T.T.P. Corp.

National Labor Relations Board - Board Decisions

May 3, 1971

190 N.L.R.B. 240 (N.L.R.B. 1971)

240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
T.T.P. Corporation , Jam Handy Productions Division,
A Wholly-Owned Subsidiary of Tele -Tape Produc-
tions, Inc. and Local 737, Laboratory Technicians,
International Alliance of Theatrical Stage Em-
ployees and Moving Picture Machine Operators of
the United States and Canada, AFL-CIO. Case 7-
CA-8066
May 3, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On December 15, 1970, Trial Examiner Anne F.
Schlezinger issued her Decision in this proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and
a supporting brief.
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 proceeding to a three-member
panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejuci-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, the brief, and the
entire record in this proceeding, and hereby adopts the
findings, conclusions, and recommendations' of the
Trial Examiner.'
' The Respondent filed with the Board an affidavit and other documents
in support of its motion to dismiss the complaint and its contention that it
has already complied with the Trial Examiner's recommended Order that
the Respondent reinstate the Retirement Income Plan. As these documents
are not relevant to the Trial Examiner's conclusion, with which we agree,
that the Respondent violated Section 8(a)(5) and (1) of the Act as alleged
in the complaint, the motion to dismiss the complaint is denied. In the
absence of agreement by the other parties to the facts offered in these
documents, and as such facts even if true do not cover the entire scope of
the Trial Examiner's recommended Order, we shall leave to compliance any
determination of the effect of the Respondent's purported reinstatement of
the Plan.
' Westinghouse Electric Corporation, 188 NLRB No. 126, cited and
relied on by our dissenting colleague, is clearly distinguishable in that there
the reservation clause was contained in a document executed by both the
employer and the union. We would also see no material distinction if the
instant case contained equally clear evidence of a conscious and unequivocal
waiver by the Union.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, T.T.P. Corporation, Jam Handy Production
Division, a Wholly-Owned Subsidiary of Tele-Tape
Productions, Inc., Detroit, Michigan, its officers,
agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's recommended Order.
CHAIRMAN MILLER, dissenting:
I cannot agree with my colleagues that the Respond-
ent's unilateral termination of the Retirement Income
Plan violated Section 8(a)(5) and (1) of the Act.
The Union has represented the employees here in-
volved since 1941. When, in 1965, the Respondent's
precedessor unilaterally instituted this Retirement In-
come Plan, it gave all employees a booklet explaining
the Plan. Not only did this booklet describe in layman's
language how the Plan would operate, but it also set
forth verbatim all the provisions of the Plan itself. Arti-
cle IX of the Plan, entitled "Amendment-Termination
-Limitation" specifically provides in Section 9.1 that:
The Company hopes and expects to continue the
Plan indefinitely but necessarily reserves the right
to amend the Plan at any time or from time to time
for any reason or to terminate the Plan in its en-
tirety. The Company does not undertake to main-
tain the Plan or the Trust in effect or existence for
any fixed or minimum period.
All employees, and the Union, were therefore clearly
informed that one of the provisions of the Plan was a
specific and unequivocal reservation to the Employer of
the right to amend or terminate the Plan. Merle Rose,
the Union's business representative at the time the Plan
was instituted, admitted that he was aware of the fact
that the Plan contained a provision that the Employer
could terminate it at any time. Between the time the
Plan was instituted and the time the Respondent ter-
minated it, the Union negotiated three collective-bar-
gaining agreements with the Respondent's predecessor
and the Respondent and failed to mention the Plan or
any of its provisions during any of those negotiations.
In fact, at no time has the Union ever voiced any objec-
tion to the article IX termination clause or any other
provision.
Right-to-terminate clauses similar to the one in this
Plan are commonly found in pension plans and, indeed,
are standard in virtually all nonnegotiated plans. When
such plans become the subject of collective bargaining,
the resultant agreement, therefore, customarily con-
tains a provision clarifying the status of such a clause.
The 1970-1973 General Motors Corporation-United
Aubomobile Workers agreement is a reasonably typical
190 NLRB No. 48
T.T.P. CORP 241
example of the effect of negotiations on such a clause.
