The Nestle Co., Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1023 (N.L.R.B. 1980)

IeF NESTLE CO)MP'AN'Y. INC 1023
The Nestle Company, Inc. and United Food and
Chocolate Workers Union, Locals 1974 and
1975, affiliated with Retail, Wholesale and De-
partment Store Union, AFL-CIO. Cases 3-CA-
8562 and 3-CA-8659
August 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On April 17, 1980, Administrative Law Judge
Karl H. Buschmann issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.'
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, 2
and conclusions: of the Administrative Law Judge
only to the extent consistent herewith.4
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusion of Law 3:
Respoitdenl has requested oral argument Ihi1 request i, crobrh
denied as the record the exceplion. and the brief adequatclx prerelt the
issues and the positions of the parties
Respondent has excepted to certain cr'dibilt flinlilgs ad hby tile
Administrative Law Judge It i the HBoard's established pohllc nol t
overrule an administrative a. judge's resolutions s ith respect to roedl
bility unless the clear preponderance of all of the relevant cx idencc on1-
vinces us that the resolutions are incorrect Standard Dry Wall I'roduiti.
Inc., 91 NI.RH 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We hase
carefully examined the record and find no basis for resersing his findings
In sec I1I of his Decision, the Administratise Lass Judge states that
the prior conlracl between the parties expired on May 18 1978, rather
than on May 19 In sec IV. e states that Respondent's alleged pension
proposal would amount to a much smaller increase compared to what it
had traditionally sought. rather than compared to what the Unioin hald
traditionally sought. These inadvertent errors are isufficient to affect our
decision
I In his Conclusion of Law 3.1. the Adminisiratixe Law Judge found
that Respondent violated Sec 8(al(5) and (l) of the Act by refusing to
abide by the terms of the agreement reached between the parties con-
cerning the minimum pension and by unilaterally imposing changes in
the pension plan without notlice or an opportunit) to bargain" losse er.
we note that, since the parties reached agreement on the mininnlm pen-
sion. Recpondent would not have satisfied its statutory obligation. merely
b. affordilng the Union notice nd anll pporlunity Io bargain. rather tIhan
obtaining the Union's consent. prior to implementing changes in the min-
mum pension. We shall amend Conclusion of Law 3 accordingly
We shall issue a new Order to reflect our amendment of the Admin-
istratise Law Judge's Conclutionl of Law 3 to provide for interest n the
make-whole remedy in accordance with lorida Steel Corporation, 231
NLRH 651 (197)1. and to correct his Inadvertent error in providing that
Respondent post notices at itl "lansing" facility, rather than its :ulton.
New York, facility
Member Jenkins s.ould pro idc interest on the make shole renled5 nIl
accordance ahlt his partial dl in O/etllipt %ldial (o CrPorahi il, 25)
NlRB No 11 (1980)
251NLRB No. 142
"3. Respondent has violated Section 8(a)(5) and
(I) of the Act by failing and refusing to abide by
the terms of the agreement reached between the
parties concerning the minimum pension for past
years of service and by unilaterally imposing
changes in the pension plan without the consent of
the Union."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
The Nestle Company, Inc., Fulton, New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United
Food and Chocolate Workers Union, Locals 1974
and 1975, affiliated with Retail, Wholesale and De-
partment Store Union, AFL-CIO-CLC, by failing
and refusing to abide by the terms of the agree-
ment reached by the parties concerning the mini-
mum pension for all creditable years of service, in-
cluding past years, and by unilaterally imposing
changes in the pension plan without consent of the
Union.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Make whole all employees who have retired
under the pension plan since January 1, 1978, for
losses in pension benefits incurred as a result of Re-
spondent's failure to abide by the terms of the
agreement reached by the parties concerning the
minimum pension, with interest thereon in the
manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977). See, generally, Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
(b) Apply the terms of the agreement on the
minimum pension in the future to all employees
who retire during the period covered by the agree-
ment.
