Eaton Yale & Towne Inc.Download PDFNational Labor Relations Board - Board DecisionsMay 21, 1968171 N.L.R.B. 600 (N.L.R.B. 1968) Copy Citation 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Unit Drop Forge Division Eaton Yale & Towne Inc. and Local No. 407 , International Union , United Automobile , Aerospace and Agricultural Imple- ment Workers of America , UAW-AFL-CIO. Case 30-CA-572 May 21, 1968 DECISION AND ORDER On September 29, 1967, Trial Examiner Benjamin B . Lipton issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices al- leged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Deci- sion and a supporting brief, and Respondent filed a brief in support of the Decision. 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, the briefs, and the entire record in the case , and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent con- sistent herewith. The Trial Examiner found that Respondent did not engage in conduct in violation of Section 8(a)(5) of the Act as Respondent's contract with the Union "sanctioned" the former's unilateral ac- tion in (1) changing the method of handling and loading forgings by the installation of new equip- ment, (2) eliminating the classification of shipping loader, an incentive rated position, and (3 ) reclassi- fying the loading employee as an hourly rated in- dustrial truckdriver. The Trial Examiner also gave as an additional or alternative ground for dismissal of the 8(a)(5) allegation the absence of Respon- dent animus toward the Union and the availability of established grievance-arbitration machinery for the resolution of the dispute which involved in- terpretation of the contract. We do not agree with these findings of the Trial Examiner. As indicated in the Trial Examiner's Decision, Respondent representatives and the Union's grievance committee held weekly meetings at which they presented grievances and discussed sub- jects such as bumping rights and shift preferences. All dates herein are for 1967 ' However, until the changeover was complete, S7alacnski was to he paid the incentive rate « henever required to handle forgings in the old manner ' The Union did not at this time or on any subsequent occasion invoke the grievance -arbitration procedure with respect to this subject 171 NLRB No. 73 Near the close of the meeting held on March 31,' David H. Langeland, employee relations manager, announced for the first time the following change in the shipping room effective April 10: Respondent would begin using a scale that had been installed in the shipping room for weigh-counting forgings, and would gradually "do away" with the "antiquated method" of handling and counting each forging that was to be shipped to or from the plant. The classification of "shipping loader" would be eliminated and the full-time employee in that posi- tion, Joseph Szalacinski, who was being paid on an incentive basis, would continue working in the shipping room but would be classified as an hourly rated industrial truckdriver.'2 Local President Alfred Gruenwald and the other union representatives in- sisted that Respondent could not institute such changes without prior discussion and negotiation with the Union. Langeland replied that the Com- pany had the right to make the changes and that there was nothing further to discuss. Langeland also asserted that the Union could, if it so wished, file a grievance as the matter was subject to the grievance procedure provided in the contract.3 At the April? meeting, Jim Lukasavitz, chief steward of the Union, demanded discussion of the proposed change. When Langeland refused, Gruen- Wald cited article III, section 6, of the supplementa- ry agreement of Respondent and the Union which provides that "before any changes in these incen- tive plans are made or new plans established, they will be agreed upon by the parties." Gruenwald further stated that the Company had no right "to arbitrarily change the contract without talking with the Union." Landeland answered, "why should we talk anything over with the union, the union never agrees with us, anyway." On May 1, Gruenwald again requested that Respondent "sit down and talk to someone in the bargaining committee" about the change which had already gone into effect on April 10. Langeland replied that the parties had already talked about it. As noted above, the contract provides specified incentive rate schedules under which shipping loader functions are paid on a "man-hour daily ba- sis" for the total tonnage handled. Prior to April 10, most of this work was performed full time on the first shift by Szalacinski who, as noted above, was classified as a shipping loader for about 8 years." When the inspected forgings were brought to the dock by the industrial truckdrivers, Szalacin- ' Four additional employees in such classifications as inspector and in- dustrial truckdriver, namely, Ronnie Jatimski, Jim Nelson, Wayne Wenka, Gary Plewa, performed part-time loading work on various shifts for which they were paid the incentive rate The record also shows that a smaller amount of loading work was done by four other unnamed employees UNIT DROP FORGE DIVISION ski carried out his responsibility of getting the forgings "ready for shipment out the door" by physically handling, counting, loading, and moving the individual forgings, with the assistance of a fork- lift truck as needed. Although Szalacinski was newly classified as an hourly rated industrial truckdriver as of April 10, he nevertheless con- tinued to work in the shipping room where he han- dled forgings in bulk rather than individually. Thus, the forgings were brought up to the dock in boxes, skids, or wooden containers, and were weighed, tagged , and loaded for shipment. However, Szalacinski received the incentive rate when he handled some forgings by the old method. As shown by the charts appearing in the Trial Ex- aminer 's Decision , Szalacinski's average hourly in- centive earnings for the 3 months prior to April ranged from $4.78 to $4.85 as compared with $3.13 for June by which time the proportion of work performed and paid for on an incentive basis had sharply decreased.' As the Trial Examiner found , it is undisputed that Respondent acted unilaterally in changing the method and equipment for the handling of forgings in the shipping department, thereby affecting the working conditions and reducing the earnings of the employees who devoted all or part of their time to doing shipping loader work. The Trial Examiner reasoned as follows in finding meritorious Respon- dent's defense which rests exclusively upon the terms of its collective-bargaining agreement with the Union: Paragraph 116 of the contract' contains in specific language the form of an unusually broad waiver of bargaining rights and goes well beyond the phrasing of the type of "wrap-up or zipper clause" which the Board has found insufficient to constitute a clear waiver of a statutory right. The Union expressly and consciously waived in