Triangle PWC, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Triangle PWC, Inc., a Subsidiary of Triangle Indus- tries, Inc. and Local 2131, International Brother- hood of Electrical Workers, AFL-CIO. Case 20- CA-11820 August 18, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On April 19, 1977, Administrative Law Judge Harold A. Kennedy issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 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 brief and finds merit in Respondent's exceptions. Accord- ingly, the Board adopts the findings, conclusions, and recommendation of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Respon- dent violated Section 8(a)(5) of the Act by refusing to bargain with the Charging Party (hereafter Union) concerning pension benefit levels after Respondent and the Union had completed negotiations in January and February 1976 for a new collective- bargaining agreement. We disagree and find that in the circumstances of this case Respondent's refusal to bargain was justified and lawful. The record reveals that Respondent and the Union were parties to a 3-year collective-bargaining agree- ment which expired on February 16, 1976. The collective-bargaining agreement also contained a provision for a retirement plan which covered the period from February 16, 1970, through February 16, 1975, and was renewable for a successive 5-year period unless notice of a desire to modify was given by either party at least 60 days prior to February 16, 1975, or any subsequent anniversary date. Pursuant to the notification provision, the Union sent a letter to Respondent on December 5, 1974, requesting discussion of pension plan benefits. Respondent's plant manager replied on December 19, 1974, stating in relevant part: It is my suggestion, since no employee will have ten years seniority or be eligible for pension prior to the year 1977, that we defer negotiations on the pension plan until our present labor contract is negotiated, February 1976. 231 NLRB No. 58 With the deferral I would offer that all terms of the negotiated (1976) pension plan be retroactive to the anniversary date of the present plan, February 16, 1975. The Union responded on January 10, 1975, accepting Respondent's proposal to defer the negotiations until February 1976. It was thus clearly understood by Respondent and the Union in early 1975 that negotiations regarding pension benefit levels would take place in February 1976 at the time of negotiations for a new collective- bargaining agreement. During the course of negotiations in January and February 1976, the pension benefit levels were discussed, albeit not extensively. The Union did not put forth any proposal regarding pension benefit levels. There is conflicting record testimony which the Administrative Law Judge did not resolve with respect to who raised the pension benefit level issue and exactly when it was raised. It is clear, however, that Respondent's vice president, Johnson, stated that all benefit level adjustments would have to come from the total amount of moneys under consider- ation in bargaining. In explaining at the hearing that he had been engaged in "package bargaining," Johnson testified that he had stated: Well, what I would do would be to again draw the circle and then I would just write on the left hand side of the circle "wages," "group insurance," "pensions," "dental," right on down. Anything you want. You want this, here. Whatever it amounts to, whatever piece of pie it takes. If you want this and it is the whole pie, you take the whole pie. This is how I negotiate. This was corroborated by both of the Union's witnesses. Joseph Ferrito, the Union's international representative, describing Johnson's response to a reminder by Ferrito that the pension program hadn't been discussed, testified as follows: A. He says any increased benefits that you are looking for would have to come out of the pie; the pie being this diagram that he kept drawing on the board showing us where monies and benefits were going, and so forth and so on. Q. Did he refer to the same pie on more than one occasion? A. I believe he did. Q. Did he refer to the same pie in reference to other benefits such as dental benefits or health benefits? A. Yes. 492 TRIANGLE PWC, INC. Roger Langlois, the Union's business manager, in testifying about the course of negotiations, read into the record a portion of the affidavit given to the Board agent during the course of the investigation of this proceeding as follows: At the very end of negotiations just before the Company gave us their final offer, Joe Ferrito asked when the Pension plan would be negotiat- ed. Mr. Johnson replied that any increase in benefit of any kind would have to come out of the same pie. Discussion of the pension benefit level increases was not pursued by the union representatives because of their preoccupation with issues which they felt were more significant. The Administrative Law Judge concluded, however, that both parties were of mind to pursue the subject after the collective-bargaining agreement had been concluded. We disagree with the conclusion that there had been