International Harvester Co.

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.