para- graph 116 its statutory bargaining rights where the subject is covered or referred to in the contract, or where it is fairly implied that the subject, although not specifically mentioned, is within the general embrace of the agreement. Respondent's unilateral action was also in accordance with the other provi- sions of the contract which permitted it to reestablish a production rate or change an incentive rated job due to a technological change in method and equipment. As the Trial Examiner correctly states, a union's statutory right to be notified and consulted con- ' It appears that there was it corresponding decline in the earnings of the other employees who had done loading work on a part-time basis " See the Trial Examiner's Decision for the text of this and other contrac- tual provisions referred to herein 601 cerning any substantial change in employment may be waived by contract, but such waiver must be ex- pressed in clear and unmistakable terms , and will not lightly be inferred.' We also agree with the Trial Examiner that the mere existence of contrac- tual grievance and arbitration procedures will not by itself warrant a finding that the union waived its right to bargain on changes planned by the em- ployer. However, we do not agree with the Trial Examiner that paragraph 116 or other provisions of the contract in the instant case constitute a clear waiver of the Union's right to be consulted about Respondent's change in the mode of operating its shipping room. In Rockwell-Standard,' which involved a waiver provision identical to the one herein, the Board adopted the Trial Examiner's finding that "even when a `waiver' is expressed in a contract in such broad, sweeping terms ... it must appear from an evaluation of ... negotiations that the particular matter [in issue] was fully discussed or consciously explored and the union consciously yielded or clearly and unmistakably waived its interest in the matter." Applying this test to the situation herein, it does not appear from the record or the various con- tractual provisions alluded to by the Trial Examiner and analyzed herein that the Union consciously yielded or clearly waived its interest in changes such as the one in dispute herein. Article III is entitled, "Incentive Schedules and Time-Study Procedure-General Rules Applying to All Incentive Workers in the Plant." As noted above, section 6 thereof provides that "before any changes in . . . incentive plans are made or new plans established, they will be agreed upon by the parties." Contrary to the Trial Examiner, we regard as a radical change the discontinuance of the incen- tive plan in favor of a straight hourly plan for load- ing work in the shipping room. As such, it would be governed by the contractual requirement that it cannot be put into effect without approval of the Union. We note also that earnings for loading work declined subsequent to the change and that Respondent did not meet its obligation under sec- tion 2 to "provide for the same average earning op- portunity." In view of the foregoing, we see no basis for in- ferring that the Union surrendered to Respondent the right unilaterally to make a sweeping change in the method of compensating employees for per- forming loading functions. Although, as the Trial C & C Ph q and Corporation, 148 NLRB 414 " RocAu ell-Standard Corporation, Transmission and Axle Division, Forge Division, 166 NLRB 124 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner points out, the Union in the master agreement recognizes the right of the Company to "constantly [improve] product quality and ... [lower] product cost through time-saving methods and equipment" (par. 91) and to "restudy or retime" a job when such a change is made (par. 93 and 95), these provisions must be construed in the context of article III, section 2, and especially sec- tion 6, which clearly delimits the exercise of the Company's right to bring about changes by making them subject to the approval of the Union. That the contract provides for the utilization of grievance procedures in the event of union dissatisfaction with rates of production set by the Company (par. 96) or with respect to incentive rates (art. II, sec. 3) does not preclude the Union from insisting on its right to utilize an alternative course of action, namely the right to bargain about "changes in ... incentive plans" as spelled out in article III, section 6, of the supplementary agreement.' In this connec- tion, we have already expressed our disagreement with the Trial Examiner 's holding that there was no unlawful refusal to bargain on the part of Respon- dent because of the long history of amicable bar- gaining and the existence of established grievance- arbitration machinery for the resolution of dif- ferences of the parties. As the Circuit Court of Ap- peals for the District of Columbia stated in the Fibreboard case,10 "it is not necessary to find an anti-union animus as a predicate for a conclusion that the employer violated Section 8(a)(5) which commands good faith bargaining on wages, hours and terms and conditions of employment." And, as the Supreme Court observed in the same case," "cost-cutting decisions, even though not motivated by discriminatory considerations, are suitable for resolution within the collective bargaining framework," and "it is not necessary that it be like- ly or probable that the union will ... supply a feasi- ble solution but rather that the union be afforded an opportunity to meet management's legitimate complaints ...." Contrary to our dissenting colleagues, who con- cede that the availability of grievance-arbitration procedures does not preclude the Board from exer- cising its undoubted authority to assert jurisdiction over the unfair labor practices herein, we find ample reason for doing so in the instant proceed- ing.12 The Board is the forum chosen to decide the issue of, and to remedy, the asserted violation of employee statutory rights. The controversy is not one that is beyond our competence to resolve, and as long as it is unresolved it may have a continuing impact on the bargaining relationship. The Board's remedial authority is likewise clear and adequate. The parties have litigated the matter fully, and it is over a year since the events giving rise to the dispute occurred. We are unwilling, therefore, to withhold our determination in these circumstances and to send the parties away empty-handed to seek their resolution elsewhere. As the Court of Appeals for the Eighth Circuit stated in its Huttig opinion,13 it is desirable "to avoid delay either in the courts or in the arbitration process; to emphasize and pro- tect, in cases of doubt, and to give priority to, statu- torily declared rights, to regard as no more than secondary any contract interpretation aspect of what is regarded as basically an unfair labor prac- tice dispute ... ; to take a broad, and not a narrow or technical, approach to the Act ... ; and not to close the