Extract
Exxon Research & Engineering Co., 675 (1995)
Exxon Research & Engineering Company; Exxon Company, USA; Exxon Chemical Americas; Exxon Chemical Company and Gulf Coast Industrial Workers Union; Baytown Employees' Federation; International Association of Machinists & Aerospace Workers, Lodge 1051; International Brotherhood of Electrical Workers Local No. 527, AFL-CIO. Cases 16-CA- 15875-2, 16-CA-15875-3, 16-CA-15875-4, 16- CA-15876, 16-CA-15876-2, 16-CA-15883, 16- CA-15888, 16-CA-15893, 16-CA-15898-1, and 16-CA-15898-2
May 31, 1995DECISION AND ORDERBY MEMBERS BROWNING, COHEN, AND TRUESDALEOn April 8, 1994, Administrative Law Judge Timothy D. Nelson issued the attached decision. The General Counsel and the Respondents filed exceptions, supporting briefs, and answering briefs. The Respondents filed a reply brief.The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,1 and conclusions, as modified, and to adopt the recommended Order as modified and set forth in full below.We adopt the judge's findings that the Respondents violated Section 8(a)(5) and (1) by refusing to bargain before implementing unilateral changes to their Thrift Plan (the Plan)2 and violated Section 8(a)(1) by threatening adverse consequences if the Unions pursued bargaining.Contrary to our dissenting colleague, we adhere to our clear-and-unmistakable-waiver standard and decline to apply a less rigid ''contract coverage'' test when determining whether contract language may be invoked as a defense to an alleged failure to bargain over changes in mandatory subjects. The Supreme Court has upheld the clear-and-unmistakable-waiver standard when discussing the impact of a contractual provision on the waiver of a statutory right. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).Applying this standard, we agree with the judge that the contractual language at issue is, at best, ambiguous. The language does not expressly give the Respondents or the trustees the right to make midterm changes to the Thrift Plan unilaterally. Rather, the contract provisions merely state that they do not affect bargaining unit employees' eligibility for participation in the Thrift Plan, which shall be governed by its separate provisions. The separate plan provisions do not specifically grant the Trustees the power to make the changes in Thrift Plan loans involved here. The contracts thus do not cover the changes to Thrift Plan loans that the trustees made here. Consequently, the parties have not bargained concerning that subject.Thus, we conclude that even under the less rigorous contract interpretation standard advanced by our dissenting colleague, the language falls short of establishing ''contract coverage.'' A fortiori, the contract language fails to establish a clear and unmistakable waiver by the Unions of their statutory right. In fact, the contractual provisions at issue in this case expressly preserve the Unions' statutory right to bargain over changes to the Thrift Plan, by stating that they do not constitute a waiver of the rights which the Unions have to bargain concerning the Plan.THE REMEDYThe General Counsel excepts to the judge's remedy for the Respondents' 8(a)(5) violations. The General Counsel asserts that the judge erred by failing to order restoration of the status quo ante and make-whole relief for unit employees. The General Counsel requested rescission of the unlawful unilateral changes and re-institution of benefits that existed under the Thrift Plan as of January 1, 1993, i.e., the rights of adversely affected employees to maintain four loans simultaneously and to borrow as little as $40 at one time.The judge declined to recommend this affirmative relief because he found that ''the Respondents have no powers whatsoever to 'rescind' a change ordered by the Trustee(s), nor in any manner to compel 'reinstitution' of a 'benefit' under the Thrift Plan itself.'' He concluded that such relief required action by the trustees or Exxon as trustor, neither of whom were named as ''Respondents'' or as necessary parties.1 The Respondents have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.2 In adopting the judge's finding that the Respondents violated Sec. 8(a)(5), we do not rely on his consideration of the administrative law judge's decision in T...See the full content of this document
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