Niagara Wires, Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1979

240 N.L.R.B. 1326 (N.L.R.B. 1979)

1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Niagara Wires, Inc. and International Brotherhood of
Electrical Workers, Local Union No. 1965, AFL-
CIO. Case 12 CA 8126
March 13, 1979
DECISION AND ORDER
BY MEMBERS PENEl .(). Mt RPIIY. AND TR;E.SD.t
Upon a charge filed on March 31, 1978, by Inter-
national Brotherhood of Electrical Workers, Local
Union No. 1965, AFL CIO, herein called the Union,
and duly served on Niagara Wires, Inc., herein called
the Respondent, the General Counsel of the National
labor Relations Board, by the Regional Director for
Region 12, issued a complaint and notice of hearing
on May 10, 1978, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the
meaning of Section 8(a)( I) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge, complaint, and notice of hear-
ing before an administrative law judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that Respondent, on or
about December 6, 1977, and continuing to date, vio-
lated Section 8(a)( ) of the Act by promulgating,
maintaining, publicizing, and giving effect to a provi-
sion in its pension plan which limited eligibility to
employees who were not subject to the terms of a
collective-bargaining agreement. Subsequently, Re-
spondent filed its answer admitting in part, and de-
nying in part, the allegations of the complaint.
Thereafter, on July 18, 1978. counsel for the Gen-
eral Counsel filed with the Regional Director of Re-
gion 12 a Motion for Summary Judgment, and by
order of the same date the Regional Director referred
the motion to the Board. On July 27, 1978, the Board
issued an order transferring the proceeding to the
Board and a Notice To Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondent thereafter filed a brief in op-
position to the General Counsel's Motion for Sum-
mary Judgment.
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.
Upon the entire record in this proceeding. the
Board makes the following:
240 NLRB No. 185
Ruling on the Motion for Summary Judgment
In paragraph 6 of its answer, Respondent denies
that portion of the complaint (para. 4) in which it
was charged with unlawfully promulgating, publiciz-
ing, maintaining, and giving effect to an eligibility
provision in its pension plan which reads as follows:
I oPl( NO. I
YOUR MIAMBI:RSIIP IN I:e PAN
W1() IS EIlBI.GIBLE FOR IliE PLAN?
If you are not already a Member of the Plan,
your membership will automatically begin on
the first April 1, July 1, October 1, or January I
on or immediately after you become eligible. To
he Ligihle ou must be eligible mployed by the C'ompanv
and your employment must not be subject to the
terms of a collective-hargaining agreement. You
are eligible for menmbership if
- you are at least 25,
you were younger than age 65 when you
started to work with the company, and
you have completed at least 3 months of
service.
[Emphasis supplied.]
In her Motion for Summary Judgment, counsel for
the General Counsel has referred to, and attached, a
portion of Respondent's pension plan booklet indi-
cating that the eligibility provision cited above is, in
fact, part of Respondent's pension plan. The General
Counsel also attached to the motion a letter from
Respondent's attorney addressed to Mr. William E.
Franke, a field examiner employed at the Board's
Jacksonville Resident Office, Region 12, stating that
Respondent distributed a summary description of the
pension plan to its employees in November 1977.
This summary description included the eligibility re-
quirements as stated above. From these documents,
the General Counsel contends that paragraph 4 of
the complaint must be deemed to have been admit-
ted as true insofar as it alleges that Respondent pro-
mulgated, maintained, and publicized a provision in
its pension plan which limited eligibility in such plan
to employees who were not subject to the terms of a
collective-bargaining agreement. The General Coun-
sel, in effect, concedes that a factual dispute remains
regarding whether Respondent has given effect to the
eligibility provision, but asserts that the resolution of
such an issue is not necessary for finding a violation
of Section 8(a)(1).
Respondent, in its brief in opposition to the Gen-
eral Counsel's motion, admits that it has promulgat-
ed the eligibility provision, but denies that it was
NIAGARA WIRES, INC. 1327
publicized. However, nowhere in its brief does Re-
spondent address, or in any way refute, the validity
of the two exhibits accompanying the Motion for
Summary Judgment which clearly show that Respon-
dent distributed summaries of the plan in November
1977, including the alleged illegal eligibility require-
ments. Respondent further contends that a violation
as alleged by the General Counsel cannot stand with-
out a finding that the eligibility provision was, in
fact, given effect and, since the pleadings raise a fac-
tual dispute with regard to this matter, the Motion
for Summary Judgment is not appropriate.
