agreed on or about December
4, 1992, to Respondent’s final offer. The Pipefitters and
IBEW agreements are substantially identical with some small
variation not relevant to this proceeding. Respondent pre-
sented the two Unions with typed copies of its final offer
signed by Respondent on December 5, 1992. In addition to
the items ultimately included in the collective-bargaining
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreements ratified by the Unions on December 6, the typed
final offer received by each Union prior to the ratification re-
fers first to the term of the contracts, wages, fringe benefits,
and numerous other items which later appeared in the printed
agreement. In addition, each ‘‘final offer’’ concludes as fol-
lows:
Other Understandings
1. The Company is to print the contract in booklet
form and distribute them as quickly as possible.
2. The Company assures the Union that no greater
overall economic terms will be offered to any other
union at this location during these negotiations. It guar-
antees that, if such should occur, then such terms would
automatically and immediately be made available to
your Union.
X X X X
The above constitutes Olin’s COMPLETE AND
FINAL OFFER for the terms of a new Agreement.
The final offers as written, including the ‘‘Other Understand-
ings’’ language, were presented to the employees for ratifica-
tion. Although the ‘‘Other Understandings’’ were part of the
final offer they do not appear in the printed contracts. Never-
theless they were part of the document considered by the em-
ployees at the ratification meeting. The parties stipulated this
‘‘me too’’ clause has been included in all of Respondent’s
final offers since 1980.
In negotiations with the International Association of Ma-
chinists and Aerospace Workers, AFL–CIO (IAM), Respond-
ent agreed to a Group Universal Life Plan (GULP) which
permitted employees to secure life insurance for their
spouses and children which had not previously been avail-
able. The IAM also proposed a change in the start of work-
week from 8 a.m. Monday to midnight Sunday. Respondent
agreed to this proposal. This posed a problem for Respondent
because the rescheduling of the workweek for the IAM, who
represents about 85 percent of Respondent’s approximately
3400 hourly employees at East Alton, meant that there would
be a problem with different schedules for hourly employees
represented by other unions. Accordingly, Respondent then
proposed the IAM negotiated schedule change to the Inter-
national Chemical Workers (ICW) and the Western Employ-
ees’ Trades Council, AFL–CIO (Trades Council) along with
the GULP program. ICW and Trades Council agreed and
both received GULP. The Charging Unions were not offered
GULP during their negotiations, and I am persuaded they
were not aware it existed until the weekend on which they
ratified their respective agreements with Respondent. At that
time they became aware it had been given to other units.
Edward Warden, manager of labor relations and services,
was authorized by his superior, Director of Industrial Rela-
tions Paul Fultz, on December 5 to offer GULP to the
Charging Party Unions in exchange for agreement on the
workweek change negotiated by the other unions. Warden
communicated this offer to the Charging Unions who (1) re-
jected it as an untimely offer after the agreed cutoff date for
contract proposals, and (2) took the position they were enti-
tled to GULP under the ‘‘me too’’ provision quoted. When
the Charging Party Unions stated an intent to grieve the mat-
ter, they were advised it was not grievable and GULP was
a noneconomic item. This plan is noncontributory from the
employer who merely deducts premiums from the wages of
those employees voluntarily electing for GULP coverage and
then submits those premiums to the agency administering
GULP at no cost to the Respondent. The only cost to Re-
spondent was $4,867.20 initial startup costs for program-
ming.
B. Discussion and Conclusions
The General Counsel argues (1) that the ‘‘me too’’ provi-
sion in Respondent’s final offer was ratified and accepted by
the membership of the Charging Party Unions, (2) the clause
is unambiguous and binding on Respondent, (3) GULP is an
economic item covered by said clause, (4) Respondent vio-
lated the Act by not unconditionally granting GULP partici-
pation to the units represented by the Charging Unions, (5)
the postnegotiation offering of GULP in exchange for the
change in the start of the workweek did not satisfy Respond-
ent’s bargaining obligation, and (6) the conditioning of
GULP on the acceptance of the workweek without prior no-
tice and opportunity to bargain constitutes an unlawful mid-
term modification of the ‘‘me too’’ clause of the final offer.
Respondent’s position is that (1) GULP is a noneconomic
item not covered by the ‘‘me too’’ clause, (2) the provision
refers to ‘‘greater overall economic terms’’ rather than item-
by-item equality among contracts, (3) any ambiguity in the
clause was clarified before ratification, (4) Respondent dis-
charged any obligation it may have had under the ‘‘me too’’
provision by offering GULP to the Charging Party Unions on
substantially the same terms it had offered to the unions
which had received GULP, and (5) an order to require Re-
spondent to provide the Charging Party Unions with GULP
gratis would exceed the Board’s remedial powers, citing
H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970).
Respondent has added the clause in question to each of its
final offers given to unions during negotiations since 1980
and gave the clause a letter and number designation in se-
quence with the lettering and numbering of the preceding
bargained on items set forth in the final offer. The ‘‘me too’’
clause was not a bargained for item. Respondent inserted it
for its own purposes (i.e., (1) to assure a late negotiating
union secures no greater overall economic package than one
negotiating earlier and (2) to forestall unemployment com-
pensation for sympathy strikers) and received nothing from
the Unions in exchange therefor so far as the record shows.
