Inland Steel Co.

National Labor Relations Board - Board Decisions

Apr 12, 1948

77 N.L.R.B. 1 (N.L.R.B. 1948)

In the Matter Of INLAND STEEL COMPANY and LOCAL UNION Nos.
1010 AND 6t, UNITED STEELWORKERS OE AMERICA, (CIO) 1
Case No. 13-C-2836.-Decided April 12, 1948
Mr. Herman J. De Koven, for the Board.
Pope d Ballard, by Messrs. Ernest S. Ballard, and Merrill Shep-
pard, of Chicago, Ill., and Mr. William G. Caples, of Chicago, Ill., for
the respondent.
Mr. Frank J. Donner, of Washington, D. C., for the Union.
DECISION
AND
ORDER
On January 8, 1947, Trial Examiner Sidney Lindner issued his In-
termediate Report in the above-entitled proceeding, finding that
respondent, Inland Steel Company, had engaged in and was engaging
in certain unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
the respondent, counsel for the Board, and Local Union Nos. 1010
and 64, United Steelworkers of America, herein called the Union,
all filed exceptions and supporting briefs.
On June 3, 1947, the Union filed a motion to reopen the record for
the purpose of introducing documentary evidence purporting to show
that at a time after the hearing, social insurance plans (including
plans for old age retirement benefits and sick and accident benefits)
were subjects of collective bargaining throughout the basic steel in-
dustry of which the respondent is a part, and that such collective bar-
gaining has resulted in a number of joint agreements embodying
provisions for employer-financed social insurance plans. This mo-
tion is opposed by the respondent on the ground that the proffered
evidence is immaterial to the central issue of whether pension plans
miust be the subject of collective bargaining between an employer and
the representative of its employees under the Act, and on the further
ground that, insofar as the proffered evidence tends to show what
may be appropriately included in a collective bargaining contract,
it is cumulative.
' The correct name of the Union is as set forth above, in accordance with a stipulation
of the parties.
77 N. L. R. B., No. 1.
1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We do not agree with the respondent that the proffered evidence is
immaterial, because one of the grounds upon which respondent bases
its position that the Act does not obligate bargaining about pension
and retirement plans is that such plans are not, as a practical matter,
adaptable to the processes of collective bargaining or to the device
of a trade union agreement. Clearly, therefore, actual proof of the
existence of trade union agreements providing for employer-financed
pension and retirement plans or for similar employee benefit plans pro-
vides a valid means for the Union to meet the respondent's position and
would be relevant. Such proof, however, is available in the record as
it slow stands,' as well as in the facts reported in official publications of
Government agencies of which we take judicial notice.3 Accordingly,
we hereby deny the Union's motion for leave to reopen the record.
On November 18, 1947, the Board at Washington, D. C., heard oral
argument, in which respondent and the Union participated.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing, and finds that no prejudicial error was committed. The
Board has considered the Intermediate report, the exceptions and
briefs filed by respondent, the Union, and the Board's counsel, the argu-
ments of counsel, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner 4
insofar as such findings, conclusions, and recommendations are con-
sistent with the decision and order which follows.
The Trial Examiner found that the respondent had engaged and is
engaging in violations of Section 8 (5) and (1) of the Act-, by failing
and refusing to bargain with the Union about the application or modi-
fication of the terjns of an old age retirement and pension program.
2 Respondent makes no claim that the nature of the industry is a factor in the possible
"',practicability of the trade union agreement device.
' Cf Matter of Sorg Paper Co., 25 N L. R B . 936, 950.
4 Respondent apparently contends that adoption of the opinion of the Trial Examiner
on the question of law presented by the issue of statutory construction would constitute a
violation of its constitutional right to a fair hearing . This contention is based upon the
fact that, for the purpose of seeking enlightenment as to certain pertinent interpretative
facts, the Trial Examiner did not confine his search to the numerous publications of various
econonuc and labor relations authorities which were included in the briefs of the parties
and were incorporated in the record by stipulation of the pasties we find no merit to this
contention For, as the Supi eme Court has plainly indicated, resort by officials acting in a
judicial capacity to all relevant extrinsic aids to meaning of statutory terms is an appro-
priate corollary to the exercise of the judicial function and is commanded by common sense
See e g, Phelps Dodge Corp v. N L R B , 313 U S 177, 183-186, J. I Case Co v
N L R B , 321 U S 332, 335 ; N L R B v Heai st Publications, et al , 322 U. S. Ill,
121-122 , 127; Cf Republic Aviation Co v N L R 13 , 324 U S . 793, 799-800 See also
Ziskind , Use of Economic Data in Labor Cases, 6 Univ of Chicago Law Review 607 (1939).
Moreover, the major portion of the information we have here used is available in numer-
ous official publications of government agencies which we cite herein
As we have indicated above , we may and do take judicial notice of the facts reported in
such publications.
6 Section 8 (5) and (1) of the Act have been reenacted as Section 8 (a) (5) and Section
8 (a) (1)
INLAND STEEL COMPANY 3
This program was originally established by respondent at a time ante-
dating the employees' designation of a statutory representative in
1941; it was unilaterally amended in December 1944 6 and in December
1945, and, as so amended, its terms were invoked in or after February
1946 to effect the separation of employees from active service. The
Examiner's findings as to the existence of unfair labor practices stem
from the respondent's failure and refusal to discuss with the Union, in
1945 and 1946, the amendment and application of the terms of the pen-
sion and retirement program and their relation to the collective bar-
gaining contract then in effect. In the opinion of the Trial Examiner,
the respondent, by unilaterally amending the pension program, ac-
tually changed the employees' "wages" and "conditions of employ-
ment" as these terms are used in Section 9 (a) of the Act.
The factual findings respecting the respondent's refusal and failure
to discuss its pension program with the Union are not seriously dis-
puted. The legal conclusion that these acts constitute unfair labor
practices within the meaning of Section 8 (5) and (1) of the Act is,
however, squarely challenged on two principal grounds. One is
premised upon a construction of the Act as excluding pension and
retirement plans from the mandatory area of collective bargaining.
The other is premised upon a construction of the collective bargaining
agreement in effect between these parties at the time the refusals to
bargain occurred, as containing a waiver by the Union of any right
to bargain about pension and retirement programs. We shall consider
each of these broad defenses separately.
A. Respondent's contention as to the meaning o j the statutory
provisions
The respondent claims that the term "`wages," as used in the Act,
means the "wages earned" by employees for actual performance of
work or productive activity, and that pension benefits are based on the
economic philosophy that holds that such benefits are not earned by
the expenditure of productive effort on the part of employees, but are
determined by the length of time over which employees perform their
work.7 We are of the opinion, however, that regardless of the validity.
of this economic philosophy of pension benefits, there is no basis for
6In setting forth the facts concerning the first amendment of the pension program, the
Trial Examiner states that the amendment was effected December 1943. The record shows
that the amendment was executed by respondent in December 1944 or January 1945, but
the terms of the amendment became retroactively effective in December 1943.
S This is the opinion of one expert in the field of the construction of industrial pension
plans See A. D Cloud, Pensions in Modern Industry (Chicago, 1930), pp. 28, 439, 441,
444-445, Cf. Murray W. Latimer , Industrial Pension Plans (Industrial Counsellors, Inc.,
1932), pp 9-10, 751-754, 764-766, 771-789, 894=921.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concluding that such a narrow and technical definition of "wages" was
intended by Congress in delineating the statutory area of collective
bargaining.
One of the broad purposes of the Act, as set forth in Section 1
thereof, is to encourage collective bargaining as to "wage rates and the
purchasing power of wage earners" as a means of eliminating indus-
trial strife. To-implement this objective, the Congress, in generally
defining the ambit of obligatory collective bargaining, used not only
the specific terms "rates of pay" and "hours of employment," but also
the broad generic and widespread phrase "wages and other conditions
of employment." It is significant that the same Congress which origi-
nally enacted the statutory provisions here involved also enacted the
Social Security Act, and that the provisions of both statutes were
part of the over-all legislative scheme of broad social legislation."
In the Social Security Act, Congress defined the taxable "wages" paid
for "employment" as embracing all "remuneration" for "any serv-
ice . . . performed . . . by an employee for his employer." 9 The
Supreme Court recently stated that in employing these terms for the
purpose of accomplishing broad social policies, Congress was not
thinking of "wages earned" for "work done," but of "the entire em-
ployer-employee relationship for which compensation is paid to the
employee by the employer." 10
With due regard for the aims and purposes of the Act and the
evils which it sought to correct, we are convinced and find that the
term "wages" as used in Section 9 (a) must be construed to include
emoluments of value, like pension and insurance benefits, which may
accrue to employees out of their employment relationship. There is
indeed an inseparable nexus between an employee's current compen-
8 The Fifth Circuit Court of Appeals recently admonished the Board that "definition by
Congress in the Social Security Act . . . should have much persuasiveness in any attempt
to define (the same terms) under the National Labor Relations Act." N. L R B. v. John
W. Campbell, Inc, 159 F. (2d) 184, 186
8 49 Stat 642-643, Sec. 907, 42 U S C A, #1107.
is Nierotko v. Social Security Board, 327 U. S 358, 365-366 The Supreme Court ap-
pended the following footnote, pertinent here, to the statement above quoted
"For example the Social Security Board's Regulations No. 3 in considering 'wages' treats
vacation allowances as wages, 26 CFR 1940 Supp., 402, 227 (b) "
Compare Armour & Co v. Wantock, 323 U S. 126, 133, 65 S. Ct 165, 168. Treasury De-
partment Regulations No. 91 relating to the Employees' Tax under Title VIII of the Social
Security Act, 1936, Art. 16, classifies dismissal pay, vacation allowances or sick pay, as
wages. Regulations 106 under the Federal Insurance Contributions Act, 1940, pp 48, 51,
continues to consider vacation allowances as wages. It differentiates voluntary dismissal
pay.' . . . In regulations governing the collection of income taxes on or after January 1,
1945, 58 Stat 247, the Bureau of Internal Revenue classified vacation allowances and dis-
missal pay as wages under the following statutory definition of wages :
"Sec. 1621. Definitions. As used in this subchapter-
"(a) Wages. The term 'wages' means all remuneration (other than fees paid to a public
official) for services performed by an employee for his employer, including the cash value of
all remuneration paid in any medium other than cash ; except that such terms shall not
include remuneration paid . . See 26 CFR, 1944, Supp 405, 101 (d),and (e)
INLAND STEEL COMPANY 5
sation and his future pension benefits. Regardless of the particular
economic considerations that may motivate the establishment of a
pension system, the fact remains that the employer's financial contri-
bution thereto, in whole or in part, on behalf of the employees pro-
vides a desirable form of insurance annuity which employees could
otherwise obtain only by creating a reserve out of their current money
wages or by purchasing similar protection on the open market. In
substance, therefore, the respondent's monetary contribution to the
pension plan constitutes an economic enhancement of the employee's
money wages. Their actual total current compensation is reflected
by both types of items it
Realistically viewed, this type of wage enhancement or increase,
no less than any other, becomes an integral part of the entire wage
structure, and the character of the employee representative's interest in
it, and the terms of its grant, is no different than in any other case
where a change in the wage structure is effected.12 Indeed, the practice
of offering retirement benefits in lieu of current wage increases is not
uncommon in bargaining between employers and employees' repre-
sentatives.
Moreover, as indicated above, in all fields of law dealing with
Congressional legislation for the protection of public rights, the term
"wages" has consistently been construed to include increments, such
as retirement benefits or other types of dismissal pay rights, which
flow to employees because of their longevity. Thus, in exercising
our statutory power under Section 10 (c) of the Act to "reinstate with
back pay," we have, in effect, uniformly held that pension and other
"beneficial" insurance rights constitute a part of the employees' real
wages and have accordingly required restoration of those benefits as
part of our make whole order. The Courts have approved 13
11 As is pointed out by the Trial Examiner in his Report , economists and experts in the
field of labor relations concur in this view. Typical of this conclusion is the following
statement :
"The payment of insurance of his workers assumed by an emplo3 or must be consid-
ered as an additional compensation for services rendered differing only in form of
payment fioni the ordinary weekly wage " Lieberman, The Collective Labor Agree-
ment, p 132 ( Harper Bros , 1939) See also, Z Clark Dickinson , Collective Wage
Determination (Ronald Press, 1941), pp. 72-74
Compare the decision of the Fust Circuit Court of Appeals in Hackett v Comm'r of In-
ternal Revenue, 159 F (2d) 121, where the Court held that premiums paid for by the
employer for the purchase of employee annuity contracts were taxable as income to the
recipient even though the employees had no right to receive cash instead of the annuity
contract The Court stated that the receipt of the annuity constituted an economic
benefit conferred as additional compensation which is the equivalent of cash See also
Hubbell v Comm'r of Internal Revenue, 150 F. (2d) 516 (C C A 6).