door upon Board expertise when such restraint is clearly not violative of congressional mandate." Accordingly, we find that by its unilateral action with respect to changing the methods of operation and compensation Respondent violated Section 8(a)(5) and (1) of the Act. The General Counsel urges that Respondent be directed fully to restore the status quo ante. In fashioning an appropriate remedy, we shall, in ac- cordance with established policy, adapt it to the particular situation that calls for redress." We are of the opinion that reinstitution of the old loading procedures in advance of good-faith bargaining on this subject is not essential in this case to the mold- ing of a meaningful remedy suited to the practical needs of the situation herein. However, effectuation of the policies of the Act does require that Respon- dent be directed now to remedy the violation found by offering to bargain not only about the effects on the employees of the changes made on April 10, 1967, but also about the restoration of the status quo ante. Our Order will so provide. It must be presumed that the employees who spent all or part of their time on loading work as in- centive rated employees would have continued on this basis at least until Respondent had fulfilled its bargaining obligation by negotiating to a bona fide impasse. Effectuation of the Act's policies therefore further requires that the employees whose statutory rights were violated by reason of Respondent's un- lawful unilateral action, and who have suffered loss "NLRB v Mang Sash &Door Co,Inc, 377F2d964(CA 8) "'Fibreboard Paper Products Corp v NLRB, 322 F 2d 411 (CA DC) 379 U S 203, 214 2 Under Section 10(a) of the Act, "The Board is empowered to prevent any person from engaging in any unfair labor practice This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise N L R B v Hattig Sash & Door Company, Inc , supra Winn-Dude Stores, Inc , 147 NLRB 788 UNIT DROP FORGE DIVISION 603 in consequence thereof, be reimbursed for such losses until such time as Respondent remedies its violation. Accordingly, we shall order that Respondent shall make whole the employees who did loading work on an incentive rate basis for any loss of pay they may have suffered as a result of Respondent's unfair labor practices . The liability for such backpay shall cease upon the occurrence of any of the following conditions : ( 1) reaching mutual agreement with the Union relating to the subjects which Respondent is herein required to bargain about; ( 2) bargaining to a bona fide impasse; (3) the failure of the Union to commence negotiations within 5 days of the receipt of Respondent's notice of its desire to bargain with the Union; or (4) failure of the Union to bargain thereafter in good faith. Of course, if Respondent decides to resume the status quo ante with employees once again receiving incentive pay for loading work, its liability will cease as of that date. Backpay shall be based upon the earnings which affected employees would normally have received , absent the changes, less any net interim earnings , and shall be computed on a quarterly basis with interest thereon. Upon the basis of the foregoing findings of fact, and on the record as a whole, we make the follow- ing: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All of Respondent's hourly rated production and maintenance employees at its Milwaukee, Wisconsin , plant , but excluding direct representa- tives of management , office employees , clerical em- ployees, timestudy men, engineering personnel, professional employees , plant protection patrol- men, kitchen and cafeteria employees , superintend- ents, foremen , assistant foremen , and all other su- pervisors within the meaning of 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 bargaining representative of the employees in the aforesaid unit within the meaning of Section 9(a) of the Act. 5. By unilaterally instituting operational changes significantly impairing the terms and conditions of employees doing loading work in the shipping room, and refusing to bargain over these changes,. Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act , as amended , the National Labor Relations Board hereby orders that Respondent, Unit Drop Forge Division Eaton Yale & Towne Inc., Milwaukee , Wisconsin , its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local No. 407, International Union , United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, as the exclusive representative of all the employees in the aforesaid appropriate bargaining unit. (b) Unilaterally changing the wages , hours, and other terms and conditions of employment of unit employees without prior consultation and bargain- ing with the above -named Union concerning such decision and the effects thereof. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above- named Union or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such ac- tivities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Offer to , and upon request , bargain collec- tively with the Union concerning the reinstitution of the shipping loader classification , the shipping loading procedures , and the method of compensa- tion used in the shipping room prior to April 10, 1967, and , if no agreement is reached with respect thereto , bargain collectively with the Union con- cerning the effects of the discontinuance thereof on' the employees in the above-described unit. (b) Make Joseph Szalacinski, Ronnie Jasinski, Jim Nelson , Wayne Wenka , Gary Plewa , and any other employees adversely affected by the uni- lateral changes , whole for any loss of pay suffered by them in the manner and under the conditions and circumstances set forth in the Board 's Deci- sion. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plant in Milwaukee, Wisconsin, copies of the attached notice marked "Appen- dix." 5 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent's official representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 30, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. MEMBERS BROWN and ZAGORIA, dissenting: Contrary to the majority, we are of the opinion that the basic dispute in this case should be left for resolution within the framework of the settlement procedures agreed upon by the parties in their cur- rent collective-bargaining agreement. Respondent and the Union have enjoyed a con- tractual relationship for more than 25 years, with grievance-arbitration provisions contained in their present agreement. The issue presented here arises out of certain operational and incentive wage changes effected by Respondent. When the Union and Respondent disagreed as to whether the con- tract entitled Respondent to have made the changes, the Union initially filed a grievance alleg- ing a breach of the contract and Respondent stated its willingness to have the grievance processed through the arbitration provisions of their agree- ment . Notwithstanding, the Union then filed a charge, and