The General Motors Hourly-Rate Employees Pension
Plan, attached to the basic collective-bargaining agree-
ment, provides in article IX, section 1, thereof:
The Corporation reserves the right to amend,
modify, suspend or terminate the Plan by action of
its Board of Directors, provided, however, that no
such action shall alter the Plan or its operation
... in respect of employes who are represented un-
der a collective bargaining agreement in contraven-
tion of the provisions of any such agreement per-
taining to pension benefits and supplemental
allowances as long as any such agreement is in
effect.' [Emphasis supplied.]
A similar typical negotiated restriction on the custom-
ary right-to-terminate provision is found in the most
recent contract between The Boeing Company and In-
ternational Association of Machinists,' and another
wording may be found in the 1965-1967 Goodyear Tire
& Rubber Company-United Rubber Workers con-
tract.5
These are examples of what must be obvious-that
unions are well aware that such unilateral amendment
and termination provisions can and must be amended
through negotiations if there is to be an effective guar-
antee of the continuance of the continuance of the
plans. In view of this common practice among parties
addressing themselves to this matter to bargain about
such termination clauses, it seems fair to construe the
Union's failure here to negotiate or even seriously to
propose a clarification of the termination provision of
the Plan as tacit acquiescence in Respondent's clearly
defined right unilaterally to terminate or modify the
Plan.
The Trial Examiner correctly found that the Retire-
ment Income Plan was not physically part of the collec-
tive-bargaining agreement now in force between the
parties. The Trial Examiner further stated that, "The
Plan had been in existence for years and had become
an integral part of the existing conditions of employ-
ment on which the employees had a right to rely." The
Respondent convincingly argues, however, that it is
impossible legally to justify the Trial Examiner's rea-
soning that, on one hand, the clauses in the Plan pro-
viding benefits for the employees are a vested and ex-
pected right governed by those provisions of the Plan,
while on the other hand disavowing the "troublesome"
termination clause found in article IX which is as much
a part of the Plan as are any of the benefit clauses. It
may be, as the Trial Examiner states, and as some cases
have held, that "Silence as to retirement and pension in
Bureau of National Affairs, Inc., Collective Bargaining-Negotiations
and Contracts, 21 97
Id. at 20.19.
Id at 21.937
the collective bargaining contracts did not constitute
relinquishment of the Union's statutory right to bar-
gain about retirement and pensions." However, the
Trial Examiner here has gone further than merely say-
ing that "Silence is not a waiver" and has ruled that
silence had the effect of amending the Retirement In-
come Plan by eliminating section 9.1 of article IX. As
the Respondent argues, if the plan is to be given effect,
it must be given effect in toto.I
I would therefore find that, since the Union never
questioned any part of the Retirement Income Plan, it
was bound by all sections of it including article IX.
Since the Respondent had the right unilaterally to ter-
minate the Plan, its termination did not violate Section
8(a)(5) and (1) of the Act.
6 Compare, e g , section 4, article 1 of the pension and insurance agree-
ment in Westinghouse Electric Corp., 188 NLRB No 126, relied on by the
majority in that case to justify the employer's unilateral action I see no
material distinction between the "reservation" clause in Westinghouse and
the similarly worded clause in the present case
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Trial Examiner: Upon a charge
filed on July 8, 1970, by Local 737, Laboratory Technicians,
International Alliance of Theatrical State Employees and
Moving Picture Machine Operators of the United States and
Canada, AFL-CIO,' herein called the Charging Party or
Union, the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 7 (Detroit, Mich-
igan), issued a complaint on August 14, 1970. The complaint
alleges in substance that T. T. P. Corporation, Jam Handy
Productions Division, a Wholly-Owned Subsidiary of Tele-
Tape Productions, Inc., herein called the Respondent, unilat-
erally terminated the contributions it had been making to a
pension plan covering its employees in an appropriate unit
represented by the Union, and thereby interfered with, re-
strained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, and refused to
bargain with the Union, in violation of Section 8(a)(1) and (5)
of the National Labor Relations Act, as amended. In its
answer, duly filed, the Respondent admits some of the factual
allegations of the complaint but denies the commission of any
unfair labor practice and raises certain affirmative defenses.
Pursuant to notice, a hearing was held before me at De-
troit, Michigan, on October 28, 1970. All the parties appeared
at the hearing and were afforded full opportunity to be heard,
to present evidence, and to examine and cross-examine wit-
nesses. Subsequent to the hearing, the General Counsel and
the Respondent filed briefs which have been fully considered.