(c) Post at its Fulton, New York, facility copies
of the attached notice marked "Appendix. "'
Copies of said notice, on forms provided by the
Regional Director for Region 3, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
In the event that this Order is enforced h a Judgment oif a Uniited
Stites Court ,of Appeal. tile ords in the notice reading "Po',lcd hb
()rder of the Natital I habor Relatitins Board hall read "l'o.tcd I'ur.Ll-
lll t . Jldmlicni if he I iled Staite (coilrt of Appeals Xnfrcing il
()rder of thte National I abhor Relations Boalrd "
T NESLE CMANY. IN
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with United Food & Chocolate Workers
Union, Locals 1974 and 1975, affiliated with
Retail, Wholesale & Department Store Union,
AFL-CIO-CLC, by failing and refusing to
abide by the terms of the agreement reached
concerning the minimum pension for all credit-
able years of service, including past years, and
by unilaterally imposing changes in the pen-
sion plan without consent of the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL NOT make whole all employees
who have retired under the pension plan since
January 1, 1978, for losses in pension benefits
incurred as a result of our failure to abide by
the terms of the agreement reached concerning
the minimum pension, with interest.
WE WILL NOT apply the terms of the agree-
ment on the minimum pension in the future to
all employees who retire during the period
covered by the agreement.
THE NESTLE COMPANY, INC.
DECISION
KARI. H. BUSCHMANN, Administrative Law Judge:
This case arose upon charges filed on June 22, 1978, and
August 18, 1978, by Locals 1974 and 1975, United Food
and Chocolate Workers Union, which is affiliated with
Retail, Wholesale and Department Store Union, AFL-
CIO-CLC (herein called the Union). A consolidated
complaint against the Nestle Company, Inc. (herein
called Respondent or the Company), issued on Septem-
ber 25, 1978, and alleged that Respondent violated Sec-
tion 8(a)(1) and (5) of the National Labor Relations Act,
as amended. More specifically, the complaint alleged that
Respondent committed 8(a)(5) violations by unilaterally
changing pension benefits and by refusing to sign a writ-
ten agreement embodying terms upon which it and the
union had agreed regarding a leave-of-absence policy for
union officials. The complaints further alleged that by
the aforementioned acts Respondent interfered with, re-
strained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act and thereby
violated Section 8(a)(1).
Respondent's answer to the consolidated complaint,
filed on October 5, 1978, admitted that it met the juris-
dictional requirements of the Act and that the Union was
a labor organization within the meaning of Section 2(5)
of the Act. The answer further admitted that certain per-
sons were supervisors within the meaning of Section
2(11) and (13) of the Act and that Respondent had rec-
ognized the Union since 1974 as the exclusive representa-
tive for the purposes of collective bargaining of the pro-
duction and maintenance employees at its Fulton, New
York, plant. In addition, the answer listed the unions
which had represented the Fulton employees from 1942
to 1974. Respondent's answer also admitted that it had
been signatory to collective-bargaining agreements with
the Union since May 16, 1975, and that on or about May
20, 1978, it had reached an agreement with the Union on
wages, hours, and other terms and conditions of employ-
ment, effective from May 19, 1978, to May 15, 1981. The
answer denied all other allegations in the complaint.
A hearing on the allegations in the complaint was held
on March 12-14, 1979. Counsel for Respondent and
counsel for the General Counsel filed briefs on May 9
and 10, 1979, respectively. On May 23, 1979, Respondent
filed a reply brief in the form of a two-page letter point-
ing out two "misstatements of fact" in the brief of coun-
sel for the General Counsel. Counsel for the General
Counsel filed a Motion to Strike Reply Brief on May 31,
1979, arguing that the Board's Rules and Regulations do
not provide for the filing of a reply brief and that Re-
spondent did not move the Administrative Law Judge
for leave to file a reply brief. On June 5, 1979, Respond-
ent filed an "Opposition to Motion To Strike Reply"
brief. Although the General Counsel correctly argues
that the Board's Rules and Regulations do not provide
for the submission of reply briefs, I have accepted and
considered Respondent's reply brief, because I believe
that the General Counsel has not thereby been preju-
diced.
