Du Quoin Packing Co.

National Labor Relations Board - Board Decisions

Jun 24, 1970

183 N.L.R.B. 1059 (N.L.R.B. 1970)

DU QUOIN PACKING COMPANY 1059
Du Quoin Packing Company and Local P-156
Amalgamated Meat Cutters and Butcher Work-
men of North America , AFL-CIO. Case
14-CA-5263
June 24, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On January 21, 1970, Trial Examiner William J.
Brown issued his Decision in the above -entitled
proceeding , finding that it was unnecessary to de-
cide whether the Respondent had engaged in the
unfair labor practices alleged in the complaint, and
recommending that the complaint be dismissed in
its entirety, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the General Counsel
and the Charging Party filed exceptions to the Trial
Examiner 's Decision together with supporting
briefs, and Respondent filed cross-exceptions to the
Trial Examiner's Decision together with a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this case, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent
consistent herewith.
The complaint alleges that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by uni-
laterally instituting and maintaining in effect a wage
incentive system during the term of and in modifi-
cation of the existing collective-bargaining agree-
ment between the Respondent and the Union, and
by failing to consult and bargain with and reach the
agreement of the Union concerning such incentive
plan. The current agreement extends to September
1971 and provides for the minimum hourly wage
rates for all classifications of employees paid on an
hourly, daily, or weekly basis. It also provides for
the adjustment of grievances by a four-step
procedure that terminates in binding arbitration.
At a grievance committee hearing on July 14,
1969, the Respondent informed the union represen-
tatives that it was about to install an incentive com-
pensation plan for the six employees of the sliced
bacon department, effective July 21. The plan was
placed in effect on July 21, and the Union filed a
grievance protesting the installation of the plan as a
violation of the collective-bargaining agreement.
The Trial Examiner dismissed the complaint,
thereby leaving the parties to their voluntarily
established dispute settlement procedures.
For the reasons set forth below, we agree with
the Trial Examiner's dismissal of the complaint.'
As indicated in the Trial Examiner 's Decision, on
July 14, 1969, the Respondent's representatives
and the Union's representatives met on a grievance
unrelated to the issues herein. Near the conclusion
of the discussion on the grievance, Respondent in-
formed the Union that it was about to install an in-
centive compensation plan for the six employees
working in the sliced bacon department effective
July 21, 1969. At issue is the statement allegedly
made by Union President Stephens at the time of
the announcement by English, the Respondent's in-
dustrial relations director.
According to English's testimony, which was
credited2 by the Trial Examiner, President Stephens
asked if the Respondent didn't have to bargain with
the Union concerning the plan, and English in-
dicated his willingness to do so. Stephens noted that
the International's industrial engineer would have
to look at the plan. English testified that Stephens
did not oppose putting the plan into effect, and that
he stated that the Respondent had a right to put the
plan in effect, but that it would have to bargain
with the Union about the plan.
The next committee meeting was held on July 21,
1969. John Hyche, the International field repre-
sentative, was present. After the union representa-
tives asked questions, they filed a grievance. The
Respondent was willing to answer the Union's
grievance at the meeting but , at the Union's
request, the Respondent delayed its answer until
the International 's industrial engineer had a chance
to come down and study the plan. Mr.
Neiderdeppe , the International 's industrial en-
gineer , arrived on August 13, discussed the incen-
tive plan, and indicated that he saw nothing wrong
with it. When English asked if they had an agree-
ment about the incentive plan, the International
representative indicated they would have to wait
for a written report from the industrial engineer. As
I Member Brown would affirm the Trial Examiner 's findings for the did not credit , Stephens replied to English that the proposed change would
reasons stated by the Trial Examiner in his Decision
' According to Union Committeeman Biby, whom the Trial Examiner
183 NLRB No. 108
have to await negotiation time
427-258 O-LT - 74 - 68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meeting broke up, Hyche told English to write
up the rules and regulations and to let him have a
copy. On September 3, English sent Hyche a copy
of the plan.
On August 26, the union committeemen asked
the Respondent to extend the time limit for the
Union's expression of a desire to arbitrate a
grievance which dealt with the incentive plan.3 The
Respondent extended the time. At that time, one
committeeman asked where the Respondent was
going to put the incentive plan into effect next. No
one requested the Respondent not to put the plan
into effect, nor did the Union ask that the plan be
rescinded.
There was another meeting on September 10, in
which the incentive plan was discussed further and
the committee recessed to work up language. En-
glish sent a copy of the revised language to Hyche
on September 11, 1969. A September 22 meeting
was rescheduled for October 7. Hyche asked that
the committee table processing the grievance until
November 1, and that possibly a solution could be
worked out without a hearing or arbitration. The
October 28 meeting was postponed until November
12.
After October 28, English called Hyche to seek
an agreement to avoid the impending hearing or ar-
bitration. There was a meeting on November 6. En-
glish once again stated he would like an agreement
but he was told there was no chance of reaching an
agreement at that time.
