Everbrite Electric Signs, Inc.

National Labor Relations Board - Board Decisions

Feb 2, 1976

222 N.L.R.B. 679 (N.L.R.B. 1976)

EVERBRITE ELECTRIC SIGNS, INC. 679
Everbrite Electric Signs , Inc. and United Electrical,
Radio and Machine Workers of America (UE), Lo-
cal 1172 . Case 30-CA-2882
February 2, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On May 22, 1975, Administrative Law Judge Stan-
ley N. Ohlbaum issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting 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 au-
thority in this proceeding to a three-member panel:
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
We do not adopt paragraph B, 2, of the Adminis-
trative Law Judge's recommended Order. The
Union's right to proceed with grievance and arbitra-
tion procedures must be determined by the terms of
the contract, and we do not believe that the Board in
the present circumstances should involve itself with
the contractual rights of the parties. Accordingly, we
shall delete paragraph B, 2, of the recommended Or-
der. We shall also modify paragraph B, 1, of the rec-
ommended Order so as to define clearly the scope of
what we deem to be Respondent's affirmative bar-
gaining obligations beyond the changes unilaterally
established by Respondent.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Ever-
brite Electric Signs, Inc., Milwaukee, Wisconsin, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as modified herein:
1. Delete paragraph B, 2, of the Administrative
Law Judge's recommended Order and renumber the
subsequent paragraphs accordingly.
2. Substitute the following paragraph for para-
graph B, 1:
"1. Upon request, bargain collectively in good
faith with the above Union as the exclusive bargain-
ing representative of its employees in the aforesaid
appropriate collective-bargaining unit, with respect
to any change or modification in the rates of pay,
wages, hours of employment, position descriptions,
or other terms or conditions of employment set forth
or involved in any subsisting labor agreement to
which Respondent is a party with the aforesaid
Union, including bargaining, upon request, with the
Union over (1) the standards of eligibility for merit
awards; (2) the procedures to be used in determining
eligibility for merit awards; (3) whether, based on the
standards and procedures agreed upon, other em-
ployees in the unit are entitled to receive similar mer-
it awards; or (4) whether merit increases should be
established at all, and bargain, upon request, con-
cerning the hire of any new employees at rates above
those stipulated in the existing collective agreement;
and embody - in a signed agreement any under-
standing reached. Such bargaining shall be without
prejudice to any wage rate increases heretofore
granted or promised by Respondent above the wage
rates set forth and stipulated in Respondent's subsist-
ing collective agreement, whether such increases
were or are denominated `merit increases,' 'reevalua-
tions,' or otherwise, and shall be without prejudice to
starting wage rates granted in excess of those set
forth and stipulated in said agreement."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present evidence and arguments, the National La-
bor Relations Board has decided that we, Everbrite
Electric Signs, Inc., have violated the National Labor
Relations Act. We have therefore been ordered to
post this notice and to do what it says.
The National Labor Relations Act gives employ-
ees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT violate these rights of yours.
WE WILL NOT grant, place into effect, an-
222 NLRB No. 100
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nounce, or promise any wage rate change
(whether for "merit," "reevaluation," or other-
wise) of the wage rates set forth in our existing
collective agreement with United Electrical, Ra-
dio and Machine Workers of America (UE), Lo-
cal 1172, the exclusive collective-bargaining rep-
resentative of our employees in the following
unit, without first negotiating with that Union in
regard thereto. The collective bargaining unit is:
All regular full-time and part-time production
and maintenance employees including plastic
sign assemblers, plastic cleaners, plastic molders,
plastic screeners, plastic spray painters, plastic
die and model makers, material handlers, ware-
house personnel and other allied operations re-
quired in the production of plastic components
and the final assembly and packing thereof; ex-
cluding office clerical employees, salesmen, pro-
fessional employees, guards and supervisors as
defined in the National Labor Relations Act, as
amended.
WE WILL NOT start employees in at wages other
than those set forth in that collective agreement
without first negotiating with your Union.
WE WILL NOT make any change in any job de-
scription set forth in that collective agreement
without first negotiating with your Union.