Upon the entire record, including my observation of
the demeanor of witnesses and consideration of briefs, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Nestle Company, Inc., a Delaware corporation
with headquarters in White Plains, New York, operates a
facility in Fulton, New York, where it is engaged in the
manufacture, sale, and distribution of chocolate and relat-
ed products. Respondent's Fulton plant is the only facili-
ty involved in this case. Respondent manufactured, sold,
and distributed in interstate commerce goods, produced
at its Fulton facility, which were valued in excess of
$50,000. As stated earlier, jurisdiction by the National
THE NESTLE COMPANY, INC. 1025
Labor Relations Board over the Nestle Company, Inc.,
was admitted in Respondent's answer. Respondent is an
employer within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE I.ABOR ORGANIZATION INVOIVED
The Union, United Food and Chocolate Workers
Union, Locals 1974 and 1975, affiliated with Retail,
Wholesale and Department Store Union, AFL-CIO-
CLC, is, admittedly, a labor organization within the
meaning of Section 2(5) of the Act.
IIl. THE UNFAIR LABOR PRACTICES
A. Background
Dennis Slipakoff is Respondent's corporate manager
for labor relations. Among his duties are pension plan-
ning and the negotiation of collective-bargaining con-
tracts for Respondent's 22 facilities throughout the coun-
try. The Fulton plant is one of the facilities for which
Slipakoff has responsibility for negotiating labor con-
tracts. He was Respondent's chief spokesman during the
1978 negotiations. Hugh MacKenzie was personnel man-
ager at Respondent's Fulton facility from June 1973 to
January 1979. His duties, among others, included con-
tract administration, administration of negotiated benefits,
and employee recruiting. He was a member of Respond-
ent's negotiating team during the 1975 and the 1978 ne-
gotiations. Charles Ciszeski has been Respondent's
Fulton plant manager since approximately 1975. While
he was a member of Respondent's negotiating team in
the 1978 negotiations, he had no authority to commit Re-
spondent to any proposed contract terms. His role in the
1978 negotiations was limited to being a resource person
for operations problems of the Fulton plant.
Fred Allen, a 20-year employee with Respondent, was
the president of the Union from 1977 to September 1978.
He was the chief spokesman for the Union during the
1978 negotiations. Kenneth Stacy, Jr., has been the secre-
tary of the Union since 1977 and was a member of the
union negotiation committee during the 1978 negotia-
tions. Myron Johnson, a former employee of Respond-
ent, currently an International representative of the
Union, was a witness in the 1978 negotiations. He was
one of the Union's two chief spokesmen during the 1975
negotiations.
The Union has represented the production and mainte-
nance employees of Respondent since 1974. It has en-
gaged in collective-bargaining negotiations with Re-
spondent in 1975 and 1978. The 1975 negotiations culmi-
nated in a collective-bargaining agreement effective from
May 16, 1975, to May 19, 1978. The parties purportedly
reached an agreement in 1978 after 25 negotiation ses-
sions during March, April, May, which was to be effec-
tive from May 19, 1978, to May 15, 1981.
Prior to 1974, Respondent's production and mainte-
nance employees were represented by P.C.K. Employ-
ees' Union, Independent. P.C.K. Employees' Union had
also engaged in collective-bargaining negotiations with
Respondent which culminated in agreements in, among
other years, 1969 and 1972.
The General Counsel contends that Respondent has
failed to execute two provisions agreed upon during the
1978 negotiations: (I) it has failed to implement, on a ret-
roactive basis, an increase in the pension plan, and (2) it
has refused to reduce to writing a leave-of-absence pro-
vision for local union officials. Respondent maintains
that, while it did negotiate an increase in the pension, the
increase was prospective only. It denies that it ever
agreed upon the aforementioned leave-of-absence provi-
sion.
B. The Pension Minimum
Respondent's employees have had a pension plan since
May 1955. There are two ways to calculate benefits
under the plan: (1) via the minimum pension formula
("minimum"), or (2) via the factor formula. At issue here
is the minimum.
From 1955 to December 31, 1974, the minimum has
been calculated by multiplying the number of years of an
employee's creditable service 2 by a constant dollar
amount, i.e., in 1972 by $78; in 1975 by $100. Since 1972
the pension plan has had an effective date of January 1,
of the year in which negotiations took place, i.e., January
1, 1972; January 1, 1975; January 1, 1978. This means
that although contract negotiations may have taken place
midyear, an employee that retired any time during that
year (even prior to the conclusion of the negotiations)
would be eligible for the increased benefits. For example,
if the parties had negotiated a new collective-bargaining
agreement during March, April, and May, 1972, an em-
ployee retiring on January 1, 1972, would be eligible for
the $78 minimum. Hence, if that employee had 20 years
of creditable service, he or she would receive a $1,560
annual pension.