The Respondent met again with the Union on
November 10. At that time, the Union advised the
Respondent that they would like to go to arbitra-
tion on a grievance. The grievance noted that the
wage incentive plan put into effect by the Respon-
dent on July 21, 1969, is in violation of the current
contract. The Union, while not indicating its ap-
proval of the incentive plan at the meeting on July
14, did not indicate its opposition. The Union at no
time requested that the incentive plan be discon-
tinued.
Union Committeeman Leslie Biby admitted that
when the committeemen asked the Respondent to
negotiate with respect to the incentive plan, English
responded that they would supply all of the infor-
mation , that the Respondent would negotiate, and
that they would allow the Union's industrial en-
gineer to come into the plant and study the jobs.
Biby testified further that during the period of time
that they were meeting concerning the incentive
plan, the committeemen received copies of infor-
mation from the Respondent.
As a general rule, a union's statutory right to be
notified and consulted concerning any substantial
change in employment may be waived only if such
waiver is expressed in clear and unmistakable
terms, and such waiver will not lightly be inferred.
However, in view of the foregoing, we find, after an
evaluation of the negotiations, that the Union and
the Respondent fully discussed the wage incentive
plan that was announced by the Respondent at the
July 14, 1969, meeting with the grievance commit-
teemen, and that the Union unmistakably waived its
interest in formal negotiation of the matter.
As noted above, at the time that English in-
troduced the incentive plan at the July 14 meeting,
Union President Stephens stated that the Respon-
dent had a right to put the plan in effect, but that
the Respondent would have to bargain about the
plan; Stephens noted that Mr. Neiderdeppe, the In-
ternational's industrial engineer, would have to
look at the plan; the Union did not express any ob-
jection to the plan and asked when the plan was
going to be put in effect; the Union's industrial en-
gineer studied the incentive plan data at the plant
and indicated that he saw nothing wrong with the
plan; Hyche, at the August 13 meeting, told English
to write up the rules and regulations and to let
Hyche have a copy; and the Union did not ask that
the plan be rescinded, but rather asked where the
Respondent was going to put the incentive plan into
effect next. The record evidence supports a finding
that the Union was concerned, not with the adop-
tion of the incentive plan, but with the revision of
some of its language, as indicated by Hyche's sug-
gested changes in the language.
Additionally, we find that the record evidence
supports a finding that the Respondent bargained
with the Union concerning the incentive plan in
view of the Respondent's timely notice at the July
14 meeting to the committeemen, some of whom
had participated in the negotiations for the current
contract, of its intention to install the incentive plan
on July 21; the Respondent explained tha plan in
detail to the committeemen and distributed
typewritten material explaining the incentive plan;
the Respondent offered to negotiate and to supply
all relevant information; the Respondent's industri-
al engineer explained the plan; the Respondent of-
fered to allow the Union's industrial engineer to
come in to the plant to study the plan; the Respon-
dent met with the committeemen on July 21, and
with Hyche, the International representative; the
Respondent honored Hyche's request to allow
Neiderdeppe, the International's industrial en-
3 On August 20, 1969, Stephens quit the Respondent's employ and
resigned his union office He did not testify at the hearing
DU QUOIN PACKING COMPANY
gineer, to study the plan and he subsequently found
nothing wrong with the plan on August 13; English
gave each member of the committee copies of the
incentive plan on August 26; the Respondent met
with the committee on September 10, and the com-
mittee recessed to work up language; the Respon-
dent discussed the incentive plan at meetings on
October 7 and November 6; and a final meeting
was held on November 10, 1969, at which time the
Union notified the Respondent that it would like to
go to arbitration over the, incentive plan. The
record supports the Respondent's contention that
the Union did not reject the proposal; the Respon-
dent and the Union have been negotiating the is-
sues and questions arising from the introduction of
the incentive plan; and the Union had agreed to the
introduction of the plan, notwithstanding its dif-
ficulty with language that was subsequently
changed pursuant to the Union's recommendations.
We conclude, therefore, that the Respondent's
conduct did not constitute, under the circum-
stances herein, a violation of Section 8(a)(5).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and hereby is,
dismissed.
TRIAL EXAMINER'S DECISION
WILLIAM J. BROWN, Trial Examiner: This
proceeding under Section 10(b) of the National
Labor Relations Act, as amended, hereinafter
referred to as the Act, came on to be heard at Pink-
neyville, Illinois, on November 13, 1969.' The un-
derlying charge of unfair labor practices had been
filed on August 15 by the above-indicated Charging
Party, hereinafter referred to as the Union, and the
complaint herein was issued September 26 by the
General Counsel of the National Labor Relations
Board, acting through the Board's Regional
Director for Region 14. It alleged, in addition to ju-
risdictional matter, that the above-indicated
Respondent, hereinafter sometimes referred to as
the Company, engaged in unfair labor practices
defined in Section 8(a)(5) and (1) of the Act. The
Company's duly filed answer has denied the com-
mission of the unfair labor practices alleged in the
complaint; its brief calls for dismissal of the com-
plaint in deference to available, and invoked, ar-
bitration procedures.