agreement, implied or otherwise, to discuss pension benefit levels after a contract had been concluded. It is clear, as recognized by the Adminis- trative Law Judge, that the parties had not expressly agreed to do so. Indeed, Union witness Ferrito testified that it was not his understanding that Respondent had agreed to negotiate benefit levels after the close of contract negotiations. Further, the earlier agreement of the parties to negotiate those benefits during the contract negotiations and John- son's corroborated statements that any such increas- es would have to come from the "pie" detract from the logic of the Administrative Law Judge's conclu- sion. We agree with the Administrative Law Judge that pension benefit levels are a mandatory subject of bargaining and that the duty to bargain is normally a continuing one. We do not agree, however, with his conclusion that the Union did not waive its right to bargain over the pension benefit levels. The parties had earlier agreed to negotiate pension benefit levels during contract negotiations. The subject was broached but no proposals were put forth, and while Respondent clearly stated that any increase would have to come from the total package it was offering, the Union did not pursue the matter, choosing instead to pursue other contract terms. Under these circumstances, and in the absence of an agreement to negotiate pension benefit levels after the close of collective-bargaining negotiations, we find that the Union's subsequent demand to bargain on pensions constituted a "mid" or "in" term attempt to negotiate on a matter covered by the contract. Accordingly, we find that Respondent did not violate Section 8(a)(5) by refusing to bargain as alleged. We shall therefore dismiss the complaint in its entirety. 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 in its entirety. ' We note that the "working agreement" arrived at by the parties setting forth what had been agreed to in collective-bargaining negotiations included a provision concerning pension benefits. We attach no weight to the fact that the provision contained the same language, including the dates, as were contained in the prioi collective-bargaining agreement. As noted by the Administrative Law Judge, the language and dates of the old agreement were contained in the new working agreement because it was expected that changes of language would be necessitated by the requirements of the Employee Retirement Income Security Act. The pension language of the old agreement was thus inserted as a stop-gap measure and we attach no other meaning to its inclusion in the working agreement. DECISION STATEMENT OF THE CASE HAROLD A. KENNEDY, Administrative Law Judge: This case was heard by me in San Francisco, California, on February 23, 1977. The charge was filed by Local 2131, International Brotherhood of Electrical Workers (Union), on August 18, 1976, and a complaint issued on September 28, 1976. The complaint alleged that Respondent Triangle PWC, Inc., a subsidiary of Triangle Industries, Inc., has refused to bargain collectively in good faith with the Union contrary to Section 8(aX5) and (1) of the National Labor Relations Act, as amended.' The complaint was duly served on Respondent, which filed an answer denying that it had engaged in the alleged unfair labor practices. Upon the entire record, including my observation of the witnesses and consideration of the briefs filed by the General Counsel and Respondent, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent admits that it is a Delaware corporation engaged in the manufacture of conduits and cable at its facility in Pittsburg, California; that it has sold and shipped products in excess of $50,000 to customers located outside the State of California; and that it is an employer engaged in commerce and in operations affecting commerce within the meaning of the Act. On these admitted facts, I find that Respondent is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE UNION The Union admittedly represents a majority of the production and maintenance employees of Respondent's Pittsburg facility and is a labor organization within the meaning of Section 2(5) of the Act. I Violation of Sec. 8(aX ) is alleged only as a derivative violation. 493 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES The Union had negotiated a collective-bargaining agree- ment with Respondent for the 3-year period ending February 16, 1976. The agreement contained a provision for an employees' retirement plan that covered the period from February 16, 1970, to February 16, 1975. The agreement provided for automatic renewal of the retire- ment plan "for successive five year periods, unless either party shall give written notice to the other at least sixty (60) days prior to February 16, 1975 or any subsequent anniversary date of its desire to amend, modify, or terminate this plan." Joseph Ferrito, International representative for Local 2131, International Brotherhood of Electrical Workers (IBEW), wrote to Respondent Plant Manager James A. Metz under date of December 5, 1974, advising that "we are informing you that we would like to reopen for discussion on increasing Pension Plan benefits." 