Western Foundries, Inc.

WESTERN FOUNDRIES, INC. Western Foundries, Inc. and International Molders & Allied Workers Union of North America, Local 188. Case 27-CA-5098 December 8, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On August 1, 1977, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in answer thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Western Foundries, Inc., Longmont, Colorado, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(e): "(e) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. The Administrative Law Judge dismissed the allegation that Respon- dent refused to bargain with the Union, in violation of Sec. 8(aXS), by dealing directly with the bargaining unit employees concerning their terms and conditions of employment. In the absence of an exception thereto, we adopt this finding. 2 In par. 1(e) of his recommended Order, the Administrative Law Judge uses the narrow cease-and-desist language, "in any like or related manner," rather than the broad injunctive language, "in any other manner," which the Board traditionally provides in cases involving senous 8(aX3) discriminato- ry conduct. See N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). We shall modify the recommended Order accordingly. 233 NLRB No. 154 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in the International Molders & Allied Workers Union of North America, Local 188, or any other labor organization, by promulgating, maintaining, or enforcing an exclusionary clause which disquali- fies or excludes from participation in a profit- sharing plan or any other employment benefit plan employees who are members of a union which has a contract with us. WE WILL NOT disqualify employees who are represented by the above-named Union from eligibility to participate in our profit-sharing plan because they are members of the Union. WE WILL NOT refuse to bargain collectively with the above-described Union as the exclusive representative of all our foundry employees concerning their participation in our profit-shar- ing plan. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL reinstate in our profit-sharing plan the accounts of any foundry employees whose accounts were forfeited subsequent to October 1, 1976, because they became a member of Interna- tional Molders & Allied Workers Union of North America, Local 188, and WE WILL open accounts in the names of those foundry employees who but for their membership in this Union would have been eligible to participate in said plan subse- quent to October 1, 1976, and prior to compliance with the Order of the National Labor Relations Board. WE WILL make whole the employees referred to in the paragraph immediately above by paying into each of said accounts a sum of money, the amount of which is to be determined hereinafter at the compliance stage of this proceeding. WE WILL amend the summary description of our profit-sharing plan by deleting from it that portion which disqualifies or excludes from participation employees covered by our contract with the above-named Union if they are members of that Union. WE WILL, upon request, bargain collectively and in good faith with the above-named Union, as the exclusive representative of our foundry 1033 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, concerning the foundry employees' participation in our profit-sharing plan. WESTERN FOUNDRIES, INC. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: Upon a charge filed on October 12, 1976, by International Molders & Allied Workers Union of North America, Local 188, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 27, issued a complaint and notice of hearing on December 1, 1976, against Western Foundries, Inc., herein called Respondent. The complaint alleges that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. In substance, Respondent is alleged to have violated Section 8(a)(1) and (3) of the Act by informing its employees who are not members of the Union that it had instituted an employee profit-sharing plan which excluded from its coverage employees who "are a member of a union and are covered by a collective bargaining agreement which does not provide for your participation in this Plan." The complaint further alleges that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to meet and bargain with the Union about "the exclusion of union employees from Respondent's profit-sharing plan," and by attempting to deal directly with the employees represented by the Union about the profit-sharing plan.' On December 19, 1976, Respondent filed an answer denying the commission of any unfair labor practices. On May 23, 1977, Respondent, the Charging Party, and the General Counsel entered into a stipulation of facts and requested that an Administrative Law Judge accept the stipulation and set a date for the filing of briefs. The parties agreed to submit this proceeding, without a hearing, directly to the Administrative Law Judge for recommended findings of fact, conclusions of law, and order. The parties stipulated that the entire record before the Board in this matter, in addition to their formal stipulation and the exhibits thereto, should consist of charge, complaint, and