11 Cf N. L R B. v. J H Allison Co, 165 F. (2d) 766 (C C A 6), enforcing 70 N L.
It. B. 377.
"Butler Brothers et al v N L. R B., 134 F. (2d) 981, 985 (C. C A 7), enforcing 41
N L. R B 843, 871 ; N. L. R B v. General Motors Corp., 150 F. (2d) 201 (C. C A 3),
enforcing with modifications not here pertinent , 59 N L R B 1143 , 1154, 1156 . See also,
788886-49-vol 77-2
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the field of taxation, pensions and retiring allowances have regu-
larly been taxed by the Treasury Department since 1918, as income
to the recipients by application of the Internal Revenue Act definition
of wages as "compensation for personal services." The validity of
this construction of the Revenue Act by the Treasury Department has
been expressly sustaihed'by the courts 14 One court decision, .for ex-
ample, uses the following pertinent language (Hooker v. Hooey, supra
note 13, 27 Fed. Supp., at p. 490) : "A pension is a `stated allowance or
stipend made in consideration of past services on the surrender of
rights or emoluments to one retired from service.' Webster's New
International Dictionary. It cannot be doubted that pensions or re-
tiring allowances paid because of past services are one form of com-
pensation for personal service and constitute taxable income."
Likewise in the administration of the Bankruptcy Act provisions
for the award of priorities to "wages . . . which have been earned"
up to certain sums,15 a Federal Court, sitting in equity, felt impelled
by the economic foundation of the doctrine of dismissal or severance
pay, to hold that such dismissal pay obligations accruing out of a
collective bargaining contract, constituted "wages," entitled to the
same priorities as other wage claims .16
The Trial Examiner found that the pension plan constituted a
``condition of employment" as to which collective bargaining is oblig-
atory under the Act. The respondent concedes that the retirement
N L. R B . v. Stackpole Carbon, 128 F (2d) 188 , 191 (C C . A 3), where the Court, in
commenting upon an order requiring restoration of insurance rights to the victim of an
employer ' s discrimination , said • This conclusion seems to us to be in line with the pur.
poses of the Act, for the insurance rights in substance were part of the employee's wages "
The same principle, so far as the field of labor relations law is concerned , is given effect,
inter alto, in decisions of the war Labor Board cited by the Trial Examiner at p 26. and
note 10 of the Intermediate Report, in the Basic Steel case, in which respondent was a
party, 19 W L. B. 568, 572 , in the decision of a labor arbitrator, In Be Fifth Avenue
Coach Co , 4 Labor Arbitration Reports, 548, 562 , and in the definitions of dismissal com-
pensation made by the U S Bureau of Labor Statistics, Bulletin No 686, p 71, Bulletin
No 80S , p 2 See also our decision in flatter of C. B Cottrell & Sons Co , 34 N L R. B
457, 469-470
Hooker v Hooey, 27 F Supp 489, 490 (Dist U S D N Y ), affirmed per curiam on
opinion of District Court, 107 F. (2d) 1016 (C C A 2). Cf Lincoln Electric Co. v Com-
m,ssioncr, 162 F ( 2d) 379 (C C A, 6) ( insurance premiums paid by an employer on an
employee retirement plan held to be "ordinary and necessary expenses " within meaning
of Internal Revenue Act and as such, deductible for income tax purposes ). Compare, also,
the following cases interpreting various kmds'of employer provisions as being "compensa-
tion for personal services" for tax purposes . Commissioner v Smith, 324 U S 177 ; Old
Colony Trust Co. v. Commissioner of Internal Revenue , 279 U. S . 716, Hackett v. Com-
missioner of Internal Revenue, 159 F . ( 2d) 121 (C C A 1) ; Hubbell v Commissioner
of Internal Revenue, 150 F . ( 2d) 516 (C. C A 6) ; Oberwinder v Commissioner of Internal
Revenue, 147 F. (2d) 255 (C C. A 8) ; Varnedoe v. Allen, 158 F (2d) 467 (C C A 5) ,
lVilkie v Commissioner of Internal Revenue, 127 F (2d) 953 (C. C. A. 6) , Levey v. Hel-
verinq, 68 F. (2d) 401 (App D C.) ; See also George A. Fuller Co. v. Brown, 15 F (2d)
672, Robert v Mays Mills, 114 S E 432, for discussion of general principles here perti-
nent
is Sec 64, sub. a ( 2) of the Bankruptcy Act, 11 U S C A , No 104, sub. a (2).
is In Be Public Ledger, 161 F (2d) 762 (C C. A 3).
INLAND STEEL COMPANY 7
rule, which compels severance of the employment relation at the age
of 65, affects tenure of employment, but contends that the Act does
not compel bargaining on such matters. The burden of the re-
spondent's argument is that the term "conditions of employment" has
no broader meaning than that perhaps spontaneously suggested by the
term "working conditions," and that it therefore refers to the physical
conditions under which employees are compelled to work rather than
to the terms or conditions under which employment status is afforded
or withdrawn.
We believe, however, that the express definitions of the Act itself
and the controlling judicial and other authoritative interpretation
of the Act, render the respondent's contention without merit.
A synthesis of the definitions in Section 2 (4), (5), and (9) of the
Act and the reasonable implication of the proviso to Section 8 (3),
viewed in relation to Section 8 (5), compel the conclusion, and we find,
that matters affecting tenure of employment, like the respondent's re-
tirement rule, lie within the statutory scope of collective bargaining."
Any other view would remove bargaining with respect to such matters
as seniority and union security provisions from the conference table
to the picket line.18 Indeed, the Supreme Court has specifically held
that the statutory scope of collective bargaining extends to matters
involving discharge actions.19 Significantly, Senator Wagner, in ad-
dressing the 80th Congress with respect to the 1947 amendatory legis-
lation, recently stated that the term "condition of employment" as used
in the original Act was intended to have a broader meaning than
"working conditions" and included such subjects as "pension plans,
and insurance funds which properly belong in the employer-employee
relationship . . ." (93 Congressional Record 3427).
Respondent would nevertheless have us employ the more restrictive
construction of the Act it has proposed because, allegedly, there is
evidence in the legislative and historical background of the Act, re-
quiring the inference that exclusion of such plans from the area of
obligatory bargaining was specifically intended by the 74th Congress,
and further, because effective contractual regulations of the terms of
such complex schemes as the one here involved could not, as a practical
matter, be achieved, within the settled framework of collective bar-
gaining through fixed units and short-term contracts.
"The Report of the Senate Committtee on Education and Labor on the Act pointed
out that the broad phraseology of Section 2 (5) of the Act was deliberately framed "to
extend to all organizations of employees that deal with employers in regard to 'grievances'
and 'labor disputes ,' " the guarantee of Section 7 and the protection of Section 8 Report
No 573 on S . 1958, 74th Cong , 1st Sess . (1935), at p 7.
16 These matters form a substantial part of the historical picture of bargaining demands
customarily proposed or achieved by unions as part of collective bargaining
11 See National Licorice Co. v N. L R. B , 309 U S 360-361
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent's claim that evidence of exclusion of the kind of
group insurance schemes here involved can be found in the legislative
background of the Act rests upon certain contemporaneous statements
made by Senator Wagner and the Senate Committee on Education
and Labor regarding industry-supported pension and insurance
schemes. These framers of the Act told Congress that the provisions
of the Act were deliberately drawn, insofar as pension and other group
insurance schemes were involved, with two objectives in mind: (1) to
include the discriminatory undertaking by employers of the support
of pension or other welfare insurance plans, or the discriminatory
application of the terms of such plans, within the reach of the statu-
tory prohibitions; and (2) to include nothing in the Act which would
hamper or otherwise restrict the then growing tendency 20 of employers
to institute or contribute to such plans.21 The first objective was ac-
complished by the drafting of the provisions of Section 8 (2) and 8 (3)
of the Act; the second by the specific enumeration in Section 2 (5) of
the type of employee-organization functions which the Congress de-
2s Support for such employee benefit schemes had then been assumed in some cases at
the request of organized employee agencies whose functions were not confined solely to
representing employees in bargaining, but also included the administration of various types
of welfare funds The employer's undertaking was frequently incorporated into the col-
lective contract. See, e. g , as to the unemployment insurance plan contracted for by
various national unions representing employees in the clothing and other well-organized
industiies : U. S Bureau of Labor Statistics, Bull No 393, pp 51, 52, 55 (Trade Agree.
ments 1923, 1924) ; Bull No 448, pp 69, 78-80 (Trade Agreements 1925) ; Bull. No.
448, pp 70-71, 78-79 (Trade Agreements 1926) , Bull No 468, p 71, Bull No 491, pp.
701-703 (Handbook of Labor Statistics, 1929 Ed ) , Bull No 541, pp 673-675 (Hand-
book of Labor Statistics, 1931 Ed ) ; Bull No 616, pp 816-818 (Handbook of Labor Statis-
tics, 1936 Ed.) ; as to the life insurance and sickness and pension benefit plans contracted
for by various locals of the Amalgamated Association of Street and Electric Railway
Employees and by the International Brotherhood of Electrical Workers: U. S Bureau of
Tabor Statistics, Bull No 541, pp 383-385 (Handbook of Labor Statistics, 1931 Ed.) ;
Monthly Labor Review, Vol 30 (Feb 1930) pp. 10-12 (Life Insurance and Old Age
Pensions Established by Collective Agreement) ; as to establishment and administration
of group benefit schemes through employer-employee organizations of one company, gen-
erally, see U S Bureau of Labor Statistics, Bull No. 634, pp 63-64 (Characteristics of
Company Unions, 1935) , see also the testimony of various unaffiliated one-company union
representatives at the hearing on the bill before the Senate Committee on Education and
Labor (74th Cong, 1st Sess) at pp 284-286, 298-303, 398, 415
21 The Report of the Senate Committee on Education and Labor on the 1935 Act (Senate
Report No 573, on S. 1958, 74th Cong , 1st Sess , p 10) articulates the legislators' concern
with this problem as follows :
This bill does nothing to outlaw free and independent organizations of workers who
by their own choice limit their cooperative activities to the limit of one company. Nor
does anything in the bill interfere with the freedom of employers to establish pension
benefits, outing clubs, recreational societies and the like, so long as such organizations
do not extend their functions to the field of collective bargaining, and so long as they are
not used as a covert means of discriminating against or in favor of membership in any
labor organization Such agencies, confined to their proper sphere, have promoted amicable
relationships between employers and employees and the committee earnestly hopes that
they will continue to function."
To the same effect, see Senator Wagner's statement on this and a predecessor bill at 78
Cong Record, 3443-3444 , 79 Con$ Record, 2371-2372, 7570 ; and at p 15 of the record of
the hearings on the bill held by the House Committee on Education and Labor, and on
p 41 of the hearings on the bill held by the Senate Committee on Education and Labor
(74th Cong., 1st Sess.).
INLAND STEEL COMPANY 9
sired should be free of employer domination or control. In other
words, the legislative history relied on by the respondent was de-
veloped in connection with Section 8 (2) of the original Act; and it
indicates no more than that Congress desired to assure employers that
their contribution to an organization administering a pension plan
would not be considered unlawful under Section 8 (2) of the Act pro-
vided such organization did not otherwise come within the definition
of Section 2 (5) of the Act and that the administration of such plan
was not designed to discourage or encourage membership in a bona
fide labor organization.
We find nothing in these statements of the proponents of the Act
about industrial insurance schemes which negatives the subsumption
of the monetary or other aspects of employee insurance schemes under
a broad interpretation of "wages" or "conditions of employment" or
which evidences Congressional adoption of the narrower sense of these
terms.
