Quaker Tool & Die, Inc.

National Labor Relations Board - Board Decisions

Feb 29, 1968

169 N.L.R.B. 1148 (N.L.R.B. 1968)

1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quaker Tool & Die, Inc. and United Steelworkers of
America , Sub-District 5, AFL-CIO. Cases
8-CA-4570' and 8-CA-4710
February 29, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On October 19, 1967, Trial Examiner Frederick
U. Reel issued , sua sponte, an Order in the above-
entitled proceeding, severing for decisional pur-
poses Case 8-CA-4570 from Case 8-CA-4710
with which it had been consolidated, and further
recommending that consideration of Case
8-CA-4710 be suspended indefinitely. Thereafter,
on November 20, 1967, the Trial Examiner issued
his decision in Case 8-CA-4570, finding that
Respondent had not engaged in unfair labor prac-
tices warranting the issuance of a remedial order,
and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the General Coun-
sel filed a request to appeal the Trial Examiner's
Order of Severance, exceptions, and a supporting
brief; the Charging Party filed exceptions and a sup-
porting brief; and the Respondent filed cross-excep-
tions and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Order of Severance, his Decision,
the General Counsel's request to appeal, the excep-
tions, cross-exceptions and briefs, and the entire
record in these cases and hereby adopts the
findings, conclusions , and recommendations of the
Trial Examiner only to the extent consistent
herewith.
1. Concerning the General Counsel's request to
appeal and exceptions to the Trial Examiner's ac-
tion in severing the consolidated cases, it appears
that the complaint in Case 8-CA-4570 alleged in
substance that Respondent violated Section 8(a)(5)
of the Act by unilaterally announcing to its em-
ployees the establishment of a profit-sharing and
retirement plan, while the complaint in Case
8-CA-4710 alleged that Respondent violated Sec-
tion 8(a)(5) by unilaterally instituting this plan. At
the hearing evidence was adduced concerning the
' For the reasons hereinafter stated these cases shall be reconsolidated
for decision herein.
2 Quaker Tool & Die, Inc., 162 NLRB 1307, Case 8-CA-3758.
issues raised in both complaints and all matters
therein were fully litigated. After the close of the
hearing and before issuing his decision, the Trial
Examiner on his own initiative severed the two
cases. In his request to appeal and exceptions, the
General Counsel disputes the Trial Examiner's rul-
ing in this regard. We find merit in the General
Counsel's position.
The allegations in both complaints relate to es-
sentially the same subject matter- unilateral action
with respect to Respondent's profit-sharing and
retirement plan -and the remedy under either com-
plaint would be the same. Furthermore, as on the
facts fully litigated at the hearing, disposition of
both complaints would depend on application of
uniform principles, we find, contrary to the Trial
Examiner, that severance does not effectuate the
policies of the Act and is inappropriate herein. Ac-
cordingly, we shall reverse the Trial Examiner's
Order of Severance, and order reconsolidation of
the cases.
2. As indicated, the Trial Examiner, having
severed Case 8-CA-4710, dismissed the 8(a)(5) al-
legation in Case 8-CA-4570. In doing so, he
reasoned that the existence of a duty to bargain
herein depends upon enforcement by the Sixth Cir-
cuit Court of Appeals of the bargaining order issued
by the Board in another case involving Respond-
ent,2 and since court enforcement of that order
would redress any violation to be found herein, is-
suance of a remedial order in this case would serve
no useful purpose. We disagree.
The fact that an employer is contesting in a court
of appeals the validity of a Board determination that
it has the duty to recognize and bargain with a labor
organization should not be viewed as a bar to the
latter's invoking the Board's remedial processes
where the employer, as here, has allegedly engaged
in subsequent acts derogating from its duty to bar-
gain in good faith which are different in nature from
those covered by the existing Board order. As the
unilateral action which is the subject of the instant
complaints has a tendency to undermine and
disparage the Union in the eyes of employees in the
bargaining unit, it is our opinion that issuance of an
order to offset the effects of any unlawful action by
Respondent will effectuate the purposes of the Act.
Accordingly, we reject the Trial Examiner's ground
for dismissal of the 8(a)(5) allegation.