WE WILL NOT in any of the above ways or in
any other manner unlawfully fail or refuse to
bargain with your Union, or interfere with, re-
strain, or coerce employees in the exercise of
their right to self-organization; to form, join, or
assist any labor organization; to bargain collec-
tively through representatives of their own
choosing; to engage in concerted activities for
the purpose of collective bargaining or other
mutual aid or protection; or to refrain from any
and all such activities.
WE WILL, upon request, bargain collectively in
good faith with the above union as the exclusive
bargaining representative of our employees in
the aforesaid appropriate collective-bargaining
unit, with respect to any change or modification
in the rates of pay, wages, hours of employment,
position descriptions, or other terms or condi-
tions of employment set forth or involved in any
subsisting labor agreement to which we are a
party with the aforesaid Union, including bar-
gaining, upon request, with the Union over (1)
the standards of eligibility for merit awards; (2)
the procedures to be used in determining eligi-
bility for merit awards; (3) whether, based on
the standards and procedures agreed upon,
other employees in the unit are entitled to re-
ceive similar merit awards; or (4) whether merit
increases should be established at all, and bar-
gain, upon request, concerning the hire of any
new employees at rates above those stipulated in
the existing collective agreement; and embody
in a signed agreement any understanding
reached. Such bargaining shall be without preju-
dice to any wage rate increases heretofore grant-
ed or promised by us above the wage rates set
forth and stipulated in our subsisting collective
agreement, whether such increases were or are
denominated "merit increases," "reevaluations,"
or otherwise, and shall be without prejudice to
starting wage rates granted in excess of those set
forth and stipulated in said agreement.
EVERBRITE ELECTRIC SIGNS, INC.
DECISION
Preliminary Statement; Issues
OIILBAUM, Administrative Law Judge: This proceeding I
under the National Labor Relations Act as amended, 29
U.S.C. Sec. 151, et seq. (Act) was heard by me in Milwau-
kee, Wisconsin, on March 13-14, 1975, with all parties par-
ticipating throughout by counsel, who were afforded full
opportunity to present evidence and arguments and who,
subsequent to the hearing, filed briefs received on April 14,
1975. Record and briefs have been carefully considered.
The principal issues presented are whether Respondent
Employer, while party to a collective agreement with the
Charging Party Union, in violation of Section 8(a)(5) and
(1) of the Act bypassed the Union and unilaterally placed
into effect certain wage increases without bargaining with
the Union; whether Respondent has further violated those
Sections of the Act by hiring employees at wages exceeding
the rate stipulated in the collective agreement, without bar-
gaining with the Union; and whether Respondent has also
violated those provisions of the Act by unilaterally chang-
ing job descriptions as set forth in the collective agree-
ment.2
i Complaint dated January 24, 1975, growing out of charged filed by the
above Charging Party on October 8 as amended December 11, 1974
2 The latter two issues-i e, those dealing with unilateral hiring at rates in
excess of those stipulated in the collective agreement , and unilateral changes
of job descriptions stipulated in the collective agreement-were added at
the conclusion of the case, by General Counsel's oral and wntten (G.C Exh.
10-Id) "motion to amend complaint to conform pleadings to proof," upon
which I reserved decision . In view of the fact that these issues-closely
intertwined with the basic issue-were litigated at the hearing , after being
elicited from or brought out by Respondent itself during the hearing, and
Respondent's express waiver of the right to present any further evidence in
regard thereto as well as its further express declination of a continuance for
that purpose , as disclosed by the transcript , General Counsel 's motion to
conform pleadings to proof is hereby granted . It should also be noted in
connection , that Respondent has further expressly taken the position on the
record that in the event this application of General Counsel to conform
pleadings to proof is granted (as it hereby is), Respondent clearly under-
stands that the case will not be reopened for further proof , in view of the
fact that Respondent expressly declined the proffered offer by the Adminis-
EVERBRITE ELECTRIC SIGNS, INC. 681
Upon the entire record and my observation of the testi-
monial demeanor of the witnesses, I make the following,
FINDINGS AND CONCLUSIONS
1. JURISDICTION
At all material times Respondent has been and is a Wis-
consin corporation engaged in the manufacture, sale, and
distribution of plastic, neon, and electric signs at its South
Milwaukee, Wisconsin, facility, the sole location involved
herein, whence during the representative calendar year im-
mediately preceding institution of this proceeding it sold
and shipped goods and performed services, valued in ex-
cess of $50,000, directly in interstate commerce to, and in-
volving places outside of, Wisconsin.