answer to the complaint. On June 27, 1977, I was designated to prepare and issue a decision in this proceeding and permission was granted for the filing of briefs. Thereafter, the General Counsel and Respondent filed briefs in support of their respective positions. Upon the basis of the stipulation and exhibits thereto, the briefs, and the entire record in this case, I make the following: I Counsels for the General Counsel in their brief argue that Respondent also violated Sec. 8(aX5) and (1) by unilaterally implementing its profit- sharing plan without prior notice to or consultation with the Union. However, the complaint does not allege this as a violation nor is this contention fairly comprehended within the language of the complaint, nor does the parties' stipulation of facts indicate that the matter was litigated. It FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The Respondent, Western Foundries, Inc., is, and at all times material herein has been, a corporation duly organized under, and existing by virtue of, the laws of the State of Colorado. Respondent maintains its office and principal place of business in Longmont, Colorado, where it is engaged in the manufacture for sale of casting for pumps and pump parts. Respondent annually sells and ships goods and materials valued in excess of $50,000 directly to points and places outside the State of Colorado. Respondent admits, and I find, that it is, and at all times material herein has been, an employer engaged in com- merce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 1. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that International Molders & Allied Workers of North America, Local 188, the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Union has represented the foundry employees employed by Respondent at its Longmont, Colorado, plant, the only facility involved in this proceeding, since 1959 when, as the result of a Board-conducted election, the Union was certified as the employees' exclusive collective- bargaining representative. The parties' current collective- bargaining contract covering the foundry employees was entered into July 3, 1976, and is effective from July 1, 1976, until June 30, 1978. The contract does not contain a union- security agreement. Article 2, in part, provides that "union membership will not be a condition of employment . . . although employees are free to join or refrain from joining the Union as a matter of individual choice." During the time period material to this case approximately 50 percent of the employees covered by the contract were dues-paying members of the Union. During the collective-bargaining negotiations which resulted in the current collective-bargaining contract, Respondent's employees were not covered by a profit- sharing plan. There was no discussion about such a plan during the contract negotiations.2 However, Respondent's parent company maintained a profit-sharing plan for its own employees which did not cover Respondent's employ- ees. In 1976, on an unspecified date, Respondent's parent company was advised by its lawyers that for the parent company's profit-sharing plan to comply with the Employ- ees' Retirement Income Security Act of 1974 (ERISA), an identical plan must be established for Respondent's eligible is for these reasons that I have not considered the General Counsel's claim that Respondent violated the Act by engaging in impermissible unilateral conduct. 2 The Union's negotiators did propose, and Respondent's negotiators rejected, a pension plan. 1034 WESTERN FOUNDRIES, INC. employees. Thereafter, on October 1, 1976, following the advice of its parent company's lawyers, Respondent instituted a profit-sharing plan, herein sometimes called the plan, for the employees at the Longmont plant. The plan known as the "Western Foundries, Inc. Employees' Profit- Sharing Plan" was made effective retroactive to January 1, 1976. The plan is administered by a committee of two or three persons, at least two of whom are officials of Respondent. Respondent retains the right to terminate, cancel, or amend the plan. Participation in the plan is voluntary. Those eligible must be at least 25 years of age and employed by the Company for a period of I year. Annual contributions, based solely on a percentage of the Compa- ny's profits, are made by the Company into a trust fund with shares allocated on a pro rata basis to personal accounts set up for each participating employee. In general, the Company's contribution for a given period is allocated among the accounts of the participants in accordance with each participant's compensation during that period, except that the contribution is not to exceed the maximum allowable tax deduction.3 Participants (or their designated beneficiaries) are entitled to receive the amounts credited to their accounts upon their retirement, death, or disability. In the event of discharge or voluntary resignation, employees who have participated in the plan for at least 10 years receive the full amount in their accounts, those who have participated for at least 4 but less than 10 years receive 40 percent to 90 percent, and those who have participated less