Planet Corp.

PLANET CORPORATION Planet Corporation and Shopmen's Local Union No. 802, International Association of Bridge , Structu- ral, and Ornamental Iron Workers , AFL-CIO. Case 7-CA-7010 August 27, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On December 10, 1969, Trial Examiner James V. Constantine issued his Decision in the above-entitled matter, 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, 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 National 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 here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent herewith. As more fully set forth in the Trial Examiner's Decision, the facts are as follows: Sometime prior to 1959, and long before the Union's advent, Respondent granted its employees certain insurance benefits under group insurance policies issued by Minnesota Mutual Insurance Company and Inter-Ocean Insurance Company. Beginning in 1959, Respondent decided to provide similar, although not identical, benefits to employees who retired from its service. The benefits were provided through amend- ment riders to the Minnesota Mutual and Inter-Ocean policies. The decision as to whether a retired employee would receive benefits was made on an individual basis at the time of his retirement by Respondent's president, Groenvald, after consultation with Person- nel Manager Haley. During the period 1959-68, such benefits were granted to six employees whose ages at time of retirement ranged from 64 to 69, and whose years of service with Respondent varied from 6 to 13 years. Of the six, two employees were engineers, and four were production and maintenance employees. 509 Of those four, only one retired after the Union became the recognized bargaining representative of employees in the production and maintenance unit. One employ- ee, of comparable age and length of service, was not granted these benefits ' In 1962, the Union was certified as the exclusive representative of Respondent's production and mainte- nance employees. Since that time, the parties have peacefully negotiated and signed four collective-bar- gaining agreements, the current one being effective from February 1968 through February 1971. During negotiations for each of the first three collec- tive-bargaining agreements, neither side mentioned or discussed the payment by Respondent of insurance benefits to retired employees, although Respondent in fact continued to provide such benefits until June 15, 1968. During the negotiations for the 1968 agree- ment, the Union proposed that the agreement contain language specifically continuing insurance benefits for the retired employees. This proposal was rejected by Haley, Respondent's chief negotiator on insurance benefits, with the statement that he would take care of them as in the past. During these negotiations, the Union successfully insisted that the medical-hospi- talization-surgical benefits be provided under a policy carried with Blue Cross and Blue Shield. It is undisput- ed that the changeover to Blue Cross-Blue Shield necessitated a cancellation of the existing group insur- ance policies, and that their cancellation for produc- tion and maintenance employees necessarily brought about the cancellation of the amendment riders under which the retired employees were covered. In accordance with the provisions of the 1968 agreement, Respondent purchased Blue Cross and Blue Shield coverage for its production and mainte- nance employees, and cancelled the Minnesota Mutual and Inter-Ocean policies on June 15. On July 10, 1968, Respondent wrote each of the six retired employees as follows: Planet Corporation has recently discontinued its group policy with Inter-Ocean Insurance Compa- ny and Minnesota Mutual Life Insurance Compa- ny. The purpose of this letter is to advise you that you have the right to contact the insurance com- pany prior to July 15, 1968 (next Monday) and convert the group policies previously carried by the company to individual policies on which you will pay the premiums direct to the insurance companies involved. The complaint alleges that, by writing the July 10 letter without notification to or discussion with ' The Trial Examiner incorrectly characterized 69 other employees as retirees 185 NLRB No. 37 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union, Respondent interfered with, restrained, and coerced employees in the exercise of Section 7 rights and refused to bargain collectively with the Union, thereby violating Section 8(a)(1) and (5) of the Act. The Trial Examiner concluded that Respondent unilaterally abolished or modified insurance benefits of retirees, and that such unilateral action violated Section 8(a)(5) and (1) of the Act.' In disagreement with the Trial Examiner, we find that the General Counsel has not established a viola- tion of the Act. The complaint, as noted above, is very narrowly drawn; it alleges that the sending of the July 10 letter without notice to the Union interfered with employees' exercise of Section 7 rights and constituted a refusal to bargain with the Union. However, that letter merely notified employees that group insurance policies providing their benefits had been cancelled and that they had the right to exercise the right of conversion to individual policies provided in the group policies. We perceive no interference with employee rights in such notice, nor do we see how its sending constituted an abolishment of the insurance program and, hence, constituted a refusal to bargain with