In the 1972 negotiations, the P.C.K. Employees' Union
proposed, among other things, that the minimum pension
"be increased from $42 to $78 multiplied times years of
creditable service." (G.C. Exh. 15, p. 2, item 4(a).) The
Company's offer (G.C. Exh. 16) was quite similar and,
according to Myron Johnson, reflected the agreement
they had reached. Hence, for the life of that contract,
the minimum pension would equal $78 multiplied by the
number of years of creditable service.
In the 1975 negotiations, the Union, in seeking an in-
crease in the minimum pension, demanded an "[i]ncrease
in the pension benefits to $120 per year times years of
service." (G.C. Exh. 7, item 6.) The final settlement on
this issue consisted of a minimum of $100 for all years of
creditable service. This minimum, however, would be re-
duced on a pro rata basis for years of service after Janu-
ary 1, 1975, during which an employee worked fewer
than 1,600 hours (G.C. Exh. 9(a)).
On March 22, the first day of the 1978 negotiations,
the Union presented General Counsel's Exhibit 2, page, 2
as its pension demands. Items 3 and 8 are of relevance
here. Item 3 states: "Provide a minimum pension equal to
The June 22. 1978, charge is ambiguous in that it alleges that the
Company agreed to retroactive "pension improertlents, The record,
however, establishes that the parties contest only the retroactiit 5 of the
minimum
2 As defined in G C Exh p 2
THE NESTLE COMPANY, INC
1026 DECISIONS OF NATIONAL LAB3OR RELATIONS BOARD
$150 times each year of service." Item 8 states: "All pen-
sion benefits retroactive to December 31, 1977." Slipa-
koff and MacKenzie testified that when these demands
were first presented there was no discussion over their
meaning. They testified that they understood the plain
language of these demands to mean that the pension
minimum be increased to $150 per year for each year of
service after December 31, 1977. Both Slipakoff and
MacKenzie also testified that there was no discussion
concerning the December 31, 1977, effective date. The
Union's entire economic package was not considered
again until May 17, 1978.
In making his first counterproposal on the pension
minimum, Slipakoff, on May 17, 1978, offered a mini-
mum of $110 multiplied times years of service with all
pension benefits retroactive to January 1, 1978. He testi-
fied that the Union rejected this offer without comment
on the January 1, 1978, retroactive date.3 He also testi-
fied that there was no discussion concerning retroactivity
in general; he did not indicate that he was offering full
pension credit for all past years of service and the Union
did not mention retroactivity in response to his first pro-
posal. Later that day Slipakoff proposed to increase the
minimum to $115 multiplied by an employee's years of
service. Again, there was no mention of retroactivity.
The parties continued their negotiations until 5 p.m. on
May 18, 1978, at which time the prior contract expired.
At that time Allen called a strike. Slipakoffs final offer
on the pension minimum prior to the strike was $125
times years of service. This offer, like the previous ones,
did not mention retroactivity. This pension offer, howev-
er, does not appear to have been a major issue that led to
Allen's calling of the strike. The parties were still in dis-
agreement on wages, insurance, and holidays.
On Saturday, May 20, 1978, the parties entered media-
tion. Sometime during that day the parties agreed to Re-
spondent's $125 times years of service minimum pension
offer because the final issues agreed upon were wages,
insurance, and holidays as evidenced in Employer's Ex-
hibit 3 and General Counsel's Exhibit 11, page 1. Ac-
cording to Slipakoff and Mackenzie there had been no
discussion at any time during the negotiations concerning
the Union's December 31, 1977, retroactive date for the
minimum pension. They testified that they simply as-
sumed that the Union acquiesced to the offer of January
1, 1978.
