N.L.R.B. v. General Tire and Rubber Co.

• Decision Date: 21 July 1986
• Docket Number: No. 85-5788,85-5788
• Parties: 122 L.R.R.M. (BNA) 3152, 104 Lab.Cas. P 11,883, 7 Employee Benefits Ca 1877 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENERAL TIRE AND RUBBER COMPANY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 585

795 F.2d 585

122 L.R.R.M. (BNA) 3152, 104 Lab.Cas. P 11,883,

7 Employee Benefits Ca 1877

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENERAL TIRE AND RUBBER COMPANY, Respondent.

No. 85-5788.

United States Court of Appeals, Sixth Circuit.

Argued June 13, 1986.

Decided July 21, 1986.

Elliott Moore, Deputy Associate General Counsel, N.L.R.B., Washington, D.C., Ellen O. Boardman (argued), Emil C. Farkas, Director, N.L.R.B., Cincinnati, Ohio, for petitioner.

Ann B. Hale (argued), Jackson, Lewis Schnitzler & Krupman, Atlanta, Ga., Stuart Newman, for respondent.

Before MARTIN and GUY, Circuit Judges, and BROWN, Senior Circuit Judge.

PER CURIAM.

The National Labor Relations Board (Board) is before this court seeking enforcement of its order finding the General Tire and Rubber Company (company) guilty of an unfair labor practice for refusing to negotiate with its employees' labor union over a mandatory subject of bargaining. The company has cross-appealed for review of the Board's order. On appeal, the company claims that the Board erred in failing to find language in the supplemental agreement to be a contractual waiver of the union's right to bargain over the payment of benefits. The company also argues that the Board erred in rejecting its alternative contention that the union waived its right to bargain by neglecting to demand negotiation on the issue of benefits following the company's announcement in December of 1982 of its intent to terminate benefits. Having found no error by the Board in either determination, we require enforcement of the Board's order.

I. SUMMARY OF FACTS AND PROCEEDINGS BELOW

Between 1979 and 1982, the company and the International Union of United Rubber, Cork, Linoleum and Plastic Workers of America, Local No. 665 (union), were parties to a collective bargaining agreement and a supplemental agreement covering production and maintenance employees at the company's Mayfield, Kentucky plant. Unlike the bargaining agreement which addressed employee wages, hours and working conditions, the supplemental agreement concerned various benefit programs provided for the bargaining unit employees.

On August 26, 1982, the parties began negotiating a successor bargaining agreement and supplemental agreement. The existing contracts expired on October 15, 1982, but the supplemental agreement provided On January 25, 1983, the union filed an unfair labor practice charge with the Board alleging that the company violated sections 8(a)(1) and 8(a)(5) ¹ of the National Labor Relations Act (Act), 29 U.S.C. Secs. 151 et seq. (1982), by discontinuing benefits provided by the supplemental agreement without affording the union the opportunity to negotiate or bargain over the issue. The company answered admitting the facts in the complaint but contending that it had not violated provisions of the Act. The sole defense raised by the company was that the union had contractually waived its right to bargain over the issue of benefits when the union agreed to certain language in the supplemental agreement. Thereafter, the parties filed a stipulation of the facts and waived hearing before an administrative law judge, preferring to transfer the case directly to the Board for disposition. The parties agreed that the complaint, answer and stipulation of facts would constitute the entire record in the case.

that the benefits would be paid for ninety days after its termination. Although no accord had been reached on any successor agreements, the Mayfield employees continued to work. On December 16, 1982, the parties met for a negotiating session at which time a representative of the company informed the union that on January 15, 1983, the company would terminate the benefits provided under the supplemental agreement. A similar announcement was made by the company to its employees on January 13, 1983. On January 15, 1983, the company terminated supplemental benefits as announced, no agreement having been reached on any successor contracts.

On February 28, 1985, the Board issued a decision and order finding that the company had violated the provisions of the Act by unilaterally terminating benefits provided by the supplemental agreement. The company filed a motion for reconsideration with the Board, arguing for the first time that the union waived its right to bargain by failing to demand negotiation on the issue following the company's announcement in December of 1982 that it intended to terminate benefits. On May 8, 1985, the Board denied the company's motion because of its failure to demonstrate "extraordinary circumstances" justifying reconsideration, as required by Sec. 102.48(d)(1) of its rules and regulations. In addition to finding that the company had not advanced this legal argument earlier, the Board further found that the parties had not stipulated in their joint statement that the union had failed to demand bargaining following the company's announcement in December of 1982. Thereafter, the Board filed an application with this court for enforcement of the Board's order of February 28, 1985.

II. DISCUSSION

The company concedes that the issue of benefits under the supplemental agreement was a mandatory subject of bargaining, and that the union had a statutory right to be consulted about any proposed changes in the payment of benefits. Nonetheless, the company argues that the language in Article IV, Section 5 of the supplemental agreement constituted a contractual waiver of the union's right to bargain or negotiate over the termination of benefits.

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