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act; and that at all of
those times the Charging Party Union ("Union" or "UE
Local 1172") has been and is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates a sign-manufacturing factory
(manufacturing, selling, and distributing large and small
indoor and outdoor electric and neon signs), employing
women and men on its production lines-in a supervisory
as well as nonsupervisory capacity.
Since December 6, 1972, Respondent's "plastic depart-
ment" employees,3 consisting of about 125 persons, have
been represented by UE Local 1172 as their Board-certi-
fied exclusive collective-bargaining representative. Prior to
November 1972 that bargaining unit had been represented
by IBEW Local 494, which continues under collective
agreement to represent the employees of Respondent's
"service department" (installing and hanging signs), while
employees of its "metal department" are represented under
collective agreement with the Sheet Metal Workers Union.
From May 2 until November 2, 1973, Respondent's
"plastic department" employees engaged in a strike, during
the course of which on June 26 in connection with contract
negotiations the Union wrote Respondent requesting infor-
mation regarding the names, wage rates, fringe benefits
and any changes therein, and job classifications of mem-
bers of the collective-bargaining unit. That request drew a
reply on July 19 from Respondent's counsel which, in addi-
trative Law Judge of a continuance for that purpose. Cf Presser Scientific,
Inc., 158 NLRB 1375 (1966), enfd. 387 F .2d 143 (C.A. 4, 1967); The Lion
Knitting Mills Company, 160 NLRB 801, 802 (1966)
3 Le, "All regular full-time and part-time production and maintenance
employees including plastic sign assemblers, plastic cleaners , plastic mold-
ers, plastic screeners , plastic spray painters , plastic die and model makers,
material handlers, warehouse personnel and other allied operations required
in the production of plastic components and the final assembly and packing
thereof , excluding office clerical employees , salesmen, professional employ-
ees, guards and supervisors as defined in the National Labor Relations Act,
as amended."
tion to expressing "reluct[ance]" to furnish names of em-
ployees for reasons there alleged, further stated that except
for a 4-percent wage increase as of the preceding April 16
"that your bargaining committee had agreed to," the Com-
pany had made "no other wage adjustment for any em-
ployee working . . . [and] no change in any fringe benefit
or any other increment or benefit of any kind except that
which had been in effect on May 2, 1973, the day you
commenced the strike." There is no indication here that the
Union's July 19 letter was otherwise answered.
On November 2, 1973, the parties entered into a collec-
tive agreement for about 2-1/2 years, from November 2,
1973, to April 1, 1976. That agreement is currently in force
and was during events to be described.
On October 9, 1974 (as thereafter amended), the Union
filed a complaint against Respondent with the Wisconsin
Employment Relations Commission, charging Respondent
with unfair labor practices under the Wisconsin Employ-
ment Peace Act in that since the preceding August Respon-
dent had failed and refused to proceed with arbitration as
required by its collective agreement. In its decision of No-
vember 26, 1974, the Commission sustained the Union's
allegation and-stating that it "finds no reason to permit
Respondent to unilaterally rescind its agreement on the
method of selection of an arbitrator"-ordered Respon-
dent to cease and desist from such violation and to comply
with the arbitration requirements of its collective agree-
ment. There is no indication that this decision was ap-
pealed.
B. Alleged Violations of Section 8(a)(5) of the Act
It will be recalled that, within the frame of reference
above set forth, Respondent entered into a collective agree-
ment with the Union on November 2, 1973. That agree-
ment is a full-range industrial relations contract, 46 pages
long plus 17 appended pages, or 63 pages in all, covering
the usual subjects. The 17 appended pages set forth wage
scales and progressions in detail, including starting rates,
and also highly specific, agreed-upon job descriptions.
