International Harvester Co.

National Labor Relations Board - Board Decisions

Feb 14, 1968

169 N.L.R.B. 787 (N.L.R.B. 1968)

INTERNATIONAL HARVESTER COMPANY
International Harvester Company and International
Union, United Automobile , Aerospace and Agricul-
tural Implement Workers of America (UAW) and
American Federation of Technical Engineers,
AFL-CIO. Cases 13-CA-7075 and 13-CA-7154
February 14, 1968
DECISION AND ORDER
By MEMBERS BROWN, JENKINS, AND ZAGORIA
On May 25, 1967, Trial Examiner Leo F.
Lightner issued his Decision in the above-entitled
proceeding, finding that Respondent 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 attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the
Trial Examiner's Decision, and the General Coun-
sel and Charging Party, UAW, filed answering
briefs to the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the an-
swering briefs, and the entire record in the case, and
hereby adopts the findings, conclusions, and
recommendations' of the Trial Examiner, as herein
modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, International Harvester
Company, Chicago, Illinois, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Delete paragraph 2(c) of the Trial Examiner's
Recommended Order and substitute therefor:
"(c) Make whole, with 6-percent interest
thereon, each of those salaried employees, named
in `The Remedy,' who have been disqualified for
participation in the Savings and Investment Plan,
for any loss each may have suffered by reason of
said removal from said program, commencing May
21, 1965, and terminating on July 1, 1965."
2. Delete from the end of the last indented para-
graph of the notice attached to the Trial Examiner's
169 NLRB No. 105
787
Decision the phrase "to and including such date as
the matter of their participation is resolved through
normal collective bargaining" and substitute
therefor "and terminating July 1, 1965."
3. Delete the sixth indented paragraph of the
notice.
4. Delete from paragraph 1(d) of the Trial Ex-
aminer's Recommended Order that part thereof
which reads "In any other manner" and substitute
therefor "In any like or related manner."
5. Delete from the fourth indented paragraph of
the notice the words "in any other manner" and
substitute therefor "in any like or related manner."
6. Delete from paragraph 2(d) of the Trial Ex-
aminer's Recommended Order that part thereof
which reads "to be furnished" and substitute
therefor "on forms provided."
' The Trial Examiner recommended that Respondent make whole em-
ployees removed from the Savings and Investment Program commencing
May 21, 1965, and to restore the status quo ante, until such date as the
matter is resolved through normal collective bargaining We agree that the
employees should be made whole beginning May 21, 1965. However, as
it appears that the Union had sought during negotiations with Respondent
to have the employees placed again under SIP coverage and was unsuc-
cessful, the issue was resolved when on July 1, 1965, by agreement of the
parties, the employees were blanketed into the Union's contract and ob-
tained SUB coverage. For this reason, we will amend the order so as to
terminate Respondent's liability to make whole the Stockton employees
as of July 1, 1965.
The Trial Examiner further found that in view of the nature of the unfair
labor practices committed, similar unfair labor practices may be an-
ticipated, and recommended the issuance of a broad order. However, con-
trary to the Trial Examiner, we believe that Respondent's unfair labor
practices arose entirely out of what it considered a legal question The
record shows that Respondent has had amicable relations in the past with
the unions involved and is presently dealing with them under collective-
bargaining contracts. Since we find that Respondent's conduct does not
indicate a predilection to commit other unfair labor practices in the future,
a broad order is not warranted and we will limit the order accordingly.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Trial Examiner: This proceeding
was heard before me in Chicago, Illinois, on December
20, 1966, on the complaint of the General Counsel, as
amended, and the amended answer of International Har-
vester Company, herein referred to as Respondent. i The
issues litigated are whether the Respondent engaged in
unfair labor practices and thereby violated Section 8(a)(3)
and (1) of the Labor Management Relations Act, 1947, as
amended, 61 Stat. 136, herein called the Act. The parties
waived oral argument, and briefs filed by the General
Counsel, Charging Party (UAW), and Respondent have
been carefully considered. During the hearing the Trial
Examiner reserved rulings on the materiality and
relevance of certain exhibits and certain profferred
testimony. These rulings are disposed of in accordance
with findings and conclusions herein set forth.
' The charge in Case 13-CA-7075 was filed on June 21, 1965 The
charge in Case 13-CA-7154 was filed on September 1, 1965 A con-
solidated complaint was issued on February 1, 1966 , and amended on
March 16, 1966
350-212 0-70-51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record and from my observation of the
witness ,2 I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a New Jersey corporation, having its
principal office at Chicago, Illinois , with places of busi-
ness in Chicago, Illinois ; Melrose Park, Illinois; Fort
Wayne, Indiana ; Stockton, California; and various other
locations throughout the United States, and is engaged in
the manufacture and sale of farm equipment and trucks.3
During the calendar year of 1965, a representative
period, Respondent, in the conduct of its business opera-
tions, shipped goods valued in excess of $1,000,000 from
its plants in Illinois , Indiana, and California, directly to
States other than the States of Illinois, Indiana, and
California. The complaint alleges , the answer admits, and
I find that Respondent is an employer, within the meaning
of Section 2(2), engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America.
(UAW), herein referred to as UAW, and American
Federation of Technical Engineers , AFL-CIO, herein
referred to as AFTE, are each a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings and
litigated at the hearing are whether the Respondent: In-
terfered with, restrained, and coerced employees in viola-
tion of the provisions of Section 8(a)(1) of the Act by (a)
on or about January 15, 1965, placing in effect for its
salaried employees a Savings and Investment Program,
herein referred to as SIP, which expressly excluded from
eligibility all salaried employees in any bargaining unit
represented by a labor organization; (b) threatening its
salaried employees at Stockton, California, with loss of
eligibility in said SIP should they select a labor organiza-
tion as their bargaining representative on or about May
4, 1965; and (c) Respondent's removal of clerical and
technical employees located at its Stockton, California,
plant from further participation in SIP, effective May 21,
1965, was discriminatorily motivated because they had
selected UAW as their collective-bargaining representa-
tive in a Board-conducted election, and thus constituted
conduct violative of Section 8(a)(3) and (1) of the Act.
2 One witness was presented, by Respondent. In the main , the record is
comprised of stipulations and joint exhibits , which the parties agree accu-
rately set forth stated facts . The parties are to be commended for the obvi-
ous effort to, thus, expedite the disposition of the hearing stage of this
proceeding.
The transcript index reflects omissions and errors, as follows: stipula-
tion N , offered p . 77, rejected p. 78; stipulation 0 and joint exhibits 13,
14, and 15 , offered p . 81, ruling reserved p. 82; respondent 's exhibit 5, rul-
ing reserved p. 108. Ruling was reserved: on stipulation D and joint ex-
hibit 4 , p. 36; stipulation F and joint exhibit 5, p. 40 ; and joint exhibit 6, p.
46. Respondent 's exhibits 1, 2, 3, and 4 , are-incorrectly marked
"Received."
Respondent admits that, on or about January 15, 1965, it
placed into effect, initially, SIP which, by its terms, ex-
cludes, inter alia, employees in collective-bargaining
units represented by a labor organization. As an affirma-
tive defense, Respondent asserts that SIP was
established for the purpose of providing alternate benefits
equivalent to (1) those granted represented employees as
the result of contract negotiations in 1964 and early 1965,
and (2) those provided by the Company to salaried em-
ployees because of the existence of a separate pattern of
employee benefits within a particular area or industry.