than 4 years receive nothing. If a participant's account is distributed due to retirement, death, or disability, payment commences 60 days after the close of the fiscal year and, in the case of retirement or disability, the participant may receive the moneys owed in either one lump sum payment or in quarterly installments or in United States Government Retirement Bonds. If, however, a participant's account is distributed for reasons other than death or retirement or disability, i.e., discharge or voluntary termination, the vested portion of the account must be paid 60 days after the last day of the fiscal year in which the participant's normal retirement would occur, but with the committee's consent the employee can elect to receive the distribution of this money prior to retirement age. On October 1, 1976, Respondent distributed to its employees who were eligible to participate in the plan a 19- page document entitled, "Summary Plan Description for [Respondent's] Employees' Profit-Sharing Plan," which in substance informed the employees that Respondent had adopted a profit-sharing plan for their benefit, summarized the plan, and informed the employees that if they had any questions about the plan or if they desired to review the plan and its trust agreement, to contact the members of the committee who administer the plan. The final page of the "Summary Plan Description" cautions the employees that the plan's operation is governed by the specific provisions contained in the plan and its trust agreement, not the 3 Each participant may elect, on a voluntary basis, to contribute to the plan's trust during each fiscal year a percentage, not in excess of 10 percent, of his compensation for such fiscal year. Such contributions do not affect the participant's share of employer contnbutions. summary, and urged the employees to study the plan and its trust agreement. Section 3 of the "Summary Plan Description" entitled "when do I become eligible to enter the Plan," in substance states that to be eligible an employee must be at least 25 years of age and employed by the Company for I year, but then goes on to state that, "(e)ven though you satisfy these requirements, however, you will not be eligible to enter the Plan . .. if you are a member of a union and are covered by a collective bargaining agreement which does not provide for your participation in this Plan." The "Summary Plan Description" was distributed to the employees in accordance with this eligibility provision. The employees represented by the Union who were union members did not receive a copy of the summary, whereas all employees who were not union members received a copy. The above-described eligibility exclusionary language included in the "Summary Plan Description," which was distributed to the employees, was erroneous insofar as it excluded "a member of a union" from participating in the plan. The actual text of the plan which deals with this matter makes no mention of union membership but simply excludes from participating in the plan, "a person covered by a collective bargaining agreement which does not provide for his participation in this Plan." On or about November 17, 1976, Ben Martinez, a union business agent, spoke to George Losacco about the profit- sharing plan. Losacco, the plant manager, was Respon- dent's chief negotiator during the recent contract negotia- tions and is one of the committee members who adminis- ters the plan.4 Martinez spoke to Losacco concerning the exclusion of union members from the profit-sharing plan. Losacco told him that the plan was already written, that he had no authority to renegotiate any of the provisions that might change the signed collective-bargaining contract, and that Martinez should contact George Wilfley, Respon- dent's president. Neither Martinez nor anyone else from the Union contacted Wilfley about this matter. In January 1977, the employees covered by the parties' collective-bargaining contract, who were not union mem- bers, were informed by Plant Manager Losacco they were eligible to participate in the plan, and Losacco invited them to actively participate. The result is that the employees covered by the current collective-bargaining contract who are not union members, and are otherwise eligible to participate in the plan, are all participating, whereas those employees who are union members are not participating in the plan. B. Discussion 1. The alleged 8(aX1) and (3) violations The complaint in substance alleges that on or about October 1, 1976, by informing employees who were not union members that they were not eligible to participate in Respondent's profit-sharing plan "if you are a member of a union covered by a collective bargaining agreement which does not provide for your participation in this Plan," that 4 Losacco also executed the current contract for Respondent. 