Respondent also contends that the absence of a general practice of
collective bargaining with respect to pension or other similar social
insurance schemes before 1935 supports its position that bargaining
within the meaning of the Act does not include such matters. In
support of this position, the respondent relies upon the Supreme
Court's statement in the Railroad Telegrapher's case 22 that the Act
is generally "considered to absorb and give statutory approval to the
philosophy of bargaining as worked out by the labor movement in
the United States." However, this principle, as used by the Supreme
Court in that very case, offers no support for the respondent' s posi-
tion. The Supreme Court there states that statutory collective bar-
gaining includes bargaining "about the exceptional as well as routine"
matters affecting wages, hours, and other conditions of employment
and that collective bargains "need not and do not always settle or
embrace every exception." (321 U. S., at p. 347.) In our opinion
the Supreme Court implicitly recognized that the general scheme of
bilateral negotiation was the means contemplated by the Act to adjust
any difference between employers and employees arising directly out
of the employment relationship, and that this means-collective bar-
gaining-was to be used irrespective of the fact that the specific dif-
ference to be adjusted had not previously been regularly considered
in the framing of collective bargains 23 This view is not only con-
sistent within, but is supported by, the fact that Congress, in seeking
22 Order of Railroad Telegraphers V. Railway Express Agency , 321 U S 342, 346.
22 See also, N. L. R B . v Jones d Laughlin Steel Corporation , 301 U. S 1, 45, where
the. Supreme Court says, "The theory of the Act is that free opportunity for negotiation
with accredited representatives of employees is likely to promote industrial peace and may
bring about the adjustments and agreements which the Act itself does not attempt to
compel."
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to promote industrial peace through collective bargaining , did not
attempt to catalog all the various matters which might give rise to
industrial strife, absent the ameliorating influences of the bargaining
process.
In any event , we are convinced , and we find that the historical
.pattern of collective bargaining with respect to social insurance plans,
whatever it be ,24 affords no reasonable basis for supplying a Con-
gressional intent to exclude such plans from the ambit of obligatory
bargaining.25
Nor do we believe , as contended by the respondent , that contractual
regulation of the terms of pension plans cannot , as a practical matter,
ever be achieved within the settled framework of collective bargaining.
As the Supreme Court has recently recognized , the terms of employer
support of complex beneficial programs of the type here involved
"normally constitute the subject matter of collective bargaining,"
United States v. United Hine 1W17orkers o l America , 67 S. Ct. 677, 693,
330 U. S. 258 , and are demonstrably adaptable to the trade union
agreement device.26 There is no question that the bargaining task
Z4 It is unreasonable to expect that, prior to 1935, unions would have been able to ne-
gotiate effectively for anything more than the establishment of the routine terms of wage
hours, and conditions of employment, because the failure of most employers voluntarily to
accept the processes of collective bargaining placed most unions in a weak position
Nevertheless, so far as facts can be assembled about the bargaining platforms of unions
at that time, it plainly appeals that at the bargaining table, unions approached the problem
of bargaining for the protection of employees against the hazards of unemployability both
directly, in seeking financial benefit provisions in the collective contract, and indirectly, by
seeking measures designed to protect against the industrial causes of ill health, premature
ageing and insecuie employment See a g, the authorities cited supra, at footnote 20,
and those cited by the Trial Examiner at page 27 of the Intermediate Report, footnotes
11, 12, and 13 See also the following • U S Bureau of Labor Statistics Bull No 393,
pp 3, 5, 9, 11, 13, 14, 15, 20, 33, 34, 37, 38, 42, 59, 60, 64, 67, 68, 70, 71, 74, 81, 94-95, 106,
110, 118, 123, 126 (Trade Agreements, 1923, 1924) ; Bull. No 419, pp 5-6 (Trade Agree-
ments, 1925) , Bull No 448, p 8 (Trade Agreements, 1927) , Bull No 491, pp 476, 480
(Handbook of Labor Statistics, 1929 Ed , The Report of the Convention Proceedings of
the A F L (1929, pp 48-51, 288-290) , (1930, p 83) , (193.1, pp 93-94, 111) , (1934,
pp 117-118) , (1935, p 41) ; and the various summaries of trade union agreement provi-
sions in the Labor Department's Monthly Labor Reviews during the period front 1930
through 1935
25 Respondent further argues that the Heinz case (H. J. Heinz Company v -N. L R B.,
311 U. S 514) requires the Board to limit the scope of the statutory obligation to bargain
to matters which historically had been encompassed in the practice of collective bargaining
as known at the time the Wagner Act was passed That argument is based upon the mis-
taken assumption that the Heinz case and this case present analogous situations. There
the Board and the Court were required to decide whether signed contracts historically were
part of the technique of collective bargaining in order to determine whether Congress in-
-tended to import an obligation to make sieved contracts into the Act, as part of the statu-
tory obligation to bargain collectively, the Act having been silent on that question But
here Congress specified the subject-matters on which collective bargaining was required,
including "wages" and "conditions of employment "
20 See, titter alia, U S. Bureau of Labor Statistics Bulletins cited in footnote 20, supra,
Bulletin No. 686 (Union Agreement Provisions, 1942), pp. 194-201 ; The Department of
Labor Publication, Monthly Labour Review, February 1947, pp 141-214 ("Collective Bar-
gaining Development in Health and Welfare Plans") ; the study made by Baker and Dalil,
Group Health Insurance and Sickness Benefit Plans in Collective Bargaining (Princeton
Univ, 1945), and the study made by Robert J. Rosenthal, Union-Management Welfare
Plans, pp. 64-94 of Quarterly Journal of Economics, November 1947 (Harv Univ.).
INLAND STEEL COMPANY 11
is a more difficult one where, as is the case with respondent, the actual
negotiations may revolve around an operating pension insurance
scheme covering employees variously represented in many units. But,
as the Trial Examiner points out, the difficulties in such a case go to the
question of what terms may be agreed upon practically in the course of
bargaining, rather than to the question of whether any bargaining at
all can take place.
Because the acts of the respondent, upon which the charge of unfair
labor practices was based, occurred before August 22, 1947, when the
statute was amended by the present Congress, we have so far only
discussed the application of the original statute. The complaint,
however, alleges, and the Trial Examiner has found, that respondent
is continuing to engage in unfair labor practices; and the legal valid-
ity of this finding has also been placed in issue by the respondent. We
must therefore determine whether, in reenacting and amending the
statute, the present Congress either narrowed or broadened the scope
of collective bargaining as conceived in 1935.
There is compelling evidence in the legislative history of the
amended Act that the 80th Congress recognized that pension and
retirement plans and other similar "welfare insurance" schemes fell
within the meaning of the terms "wages or other conditions of employ-
ment" as written in 1935, and that it was willing to allow that
conclusion to stand.
Thus, in the original bill introduced in the Senate by Senator Ball
(S. 360, 93 Cong. Rec. 629), the phrase "other working conditions"
was substituted for the phrase "other conditions of employment"
which originally appeared in the Act. The distinction between the
two phrases was discussed by various witnesses who appeared before
the Senate Committee in charge of the bill. On this occasion, the
Board's witness, in opposing the proposed change, stated : 27
"This might easily be construed to withdraw statutory pro-
tection from or to forbid bargaining with respect to pension
plans, fines for work stoppages, welfare funds, use of union-
labeled goods, hiring hall arrangements and other matters fre-
quently not considered working conditions."
On April 11, 1947, Senator Wagner brought this fact, to the atten-
tion of the Senate in a statement in which he pointed out (93 Cong.
Rec. 3427) :
By substituting the narrower term "working conditions" for
the present broader term "conditions of employment" the bill
27 Hearings before the Committee on Labor and Public welfare on S 55 and S J. Res.
22, 80th Cong., 1st Sess. (1947), p. 1914.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would narrow the scope of collective bargaining to exclude many
subjects such as, perhaps, pension plans and insurance funds
which properly belong in the employer-employee relationship
and in regard to which the employer should not have the power
of industrial absolutism.
The ensuing debate led to a deletion of the proposed words of limi-
tation from the final bill that Senator Taft reported to the Senate on
April 17, 1947 (S. 1126). In it, the phrase "conditions of employ-
ment" reappeared. It remained in the bill which eventually became
the Act, as amended.
The original bill passed by the House and sent to the Senate
(H. R. 2030; 93 Cong. Rec. 3747) excluded insurance and welfare
plans from the scope of collective bargaining. The bill limited
collective bargaining to :
(i) wage rates, hours of employment, and work requirements;
(ii) procedures and practices relating to discharge, suspension,
lay-off, recall, seniority, and discipline, or to promotion, demo-
tion, transfer and assignment within the bargaining unit; (iii)
conditions, procedures and practices governing safety, sanitation,
and protection of health in the place of employment; (iv) vaca-
tions and leaves of absence; and (v) administrative and proce-
dural provisions relating to the foregoing subjects (ibid.).
On April 17, 1947, Representative Lodge offered an amendment to
this section of the pending bill which would broaden its narrow de-
finition of collective bargaining to include
"pension plans, group insurance benefits, and hospitalization bene-
fits." (93 Cong. Rec. 3712).
In support of his amendment, Representative Lodge stated (ibid.) :
... The purpose of this amendment is to minimize the inter-
ferences with collective bargaining which are implicit under the
section to which this'amendment applies. I regard such inter-
ferences with collective bargaining by the Government as un-
warranted. These matters should be left for negotiation between
labor and management.
Representative Madden, who spoke in favor of the amendment
stated (ibid.) :
Bargaining on this type of welfare system is completely within
the area of appropriate collective bargaining under the present
provisions of the Act.
INLAND STEEL COMPANY 13
Representative Lodge's amendment was defeated ( 93 Cong. Rec.
3713 ). But the restrictive definition of collective bargaining con-
tained in the original House bill was eliminated in the Senate-House
Conference bill which passed the House on June 4, 1947 (93 Cong.
Rec. 6549).
The language and the legislative history of Section 302 of the Act
also reveal Congressional recognition of the demonstrable adaptability
of the collective bargaining process to the establishment or control
of industry-supported welfare schemes. It further discloses Congres-
sional affirmation of the inclusion of such schemes within the statu-
tory scope of collective bargaining.
Section 302 restricts employer payments to employee representatives.
The proviso to subsection (c) of Section 302, however, permits, sub-
ject to various conditions, employer contributions to joint employer-
union administered trust funds set up for the purpose of providing
medical care , pensions and insurance for employees and their families.
Congress recognized that many such funds had already been established
by collective agreement prior to 1947 and accordingly, to prevent a
retroactive application of the restrictions of Section 302 to funds
already established , Congress provided in subsection (f) that Section
302 would not apply to any contract in force on the date of enactment
of the Act, until the expiration of such contract or until July 1, 1948,
whichever first occurred . In subsection ( g) of Section 302, Congress
further provided :
Compliance with the restrictions . . . upon contributions to
trust funds , otherwise lawful , shall not be applicable to contri-
butions to such trust funds established by collective agreement
prior to January 1, 1946, nor shall subsection ( c) (5) (A) be
construed as prohibiting contributions to such trust funds if
prior to January 1 ,, 1947, such funds contained provisions for
pooled vacation benefits. ( Italics supplied.)
We conclude , therefore , as did the Trial Examiner , that where, as
here, the employees in an appropriate unit have designated an ex-
clusive bargaining representative , the employer of such employees is
under a statutory duty to bargain collectively with the accredited
representative concerning the terms of a pension and retirement
program.
B. The respondent 's alleged justification of its refusal to bargain
with the Union
The respondent seeks to justify its failure to notify and to con-
sult with the Union about the expansion of its pension undertaking
in December 1945, and its refusal to entertain the Union 's grievance
14 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARb`-
about the application of the retirement rule and its effect upon the
contract terms on more than its erroneous conception of a limited
obligation under the Act. It also relies on the "management rights"
clause in the contract and the Union's failure, when the collective con-
tract was negotiated, either to protest or otherwise to seek to qualify
the effect of the respondent's first expansion of the retirement in-
surance program. In other words, the respondent here asserts that
the` Union waived' its right to negotiate about the pension plan or to
protest any unilateral decisions as to the operation or scope of benefits
of the pension-retirement program, at least for the duration of the
contract.