Respondent, by way of further defense, asserts that for
over 20 years it has maintained a policy of extending
benefits granted labor unions representing salaried em-
ployees to those nonrepresented salaried employees who
are employed in the same industry and general type of
employment, and that is pursuant to its basic policy of ac-
cording all employees equivalent treatment, without re-
gard to whether or not such employees are represented by
a labor organization. Respondent asserts the establish-
ment of SIP was consistent with past application of the
equal treatment policy. Respondent denies that it engaged
in any unfair labor practices.
B. Background
There is no dispute relative to the background evidenti-
ary facts. Robert F. Crowel is manager of labor relations
for Respondent. In the discharge of his duties, Crowel is
engaged , at various times, with negotiations with some 26
international unions and approximately 225 local unions.
Crowel asserted that individual plant contracts between
Respondent and the UAW were executed as early as
1940, and multiplant contracts, covering all of the plants
presently involved, inferentially in master contracts, have
been executed on various occasions since 1955. Crowel
asserted the last strike by UAW was during the period of
contract negotiations in 1959. In 1961 and October 1964,
negotiations culminated in agreements without resort to
economic force. The UAW represents both production
and maintenance units and clerical and technical units;
however, there are separate multiplant contracts for each
category, and a separate contract for employees in
warehouse operations, who are not part of the P & M
units.
Respondent employs approximately 16,400 salaried
employees, of whom approximately 3,400 are in units
represented by UAW, AFTE, and, inferentially, other
unions.4
On October 7, 1964, Respondent and UAW entered
into a collective -bargaining agreement, which provides it
is to "remain in full force and effect until the first day of
October, 1967,-" and also containing, inter alia , the fol-
lowing:
The stipulations and joint exhibits , on which I reserved decision, as in-
dicated, upon objection by General Counsel and Charging Parties, on the
grounds of relevance and materiality, are received. However, joint ex-
hibits 10 and 15 are limited to the relevant paragraphs , indicated by the
parties, by subsequent advice, under date of February 15, 1967.
3 While the evidence would indicate Respondent, either directly or
through subsidiary corporations, is engaged in other lines of endeavor, this
fact is patently of no consequence herein.
4 AFTE represents units of salaried employees at the West Pullman
Works and Fort Wayne Works; the locations of the UAW units, except
for the unit at Stockton, California, are listed in the 1964 contract, but are
of no consequence herein.
INTERNATIONAL HARVESTER COMPANY 789
Article I, Section 1. The parties hereto have set forth
all the agreements between them with respect to
rates of pay, salaries, hours of employment, or other
conditions of employment of employees covered
hereby, except for the agreement amending the Inter-
national Harvester-UAW-CIO Non-Contributory
Retirement Plan which was entered into by the
parties on October 7, 1964, the agreement for a
Health-Security Program entered into by the parties
on October 7, 1964, and the Contract continuing and
amending the Supplemental Unemployment Benefit
Plan entered into on October 7, 1964, which three
(3) agreements are and shall continue to be separate
contracts between the parties. This Contract shall
continue to be the entire agreement between the
parties, except for such International Harvester-
UAW-CIO Non-Contributory Retirement Plan,
such Health-Security Program agreement, and such
Supplemental Unemployment Benefit Plan, and shall
remain in effect without modification or addition for
its duration except as otherwise specifically provided
for in this Contract.
The parties acknowledge that during the negotiations
which resulted in this Contract, each had the un-
limited right and opportunity to make demands and
proposals with respect to any subject or matter not
removed by law from the area of collective bargain-
ing, and that the understandings and agreements ar-
rived at by the parties after the exercise of that right
and opportunity are set forth in this Contract. There-
fore, the Company and the Union, for the life of this
Contract, each voluntarily and unqualifiedly waives
the right, and each agrees that the other shall not be
obligated, to bargain collectively with respect to any
subject or matter referred to, or covered in this Con-
tract, or with respect to any subject or matter not
specifically referred to or covered in this Contract,
even though such subject or matter may not have
been within the knowledge of contemplation of either
or both of the parties at the time that they negotiated
or signed this Contract.
and covered by this Contract will be automatically
covered by the Supplemental Unemployment
Benefit Plan.
Improvements in the 1964 agreement included, inter
alia, a fifth week vacation after 25 years of service, article
XV, section 2(c), and a so-called vacation bonus. The
latter resulted from an Agreement Establishing Contin-
gent Distribution Account, which, in essence, provided
that amounts contributed by Respondent to the Supple-
mental Unemployment Benefit Plan, in excess of funding
requirements, subject to related qualifications, seniority,
etc., could be distributed in amounts not exceeding $100
per employee per year. Resultant 1965 distributions to
salaried employees represented by UAW averaged
$44.50 per employee, and for the salaried employees
represented by AFTE, at West Pullman Works, averaged
$75.83.
On November 24, 1964, Respondent and AFTE en-
tered into a collective-bargaining agreement, covering a
unit of salaried professional and technical employees at
the West Pullman Works, providing for termination,
under certain conditions, on October 1, 1967, as article
XXIII. This agreement also provided, inter alia:
Article I, Section 2. The parties hereto have set forth
herein all the agreements between them with respect
to rates of pay, salaries, hours of employment, or
other conditions of employment of employees
covered hereby, except for the agreements amending
the Non-Contributory Retirement Plan, an agree-
ment for a Health-Security Program, the contract
amending the Supplemental Unemployment Benefit
Plan which agreements are and shall continue to be
separate contracts between the parties. This Con-
tract shall continue to be the entire agreement
between the parties, except for such Non-Contribu-
tory Retirement Plan, the Health-Security Program
and the contract amending the Supplemental Unem-
ployment Benefit Plan shall remain in effect without
modification or addition for its duration except as
otherwise specifically provided for herein.
Article III, Section 2. In the event the Union shall
hereafter be certified by the National Labor Rela-
tions Board, as the collective bargaining representa-
tive for any additional clerical or technical, or both,
bargaining unit in any of the Company's manufactur-
ing operations (but excluding subsidiaries of the
Company) or for any addition to any bargaining unit
as presently constituted and covered by this Con-
tract, this Contract will be made applicable to such
additional bargaining unit or to such addition to any
present bargaining unit upon mutual agreement of the
Company and the Local Union with respect to clas-
sifications, sub-classifications, position descriptions,
salaries, and rates of pay for such unit. The Company
and the Union reserve the right to negotiate concern-
ing the terms and conditions under which any new
collective bargaining unit will be included in the Sup-
plemental Unemployment Benefit Plan provided,
however, no such negotiations shall in any way affect
the Benefit amount computations or the number of
credit units required to be cancelled for a weekly
Benefit or substitute Benefit. Any additions to the
existing .bargaining units represented by the Union
Article XVII, Section 3(c), provides for a 5th week
of vacation after 25 years of service.
While the agreement between Respondent and UAW
establishing the Contingent Distribution Account was en-
tered into on October 7, 1964, an equivalent provision
was entered into between Respondent and AFTE on
June 29, 1965, effective June 12,1965 [sic].
At no time during the 1964 negotiations with either
UAW or AFTE was SIP mentioned or considered.