Upon the entire record in this case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
On May 1 , 1968, The Jam Handy Organization , Inc., a
Delaware corporation engaged in the production of motion
pictures and related products for industrial and commercial
uses at 2821 East Grand Boulevard , Detroit , Michigan, sold
certain of its production facilities to T. T . P. Corporation, a
Wholly -Owned Subsidiary of Tele -Tape Productions, Inc.,
'The name of the Charging Party appears as amended at the hearing
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and became an operating division of T. T. P. Corporation.
Tele-Tape Productions, Inc., a Delaware corporation which
maintains its principal office and place of business at Chicago,
Illinois, has been at all times material herein engaged in pro-
ducing commercial films and providing technical services and
facilities for the production of national television shows and
related services at its place of business at 2821 East Grand
Boulevard, Detroit, Michigan, the only facility of the Re-
spondent involved in this proceeding.
During the 12-month period ending July 31, 1970, which
period is representative of its operations at all times material
herein, the Respondent, in the course and conduct of its
business operations, received gross revenue for its services in
excess of $6,000,000, of which more than $50,000 was re-
ceived respectively from General Motors Corporation, en-
gaged in interstate commerce under the Act by reason of
annually shipping products valued at more than $50,000 out
of its Michigan plants directly to points outside the State of
Michigan, and from Westinghouse Broadcasting Co., Inc.,
and engaged in interstate commerce under the Act by reason
of annual revenues from radio and television station opera-
tions in excess of $100,000. The Respondent at the hearing
admitted, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent at the hearing admitted, and I find, that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The only issues in this proceeding are whether the Re-
spondent, by unilaterally terminating its contributions to a
pension plan covering its employees in a unit represented by
the Union, interfered with, restrained, and coerced its em-
ployees, and refused to bargain with the Union, in violation
of Section 8(a)(1) and (5) of the Act.
A. Bargaining Relations
The facts, based on agreements of the parties or undisputed
testimony, show that the Union has been for many years and
at all times material herein the representative of the em-
ployees in the following unit, which the parties agree is appro-
priate:
All employees at the Respondent's 2821 East Grand
Boulevard, Detroit, Michigan, place of business, en-
gaged in the production and processing of motion pic-
tures and television pictures, including employees en-
gaged in laboratory, chemical mixing, film inspection,
slidefilm laboratory operation, library, maintenance,
film editing and slidefilm darkroom employees, but ex-
cluding all other employees, office clerical employees,
and guards and supervisors as defined by the Act.
The three most recent collective-bargaining contracts relating
to this unit were placed in evidence by the General Counsel.
The first of the three covered the period September 1, 1965,
through August 31, 1967, and was executed on June 6, 1966,
by the Union with The Jam Handy Organization, Inc. The
Jam Handy Organization, Inc., on May 1, 1968, sold its assets
and transferred its employees to the Respondent, which con-
tinued to recognize and bargain with the Union as the repre-
sentative of its employees in the appropriate unit. A contract
covering the period September 1, 1967, through August 31,
1969, was executed on September 4, 1968, by the Union with
the Respondent. The latest contract between these parties
covers the period September 1, 1969, through August 31,
1972, and was executed on February 20, 1970.
B. Establishment of Retirement Income Plan
Jamison Handy, who was then president of The Jam
Handy Organization, Inc., sent the employees a letter dated
June 15, 1965, which stated as follows:
Dear Fellow Member:
After some years of study, our Financial Department
has developed a new Retirement Income Plan specifi-
cally for all Members of The Jam Handy Organization.
Without contribution from the Member, the Plan is
retroactive in that it covers the individual's qualified past
service, completely paid for by the Organization.
The Plan, described in the attached booklet, will
become effective on July 1 of this year. In essence, the
Plan allows for regular contributions by each Member,
with the Organization contributing approximately twice
each individual's investment-all funds under National
Bank of Detroit trustee supervision and security.
Every eligible member wishing to join should apply by
June 25, 1965. To make your application, please fill out
the card enclosed with this letter, carefully and com-
pletely, and send it to Mr. Fred England by June 25.
In order to receive credit for service rendered prior to
July 1, 1965, those who are eligible to join the Plan now
must do so before the Effective Date (July 1, 1965).
You will need to read the booklet carefully. If you
wish help in reaching your understanding of any part of
the Plan, please contact the Financial Department.