The contract contained no specific waiver. The most that can be
assumed from the Union's failure during the contract negotiations to
bargain or affirmatively to evince an interest in the immediate negotia-
tion of the retirement program; 'is that the Union acquiesced in the
program as it existed before, and carried over that program into the
contract year. Such "acquiescence," however, was given at a time
when the separation-because-of-age policy was effective, if at all, only
on a case-to-case basis, and when the Union contemplated subsequent
negotiation-specifically delayed because of wartime conditions-of
a severance pay structure that would undoubtedly have required the
discussion of the retirement benefits then existing.28 We cannot view
this kind of "acquiescence" as constituting a waiver of the Union's
right to insist on the maintenance of the status quo as it existed at
the time of the contract, or of its right to seek an opportunity to
bargain about reshaping the contractual relationship to the new
economic conditions. Moreover, if respondent, in fact, had believed
that the contract clauses or the Union's "acquiescence" relieved it from
an obligation to recognize the Union's demands during the contract
period, the merits of its position could have been established through
28In the Basic Steel case, 19 W L B . 568 (in which the respondent and Union were
parties ) one of the issues submitted to the war Labor Board concerned the inclusion in
collective agreements between employers in the basic steel industry and various locals of
the United Steel Workers of America ( C. I. 0 ) of a severance pay, structure designed, in
part, to provide a monetary income for steelworkers who would become displaced at the
time industrial operations would be reconverted from a wartime to a peacetime basis
The War Labor Board , although declining to approve the severance pay structure sub-
mitted by the Union, approved the principle, and ordered the parties to negotiate within
60 days following the issuance of the directive order , for "reasonable" severance pay allow-
ances appropriate for each plant through the procedures of collective bargaining. The
directive order issued November 25 , 1944, contained the following language ( 19 W L B.
at 572 ) which was incorporated in the collective agreement of April 1945 together with a
specific clause stating ' that the parties would negotiate about the matter at a later unspeci-
fied date:
Among the provisions which should be worked out through collective bargaining are
those relating to the eligibility of employees , the amount of severance pay benefits, the
circumstances under which the benefits should be paid , the transfer of employees to
other suitable employment , - the relation to existing pension and retirement plans, etc.
[Italics supplied.]
INLAND STEEL COMPANY 15
the adjudicative procedure under the contract which the Union here
sought to invoke.
As is pointed out more fully in the Trial Examiner's Intermediate
Report, the Union, upon hearing of the respondent's unilateral deter-
mination to apply the separation-because-of-age policy on an auto-
matic, rather than on a case-to-case basis, immediately sought to
invoke the grievance procedure, claiming that automatic application
of the policy was violative of the seniority and discharge notice pro-
visions of the contract. The respondent foreclosed the use of the
grievance procedure or any other avenue of approach to it, by announc-
ing to the Union that important legal issues were involved which would
have to be presented to the Board. The Union later discovered that
respondent had also acted unilaterally in expanding its financial
obligations under the pension program so as to provide insuring
benefits to employees without cost to them.
In any event, it is clear to us from the record that respondent failed
and refused to bargain with the Union respecting the interpretation
of the contract and the substantive matters of the pension program,
and is continuing to fail and refuse to do so, because of its fixed view
that the establishment and operation of such a program is a manage-
ment function outside the scope of the collective bargaining rights
granted employees under the Act. This is borne out by the oral
argument in the instant case, where respondent's counsel asserted that
the respondent had taken "great pains to avoid any discussion what-
ever at any collective bargaining meetings" concerning its pension and
retirement policies, "and would have done so whenever the [Union]
had brought it up, and will continue to do so until we are required
to do otherwise." Thns, whether or not the contract in fact per-
mitted respondent to refuse to bargain about the pension and retire-
ment policies during its term is largely academic.29 Moreover, that
contract has since expired.
We find, as did the Trial Examiner, that the respondent has en-
gaged in, and is engaging in, violations of Section 8 (5) and (1) of the
Act.
THE REMEDY
Because the respondent has rigidly maintained and is maintaining
that its pension and retirement policies are not the subject of collec-
29 Even if we were to assume that, as the respondent contends , the contract gave re-
spondent the privilege of dealing unilaterally with any aspect of its pension and retire-
ment program during the term thereof , we aie nevertheless convinced and find that the
respondent 's admitted rejection of the principle *of collective bargaining as to pensions on
grounds other than the contract is violative of the Act , in that it foreclosed bargaining for
any agreement with respect to its pension policy, irrespective of the time at which such
agreement might become effective.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive bargaining, but are a matter about which the respondent is free
to act unilaterally, and because, as we have found, the respondent's
unilateral action with respect to any aspects of its pension and retire-
ment plan substantially affect the interest of the exclusive represen-
tative in the establishment of stable terms and conditions of employ-
ment applicable to the entire group, we find it necessary, in order to
effectuate the policies of the Act, to require the respondent to re-
frain from making any unilateral changes with respect to its pension
and retirement policies which affect any of the employees in the unit
represented by the Union, without prior consultation with the Union;
and in addition, to require it to bargain collectively with the Union
upon request.
We agree with the Trial Examiner that it is not necessary, in order
to effectuate the policies of the Act, to require the respondent to re-
instate the retired employees with back pay. The merits of the
Union's request for such reinstatement may well be determined
through the procedures of collective bargaining which our order here
assures the Union it may use, upon its meeting the conditions speci-
fied below.
The Union has not complied with the provisions of Section 9 (f),
(g), and (h) of the amended Act. Our remedial order therefore shall
be in part conditioned upon its complying with that section of the
amended Act, within 30 days from the date of the order herein.30
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the Act, as amended, the National Labor Relations Board hereby
orders that the respondent, Inland Steel Company, and its officers,
agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Local Union Nos. 1010
and 64, United Steelworkers of America (CIO),3' with respect to its
pension and retirement policies if and when said labor organization
shall have complied within thirty (30) days from the date of this
Order, with Section 9 (f), (g), and (h) of the Act, as amended, as
the exclusive bargaining representative of all production, mainte-
nance, and transportation workers in the respondent's Indiana Har-
bor, Indiana, and Chicago Heights, Illinois, plants, excluding fore-
men, assistant foremen, supervisory, office, and salaried employees,
bricklayers, timekeepers, technical engineers, technicians, draftsmen,
chemists, watchmen, and nurses;
ao Matter of Marshall and Bruce Company, 75 N. L. R. B. 90.
31 Hereinafter called "the Union."
INLAND STEEL COMPANY 17
(b) Making any unilateral changes affecting any employees in the
unit represented by the Union, with respect to its pension and retire-
ment policies without prior consultation with the Union, when and
if the Union shall have complied with the filing requirements of the
Act, as amended, in the manner set forth above.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request and upon compliance by the Union with the filing
requirements of the Act, as amended, in the manner set forth above,
bargain collectively with respect to its pension and retirement poli-
cies with the Union as the exclusive representative of all its em-
ployees in the aforesaid appropriate unit;
(b) Post in conspicuous places throughout its plants at Indiana
Harbor, Indiana, and Chicago Heights, Illinois, copies of the notice
attached hereto marked "Appendix A." 32 Copies of said notice, to
be furnished by the Regional Director for the Thirteenth Region,
shall, after being duly signed by the respondent's representative, be
posted by the respondent immediately upon receipt thereof and main-
tained by it for thirty (30) consecutive days thereafter and also for
an additional thirty (30) consecutive days in the event of compliance
by the Union with the filing requirements of the Act as amended, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the re-
spondent to insure that said notices are not altered, defaced, or cov-
ered by any other material ;
(c) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, and again
within ten (10) days from the future date, if any, on which the re-
spondent is officially notified that the Union has met the condition
hereinabove set forth, what steps the respondent has taken to comply
herewith.
MEMBER GRAY, dissenting :
I dissent from the Order of the Board directing the respondent to
bargain on a retirement program. I strongly believe that neither em-
ployers nor unions should be required by this Board to bargain collec-
tively on a subject matter which has not become an industry or general
business practice.
Research has disclosed no real practice of collective bargaining on
retirement programs. Such statistics as are available on the subject,
show that the installation of retirement programs is a management
32 In the event that this Order is enforced by a decree of a circuit court of appeals, there
shall be inserted before the words "A Decision and Order " the words "Decree of the
United States Circuit Court of Appeals Enforcing."
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prerogative . ',' In fact , in the instant case the respondent on its own
initiative voluntarily planned and installed the retirement program in
issue in 1936 and extended it in 1944, without any complaint at that
time and for some time thereafter by the then existing duly constituted
collective bargaining representative.
Contrary to the assertion in the opinion of the majority , there is no
commonly known "practice of offering retirement benefits in lieu of
current wage increases ." The few isolated cases in which an employer
voluntarily offered some retirement benefits as a quid pro quo for a
union's concession on wage increases , can by no stretch of the imagina-
tion be construed as a "not uncommon practice ." Indeed, union lead-
ers themselves must have regarded retirement programs as falling
outside the scope of collective bargaining . Thus, this is the first case
involving an employer 's duty to bargain on the subject to come before
the Board since the passage of the Wagner Act in 1935. During the
days of the War Labor Board , when union leaders extended their in-
genuity to devise many types of fringe benefits to by-pass the "Little
Steel Formula ," which prohibited wage increases beyond 15 percent,34
there were no general demands for retirement programs. If ever the
time were ripe for unions to attempt to secure such benefits for their
members through compulsory collective bargaining , it was when the
War Labor Board was inclined to grant or to require collective bargain-
ing on these fringe additions . Yet the union leaders and rank and file
employees did not at this most propitious time generally think of re-
tirement programs as a required subject matter for collective bargain-
ing.35 And, as previously noted, in this very case the Union made no
collective bargaining demands at the time when the respondent ex-
tended the retirement program and for some time thereafter.
That neither employers nor unions have regarded retirement pro-
grains as a compulsory subject for collective bargaining generally,
is readily understandable from the complexities and confusions which
would inevitably result from such a step . Let us assume the case of
an employer who has contracts with five different unions covering
different units of employees in the plant . The representatives of the
-five unions will be vying to outdo each other in the liberality of any
retirement program under cpnsideration . Add to this the lack, com-
3' In the approximately less than 5 percent of the industries covered, retirement programs
have been generally unilaterally installed by employers See, e, g, Survey by N. I. O. B.
for Associated Industries of New York State in 1947 ; "Group Health Insurance and
Sickness Benefit Plans in Collective Bargaining " by the Industrial Relations Section of
Princeton University , and a recent study by the Bureau of National Affairs, Inc
34 Among the fringe benefits obtained were increased vacation pay, increased or initial
night shift premiums , increased or initial pay for holidays not worked , and increased or
initial pay for recesses
as Retirement programs should not be confused with dismissal pay, which is an entirely
different type of grant.
INLAND STEEL COMPANY 19
men to most people, of the specialized and technical knowledge of the
actuarial requirements for sound retirement programs . Such con-
ditions could only create chaos in the bargaining process. Or, take for
example, the employer who has already established a sound retirement
program pursuant to collective bargaining with a union . At the end
of the contract year, he may be faced with a demand by the same or a
different bargaining agent to change the entire program, thereby com-
pletely upsetting the actuarial basis upon which the program had been
planned. Demands for changes could continue at the end of each
contract term. No business can function soundly on such a basis.
These examples illustrate how impractical and infeasible it is to re-
quire collective bargaining concerning retirement programs as a matter
o l law.
I do not agree with the majority that, in enacting the Wagner
Act, Congress intended to include retirement programs within the
phrase "wages , hours, and working conditions ," by its mere failure
specifically to exclude it. In attempting to ascertain the Congres-
sional intent as it existed in 1935, we must also consider the prevailing
practice or lack of it with respect to retirement programs and the
feasibility of bargaining collectively with respect to it. As I have
already pointed out, there is not now , and certainly there was much
less in 1935, any established practice of bargaining collectively for
retirement programs and that such a practice was highly impractical
and unworkable. In the-light of the foregoing,,,I can only conclude
that the Congress used the words "wages, hours , and working con-
ditions" in the then existing normally accepted common usage of the
terms. That did not include retirement programs.
In my view, the right of the employer to fix the age at which he may
end the active employment of his employees , is just as much a preroga-
tive of management as is his right to fix the age above the legal mini-
mum at which he will hire people to work for him. Concededly, the
establishment of a retirement program is a constructive step which
may produce many benefits for the employees and the employer by way
of reduced turnover , improved employee morale, and employer satis-
faction that his superannuated employees will acquire some benefits.
But our concern here is not to determine whether such objectives are
desirable . If an employer , on his own initiative or pursuant to peace-
ful persuasion by a union , desires to bargain with the union concerning
the establishment of a retirement program, there is nothing to prevent
him from doing so. I do not believe, however , that this Board is
required to, and should, so interpret the statute as to compel the re-
spondent to bargain on this subject matter.