C. The Institution of SIP, and Related Events
There is no dispute relative to the evidentiary facts set
forth under this section. On December 22, 1964, Re-
spondent issued an announcement, "To all salaried non-
management employees not represented by a union," of
the institution of SIP for "Eligible Salaried Employes."
In this announcement the employees are advised this
"completely new program" is in addition to "extensive
liberalizations and changes in your retirement program,
vacation plan coverage, and Supplemental Unemploy-
ment Benefit Program." The report also states, "In re-
porting the results of our major union negotiations,
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reference was made to a 5th week vacation bonus provi-
sion and a new `Supplemental Unemployment Benefit
Fund' bonus." The report states that Respondent ap-
proved SIP "in their stead." It is then asserted that less
than 10 percent of the nonrepresented salaried employees
would, in fact, qualify for the fifth week vacation bonus.
The announcement also relates:
The "SUB Fund" bonus may be paid only when
SUB trust funds reach maximum funding levels, and
the amount of the bonus cannot exceed $100. Since
the layoff experience of the unionized trust fund
groups governs whether a "SUB bonus" will be paid,
and in what amount, it was not considered an ap-
propriate benefit arrangement for non-represented
salaried employees.
The statement continues, "On the basis of these and re-
lated considerations, we felt that there would be a more
universal appeal to a Savings and Investment Program, as
contrasted to one vacation bonus that benefits only a few
and another which may or may not be paid, depending on
the SUB fund level positions."
SIP was placed in effect, on a voluntarily basis, for
"Eligible Salaried Employes" on January 15, 1965.5
Under the plan "Eligible Employes" may authorize
payroll deductions of not less than 1 percent and not more
than 6 percent,6 which the Company matches with a 50
percent contribution, based on the actual amount of
deductions. The employee may elect to have his entire
deduction used for the purchase of Government bonds,
or may limit the Government bond purchase to 50 per-
cent, with the other 50 percent being invested in Respond-
ent's common stock. All of Respondent's contribution
is applied to the purchase of Respondent's common
stock.
Under definitions: The term "Company" means
Respondent; the term "Participating Company" means
wholly owned or substantially wholly owned domestic
subsidiaries, which elect to be included, with the consent
of Respondent; "Eligible Employees" are defined as fol-
lows:
The term "Eligible Employes" shall mean regular,
full-time employes of each Participating Company
compensated by salary or by commission or partly
by salary and partly by commission (1) who are
working in the United States, or (2) who are citizens
of or domiciled in the United States and who have
been or may hereafter be hired in the United States
by the Participating Company and who are sent by
the Participating Company to work out of the United
States, and whose services, if discontinued, would be
discontinued by recall to the United States and ter-
mination of employment in the United States.
Because of programs of employe benefits applicable
represented employes, as established by agreements
with the labor organizations, the term "eligible em-
ployes" shall not include employes in a collective
bargaining unit represented by a labor organization.
Eligible employes who are transferred to or become
included in a bargaining unit represented by a labor
organization will cease to be eligible when the change
5 Employees of specified subsidiary corporations were excluded, in-
ferentially on the basis that they had a different pattern of the employee
benefits, being in different industries . These exclusions are of no con-
sequence to the issues herein presented.
It is thus patent that the UAW 's charge , filed on June 21, 1965, was
within 6 months of the initiation of SIP . It is undisputed that the plan has
in status occurs. The term "eligible employes" shall
not include employes of any Division or operation to
the extent and during the time excluded by the Com-
pany because of the existence or establishment of a
separate pattern of employe benefits within a particu-
lar area or industry.
On January 15, 1965, Respondent published and dis-
tributed to "Eligible Salaried Employes" a 23-page
prospectus describing SIP in detail, and including the
definitions set forth.
IV. THE NLRB ELECTION AT STOCKTON, SUBSEQUENT
CERTIFICATION, AND RELATED EVENTS
On March 29, 1965, Respondent received a request for
recognition from UAW, for a unit comprised of all
salaried clerical and technical employees at the Stockton
Works. Subsequently, on April 23, 1965, the Regional
Director for Region 20, approved a Stipulation for Cer-
tification Upon Consent Election, Case 20-RC-6334.
In the interim, on April 5 and 6, 1965, Respondent
conducted all day meetings, on company time, for em-
ployees in the described unit . Half of the group attended
on the 5th, and the remaining half on the 6th, for a slide
presentation of the following: Disability Income Security
Plan, Hospital-Surgical Medical Plan, Term Life In-
surance Plan, Non-Contributory Retirement Plan, Con-
tributory Annuity Plan, Supplemental Unemployment
Benefits Plan, Holidays, Vacation Plan, and SIP.
Respondent's verbal presentation of SIP included,
inter alia:
This Plan is offered only to salaried employees not
represented by a union and management. It has been
given to all of you in lieu of the extra vacation pay
some unionized employees are eligible for. We be-
lieve this plan is more meaningful to you and will
benefit more of our non-unionized salaried em-
ployees than the union vacation pay from the SUB
fund or after 25 years of service . After all, only 3,400
IH salaried employees are represented by unions and
13,000 are not.
Some of the considerations reviewed by management
were as follows: The money for the vacation bonus
is available only when the SUB fund reaches its max-
imum limit and enough money is accumulated
thereafter to make a vacation bonus payment of more
than $25 to each employee. Whether or not enough
money will be accumulated to fully fund the SUB
Plan is dependent upon the layoff experience of that
particular union and the amount of Supplemental
Unemployment Benefits paid. The Company was
reluctant to establish a benefit in this area for salaried
non-union employees that was dependent upon the
layoff experience of unionized employees' SUB Plan
funded for the union.
The passage of time has shown this to be valid
reasoning. Because of the layoff experience and in-
continued in effect ever since , and accordingly was in effect, including fea-
tures objected to, at the time the AFTE filed its charge , on September 1,
1965.
6 Employees with I to 5 years of service are limited to a maximum of 4
percent, employees with 5 to 10 years of service are limited to 5 percent,
those with 10 or more years of service are limited to 6 percent.
'INTERNATIONAL HARVESTER COMPANY 791
creases in the amounts of SUB benefit payments (al-
most 50%), it appears at this time that hourly em-
ployees under the major contracts will not receive a
SUB Vacation Bonus payment during the lifetime of
the present agreement and perhaps longer.
Salaried employees represented by the major C & T
agreement will receive approximately $39 as a vaca-
tion bonus in 1965, and in 1966 there may not be suf-
ficient funds to make vacation bonus payment at all.
The fifth week of vacation pay for employees with 25
years of service would benefit only a few. Of the
13,000 salaried employees not represented by a
union, only 1,176 employees have 25 years or more
of service and could qualify for this benefit. It is in-
teresting to note that of the 3,400 union members,
only about 500 are eligible for this extra week of va-
cation pay.
On April 23, 1965, UAW sent a letter to all of the
salaried employees in the described unit, which con-
tained, inter alia, the following, after setting forth nu-
merous details relative to the election scheduled for May
13:
This is the time we have all been waiting for. We can
now vote for union representation and the security
that a labor contract provides. By voting for UAW,
you will get automatic coverage of the Clerical and
Technical Master Contract and secure protection of
the UAW-IH Pension Insurance, and the Supple-
mentary Unemployment Benefit Programs.