Contrary to Respondent's contentions, it is appar-
ent from the General Counsel's exhibits, as well as
Respondent's own brief in opposition to the General
Counsel's motion, that paragraph 4 of the complaint,
absent the allegation dealing with the implementa-
tion of the eligibility provision, has, in effect, been
admitted. As it is well settled that the promulgation,
maintenance, and publication of an employee benefit
plan whose benefits are conditioned on the unrepre-
sented status of the employees are themselves suffi-
cient for finding an 8(a)(1) violation,' the only issue
to be resolved is whether, as a matter of law, Respon-
dent's eligibility provision violates the Act. Accord-
ingly, we find that no triable issue remains requiring
a hearing, and. as discussed below, we grant the Mo-
tion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDIN(;S OF FA(.I
I l'li. B'SINI-.SS ()1 RSPONIIN1
Respondent is a Florida corporation with an office
and place of business located in Quincy, Florida,
where it operates a manufacturing plant engaged in
the production of fourdrinier wires. In the 12 months
preceding the issuance of the complaint, a represen-
tative period, Respondent shipped goods and mate-
rials valued in excess of $50,000 from its Quincy,
Florida, facility directly to points outside the State of
Florida. Accordingly. we find that Respondent is,
and has been at all times material herein, an em-
p!oyer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effec-
tuate the policies of the Act to assert jurisdiction
herein.
I1 I'I. I.ABOR ORGANIZATION INVOI.VED
International Brotherhood of Electrical Workers,
See text accompan nig cases cited in Ins 4 and 5. nfra
Local Union No. 1965, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
111. IH ILNFAIR LABOR PRACTICES
As noted above, the General Counsel contends
that Respondent has promulgated, maintained and,
sometime during November 1977, a few weeks before
a scheduled union election.2 distributed to its em-
ployees a pension plan which by its terms requires
the employees to forgo participation in the plan if
their employment becomes "subject to the terms of a
collective-bargaining agreement." According to the
General Counsel, the existence of such a provision,
which was made known to the employees, inherently
infringes on basic Section 7 guarantees because, un-
der the plan, union representation and the negotia-
tion of a collective-bargaining agreement are predi-
cates for ineligibility. Contrary to the General
Counsel's position, Respondent claims that the mere
existence of a restrictive eligibility provision has not
been held to violate the Act unless the employer em-
phasizes the eligibility restriction in order to coerce
employees during an election campaign, or actually
implements the restrictive provision, and deprives
otherwise eligible employees from the benefits under
the plan. We reject Respondent's contention.
While, as Respondent notes. the Board has indeed
found violations under the Act based on an employ-
er's unlawful conduct in implementing a restrictive
eligibility provision to deprive otherwise eligible em-
ployees of benefits, or by explicitly using the eligibili-
ty restriction as a coercive device during an election
campaign,3 it is clear that such conduct is not a sine
qua non for finding a violation in this area. Rather,
we have consistently stated that the mere mainte-
nance and continuance of a provision in a pension
plan, making lack of union representation one of the
qualifications for eligibility to participate therein, it-
self tends to interfere with, restrain, and coerce em-
ployees who are otherwise eligible in the exercise of
their self-organizational rights.4 Here, Respondent's
plan, in limiting eligibility to employees who are not
covered by a collective-bargaining agreement, in ef-
fect, conditions eligibility on the unrepresented sta-
tus of the employees. It is clear that Respondent pub-
licized this restriction by distributing summaries of
Fhe eleciton was held on December 9. 1977. The Union won the election
and hs since been certified as the collectlse-bargaining representatlive of
the emplosees Inol ed.
See. e.g.. Ftretone Snthetric Fibers Comprtnv. 157 NLRB 1014. 1018.
1019 (1966). enforcement dented 374 F.2d 21 1 (1967): Sunshine Food Mar-
Aker, Inc. 174 NL.RB 497. 504 (19691.
4
See. e.g. Jint O'Donnell. Inc.. 123 NLRB 1639. 1643 (1959): Me/hille
('m(nr lion,. Inc. 142 Nl.RB 1334. 1338 (1963). enfd. 327 F.2d 689 (7th Cir.
1964). cert dented 377 I.S 933. See also .4. 3A Steigera/ld Co. 236 NlRB
151 1978.
