Triangle PWC, Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1977

231 N.L.R.B. 492 (N.L.R.B. 1977)

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