Based on information received-not from Respondent-
that Respondent was paying certain employees wages other
than those stipulated in the collective agreement, the
Union on February 18, 1974, wrote Respondent, requesting
information as to all employees who had been given such
wage increases, together with the amounts and dates there-
of as well as the criteria therefor; and also asking that the
Union be consulted before any further such increases were
given by the Company. A few days later, on February 21,
1974,¢ Union representatives met with company represen-
tatives and requested to be informed as to which employ-
ees had been given wage increases by Respondent and de-
tails thereof. The company representatives undertook to let
the union representatives know. Company minutes of this
meeting, not disputed, establish that at this meeting,
among other matters discussed, Union Representative
Harry Bordis indeed raised the question of the wage in-
creases. At the instant hearing, Respondent's Manufactur-
ing Manager Arthur Sobczak, who attended the meeting as
4 Unless otherwise specified, all dates from this point on are in 1974.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a company representative, conceded that-even though
this does not appear in the Company's minutes and
Sobczak was unable to explain why not 5-he (Sobczak)
told Bordis that he (Sobczak) was "not prepared to give
him [Union Representative Bordis] any answer at all" or
that "I hadn't had time to look into it and that I [will]
notify [you] at a later date.... I [will] refer it to [Compa-
ny President] Mr. Wamser.... I [will] talk to Mr. Wam-
ser about it." According to Sobczak's testimony, a day or
two later (i.e., on February 22 or 23) he told Bordis on the
telephone that, in response to Bordis' letter of February 18,
so far as Sobczak knew, the Company had no "set proce-
dure" on "merit increases" and suggested that Bordis take
the matter up with Company President Carl Wamser.
Not receiving any answer to these written and oral inqui-
ries, however, the Union on May 31 sent a further letter to
Respondent, reminding Respondent and enclosing a copy
of its previous (i.e., February 18) request, reiterating that
request, enlisting the Company's good-faith treatment of
the Union as bargaining representative and a cooperative
relationship, and at the same time "respectfully demand-
[ing] that the Company not give any more merit increase
without the approval of the Union." This letter evoked a
written response in the form of a letter to the Union from
Respondent's attorneys, dated June 5, stating in material
part:
those called for by the collective - agreement from Re-
spondent since April 29, 1974 (i.e., those covered by the
complaint herein), are:
No. Name 1974 Cents
per Hr.
1 Smigielski , Kathleen
(Kathy; Cathy) 4/29 22
2 Coda, Dorothy 7/15 10
3 Degerstedt , James 7/15 10
4 Duellman , Marcella 7/15 10
5 Hemersmann
(Hermersmann), Jerome 7/15 10
6 Kubusek , Joanne 7/15 10
7 Piess (Riess), Patricia 7/15 20
8 Tomblyn, Molly (Mary) 7/22 20
It is my understanding of the law that a union is
entitled to get a complete list of all current wages im-
mediately before negotiating a new contract leading
up to a modification.
I do not understand that information concerning
merit increases during the term of a contract is avail-
able to the union.
It is my understanding that a company can grant
merit increases to individuals due to `special merit'
concerning the employee 's work. This is not a negotia-
ble item nor does information or permission need to
be given to the union.
According to Union Representative Bordis, since during
the ensuing week or weeks he was unsuccessful in reaching
Respondent's counsel , John H. Wessel , Esq., the author of
the above letter,' the Union thereafter , on June 20, filed a
charge against Respondent accusing it of violating Section
8(a)(5) and ( 1) of the Act by refusing to furnish the request-
ed information to it concerning the wage raises in question.
The filing of that charge (Case 30-CA-2763-not the in-
stant proceeding) by the Union eventuated in the sup-
plying to the Union on August 15 by Respondent's counsel
(with a copy to the Board's Regional Director ) of a list of
employees who had received alleged "merit increases"
from Respondent since January 1, 1973; thereupon the
charge was not proceeded with.
The employees shown on Respondent 's list and thus
concededly those who received wage increases-other than
5 Sobczak indicated that the Company's "minutes" are not a verbatim
transcript, but were prepared on the basis of Sobczak's handwritten notes
which he "thinks" were destroyed
6 Mr Wessel denies receiving any telephone messages from Mr Bordis. It
is unnecessary to resolve any theoretical issue on this point, since even if no
such messages were received or left it would make no difference herein
A ninth employee, not shown on Respondent's list fur-
nished to the Union and the Board's Regional Director,
added at the hearing on application of General Counsel, is:
No. Name 1974 Cents
Per Hr.