Between now and election time, it is our expectation
that you will be approached by management people
who will try to change your mind about the Union.
Keep in mind at all times that it was your concern for
your security that brought you to the Union in the
first place and no amount of verbal persuasion can
take the place of the security of a union contract.
On May 4, 1965, Respondent, by its supervisor and
agent, E. B. Derr, manager of operations of its Stockton,
California, plant, sent a letter to each of its salaried cleri-
cal and technical employees in the unit, which contained,
inter alia:
We have told you we do not think you need union
representation and we have told you why. I think you
should also consider what you have to lose if you
choose union representation.
For example, you now have not only all the pension
coverage enjoyed by represented employees, but
more. The UAW-IH Master Contract provides for
a non-contributory retirement plan. You have a pro-
gram that means much more to you -the contributo-
ry annuity plan-in addition to the coverage of the
non-contributory plan. If you become represented by
the UAW, you will lose your eligiblity to participate
in the contributory annuity plan.
You have another plan available to you that is not
available to represented employees-the Interna-
tional Harvester savings and investment program.
This plan, you will recall, gives you an opportunity
to save by investing in the company's common stock
and United States saving bonds, with the company
contributing $1 for every $2 you invest in the pro-
gram. Represented employees are not eligible to par-
ticipate in this program.
On May 6, 1965, UAW sent a letter to all salaried em-
ployees in the unit, which contained questions and an-
swers including, inter alia, the following:
Q. Will the Stockton Works employees be auto-
matically covered by the UAW Master Clerical and
Technical Contract?
A. Yes. As soon as there is complete agreement
on classification, salary rates, adjustment of merit in-
creases and other types of inequities, and other
problems affecting the Stockton Works employees.
Q. Is the Company anti-union?
A. No. The proof is the harmonious relationship
that exists between the Company and the UAW,
which is reflected in the "New Look" program noted
by many universities and authorities in the country.
Q. Can the Company take away any of our
benefits as a result of our voting for the Union?
A. No. First of all, it should be recognized that
the government would consider it an unfair labor
practice if any supervisor or other management
authority threatens you with any loss of benefit to in-
fluence your vote. Secondly, the benefits you
presently enjoy can only be modified or changed as
a result of collective bargaining after the election,
when the Company and the Union are in negotiations
and must be done by agreement. THE COMPANY
CANNOT UNILATERALLY TAKE ANY
BENEFITS AWAY FROM YOU THAT YOU
PRESENTLY ENJOY.
On May 8, 1965, UAW distributed a bulletin to em-
ployees in the unit, in which it asserted that the more
favorable merit rating policy provided for in the main
labor contract would generate $5,171.40 in additional
earnings for an average salaried employee, over a 10-year
period of representation.
On May 21, 1965, a Certification of Representatives,
resulting from the election held on May 13, 1965, and
designating UAW as the collective-bargaining represent-
ative for the Stockton clerical, technical, and profes-
sional unit, was issued in Case 20-RC-63 34.
Events Subsequent to Certification
On May 28, 1965, Respondent advised UAW, inter
alia:
As you know, the National Labor Relations Board
has issued a certification certifying your Union as the
designated collective bargaining representative of the
clerical and technical employees at the Stockton
Works.
The purpose of this letter is to inform you that the
Company will be prepared at an early date to
negotiate with your Union at-Stockton, California
with respect to those subjects which under our Main
Labor Contract for Clerical and Technical Em-
ployees are appropriate for collective bargaining.
This will, of course, include the conditions under
which these employees will be included in the Sup-
plemental Unemployment Benefit Plan for clerical
employees.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As you know, the Supplemental Unemployment
Benefit Plans in our industry were negotiated in sub-
stitution for a proposed stock purchase plan similar
in many respects to that established recently for non-
represented salaried employees of International Har-
vester Company. In addition, there are also certain
differences in benefits enjoyed by represented
salaried employees under the Main Labor Contract
and salaried employees not represented by a labor
union. In view of these differences, the Savings and
Investment Program established by the Company
limits eligibility to salaried employees not
represented by a labor union. In the interest of main-
taining equivalent treatment of all employees, which
has been our basic Company policy for many years,
we are implementing the provisions of the Savings
and Investment Program by discontinuing deduction
of contributions for employees in this new bargaining
unit effective the date of the Board certification.
On June 1, 1965, the Union responded to Respond-
ent's communication of May 28. The Union advised
that "any unilateral change" with regard to wages, work-
ing conditions, or any benefits currently being enjoyed by
the employees, would be considered a violation of Sec-
tion 8(a)(1), (3), and (5) of the Act. In its June 1 letter, the
Union requested the maintenance of a status quo until the
parties had an opportunity to negotiate an agreement. A
meeting, for the purpose of negotiations, at the earliest
convenient date was also requested.
The following day, June 2, 1965, Respondent replied
to the Union's request of June 1. Respondent therein as-
serted it did not believe the discontinuance of participa-
tion in SIP for the unit employees constituted a violation
of the Act. The Company also suggested a negotiating
meeting be held on June 29.
As a result of Respondent's unilateral act of removing
them from SIP coverage, in accordance with its May 28,
1965, letter, the following employees in the certified unit
were removed from the Program effective May 21, 1965:
Fred R. Andrews, James F. Bennett, Milton H. Bosse,
Thomas B. Britt , Hazel M . Cline, Julian R. Colberg,
Jerome L. Fueslein, Lionel F. Garson, James L. Locaso,
Bruno C. Marchetti, Walter Mayer, James L. Morrison,
T. Henry Nelson, Ernest A. Porter, Russel E. Rice, Juan
T. San Agustin, William C. Sexton, Arnold O. Snow,
James I. Tanji, John H. Whitby, and Paul H. Wilson.
Subsequent to June 2, 1965, negotiations were con-
ducted as contemplated by the above-quoted provision of
the master contract (article III, sec. 2), during which the
UAW requested that salaried employees at Stockton be
permitted to participate in the Savings and Investment
Plan, and at no time waived said demand.
On July 1, 1965, Respondent and UAW entered into
a Supplemental Agreement making the terms of all master
contracts, as supplemented, none of which made any
reference to the subject of eligibility of salaried bargaining
unit employees to participate in SIP, applicable to clerical
and technical employees at Stockton Works.7
V. CONTENTIONS OF THE PARTIES AND CONCLUDING
FINDINGS
The principal. issue to be resolved is whether Respond-
ent by the adoption of SIP, and more particularly by the
restrictions incorporated in the definition of "Eligible
Employes," limiting participation to employees who are
not included "in a collective bargaining unit represented
by a labor organization," and further providing, "eligible
employes who are transferred to or become included in a
bargaining unit represented by a labor organization will
cease to be eligible when the change in status occurs," en-
gaged in conduct constituting interference, restraint, and
coercion. In addition, at issue are two questions, whether
(1) the letter of Derr, of May 4, 1965, contained a threat
constituting interference, restraint, and coercion, and (2)
Respondent's action, effective as of May 21, 1965, in
removing clerical and technical employees at Stockton
from further participation in SIP, because they had
selected UAW as their collective-bargaining representa-
tive, was discriminatorily motivated.