the Union. The Trial Examiner rested his finding of a violation on the broader ground that the cancellation of the insurance benefits constituted the violation of 8(a)(5). However, it abundantly appears that the cancellation of the underlying insurance policies flowed from the Union's success in negotiating a fundamental change in the insurance benefits provided Respondent's employees when it persuaded the employer to agree to its demand that the insurance program be changed over to Blue Cross-Blue Shield. Blue Shield. Such action clearly necessitated the cancellation of the Min- nesota Mutual and Inter-Ocean policies. Their cancel- lation inevitably resulted in the concellation of amendment riders thereto which provided the ' The Trial Examiner made certain subsidiary findings necessary to his finding of a violation of the Act Thus, he found that the retirees involved herein are employees within the meaning of the Act, that Respondent had adopted a plan, practice, or policy of providing certain insurance benefits to retirees ; that the insurance benefits so provided were a condition of employment embraced within the category of mandato- ry subjects of bargaining and consequently could not be unilaterally modified without bargaining with the Union Cf Pittsburgh Plate Glass Company, 177 NLRB No 114, enforcement denied 427 F 2d 936 (C A 6) In view of our disposition of the issues herein, we deem it unnecessary to pass upon these subsidiary findings We do reject the Trial Examiner's finding that Haley's comment that he would take care of retirees as in the past amounted to an oral contract to continue the past benefits The statement is too ambiguous to permit such a finding , it could mean only that the Company would continue to make its own determination as to such benefits Moreover, the Trial Examiner failed to take into account the testimony of Union negotiators that they were aware that Haley took matters back to Groenvald for approval, and the fact that, though Haley appeared to be the chief negotiator on insurance matters, he was not the only negotiator , nor did he execute the contract insurance benefits for the retirees. We conclude, therefore, that the concellation of the retirees' insurance benefits was not in a realistic sense unilateral action by Respondent Accordingly, we do not adopt the Trial Examiner's conclusion that it was a violation of Section 8(a)(5) and (I) of the Act, and we shall dismiss the complaint ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES V CONSTANTINE, Trial Examiner This is an unfair labor practice case brought pursuant to Section 10(b) of the National Labor Relations Act, herein called the Act 29 U.S.C. 160(b). It is based on a charge filed on October 31, 1968, by Shopmen's Local Union No. 802, International Association of Bridge, Structural, and Ornamental Iron Workers, AFL-CIO, herein called the Union or Local 802. Thereafter the General Counsel of the National Labor Relations Board, through the Regional Director for Region 7 (Detroit, Michigan), issued a complaint against Respond- ent, Planet Corporation, on August 13, 1969. In essence the complaint alleges that Respondent has violated Section 8(a)(5) and (1), and that such conduct affects commerce within the meaning of Section 2(6) and (7), of the Act. Respondent has answered admitting some facts, but denying that it committed any unfair labor prac- tices Pursuant to due notice, this case came on to be heard, and was tried before me, on September 24, 1969, at Lansing, Michigan. All parties were represented at and participated in the trial, and had full opportunity to adduce evidence, examine and cross-examine witnesses, file briefs, and offer oral argument. At the conclusion of the trial Respondent and the General Counsel argued orally Respondent also has submitted a brief. The question in this case is whether benefits enjoyed by retirees of Respondent as a result of its voluntary granting of them, i.e., not flowing from collective bargaining, are matters upon which Respondent must bargain collectively with the Union during the period of such retirement. Upon the entire record in this case, and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT 1. AS TO JURISDICTION Respondent, a Michigan corporation, is engaged at Lans- ing, Michigan , in manufacturing, selling , and distributing conveyors, automated products, and related products. Dur- ing the year ending December 31, 1968, Respondent shipped PLANET CORPORATION 511 products valued in excess of $50,000 directly to points located outside the State of Michigan. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction over Respondent in this proceeding II. THE LABOR ORGANIZATION INVOLVED Local 802 is a labor organization within the meaning of Section 2(5) of the Act. reaching age 65 Brewer left on March 31, 1967, after having been employed by Respondent for 21 years. Brewer and five other employees, the only ones whose benefits are in issue in this case, who left Respondent's employ after January 1, 1959, had premiums on their insurance benefits paid by Respondent from the time they severed their employment (i.e , retired) until June 15, 1968, when Respondent discontinued two insurance policies (one for group life insurance and one for group hospitalization) covering its employees Dependents of these six were not covered by such insurance. These six, and their ages at retirement, are: III. THE UNFAIR LABOR PRACTICES Prior to 1962 Respondent's production and maintenance employees were not