Allen's testimony with respect to the negotiations on
the pension minimum is basically in accord with Slipa-
koffs testimony. His testimony reflects that most propos-
als were phrased ". . . times years of service," that there
was no discussion of past service credit, and that he
never used the word "retroactivity" in making his oral
demands. One area in which his testimony differs from
Slipakoffs and MacKenzie's is with respect to the
Union's proposal of December 31, 1977, as the effective
date of the new minimum. Allen testified that this date
was discussed with and specifically rejected by Respond-
ent. He testified that he had explained that that date was
proposed so that Homer Austin, a retiring former Local
3 It is to be remembered that the Union proposed that pension benefits
have a retroactive date (lf December 31, 1977 (G.C. Exh. 2 p 2, item 8 )
president, could be covered by the newly negotiated
pension benefits. Both Stacy's and Johnson's testimony
corroborated this and both added that Slipakoff had
made a snide remark in response to the proposal by
saying something to the effect that the Union was over-
stepping its bounds by trying to negotiate benefits for
one member. With respect to this issue I credit the con-
sistent and convincing testimony of Allen, Stacy and
Johnson, and discredit the testimony of Slipakoff and
MacKenzie. I do find, however, that the parties eventu-
ally agreed to the January 1, 1978, date as opposed to
the December 31, 1977, date.
On May 21, 1978, the day after the parties reached
agreement, Allen called a meeting of the rank-and-file of
Local 1974 for the purpose of ratifying the contract.
Prior to taking the vote, Allen and other union officials
presented the membership with a hurriedly drafted out-
line4 of what was agreed to in the negotiations. Stacy
testified that he prepared this document from his set of
notes, not Allen's originals, and that he did not have time
to proofread it. This document described the pension
minimum as "$125 per month-minimum." Allen noted to
the membership that this was an error. He explained that
he had negotiated a minimum pension of $125 multiplied
by an employee's years of service. He then gave them an
example. If an employee had 30 years of service with the
Company, his or her minimum pension would be 30 mul-
tiplied by $125. The contract was eventually put to a
vote and the membership approved it.
In mid-June 1978, Allen and Johnson attended a griev-
ance meeting at which Ciszeski, MacKenzie, and others
attended on behalf of Respondent. Of relevance here is
an informal grievance of one of Respondent's retired em-
ployees, Clyde Creighton. Creighton had retired on June
1, 1978, and was told by Respondent that his minimum
pension would be calculated by multiplying his years of
service ending December 31, 1977, by $100 and adding
to that $125 multiplied by his years of service after Janu-
ary 1, 1978. Creighton's grievance was that it was his un-
derstanding that his minimum pension under the new
contract would equal $125 times all his years of service.
It was Allen's position that this was what the Union had
agreed upon during the 1978 negotiations. Johnson asked
Ciszeski whether it was his understanding that the pen-
sion provisions negotiated in the 1978 contract applied in
the past. Ciszeski replied that he thought they did. Mac-
Kenzie then interrupted and told Ciszeski that he may be
mistaken. Ciszeski then told Allen and Johnson that he
would have to check on it and that he would get back to
them. Respondent's ultimate position is that the 1978 ne-
gotiations increased the pension minimum to $125 for
each year of service after January 1, 1978, only.
C. The Leave-of-Absence Provision
On April 27, 1978, the parties negotiated the leave-of-
absence aspects of the seniority provision in the contract.
The parties had earlier decided upon the following pro-
cedure: They would work from the language of Re-
spondent's proposals. Slipakoff proposed, and the partici-
4 Emp l xh E-I
THE NESTLE CMPANY. INC 1027
pants in the negotiations agreed, that they would negoti-
ate "packets" of proposals. At each session Slipakoff
would hand out copies of a particular packet to everyone
present. The members of the union negotiating team
would caucus and then respond with their suggested ad-
ditions or deletions. Respondent's negotiating team
would then caucus as to the Union's proposed changes.
They would then return with their response. This proc-
ess would continue until agreement was reached. Once
the parties agreed upon the particular language of a pro-
vision, Slipakoff and Allen would place their signature or
initials next to it. They would each mark two copies of
the agreed-upon provisions, one for Slipakoff and one for
Allen.
On April 27, Slipakoff handed out Respondent's leave-
of-absence packet. (Emp. Exh. 10; G.C. Exh. 5.) The
Union's negotiating team caucused and returned with six
suggested alterations: (I) add the words "or appointed"
after the word "elected" on line 4 of page 2, part (a). (2)
add the words "or local" after the word "International"
on line 4 of page 2, part (a).s (3) Change the medical
leave of absence, line 4 of page 3, part (c), from 6 to 12
months. (4) Delete the last sentence on page 4. (5) Clari-
fy the definition of a bona fide union function. More spe-
cifically, consider attendance at the monthly union griev-
ance meeting to be a bona fide union function. (6) Re-
store the seniority of Myron Johnson through 1959.