The booklet referred to in this letter contained an explanation
of the plan, and set forth the terms of the plan, including the
following provision in article IX, section 9.1, thereof:
The Company hopes and expects to continue the Plan
indefinitely but necessarily reserves the right to amend
the Plan at any time or from time to time for any reason
or to terminate the Plan in its entirety. The Company
does not undertake to maintain the Plan or the Trust in
effect or existence for any fixed or minimum period.
The parties stipulated at the hearing that the retirement
income plan was unilaterally instituted by The Jam Handy
Organization, Inc., effective July 1, 1965; that it was not the
subject or result of negotiations with the Union; and that
there were no negotiations about the plan from July 1, 1965,
through June 25, 1970, and no request for such negotiations
by The Jam Handy Organization, Inc., the Respondent, or
the Union.
The only witness at the hearing, called by the General
Counsel, was Merle Rose, who has been employed by The
Jam Handy Organization, Inc., and by the Respondent, and
for about 20 years has been the business representative who
participated in negotiating the collective-bargaining contracts
on behalf of the Union. He testified credibly and without
dispute that the Union, in negotiating the 1965-67 contract,
accepted "less of a monetary settlement" than it would have
otherwise because it took into consideration the money being
paid by the employer into the pension plan, but that the
Union did not thereafter consider the plan in making its
contract demands on the Respondent. Rose also testified, on
cross-examination by the Respondent, that he was aware,
when he first received the plan, of the provision that the
employer could terminate it at any time; that "we were not
concerned that they were going to drop it at the time not
when they had just instituted it," and not "After waiting
many years to get a pension plan into effect ... "; that he was
happy with the Plan as he received it; that he did not protest
to the employer regarding its failure to negotiate about the
plan nor request such negotiations; and that he felt the plan
was a benefit to which the unit employees were entitled.
T.T.P. CORP. 243
Each of the three contracts in evidence has a section enti-
tled "G. SEVERANCE" which provides for lump sum pay-
ments upon severance in amounts based on length of service,
the provision for 25 or more years being "6 months, or Com-
pany policy." Rose testified that this provision was discussed
during contract negotiations, that "Company policy" was
"understood to mean pension plan," and accordingly that an
employee severed after 25 years' service could choose 6
months' severance pay or the plan benefits. As he also tes-
tified, this was the only discussion during contract negotia-
tions of any matter pertaining to the plan, and the only refer-
ence pertaining to the Plan in the contracts.
The plan continued in effect after the sale and transfer to
the Respondent on May 1, 1968. The Respondent made the
employer contributions, participating employees made their
contributions,' and employees who retired received the
benefits provided by the plan.' This continued until June 25,
1970.
C. Termination of the Plan
Herbert Hall, who was stipulated at the hearing to be
"president of the Jam Handy Producitons, Inc. throughout
the month of June 1970," sent a memorandum dated June 25,
1970, to "All JHPeople" which stated:
Effective June 23, 1970, the Board of Directors of T. T.
P. Corporation has found it necessary to terminate par-
ticipation in The Jam Handy Organization Retirement
Pension Fund which has included many JHP employees
as members.
This action was required because of current economic
conditions. The contribution of JHP paid not only for
benefits for current employee service, but also required
contributions for many years of past service. As a result,
the cost was considerable, and not realistic under present
conditions.
Negotiations are already underway with the trustee of
the Fund (National Bank of Detroit), to attempt to as-
sure continued benefits to JHP employees who have
retired. If sufficient money is in the fund, allocations will
be made toward potential rights of non-retired em-
ployees. All present JHP employees who have been con-
tributing will receive all of their contribution bach with
3% interest. No money from the Fund will be returned
to JHP, TTP or JHO.
Looking toward the return of normal business condi-
tions in the future, T. T. P. is studying the adoption of
a retirement fund tied to corporate profits. As soon as
the company is operating profitably, it is the hope of
management that a new plan will be made available.
The Respondent in its answer admits the allegation of the
complaint that "At its meeting of June 23, 1970 the Board of
Directors of T. T. P. Corporation reached the unalterable
decision to terminate the continuing participation under said
pension plan ...."The Respondent also stipulated at the
hearing that this decision was unilateral, and asserted that
"We contend of course it was not a subject of negotiations
and we did not negotiate about it." As of June 23, the Re-
spondent and the employees discontinued making payments
into the plan. No notice had been given to the Union that
termination of the plan was being contemplated. Rose tes-
tified that he received a copy of the Hall memorandum on
' Rose testified that the employees contributed 2-1/2 percent of their
weekly wages, and that he thought the employer contributions were 5 per-
cent.
