T.T.P. Corp.

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