1035 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent promulgated a discriminatory profit-sharing plan which discourages union membership, in violation of Section 8(a)(1) and (3) of the Act. On October 1, 1976, as described in detail supra, Respondent instituted an employee profit-sharing plan and on that date distributed a summary of the plan to the employees eligible to participate. The summary, among other things, stated that "you will not be eligible to enter the Plan . . . if you are a member of a union and are covered by a collective bargaining agreement which does not provide for your participation in this Plan." Respon- dent's employees are covered by a collective-bargaining agreement negotiated by the Union which does not provide for their participation in the plan. The agreement does not include a union-security clause and approximately 50 percent of the bargaining unit's employees are not union members. It was this group of employees who were in effect told they were eligible to participate in the plan if they refrained from joining the Union. Clearly, the plan's eligibility provision, as explained to these employees, was calculated to coercively dissuade them from joining the Union inasmuch as it indicated that union membership would result in less favorable working conditions. It is settled that "employee benefit plans which on their face are restricted to participation or enjoyment by employees who are not members of a union . . . are inherently restrictive of employee rights guaranteed by Section 7 of the Act, and without further evidence of interference, restraint, or coercion are per se violations of Section 8(a)(1) of the Act." Motor Wheel Corporation, 180 NLRB 354, 355 (1969), citing Melville Confections, Inc., 142 NLRB 1334 (1963), enfd. 327 F.2d 689, 690-692 (C.A. 7, 1964), cert. denied, 377 U.S. 933 (1964). Publicizing to the employees that Respondent was instituting a profit-sharing plan which restricted participation to those employees represented by the Union who are not members of the Union is no less violative of the Act. See White Sulphur Springs Company, d/b/a Greenbrier Hotel, 216 NLRB 721, 727 (1975). In so concluding, I have considered that the plan's summary description materially misrepresented the plan's exclusion- ary language which makes no mention of union member- ship, but simply lawfully excludes "a person covered by a collective bargaining agreement which does not provide for his participation in this plan." See The Rangaire Corpora- tion, 157 NLRB 682 (1966). However, Respondent's representatives never brought the plan's actual language to the employees' attention or told them they would not be disqualified from participating in the plan if they became union members, nor did Respondent otherwise neutralize the summary's coercive effects. To the contrary, consistent with the exclusionary language included in the plan's 5 This is not a situation where an employer has granted participation in a profit-sharing plan to its unorganized employees while withholding participation from its represented employees. See The B. F Goodrich Company, 195 NLRB 914(1972). 6 I reject Respondent's characterization of the instant case as simply one wherein an employer inadvertently administered its profit-sharing plan so that it discriminated against union members. Quite the contrary, there is no evidence that Respondent has ever corrected the discriminatory eligibility language contained in the summary description of the plan or otherwise notified the employees that the summary was in error in that respect. In addition, several weeks after the complaint, which unambiguously accused Respondent of promulgating a discriminatory profit-sharing plan, issued in summary description Respondent treated bargaining unit employees, who were union members, differently from nonmembers. The employees who were not union members were invited to participate in the plan whereas the members were excluded. Under all of these circumstances, the fact that the plan's eligibility clause is not unlawful and employees were urged by Respondent to study the plan itself is insufficient to neutralize the coercive effects of Respondent's unfair labor practices. Based on the foregoing, I find that Respondent, by informing bargaining unit employees who were not members of the Union that the Company's profit-sharing plan was not available to a union member, who otherwise was eligible to participate in the plan, thereby restrained and coerced employees in their statutory right to become members of the Union. Accordingly, Respondent violated Section 8(a)(l) of the Act. I further find that Respondent, by giving more remuner- ation (in the form of a profit-sharing plan) to nonunion members than to union members for work which bargain- ing unit employees performed, 5 thereby discriminated in regard to a term or condition of employment in a manner which would tend to discourage membership in the Union. Therefore, I find that Respondent violated Section 8(aX3), as well as Section 8(aXlI), of the Act. In this regard the record establishes that in addition to announcing that union members employed in the bargaining unit were not eligible to participate in the profit-sharing plan, Respon- dent gave effect to this illegal announcement and actually excluded unit employees from participation on the basis of their union membership. Consistent with the exclusionary language included in the plan's summary description, Respondent has treated unit employees