2 By letter dated December 19, 1974, Mr. Metz acknowledged Mr. Ferrito's letter and proposed that negotiations on pensions be postponed. His letter read in part: It is my suggestion, since no employee will have ten years seniority or be eligible for pension prior to the year 1977, that we defer negotiations on the pension plan until our present labor contract is negotiated, February 1976. With the deferral I would offer that all terms of the negotiated (1976) pension plan be retroactive to the anniversary date of the present plan, February 16, 1975. On January 10, 1975, Mr. Ferrito wrote back that the deferral of negotiations until February 1976 was agreeable with the understanding that "any Pension benefits negoti- ated in February 1976" would be made "retroactive to February 16, 1975." Collective bargaining began in January 1976. There were approximately 12 sessions extending over the period beginning in January and ending on March 1, 1976, when a contract-without any change being made in the employ- ees' pension plan-was concluded. Mr. Ferrito, the International representative of the IBEW, and Roger Langlois, business manager of Local 2131, represented the Union in the negotiations. Peter Johnson, senior vice president in charge of industrial and community relations for Triangle Industries, Inc., and Mr. Metz, plant manager for Triangle PWC, Inc., represented Respondent in the negotiations. Mr. Ferrito attended approximately 10 of the sessions, and Mr. Langlois attended about the same number. Either Mr. Ferrito or Mr. Langlois was present at every negotiating session. Accord- ing to Mr. Langlois, Mr. Ferrito "filled me in on meetings that I missed, and I filled him in on meetings that he missed." Mr. Johnson, the chief negotiator for Respondent, thought that he "attended every session in which formal negotiations took place through the mediation sessions"- 2 Mr. Ferrito administered the affairs of Local 2131 during a period the Union was under trusteeship before Roger Langlois took over as business manager for the Union in March 1975. :' At the last session the Company increased its previous offer by "2-1/2 cents." and a strike was terminated. Mr. Johnson authorized such offer during a telephone conversation with Mr. Metz. i.e., all of the sessions except the last one.3 Mr. Metz, who assisted Mr. Johnson in bargaining for Respondent, attended every meeting. A list of 35 proposals was submitted by the Union at the outset of the negotiations. The list contained no proposal relating to the pension plan, however. A "Memorandum of Agreement" (G.C. Exh. 4), which provided for increases in wages and other benefits but nothing in the way of pensions, was agreed to between the negotiating parties in mid-February 1976. Among the provisions of the memo- randum of agreement were these: I. General wage increase of 20 cents per hour 6. Company and Union to meet, study, and review the contents of all job classifications for the purpose of more clearly defining each job and correcting inequities that might exist. 7. Effective February 16, 1977, 30 cents per hour to be determined by the Union as wages, benefits, or wages and benefits. 8. Effective February 16, 1978, 30 cents per hour to be determined by the Union as wages, benefits, or wages and benefits. The membership of the Union rejected the proposals contained in the memorandum of agreement, however, and a strike followed. Two mediation sessions were held. Thereafter, a final bargaining session was held between the parties, and the strike was settled when Respondent offered "2-1/2 cents" more.4 According to Vice President Johnson, the negotiated contract gave the Union the option of deciding how the money was to be spent, and it elected to spend it as follows: They took it in a wage increase and they took it in medical benefits, they took it in work shoes, they took it in various other things, but not pensions. Following ratification of the negotiated contract, Mr. Langlois and Mr. Metz met together until sometime in May "to take the old contract and the new provisions and combine them and hammer out the new document." General Counsel's Exhibit 5 is such new document, which was referred to as the "working contract" between Respondent and the Union. Paragraph XVIII thereof provides that the life of the agreement is to be March 1, 1976, to March 1, 1979. Mr. Langlois said he signed the agreement in early May 1976, and Mr. Metz presumably signed it about the same time.5 Article XVI of the working agreement is concerned with "Pension Benefits." Section 1 thereof states that the "Triangle Retirement Plan shall become effective February 16, 1970," and section 2 provides that the "Triangle Retirement Plan shall continue in effect until February 16, 1975, and shall thereafter be renewed automatically for successive five (5) year periods, unless either party shall 4 The first proposal presented by the Company during the strike was rejected. The strike lasted for about 2 weeks. 5 Mr. Metz did not indicate when he signed the working agreement. 