Notwithstanding the fact the ‘‘me too’’ clause was in effect
an unconditional grant, Respondent by adding it to its final
offers with appropriate sequential numbering incorporated it
in those offers which were forwarded to the unions for ratifi-
cation. The resulting collective-bargaining agreements when
reduced to writing do not contain the clause, but neither
party contends the ‘‘me too’’ provision is not in effect. Their
arguments concerning its applicability illustrates they agree
the clause itself is enforceable in appropriate circumstances,
and I conclude it is. The question remaining is whether it is
applicable in the circumstances before me. The answer to
this question depends on whether GULP is an economic item
and, if so, does the wording of the clause require Respondent
to grant GULP coverage to its employees represented by the
Charging Party Unions without any consideration received
therefor or bargaining thereon. I am persuaded, for the fol-
lowing reasons, that GULP is an economic item but that the
709OLIN CORP.
2 Inland Steel Co., 77 NLRB 1, 4 (1948), enfd. 170 F.2d 247 (7th
Cir. 1948), cert. denied 336 U.S. 960 (1949); Central Illinois Public
Service Co., 139 NLRB 1407, 1415 (1962); Postal Service, 302
NLRB 767, 776 (1991).
3 Central Illinois Public Service, supra.
4 Contrary to Respondent, the fact that the discussion of what con-
stituted wages arose in these cases because a question of what were
mandatory subjects of bargaining was at issue does not diminish the
conclusions of the Board and the courts concerning the scope of the
term ‘‘wages’’ as used in the Act.
5 NLRB v. Stackpole Carbon Co., 128 F.2d 188, 191 (3d Cir.
1942).
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
clause does not require Respondent to give it gratis to the
units represented by the Charging Party Unions.
GULP is an economic item. Respondent plainly considers
it an item of value of employees which it can use as a bar-
gaining tool in its efforts to secure a workweek change from
the Charging Party Unions. Moreover, the Board has con-
cluded, with court approval, that all remuneration for serv-
ices performed is encompassed by the term ‘‘wages’’ as used
in the Act.2 A plan such as GULP which is only available
to employees is both a condition of employment and a type
of remuneration proffered as an ‘‘emolument of value’’ ac-
cruing to employees out of their employment relationship
and thus cognizable under the Act as ‘‘wages,’’3 an obvi-
ously economic item.4 This view was shared by the United
States Circuit Court of Appeals for the Third Circuit when
it held more than 50 years ago that insurance rights in sub-
stance are part of a discriminatee’s lost wages.5
The ‘‘me too’’ clause is not ambiguous. It clearly sets
forth a guarantee that if it offers another union ‘‘greater
overall economic terms’’ than those offered the union to
whom the final offer containing the clause is directed, then
those terms will be made available to the union receiving the
final offer. It does not, however, guarantee that every single
economic item proffered one union that has not been offered
another must be offered gratis to the union which had not
been given the offer. The General Counsel has made no
showing that by negotiating GULP with other unions Re-
spondent has offered or granted them ‘‘greater overall eco-
nomic terms’’ than it offered or negotiated with the Charging
Party Unions, nor does a review of the entire record establish
that is the case. Moreover, Respondent proffered
uncontradicted testimony by its director of industrial rela-
tions, Paul Fultz, that the Charging Party Unions were of-
fered economic packages during negotiations exceeding in
overall value those offered other unions.
On the record as a whole, I must conclude that the Gen-
eral Counsel has not carried its burden of showing the prof-
fer of GULP to other unions along with other economic
terms constituted an offer of ‘‘greater overall economic
terms’’ to them than those offered to the Charging Party
Unions. Accordingly, I find the General Counsel has not
made out a prima facie case that, as the complaint alleges,
Respondent violated Section 8(a)(5) and (1) of the Act by of-
fering other unions greater economic terms than those of-
fered the Charging Party Unions, by failing to comply with
the terms of its final offer, nor by refusing to grant GULP
gratis to its employees represented by the Charging Party
Unions. With respect to General Counsel’s contention that
Respondent’s postbargaining efforts to negotiate GULP cov-
erage in exchange for workweek changes constituted an un-
lawful mid-term modification of the ‘‘me too’’ clause in the
final offer, I have found that clause has not been shown to
be applicable to the GULP issue. I further find there is no
basis at all for a conclusion the ‘‘me too’’ clause was unlaw-
fully modified, assuming for the purposes of discussion that
the clause was a contractual agreement subject to the stric-
tures of Section 8(d) of the Act rather than merely a unilat-
eral promise contingent on a future condition and bereft of
any consideration for said promise. With respect to the
postbargaining efforts to bargain for the changed workweek
in exchange for GULP and other considerations, there is no
reason whatsoever to find these efforts were in bad faith or
otherwise inappropriate.
On these findings of fact and conclusions of law and on
the entire record, including the reasons given in this decision,
I issue the following recommended6
ORDER
The complaint is dismissed.