Respondent sought, unsuccessfully, to establish that,
in the 1955 auto negotiations, the UAW rejected a SIP
program offered by the auto companies, and obtained
SUB as a substitute. This proffer was rejected for remote-
ness and lack of relevance and materiality. In addition, it
should be noted, there is no assertion that Respondent
ever tendered such an offer to UAW. Similarly, I have
ruled that the fact that Chrysler Corporation adopted a
"Thrift-Stock Ownership Program" in 1964, which, in-
sofar as this record reflects, does not have the limitation
on qualification which is the subject of the dispute
herein," is neither relevant nor material.
Respondent acknowledged that SIP was a "deviation"
from the Company's usual method of implementing its
equal treatment policy of extending, to nonrepresented
employees, all the economic benefits obtained by or-
ganized employees in bargaining. Respondent asserted
that after concluding the multiplant agreement with
UAW, on October 7, 1964, it extended to the non-
represented salaried employees extensive increases in
noncontributory pension benefits, full payment of usual
and customary hospital and surgical-medical benefits,
large increases in life insurance coverage, higher weekly
disability benefits, salary adjustments, continued cost-of-
living and annual improvement factor salary improve-
ments, two additional holidays, and improvements in va-
cation eligiblity. Respondent asserted the annual
[vacation] bonus to be paid out of financing provided for
the SUB Trust, but was not needed for that trust fund,
and the fifth week of vacation posed special problems.
Respondent asserted there was no trust covering the non-
represented employees, hence no equitable basis for cal-
culating a bonus. Relative to the fifth week of vacation,
Respondent asserted this would have placed non-
represented salaried employees ahead of managerial em-
ployees in a total vacation eligibility. It must be inferred
that represented employees were thus given more ad-
vantageous conditions than managerial employees.
7 Absent any allegation of a violation of Section 8(a)(5) of the Act, I find
the matter of Respondent 's negotiations with AFTE , related to the West
Pullman unit , relative to SIP, neither relevant nor material to the issues
herein.
8 While the transmittal letter from Chrysler Corporation to Respondent
is dated May 23, 1966, 1 find it unnecessary to draw any conclusion as to
when the facts recited in the enclosure first came to Respondent's atten-
tion.
INTERNATIONAL HARVESTER COMPANY 793
Respondent urges that SIP was "in lieu of' the vacation
bonus and the fifth week of vacation after 25 years of ser-
vice.
General Counsel and the Charging Parties, UAW and
AFTE, do not challenge Respondent's assertion that it
has extended to nonrepresented nonmanagerial salaried
employees all of the economic benefits obtained through
bargaining for represented employees, by UAW. How-
ever, these parties do challenge any premise that a stock
purchase plan, with the unpredictable fluctuations of the
stock market, could actually be determined to be an
equivalent, in monetary return, of the vacation bonus,
with the variations that attend its determination, and the
fifth week of vacation. All parties agree it is not incum-
bent upon the Board to determine the question of
equivalence. It would appear sufficient, in passing, to
note Respondent 's urgings , herein, of equivalence are at
variance with the Company's representations to the in-
volved employees relative to the same subject matter dur-
ing organizing campaign.9
I turn next to the question of whether SIP, by reason of
the qualifying language used in defining "Eligible Em-
ployes," is per se violative of Section 8(a)(1) of the Act.
General Counsel and Charging Parties, UAW and
AFTE, so contend. Respondent urges that other words
of qualification, used by it, modify the findings in prior
Board Decisions, which have court approval. I do not
agree. The exclusion of employees who have "a separate
pattern of employee benefits" in a particular area or in-
dustry does not modify the offensive language. Respond-
ent's self-serving preface, "Because of programs of em-
ploye benefits applicable to represented employes, as
established by agreements with labor organizations,"
may, as Respondent contends, indicate an exercise of
valued management judgment. However, it does not
dilute or modify the unilaterally adopted, offensive limita-
tion which has been held to be "employer conduct in-
herently destructive of rights guaranteed by Section 7."10
The Board has found the mere maintenance and con-
tinuance of a provision in a pension trust plan making
nonunion representation one of the qualifications for
eligibility to participate therein, itself tends to interfere
with, restrain, and coerce employees, who are otherwise
eligible, in the exercise of their self-organizational rights
guaranteed in Section 7 of the Act. Jim O'Donnell, Inc.,
123 NLRB 1639, 1643.11
Respondent's reliance on the General Electric case, 12
is misplaced. The decision therein involved objections to
an election and did not involve the question herein of an
unfair labor practice. Factually, the Board found that the
Savings and Security Plan had been rejected by the union,
in prior negotiations, that the employer's practice of
discontinuing the plan, with respect to employees in a cer-
tified unit, had the acquiescence of the union, which had
so advised the employees, prior to the election. I find this
case inapposite.
Under the circumstances herein, I find no independent
evidence of animus or specific intent to abrogate rights
guaranteed by the Act is necessary to support a finding of
violation. In the Radio Officers' case,13 the Supreme
Court said:
This recognition that specific proof of intent is un-
necessary where employer conduct inherently en-
courages or discourages union membership is but an
application of the common-law rule that a man is held
to intend the forseeable consequences of his conduct
(citations omitted). Thus an employer's protestation
that he did not intend to encourage or discourage
must be unavailing for a natural consequence of his
action was such encouragement or a discouragement.
Concluding that encouragement or discouragement
will result, it is presumed that he intended such con-
sequence. In such circumstances intent to encourage
[or discourage] is sufficiently established. 14
Respondent asserts that SIP was initiated for a lawful
business purpose which would justify disparate treat-
ment, and relies upon the Speidel and Quality Castings
and Pittsburgh-Des Moines cases. 15 In the Melville case,
supra, the court found the two latter cases were not ap-
posite finding, at 692:
Here the disqualification is based solely upon the
criterion of union representation. In Quality
Castings and Pittsburgh-Des Moines the employee
groups excluded from the benefits involved were
defined by other than union membership or activity
criteria- the action complained of was not clearly
discriminatory on its face as being openly and
avowedly directed solely at employee activity
specifically protected by the Act.
The observation of the court in Melville has equal appli-
cation here. Accordingly, I find the three cited cases
inapposite.16
° As I have found, supra, at the meetings of April 5 and 6, 1965,
Respondent advised the Stockton unit employees , in part.
We believe this plan is more meaningful to you and will benefit more
of our non -unionized salaried employees than the union vacation pay
from the SUB Fund or after 25 years of service . After all, only 3,400
IH salaried employees are represented by unions and 13,000 are not.
Salaried employees represented by the major C & T agreement will
receive approximately $39 as a vacation bonus in 1965, and in 1966,
there may not be sufficient funds to make the vacation bonus pay-
ment at all.
The fifth week of vacation pay for employees with 25 years of service
would benefit only a few. Of the 13,000 salaried employees not
represented by a union, only 1,176 employees have 25 years or more
of service and could qualify for this benefit. It is interesting to note
that of the 3,400 union members, only 500 are eligible for this extra
week of vacation pay.
10 Melville Confections, Inc. v. N.L.R.B., 327 F 2d 689,691 (C A 7).
11 Accord- Melville Confections, Inc., 142 NLRB 1334, enfd. 327 F 2d
689 (C.A. 7), cert. denied 377 U,S. 933 ; General Motors Corporation, 59
NLRB 1143; Crosby Chemicals , Inc., 121 NLRB 412; Toffenetti
Restaurant Co., 136 NLRB 1156, enfd. 311 F.2d 219 (C A. 2), cert. de-
nied 372 U.S. 977 ; Dura Corporation , 156 NLRB 285; Channel Master
Corporation , 148 NLRB 1343 . While these cases represent a variety of
factual situations, the indicated conclusion is uniform.