the General Counsel issued the present complaint urging the Union's interpretation of the contract and accordingly alleging that Respondent had engaged in unilateral conduct violative of Sec- tion 8 (a)(5) of the Act. The Trial Examiner 's Decision sets forth the con- tract provisions pertaining to the substantive dispute, and the parties' conflicting interpretations. Finding that the parties asserted their respective positions in good faith, the Trial Examiner accepted Respondent's interpretation and dismissed the com- plaint. Our colleagues, on the other hand, disagree with the Trial Examiner's interpretation, and on such basis they conclude that Respondent has vio- lated Section 8(a)(5) of the Act. If there is any situation in which the Board should defer to the parties' own agreed-upon methods for resolving contract disputes, this is the case. Thus, the parties have an established bargain- ing history; they have a dispute involving substan- tive contract interpretation, each party asserting a reasonable claim in good faith and in a situation wholly devoid of 8(a)(1) or other unlawful con- duct; and they have contractual grievance-arbitra- tion procedures which Respondent has urged the Union to use for resolving their dispute. In this con- text, and mindful of our competency in the area,16 we believe that the policy of promoting industrial peace and stability through collective bargaining impels us to defer to the grievance-arbitration procedures the parties themselves have voluntarily established." Without deciding the merits of the controversy, we would dismiss the complaint. " In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforc- ing an Order " "' N L R B v Acme Industrial Co, 385 U S 423, N.L R B v C & C Plp" ood Corp , 385 U S. 421 " United Steehuirkers of America v American Mfg Co , 363 U S 564, United .Steehiorkers of America v Warrior and Gulf Navigation Co , 363 U.S 574, United Steelworkers of America v Enterprise Wheel and Car Corp, 363 U S 593 Cf International Harvester Co , 138 NLRB 923, affd 327 F 2d 784 (C A 7),cert. denied 377 US 1003 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: After a trial in which both sides had the opportu- nity to present their evidence, the National Labor Relations Board has found that we violated the Act and has ordered us to post this notice and to keep our word about what we say in this notice. WE WILL NOT make changes in our opera- tions or in the method of payment for work without first discussing and negotiating such changes with the Union. The Board found we violated the law when we did not consult or bargain with the Union before making changes in the manner of operating the shipping room and stopping the incentive method of paying employees doing loading work. UNIT DROP FORGE DIVISION As the Board found that we violated the law when we made the changes in the shipping room, we will offer to bargain with the Union about going back to the old way of operating that room and paying for loading work. How- ever, if good-faith bargaining does not result in the Company's agreeing to return to the old system, we will then bargain with the Union about the effects of the changes. WE WILL also pay all employees who spent part or all of their time doing loading work be- fore April 10, 1967, the difference between what they would have earned on the incentive basis and what they actually did earn after the Company started to operate the shipping room in the new way. We will continue this backpay until the Company reaches some agreement with the Union, or until the Company and the Union find they cannot reach an agreement after bargaining in good faith. UNIT DROP FORGE DIVISION EATON YALE & TOWNE INC. (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 2d Floor, Commerce Building, 744 North 4th Street, Milwaukee, Wisconsin, Telephone 688-5801. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Trial Examiner: This case was heard on July 20, 1967, in Milwaukee, Wiscon- sin, on a complaint issued by the General Counsel alleging violation by Respondent of Section 8(a)(5) and (1) of the Act.' At the hearing , all parties ap- peared and were afforded full opportunity to present relevant evidence. Oral argument on the record was waived, and briefs were filed by the General Counsel and Respondent after the close of the hearing. Upon consideration of the entire record in the case, including the briefs, and from my observation 605 of the demeanor of the witnesses, I make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Unit Drop Forge Division Eaton Yale & Towne Inc. is engaged in the manufacture of steel forgings at a plant in Milwaukee, Wisconsin, solely involved in this proceeding. During a representative annual period, Respondent had a direct outflow in in- terstate commerce of products valued in excess of $50,000, and a direct inflow of products valued in excess of $50,000. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local No . 407, International Union , United Au- tomobile , Aerospace and Agricultural Implement Workers of America , UAW-AFL-CIO, herein called the Union , is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue Involved With virtually no dispute as to material facts, the essential question which emerges from the entire record is whether Respondent, as it contends, was legally justified under provisions of an existing con- tract with the Union in making certain changes of method and equipment, affecting the classification and earnings of employees working as shipping loaders, without prior consultation or bargaining with the Union. B. The Relevant Facts 1. Setting and development of the dispute Since 1942, Respondent has had contractual relations with the union as collective-bargaining representative in a production and maintenance unit consisting of about 275 employees. As specifi- cally provided in the contract, regularly scheduled meetings each week are held between representa- tives of the Union and Respondent.' In these meetings, normally scheduled on Friday from 1 to 3 p.m., the purpose and practice have been to pro- vide a continuous forum for processing grievances and discussing various questions or disputes con- cerning job postings, rights of "bumping" by em- ployees, shift preferences, and other matters not ' The original charge was filed by the Union on April 14, 1967, and the complaint thereon was issued on June 30, 1967 t Paragraph 10 (see Appendix hereto) The provision for an agenda to be submitted in advance has not been adhered to in practice 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the subject of formal grievances as may be brought up by either party. At all times material at these meetings, the Union was represented by its grievance committee consisting of Alfred Gruen- wald, local union president, Jim Lukasavitz, chief steward, Stanley Kornacki, committeeman, and Richard N. Immel, committee secretary; and Respondent was represented by David H. Lange- land, employee