who are members of the Union differently from those who are not members. The nonmembers have been invited to participate in the plan, whereas the members of the Union have been excluded. In other words, Respondent has ignored the terms of the plan as written and, consistent with the plan's summary description, has in fact promulgated, maintained, and enforced a profit-sharing plan which discriminates on the basis of union membership in that it excludes from participation therein those employees covered by the parties' collective-bargaining contract who are members of the Union.6 Such discriminatory conduct is a per se violation of Section 8(aX3), as well as Section 8(a)(1), of the Act. See, e.g., Toffenetti Restaurant Comrpany, Inc., 136 NLRB 1156, 1173 (1962), enfd. per curiarn 311 F.2d 219, 220 (C.A. 2, 1962), cert. denied, 372 U.S. 977 (1963); Dura Corporation v. N.LRB., 380 F.2d 970, 972-973 (C.A. 6, 1967). For Respondent to deprive otherwise eligible employees of employment benefits solely because they are this proceeding, Respondent invited the unit employees who were not members of the Union to participate in the plan, but excluded those unit employees who were union members. These circumstances, viewed in the context of the discriminatory language contained in the summary descrip- tion of the plan distributed to the employees, indicates that Respondent, which has the power to amend the plan, in effect did amend the plan so as to promulgate, maintain, and enforce a plan which discriminates against its employees represented by the Union on the basis of their union member- ship. Moreover, it is a fair inference to also conclude that Respondent did not act in this regard inadvertently but instead acted with the specific intent to discriminate against bargaining unit employees because of their union membership. 1036 WESTERN FOUNDRIES, INC. members of a labor organization constitutes discrimination tending to discourage union membership. In the absence of a valid business justification for such discrimination (and none was offered by Respondent in this case), Respondent violated Section 8(aX3) of the Act. See N.LR.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 33-34 (1967), and N.L.RB. v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378-381 (1967). 2. The alleged 8(a)(5) and (I) violations The complaint alleges that since on or about October 1, 1976, Respondent has refused to bargain collectively with the Union in violation of Section 8(aX5) and (1) of the Act in that it has failed and refused to meet and bargain with the Union concerning "the exclusion of union employees from Respondent's profit-sharing plan," and dealt directly with employees represented by the Union about their terms and conditions of employment without consulting with and in derogation of the Union's status as their exclusive bargaining agent. On October i, 1976, Respondent instituted a profit- sharing plan for its employees which, as implemented, excluded bargaining unit employees from participation on the basis of their union membership, that is, employees covered by Respondent's contract with the Union who are union members are not eligible, whereas employees who are not union members are eligible to participate in the plan. On October 12, 1976, Respondent was served with a copy of the Union's charge filed in this case which in pertinent part alleges, in substance, that Respondent failed and refused to bargain with the Union by establishing and maintaining a profit-sharing plan for employees represent- ed by the Union without notice to, or consultation with, the Union. On November 17, 1976, Union Business Agent Martinez spoke to Respondent's Plant Manager Losacco about the exclusion of the Union's members from partici- pating in the Company's profit-sharing plan. In reply, Losacco stated he could do nothing about the matter since the plan was already written and he had no authority to renegotiate any provisions that might change the current collective-bargaining contract. He told Martinez to contact Respondent's president. Based on the foregoing, I am satisfied Respondent, as alleged in the complaint, refused to meet and bargain with the Union concerning the exclusion of employees represented by the Union who are union members from participation in Respondent's profit- sharing plan.7 The Union's failure to contact Respondent's president and renew its bargaining demand does not detract from this conclusion. During the recently conclud- ed collective-bargaining negotiations, Plant Manager Lo- sacco was the Company's chief negotiator and signed the collective-bargaining contract on its behalf. In addition, he is one of the plan's administrators and the summary of the plan distributed to the employees indicated this. Under these circumstances, the Union had every reason to believe The stipulation of facts does not set forth the words Martinez used when he spoke to Losacco about the exclusion of union members from the plan. However, it is plain from the context in which the conversation took place - the Union had recently filed an unfair labor practice charge accusing Respondent of refusing to barbain about the matter - and