12 General Electric Company, 161 NLRB 615.
13 Radio Officers' Union, etc. v . N.L.R,B. [Bull Steamship Co.], v.
N.L.R.B. 347 U.S. 17,45.
14 See also N.L.R.B. v. Erie Resistor Corp ., 373 U.S. 221,227-228.
15 Speidel Corp., 120 NLRB 733; Quality Castings Corp., 139 NLRB
298, enforcement denied 325 F 2d 36 (C A 6); Pittsburgh-Des Moines
Steel Co., 124 NLRB 855, enforcement denied 284 F 2d 74 (C.A. 9).
16 In so finding I have carefully considered the cited decisions and have
noted the distinctions set forth by the Board in in . 5 of the Quality
Castings case at 931 , and in in. 8 of the Pittsburgh-Des Moines case, at
859. In the latter, the Board set forth the factual variations in Speidel,
supra; N.L.R.B. v. Nash-Finch Co., 211 F.2d 622 (C.A. 8); and
Intermountain Equipment Co., 239 F 2d 480 (C.A. 9), relied on, herein,
by the Respondent . For the reasons stated by the Board , I find these cases
inapposite.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent' s assertion that the language of the eligi-
bility provision "does not declare employees ineligible
because of union membership or representation" but "on
the contrary, the ineligibility is `because of programs of
the employee benefits applicable to represented em-
ployees as established by agreements with labor organiza-
tions '," is, I find, nothing more than an endeavor to place
an aura of legality on that which is patently illegal.
Respondent clearly stated, during the give and take of the
campaign , that the employees would sacrifice eligiblity if
they selected a collective-bargaining representative, and
solely for that reason. This prognostication, thereafter,
became a reality at the election of the Respondent, effec-
tive May 21, 1965.
Respondent makes a point of the fact that during the
campaign the UAW advised the employees that the Com-
pany is not "anti-union ." Respondent errs in this reliance
on opinion evidence. While it is assumed, absent evidence
to the contrary, that the Company has in fact engaged in
a "harmonious relationship," as it asserts, without prior
conduct violative of the Act, the test here is whether the
conduct complained of, in fact, is violative of the re-
strictions imposed in the sections of the Act referred to.
General Counsel correctly asserts that the intent is
founded upon the !inherentlyi discriminatory or destruc-
tive nature of the conduct itself, and that the employer
must be held to intend the consequences which fore-
seeably and inescapably flow from its actions. As stated
by the Court in Melville, supra, 691:
It was employer conduct inherently destructive of
rights guaranteed by Section 7 -it carried with it its
own inherent evidence of intent-it strains credulity
to ascribe some other or different intent to the provi-
sion.
I find, for the reasons stated, that by the promulgation
and maintenance of SIP, with its unlawful restrictions,
both as to qualification, and the continuance of eligibility,
the Respondent has interfered with, restrained, and
coerced its employees in the exercise of their rights,
guaranteed in Section 7, and said conduct is in derogation
of the provisions of Section 8(a)(1) of the Act.
I turn next to consideration of the allegation that
Respondent, by the letter of Derr, threatened the unit em-
ployees with loss of eligibility in SIP, should they select
a labor organization as their bargaining representative.
I have found, supra; that, in his letter, Derr advised the
unit employees, inter alia , "I think you should also con-
sider what you have to lose if you choose union represen-
tation. - You have another plan available to you that is
not available to represented employees-the Interna-
tional Harvester savings and investment program-.
Represented employees are not eligible to participate in
this program."
General Counsel relies on the Jefferson Wire case," in
which the Board found a profit-sharing plan, which
foreclosed participation by employees who become mem-
bers of or are represented by a labor organization, as well
as declarations to this effect by Vice President Friedman
at preelection meetings , tended to have a coercive effect
upon employees and were violative of Section 8(a)(1) of
the Act. 18
Respondent acknowledges that on May 4, it made "an
unqualified statement that upon becoming represented by
the UAW the employees would be ineligible for SIP," but
asserts the statement must be viewed in context. Respond-
ent asserts the context is that SIP was established in lieu
of certain benefits granted the Union and granted the non-
represented employees, as explained in the Company's
letter of December 22, 1964, and its verbal presentations
of comparisons on April 5 and 6, 1965. Respondent's
reliance on the General Electric case, supra, is mis-
placed, for the reasons I have set forth relative to that
decision. I also find Respondent's assertion that the
Union was afforded an ample opportunity to respond, in
view of the 9 days between the dispatch of the letter and
the election, is not germane. Respondent's reliance on the
Brenner case'9 is likewise misplaced. We are not here
concerned with what the Board has termed as partisan
electioneering.
Accordingly, for the reasons set forth, I find the asser-
tions of Derr constituted interference, restraint, and coer-
cion and were violative of the provisions of Section
8(a)(1) of the Act.20
There remains the question of whether the removal of
employees in the unit from further participation in SIP,
because they selected a collective-bargaining representa-
tive, constituted conduct which was violative of Section
8(a)(3) and (1) of the Act.
Respondent, repeatedly during the hearing and in its
brief, urges that the Stockton employees "cannot expect
to get the cream off both bottles." Respondent urges that
"regardless of the eligibility provision in the SIP booklet,
the master contract itself afforded a lawful basis for
withdrawing SIP eligibility in the event UAW was cer-
tified by the Board." The premise of Respondent's con-
tention is article I, section 1, of the October 7, 1964,
UAW multiplant agreement, set forth supra, under the
section herein entitled "Background."
General Counsel urges that two questions arise as the
result of Respondent's unilateral action, effective May
21, 1965. General Counsel calls attention to the fact that
the Supplemental Agreement, between the Respondent
and UAW, making the terms of the master contract ap-
plicable to the Stockton employees was entered into and
became effective July 1, 1965, and that between the dates
of May 21 and July 1, 1965, by reason of Respondent's
unilateral action, these salaried employees lost their eligi-
bility to participate in SIP, without receiving the benefits
in the main labor contract, which purportedly equalized
the benefits they lost. General Counsel correctly urges
this conduct was violative of Section 8(a)(3) and (1). In
addition, General Counsel urges that Respondent's uni-
lateral withdrawal of the unit employees from further par-
ticipation in SIP, as stated in its letter to UAW, of May
28, effective May 21, 1965, was violative of Section
8(a)(3) and (1).
I have found, and it is undisputed, as the letter clearly
states, Respondent advised UAW: "the Savings and In-
vestment Program established by the Company limits
eligibility to salaried employees not represented by a
labor union. - we are implementing the provisions of the
Savings and Investment Program by discontinuing deduc-
"Jefferson Wire and Cable Corp., 159 NLRB 1384.
18 The Board found , inter alia : Friedman 's declarations reminding
Respondent 's employees that "whoever would participate in this plan
would not participate in anything that the Union might force [on the
Respondent ] or vice versa," emphasized the hazards involved in choosing
the Union as a bargaining agent, and was coercive. Id., TXD fn. 52.
"Jacob Brenner Company, Inc., 160 NLRB 131.