Allen then explained the proposals specifically pointing
out that the second proposal, concerning the words "or
local," dealt with the Union's plan to have a full-time
local president. Respondent's negotiating team then met
to consider these new proposals.
According to Slipakoff they caucused for about an
hour and returned with the position that Respondent
would acquiesce to five of the Union's six counterpro-
posals. He specifically mentioned each area of agree-
ment. The only area which he did not mention was the
Union's counterproposal concerning local union officials
(counterproposal 2). He testified that Allen briefly dis-
cussed this offer with his team and replied "okay." Slipa-
koff further testified that he and Allen then followed the
established negotiating procedure; Slipakoff handwrote
the changes on his and Allen's copies of the proposal,
initialed them, and gave them to Allen who initialed
both copies. The following are the language changes Sli-
pakoff made on Employer's Exhibit 10 and General
Counsel's Exhibit 5 (1) He wrote in the words "or ap-
pointed" on line 4 of page 2. (2) He changed "six" to
"twelve" on line 4 of page 3. (3) He crossed out the last
sentence on page 4. On May 10, 1978, he gave the Union
two letters confirming the agreements concerning the
restoration of Myron Johnson's seniority and the inter-
pretation of "bona fide union functions" (Emp. Exhs. 11
and 12). He testified that the Union signed off on these
letters. Finally, he testified that there was no agreement
on the "local Union" official issue; Allen never asked for
him to approve his (Allen's) writing in the words "or
' The purpose of this proposal as to acquire a leave-of-absence privi-
lege, with retention of seniority rights. for an employee engaged in full-
time local union duties As Stacy testified, this was made in anticipation
of the Union's plan to establish an offce with a full-ltime local president
local" and he never gave his approval to the insertion of
the words "or local."
Allen's testimony accords with that of Slipakoff with
respect to the standard sign-off procedures employed
during the negotiations. His testimony concerning the
leave-of-absence provision, however, was much more
limited than Slipakoffs. While Slipakoff described the
negotiations surrounding the entire leave-of-absence
packet, Allen's testimony was limited to the "local
Union" issue. He testified that, after Slipakoff had made
the agreed-upon changes on his and Allen's copies, he
brought them over to Allen to sign. As Allen looked
over the changes he noticed that the words "or local"
were not present. He testified that he brought this to Sli-
pakoffs attention and Slipakoff replied: "No problem.
Put it in there." He then wrote the words "or local" on
his copy only. He testified that the reason he did not
write this on Slipakoffs copy was because Slipakoff had
already taken his copy back with him to his side of the
room. Both Stacy and Johnson corroborated this in their
testimony.
Some time after the negotiations were completed. Re-
spondent gave the Union a proof copy of the contract.
About 2 weeks after receiving the proof. Allen met with
MacKenzie to go over the errors he had found. One of
those errors was the failure of Respondent to insert the
words "or local" in the leave-of-absence provision. Ac-
cording to Allen, MacKenzie agreed with all of Allen's
corrections except the one concerning the leave-of-ab-
sence provision. Allen testified that MacKenzie told him
that he did not think that Respondent would agree to
that. He further testified that he told MacKenzie that it
had already been agreed to at the bargaining table.
MacKenzie's response was that the Company was philo-
sophically opposed to coordinated bargaining and that it
was afraid that the Union would use that clause to
achieve it. Allen said that that proposal had nothing to
do with coordinated bargaining and he doubted that the
Union could ever attain coordinated bargaining. He testi-
fied that MacKenzie said he agreed, but felt that he
could never convince White Plains of that. While Allen
said that he was accompanied by Stacy and a Mr. Proco-
pio (from the Union) at this meeting, Stacy was not able
to corroborate the substance of this meeting in his testi-
mony because he said that he did not participate in that
part of the discussion. MacKenzie corroborated Allen's
testimony insofar as Allen told him that there w as an
error concerning the leave-of-absence provision.