Losacco's part of the conversation, that Martinez asked Losacco to bargain about Respondent's exclusion of union members from its profit-sharing plan that Losacco, as Respondent's designated agent for the purpose of collective bargaining, had the authority to meet with the Union's representative to discuss the exclusion of union members from participating in Respondent's profit- sharing plan. Considering Losacco's position and his statement to Martinez, it was reasonable for the Union to believe that Respondent regarded the matter of profit sharing as nonbargainable for the duration of the contract and that any further effort to persuade Respondent to alter its position would have been futile. It is settled that an employer violates Section 8(a)(5) and (1) of the Act when, absent waiver by the appropriate bargaining representative of its employees, it refuses to bargain about the employees' terms and conditions of employment. This obligation encompasses the subject of an employee profit-sharing plan,8 and the obligation contin- ues during the term of an existing collective-bargaining contract. N L Industries, Inc. v. N.LR.B., 536 F.2d 786 (C.A. 8, 1976), enfg. 220 NLRB 41 (1975); The B. F. Goodrich Company, 195 NLRB 914 (1972); N.LR.B. v. The Jacobs Manufacturing Company, 196 F.2d 680 (C.A. 2, 1952). This is especially true where, as here, Respondent increased the employment benefits of some of the Union- represented employees by including them in the Respon- dent's profit-sharing plan. As one court has stated, "if an employer increases benefits during the term of a contract he must be prepared to bargain with the Union" N.LR.B. v. General Electric Company and International Union of Electrical, Radio, and Machine Workers, AFL-CIO, 418 F.2d 736, 748 (C.A. 2, 1969). Guided by these principles, I find that when, during the term of the current collective-bargaining contract, Respon- dent instituted a profit-sharing plan which covered bar- gaining unit employees who were not union members, that Respondent was obligated, upon the Union's request, to bargain about the exclusion of union members, unless for the duration of the contract the Union had waived its right to bargain about the profit-sharing plan. On the question of whether there was such a waiver, in a situation analagous to the instant case, a court has recently stated, "absent waiver manifested by the terms of the contract or by actual negotiations, the Act requires bargaining upon request on a mandatory subject during the term of the contract" and "any waiver . . . must be in 'clear and unmistakable language.' " N L Industries, Inc. v. N.LRB., 536 F.2d at 789. In the instant case there is a lack of evidence that the Union clearly and unmistakably waived its right to bargain about the profit-sharing plan for the duration of the current contract. Neither the profit-sharing plan nor the subject of profit sharing was discussed during the negotiations for the current contract. Indeed, there is no evidence that the parties had the slightest idea that the profit-sharing plan of Respondent's parent company would be extended to cover Respondent's eligible employees. Thus, since "the parties could not have contemplated this [plan] as a bargaining and that Losacco understood this was Martinez' purpose in bringing up the matter. s Profit-shanng plans are a form of compensation to employees and hence a mandatory subject of bargaining. The Kroger Company v. N.LR.B., 401 F.2d 682, 687 (C.A. 6, 1968), and N.LR.B. v. Black-Clawson Company. 210 F.2d 523, 524 (C.A. 6, 1954). 1037 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subject," the Union can hardly be said to have "clearly and unmistakably waived" its right to bargain about this subject.9 N L Industries, Inc. v. N.L R.B., supra at 789, enfg. 220 NLRB 41, 43; The B. F. Goodrich Company, supra at 919. In addition, in view of the fact that the profit-sharing plan is not mentioned in the current contract, was not discussed during the contract negotiations, and was not in existence at the time the current contract was negotiated, there was no waiver by the Union of its right to bargain about this subject by virtue of the contract's so-called zipper clause. See Federal Compress & Warehouse Company v. N.L.R.B., 398 F.2d 631 (C.A. 6, 1968). The language of this clause, included in article 21 of the contract,10 follows the language of Section 8(d) of the Act,1 hence, it does not excuse Respondent's conduct inasmuch as Section 8(d) was designed for the protection of the party to a contract who wishes to preserve the status quo as to matters covered therein, not for the party who wishes to change it. N.L.R.B. v. General Electric Company, supra at 747-748. Nor does the zipper clause directly or by implication state that the Union waives its right to bargain about matters not referred to or covered by the current contract, even though such matters may not have been within the parties' knowledge or contemplation. Compare N.L.R.B. v. Auto Crane Company, 536 F.2d 310 (C.A. 10, 1976), with Federal Compress & Warehouse Company v. N.L.R.B., supra at 636 wherein the Court in discussing a zipper clause similar to the one in this case