relations manager, Ernie Page, first shift plant superintendent, and Harry Sherer, times- tudy engineer. Toward the close of the meeting on March 31, 1967,3 Langeland announced to the union commit- tee in substance that, effective April 10, Respon- dent would begin using a scale that had been in- stalled in the shipping room for weigh-counting the forgings, with the intention of eventually "doing away" with the "antiquated method" of hand load- ing and counting every forging that was shipped (to or from the plant). The present classification of "shipping loader" would be eliminated,' and the em- ployee holding that job would be reassigned as an hourly paid truckdriver.5 However, `until the change was 100%," this employee would be paid, as before, on an incentive basis for such time that he was required physically to handle the forgings in the manner of the original method.' Gruenwald and other union representatives expressed strong objec- tion, and insisted that Respondent could not in- stitute such change without prior discussion and negotiation with the Union. Langeland replied that the Company had the right to make the change and that there was nothing further to discuss. His stated position was that the matter was subject to the con- tract grievance procedure, which the Union could invoke if it so desired. At the April 7 meeting, essentially the same posi- tions were expressed by the parties. Lukasavitz, the chief steward, specifically demanded discussion of the changes which were going to be made in the shipping room, and Langeland again declined. Gruenwald then cited and read to Langeland from article 3, section 6, of the contract, which provides that "before any changes in these incentive plans are made or new plans established, they will be agreed upon by the parties." Langeland made no response . Gruenwald further stated that the Com- pany had no right "to arbitrarily change the con- tract" without talking with the Union. Langeland All dates hereinafter are in 1967 Based on the testimony of Immel and Kornacki There are three other similarly classified "industrial truck drivers" in the department " Neither the Union nor the employees affected were advised of the con- templated change before the March 31 meeting r At the meetings on and subsequent to March 31, various other matters, including formal grievances , were discussed by the parties Considerable testimony was adduced on both sides concerning notes which were taken at each meeting by Langeland for Respondent and by Immel for the Union The contract provided for posting in the plant of such notes or "minutes of all meetings of the Grievance Committee," after they are approved and answered , "why should we talk anything over with the union, the union never agrees with us, anyway." On April 10, the announced changes were put into effect. As earlier noted, the Union filed charges with the Board on April 14. At the meeting on May 1, Gruenwald "made one last pitch" by pointing out to Langeland that the Company was making a grave mistake concerning the loader in the shipping room, and that "they should sit down and talk to someone in the bargaining committee." Langeland merely replied that they had already talked about it. Regarding the dispute in question, the Union did not attempt to pursue the grievance- arbitration procedures of the contract.? 2. Substance of the shipping loader change Under specified incentive rate schedules pro- vided in the contract,' shipping loader functions are paid on a "man-hour daily basis" for the total ton- nage which the employee handles. Before the change was effected on April 10, the principal por- tion of the shipping loader work was performed full time on the first shift by Joseph Szalacinski, who had held such classification for about 8 years. In addition, certain employees having other regular classifications, one on the first shift and two on the second shift, also performed such work, as required, on a temporary part-time basis, and when doing so were paid the same incentive rates. Szalacinski described in detail his duties as shipping loader: After the forgings were inspected, a truckdriver brought them to the dock. It was then Szalacinski's "responsibility to get the forgings ready for shipment out the door." His work generally consisted of the physical handling, count- ing, loading, and moving the individual forgings, with the assistance of a forklift truck as needed. Since April 10, in his actual duties as truckdriver, he continued the same basic function with respect to the forgings, but now in bulk form rather than by individual pieces.' From the inspection floor, the forgings were "brought up to the dock in boxes, skids or wooden containers." In this form, he now weighed, tagged, and loaded them to be shipped. However, he also performed part-time work as "shipping loader" when he handled individual pieces, which function gradually diminished to a signed by both parties . Gruenwald refused to sign Langeland 's notes for the March 31 meeting because they failed to record the Union 's opposition to the announced changes While the notes for certain of these meetings were admitted in evidence, without objection, they are not established as official records or "minutes" and cannot in any event serve as a substitute for the actual testimony herein described. "About 75 percent of the plant employees are compensated under the contract incentive system. " It does not appear that the other three " industrial truck drivers" in the department , after the change on April 10, performed the same type of work as Szalacinski in preparing forgings to be shipped ( and also forgings to be received in the plant). UNIT DROP FORGE DIVISION 667 substantial degree after a period of time, and his in- declined. The following charts from Respondent's centive earnings for such work correspondingly records were admitted by stipulation: Week Endings Record of Hours Worked and Earnings Paid to Joseph Szalacinski for the period beginning 1-1-67 and ending 7-2-67 HS Paid HS Paid Total Total Average Hrly as Loader as Trucker Hours Pay Earnings 1-1-67 55.0 55 267.21 4.86 1-8-67 40.5 40.5 204.86 5.06 1-15-67 40.0 40.0 208.16 5.20 1-22-67 48.3 48.3 217.93 4.51 1-28-67 16.0 *16 61.47 3.84 *Leave of absence - 3 days 199.8 199.8 959.63 4.80 2-5-67 41.5 41.5 188.28 4.54 2-12-67 39.5 39.5 192.79 4.88 2-19-67 40.0 40.0 219.33 5.48 2-26-67 48.0 48.0 219.39 4.57 169.0 169.0 819.79 4.85 3-5-67 49.5 49.5 243.63 4.92 3-12-67 40.0 40.0 193.36 4.83 3-19-67 40.0 40.0 179.23 4.48 3-26-67 41.3 41.3 201.01 4.88 170.8 170.8 817.23 4.78 608 Week Endings DECISIONS OF NATIONAL LABOR RELATIONS BOARD HS Paid HS Paid Total Total Average Hrly Earningsas Loader as Trucker Hours Pay 4-2-67 45.5 45.5 182.32 4.01 4-9-67 40.0 40.0 194.30 4.86 4-16-67 31.7 8.3 40.0 162.89 4.07 4-23-67 28.5 11.5 40.0 182.46 4.56 4-30-67 30.2 15.8 46.0 •231.94 5.04 175.9 35.6 211.5 953.91 4.3r 5-7-67 15.3 24.7 40.0 148.91 3.72 5-14-67 14.8 25.2 40.0 167.91 4.20 5-21-67 19.9 20.1 40.0 166.07 4.15 5-28-67 1.5 14.5 *16.0 50.01 3.13 *Vacation - 3 days 51.5 84.5 136.0 532.90 3.92 6-4-67 9.2 22.8 *32.0 103.22 3.23 6-11-67 .8 39.2 40.0 122.28 3.06 6-18-67 .2 39.8 40.0 129.80 3.25 6-25-67 .2 39.8 40.0 120.35 3.01 To-.4 141.6 152.0 475.65 3.13 7-2-67 17.6 34.6 **52.2 172.41 3.30 Paid 8 Hrs for Holiday Vacation - 1 day **/ Paid 8 Hrs for Holiday UNIT DROP FORGE DIVISION Loading hrs. Jan.1 to March 31, 1967 Clock # 609 271 596.6 hrs. 1st. shift. Joe Szalacinski 134 II332.1 1st. shift. Ronnie Jasinski 482 II33.9 1st, shift. Jim Neslson 489 39.5 " 2nd. shift, Wayne Wenka 315 60.5 " 2nd, shift. Gary Plewa 319 5.1 " 2nd. shift. 