represented by any labor organization Before 1959 Respondent at its own expense granted certain insurance benefits to its employees and their dependents Beginning in 1959 Respondent adopted a "plan" whereby these benefits were extended to retired employees. According to President Groenvald of Respondent, such "plan was not meant to automatically include each employee who retired"; instead, Groenvald would confer with Haley, its personnel manager, "as to whether or not we should extend the insurance coverage to that individual" who retired. See General Counsel's Exhibit 2 On November 9, 1962, Local 802 was certified as the exclusive bargaining representative of Respondent's produc- tion and maintenance employees Since February, 1963, Respondent has had contractual relations with Local 802 as the exclusive bargaining agent of the former's production and maintenance employees at its Lansing, Michigan, plant. In their contract executed in February, 1963, and expiring in February, 1964, the parties agreed, among other things, that "Insurance Benefits now in effect paid for by the employer shall continue to exist for the duration of this agreement." See Section 14 of General Counsel's Exhibit 5. Respondent and Local 802 also executed a 1-year contract on February 28, 1964. In the contract entered into by the parties effective Febru- ary 1965, and terminating in February 1968, the parties agreed that "All employees and their dependents (if any) shall be fully covered by [insurance] benefits on the 31st day of such employee's employment and shall continue to be fully covered while such employee is in the employ of the company . . The Company agrees to pay the full cost of [said] benefits for the duration of the collective bargaining agreement." See General Counsel's Exhibit 4, section 14(G) and 14(H) Since February 28, 1968, the parties have been operating under the current contract which runs until February 27, 1971. See General Counsel's Exhibit 3. Section 14 thereof provides that Respondent "at its own cost and expense" shall obtain insurance benefits for each employee and his or her dependents Such contract is silent as to any such advantages for retirees Respondent's records disclose that 69 nonshop employees had terminated their employment (i.e , retired) since January 1, 1959 Of those only one, Arthur Brewer, an engineer, left employment with 8 or more years of service and after John Sayles 69 Arthur Brewer 65 Eric Wieland 67 Clinton Stockstill 68 William Clark 69 George Harrison 64 The number of years of service of each with Respondent is as follows- Clark 12, Wieland 8, Sayles 12, Brewer 21, Harrison 12 or 13, Stockstill 6. Clark left Respondent's employ in January 1959, Wieland on March 27, 1961, Sayles on September 18, 1962, Harrison on March 31, 1968, and Stockstill on December 31, 1967. Under the group life insurance policy discontinued by Respondent in June 1968, Brewer and Stockstill, both of whom are engineers and nonshop employees, and hence not in the production and maintenance unit, were insured in the amount of $2,000, while Sales, Wieland, Clark, and Harrison were insured for $1,000 each; and all six were insured for accidental death, dismemberment, and loss of sight in an amount each to one-half of the amount of his above-described life insurance. Under the group hospi- talization policy (which also included surgical benefits) these six persons were entitled to benefits comparable to those set forth in a booklet entitled "The Program of Group Insurance." (See G C. Exh. 6.) Said Exhibit 6 describes the group hospitalization and surgical benefits insurance applicable only to Respondent's employees. But coverage for these six persons arose solely as a result of a "group certificate amendment rider" (G C Exh 7) extending the benefits of the booklet (G C. Exh. 6) to Respondent's retirees as modified by said rider. Said booklet, i e , General Counsel's Exhibit 6, was part of the contract between the Union and Respondent for the period from February 28, 1965, to February 28, 1968 During the negotiations culminating in the contract of 1963 between the parties, neither side mentioned or discussed the payment by Respondent of insurance benefits for retirees. Nor were such payments discussed in negotiations leading to the signing of the 1964 and 1965 contracts between Respondent and Local 802 However, the subject came up in or about February 1968, in the negotiations resulting in the current contract, i.e., that executed in 1968 for a period of 3 years Although Respondent's bargaining representative, Haley, at those 1968 sessions had died before the trial of this case, I nevertheless received testimony from the General Counsel's witnesses as to what transpired at such meetings. Cf. Kline Iron Steel Company, 178 NLRB No 73. Thus I find that while Local 802 asked that insurance benefits of retirees be incorporated into the con- tract, Haley replied he would take care of them as in 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the past but expressed opposition to including them in the contract . However, Haley did not refer to any possible discontinuance of such benefits Nor did Respondent at any time since then notify Local 802 that such benefits would be abolished ; rather, Respondent wrote individual letters directly to each of the six retirees mentioned above that their insurance benefits would cease on June 15, 1968. Respondent now has a pension plan whereby employees with not less than 5 years of service are eligible to receive