494 TRIANGLE PWC, INC. give written notice to the other at least sixty (60) days prior to February 16, 1975 or any subsequent anniversary date of its desire to amend, modify, or terminate this plan." Mr. Langlois gave this explanation of why the 1970 and 1975 dates appear in this part of a contract that was to have been effective in 1976: A. Well, at the time that we went through articles- went through each article in each section of the contract, Mr. Metz and I came to this article and we had no idea what status of negotiations were. We felt that the safest route would be to leave the old language as it was, because it was going to be considered retroactive for any benefits anyway. Q. Did someone say that to you? A. Yes, sir. Mr. Metz mentioned that it would all be retroactive anyway. Mr. Langlois added that during the period that he and Mr. Metz met for the purpose of supplying the language to be used in the new agreement "Mr. Metz intimated to me that he thought the hold-up" on the pension negotiation "was probably the fact that I wouldn't sign the ERISA document saying that it had complied with ERISA." 6 According to Mr. Langlois "at that point I said if that's the only hold-up, I'll sign the document" and did so. There is also in the record "a printed version" of the signed working agreement (G.C. Exh. 12). Section 2 of article XVI as it appears in the printed version indicates that the retirement plan is to remain in effect until March 1, 1980, and thereafter unless the prescribed 60-day notice is given by one of the parties. Mr. Langlois indicated that the Union did not use the printed version as the Company had undertaken to print it on its own without consulting him about it.7 During the period Mr. Langlois and Mr. Metz were working on the language to be used in the new contract, Mr. Langlois formally requested that the Company negotiate new pension benefits. On March 4, 1976, Mr. Langlois wrote to Respondent Plant Manager Metz as follows: I realize that we have just concluded one of the bitterest negotiations and strikes in the history of the Pittsburg Plant, however, there are members who are very concerned with still another issue, that being the Retirement Plan. The Union representative agreed to delay the negotiations of Pensions Benefits until the contract ended, I don't believe he agreed to ignore the plan altogether. Would you ... let me know when Triangle is able to meet to discuss increased benefits. "ERISA is an acronym for the pension reform law known as the Employee Retirement Income Security Act, enacted by Congress in 1974. 7 Mr. Metz indicated in his testimony that he and Langlois had a problem "in correcting the language" in the working contract in "two specific areas that we came to. There was no language covering the pension and the health insurance..... lAls far as typing and correcting the language. we would allow those items to stand and the pension plan would be corrected by the ERISA changes and the hospitalization and medical Mr. Langlois later wrote to Mr. Johnson on March 31, 1976, as follows: I have requested several times that Triangle Corpo- ration and Local 2131 negotiate the Pension benefits as described in Article XV. We agreed to postpone these negotiations until the contract negotiations, these have been successfully concluded. I await your reply. Neither the March 4 letter to Mr. Metz nor the March 31 letter to Mr. Johnson was answered. Mr. Johnon did address a letter to IBEW International Reprsentative Ferrito on June 30, 1976, which began: This will confirm the one item that was outstanding in our labor negotiations regarding your selection of group insurance coverage for the future. As I under- stand, your membership ratified the selection of the Kaiser Pemanente Medical Care Plan effective July 1, 1976. Mr. Johnson included this paragraph near the end of his letter: Since the above completes all of our obligations agreed to during the previous negotiations, I would look to have this matter finalized and signed at the earliest possible date. I am therefore assuming that this memo will serve to bind the parties on those items negotiated effective July 1, 1976, and the ultimate signing of our master agreement effective through February 15, 1979. Mr. Langlois responded to Mr. Johnson's June 30 letter to Mr. Ferrito on July 8, 1976, and pointed out: Your letter also makes reference to the "one" outstand- ing item in our Labor Negotiations. Apparently negotiations to determine the Retirement benefit level that was postponed until contract negotiations has been overlooked. This must be dealt with sooner or later. Can we set a date? Mr. Langlois said there was no response to his July 8 letter, but he did receive from Mr. Johnson a letter dated July 7, 1976, that read in part: I am attaching hereto a copy of the finalized draft of the pension plan between Triangle PWC and Local 2131 - I.B.E.W. While you did indicate that you preferred to have the changes between the plans noted, I believe that a full review is in the best interests of both parties. I have made my review of the plan and the changes required by E.R.I.S.A. and find that they are completely in order. . . .would be changed to comply with the Kaiser Permanente Plan." Thus. according to Mr. Metz, who made most of the changes in the dates in the working agreement, he and Langlois agreed to leave the dates with respect to pensions the same as they had been in the previous contract. Chief Company Spokesman Peter Johnson testified that he was responsible for making the changes in the dates in art. XVI of the pnnted contract as well as the "Kaiser Permanente change" therein. 