66 I1. 2nd. shift. 67 II2.5 2nd. shift, 70 2.5 it 2nd. shift. 3. The contract Respondent's defense rests exclusively upon the terms of its collective-bargaining agreement with the Union." Of particular import is the following clause, as to which it is alleged that the Union ex- pressly waived its statutory right to bargain respect- ing the subject matter in dispute herein: 116. The Company and the Union, for the life of this Agreement, each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated, to bargain collectively with respect to any subject or matter referred to, or covered in this Agree- ment, or with respect to any subject or matter not specifically referred to or covered in this Agreement even though such subject or matter may not have been within the knowl- edge or contemplation of either or both of the parties at the time that they negotiated or signed this Agreement. In evaluating the above clause as to "any subject or matter referred to" in the agreement, and generally to ascertain the intent of the parties to the instrument , other pertinent provisions of the com- prehensive contract, set forth in the Appendix at- tached hereto, need to be examined. Initially, paragraph 18 may be reasonably con- strued as defining the basic purpose of the grievance procedure to resolve differences as to the meaning and application of the agreement." Fol- lowing step V of the grievance procedure, the un- resolved dispute is mandatorily referred to final and binding arbitration if either party gives appropriate written notice to the other of such desire (art. II, sec. 1). C. Analysis and Conclusions The evidence is clear, and it is not denied, that Respondent acted unilaterally in changing the method and equipment in the handling of forgings in the shipping department and thereby affected the earnings and work conditions of one full-time em- ployee and several part-time employees engaged in the function of shipping loader. Although Respon- dent gave the Union prior notice of its intentions, it rejected the Union's requests for discussion and bargaining concerning the change, and relegated the Union to seek redress under the contract grievance procedures. General Counsel contends that Respondent's conduct in these circumstances constitutes a denial of the Union's statutory bar- gaining right and a violation of Section 8(a)(5) under the Fibreboard doctrine.'2 Respondent relies entirely upon the terms of the existing contract in justification for its unilateral action, contending that the Union expressly waived any right to bar- "' The governing contract consists principally of a master agreement with the International Union covering various plants of the Company and a "supplementary agreement" embracing the Unit Drop Forge Division and Local 407. Provisions in the master agreement are identified by the numbered paragraph , and those in the supplementary agreement by article and section. " While the language as drawn refers to differences arising "between the Company and any of its employees," undoubtedly the provision is intended to include differences between the Company and the Union as a separate entity and as representative of the employees, as indeed is reflected in other contract clauses and in the evidence of the practice which the parties follow " Fibreboard Paper Products Corp , 138 NLRB 550, enfd 322 F 2d 411 (C A D C.), affirmed 379 U S 203 See also, e g , Century Papers, Inc , 155 NLRB 358, The Weston and Brooker Company, 154 NLRB 747; Northwestern Publishing Conipanv, 144 NLRB 1069 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gain which might otherwise exist, and in any event, that the dispute involved differences as to the meaning and application of the contract as to which the parties contractually intended that the established grievance and arbitration machinery would be utilized to resolve such disputes. As an incident to the determination of these is- sues raised by Respondent, it is of course necessary and appropriate in this proceeding to construe the collective-bargaining agreement.13 While the Union has the statutory right to be notified and consulted regarding any substantial change in employment conditions, or any mandatory subject of bargaining, this right may be surrendered or waived by con- tract. The strict caveat, however, is that such waiver must be expressed in clear and unmistakable terms, and will not lightly be inferred." The mere existence of contractual grievance and arbitration procedures appropriate to resolve a dispute will not warrant a finding that the Union waived its right to bargain on the subject." With careful regard to these well-settled princi- ples, it appears that the provision in paragraph 116, quoted above, contains in specific language the form of an unusually broad waiver of bargaining rights .16 This provision goes well beyond the phras- ing of the type of wrap-up or zipper clause which the Board has found insufficient to constitute a clear waiver of a statutory right." Here, not only do the parties "unqualifiedly" waive the right to bar- gain concerning any subject "referred to" in the contract, but any subject "not specifically referred to or covered in this Agreement even though such subject or matter may not have been within the knowledge or contemplation of either or both of the parties at the time that they negotiated or signed this Agreement." (Emphasis supplied.)" Under ordinary rules of contract construction, effect should be given , if fairly possible, to the form of words which the parties have used, taking all parts into con- sideration .'a Whether the parties herein intended to commit to the provisions and procedures of their contract all possible disputes and the whole scope of their relationship-a sweeping and vital conces- sion by the Union-need not be considered.20 For the purpose of the issues raised, it is sufficient, and I find, that the Union expressly and consciously waived in paragraph 116 its statutory bargaining rights where the subject is covered or referred to in the contract, or where it is fairly implied that the subject, though not specifically mentioned, is within the general embrace of the agreement. " E g , C & C Plyitood Corporation, 148 NLRB 414, 416, enforcement denied 351 F 2d 244 (C A 9), reversed 385 U S 