' Rose testified that there were about 28 employees in the unit at the time
the 1967-69 contract was negotiated with the Respondent, and about 14 at
the time of the hearing.
July 7, and that he filed the charge giving rise to the instant
proceeding on the following day, July 8.
Shortly after Rose filed the charge, he and Shop Steward
Schroff met with England, who the parties agreed at the
hearing was "vice president of finance, Jam Handy Produc-
tions" throughout the year 1970, regarding Union matters
unrelated to the plan. Rose told England at this time that he
had filed a charge, to which England replied only "that it was
information." At a similar meeting in August at wgich the
same individuals were present, England asked if Rose would
withdraw the charge as the Respondent was not financially
able to carry out the terms of the plan. When Rose refused
to withdraw the charge, England indicated that the bank
holding the plan funds was being prevented from carrying out
the program of paying off the employees' contributions plus
3 percent. At another such meeting with the same partici-
pants in late August or early September, England again re-
quested that the charge be withdrawn, and indicated that the
Respondent was investigating another possible pension plan.
Rose asked that the original plan be restored but England
replied that the Respondent was financially unable to do so.
On or about September 18, Rose and Schroff had a meeting
with England and Mulvahill, described by Rose as the "new
chairman of the board of the Tele-Tape Productions and T.
T. P." Mulvahill asked the Union representatives to with-
draw the charge, and, as Rose testified: "indicated at that
time that he would put in writing that he would institute new
pension plan by January 1, 1971 if it was economically feasi-
ble. This pension plan would be retroactive to June 23." As
Rose further testified, Mulvahill gave no description of the
new plan as "he didn't know exactly what it would be, just
that he would come up with a pension plan by January 1st,
1971," and Mulvahill at no time explained what he meant by
"economically feasible" nor who would decide whether any
proposed plan met this criterion. There was some discussion
at this meeting about the method of distributing the money
employees had invested in the plan.
Rose testified, on cross-examination by the Respondent,
that he never sought to bargain about the plan during the
negotiation of the later contracts as the matter never had been
negotiated and was a benefit the employees already had; that
he did not discuss the termination of the plan with the Re-
spondent before filing the charge; that he did not at any time
thereafter demand that the Respondent bargain about the
plan; and that the only references by the Respondent to the
termination of the plan were those made by England and
Mulvahill in the course of the discussions described above.
D. The Respondent's Motions
At the opening of the hearing in this proceeding, the Re-
spondent moved for an adjournment of 30 days in order,
among other grounds, that the parties might continue discus-
sions already instituted regarding possible settlement of the
issues involved. The General Counsel objected vigorously to
any delay on the ground, inter alia, that the hearing had
previously been postponed to permit settlement discussion.
The motion to adjourn was denied. Subsequent to the hear-
ing, the Respondent requested in writing that the Chief Trial
Examiner grant an extension of 2 weeks in the time set for the
filing of briefs as the parties were negotiating a settlement and
"We are confident that all remaining questions will be com-
pletely resolved by that time." The requested extension to
which there was no objection was granted. Briefs were never-
theless thereafter filed, by the Respondent on November 27
and by the General Counsel on November 30, 1970. The
Respondent states in its brief: "Although it may be self-
serving, the Employer urges that the Board take notice of the
representations contained in the Employer's letter to the
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chief Trial Examiner dated November 18, 1970, whereby the
Employer requested an extension of time for the filing of
briefs and indicated that the Employer had offered to rein-
state the Pension Plan in its entirety," and, accordingly, "the
Employer urges that the Board should ... grant the ' Em-
ployer's motion to dismiss to permit the parties to resolve this
dispute between themselves."
The General Counsel contends that the Respondent, by
unilaterally terminating the plan, interfered with its em-
ployees' Section 7 rights and refused to bargain with the
Union about a matter that was a mandatory subject of bar-
gaining, in violation of Section 8(a)(1) and (5) of the Act.