IV. DISCUSSION AND ANAl YSIS
A. The Pension
The General Counsel argues that Respondent violated
Section 8(a)(5) and (1) of the Act by failing to implement
the minimum pension as negotiated in the 1978 negotia-
tions. It is his position that the agreed-upon pension mini-
mum was $125 multiplied by the number of years of an
employee's creditable service. An example of this would
be that an employee retiring after January 1, 1978, with
30 years of creditable service would receive $3,750 per
year as a minimum pension.
THE NESTLE COMPANY. I C
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent argues that it has not committed any
unfair labor practice because it never negotiated such a
provision. Its position is that it agreed to an increase in
the pension minimum as of January 1, 1978. Its interpre-
tation of what it negotiated is a minimum pension of $100
multiplied by an employee's years of creditable service
ending December 31, 1977, added to $125 multiplied by
an employee's years of creditable service after January 1,
1978. An example of this position would be that an em-
ployee retiring in January 1980 with 30 years of credit-
able service would be entitled to a minimum pension of
$100 multiplied by 28 (creditable years of service ending
December 31, 1977) added to $125 multiplied by 2 (cred-
itable years of service after January 1, 1978) for a total
of $3,050 per year.
At first blush, the record suggests that the parties had
simply failed in their negotiations to reach an agreement
on this issue or, as Respondent points out, that there was
no meeting of the minds, ostensibly because the Union
had taken several confusing positions. For example, it
proposed in its written demands that the pension benefits
be retroactive to December 31, 1977, then it erroneously
referred to the pension benefits to amount to "$125 per
month per year" and finally the Union mistakenly impli-
cated in its charge not only the "minimum" pension but
also the "factor" based pension. In addition, the absence
of any discussions-apart from the December 31, 1977,
date-during the negotiations concerning the issue of re-
troactivity, as well as the failure of the parties to careful-
ly reduce to writing the pension agreement, unduly com-
plicates the issue. In any case, a thorough analysis of the
record convinces me that resolution of the issue depends
upon a correct interpretation of the Union's proposal:
"All pension benefits retroactive to December 31, 1977."
(G.C. Exh. 2, p. 2, item 8.) This language, according to
Respondent, was an unequivocal expression of intent that
the negotiated minimum would apply prospectively for
years of service after December 31, 1977. The consistent
testimony of Allen, Stacy, and Johnson, however, clearly
shows that the distinct purpose of this proposal was
merely to include Homer Austin in the group of employ-
ees that would benefit from any increase in the pension
minimum, and that it was never their intenoion to deviate
from the historic practice of multiplying the "minimum"
times all years of past service. Homer Austin was to
retire on December 31, 1977. If, in accordance with Re-
spondent's version of the proposal, the increased pension
minimum were $125 multiplied by years of service after
December 31, 1977, Homer Austin would not have re-
ceived any additional benefit whatsoever.6 The l-day
difference between December 31, 1977, and January 1,
1978, would result in an added benefit of less than 7
cents.
Moreover, Respondent's pension proposal would
amount to a relatively insignificant amount and certainly
a much smaller increase in the pension minimum com-
pared to what it had traditionally sought. In 1972,
P.C.K. Employees Union, the Union's predecessor,
sought and achieved an increase in the pension minimum
6 The difference in benefits for Austin would have been one-three hun-
dred sixty-fifths of S25 or 7 cents.
from $42 to $78 multiplied by an employee's creditable
years of service. For an employee retiring with 20 years
of creditable service this meant an increase in the mini-
mum from $840 to $1,560, or a $720 increase.
In 1975, the Union sought and achieved an increase in
the pension minimum from $78 to $100 multiplied by an
employee's creditable years of service. For an employee
retiring with 20 years of creditable service this meant an
increase in the minimum from $1,560 to $2,000, or a $440
increase.
In 1978, the Union sought and achieved, as Respond-
ent argues, an increase in the pension minimum from
$100 multiplied by an employee's creditable years of
service to $100 multiplied by an employee's creditable
years of service ending December 31, 1977, plus $125
multiplied by an employee's years of service starting Jan-
uary 1, 1978. For an employee retiring with 20 years of
service in 1980 the Union would have achieved an in-
crease in the minimum from $2,000 to $2,050, only a $50
increase.
Significantly, Slipakoff used the word "retroactive" in
his offers only once; it was $110 times years of service
retroactive to January 1, 1978. But this was only in re-
sponse to the Union's December 31, 1977, proposals.