495 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I can assure you that there has been no diminution of benefits and, in fact, the E.R.I.S.A. changes might very well have improved the employees status under the plan ... Since the Union's signature on this plan is necessary for I.R.S. approval, I would appreciate your review and return to this office at the earliest possible time. Should you have any questions on the attached, I would be pleased to discuss it with you. Mr. Langlois responded to Mr. Johnson's July 20 letter as follows: The assurances of "No Diminution of Benefits" does not amount to negotiation of said benefits. Mr. Ferrito extended the end date of this Pension Plan to accommodate Triangle Industries, I have signed docu- ments necessary to E.R.I.S.A. and do not intend to jeopardize the benefit level further for the I.R.S. Do you plan to meet with me on this matter to decide on an increase or not? Mr. Langlois testified that the July 20 letter also went unanswered. Mr. Langlois and Mr. Ferrito testified for the General Counsel, and Mr. Johnson and Mr. Metz testified for Respondent. Each gave his version of what transpired during the negotiations. Mr. Langlois thought that it was "implied" that pension benefits were to be discussed after contract negotiations were concluded. He indicated that the Union's position was that "retirement could be dealt with at sometime other than when the pressure was to on to have the contract negotiated." He acknowledged on cross- examination, however, that it was understood that pensions were to be discussed during the contract negotiations and that he had heard, through Mr. Ferrito, that Respondent's principal negotiator, Peter Johnson, had referred to an economic "package" during the negotiations, indicating "that any increased benefit of any kind would have to come out of the same pie." 8 Mr. Langlois said he did not bring up the subject of pensions during the negotiations, except that he did say to the "committee on the other side" that he intended to negotiate new retirement benefits when the 40-page ERISA document was presented by Mr. Johnson toward the end of the negotiations. His remark, he said, provoked no response. He declined to sign the ERISA document when it was first presented but, as has been noted, did so later. Respondent's principal spokesman, Peter Johnson, ex- pressed the view that the employees at Respondent's Pittsburg plant considered pensions "not important at this time" due to their average age and their average seniority. He testified that he first raised the issue of pensions himself at the second bargaining session, but there was no response from the Union: "they sat there, they listened, and they didn't even call a caucus." He believed that the Union's International representative, Mr. Ferrito, next brought the subject up about "mid-way" and again about "2/3rds of the way through the negotiations," but, Johnson added, the " Testifying on rebuttal, however, Langlois said he did not understand that retirement benefits would have to come out of the "whole pie." Union never presented any specific proposal with respect to the retirement plan. Mr. Johnson agreed that Mr. Langlois raised the issue at the end of the negotiations when the ERISA document was presented to Langlois for signature. Mr. Johnson gave this account of the incident: And I said, "We need your signature on this. We need it because the government requires it, and we need it for IRS approval of our plan." He said, "Let me take it with me." He said, "Incidentally, what about the pension plan? When are we going to negotiate it?" I said, "Wait a minute. Don't bargain with me. The pension plan, if it is going to be part of this thing, then it should have been part of this thing. If you want to have it as a part of it, then sit down and we will renegotiate it, but don't come back to me and ask me about the pension plan." Mr. Johnson testified that he had engaged in "package bargaining" during the negotiations which he explained as follows: Well, what I would do would be to again draw the circle and then I would just write on the left hand side of the circle "wages," "group insurance," "pensions," "dental," right on down. Anything you want. You want this, here. Whatever it amounts to, whatever piece of pie it takes. If you want this and it is the whole pie, you take the whole pie. This is how I negotiate. He said he also explained during the negotiations that he would have to "cost out" any specific union proposal, but he did not do so with respect to pensions since none was ever put forward on the subject.9 Mr. Ferrito, the IBEW International representative, thought the retirement