421, Cloverleaf Divivon of Adain s Dairy Co, 147 NLRB 1410, 1415 " E g , Puerto Rico Telephone Co , 149 NLRB 950, 963, Beacon Piece Dveing and Finishing Co , Inc , 121 NLRB 953, 956 " E g., Acute Industrial Company, 150 NLRB 1463, 1465, set aside 351 F 2d 258 (C A 7), reversed and remanded 385 U S 432 '" Except as derived from the wording of the contract itself, there is no evidence of the subjects and positions explored in the bargaining negotia- tions As earlier shown , under the grievance -arbitration procedures of the contract ( paragraph 18, et seq.), machinery is provided for resolution of differences between the parties as to the meaning and applica- tion of any provisions of the contract . Under para- graph 91, it is specifically recognized and contem- plated that the Company will "constantly " seek to lower product cost " through time-saving methods and equipment." Under paragraphs 93 and 95, the company is accorded the right to restudy any job, for the purpose of reestablishing production pay rates , "when change in material , design of product, tool or tools , equipment or sequence of operations have been made ." Under paragraph 94, the Union has the right to question the timestudy of any job and obtain a retiming. Under paragraph 96, the Union has the right , after a fair trial, to challenge "the rate of production as established or changed by Management ," and in doing so is required to pursue a specified procedure culiminating in the settlement of the dispute on the basis of the Company's disposition or by means of the formal grievance ap- paratus . The procedures of paragraph 96 are ap- plicable to rates of production where an incentive system is in effect ( e.g., the shipping loader opera- tion). Under article II, section 3 ( of the supplemen- tary agreement ), all disputes pertaining to incentive rates shall be referred to the Union 's timestudy steward for study until a satisfactory rate is set or a formal grievance is filed . Under article III, section 2, incentive rated jobs that have been changed due to change in methods or materials , "which will affect the earnings on that job shall be restudied to provide for the same average earning opportunity with nor- mal effort for that job ." Under article III, section 6, it is provided that before any changes are made in the "incentive plans ," which are set forth in "this Article," or new plans established , they will be agreed upon by the parties . The incentive "plan" thereafter described for the shipping loader speci- fies the basis (e.g., on tonnage and man-hours worked ) for computing the incentive rate. As previously indicated , at the April 7 meeting, the Union took the position that Respondent's an- nounced change in the loader operations violated article III, section 6 . The General Counsel also ar- gues in its brief that Respondent 's unilateral elimination of the incentive pay plan for the clas- sification of shipping loader was contrary to this contract provision . For its part , Respondent con- tends that no classification was eliminated but, because of the installation of new equipment, one it Cf Neu Yorl, Mirror, Division of the Hearst Corporation, 151 NLRB 834,837,840 "Cf. IVestinghouse Electric Corporation (Mansfield Plant), 150 NLRB 1574, 1585, involving similar waiver language but limited to "subjects not specifically referred to or covered in [the contract [ it /uch n ere discussed during the negotiations of [the contract) "(Emphasis supplied Williston on Contracts, 4th ed , 4 600 Cf The Tunden Roller Bearing Conipant, 138 NLRB 15, 16 UNIT DROP FORGE DIVISION 611 employee was transferred from shipping loader to truckdriver and paid the contract rate for the new classification. And it asserts that the dispute in question is clearly one involving "an alleged im- proper classification and an alleged violation of negotiated rates." The evidence fairly shows that, before and after the operational change made on April 10, the basic job performed by Szalacinski was that of handling and loading forgings in the process of shipment into or from the plant. Apart from the formality of reclassification, the nature of the change in his job was essentially that, after April 10, for the most part the forgings would not be handled individually but in bulk form, thereby reducing and ultimately eliminating his incentive earnings. Particularly con- sidering paragraphs 91, 95, and 96, and article III, section 2, supra, Respondent had acted within the framework of the contract in reestablishing a production rate or in changing an incentive rated job due to a technological change in method and equipment. In such circumstances, Respondent had obligated itself to restudy the job as changed and to provide for "the same average earning opportunity with normal effort for that job." (art. III, sec. 2) Such a result or other redress could be sought by the Union. Reasonably construing the collective agreement as a whole, and more especially para- graph 96 and article II, section 3, supra, the prescribed recourse of the Union lay in the utiliza- tion of the specific procedures and machinery pro- vided in the contract. Returning to article III, section 6, relied upon by the General Counsel, it does not reasonably appear that the parties intended this provision to be opera- tive in the instant circumstances, as distinguished from the other provisions already discussed. I would not find that, under these facts, Respondent changed or introduced a new incentive "plan." Nor would I find, as against paragraph 116 and article II, section 3, that the Union intended to reserve its statutory bargaining right in the limited situation of article III, section 6. As contemplated by the contract, regular weekly meetings are conducted for the purpose of processing grievances and considering related mat- ters. Respondent could well have agreed on an in- formal basis to the Union's request for discussion of the shipping loader dispute at least in its initial stages, but Respondent insisted, within its right as I find, that the matter was subject to the formal grievance procedures. It is not indicated why (although no explanation is required) the Union refused to resort to the contract procedures in an effort to resolve the dispute by such means, but in- stead filed charges with the Board. For all of the reasons stated above, it is found and concluded that the changes instituted by Respondent were clearly sanctioned within the scope of the existing contract and, accordingly, that the allegations of unlawful unilateral action are not sustained in the evidence.21 Moreover, a conclusion for dismissal of the com- plaint is warranted upon the following additional or alternative grounds: The parties have by contract established grievance-arbitration machinery for resolution of their differences involving the mean- ing and application of their collective agreement. It is clearly shown that on both sides the essential dispute concerns honest