benefits thereunder Nevertheless the six mentioned above will not receive any benefits from this plan because it had not been adopted at the time when each retired Ewald Wrach, a machinist in Respondent 's production and maintenance unit , was hired on April 26, 1954, and left its employ on March 31, 1961, at the age of 67. But he never received any insurance benefits from Respond- ent after his employment terminated. Since June 16, 1968, Respondent provides Blue Cross- Blue Shield benefits for nonsalaried and factory employees pursuant to its contract with Local 802 . Retirees are not covered by this policy . This insurance carrier replaces Inter- Ocean Insurance Company, which gave coverage for hospi- talization and surgical benefits, and Minnesota Mutual Insurance Company, which provided coverage for life insur- ance The group policies of Inter-Ocean and Minnesota Mutual covered both employees and those, i.e , retirees, who had left Respondent's employ, but these two group policies were cancelled on June 15, 1968, by Respondent and were replaced by a group policy written by Blue Cross-Blue Shield , as mentioned above Blue Cross-Blue Shield insures only employees working in the maintenance and production unit , and does not cover retirees It was not possible to continue these two group policies, i e , those of Inter-Ocean and of Minnesota Mutual , for the six retirees mentioned above. Hence no insurance has been provided to retirees of Respondent since June 15, 1968, as persons not actually employed by Respondent are ineligi- ble to receive benefits under the Blue Cross -Blue Shield policy. Concluding Findings and Discussion Initially, I find that the six persons who left Respondent's employment , i.e., Sayles, Wieland , Clark, Brewer, Stockstill , and Harrison , are retirees This follows from the fact, which I find, that they were not laid off or discharged, that the only reason they stopped working for Respondent was because of their advanced age, that their chances thereafter of obtaining full employment with Respondent or another employer were negligible, and that Respondent's president and personnel manager regarded them as retirees This last finding is in part based on President Gronvald's affidavit that Personnel Manager "Haley approached me about . . . insurance benefits to a retired employee .. . Thereafter each time an employee retired I conferred with Mr. Haley as to whether or not we should extend the insurance coverage to that individual." (See G C Exh. 2 ) Hence I do not accept Respondent 's argument that these six merely departed from Respondent 's employ and that they may not be considered to have retired. No contrary result is dictated because one of the six was reemployed by Respondent on a part-time basis or because all six were not precluded from obtaining employ- ment elsewhere This is because a retiree's status is not altered when he again obtains employment with his former or another employer, so long as the emoluments incidental to retirement are not severed Thus retirees of one employer who thereafter worked for another employer have been held not to lose their status as retirees of the first employer Pittsburgh Plate Glass Company, 177 NLRB No 114. This is so even though the retiree may be enjoying Social Security benefits while working for an employer Holiday Inns of America, Inc., 176 NLRB No 124 Further, I find that two of these retirees , Brewer and Stockstill, were not in the appropriate unit involved in this proceeding, and so Respondent was not obligated to bargain with Local 802 regarding their insurance benefits received as retirees, if it lawfully was required to bargain for those retiring from said unit. At this point I find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the Respondent at its Lansing, Michigan, plant, excluding office clerical employees , technical employ- ees, and guards and supervisors as defined in the Act And I further find that since November 9, 1962, Local 802 has been the exclusive bargaining representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment , or other conditions of employment, within the contemplation of Section 9(a) of the Act. Further, I find that Respondent had adopted a plan , practice, or policy of paying the premiums on group insurance policies which conferred benefits upon retirees beginning since early 1959 (See G.C. Exh 2). While it is true that Respondent's president and personnel manager did not grant such benefits as a matter of course, it is equally true that these two company officials "each time an employee retires . conferred ... as to whether or not we should extend the insurance coverage to that individual." This action is characterized as a "plan " by Respondent's presi- dent (See G.C Exh 2.) Thus it is patent, and I find, that Respondent always considered each retiree as a potential recipient of insurance benefits. In addition, with the exception of retiree Wrach, who for some unexplained reason did not receive such benefits, every retiree considered for insurance benefits did receive them It follows, and I find, that Respondent by such regular conduct had adopted a plan, practice, or policy of granting insurance benefits to retirees. Hence I find that granting or withholding of such benefits was not at the discretion of the employer, and that retirees could reasonably expect to receive the same. New Orleans Board of Trade, Ltd., 152 NLRB 1258, 1259, General Telephone Company, 144 NLRB 311, 313-314, Gravenslund Operating Company, 168 