9 Finnesy (Finnessy; 12/23
Finnessey), Victoria or
("Vicki") 1 /4 25
Respondent's records show that its employee Kathleen
Sm}gielski received a 22-cent-wage-rate increase on April
29 (1974), characterized by it on its "Change of Status"
form as a "Re-evaluation" action and stating by way of
explanation that "This employee has lerned [sic] all of the
press and spray operation involved in the Fiberglass De-
partment. I have re-evaluated her and recommend the in-
crease." The form shows approval by Sobczak.7
It will have been observed that all but two of these "mer-
it" wage-rate increases occurred in July-and also during
the pendency before the Board of the above-described
7 It is to be noted that the list of wage-rate increases furnished by Respon-
dent to the Union and the Board's Regional Director (ie, Resp. Exh 1)
includes Kathy Smigielski as a "merit increase" At the instant hearing,
however, Sobczak stated this was erroneous since the Smigielski increase
was a "re-evaluation increase" and that the list comprised only employees
who had received a "merit increase " This indicates that there are more,
perhaps many more, employees in addition to the above-enumerated 9, who
received unilateral wage-rate increases from Respondent to rates other than
those stipulated in the collective agreement, upon the alleged basis of a
unilateral "re-evaluation" by Respondent.
EVERBRITE ELECTRIC SIGNS, INC. 683
union charge in Case 30-CA-2763. According to
Respondent's witness Arthur Sobczak, who since January
1974 has been its Manufacturing Manager and up to that
date since June 1972 its Manager of Production Planning
and Control, in May 1974 he met with various subordi-
nates including Sharon Beck, forelady of "large sign as-
sembly" since at least May 1973. He reminded them that
an important job known as the "Conoco sign order," con-
sisting of 39 signs on hand since 1970 or 1971, was now
ready to move ahead to completion against a time target of
the week of June 26, before the usual annual 2-week plant
shutdown scheduled to begin on June 28 (Friday)s through
July 15 (Monday).' Forelady Sharon Beck conveyed this
message to the employees under her, telling them not only
of the deadline date but also-of the quality standards to be
met. She said nothing to the employees about any increase
in wages or wage-rates if the Conoco job deadline was met,
or for any other reason or on any other basis. The Conoco
job deadline was met to the satisfaction of management
and the customer, and the plant was shut down from June
28 to July 15, but Sharon Beck worked the first week of
July, during which she recommended to Sobczak that her
sign assembly crew should be given a "merit increase .. .
particularly on Conoco." According to Sharon Beck's testi-
mony, this was the first time during her tenure as forelady
(i.e., since shortly before May 1973) that she had recom-
mended such a wage increase for employees. She accord-
ingly -signed "Change of Status" forms to accomplish these
wage increases. On the forms of employees Coda, Deger-
stedt, Duellman, Hemersmann, and Kubusek, characteriz-
ing the action as a "Merit Increase," she gave as explana-
tion, "Extra-ordinary performance . in meeting Conoco
deadline."
According to the testimony of Company Manufacturing
Manager Sobczak, however, not all of the employees who
worked on the Conoco Job received a wage increase-only
those who in the Company's opinion enabled the "dead-
line" to be met.
The "Change of Status" form of Patricia Riess (Piess),
which-unlike the foregoing five-is not signed by Sharon
Beck but by Foreman Patefield and also effective on July
15, is characterized thereon not only as a "Merit Increase"
but also as a "re-evaluation," and states as explanation for
the wage-rate increase that she "assists in helping with
warehouse tickets Schlitz Re-cycle inventories and other
administrative duties assigned by the Foreman." The
"Change in Status" form of Mary (Molly)'Tomblyn, also
signed by Patefield but effective on July 22, likewise char-
acterizes the action as both a "Merit Increase" and a "Re-
evaluation," and gives the same explanation as in the case
of Patricia Riess (Piess).
The "Change of Status" form on Victoria Finnessy, dat-
ed December 23 and signed by General Foreman John W.