I would dismiss the complaint.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
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, we hereby notify our employees
WE WILL NOT refuse to bargain collectively with Local Union
Nos. 1010 and 64 of the United Steelworkers of America (CIO),
as the exclusive representative of all of the employees in the
bargaining unit described herein with respect to our pension and
retirement policies, provided said labor organization complies,
within thirty (30) days from the date of the aforesaid Order of
the Board, with Section 9 (f), (g) and (h) of the National Labor
Relations Act, as amended.
WE WILL NOT make any unilateral changes in our pension and
retirement policies affecting any employees in the bargaining unit
without prior consultation with the Union, provided said labor
organization complies within thirty (30) days from the date of
the afore-mentioned Order of the Board, with Section 9 (f), (g)
and (h) of the National Labor Relations Act, as amended.
The bargaining unit is: all production, maintenance and trans-
portation workers in our Indiana Harbor, Indiana, and Chicago
Heights, Illinois, plants, excluding foremen, assistant foremen,
supervisory, office, and salaried employees, bricklayers, time-
keepers, technical engineers, technicians, draftsmen, chemists,
watchmen and nurses.
INLAND STEEL COMPANY,
Employer.
Dated------------------------ By ------- ---------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Herman J. DeKoven, for the Board.
Pope & Ballard, by Messrs. E. S. Ballard and Merrill Shepard, of Chicago,
Ill., and Mr. William G. Caples, of Chicago, Ill , for the respondent.
Mr. Frank J. Donner, of Washington, D. C, for the Union.
STATEMENT OF THE CASE
Upon a second amended charge filed on August 15, 1946, by United Steel-
workers of America, on behalf of Local Union Nos. 1010 and 64, herein called
the Union, the National Labor Relations Board, herein called the Board, by
its Acting Regional Director for the Thirteenth Region (Chicago, Illinois),
INLAND STEEL COMPANY 21'
issued its complaint dated August 19, 1946, against Inland Steel Company, herein
called the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (5), and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied
by notice of hearing thereon were duly served upon the respondent and the
Union.
With respect to the unfair labor practices the complaint alleged in substance
that the respondent: (1) on December 31, 1945, put into effect a "past-service
pension trust" plan for its employees, without first notifying and consulting with
the Union and giving the Union an opportunity to bargain collectively concerning
said pension trust 'plan, although a majority of the employees in an appropriate
unit had designated and selected the Union as their representative for the
purposes of collective bargaining; (2) on March 5, 1946, and thereafter, refused
and failed to negotiate with the Union concerning a grievance presented by the
Union, in which the Union protested the respondent's contemplated action of
retiring employees in the unit who had reached age 65, and in which the Union
stated that such action would constitute a breach of the existing contract
between the respondent and the Union; (3) since on or about April 1, 1946, has
retired employees in the unit who have reached age 65, and accorded them the
right to receive certain benefits as retired employees, without first consulting
with the Union and giving the Union an opportunity to bargain collectively con-
cerning such matters; and (4) by the foregoing acts, has interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
The respondent, in its answer filed August 30, 1946, in effect admitted the
allegations of the complaint as set forth above, alleged certain additional facts
in relation thereto, and denied that by reason of any of such facts it had en-
gaged in or was engaging in any unfair labor practices
Pursuant to notice, a hearing was held on September 12, 1946, at Chicago,
Illinois, before the undersigned, Sidney Lindner, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board, the respondent, and the
Union were represented at the hearing by counsel. Full opportunity to be heard,
to examine and cross-examine witnesses and to introduce evidence bearing on
the issues was afforded all parties. Toward the close of the hearing a motion
of counsel for the Board to conform the pleadings to the proof was granted with-
out objection. At the close of the hearing counsel for the Board and for the
Union argued orally before the undersigned. Although advised of their oppor-
tunity to the a brief, or proposed findings and conclusions of law, or both, only
counsel for the respondent filed a brief with the undersigned'
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Inland Steel Company, a Delaware corporation, maintains its principal office
and place of business at Chicago, Illinois, and operates and maintains in addition
to others, plants at Indiana Harbor, Indiana, and Chicago Heights, Illinois, which
I After the receipt of the respondent's brief, counsel for the Board made a motion to be
granted the right to file a reply brief. The motion was denied by the Chief Trial Examiner
788856-49-vol. 77-3
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plants are herein collectively called the Plants. At its Indiana Harbor plant
the respondent is engaged in the manufacture, sale, and distribution of semi-
finished and' finished steel products, pig iron, and coke. At its Chicago Heights
plant the respondent is engaged in the manufacture, sale and' distribution, of
merchant bars, concrete reinforcing steel bars, and steel fence posts
The respondent, in the course and conduct of its business and in the operation
of the Plants, annually purchases raw materials for use at the Plants valued
in excess of $5,000,000 of which more than 95 percent is shipped to the Plants
from points outside the States of Indiana and Illinois. The respondent, in the
course and conduct of its business and in the operation of the Plants, annually
manufactures products at the Plants valued in excess of $5,000,000, of which
more than 75 percent is shipped to points outside the States of Indiana and
Illinois. The respondent concedes that in its operation of the Plants, at all times
material herein, it has been engaged in commerce within the meaning of the
Act.
II. THE ORGANIZATION INVOLVED
Local Union Nos. 1010 and 64, United Steelworkers of Ameilca, affiliated with
the Congress of Industrial Organizations, is a labor organization admitting to
membership employees of the respondent at its Plants
III. TIIE UNFAIR LABOR PRACTIRES
A The refusal to bargain
1. The appropriate unit and representation by the Union of a majority therein
The undersigned finds in accordance with the stipulation entered into by and
between the parties, that all production, maintenance, and transportation workers
employed by the respondent at its Plants, excluding foremen, assistant foremen,
supervisory, office, and salaried employees, bricklayers, timekeepers, technical
engineers, technicians, draftsmen, chemists, watchmen, and nurses, constitute
a unit appropriate for collective bargaining within the meaning of Section 9 (b)
of the Act.
The undersigned further finds in accordance with such stipulation that Local
Union Nos. 1010 and 64, Steel Workers Organizing Committee, affiliated with the
C I 0 , was certified by the Board on August 26, 1941, as the exclusive representa-
tive of the employees in the unit for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment and other conditions of
employment,' and it remained such exclusive representative of the employees
in the unit until succeeded by the Union on May 23, 1942, the date on which
Steel Workers Organizing Committee changed its name to United Steelworkers of
America. That at all times since May 23, 1942, the Union has been the duly
designated bargaining representative of a majority of the employees in the
aforesaid appropriate bargaining unit, and that by virtue of Section 9 (a) of the
Act, the Union was on May 23, 1942, and at all times thereafter has been and is
now the exclusive representative of all employees in such unit for the purposes of
collective bargaining with respect to rates of pay, wages, hours of employment,
and other conditions of employment.
2 34 N L. R. B. 1294.
INLAND STEEL COMPANY
2 The refusal to bargain
23
There are no contested material issues of fact in this proceeding. The re-
spondent does not deny that it failed and refused, and tails and refuses, to
discuss with the Union the several matters embraced by the allegations of the
complaint It defends its conduct in this respect on the grounds that the estab-
lishment of its Retirement Plan and Past Service Pension Trust Plan, collectively
herein referred to as the Pension Plan, and the termination of employees pursuant
to the terms of the Pansion Plan are not proper subjects for collective bargaining;
and that a so-called "management" clause in the current contract between the
respondent and the Union has the effect of vesting exclusively in the respondent
the right to establish a fixed retirement age, and to retire employees pursuant
thereto'
The respondent's original Retirement Plan for its employees and the employees
of its subsidiaries was put into effect on January 1, 1936, by the establishment
of a contributory plan for the payment of retirement annuities pursuant to a con-
tract between the respondent and the Equitable Life Assurance Society of the
United States Those eligible to participate in the original Retirement Plan
were employees with earnings of $25000 or more per month, and membership
in the plan was optional.
At the time the original Retirement Plan was put into effect, no collective
bargaining agent had been certified at the Plants for the employees in the unit,
mind there had been no collective bargaining by the respondent with any repre-
sentative of those employees The first collective bargaining contract between
the respondent and the Union was entered into on August 5, 1942 It provided
for recognition of the Union as exclusive bargaining representative, a main-
tenance of membership clause with an escape period, and numerous other pro-
visions with regard to wages, hours of work, vacations, and other matters not
material here. No mention was made of the Retirement Plan in this contract.
On December 31, 1943, the Retirement Plan was amended and extended to cover
all employees, regardless of the amount of their earnings, provided the employees
who elected to participate in the plan had 5 years of service with the respondent
or one of its subsidiaries, and had attained the age of 30.'
3This contract which was entemed into by the parties on April 30, 1945, and amended
February 16, 1946, recognized the Union as the exclusive bargaining representative of
the employees in the unit heretofore found to be appropriate. The clause in question reads
as follows :
Article XI
Plant Management
The management of the plants and the direction of the working forces, including the
right to direct, plan and control plant operations, the right to hire, promote, demote, sus-
pend, and discharge employees for cause, and to relieve employees because of lack of
work or for other legitimate reasons, and the right to introduce new and improved methods
or facilities, and' to -change existing production methods or facilities and to manage the
properties in the traditional manner, is vested exclusively in the Company, provided
that nothing shall be used for the purpose of discrimination against employees because
of membership in or activity on behalf of the Union. These provisions shall not apply to
nullify the other provisions of this agreement.
According to the stipulation of the parties , the number of employees who elected to
participate in the Amended Retirement Plan as of the dates indicated below, and the
number of employees in the unit as of such dates, is as follows :
(See p 24]
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 30, 1945, the respondent and the Union entered into a new collective
bargaining contract, which is presently in force' This contract contained in
addition to all of the provisions of the 1942 contract with variations, several new
provisions among which were those dealing with "in-plant feeding," and "dis-
missal or severance pay."' The Union and the respondent stipulated that in
the negotiations between them leading to the execution of this contract, no
mention was made of the age at which the respondent's employees should be
retired, of the respondent's Retirement Plan, Amended Retirement Plan, or
Pension Trust,' of the benefits which should be available to employees on retire-
ment, or any matter pertaining to any retirement or pension plan, or any other
matter pertaining to the retirement of the respondent's employees. The parties
further stipulated that no request has been made by either the Union or the
respondent for collective bargaining pursuant to the final paragraph of Article
XVII of the existing contract, referred to hereinabove in footnote 6.
On December 28, 1945, the respondent without first notifying or consulting
with the Union, executed and established its Past Service Pension Trust, also
referred to herein as the Pension Trust, which provides benefits for service
of employees of the respondent and its subsidiaries rendered prior to the date
when employees became eligible for benefits under the Retirement Plan and
Amended Retirement Plane According to the respondent, these were employees
whose retirement date would occur so soon after they became eligible to par-
ticipate in the Retirement Plan that it would not afford them the retirement
annuity benefits intended. The Pension Trust was established by and under
a trust agreement between the respondent and The First National Bank of
Footnote 4, continued from p. 23.
Date
Eligible
employees
Employees who
elected to
participate
No of employ-
ees in unit
December Si, 1943--- --------- ---------- ---------- 659 455 10,669
December 31,1944-------------------------------- 6,114 3,370 10,176
December 31, 1945______-_____ 6, 644 2, 961 10.122
September 1,1946_________________________________ 7, 288 3, 061 12,019
6 On February 16, 1946, the wage and termination clauses of the April 30, 1945, contract
were amended and supplemented In all other respects the April 30, 1945, contract
remained in effect as written.
6 The particular section of the contract dealing with dismissal or severance pay is
Article XVII, which sets forth that the Union and the respondent accept Section 5, of
the Directive Order of the National War Labor Board dated November 25, 1944, in Case
No. 111-6230-D (14-1 et at ). Under its terms, the respondent and the Union agree to
negotiate with regard to severance pay of employees who were to be displaced as a result
of the closing down of plants and facilities which had been built and technologically
improved during the war, for the purpose of reducing the overall cost of production. In
addition, the article recites that "Among the provisions which should be worked out
through collective bargaining are those relating to the eligibility of employees, the amount
of severance pay benefits, and circumstances under which the benefits should be paid,
the transfer of employees to other suitable employment, the relation to existing pension
and retirement plans, etc "
'+ It should be noted that the Pension Trust, which will be discussed hereinafter, was
not established by the respondent until December 28, 1945.