stated "in order to effectuate the relinquishment of a collective bargaining right under the provisions of a collective bargaining agreement, the language [in the zipper clause] must be clear and unmistakable. Silence in the bargaining agreement on such an issue does not meet this test." For the aforesaid reasons I conclude the Union did not waive its statutory right to bargain about Respondent's profit-sharing plan. Based on the foregoing I conclude that by refusing to bargain about the exclusion of employees represented by the Union from participating in the company profit- sharing plan, Respondent has refused to bargain with the Union in violation of Section 8(a)(5) of the Act and, as such conduct interferes with, restrains, and coerces the unit employees in the exercise of their right to bargain collectively through a representative of their own choosing, I conclude that Respondent further violated Section 8(aX)(I) of the Act. The complaint as described, supra, also alleges that Respondent has refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act by bypassing the Union and dealing directly with the bargaining unit employees concerning their terms and conditions of 9 I have considered that during the recent negotiations the Union proposed a pension plan. Since no evidence was presented concerning the substance of the Union's pension proposal, I assume, as is usually the case, the Union's pension proposal and Respondent's profit-sharing plan provide different kinds of benefits. Accordingly, "'p]rofit sharing, therefore may be a subject of collective bargaining, independent of the subject of pensions" The Kroger Company v. N.LR.B., supra. Also, see Winn-Dixie Stores, Inc., 224 NLRB 1418, 1418-20(1976). 1' The clause reads: It is the intent of the parties hereto that this agreement embodies all of the issues, proposals, and subjects pertaining to wages, hours and other terms and conditions of employment whether or not specifically herein employment. I disagree. Respondent instituted a profit- sharing plan and notified certain employees represented by the Union that they were eligible to participate, explained the plan to them and invited them to participate. This conduct "amounted to no more than notification to the employees of a predetermined course of action to which Respondent was committed." Oak Cliff-Golman Baking Company, 202 NLRB 614, 617 (1973); Johnson's Industrial Caterers, Inc., 197 NLRB 352, 356 (1972); Huttig Sash and Door Company, Incorporated 154 NLRB 811, 817 (1965). Accordingly, I shall recommend that this portion of the complaint be dismissed. Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW i. The Respondent, Western Foundries, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, International Molders & Allied Workers Union of North America, Local 188, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All foundry employees employed by Respondent at its Longmont, Colorado, plant, but excluding office clerical employees, metallurgists, planners, and supervisors as defined in 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 the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By notifying employees employed in the aforesaid bargaining unit that they would not be eligible to participate in Respondent's profit-sharing plan if they became union members, Respondent violated Section 8(a)(1) of the Act. 6. By promulgating, maintaining, and enforcing a profit-sharing plan which excluded from participation therein employees who were members of the Union, Respondent violated Section 8(a)(3) and (1) of the Act. 7. By refusing to bargain with the Union about the exclusion from its profit-sharing plan of the employees referred to in paragraph 6 immediately above, Respondent violated Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 9. Respondent has not otherwise violated the Act. set forth and it is agreed that no further proposals for negotiations will be presented by either party dunng the life of this Agreement, except as otherwise expressly herein provided. " Sec. 8(d) in pertinent part reads: . . . the duties so imposed shall not be construed as requinng either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract. 1038 WESTERN FOUNDRIES, INC. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that by promulgating, maintaining, and enforcing a profit-sharing plan excluding from participa- tion therein otherwise eligible employees who are members of the Union, Respondent violated employees' Section 7 rights and also unlawfully discriminated against them with respect to their terms and conditions of employment. I will accordingly recommend that Respondent be ordered to amend the summary description of the profit-sharing plan by the elimination of the provision disqualifying employees from participation therein because they are members of a union. I will also recommend that Respondent be ordered to open accounts in the names of those employees who would have otherwise become eligible to participate in the plan subsequent to October 1, 1976,12 and to reinstate in the plan the accounts of any employees whom Respondent deemed to have forfeited them as a result of having become a member of the Union. I further shall recommend that Respondent make said employees' accounts whole for any losses of company contributions and the earnings those accounts would have earned in the same ratio as contribu- tions and earned income are reflected in the active employee accounts during the period from October 1, 1976, to the date Respondent complies with this Order herein. See Winn-Dixie Stores, Inc., 224 NLRB 1418, 1421-22 (1976), and Dura Corporation, 156 NLRB 285, 289 (1965), enfd. 380 F.2d 970 (C.A. 6, 1967). Finally, I shall recommend in connection with the refusal to bargain found herein that, upon the request of the Union, Respondent bargain collectively with the Union with respect to the profit-sharing plan. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 13 The Respondent, Western Foundries, Inc., Longmont, Colorado, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the International Mold- ers & Allied Workers Union of North America, Local 188, or any other labor organization, by promulgating, main- taining, or enforcing an exclusionary clause which disquali- fies or excludes from participation in a profit-sharing plan 12 The record, described supra, establishes that but for the discrimination against them the union m.lembers represented by the Union, who were otherwise eligible to participate in the profit-sharing plan, would have done so like their fellow unit employees who were nonmembers. I recognize that employee participation in the plan is voluntary. However, inasmuch as participation imposes absolutely no expense to the employee or other obligation and holds out the possibility of substantial monetary benefits, it is a fair inference that but for Respondent's unfair labor practices all of the members of the Union, who were otherwise eligible to participate in the plan, would have done so just like the nonmembers. In any event, assuming arguendo that the answer to the question of whether all of the union members in the unit would have opted to participate in the plan is an or other employment benefit plan employees who are members of a union which has a contract with Respondent. (b) Disqualifying its employees who are represented by the aforesaid Union from eligibility to participate in its profit-sharing plan because they are members of the Union. (c) Notifying employees represented by the aforesaid Union they are not eligible to participate in Respondent's profit-sharing plan because they are members of the Union. (d) Refusing to bargain collectively with the aforesaid Union, as the exclusive representative of all the employees in the bargaining unit described hereinabove, concerning unit employees' participation in Respondent's profit-shar- ing plan. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Amend the summary description of its profit-sharing plan by deleting therefrom that portion which disqualifies or excludes from participation employees employed in the bargaining unit described hereinabove who are members of a union. (b) Reinstate in its profit-sharing plan the accounts of any bargaining unit employees whose accounts were forfeited subsequent to October 1, 1976, because they became members of the Union and open accounts in the names of those bargaining unit employees who, but for their membership in the Union, would have otherwise become eligible to participate in said plan subsequent to October 1, 1976, and prior to compliance with our Order herein. (c) Make whole the employees referred to in subpara- graph (b) immediately above, by paying into said accounts a sum of money, the amount of which is to be determined hereinafter at the compliance stage of this proceeding in the manner explained in the section of this Decision entitled "The Remedy." (d) Upon request, bargain collectively and in good faith with the above-named Union, as the exclusive representa- tive of all the employees in the unit described hereinabove, concerning unit employees' participation in its profit- sharing plan. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records including those maintained in the administration of uncertain one, established principles dictate that the burden of the uncertainty must fairly rest on the wrongdoer, Respondent, rather than with the union members who were the victims of Respondent's unfair labor practices. Story Parchment Company v. Paterson Parchment Paper Companv., et al, 282 U.S. 555. 563 (1931), and Bigelow et al. v. RKO Radio Pictures. Inc.. 327 U.S. 251, 265 (1946). 13 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, 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. 1039 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's profit-sharing plan necessary to analyze the rights of the employees covered by the terms of this Order. (f) Post at its place of business in Longmont, Colorado, copies of the attached notice marked "Appendix."' 4 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent's representative, shall be posted by Respon- dent 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 14 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 read "Posted Pursuant customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 1040