The Respondent maintains that it had no obligation to
negotiate with the Union regarding its discontinuance of the
plan as the plan had originally been established unilaterally;
the plan from its inception included a provision that the
Respondent "reserves the right to ... terminate the Plan in
its entirety"; the Union has waived its right to bargain about
this matter; the Union failed to proceed in accordance with
the contractual grievance and arbitration provisions; and the
parties should be permitted to settle these issues between
themselves. The Respondent's motion to dismiss on the
ground that the parties should be given further opportunity
to reach a settlement is hereby denied in view of the postpone-
ments already granted for this purpose. The Respondent's
motions to dismiss on other grounds, made at the hearing and
in its brief, are denied for the reasons set forth below.
Concluding Findings
It is established, by agreements of the parties and the entire
record, that the Union was at all relevant times the collective-
bargaining representative of the Respondent's employees in
an appropriate unit. Section 8(a)(5) of the Act imposes upon
an employer the obligation to bargain collectively with the
representative of its employees, and Section 8(d) defines the
term "bargain collectively" as requiring an employer:
to meet at reasonable times and confer in good faith
with respect to wages, hours, and other terms and condi-
tions of employment ....
It is clear that a retirement or pension plan is a matter
relating to wages, hours, and other terms and conditions of
employment which the Board and the courts hold to be a
mandatory subject of bargaining.' The duty to bargain about
such a matter is a continuing one,' and an asserted relinquish-
ment by a union of its right to bargain about such a matter
must be in "clear and unmistakable" language.' Silence as to
retirement and pensions in the collective-bargaining con-
tracts did not constitute relinquishment of the Union's statu-
tory right to bargain about retirement and pensions,' nor did
the fact that the Respondent established the retirement in-
come plan unilaterally.' The unilaterally-adopted article IX,
section 9.1 of the plan, providing that the employer could
amend or terminate the plan, likewise did not indicate that
the Union had agreed that it was foreclosed from bargaining
° Inland Steel Co. v. N.L.R.B., 170 F.2d 247 (C.A. 7), cert. denied 336
U.S. 960, enfg . 77 NLRB 1.
Long Lake Lumber Company, 160 NLRB 1475, 1479.
The Timken Roller Bearing Company v. N.L.R.B., 325 F.2d 746, 751
(C.A. 6), cert. denied 376 U.S. 971; N.L.R.B. v . Perkins Machine Company,
326 F. 2d 488 (C.A. 1); Long Lake Lumber Company, supra; New York
Mirror, 151 NLRB 834, 839; Intracoastal Terminal, Inc., 125 NLRB 359.
' The Timken Roller Bearing Company v . N.L.R.B., supra; N. L.R.B. v.
Jacobs Manufacturing Co., 196 F. 2d 680 (C.A. 2); Century Electric Motor
Company, 180 NLRB No. 174; Smith Cabinet Manufacturing Company,
Inc., 147 NLRB 1506.
' Gravenslund Operating Co., 168 NLRB 513.
about a matter which was not covered in the collective-bar-
gaining contracts.'
Even were this language, which the Respondent argues
constitutes a waiver, expressed in the contract, it must also
appear "from an evaluation of the ... negotiations that the
[particular] matter was `fully discussed' or `consciously ex-
plored' and the union `consciously yielded' or clearly and
unmistakably waived its interest in the matter."10 There was
in the present case no discussion of the plan in the contracts
or in the contract negotiations.
Further, it is clear that the Union's conduct in this case did
not constitute a waiver of its right to bargain on this matter.
The Union accepted the Respondent's unilateral adoption of
the plan without objection because it was satisfied with its
terms." The plan had been in existence for years and had
become an integral part of the existing conditions of employ-
ment on which the employees had a right to rely. As the
Board and the courts have held, "Good faith compliance with
Sections 8(a)(5) and (1) of the Act presupposes that an em-
ployer will not alter existing `conditions of employment'
without first consulting the exclusive bargaining representa-
tive selected by his employees, and granting it an opportunity
to negotiate on any proposed changes."1z When the Respond-
ent unilaterally announced to the employees its decision to
terminate its contributions to the plan, the Union promptly
filed a charge with the Board, and refused thereafter to with-
draw the charge when repeatedly requested by the Respond-
ent to do so. It is apparent, in all the circumstances of this
case, that it cannot be said that the Union "consciously
yielded or clearly and unmistakably waived its interest in the
matter,"" or its statutory right to insist upon bargaining with
respect to this issue." I find no merit, therefore, in the Re-
spondent's defense that the Union, as a result of article IX,
section 9.1, or by its conduct, waived its right to bargain
about the plan. I likewise find no merit in its defense that the
Union was foreclosed from filing the charge herein because
it failed to utilize the contractual grievance and arbitration
provisions as to a matter never covered in the contracts."