And in this regard Respondent prevailed. All further
proposals merely stated the dollar amount. There was no
further discussion of retroactivity or any discussion con-
cerning past service credit. The final agreement reached
was $125 multiplied by all of an employee's creditable
years of service. The benefits were to be available to all
employees retiring during the life of the contract. Con-
sidering that in all past negotiations the minimum pen-
sion benefits were retroactive, and considering further
that the Union's proposal of retroactivity to December
31, 1977, was limited to the Homer Austin issue in which
Respondent prevailed, because the effective date was
agreed to be January 1, 1978, it is totally inconceivable
that Respondent was under an honest impression that the
negotiated pension benefits were to be applied prospec-
tively.
Slipakoff, Respondent's manager of labor relations, is a
law school graduate whose responsbility included pen-
sion planning and contract negotiations at Nestle's 22
facilities. After 2 years in his present position, he was
certainly not an inexperienced negotiator; to the con-
trary, as a witness he appeared very articulate, able, and
knowledgeable. He was assisted throughout the negotia-
tions by Charles Ciszeski, the plant manager, and Hugh
M. MacKenzie, assistant corporate manager for labor re-
lations. Indeed, Ciszeski conceded in his testimony that
his understanding of the negotiated minimum pension
was that it applied to past years of service. It simply
strains credulity that Slipakoff could have been of any
different state of mind.
The record shows that Respondent has failed to apply
the pension minimum retroactively as negotiated and ac-
cordingly has violated Section 8(a)(5) and (1) of the Act.
B. Leave-of-Absence Policy
The General Counsel also argues that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by refusing to
THE NESTI.E COMPANY. INC. 1029
sign a written agreement embodying the words "or
local" in the aforementioned portion of the leave-of-ab-
sence provision. This argument is based on the testimony
of Allen, Stacy, and Johnson establishing that Slipakoff
had orally agreed to those terms. Respondent's position
is that it committed no violations here because, as Slipa-
koff testified, it never orally agreed to such a provision.
Thus, a resolution of this issue turns on credibility.
From my observation of the demeanor of the wit-
nesses, and after careful consideration of the entire
record, I must credit the testimony of Slipakoff over that
of Allen, Stacy, and Johnson. and therefore do not find
any unfair labor practice violations concerning the leave-
of-absence provision.
I find Slipakoffs testimony on this issue credible be-
cause it detailed the entirety of the negotiations concern-
ing the leave of absence packet. He mentioned six pro-
posals, the negotiations concerning each proposal, and
their resolution. Further, his testimony concerning the
resolution of each proposal is in accord with the proce-
dure the parties had agreed upon concerning the conduct
of the negotiations, namely, once an agreement was
reached on an issue Slipakoff would write in the new
language or the modifications and he and Allen would
then initial each page.
In contrast, Allen's testimony concerning the leave-of-
absence provision, which was generally corroborated by
that of Stacy and Johnson, recounted only one aspect of
those negotiations--the local union official issue. Allen's
direct testimony does not mention the five other leave-
of-absence issues, and he could only vaguely recollect
that other issues were discussed after being prompted on
co-examination. Persuasive, however, is the fact that
th, snmary of provisions negotiated (Emp. Exh. 1)
whic the Union handed out to its members prior to rati-
fication contained every leave-of-absence provision that
Slipakoff testified the parties had agreed to but did not
contain the words "or local" which Allen, Stacy, and
Johnson testified were orally agreed upon. Moreover.
this handout was prepared more than 3 weeks after the
negotiations on this issue took place. This would tend to
dispel any speculation that the omission was an over-
sight. In sum, I do not find that a preponderance of the
evidence establishes that Respondent committed any
unfair labor practice with respect to negotiations on the
leave-of-absence provision. I will accordingly recom-
mend that that portion of the complaint be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has failed to bargain in good faith in
violation of Section 8(a)(5) and (I) of the Act by failing
and refusing to abide by the terms of the agreement
reached between the parties concerning the minimum
pension for past years of service and by unilaterally im-
posing changes in the pension plan without notice or an
opportunity to bargain.
4. All other allegations in the complaint have not been
sustained.
THF REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, 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.
[Recommended Order omitted from publication.]
THE NESTLE COMPANY. INC. tO g