Turning to the merits, the undisputed facts show
that in early March 1967 Respondent, without con-
sulation with the Union, called upon an accountant
to formulate a profit-sharing and retirement plan.
On March 11, 1967, Respondent, without consult-
ing the Union, posted a notice announcing
establishment of the plan effective September 1,
1966, with the provision that employees covered by
a -collective-bargaining agreement were ineligible
for the plan. On June 19, 1967, the Respondent uni-
laterally posted the same notice without the exclu-
169 NLRB No. 166
QUAKER TOOL & DIE, INC.
sionary language and, on July 10, 1967, the plan
was made effective without consultation with the
Union though coverage was extended to bargaining
unit employees, as well as others. Accordingly, as
profit-sharing and retirement benefits are mandato-
ry subjects of collective bargaining and as Respond-
ent did not notify, bargain, or consult with the
Union before either announcing or implementing its
plan, we find that Respondent thereby violated Sec-
tion 8(a)(5) and (1) of the Act.
3. The Trial Examiner found that the original an-
nouncement of the new profit-sharing and retire-
ment plan was independently violative of Section
8(a)(1) insofar as it excluded employees "covered
by a union collective bargaining agreement." In
adopting the Trial, Examiner's finding in this regard,
it is noted that where, as here, the Respondent is re-
sisting collective bargaining with the statutory
representative of a segment of employees, while
having no collective-bargaining relationship with
respect to any other employees in the plant, the ex-
clusionary language in the first announcement could
only have been regarded by employees as a clear in-
dication that union representation would result in
less favorable working conditions. Although the ex-
clusionary language was deleted from the second
announcement, and the Trial Examiner relied on
this factor in recommending against issuance of a
remedial order, it is,our opinion that mere deletion
of the unlawful language was insufficient to neutral-
ize the continuing coercive and undermining effects
of the unfair labor practices. Accordingly, as further
remedial provisions 'are necessary to dispel the im-
pression that employees, merely by virtue of their
union affiliation, in the future might be dealt with by
Respondent in less favorable terms than unor-
ganized employees, we find, contrary to the Trial
Examiner, that an appropriate order remedying the
violation is warranted to effectuate the policies of
the Act.
4. We agree with the Trial Examiner, for the
reasons stated in his Decision, that Respondent's
announcement of the new benefit plans did not vio-
late Section 8(a)(3) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order that
it cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of
the Act. To remedy its refusal to bargain, we shall
order that Respondent cease and desist from refus-
ing to bargain with the Union with respect to the
profit-sharing and retirement plan or any other term
and condition of employment, by unilaterally an-
nouncing or implementing such a plan or changing
any term or condition of employment of its em-
ployees in the appropriate bargaining unit.
CONCLUSIONS OF LAW
1149
1. The Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
Quaker Tool & Die, Inc., including truckdrivers,
but excluding office clerical employees and guards,
professional employees, and supervisors as defined
in the Act, constitute a unit appropriate for pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material, the Union has been the
exclusive certified representative of the employees
in the aforesaid unit for the purposes of collective
bagaining with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment.
5. By unilaterally announcing and implementing
the profit-sharipg and retirement plan, Respondent
has engaged in&nd is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (5)
of the Act.
6. By announcing new benefits in a manner in-
dicating that employees represented by a union will
enjoy less favorable terms and conditions of em-
ployment than unrepresented employees, Respond-
ent has interfered with, restrained, and coerced its
employees in their exercise of the rights guaranteed
in Section 7 of the Act and thereby violating Sec-
tion 8(a)(1) thereof.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Quaker Tool & Die, Inc., Salem, Ohio, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the
Union with respect to the profit-sharing and retire-
ment plan or any other term or condition of employ-
ment by unilaterally announcing or implementing
such a plan or changing any term or condition of
employment of its employees in the appropriate
bargaining unit in derogation of the rights of the
Union, or any other labor organization which em-
ployees may select as their exclusive bargaining
representative.
(b) Announcing any profit-sharing and retire-
ment plan or any other new benefits in a manner
constituting interference, restraint, and coercion of
the employees in their exercise of the rights guaran-
teed in Section 7 of the Act.