Accordingly, I find that as the subject of the retirement
income plan, which had been in effect for 5 years, was not
discussed during contract negotiations, and as the contracts
contained no express provision granting the Respondent the
right to take unilateral action with regard thereto, the Re-
spondent was under a statutory duty to bargain about its
decision to discontinue making contributions to the plan.16 It
has been long established that unilateral actions which result
in changes in the terms and conditions of employment of
employees are violations of an employer's statutory bargain-
' See Hooker Chemical Corporation, 186 NLRB No. 49; Rockwell-Stand-
ard Corp., 166 NLRB 124; The Beacon Journal Publishing Company, 164
NLRB 734; New York Mirror, 151 NLRB 834, 840.
11 The Timken Roller Bearing Company v. N..L.R.B., supra; N.L.R.B. v.
Perkins Machine Company, supra,'N.L.R.B. v. The Item Company, 220 F.2d
956 (C.A. 5), cert. denied 350 U.S. 836; Rockwell-Standard Corp., supra.
11 As the Board stated in Inland Steel Company (see n . 4, above), 77
NLRB 1, 14: "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 negotiation of the retirement program, is that the Union
acquiesced in the program as it existed ...."
1' N.L.R.B. v. Dothan Eagle, Inc., 434 F.2d 93 (C.A. 5), quoting from the
Court's decision in Armstrong Cork Co. v. N.L.R.B., 211 F.2d 843.
" Hooker Chemical Corporation, supra; New York Mirror, supra; Smith
Cabinet Manufacturing Company, Inc., supra; Proctor Manufacturing Cor-
poration, 131 NLRB 1166, 1169.
" LeRoy Machine Co., Inc., 147 NLRB 1431, 1439.
" The Timken Roller Bearing Company v. N.L.R.B., supra, 751; Graven-
slund Operating Co., 168 NLRB No. 72.
16 New Orleans Board of Trade, Ltd., 152 NLRB 1258; LeRoy Machine
Co., Inc., supra; N.L.R.B. v. Jacobs Manufacturing Co., supra.
T.T.P. CORP.
Ing obligation even where motivated solely by economic con-
ditions." Accordingly, I find that the Respondent, by unilat-
erally terminating its contributions to the retirement income
plan on behalf of its employees in the appropriate unit on and
after June 23, 1970, interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, and refused to bargain with the Union, in
violation of Section 8(a)(1) and (5) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in Section III
above, occurring in connection with its operations 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
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of the
Act, I shall recommend that the Respondent cease and desist
therefrom and from any like or related interference with the
rights of its employees guaranteed in Section 7 of the Act, and
that it take certain affirmative action designed to effectuate
the policies of the Act.
I have found that the Respondent violated Section 8(a)(1)
and (5) of the Act by unilaterally terminating its contribu-
tions to the retirement income plan on and after June 23,
1970, with respect to the employees in the appropriate unit
represented by the Union. A make-whole order is appropriate
to remedy such a unilateral discontinuance of an existing
condition of employment." I shall therefore recommend that
the Respondent revoke this unilateral action, make the con-
tributions which would have been made but for its unilateral
termination ," and bargain collectively with the Union before
making changes in the retirement income plan or in any other
term or condition of employment.
Upon the basis of the foregoing findings of the fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. T. T. P. Corporation, Jam Handy Productions Division,
a Wholly-Owned Subsidiary of Tele-Tape Productions, Inc.,
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 737, Laboratory Technicians, International Al-
liance of Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and Canada, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. All employees of the Respondent at its 2821 East Grand
Boulevard, Detroit, Michigan, place of business, engaged in
the production and processing of motion pictures and televi-
sion pictures, including employees engaged in laboratory,
chemical mixing, film inspection, slidefilm laboratory opera-
tion, library, maintenance, film editing and slidefilm dark-
" NL.R.B v Katz, 369 U S 736, Kroger Company v NL R B, 401
F 2d 682 (C.A 6, 1968), Gravenslund Operating Co, supra; Dixie Ohio
Express Co., 167 NLRB 573
" N.L.R.B v. United Nuclear Corporation, 381 F 2d 972 (C A 10,
1967), NLR.B v Dothan Eagle, inc., supra, Gravenslund Operating Co,
supra; Dixie Ohio Express Co., supra.