8 The number of employees in the unit who were covered under the provisions of the
Pension Trust as of December 28, 1945, was 4,550. During the period between December
28, 1945, and September 1, 1946, an average of approximately 4,195 employees in the unit
were within the coverage of the Pension Trust. The number of employees in the unit on
December 28, 1945, was approximately 10,120, and the average number of employees in
the unit during the period between December 28, 1945, and September 1, 1946, was 10,169.
INLAND STEEL COMPANY 25
Chicago as trustee. By its terms, employees are not required to contribute to
the Pension Trust. With respect to compulsory retirement , the Pension Trust
provides as follows: "Every employee over age sixty-five (65) on December 31,
1945, shall be retired by the Company or Subsidiary as of December 31, 1945
Every other employee shall be retired by the Board of Directors of the Company
or Subsidiary on the January 1st nearest his sixty-fifth (65) birthday. The
Company or Subsidiary, however, may for exceptional reasons from year to
year request any retired employee to continue in employment beyond his Fe-
tirement date. Notwithstanding the fact that an employee may continue in
employment beyond such date, he shall be considered to be retired for the pur-
poses of this Pension Trust on such date"
Between December 28, 1045, and February 22, 1946, the respondent announced
to approximately 256 employees in the unit its intention to retire the said em-
ployees as of March 31, 1946, because they had reached age 65. The parties
stipulated that during the period August 26, 1941, and April 1, 1946, the re-
spondent by reason of the war emergency did not require or compel the retire-
ment for age of any employee in the unit.5
On February 22, 1946, the Union filed a grievance with the respondent in which
the Union protested the respondent's contemplated action of retiring its employees
because they had reached age 65, and in which the Union stated that the
automatic retirement of employees who reached age 65 would constitute a breach
of the existing contract between the respondent and the Union.
At a meeting on March 5, 1946, the respondent notified the Union that it
would not negotiate or deal with the Union concerning this grievance on the
ground that the Union did not have the right to question the respondent's policies
with respect to the retirement of its employees.
Harry Powell, vice-president of the Union and grievance committeeman, testified
that after the refusal of the respondent to discuss the question of the retirement
of 65-year-old employees, the meeting was adjourned and the Union's executive
board met with Joseph Germano, district director of the United Steelworkers
of America, as to the possible courses of action that the Union could take in
this situation. Germano advised that the Union could strike or file an unfair
labor practice charge with the Board. The executive board then recommended
to the membership of the Union at a regular meeting, that they be empowered
to take strike action in the event the respondent proceeded with its plan to
retire compulsorily employees age 65 or over, which recommendation was accepted
by the membership. Thereafter, the executive committee decided against strike
action.
At a meeting between the respondent and the Union, held on March 25, 1946,
the respondent reiterated its previous position regarding this grievance, and
concluded the meeting with the statement that it would not discuss these matters
further with the Union on the ground that, since certain legal issues were in-
B Successive resolutions of the respondent ' s Board of Directors dated January 26, 1944,
October 25 , 1944, and January 25, 1945, referred to the continuing emergency and provided
that employees whose names were certified by the respondent 's president would be continued
in active service for such period as lie might determine , provided that such service should
terminate on or before December 31, 1945 A further resolution of October 31, 1945,
referred to the fact that though hostilities had ceased, an emergency still existed, and in
some cases peculiar circumstances made immediate retirement inadvisable from the stand-
point of the respondent 's operations . The president was authorized to defer the retirement
of any employees in his discretion , with the proviso that in no event should such retirement
be deferred beyond June 30, 1946. By April 1, 1946 , all employees of the respondent and
its subsidiaries who had reached the established retirement age of 65 had been retired.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
volved concerning an employer's obligations under the Act to bargain collectively
on the subject of retirement of employees, the matters would have to be presented
to the Board.
On April 1, 1946, and on various dates up to September 12, 1946, the respondent
without first consulting with the Union, retired 224 named employees in the
unit, because they had reached age 65, and accorded the said employees the right
to obtain such benefits as retired employees as they would be entitled to under
the Amended Retirement Plan and/or the Pension Trust.
Conclusions
The issue presented in this case, reduced to its essentials, is whether or not
the requests of a duly designated bargaining representative, to discuss with an
employer the projected retirement of a group of employees age 65 and over, under
the terms of the employer's Pension Plan, comes within the recognized scope
of collective bargaining, so that the refusal on the part of an employer to negotiate
with respect to the terms of its-Pension Plan would constitute a violation within
the meaning of Section 8 (5) of the Act Inasmuch as the respondent contends
that no matters relating to its Pension Plan come within the scope of collective
bargaining, it is not sufficient to determine here whether the Union has the right
to negotiate with respect to a single phase of the entire Pension Plan, but it
becomes necessary in fact to determine whether pension plans in themselves fall
within the scope of collective bargaining
A review of the decisions of the Board and the Courts indicates that no
definitive exposition by competent authorities has ever laid down general
pPinciples which would facilitate the classification of matters sought to be
negotiated and help to determine by rule of thumb whether certain demands,
of labor organizations do or do not fall within the proper scope of collective
bargaining. Where this issue has arisen heretofore, it apparently has been
treated on a case-to-case basis, so that over the years during which the Act
has been administered, the subjects which more commonly are matters of
concern between employers and their employees, have been held to fall within
or without the scope of collective bargaining. A painstaking examination of
the authorities fails to disclose any consideration of the issue here involved.'0
It is conceivable that the demands of employees may sometimes fall com-
pletely dehors the limits of employee interest The Act does not seek to
encroach on those prerogatives of the employer which give him a free hand
to prosecute his business as lie sees fit. Demands, therefore, which seek to
restrict the employer in this right would clearly not be such as can reasonably
fall within the scope of collective bargaining. Our system of free enterprise
must necessarily protect the employer in enjoying what is commonly termed
10 The undersigned makes note however, that the War Labor Board considered cases In-
volving retirement funds and issued directive orders thereon In American Locomotive
Co , Case No. 111-12105-D, 2nd Regional Board, the majority opinion states • -
"It is too well settled to admit of debate that a provision for employee retirement
benefits constitutes a term and condition of employment, and therefore, a valid
subject of collective bargaining . . . . It is apparent to us that the innovation,
modification, or elimination of so important a condition of employment as a pension
plan is properly a subject of collective bargaining . The absence of such provision In
a trade union agreement does not preclude collective bargaining on the subject any
more than the inclusion of such provisions in the agreement bars collective bargaining
for its modification or elimination."
See also War Labor Board cases : Pacific Telephone and Telegraph Company, 111-12972-D;
Western Union Telegraph Company, Case No 388.
INLAND,STEI;I, ,COMPAN,Y, 27
his "management prerogatives." True it is, that over the years during which
the Act has been in existence, matters which formerly had been urged as purely
"management prerogatives" were, by judicial and quasi-judicial opinion, held
to be matters which employees had the right, in the interest of industrial
stability, to seek to attain by peaceable negotiation. But there are undoubtedly
broad areas of management interests which have been so readily accepted by
labor as not to fall within the scope of their interests to negotiate, that few
of these have had occasion to come within the purview of governmental agencies
or the courts for determination
It Is well known, however, that over the years of negotiations between unions
and employers, the accepted subject matter of collective bargaining has expanded,
so that presently various subjects which were formerly deemed to be reserved as
"management prerogatives" are bargained about Trade unions now commonly
bargain about group insurance, hospitalization, and medical care." The collective
agreements entered into in the coal mining industry have included such matters
as the condition of company houses rented by employees, the right of the union
to participate in the choice of a surgeon for a company financed hospital, and
measures .to improve conditions affecting health, safety and welfare. In fact,
in coal mining, the unions participate in the control of "all aspects of the pro-
ductive process which affect the miner's opportunity to earn a living." ^
In the ladies' garment industry agreements with the union "specify the condi-
tions under which an employer may reorganize his business , or enter into another
partnership, or send materials to other firms for fabrication, or introduce a work-
week as opposed to a piece-work basis of wage payments." 13
In the current contract between the respondent and the Union herein, in addi-
tion to the regular features of wages, hours, and conditions of employment, pro-
vision is made for "In-Plant Feeding," with the Union having the right to advise
and consult with the respondent concerning the provisions and maintenance of
such service
Indeed, in the men's and boys' clothing industry, the union and the employer's
association recently announced" the completion of negotiations for an industry-
wide old-age pension plan for workers who have reached the age of 70 and have
seen 20 years of service in the industry. The pension plan supplements a com-
prehensive system of life, health, accident, hospitalization, and maternity in-
surance already set up in the industry through collective bargaining, to all of
which the entire contribution is made by the employers.
Does then the demand of the Union in the instant case to discuss the respond-
ent's Pension Plan, come within the collective bargaining area, or is the Pension
Plan within the field reserved strictly to management's sole consideration?
Considerable research on the economic character of pensions and the reasons
for their existence, has been conducted J. H. Woodward expressed the employ-
11 Lieberman , The Collective Labor Agreement ( 1939 ) 111-112, 131-133; Seidman, The
Needle Trades ( 1942 ) 251, 269-270 ; U. S Bureau of Labor Statistics , Bull. No . 686 (Union
Agreement Provisions , 1942 ) 194-201 ; Bull. No . 393 (Trade Agreements, 1923 and 1924)
116; Bull No 448 ( Trade Agreements , 1926 ) 181, 193; Bull No. 468 ( Trade Agreements,
1927) 193.
12 Suffern , The Coal Miner's Struggle for Industrial Status ( 1926 ) 359, 376
11 Pierson , , Collective Bargaining Systems,, (1942 ), 32 ; Carsel , A Short History of the
Chicago Ladies Garment Workers Union ( 1940 ) 226-228; U S Bureau of Labor Statistics,
Bull No 686 , ( Union Agreement Provisions, 1942 ) 214-216.
' 9 See New York Times , December 2, 1946
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er's objectives and the considerations the employer expects and does receive by
the establishment of a pension system as follows : 1J
The employer, however, necessarily looks' upon a pension scheme as a
business proposition. It is not his affair to correct the defects of human
nature or remedy social shortcomings except insofar as his efforts are
warranted by an increased efficiency in his staff. For him the retirement
system accomplishes the following:
(a) It eliminates the cost of continuing on the pay-roll employees,who
are no longer active and who are therefore receiving, in the absence of
any systematic plan, what in effect constitutes disguised pensions.
(b) It enables the employer to get rid of inefficient employees whom he
might otherwise hesitate to discharge.
(c) It decreases his rate of labor turn-over.
(d) It serves to attract to his employ thrifty and far-sighted men and
to repel the more improvident who wish to be able to consume this entire
income as it is earned.
(e) It lessens unrest.
(f) It makes certain, if soundly constructed, that the cost of super-
annuation is assessed against,the product at the time when it is incurred 1a
The Research Institute of America states that "The pension plan is par-
ticularly adapted toward promoting labor stability ; that is, reducing labor
turnover. The reason is twofold : first, it provides a measures of security
for the worker in his old age and thus reduces the internal pressure within
the worker himself; second, since maximum benefits under the plan do not
accrue to the employee until he reaches retirement age, there is a strong
financial interest which deters the worker from switching jobs." 14
Thus it appears that pension plans are purely economic in nature, and all
authorities agree that industrial pensions have their origin in certain definite
problems faced by management, and constitute a means for meeting such prob-
lems M. W. Latimer states the point as follows :
".. . As the pension movement has spread, and as experience with the
operation of the plans has become broader, the relief aspects have tended
to decline in importance though perhaps never to disappear entirely, and
economic motives have come more to the fore. Corporations at times have
found it difficult, without some systematic methods of providing a continuing
income, to eliminate promptly from their payrolls employees whose pay
exceeds the value of their services.s 18
While industrial pension plans may vary as to their different features such
as contribution by both employee and employer, sole contribution by the em-
ployer,l8 optional retirement benefits; and termination of service by death, never-
theless practically all pension plans, and particularly the respondent's Pension
Plan, contain the basic elements of compulsory retirement, and retirement in-
11 From an address on the subject of industrial pensions before the Casualty Actuarial
Society in November, 1919
la See also Luther Conant , Jr., "A Critical Analysis of Industrial Pension Systems"
(1922). -
11 Labor Coordinator , Vol. 3, Pension Plans and Profit Sharing, Research Institute of
America, p. 78,008.
18 M. W. Latimer, Industrial Pension Systems in the United States and Canada (1932)
p. 18.