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any like or related manner interfering with
the rights of employees guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which
is necessary to effectuate the policies of the Act:
(a) Bargain collectively with the Union before
modifying or changing wages, hours, or other terms
and conditions of employment of employees in the
appropriate unit described above.
(b) Post at its plant in Salem Ohio, copies of the
attached notice marked "Appendix."3 Copies of
said notice, on forms provided by the Regional
Director for Region 8, after being duly signed by an
authorized representative of the Respondent, shall
be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 8, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the General Coun-
sel's request to appeal be granted, that the appeal be
granted, and accordingly that Case 8-CA-4570 and
Case 8-CA-4710 be, and they hereby are, recon-
solidated.
CHAIRMAN MCCULLOCH, concurring and dissent-
ing:
I concur in my colleague's decision to reverse the
Trial Examiner's Order of Severance and to order
reconsolidation of these cases, as well as in their
determination that the Respondent's announcement
and implementation of the profit-sharing and retire-
ment plan violated Section 8(a)(5) and (1) of the
Act. I agree also that the announcement of the plans
did not violate Section 8(a)(3).
For the reasons stated by the Trial Examiner,
however, I would adopt his recommendation that
the complaint in Case 8-CA-4570 be dismissed,
and for the same reasons I would also dismiss the
complaint in Case 8-CA-4710, here reconsolidated
with it.
WE WILL NOT refuse to bargain collectively
with United Steelworkers of America, Sub-
District 5, AFL-CIO, by unilaterally announc-
ing or implementing any profit-sharing or
retirement plan or changing any other term or
condition of employment of any employee in
the appropriate bargaining unit in derogation of
the rights of the Union.
WE WILL NOT announce a profit-sharing and
retirement plan or any other new benefits in a
manner leading our employees to believe that
union representation will result in less favor-
able terms and conditions of employment.
WE WILL NOT engage in any like or related
conduct which interferes with, restrains, or
coerces you in the exercise of the rights
guaranteed you in Section 7 of the Act.
WE WILL bargain collectively with the Union
before modifying or changing wages, hours, or
other terms and conditions of employment of
employees in the appropriate unit described
below:
The appropriate unit is:
All production and maintenance em-
ployees of Quaker Tool & Die, Inc., in-
cluding truckdrivers, but excluding office
clerical employees and guards, profes-
sional employees, and supervisors as
defined in the Act.
Dated By
QUAKER TOOL & DIE,
INC.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive 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 provisions, they may
communicate directly with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue,
Cleveland, Ohio 44115, Telephone 621-4465.
-'In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for "a Decision and Order"
the words "a Decree of the United States Court of Appeals, Enforcing an
Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner : This proceeding,
heard at Salem , Ohio , on October 17, 1967,1 originated
with a charge filed the preceding April 18, a complaint is-
sued June 2, and an answer filed June 15. The complaint
alleged that on or about March 11, the Respondent,
herein called the Company, had notified its employees
that it had instituted a noncontributory profit-sharing and
retirement plan available to all employees "except those
All dates herein refer to the year 1967, unless otherwise indicated.
QUAKER TOOL & DIE, INC.
covered by a union collective bargaining agreement." A
few weeks prior thereto, on January 30, the Board had is-
sued its Decision and Order in Case 8-CA-3758 (162
NLRB 1307) directing, inter alia, that the Company bar-
gain with the Charging Party, herein called the Union,
upon the latter's request. Accordingly, the complaint in
the instant case alleged that, by posting the March 11 an-
nouncement without notice to or bargaining with the
Union, the Company violated Section 8(a)(5) of the Act,
and that the terms of the announcement violated Section
8(a)(1) and (3) of the Act. The Company in its answer ad-
mitted the distribution of a memorandum corresponding
to the notice attached in the complaint, but averred that
it had "not implemented such plan and that it had no in-
tention of implementing such plan under the conditions
and terms announced in such memorandum." The answer
admitted that the Company had not given notice to, or
bargained with, the Union before distributing the
memorandum in question, but averred that the Company
was under no duty to bargain with the Union and that the
Board's order in the prior case was "contrary to law and
without effect."