NLRB No 72 Further, I find that benefits received regularly by retirees as a matter of the employer's practice or policy are compre- hended by the words "rates of pay, wages, . . or other PLANET CORPORATION conditions of employment " in Section 9(a) of the Act. For such benefits are not given as gratuities or as a matter of discretion but, rather , constitute part of the delayed or deferred compensation of an employee which becomes payable to him when he retires The cases cited in the preceding paragraph support, if they do not require, this conclusion. Since such benefits are embraced within the category of compulsory bargainable matters as to persons actually employed by Respondent , the final question is whether these benefits lose this status when retirees are no longer working in the unit represented by Local 802 On this issue I find that benefits received by retirees as delayed or deferred compensation for work performed by them as employees are the subjects of compulsory bargaining between the employer and Local 802. I find that they constitute an emolument of value which accrued out of the employment relationship. Consequently, such benefits may not be unilaterally modified by the employer without bargaining with Local 802 thereon This result is dictated by Pittsburgh Plate Glass Company, 177 NLRB No. 114. In my opinion , Ingraham Industries, 178 NLRB No. 89, 72 LRRM 1245, is distinguishable. As Respondent cancelled the insurance benefits of four retirees who were former employees in the production and maintenance unit, I find that such conduct constitutes a refusal to bargain collectively with Local 802, contrary to the provisions of Section 8(a)(5) and (1) of the Act. It is no defense that three of these retirees left Respondent's employ before the advent of the Union For the benefits received by said retirees emerged as a result of their being employed in a unit now represented by Local 802, and said retirees must be reckoned to be employees currently represented by Local 802 for purposes of deferred compensa- tion Pittsburgh Plate Glass Company, 177 NLRB No. 114 Hence benefits received by such retirees as compensation for work performed affect the present members of the bargaining unit and for this reason also are bargainable matters Pittsburgh Plate Glass Company, supra. Nor is a different result required because the current contract between the parties fails to mention these benefits although they were discussed at the bargaining sessions leading to its execution . In other words, I find no waiver by the Union of the subject matter by reason of the fact that the contract omits reference to it Two reasons account for this: 1 Respondent's representative , Haley, assured the Union at the 1968 bargaining sessions that said benefits would be continued in force. The parol evidence rule does not forbid a finding to this effect as I find Haley's words amount to an addition or an oral rider to the contract and, as such, is enforceable, as the Union accepted it. Nor is it a defense that Haley, as contended by Respondent (See G.C. Exh 2) is alleged to lack authority to offer to continue such benefits. This is because such limitation on his authority was never communicated to the Union, and it was within the apparent scope of his authority to make such a concession on behalf of Respondent. But see NL.R B v Coletti Color Prints, Inc., 387 F 2d 298, 304-305 (C.A 2). 513 2. In any event , I find no waiver of this subject matter by the Union, regardless of Haley's authority to commit Respondent thereon , because Local 802, on the evidence unfolded by the record , did not intentionally , or consciously, or clearly and unmistakably, relinquish or abandon its right or prerogative to bargain upon this subject. Timken Roller Bearing Company v N L R.B., 325 F 2d 746, 751 (C A. 6), N.L. R.B. v. Perkins Machine Company, 326 F.2d 488, 489 (C.A. 1); Jacobs Manufacturing Company, 94 NLRB 1214 , enfd . 196 F.2d 680, 683-684 (C.A. 2); Beacon Piece Dyeing Co., 121 NLRB 953, 956. See Speidel Corpora- tion, 120 NLRB 733, 740-741. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, 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 As Respondent has been found to have engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take specific affirmative action , as set forth below , designed to effectuate the policies of the Act. Since Respondent has cancelled its insurance plan or program for retired employees , the Recommended Order will provide that Respondent, upon request of the Union, (a) rescind such cancellation which it unilaterally instituted, and (b) bargain with the Union regarding any modification of such plan This conforms with the Board's Order in Pittsburgh Plate Glass Company, 177 NLRB No. 114 While this may require Respondent to restore the status quo for retirees who enjoyed such benefits, it does not direct Respondent to carry such insurance with any particular insurance company . The selection of such insur- ance company will be left to the bargaining process. Retirees affected by the foregoing unilateral action adopt- ed by Respondent may have suffered loss by reason thereof Accordingly, it will be further recommended that Respond- ent make whole such persons for any losses they may have suffered from such action, with interest thereon at 6 percent per annum . Cf Ogle Protection Service, Inc., 149 NLRB 545, 547, Roesch Transportation Company, Inc., 157 NLRB 441, 442 And, of course, it will be recommended that Respondent post appropriate