20 Firestone Synthetic Fibers Company, 157 N LRB 1014.
INTERNATIONAL HARVESTER COMPANY 795
tion of contributions for employees in this new bargaining
unit effective the date of the Board certification. 112 1 The
Union, promptly, on June 1, advised Respondent that
"any unilateral change" would be considered violative of
those sections of the Act here under consideration, and
promptly filed a charge, so alleging, on June 21, 1965.
Under these circumstances, I am compelled to find that
the Union's subsequent entering a supplemental agree-
ment, on July 1, 1965, did not constitute a "waiver."
In General Motors Corporation, 59 NLRB 1143,
1145, the Board found that salaried employees were
transferred to hourly employees by reason of company
policy providing for such transfer for employees who had
designated a collective-bargaining representative. As a
result the employees in the bargaining unit were deprived
of certain benefits and contingent benefits, including in-
eligibility to particiate in a retirement plan. The Board
held that unilateral changes in employment status made
by an employer, based on the exercise of the right to act
collectively, are repugnant to the basic purposes of the
Act, that the transfer was effected with an intent to dis-
criminate, that it had a natural tendency to discourage
membership in the Union and was violative of Section
8(a)(3), and that it constituted interference, restraint, and
coercion, with the exercise of the right to self-organiza-
tion guaranteed in Section 7 of the Act, thereby violating
Section 8(a)(1) of the Act.
Admittedly the employees in the unit were excluded
from SIP because they had designated the Union as their
representative, absent such a designation, it is patent, that
the action of Respondent, herein complained of, would
not have ensued. Under the circumstances, I find that
Respondent removed the eligibility of the Stockton unit
employees to further participate in SIP with an intent to
discriminate in regard to terms and conditions of employ-
ment, thereby discouraging membership in the Union. I
find Respondent's discrimination in regard to the terms
and conditions of employment of the enumerated em-
ployees was violative of Section 8(a)(3) of the Act, and
constituted interference, restraint, and coercion within
the meaning of Section 8(a)(1) of the Act.
Even were I to find the mixed motive asserted by
Respondent, i.e., an honest effort by it to equalize non-
represented employees with represented employees, the
same result would necessarily obtain. Numerous Board
and court cases have held that discriminatory action
taken partially because of an employee's participation in
a campaign, and partially for a lawful motive is nonethe-
less violative.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations of
the Respondent described in section 1, 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 thereof.
VII. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I will recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
I have found that the Respondent has interfered with,
restrained, and coerced its employees in the exercise of
their rights guaranteed in Section 7 of the Act, by institut-
ing, maintaining, and continuing to maintain a Savings and
Investment Program which limits participation to "Eligi-
ble Employes," and defines Eligible Employes, inter alia,
as: "the term `eligible employes' shall not include em-
ployes in a collective bargaining unit represented by a
labor organization." Said definition of "Eligible Em-
ployes" further provides: "Eligible employes who are
transferred to or become included in a bargaining unit
represented by a labor organization will cease to be eligi-
ble when the change in status occurs." Section 23 entitled
"Amendment or Termination" provides, inter alia: "The
Company reserves the right to amend, modify, suspend,
or terminate the Program if and when this is advisable in
its judgment,-. Any modification or amendment of the
Program and Trust (or Trusts) may be made, retroactive-
ly if necessary or appropriate, to comply with Federal or
State securities laws,-or to obtain or retain rulings
satisfactory to the Company under any other applicable
laws or regulations." I will accordingly recommend that
Respondent be ordered to amend the Savings and Invest-
ment Program to eliminate those portions of the definition
of "Eligible Employes" which provide "the term `eligible
employes' shall not include employes in a collective bar-
gaining unit represented by a labor organization," and the
further provision, in said definition, providing "Eligible
employes who are transferred to or become included in a
bargaining unit represented by a labor organization will
cease to be eligible when the change in status occurs." I
will also recommend that Respondent be ordered to
amend its booklet "International Harvester Savings and
Investment Program for Eligible Salaried Employes," by
striking from the "definitions - applicable under the Pro-
gram," and more particularly the definition of "Eligible
Employes," on page 15, the following language, "the term
`eligible employes' shall not include employes in a collec-
tive bargaining unit represented by a labor organization.
Eligible employes who are transferred to or become in-
cluded in a bargaining unit represented by a labor or-
ganization will cease to be eligible when the change in
status occurs."
I will further recommend that Respondent cease and
desist from threatening employees with loss of participa-
tion in the Savings and Investment Program, or other
economic reprisals, for joining, assisting, or engaging in
activities on behalf of International Union, United Au-
tomobile, Aerospace and Agricultural Implement Wor-
kers of America (UAW), or any other labor organization;
or to influence their votes at a Board election.22
Respondent having excluded Fred R. Andrews, James
F. Bennett, Milton H. Bosse, Thomas B. Britt, Hazel M.
Cline, Julian R. Colberg, Jerome L. Fueslein, Lionel F.
Garson, James L. Locaso, Bruno C. Marchetti, Walter
Mayer, James L. Morrison, T. Henry Nelson, Ernest A.
Porter, Russell E. Rice, Juan T. San Agustin, William C.
Sexton, Arnold O. Snow, James I. Tanji, John H. Whitby,
and Paul H. Wilson, effective May 21, 1965, from further
participation in said Savings and Investment Program,
solely by reason of their inclusion in the certified unit, I
will recommend that Respondent cease and desist from
21 To avoid any contention that the foregoing is taken out of context,
Respondent's contention that SIP was an equivalent for benefits in the
main labor contract is clearly stated
22 Firestone Synthetic Fibers Company, supra
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excluding, or threatening or attempting to exclude, from
participation in the Savings and Investment Program any
employee or class of employees by reason of the fact that
such employees have designated a collective-bargaining
representative, in accordance with the provisions of the
Act. I will further recommend that Respondent make
each of the named discriminatees whole for any loss each
may have suffered, by reason of the removal of each from
the Savings and Investment Program, commencing May
21, 1965, and to restore the status quo ante, until such
date as the matter is resolved through normal collective
bargaining.23
In view of the nature of the unfair labor practices com-
mitted, the commission of similar and other unfair labor
practices reasonably may be anticipated. I will therefore
recommend that the Respondent be ordered to cease and
desist from in any manner infringing upon rights guaran-
teed to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record of the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer , within the meaning of
Section 2(2), engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union , United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), and American Federation of Technical
Engineers , AFL-CIO, are each a labor organization
within the meaning of Section 2(5) of the Act.
3. By promulgating , maintaining , and continuing to
maintain a Savings and Investment Program for its em-
ployees which requires as a condition precedent to par-
ticipation in the plan and its benefits that employees
forego representation by the Union, or any other labor or-
ganization , for the purpose of collective bargaining,
Respondent has interfered with , restrained , and coerced
its employees in the exercise of their rights guaranteed in
Section 7 of the Act, and said conduct is an unfair labor
practice within the meaning of Section 8(a)(1) of the Act.
4. By threatening its salaried employees at its
Stockton , California , plant , on or about May 4, 1965,
with the loss of eligibility for participation in said Savings
and Investment Program should they select a labor or-
ganization as their bargaining representative , to the ex-
tent herein above found, Respondent has interfered with,
restrained, and coerced its employees in the exercise of
their rights guaranteed in Section 7 of the Act, and said
conduct is an unfair labor practice within the meaning of
Section 8(a)(1) of the Act.