On August 1, the Union filed a charge against the same
company in Case 8-CA-4710, and issue was thereafter
joined in that case by a complaint issued September 14,
and an answer filed September 25. The complaint in that
case alleged that the Company had "instituted and inau-
gurated a noncontributory profit-sharing and retirement
plan, the benefits of which are available to all of its em-
ployees" without notice to or bargaining with the Union,
notwithstanding the Board's Order in Case 8-CA-3758.
In the answer the Company admitted that it had instituted
the plan in question without notice to, or bargaining with
the Union, but again averred that it was under no duty to
bargain as the Board's Decision directing it to do so was
contrary to law and without effect.
By order dated September 14, the Regional Director
consolidated the two pending cases which came for hear-
ing before me on October 17. A few days prior to the
hearing, the General Counsel, on behalf of the Board,
filed a petition in the United States Court of Appeals for
the Sixth Circuit requesting enforcement of the Board's
Order in Case 8-CA-3758. After the conclusion of the
hearing before me, I issued an order on October 19,
severing the two, cases before me and announcing that
Case 8-CA-47 10 would be "held in suspended status in-
definitely unless the General Counsel after final judicial
disposition of Case 8-CA-3758 ... moves to reactivate
Case 8-CA-47 10 and shows cause for so doing."2
Upon my consideration of the entire record and of the
briefs filed by General Counsel and by the Company, I
make, in Case 8-CA, 4570, the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company, an Ohio corporation engaged at Salem
2 The reason for the severance and suspension of Case 8-CA-4710 is
that the sole violation alleged in that case is a failure to bargain If the
Board's Order in the earlier case is set aside, then the Company was under
no duty to bargain and Case 8-CA-4710 must be dismissed. If the
Board 's Order in the prior case is enforced , the relief there obtained would
appear to subsume any relief to be granted in Case 8-CA--4710 as I was
informally advised (in an off-the-record colloquy in the presence of all
1151
in the manufacture and sale of dies, tools, and fixtures,
annually ships to points outside the State goods valued in
excess of $50,000, and is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICE
A. The Notice of March 11, 1967
On March 11, the Company, without notice to or bar-
gaining with the Union, distributed to each of its em-
ployees (including those within the bargaining unit found
appropriate by the Board in its Decision and Order issued
January 30 as well as those outside that unit)3 a four-page
document captioned "Employees' Profit Sharing and
Retirement Plan." The document recited, inter alia, that
the plan was effective as of September 1, 1966, and that
each employee of the Company "except those covered by
a union collective bargaining agreement" could par-
ticipate in the plan. So far as the record shows, none of
the Company's employees were "covered by a union col-
lective bargaining agreement" at the time the document
was distributed, but the Union had made a bargaining
request which the Company had rejected with the ex-
planation that it intended to challenge the Board's order
in the courts.
B. The Notice ofJune 19, 1967
Notwithstanding the circulation of this notice in
March, the profit-sharing plan was not fully executed
until July 10, 1967, at which time it was made effective as
of September 1, 1966. Meanwhile, on June 19, 1967, the
Company had posted another notice on its bulletin board.
This notice was identical in all respects to the notice of
March 11, except that it omitted the words "except those
covered by a union collective bargaining agreement." The
phrase in question was included in the March announce-
ment at the suggestion of one Robert Barr, a certified
public accountant, who drafted the profit-sharing plan,
and who testified that he suggested that language, which
he had used in other plans he had drafted, "to prevent
management or the company from having to incur dupli-
cation of a contribution for the same employee." Henry
Ickes, the president of the Company, testified as follows
with respect to the exclusion of the phrase in question
from the June notice:
... when we hit a nerve with this first wording we
got in touch with Ron4 and he suggested immediately
we reword it and we put that on the bulletin board
and circled this and said this is how it will read.
C. Concluding Findings
General Counsel alleges that the Company violated
Section 8(a)(5), (3), and (1) by promulgating the March
notice. Whether the conduct violated Section 8(a)(5)
counsel) that the General Counsel and Charging Party did not seek a
"rollback" order, rescinding the profit-sharing plan.