plan was first brought up by himself, not Mr. Johnson, "around the sixth bargaining session." According to Mr. Ferrito, Mr. Johnson at that point acknowledged that "he was fully aware of' the fact that pension benefits were to be negotiated and that "he would be coming back to us with something." It was also Mr. Ferrito's recollection that it was he who raised the question again at the next-to-last-day of negotiation before the strike occurred, when the ERISA document was presented, and finally once more on the following day. Mr. Ferrito said he reminded Mr. Johnson at that time, the last day negotiations were held before the strike, that "we hadn't discussed anything at all regarding the pension program." Mr. Ferrito recalled Mr. Johnson's reaction as follows: A. He says any increased benefits that you are looking for would have to come out of the pie; the pie being this diagram that he kept drawing on the board showing us where monies and benefits were going, and so forth and so on. Q. Did he refer to the same pie on more than one occasion? A. I believe he did. 9 Testifying on rebuttal, Langlois disputed the assertion by Mr. Johnson that he had called for union proposals on pension benefits. 496 TRIANGLE PWC, INC. Q. Did he refer to the same pie in reference to other benefits such as dental benefits or health benefits? A. Yes. Q. Was there any other discussion of the retirement plan at this time? Was there any response made to Mr. Johnson's statement? A. Well, we told him we were unhappy with the fact that we hadn't discussed anything, and in our view, we hadn't entered into any meaningful negotiations - meaningful or unmeaningful for that matter. Mr. Ferrito did concede that the Company had not "agreed" to negotiate increased pensions after the contract negotiations had been concluded.' ° Discussion There is no question about the fact that retirement benefits are a mandatory subject of bargaining and that an employer violates Section 8(a)(5) of the Act by refusing to bargain on such an issue. See Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203 (1964); Inland Steel Company v. N.LR.B., 170 F.2d 247 (C.A. 7, 1948), cert. denied 336 U.S. 960 (1949); T. T.P. Corporation Jarn Handy Productions Division, etc., 190 NLRB 240 (1971). The duty to bargain about unwritten terms dealing with "wages, hours and other conditions of labor" is a continuing one. Long Lake Lumber Company 160 NLRB 1475 (1966). Respondent contends that it did not unlawfully refuse to bargain with the Union on the issue of improved retirement benefits but was available and willing to bargain on the issue up until the signing of the collective-bargaining agreement on March 1, 1976. Respondent asserts that the Union, on the other hand, showed no interest on the subject and refused to pursue the subject. In short, Respondent argues that the Union waived its right to negotiate any improved pension benefits. The General Counsel contends, however, that the Union did not waive its right to bargain for improved pension benefits, and Respondent has refused to do so in good faith. According to the General Counsel, two separate negotiations were contemplated-one for the collective- bargaining agreement and one for improved retirement benefits. The General Counsel maintains that Respondent has sought "to avoid and sidestep negotiations relating to retirement." In its decision in The Press Company, Incorporated, 121 NLRB 976, 977-978 (1958), the Board stated: It is well established Board precedent that, although a subject has been discussed in precontract negotiations and has not been specifically covered in the resulting contract, the employer violates Section 8(a)(5) of the Act if during the contract term he refuses to bargain, or "' Mr. Metz testified that he had not indicated to either Mr. Ferrito or Mr. Langlois that the Company would defer negotiation of pension benefits until after the 1976 collective-bargaining agreement was concluded. " The Board's footnote for this proposition read: "See Tide Water A iocialed Oil Co;mpant. 85 NLRB 1096: Jacobs Manufacturing Companr, 94 NLRB 1214: Vash-Finch Comparon. 103 NLRB 1695: International News Serviwe Divivion of The Hearst Corporation, 113 NLRB 1067." See also the Board's discussion of waiver in New York Mirror, 151 NLRB 834( 1965). I` In Radioear. supra, the Board said [at 363. citing its initial Decision] it takes unilateral action with respect to the particular subject, unless it can be said from an evaluation of the prior negotiations that the matter was "fully discussed" or "consciously explored" and the union "consciously yielded" or clearly and unmistakably waived its interest in the matter. The courts have consistently held that the relinquishment of a union's right to bargain on mandatory subjects must be in "clear and unmistakable" language. N.L R.B. v. The Item Company, 220 F.2d 956 (C.A. 5, 1955), cert. denied 350 U.S. 836; The Timken Roller Bearing Company v. N.L.R.B., 325 F.2d 746 (C.A. 6, 1963), cert. denied 376 U.S. 971 (1964); N.LR.B. v. Perkins Machine Company, 326 F.2d 488, (C.A. I, 1964). "Silence in the bargaining agreement . . . does not