notices. The conduct of Respondent in my opinion cannot be characterized as depicting a general hostility to the Act, and I so find It follows, and I find, that an Order is appropriate which is limited to enjoining only the activities found herein to be unfair labor practices Relief broader in scope is not warranted on the facts divulged by the record Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Local 802 is a labor organization within the meaning of Section 2(5) of the Act. 2 Respondent is an employer within the meaning of Section 2(2), and is engaged in commerce within the meaning of Section 2(6) and (7), of the Act. 3. A unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act consists of All production and maintenance employees employed by Respondent at its Lansing, Michigan, plant, exclud- ing office clerical employees, technical employees, and guards and supervisors as defined in the Act. 4. Since November 9, 1962, Local 802 has been the exclusive bargaining representative of the employees in the said appropriate unit, and Respondent since that time has been under a statutory obligation to recognize and bargain with Local 802 as such representative concerning rates of pay, wages, hours of employment, and other conditions of employment 5. Insurance benefits received by retirees who were employed in said appropriate unit at the time of their retirement are subjects of mandatory bargaining between Local 802 and Respondent 6 By unilaterally abolishing or modifying the insurance benefits described in the preceding paragraph for its retirees, without consulting or bargaining with Local 802 thereon, Respondent has violated Section 8(a)(5) and (1) of the Act. 7 The aforesaid unfair labor practices effect commerce within the meaning of Section 2(6) and (7) of the Act. 8 Retirees Brewer and Stockstill were not employed in the above-mentioned appropriate unit, so that Respondent did not commit any unfair labor practice in unilaterally abrogating or modifying the insurance benefits received by them as retirees, without consulting or bargaining with Local 802 thereon. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the Board enter an Order enjoining Respondent, its officers, agents, successors, and assigns, to: 1 Cease and desist from: (a) Refusing to bargain collectively with Local 802 with respect to benefits for retired employees. (b) Unilaterally abolishing or modifying insurance plans for retired employees without first negotiating and bargain- ing collectively in good faith with Local 802 thereon. 2 Take the following affirmative action designed to effec- tuate the policies of the Act: (a) Upon request of Local 802, rescind any cancellation or modification which Respondent unilaterally instituted of the insurance plans for retired employees, and bargain collectively with said Union regarding any adjustments or abrogation of such plan. (b) Make whole persons who retired from the above- mentioned appropriate unit for any losses they may have suffered by reason of Respondent's unilateral cancellation of their insurance benefits, with interest thereon at 6 percent per annum. (c) Mail a copy of the attached notice marked "Appendix"' to each retired employee formerly working in said appropriate unit and post copies thereof in its plant at Lansing, Michigan Copies of said notice, on forms provided by the Regional Director for Region 7, after being signed by Respondent's representative thereunto duly authorized, shall be posted 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 displayed. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.2 It is further recommended that the complaint be dismissed insofar as it applies to retirees, such as Brewer and Stockstill, who were not employed in the appropriate unit. ' 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 said 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 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 United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ' In the event 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 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 refuse to bargain with Shopmen's Local Union No. 802, International Association of Bridge, Structural, and Ornamental Iron Workers. AFL-CIO, with respect to retirement benefits of employees already retired from the bargaining unit described below WE WILL NOT unilaterally cancel or institute adjust- ments in insurance plans for employees retired from said unit without first negotiating in good faith with the above-named Union concerning such cancellation or adjustments WE WILL, upon request of the above-named Union, rescind any cancellation or adjustments made in the PLANET CORPORATION insurance plans for employees retired from said unit which we unilaterally instituted, and we will bargain collectively with the above-named Union with respect to any cancellation or adjustments in such insurance plans The bargaining unit is All production and maintenance employees employed by us, excluding office clerical employ- ees, technical employees, and guards and supervi- sors as defined in the Act WE WILL reimburse employees retired from said unit for any losses they may have suffered by reason of our unilateral cancellation of their insurance benefits, with interest thereon at the rate of 6 percent per annum. Dated By 515 PLANET CORPORATION (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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, Michi- gan 48226, Telephone 313-226-3244.