5. By discriminatorily removing the clerical and
technical employees , named supra , from participation in
the Savings and Investment Program , effective May 21,
1965 , because they had selected the UAW as their collec-
23 Tidewater Associated Oil Company, 85 NLRB 1096;Jacobs Manu-
facturing Co., 94 NLRB 1214, enfd. 196 F.2d 680 (C.A. 2); The Press
Company, Incorporated, 121 NLRB 976.
Respondent urges that no remedy can be granted beyond July 1, 1965,
the date of the Supplemental Agreement with UAW . Respondent's
premise is that in view of the broad "waiver clause" in the UAW mul-
tiplant agreement of October 7, 1964, it was under no duty to bargain with
the UAW relative to SIP , following the UAW's certification at Stockton.
Respondent relies on C & S Industries, Inc., 158 NLRB 454. 1 find this
case inapposite . It is undisputed that SIP was never mentioned during the
negotiations leading to the 1964 agreement . The Board has stated that an
tive-bargaining representative , in a Board-conducted
election , Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case,
I recommend that the Respondent, International Har-
vester Company, its officers, agents, successors, and as-
signs , shall:
1. Cease and desist from:
(a) Restricting participation in any Savings and Invest-
ment Program to employees who are not in a collective-
bargaining unit represented by a labor organization, or to
employees who are not transferred to or become included
in a bargaining unit represented by a labor organization,
as more fully set forth in The Remedy section herein.
(b) Threatening employees with loss of participation
in the Savings and Investment Program, or other
economic reprisals, for joining, assisting, or engaging in
activities on behalf of International Union, United Au-
tomobile, Aerospace and Agricultural Implement Wor-
kers of America (UAN), or any other labor organization;
or to influence their votes at a Board election.
(c) Making unilateral changes in wages, rates of pay,
or other terms and conditions of employment of its em-
ployees, in an appropriate unit, during the term of a col-
lective-bargaining agreement, without first reaching
agreement with the above-named Union, or other cer-
tified or recognized representative, concerning such
changes.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights to
self-organization, to form labor organizations, to join or
assist International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), or any other labor organization, to bar-
gain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities,
except, where not unlawful, to the extent such rights
might be affected by an agreement requiring membership
in a labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Amend the Savings and Investment Program in ac-
employer violates Section-8(a)(5) of the Act if, during the contract term he
refuses to bargain or takes unilateral action with respect to the particular
subject, unless it can be said from an evaluation of the prior negotiations
that the matter was "fully discussed" or "consciously explored" and the
union "consciously yielded" or clearly and unmistakably waived its in-
terest in the matter. The Press Company, Inc., supra at 978.
,We are not here concerned with a refusal to bargain, and the complaint
contains no such allegation. The mandate of the Board, upon a finding of
an unfair labor practice, provides for the issuance of an order including
"such affirmative action-as will effectuate the policies of this Act," Sec-
tion 10(c).
INTERNATIONAL HARVESTER COMPANY 797
cordance with the recommendations set forth in The
Remedy section herein.
(b) Amend its booklet "International Harvester
Savings and Investment Program for Eligible Salaried
Employes" in accordance with the recommendations set
forth in The Remedy section herein.
(c) Restore to and [sic] permit participation in its
Savings and Investment Program by those salaried em-
ployees who have been disqualified for participation in
the plan, named in The Remedy, because they have
become members of the collective-bargaining unit
represented by the Union, and make each of them whole
for any loss each may have suffered by reason of said
removal from said program, commencing May 21, 1965,
to restore the status quo ante, until such date as the
matter is resolved through normal collective bargaining.
(d) Post at all its plants, where the Savings and Invest-
ment Program has been placed in effect , copies of the at-
tached notice marked "Appendix."24 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 13, after being duly signed by the Respondent's
representative , shall be posted by the Respondent im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply with the foregoing
Recommended Order.
IT IS FURTHER RECOMMENDED that unless, within 20
days from the date of the receipt of this Trial Examiner's
Decision, the Respondent shall notify the said Regional
Director, in writing, that it will comply with the foregoing
Recommended Order'25 the National Labor Relations
Board issue an order requiring Respondent to take the
aforesaid action.
21 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
25 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT restrict participation in any Savings
and Investment Program to employees who are not
in a collective-bargaining unit represented by a labor
organization , or to employees who are not trans-
ferred to or become included in a bargaining unit
represented by a labor organization.
WE WILL NOT threaten employees with loss of par-
ticipation in the Savings and Investment Program, or
other economic reprisals , for joining , assisting, or en-
gaging in activities on behalf of International Union,
United Automobile, Aerospace and Agricultural Im-
plement Workers of America (UAW), or any other
labor organization ; or to influence their votes at a
Board election.
WE WILL NOT make unilateral changes in wages,
rates of pay, or other terms or conditions of employ-
ment of our employees , in an appropriate unit, during
the term of a collective -bargaining agreement,
without first reaching agreement with the above-
named Union , or other certified or recognized
representative , concerning such changes.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their rights of self-organization, to form labor or-
ganizations , to join or assist International Union,
United Automobile, Aerospace and Agricultural Im-
plement Workers of America (UAW), or any other
labor organization, to bargain collectively through
representatives of their own choosing , and to engage
in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except,
where not unlawful, to the extent such rights may be
affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL amend our Savings and Investment Pro-
gram for eligible salaried employes by the elimination
therefrom of the provision which excludes from par-
ticipation therein any salaried employes in a collec-
tive-bargaining unit represented by a labor organiza-
tion , or employees who are transferred to or become
included in a bargaining unit represented by a labor
organization, certified by the Board or recognized by
us.
WE WILL restore to and permit participation in our
Savings and Investment Program for eligible salaried
employees by all salaried employees who were or
have been disqualified from participation therein
because they have become members of a collective-
bargaining unit , certified by the Board , or have
chosen to be represented for collective bargaining in
an appropriate unit by International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), or any other labor or-
ganization.
WE WILL make whole Fred R. Andrews, James F.
Bennett, Milton H . Bosse , Thomas B. Britt, Hazel
M. Cline, Julian R. Colbert, Jerome L. Fueslein,
Lionel F. Garson , James L. Locaso, Bruno C.
Marchetti, Walter Mayer, James L. Morrison, T.
Henry Nelson, Ernest A. Porter, Russell E. Rice,
Juan T. San Agustin, William C. Sexton, Arnold O.
Snow, James I. Tanji, John H. Whitby, and Paul H.
Wilson, for any loss each may have suffered by
reason of our removal of each from the Savings and
Investment Program, commencing May 21, 1965, to
and including such date as the matter of their par-
ticipation is resolved through normal collective bar-
gaining.
All of our employees are free to become or remain, or
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to refrain from becoming or remaining , members of a This notice must remain posted for 60 consecutive
labor organization of their own choosing . days from the date of posting and must not be altered,
defaced, or covered by any other material.
INTERNATIONAL If employees have any question concerning this notice
HARVESTER COMPANY or compliance with its provisions, they may communicate
(Employer) directly with the Board 's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South
Dated By Dearborn Street, Chicago, Illinois 60604, Telephone
(Representative) (Title) 828-7570.