3 The unit consisted of all production and maintenance employees but
excluded office clerical employees, guards, professional employees, and
supervisors as defined in the Act
' The reference presumably is to Company Counsel Ronald Coleman
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turns on whether the Board's order in Case 8-CA-3758
was valid. Of course, the Board's decision in that case is
binding upon me, and I have no reason to doubt its validi-
ty. But the issue here tendered by General Counsel is
identical to that tendered in Case 8-CA-4710, which I
have suspended. I see no purpose to be served in a mul-
tiplicity of orders based on the Company's unilateral ac-
tion. Moreover, to issue any order based on such uni-
lateral action, or indeed to insert any references to the
Union's bargaining rights in either a remedial notice or a
remedial order, would automatically require the Com-
pany to file exceptions to the order and would preclude
voluntary posting of any notice to protect and preserve
the Company's position in the Court of Appeals in Case
8-CA-3758. Hence, even if I were to find violations of
Section 8(a)(3) or (1), 1 would deem it inadvisable to in-
corporate in a remedial order or notice any reference to
the 8(a)(5) violation, as this would ensure that the case
would be further litigated and would accomplish no ulti-
mate purpose that will not be as well served by the en-
forcement of the Board's Order in Case 8-CA-3758 and,
if the matter is reactivated, in Case 8-CA-47 10. 1 there-
fore recommend dismissal of the 8(a)(5) allegations of the
complaint to avoid a multiplicity of suits as that allegation
is sufficiently embraced by the proceedings in Cases
8-CA-3758 and 8-CA-4710, the latter of which is
suspended.
I find no discrimination violative of Section 8(a)(3). No
employee suffered any loss or was treated differently
from any other employee because of the language of the
March notice. The notice recited that employees covered
by a union collective-bargaining agreement were not eligi-
ble for the plan. But no employees were so covered and,
hence, no one was excluded from the plan. This is no
more a violation of Section 8(a)(3) than is a threat to
discharge an employee if he joins a union. Gibbs Cor-
poration , and Gibbs Shipyards, Inc., 142 NLRB 1204.
The notice, when posted, violated Section 8(a)(1) in
that it conditioned eligibility for the plan on the surrender
of Section 7 rights. See Dura Corporation v.
N.L.R.B.,380 F.2d 970 (C.A. 6); Melville Confections,
Inc. v. N.L.R.B., 327 F.2d 689 (C.A. 7).5 The Company,
however, to some extent, at least, has remedied the situa-
tion by reposting the notice without the offensive lan-
guage.
No doubt a cease-and-desist order could issue to
remedy the violation of Section 8(a)(1), but on this record
it would appear that such corrective action is not
required. See Stahl-Meyer, Inc., 138 NLRB 265, 268,
and cases there cited. So far as a remedial notice is con-
cerned, a proper notice has already been posted.
Moreover, to require the posting of a notice which would
entail recognition of the Union, would simply head this
litigation to the already overburdened Board and court,
with ultimate enforcement in a period of 2 to 3 years ac-
complishing no good purpose with respect to this viola-
tion. Further, to post a notice which recited that the em-
ployees' right to participate in a profit-sharing plan did
not depend on their not being subject to a collective-bar-
gaining agreement could prove somewhat misleading, for
if the Union eventually negotiates a separate profit-shar-
ing plan with the Company, there would be nothing illegal
in the Company's having another plan for office clerical
employees or others outside the bargaining unit.
In short, this litigation should stop here. To protract it,
in my judgment, would not effectuate the policies of the
Act, but would only burden the Board, its attorneys, and
the courts, with a matter which is, in part, controlled by
other pending litigation and, in part, involves a violation
since cured.
CONCLUSIONS OF LAW
The Company has not engaged in any unfair labor prac-
tice which warrants the issuance of a remedial order.
RECOMMENDED ORDER
The complaint should be, and hereby is, dismissed.
° The Company relies on what appears to be a dictum in Rangaire Cor-
poration , 157 NLRB 682, 683-684, that a pension plan could lawfully ex-
clude ". . . any person covered by a collective bargaining agreement en-
tered into with the employer , which agreement does not provide for
coverage of such person by this plan." In Dura, supra, the plan held un-
lawful was restricted to "any salaried employee who is not a member of a
collective bargaining unit recognized by [the ] Employer." The language
in the instant case was closer to that disapproved in Dura than to that ap-
proved in Pangaire , and, unlike the latter language, did not expressly
leave the plan open to bargaining.