11 The respondent 's Pension Plan was of the contributory and noncontributory types.
INLAND STEEL COMPANY 29
come. It is elementary that the lay-off of employees goes to the heart of the
employer-employee relationship. It can hardly be debated that when an em-
ployee is compulsorily retired, he has for all purposes lost his job. Can a dis-
tinction be drawn between the loss of a worker's employment as a result of
compulsory retirement and the termination of his employment because of other
economic compulsion? Has not the retired employee lost his job just as effec-
tively as has an employee who is discharged for cause or not for cause? Without
question the conditions upon which a worker's employment may be terminated
is a subject matter in which he has a vital interest and is a bargainable issue.20 It
appears clear to the undersigned that the establishment of a working condition
which limits the productive life of the employee, as in the instant case, his
compulsory retirement at age 65, is a condition of employment, subject to col-
lective bargaining, and the undersigned so finds.
The respondent contends that no industrial retirement annuity program can
be effective and attain the purposes for which it is established unless a uniform
fixed retirement age is included as a part of it and unless employees are in fact
retired from the service at such age. Accepting this principle, it nevertheless
does not relieve the respondent of the requirement to bargain with respect thereto,
since, as has been found above, the establishment of a compulsory retirement
age is a condition of employment. This is particularly so, since as the respondent
sets forth in its brief, quoting from Latimer,21
"There'is no fixed year of life in which men may be said to be unfit for work,
even in a very deftaste occupation. This depends in part on the nature of
their employment and in part on the special cha'iactertstics of the 'individual
as related to general health and strength. Despite wide variations among
individuals, however, it is possible to set an age above which few persons
are able to perform a given kind of labor. Moreover, occurrences affecting
the ability of any individual, which taken alone seems entirely fortuitous,
assume a distinct pattern when considered in the mass and arranged in
logical classification. While the incapacity of an individual may be ac-
cidental, the grouping and analysis of a body of such phenomena indicate
that approximately a given number of persons will be disabled every year
and that the total of these disabilities classified by age, sex, race, occu-
pation, place of residence and so on does not vary widely from year to year."
[Italics supplied.]
Should then the employees not be heard through their duly chosen bargaining
representatives, in an effort to make a determination jointly with the respondent
on the issue regarding the age at which their jobs should be terminated? It
should be borne in mind that the respondent is not compelled to reach an agree-
ment with the Union on this issue. The requirement is that the respondent con-
sult with the Union and explore in good faith the possibility of reaching an
agreement so that, in conformity with the purposes of the Act, the matter may
be moved, so far as is possible, as a cause of industrial strife 22
20 Cf. Matter of Timken Roller Bearing Co , 70 N. L. R B. 500, where the Board held
that the system of sub-contracting work may vitally affect employees by progressively
undermining their tenure of employment and the refusal to negotiate with respect to this
subject, claimed by the company to be a "management prerogative," was a violation of
Section 8 (5) of the Act.
21 See footnote 18, supra.
22 As heretofore founti,'after the respondent refused to discuss the issue of the impending
retirement of employees age 65 at a regular grievance meeting, the Union was authorized
to strike but did not do so.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retirement income , the other basic component of a pension plan , has been
characterized variously by students of pension systems as rewards, bonuses,,
gratuities, deferred wages, etc . It is the contention of the respondent that pen-
sions are not wages , deferred or otherwise , for the following reasons: ( 1) that
since employee ' s wages are not decreased because his employer provides pensions,
therefore pension payments cannot be considered deferred wages; and ( 2) a pen-
sion is neither a gift nor a wage , but rather a payment justified in part by the
value to the employer of continuity of service of his employees , whereby an
employer can make savings which are used to provide pensions. Counsel for
the Board , on the other hand , urges that pensions are a form of wages and thus
a direct subject for collective bargaining
There is apparently no disagreement of the parties with the doctrine that a
pension is a form of compensation paid to an employee in recognition of his service
over a considerable number of years. The financial provision for such retirement
payments is either contributed in whole or in part , by the employer during each
year of service of the employee , and has been looked upon as a proper charge
against production.'
Thus, counsel for the respondent in his brief , quoting from a report on "Pen-
sions " issued by the Department of Manufacture of the United States Chamber
of Commerce , states : "It is felt by many employers that the faithful service of an
employee over a long period of years merits some tangible recognition Long
and faithful service in itself is thus considered to be of sufficient value to a
company to warrant it reward by making financial pn ovisions for the employee
who has been worn out in its service."
In a similar vein, counsel for the Board in an economic study introduced in
evidence recited the following:
The only really satisfactory way of providing pensions for employees is
to set aside sums for the purpose whilst the men concerned are, still on the
active list After all, the pensions are earned during the working yeas s of
life, and not after retirement , and it is only reasonable to provide for the
liability at the time it is incurred ; not to do so can only mean that the profits
shown as earned by the business are over -stated at the expense of the future.
Pensions should, therefore , be regaided as being in the nature of additional
remuneration which is to be set aside to accumulate for the benefit of the
staff until certain defined contingencies aiisea [Italics supplied ]
The Encyclopaedia of the Social Sciences ,25 also cited by counsel for the Board
in his economic study contains the following :
This doctrine considers a pension as compensation paid to the employee for
the gradual destruction of his wage earning capacity in the course of his
work. Retirement being a proper charge against the employee ' s entire
period of active service , the employer should make contributions toward
the employee 's eventual retirement during each year of service of the em-
ployee, in a manner similar to that in which he annually sets aside a reserve
against depreciation and obsolescence of his plant and machinery . Pensions,
according to this doctrine , are an absolutely indispensable complement of
wages. [Italics supplied.]
23 See Why Pensions Pay, Social Engineering Institute , Inc, Bulletin #1, 1927, See also
A. D Cloud, Pensions in Modern Industry, pp 444-445.
24 H H Howards and R Murrell, Staff Pension Schemes, London (1927), pp 2.
25 Volume 12, p 67.
INLAND STEEL COMPANY 31
In the opinion of the undersigned, when a worker enters the employ of a com-
pany that has an established pension plan, he considers the plan as an integral
part of his program of employment 26 and that his total compensation consists of
two parts: wages while rendering services, and retirement payments after he
has ceased active employment 22 Although there are differences in terminology,
in essence retirement payments are the result of earnings during one's active
employment which accrue upon reaching a fixed retirement age, in which the
employee has a strong financial interest during his working years. As such, the
undersigned finds that retirement payments by whatever term they are described,2e
are within the area of wages and properly are a subject for collective bargaining.
The respondent also urges that a plan for the retirement of its employees is
one which as a matter of law resolves itself as a "management prerogative"
and one in which its employees can have no legitimate interest In support of
this contention it points out that the language of Section 8 (5) and 9 (a) of the
Act is taken from the similar language of Section 2 (First) of the Railway
Labor Act of 1926; 29 since at the time of the passage of the Railway Labor Act
on May 20, 1926, at least 68 of the major Class I Railroads in the United States
had pension plans in effect, which were established and maintained in existence,
and administered unilaterally by the employer railroads without discussion or
negotiation concerning them with any labor organization, and no labor organiza-
tion either before or subsequent to the passage of the Railway Labor Act re-
quested collective bargaining negotiations with any of the railroads concerning
any of such plans; that on the date of the passage of the Railway Labor Act,
40 of the 47 railroads (including the Pullman Company) which had formal
pension plans in effect on that date had established a compulsory retirement age
for their employees and ietited such employees upon their reaching such coin-
pulsory retirement age, and that no labor organization engaged in collective
bargaining, or sought to bargain collectively concerning the establishment of a
compulsory retirement age or the compulsory retirement of employees pursuant
thereto, at or prior to or subsequent to the said date; that, therefore, the require-
ment of Section 2 of the Railway Labor Act, as to making and maintaining
"agreements concerning rates of pay, rules, and working conditions," was not
considered by Congress, by the railroads, or by the unions involved as embracing
the making of agreements concerning pension plans or the establishment of a
compulsory retirement age or the retirement of employees on reaching that age.
Even assuming arguendo, the validity of the respondent's contention as above
set forth, the undersigned cannot conceive that thereby Congress intended to
eliminate negotiations between employers and unions with respect to pension
plans from the field of collective bargaining forever Collective bargaining is not
something which is static, but on the contrary is dynamic As pointed out here-
tofore, the accepted subject matter of collective bargaining has expanded over
the years of negotiations between employers and unions The fact is as the
Supreme Court pointed out in Order of Railroad Telegraphers v Railway Eapi ess
Agency: '
26 See Wilson v Rudolph Wurlitzer Co , 48 Ohio App 459, 194 N E 441, 443 (1934).
2r Williston on Contracts, Revised Edition 1028 (Vol 4, 2868-2869 ) states "A promise
to pay a `retirement pension' is properly regarded as it promise for additional
compensation "
2a It is worthy of note that U S Bureau of Intel nal Revenue, Regulations III (Current),
See. 29 21 (a)-2, provide that retirement payments are income to the recipients and are
classified as compensation for personal services and taxable as such
29 44 Stat. 577.
ao 321 U. S 342
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Collective bargaining was not defined by the statute which pi ovided for
it, but it generally has been considered to absorb and give statutory apps oval
to the philosophy of bargaining as worked out vu the labor movement tin the
United States. From the first the position of labor with reference to the
wage structure of an industry has been much like that of the carrier's about
rate structures. It has insisted that exceptional situations often have an
importance to the whole because they introduce competitions and discrimina-
tions that are upsetting to the entire structure. Hence effective collective
bargaining has been generally conceded to include the right of the represent-
ative of the unit to be consulted and to bargain about the exceptional as
well as the routine rates, rules, and working conditions [Italics supplied.]
It is accordingly clear, from these and other authorities, that the argument
here advanced by the respondent is without merit and the undersigned so finds 3i
The respondent further contends that the requirement of collective bargain-
ing which calls for a contract for a fixed term, normally of one year, is incon-
sistent with, and precludes, collective bargaining concerning pension programs
which are established as long range projects; and since the respondent has con-
tracts with 23 different collective bargaining agencies, to require it to renegotiate
the provisions of its Pension Plan each year would destroy any possibility of
consistency, permanence, and uniformity, would inevitably result in discrimina-
tions among employees in different bargaining units of the respondent and its
subsidiaries, and render it as a practical matter a question of very grave doubt
whether any pension program could be maintained at all under such circumstances
of conflict and uncertainty The mere fact that the respondent anticipates
difficulty about future bargaining in this area because of the multiplicity of the
collective bargaining agencies and the various bargaining units they represent,
does not render the respondent immune from its obligation, particularly since
as found above, pension plans are properly within the scope of collective bargain-
ing. It is not beyond the realm of possibility, that all of the collective bargaining
agencies with whom the respondent has contracts would be willing to meet at a
general meeting to discuss jointly the provisions of its Pension Plan with the
respondent, since all of the workers represented by collective bargaining agents
are similarly affected by its terms and provisions. Furthermore, as heretofore
noted, nothing in the Act compels the respondent to reach an agreement with any
of the collective bargaining agents on this issue The requirement is that the
respondent discuss the issue and explore in good faith the possibility of reaching
an agreement. The undersigned finds this contention without merit.
The respondent's contention that Article XI, the "management clause" of its
existing contract with the Union, has the effect of vesting exclusively in it the
right to establish a fixed retirement age, and to. retire employees pursuant
thereto, is without merit. In the T2mken Roller Bearing Co. case,32 the Board
had under consideration a "management clause" practically identical with the
clause in the instant case, and the contention that such a clause relieved the
Company of the necessity for bargaining with the Union as to such matters
which may come under a broad interpretation of this clause. The Board held as
follows :
81 For a fuller discussion of the obligation imposed upon employers to bargain collectively,
and the scope of collective bargaining as interpreted by the Supreme Court and the Circuit
Courts of Appeals, see Weyand, Majority Rule in Collective Bargaining, 45 Columbia Law
Review, 556.
19 70 N. L. R B. 500.
INLAND STEEL COMPANY 33
Without discussing whether or not more specific language in the contract
would have given the respondent the right to refuse. to bargain as to such
matters as are found to be violations of Section 8 (5) herein, the
"management clause" as presently written cannot in any event properly be
construed to cover the situation here for the reason that it is not specific
but is, on the contrary, vague and uncertain. To construe the phrases "man-
agement of the works" and "direction of the working forces" as a grant of
power to the respondent unilaterally to change the working conditions or
hours of employment, would make a nullity of Section 8 (5) of the Act. It
cannot be supposed that the Union relinquished its right, granted by the Act,,
to bargain for the employees at any time by such language as this.