meet the test," Timken Roller Bearing Co., supra. The Board has more recently stated that it would not "apply a rigid formula to the question of the employer's bargaining obligation after a contract has been reached," Radioear Corporation, 214 NLRB 362 (1974), but will, instead, look "to a variety of factors, including the evidence of contract negotiations, the precise working of the relevant contractual provisions, and the completeness of the bargaining agreement," Bancroft-Whitney Co., Inc., 214 NLRB 57 (1974)i12 Having considered the terms of the working agreement, as well as the facts and circumstances surrounding its negotiation, I conclude that the Union did not waive its statutory right to bargain on the issue of improved pension benefits. It is significant, first of all, that there was no "zipper" or "wrap-up" clause included in the working agreement that suggests that the agreement is the full and complete expression of the parties. This is entirely consistent, of course, with the position of the General Counsel that the parties contemplated discussion of changes in the Compa- ny's pension plan after the collective-bargaining agreement had been concluded. This is not to suggest, however, that the inclusion of a zipper or wrap-up clause alone would have constituted a waiver of the Union's right to bargain on the pension issue. See, for example, The Bunker Hill Company, 208 NLRB 27 (1973). The issue of improved pension benefits was certainly not fully discussed or consciously explored by the parties. There was no agreement reached on the issue of pensions at all. While the parties did not expressly agree to pursue the subject of pensions after the collective-bargaining agreement had been negotiated, I am of the view that both were of that mind. Mr. Langlois and Mr. Ferrito were both under the impression that pension negotiations would follow, and Mr. Metz seems to have conceded as much. Mr. Langlois and Mr. Metz, who were called upon to supply the appropriate language in the new contract would consider such factors (also mentioned in its prior decision in the case. 199 NLRB 1161 (1972)) as: "(a) the precise wording of, and emphasis placed upon. any zipper clause agreed upon; (b) other proposals advanced and accepted or rejected during bargaining; (c) the completeness of the bargaining agreement as an 'integration'-hence the applicability or inapplicability of the parol evidence rule; and (d) practices by the same parties, or other parties, under other collective bargaining agreements." 497 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consistent with what had been agreed upon, were uncertain what they should do about the pension provision. They were uncertain about the effect of the ERISA document and what dates to insert. The language and dates used in the prior agreement were retained in the working agree- ment, but Mr. Johnson ordered the printing of the agreement with a new 1980 expiration date. 13 Mr. Johnson was naturally interested in keeping the cost of wages and other employee benefits, including pensions, at a level that the Company could afford. He utilized the "package" or "pie" bargaining technique with that thought in mind. No doubt he hoped that he could dispose of the pension issue during the negotiations of that collective-bargaining agreement if he could, but he was unable to do so.' 4 While asserting at one point in its brief that there had been bargaining on the issue of pensions, Respondent indicates elsewhere that the Union was not interested in the subject, at least not until after the working agreement was signed. Citing N.L.R.B. v. Columbian Enameling & Stamp- ing Co., Inc., 306 U.S. 292 (1939), Respondent contends that it was not required to bargain as it was not asked to do so until after March 1, 1976, when the working agreement was signed. However, Respondent's argument assumes, incorrectly, that there had been bargaining on the subject of pensions prior to March 1 and that the working agreement signed on that date represented a complete agreement that wrapped up all subjects to be negotiated, including improved pension benefits. 5 There was no doubt "hard bargaining" on other issues but no real bargaining on the issue of pensions either before March I when the Union admittedly sought only to dispose of more pressing issues or thereafter because Respondent refused to do so. Respondent contends that Nevada Cement Company, 181 NLRB 738 (1970), decided "the very issue" involved here and asserts, in fact, that Respondent's position is even "stronger since it did discuss pensions .... " The Nevada Cement case, however, is inapposite. The parties in that case had, in 1967, negotiated and agreed to a collective- bargaining contract, which was to expire on May 1, 1970, but contained a paragraph that provided that a "supple- mental income plan," referred to as SIP, "shall continue until May 1, 1968." The union, which had declined to execute the negotiated agreement, thereafter in February and March 1968 sought to have the company bargain ':1 Federal approval of the employee retirement plan required the signature of a union official on the ERISA document, but the ERISA document was not involved in the issue of bargaining with regard to increased pension benefits. 