differences of interpreta- tion of particular contract provisions. A long histo- ry of apparently amicable bargaining relations has existed between these parties. It is neither alleged nor evidenced that Respondent was motivated by animus toward the Union, that it consciously sought to bypass the Union's representative status, or that it advanced its positions in bad faith. Indeed, it is found herein that the contract provisions in question are reasonably susceptible of Respon- dent's asserted interpretations to justify its conduct. The Board has frequently held in similar circum- stances that the policies of the Act, to encourage collective bargaining and to stabilize industrial rela- tions, are best effectuated by leaving the parties to their own devised contractual procedures to resolve disputes arising over the meaning of provisions of their agreement.22 CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The allegations of the complaint that Respon- dent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act have not been supported by substantial evidence. RECOMMENDATION It is recommended that the complaint herein be dismissed in its entirety. E g , Justesen 'v Food Stores, Inc , et al, 160 NLRB 687, Ador Corpora- tion, 150 NLRB 1658, 1660, Leroy Machine Co , Inc , 147 NLRB 1431, 1432 " E g , American Oil Company, 152 NLRB 492, Shell Oil Company, 149 NLRB 283, 289, National Dairy Products Corporation, Detroit Creamery Division, 126 NLRB 434, 435 APPENDIX REPRESENTATION * 10. There shall be a regularly scheduled meeting starting at 10:00 A.M. between representatives of Local Management and the Executive Shop Committee once each week, provided an agenda of subjects to be discussed is submitted at least one (1) day in advance. The Executive Shop Committee may meet by themselves for thirty (30) minutes prior to the 353-177 0 - 72 - 40 612 DECISIONS OF NATIONAL regular scheduled meeting . Special meetings may be arranged by mutual agreement as the necessity arises. GRIEVANCE PROCEDURE 18. It is mutually agreed and understood that should any difference arise between the Company and any of its employees as to the meaning and application of any of the provisions of this Agreement, or should any local trouble of any kind arise in the plant, there shall be no interruption of operations by any employee or groups of employees until Step V of the Grievance Procedure has been exhausted. PRODUCTIVITY 91. The Company and the Union recognize that job security and opportunity depend upon constantly improving product quality and lowering product cost through time-saving methods and equipment so that the Company's competitive position in the industry may be maintained. 93. The Management agrees that in establishing rates of production, it will make studies on the basis of fairness and equity con- sistent with quality of workmanship, efficiency of operation and the reasonable working capacities of normal operators . Before the Company studies any job, the employee who works on the job shall be notified in advance and shall be told the purpose of the study. New jobs shall be timed as soon as reasonably possi- ble. The Company will advise the Union and the operator of the production standard when established. 94. The Union shall have the right to question the time study of any job that may ap- pear to be improperly timed , even to the extent of asking for retiming of any job. The retiming of any job requested by the Union shall be made as soon as reasonably possible. 95. The Company shall have the right to restudy or retime any job when change in material, design of product, tool or tools, equipment or sequence of operations have been made . At the time such changes are made or at any subsequent date such retiming shall be on the basis of the effect of such changes on the job. The foregoing limitation does not apply to group operations. 96. When an employe or group of employes claim after a fair trial that the rate of produc- tion as established or changed by the Manage- LABOR RELATIONS BOARD ment is incorrect, the following procedure shall be followed: A. The complaint should first be presented to the Department Steward. The foreman shall explain the established rate of production. If the challenged rate of production is based upon an estimated standard, a time study shall be made promptly by the Company. B. If the foreman's explanation is not satisfactory, a committeeman may, upon reporting to the foreman of the depart- ment involved, examine the job and all the facts shall be made available. C. If the foreman's explanation is not satisfactory a committeeman may file a written protest with the foreman on forms provided for this purpose, setting forth the specific elements of the data being questioned and pointing out why the rate of production cannot be maintained. The operation may then be restudied jointly by the Company and the Union. D. If the rate is still in dispute, the Union's claim and the Company s disposi- tion shall be reduced to writing on the protest forms. If the case is not appealed within five (5) days to Step III of the Grievance Procedure, it shall be con- sidered settled on the basis of the Com- pany's disposition. In divisions where an incentive system is in ef- fect, it is understood that this section may be supplemented by the Supplementary Agree- ment. SUPPLEMENTARY AGREEMENT Article II ADJUSTMENT OF GRIEVANCES * * * * * Section 2. Both the Company and the Union agree to use their influence and effort to secure observance of this Agreement in spirit as well as in letter by their respective members. Section 3. Members of the Grievance Com- mittee and stewards shall be allowed and com- pensated for the necessary time, within reason, to adjust grievances that may arise . Compensa- tion to each member shall be at the employe's average earned rate. All grievances pertaining to incentive rates shall be referred to the time-study steward as- UNIT DROP FORGE DIVISION 613 signed to that department, who shall carry out the study until a rate is set or a grievance filed. Article III INCENTIVE SCHEDULES AND TIME-STUDY PROCEDURE General Rules Applying to All Incentive reasonable incentive pace, earn at least fifteen (15) cents above the timing rate. Section 2. Jobs that have been changed due to chan&e in methods, design, materials, tools, etc., which will affect the earnings on that job shall be re-studied to provide for the same average earning opportunity with normal effort for that job. Workers in the Plant * Section 1. Jobs shall be so priced as a result Section 6. In this Article are the recognized of time-study that the average competent incentive plans in effect, and before any worker, working at a reasonable pace, shall not changes in these incentive plans are made or earn less than the timing rate applied to that new plans established, they will be agreed upon particular operation, and can if working at by the parties. Copy with citationCopy as parenthetical citation