Counsel for the Board raised the contention during oral argument that the
failure of the respondent to negotiate the Union's claim that the existing contract
between the respondent and the Union was breached because of the automatic
retirement of employees who reached age 65, was in and of itself a violation of
Section 8 (5) of the Act. Without determining whether or not the contract was
breached, it nevertheless was incumbent upon the respondent to listen to the
Union's contention with an open mind and to discuss it with a view to arriving
at an amicable understanding if there was a basis therefor.
The Board has frequently held 33
that the execution of a collective contract does not end the process of col-
lective bargaining, and that the interpretation and administration of a con-
tract already made and the settlement of disputes arising under any such
contract are properly regarded as within the sphere of collective bargain-
ing.
That collective bargaining does not end with the signing of a contract has been
held by the Supreme Court in the Sands case,3' where the Court said:
The legislative history of the Act goes far to indicate that the purpose of the
the statute was to compel employers to bargain collectively with their em-
ployees to the end that employment contracts binding on both parties should
be made But we assume that the Act imposes upon the employer the fur-
ther obligation to meet and bargain with his employees' representatives re-
specting proposed changes of an existing contract and also to discuss with
them its interpretation, if there is any doubt as to its meaning.
In the Newark Morning Ledger case," the Circuit Court of Appeals for the
Third Circuit said
. .. it may at any time become desirable or indeed necessary to bar-
gain collectively for the modification of an existing collective agreement
which has proved in practice to be in some respects unfair or unworkable nr
for the adjustment of complaints or alleged violations of such an agree-
ment. Collective bargaining is thus seen to be a continuing and developing
process by which, as the law now recognizes , the relationship between em-
33 Matter of Consolidated Aircraft Corp, 47 N. L R B 694, at p 706. See also, Matter
of Rapid Roller Co , 33 N L R B 557 , Matter of Carroll's Transfer Company, 56 N L. R B.
935 ; Matter of Hughes Tool Co, 56 N. L R B 981 ; Matter of U. S. Automatic Corp., 57
N. L R B 124; Matter of The Alexander Milburn Co , 62 N. L. It. B. 482; Matter of Timken
Roller Bearing Company, 70 N L R B 500
34 N L R B v Sands Mfg Co , 306 U S 332
35 National Labor Relations Board v Newark Morning Ledger Co , 120 F (2d) 262
(C C A 3) , cert denied 314 U 9 692
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer and employee is to be molded and the terms and conditions of em-
ployment progressively modified along lines which are mutually satisfactory
to all concerned . It is not a detached or isolated procedure which, once re-
flected in a written agreement, becomes a final and permanent result.
The authority of the Union to represent the employees stems from the fact of its
majority .status, and is statutory rather than contractual in character. The
choice of a bargaining agent by a majority of the employer 's employees does not in
and of itself require that the employer make any change in wages, or other con-
ditions of employment . However, after the advent of a collective bargaining rep-
resentative, unilateral action by the employer taken without consultation with the
bargaining agent, on any matter relating to wages or conditions of employment,
as in the instant case, the execution and establishment of the Past Service Pension
Trust and the retirement of employees who had reached age 65, becomes pro-
scribed. The collective bargaining process following certification of the bargain-
ing representatives , is analogous to the governmental process. In Steele v. Louis-
ville & Nashville R. R. Co.,38 the Court held, with respect to the Railway Labor
Act :
We think that the Railway Labor Act imposes upon the statutory represent-
ative of a craft at least as exacting a duty to protect equally the interests
of the members of the craft as the Constitution imposes upon a legislature
to give equal protection to the interests of those for whom it legislates. Con-
gress has seen fit to clothe the bargaining representative with powers
comparable to those possessed by a legislative body to create and restrict
the rights of those whom it represents . . .
Instead of performing only the limited function of fixing the rules governing
employment as the respondent views it, collective bargaining has come to mean
a system whereby employees participate through democratically chosen repre-
sentatives in the control of their conditions of employment, not merely in making
the rules but in their interpretation and execution The substitution of this
process for direct negotiations between employer and individual employees
establishes in the plant a form of industrial democracy, paralleling and imple-
menting the political democracy which the employee enjoys outside the plant.
That the establishment of working conditions in industry, is, after the advent
of the collective bargaining representatives, essentially a governmental process,
was noted by the Court in National Labor Relations Board v. Highland Park
Mfg Co.,` where it was held :
The purpose of the written trade agreement is, not primarily to reduce
to writing settlements of past differences, but to provide a statement of prin-
ciples and rules for the orderly government of the employer-employee re-
lationship in the future. The trade agreement thus becomes, as it were, the
industrial constitution of the enterprise, setting forth the broad general
principles upon which the relationship of employer and employee is to
be conducted. Wages may be fixed by such agreements and specific matters
may be provided for ; but the thing of importance is that the agreement
sets up a modus vivendi, under which employer and employee are to carry
on. It may be drawn so as to be binding only so long as both parties con-
tinue to give their assent to it; but the mere fact that it provides a framework
within which the process of collective bargaining may be carried on is of
iG 323 U S 192
37 110 F . ( 2d) 632 (C C. A. 4).
INLAND STEEL COMPANY 35
incalculable value in removing the causes of industrial strife. If reason
and not force is to have sway in industrial relationships , such agreements
should be welcomed by capital as well as by labor. They not only provide
standards by which industrial disputes may be adjusted, but they add dignity
to the petition of labor and remove the feeling on the part of the worker
that he is a mere pawn in industry subject to the arbitrary power of the
employer.
The undersigned finds that the respondent, by unilaterally executing and
establishing its Past Service Pension Trust without first notifying and con-
sulting with the Union ; by refusing to negotiate with the Union on March 5,
1946, and thereafter, concerning a grievance in which the Union protested the
contemplated action of the respondent of retiring employees in the unit who
had reached age 65, which action the Union stated would, constitute a breach
of its existing contract ; and by retiring employees in the unit who had reached
age 65, without first consulting with the Union and by refusing to discuss the
matter with the Union, has failed and refused to bargain collectively, and has
thereby interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The undersigned finds that the activities of the respondent set forth in Section
III, above, occurring in connection with the operations of the respondent described
in Section I, above, have a close, intimate, and substantial relation 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. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor
practices, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent by acting unilaterally with regard to
its Pension Plan and without consulting with the Union on this subject, has
refused to bargain collectively. It is accordingly necessary, in order to effec-
tuate the policies of the Act, to require the respondent, upon request, to bargain
collectively with the Union as the exclusive representative of its employees in
the appropriate unit with respect to its Pension Plan, and to refrain in the
future from acting unilaterally in any matter involving its Pension Plan whereby
employees in the appropriate unit may be substantially affected without prior
consultation with the Union and the undersigned will so recommend.38
Because of the basis of the respondent's refusal to bargain as indicated in the
facts fqund and because of the absence of any evidence that danger of other
unfair labor practices is to be anticipated from the respondent's conduct in the
33 Counsel for the Board and for the Union during oral argument raised the contention
that the Board should, in addition to ordering the respondent to bargain collectively with
the Union on all matters pertaining to its Pension Plan , order the respondent to reinstate
with back pay all employees who were unilaterally retn ed, or in the event the Board is
unwilling to so order, then to order that any agreement which is reached between the parties
after bargaining collectively be made retroactive to the date on which the employees were
in fact retired. The undersigned does not believe in view of the limited type of violation of
Section 8 ( 5) herein found , that the aforesaid suggested remedy is in order . It is a mat-
ter, however, that could be determined in the collective bargaining process
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
past, the undersigned will not recommend that the respondent cease and desist
from commission of any other unfair labor practices. Nevertheless, in order to
effectuate the policies of the Act, the undersigned will recommend that the
respondent cease and desist from the unfair labor practices found, and from
in any manner interfering with the efforts of the Union to bargain collectively
with it.t°
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Local Union Nos 1010 and 64, United Steelworkers of America (CIO), is
a labor organization within the meaning of Section 2 (5) of the Act.
2. All production,, maintenance, and transportation workers employed by the
respondent at its plant at Indiana Harbor, Indiana, and Chicago Heights, Illinois,
excluding foremen, assistant foremen, supervisory, office, and salaried employees,
bricklayers, timekeepers, technical engineers, technicians, draftsmen, chemists,
watchmen and nurses, constitute a unit appropriate for collective bargaining
within the meaning of Section 9 (b) of the Act.
3. Local Union Nos. 1010 and 64, United Steelworkers of America (CIO), was,
on May 23, 1942, and at all times thereafter has been, the exclusive representative
of all the employees in such unit for the purpose of collective bargaining within
the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with Local Union Nos. 1010 and 64,
United Steelworkers of America (CIO), as exclusive bargaining representative
of the employees in the appropriate unit, the respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (5) of the
Act.
5. By said acts, tine respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, and
thereby engaged in and is engaging in unfair labor practices within the meaning
of Section S (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
v
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, the undersigned recommends that the re-
spondent, Inland Steel Company, its officers, agents, successors, and assigns
shall :
1 Cease and desist from.
(a) Refusing to bargain collectively with respect to its Pension Plan with Local
Union Nos 1010 and 64, United Steelworkers of America (CIO) as the exclusive
representative of all production, maintenance and transportation workers in the
respondent's Indiana Harbor, Indiana, and Chicago Heights, Illinois, plants,
excluding foremen, assistant foremen, supervisory, office, and salaried employees,
bricklayers, timekeepers, technical engineers, technicians, draftsmen, chemists,
watchmen and nurses;
(b) Unilaterally making changes in its Pension Plan which would substantially
affect the employees in the aforesaid appropriate unit without prior consulta-
tion with Local Union Nos. 1010 and 64, United Steelworkers of America (CIO) ;
11 See N. L. R. B. v. Express Publishing Company, 312 U. S. 426.
INLAND STEEL COMPANY 37
(c) In any manner interfering with the efforts of Local Union Nos. 1010 and
64, United Steelworkers of America (CIO), to bargain collectively with it.
2. Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act :
(a) Upon request, bargain collectively with respect to its Pension Plan with
Local Union Nos. 1010 and 64, United Steelworkers of America (CIO), as the
exclusive representative of all the employees in the aforesaid unit;
(b) Consult with Local Union Nos. 1010 and 64, United Steelworkers of America
(CIO), prior to taking any action substantially affecting any employees in the
appropriate unit, in accordance with the terms and provisions of its Pension Plan ;
(c) Post at its plants at Indiana Harbor, Indiana, and Chicago Heights,
Illinois, copies of the notice attached to the Intermediate Report herein marked
"Appendix A." Copies of said notice, to be furnished by the Regional Director
for the Thirteenth Region, shall, after being duly signed by the respondent's
representative, be posted by the respondent immediately upon receipt thereof,
and maintained by it for sixty (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 altered, defaced, or covered by any other material; '
(d) File with the Regional Director for the Thirteenth Region, on or before
ten (10) days from the date of the receipt of this Intermediate Report, a report
in writing setting forth in detail the manner and form in which the respondent
has complied with the foregoing recommendations.
It is further recommended that unless the respondent notifies said Regional
Director in writing within ten (10) days from the receipt of this Intermediate
Report that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203 38 of
said Rules and Regulations, file with the Board, Roehambeau Building, Wash-
ington 25, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support
thereof ; and any party or counsel for the Board may, within the same period,
file an original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203 65 As further provided in said Section 203 39,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
SIDNEY LINDNER,
Trial Examiner,
Dated January 8, 1947.
788886-49-vol 77-4
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify all employees that :
WE WILL bargain collectively upon request with LOCAL UNION Nos. 1010 AND
64, UNITED STEELWORKERS OF AMERICA (CIO), as the exclusive representative
of all the employees in the bargaining unit described herein with respect
to the Retirement and Pension Plans and
WE WILL NOT in the future unilaterally make changes in our Retirement
and Pension Plan which would substantially affect the employees in the
bargaining unit described herein without prior consultation with the above-
named Union.
WE WILL NOT in any manner interfere with the efforts of the above-named
Union to bargain with us.
The bargaining unit is all production, maintenance, and transportation
workers in our Indiana Harbor, Indiana, and Chicago Heights, Illinois,
plants, excluding foremen, assistant foremen, supervisory, office, and salaried
employees, bricklayers, timekeepers, technical engineers, technicians, drafts-
men, chemists, watchmen and nurses.
INLAND STEEL COMPANY,
Employer.
Dated--------------------------------- By-----------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.