NIAGARA WIRES. INC.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the plan to its employees a few weeks before they
were scheduled to vote in the union election. While
there is no reason to assume that the distribution of
the plan was unlawfully motivated, the communica-
tion and the continued existence of such an exclu-
sionary eligibility requirement necessarily exert a
coercive impact on the employees. It is for this rea-
son that an employee benefit plan which restricts
coverage to unrepresented employees is per se viola-
tive of Section 8(a)(1) of the Act, regardless of wheth-
er the employer adds to the misconduct by imple-
menting the restriction or exploiting it during an
organizing campaign.5
Aside from the above, Respondent further claims
that its pension plan, including the language on eligi-
bility, was first drafted in 1968: that it was designed
to apply to all of Respondent's plants-some of
which were unionized at that time and some of which
were nonunion; and that the eligibility provision was
needed to delineate between plants which already
had collective-bargaining agreements containing
pension plans and those which did not. According to
Respondent, the eligibility provision was not meant
to discourage union organizing in nonunion plants,
and the benefits under the plan are not conditioned
on the unrepresented status of the employees. Rath-
er, the restrictive language was meant to exclude only
those employees in plants already covered by a nego-
tiated pension plan. However, notwithstanding Re-
spondent's interpretation of the eligibility require-
ments, the plan itself and the summary of the plan,
which were distributed to the employees, contain no
language regarding eligibility other than that which
automatically excludes unit employees from its cov-
erage as soon as a collective-bargaining agreement is
negotiated on their behalf. Thus, the plan as written
is clearly susceptible of conveying the impression
that the employees would ultimately lose the benefits
under the pension plan if they chose to become mem-
bers of a bargaining unit. If, as Respondent claims,
the eligibility requirements under the plan were only
designed to exclude employees already covered by
negotiated pension plans and were not meant to ex-
clude employees because of their "represented" sta-
tus, the eligibility provision as it now reads is clearly
too broad. Accordingly, we find that in promulgat-
ing, maintaining, and continuing to maintain such a
pension plan Respondent violated and continues to
violate Section 8(a)( ) of the Act.
5 See, e.g., White Sulphur Springs (Cornmpan , d,ba Greenbrier Hlorel. 216
NLRB 721. 727 (1975): Sunshine food Markets, Inc., 174 NLRB 497. 504
(1969); Goodyear Tire & Rubber Cotmpanv, 170 NLRB 539. 550 (1968). nmodi-
fied in part 413 F.2d 158 (6th Cir. 1969); Dura Corporation, 156 NLRB 285.
288. 289 (1965), enfd. 380 F.2d 970 (6th ('ir. 1967).
IV. IH EFEC("I OF HE UNFAIR LABOR PRA('TICES UPON
(OM MERCE
The activities of Respondent set forth in section
III, above, occurring in connection with the opera-
tions described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. 'H1E REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act, we shall order that it
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
Specifically, having found that Respondent contin-
ues to maintain a provision in its pension plan which
by its terms unlawfully excludes from participation
therein otherwise eligible employees who become
subject to a collective-bargaining agreement, we shall
order Respondent to amend the pension plan so as to
clearly eliminate the unlawful eligibility restriction.
The Board, upon the basis of the foregoing facts
and the entire record makes the following:'
CO)N(I.t:SIONS OF LAW
I. Niagara Wires, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. International Brotherhood of Electrical Work-
ers. Local Union No. 1965, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
3. By promulgating, maintaining, and publicizing
a pension plan for its employees which excludes from
participation therein otherwise eligible employees
who select a collective-bargaining representative and
who subsequently become subject to the terms of a
collective-bargaining agreement, Respondent has
violated and continues to violate Section 8(a)(l) of
the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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 Re-
lations Board hereby orders that the Respondent, Ni-
NIAGARA WIRES, INC. 1329
agara Wires. Inc.. Quincy, Florida, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Promulgating, maintaining, and publicizing a
pension plan for its employees which excludes from
participation therein otherwise eligible employees
who become members of a collective-bargaining unit
and who subsequently become subject to the terms of
a collective-bargaining agreement.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Amend its pension plan by eliminating there-
from the provision which by its terms excludes from
participation therein otherwise eligible employees
who become subject to the terms of a collective-bar-
gaining agreement.
(b) Post at its plant located in Quincy, Florida,
copies of the attached nriotice marked "Appendix." 6
Copies of said notice, on forms provided by the Re-
gional Director for Region 12. after being duly
signed by Respondent's representative, shall be post-
ed by Respondent 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 Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
' In he cent that this Order is enforced h a judgment of a nlited States
Court of Appeals. the words in the ntice reading "Posted h Order of the
National Labhor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the nited States (Court of Appeals Enforcing an Order of the
National abor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE Will NOT promulgate. maintain, and pub-
licize a pension plan for our employees which
excludes from participation therein otherwise el-
igible employees who become members of a col-
lective-bargaining agreement.
WtE Will. NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
NIAGARA WIRES. INC.
NIAGARA WIRES, INC. . . _ .