1I This is not a case like Medicenter, Mid-South Hospital, 221 NLRB 670 (1975). where the employer was "eager" to bargain and the "Union was content do do nothing but protest." Neither Mr. Ferrito nor Mr. Langlois recalled that Johnson brought up the subject of pensions as he had claimed. 15 In Columbian Enameling, supra, a new collective-bargaining agreement had not been negotiated after the union began to make "various demands" on the company as here. Further, the president of Columbian Enameling & Stamping Co. had met with Department of Labor conciliators during a strike and expressed a willingness to confer with representatives of the union, but the latter gave no expression of a desire to negotiate for "some days." Certainly, Respondent was not "available and willing" to discuss pensions after March 1, the date the working agreement was signed, even though the agreement did not reflect any understanding of the parties on that subject. Thus. it cannot be said that Respondent bargained in good faith on improved pension benefits after that date. about the supplemental income plan. Understandably, the Board's Trial Examiner found that the union had waived its right to negotiate and bargain about SIP. Said the Trial Examiner [at 741], whose ruling was affirmed by the Board [at 741 ]: Here the contract found by the Board to have been the actual agreement of the parties specifically included SIP and specifically provided that the contract could not be reopened until 1970. Patently inclusion of the specific subject matter in the contract constitutes the most clear and unmistakable evidence possible, and parties should not be permitted, contrary to the specific provisions of their contracts, to insist upon bargaining about a subject matter specifically included therein. . . . [T]he Board in the prior proceeding specifically found that the written contract submitted by Respon- dent embodied the terms of the agreement arrived at between the parties, that no representative of the Unions had ever questioned the wording or language of such written contract, and that the Unions had violated the Act by refusing to sign such written contract. Clearly an employer cannot be found guilty of refusing to bargain about a subject matter specifically covered by a contract found to be the current agreement of the parties by the Board, which specifically provides that it cannot be reopened until 1970 .... In the case at bar, the Union has not insisted that Respondent bargain on pensions at a time when the contract did not allow it. Nor does the new working agreement negotiated between the parties reflect any agreement on the subject of pensions. t6 Based upon the foregoing, and the entire record, I find that Respondent, commencing on or about March 4, 1976, and continuing thereafter, violated Section 8(a)(5) and (I) of the Act by refusing to bargain with the Union with respect to improved pension benefits. Based upon the foregoing, and the entire record, I make the following: CONCLUSIONS OF LAW I. Respondent Triangle PWC, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Nor does N. LR.B. v. Benne Katz d/b/a Williamsburg Steel Products Company, 369 U.S. 736 (1962), cited by Respondent. require a different holding. The Supreme Court in that case simply held that an employer's unilateral changes in employment conditions under negotiation constituted a violation of Sec. 8(aX5) of the Act. i6 International News Service Division of the Hearst Corporation, 113 NLRB 1067 (1955), also cited by Respondent. is likewise inapposite and of no assistance to Respondent. There the charging party union sought dunng the term of an existing contract certain employee "information" which it had originally sought at the beginning of the negotiation of the contract but later abandoned before a complete agreement was consummated. The Board majority's description of that case as one involving "a situation . . . in which it was shown that the parties not only bargained pro and con with respect to an information clause, but also, having come to terms on the matter, inserted in their contract, not what one party originally sought, but a measure that compromised their differences," sufficiently distinguishes the case from the instant matter. 498 TRIANGLE PWC, INC. 2. Local 2131, International Brotherhood of Electrical Workers, the Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of the Respondent at its Pittsburg, California, plant, excluding all office clerical employees, guards, 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. At all times material herein the Union has been the exclusive representative of all the employees in the aforesaid bargaining unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about March 4, 1976, and at all times thereafter, to bargain collectively with the above- named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act, I shall recommend that it cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. [Recommended Order omitted from publication.] 499