" The amounts to be contributed by the Respondent and by the em-
ployees participating in the plan can be determined by agreement of the
parties or, if necessary, in a backpay proceeding See Gravenslund Operating
Co., supra
245
room employees, but excluding all other employees, office
clerical employees, and guards and supervisors as defined by
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. The Union is the exclusive representative of all em-
ployees in the aforesaid unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of work,
and other terms and conditions of employment.
5. By unilaterally terminating its contributions to the
retirement income plan on and after June 23, 1970, with
respect to the employees in the appropriate unit, the Re-
spondent interfered with, restrained and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, and refused to bargain with the Union, and has
thereby engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (5) 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.
Upon the foregoing findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:20
ORDER
The Respondent, T. T. P. Corporation, Jam Handy Pro-
ductions Division, a Wholly-Owned Subsidiary of Tele-Tape
Productions, Inc., Detroit, Michigan, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from;
(a) Interfering with, restraining, or coercing its employees,
or refusing to bargain collectively with the Union, by unilat-
erally terminating its contributions to the retirement income
plan covering its employees in the appropriate bargaining
unit represented by the Union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act:
(a) Revoke its unilateral termination of its contributions to
the retirement income plan with respect to its employees in
the appropriate unit represented by the Union, make the
contributions which would have been made but for its unilat-
eral termination, and bargain collectively with the Union
before making changes in the retirement income plan or in
any other term or condition of employment. The appropriate
unit is:
All employees at the Respondent's 2821 East Grand
Boulevard, Detroit, Michigan, place of business, en-
gaged in the production and processing of motion pic-
tures and television pictures, including employees en-
gaged in laboratory, chemical mixing, film inspection,
slidefilm laboratory operation, library, maintenance,
film editing and slidefilm darkroom employees, but ex-
cluding all other employees, office clerical employees,
and guards and supervisors as defined by the Act.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
10 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations, and recommended Order herein shall, as
provided in Sec 102 48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and Order, and all objections
thereto shall be deemed waived for all purposes
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nel records and reports, and all other records necessary to
analyze the amount of the contributions due.
(c) Post at its place of business in Detroit , Michigan , copies
of the attached notice marked "Appendix."" Copies of said
notice, to be furnished by the Regional Director for Region
7, shall, after being duly signed by the Respondent's repre-
sentative, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasona-
ble steps shall be taken by the Respondent to insure that said
notices are 3t altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.22
" In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a judgment of the Una: : States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
" In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 7, in writing , within 20 days from
the date of this Order , what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with , restrain, or coerce our em-
ployees, or refuse to bargain collectively with Local 737,
Laboratory Technicians, International Alliance of Theatrical
Stage Employees and Moving Picture Machine Operators of
the United States and Canada, AFL-CIO, by unilaterally
terminating our contributions to the retirement income plan
covering our employees in the appropriate bargaining unit
represented by the Union.
WE WILL NOT in any like or related manner interfere with,
restrain , or coerce our employees in the exercise of the rights
guaranteed in Section 7 of the Act.
WE WILL revoke our unilateral termination of our contri-
butions to the retirement income plan with respect to our
employees in the appropriate unit represented by the Union,
make the contributions which would have been made but for
our unilateral termination , and bargain collectively with the
Union before making changes in the retirement income plan
or in any other term or condition of employment . The appro-
priate unit is:
All our employees at our 2821 East Grand Boule-
vard, Detroit , Michigan , place of business, engaged
in the production and processing of motion pictures
and television pictures , including employees en-
gaged in laboratory , chemical mixing , film inspec-
tion , slidefilm laboratory operation , library, mainte-
nance, film editing and slidefilm darkroom
employees , but excluding all other empoloyees,
office clerical employees , and guards and super-
visors as defined by the Act.
Dated By
T. T. P. CORPORATION,
JAM HANDY
PRODUCTIONS
DIVISION,
A WHOLLY-OWNED
SUBSIDIARY OF
TELE-TAPE PRODUCTIONS,
INC.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 500 Book
Building, 1249 Washington Boulevard , Detroit , Michigan
48226, Telephone 313-226-3200.