' Dates hereinafter, unless otherwise specified, relate to the year 1969
1061
At the hearing the parties appeared and par-
ticipated as noted above with full opportunity to
present evidence and argument on the issues. Sub-
sequent to the close of the hearing, briefs were
received from all parties and have been fully con-
sidered. On the entire record herein, and on the
basis of my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The pleadings and evidence establish that the
Company is a corporation organized under the laws
of the State of Illinois with its principal office
located at Du Quoin, Illinois , where it operates a
meat packing plant. At its Du Quoin plant the
Company annually receives, directly from points
outside the State of Illinois, goods valued in excess
of $50,000 and annually ships, directly to points
outside the State of Illinois , goods valued in excess
of $50,000. I find, as the Company concedes, that it
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings and evidence establish that the
Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
At its Du Quoin packing plant, there are some
300 employees in about 14 departments. The
Union has been recognized as exclusive bargaining
representative of employees engaged in production,
maintenance, and delivery operations since 1941.
The currect agreement extends to September 1971,
and contains union-shop and checkoff clauses. It
also provides for the adjustment of differences as to
the meaning and application of any provisions of
the Agreement or of any local trouble of any kind.
These grievance procedures terminate in binding
arbitration. The agreement also establishes
minimum hourly wage rates for the several classifi-
cations of employees.
The Company's management hierarchy includes
J. T. English, industrial relations director, William
G. Brown, industrial engineer; and Charles N.
Baughman, personnel director. Union representa-
tives, at times herein material, including Local
Union President Stephens,' Committeemen Leslie
Biby, Walter Mohr, and Eugene Commeans; Union
International Representative John Hyche and Inter-
national Union Industrial Engineer Skip
Neiderdeppe, also participated on behalf of the
Union in events herein involved.
x Stephens quit the Company's employ August 20 and resigned his union
office
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 14 company and union representatives
met on a grievance unrelated to the issues herein
and, at the conclusion of discussion on the
grievance, English informed the union representa-
tives that the Company was about to install an in-
centive compensation plan for the six employees of
the sliced bacon department effective July 21. Ac-
cording to Biby, Stephens, who did not testify,
stated that such a change would have to await
negotiation time; English testified that Stephens
said that the Company had the right to install the
plan but would have to bargain thereafter. I credit
English's account on this.
On July 21 the plan was placed in effect in the
sliced bacon department and at the outset of a
meeting of the parties that afternoon, the Union
filed a grievance protesting the installation of the
plan as a violation of the collective-bargaining
agreement. In the course of this meeting it was ex-
plained to the union representatives that the plan
would not result in any employee's earning less
than the hourly minimum established in the collec-
tive-bargaining agreement. Both Hyche and
Stephens took the position that the plan should
have been negotiated with the Union prior to its in-
stallation. In addition, Hyche voiced certain
specific objections to the plan itself.
The next meeting of the parties took place in the
afternoon of August 13. On the morning of that
date the Union's industrial engineer, "Skip"
Neiderdeppe, and Stephens had discussed the plan
with Brown, Baughman , and English. I credit
Brown's testimony that Neiderdeppe, who did not
testify, stated that the plan was adequate and the
best one for the particular industry and that he had
no objections to it. In the course of that meeting
the Company furnished a written reply to the union
grievance to the effect that it believed it had not
violated the agreement, and agreed to provide the
Union will all the relevant information for negotiat-
ing purposes.
On August 26 the parties met for discussion of
the Union's grievance. The Union had permitted
the 10-day period for demanding arbitration,
established in the agreement, to lapse without such
demand and the Company agreed to waive the
limitation to permit arbitration of the grievance. In
the course of this meeting the Company announced
its intention of installing the incentive plan in the
beef kill floor and, when Commeans asked where it
might be installed after that, English stated that it
would probably be in the luncheon meat and
'GC Exh 3
wiener package line. No objection was voiced at
that meeting to the proposed extension of the plan.
The plan was made effective respecting the beef kill
department's 18 employees on September 8.
On September 10 the parties met and discussed
union objections to the Company's draft incentive
plan. Certain additional language was drafted by
the Company to meet certain union objections and
the language was presented to the Local Committee
and mailed to Hyche. It was agreed to meet again
on September 22 but this date was, at Hyche's
request, postponed to October 7 when the plan and
the grievance were discussed and the union
representatives requested a further postponement
to November 1. On October 29 the Local Union
Committee asked further delay on their grievance
until November 12, and the Company agreed. On
November 6, however, a meeting was held at
which, although no specific union proposals were
advanced, Hyche took the position that the plan
should have been negotiated. On November 10 the
Local Committee requested that the parties
proceed to arbitration. Biby's testimony indicates
that the parties are proceeding with the arbitration.
I agree with the Company that the factors held
material in the Board's Decision in Jos. Schlitz
Brewing Company, 175 NLRB 141, are present in
the instant case and that, without adjudicating the
merits of the controversy, the complaint should be
dismissed in its entirety, leaving the parties to their
voluntarily established dispute settlement
procedures.
On the basis of the foregoing findings of fact and
upon the entire record in this case, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. The Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within the
purview of Section 2(5) of the Act.
3. In the circumstances of this case it would not
effectuate the policies of the Act to issue any
remedial order.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law it is recommended that the com-
plaint herein be dismissed.