Nolte, characterizes her 25-cent hourly wage-rate increase
as a "Merit Increase," with the explanation that "Vicki has
maintained a near perfect rate of efficiency for the past
several months. Vicki has been used at first station line
8 June 28 was the starting date to compensate for the July 4 holiday.
9 Sobczak's testimony to this effect is corroborated by that of Forelady
Sharon Beck.
assembly to be sure target is attainable." An accompanying
"Payroll Rate Change" form, dated January 4, 1975, char-
acterizes this wage-rate increase not only as a "Merit In-
crease" but also as "Length of Service." 10
Each of these wage-rate increase forms was approved by
Sobczak. It is conceded that each was thereupon placed
into effect, without consultation or negotiation with or no-
tification to the Union; and that each of the employees
involved was and is a member of the collective-bargaining
unit of which the Union was and is the exclusive certified
representative. -
Credited testimony of Respondent's Forelady Sharon
Beck establishes that on July 15, after Sobczak had ap-
proved her wage-rate increase recommendation for the five
employees that day, she informed those employees that
"because of the job [you] had been doing and especially
because of the Conoco job," she had recommended them
for an increase and that it had been approved, and she told
them the amount. Sharon Beck further testified that even
prior to the Conoco job she had been holding periodic
meetings, every other week since around the end of 1973,
with her subordinates, who had been regularly expressing
to her their dissatisfaction with their pay, which they indi-
cated should be increased, and that she had expressed her
agreement with them. Undisputed credited testimony of
Respondent's subpenaed employee James Degerstedt, a
highly impressive witness still in Respondent's employ and
one of the recipients of a July 15 wage-rate increase, estab-
lishes that sometime before July, before Respondent gave
the wage-rate increase he and other employees received
here, he and fellow-employees met with their forelady,
Sharon Beck, and discussed work problems and better-
ments (e.g., tool procurement) as well as the "possibility of
getting a raise," whereupon Sharon Beck promised she
would try and "see what [I] could do ... and let [you]
know. . . . She said she would talk for us and she said we
would be getting it"; subsequently Sharon Beck told them
she thought they would be getting an increase, which was
indeed received in their next paycheck. ll
Conceding that the described wage-rate increases were
unilaterally given by Respondent to unit employees during
the term of the collective agreement, without notice to or
opportunity by the Union to discuss or negotiate concern-
ing them, Respondent's Manufacturing Manager Sobczak
testified that this was a continuation of a policy, neither
reduced to writing nor "set" nor definite, followed by Re-
spondent in its "plastic department" prior to the collective
agreement with the Union. He also conceded that during
the term of the subsisting collective agreement Respondent
has also been hiring employees at pay levels higher than
10 According to Respondent, of the 25-cent increase to Victoria Finnessy,
5 cents was a regular wage-progression increase called for by the collective
agreement, and the balance of 20 cents was for "merit"
u It will have been noted that this , as well as all of the other wage-rate
increases, occurred during the term of the collective agreement between
Respondent and the Union According to Degerstedt, he had also received
another such increase in early 1974 or late 1973, while in the "Screening
Department" under forelady Carol Arndt (Arnt) after soliciting it from her
These two increases were separate and apart from, and in addition to, the
"periodic increases" or progresssion increases stipulated in the collective
agreement, and were, according to Degerstedt, referred to by Carol Arndt as
a "bonus "
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the "starting" rates stipulated in the collective agreement,
without notice to the Union and without objection by the
Union, but also without any indication of any knowledge
on the part of the Union.12 Sobczak acknowledged that he
has at no time informed the Union of any company poli-
cies concerning wage-rate increases by the Company not
called for by the collective agreement.
With regard to the aforedescribed wage-rate increases of
Kathy Smigielski, Patricia Riess (Press), and Mary (Molly)
Tomblyn, it appears from Sobczak's testimony that these
wage-rate increases are accounted for and explained by
Respondent on the basis of performance of duties by these
employees beyond or in addition to those called for by
their job descriptions as spelled out in the collective agree-
ment-also concededly without notification to, or opportu-
nity to negotiate by, the Union as collective-bargaining
representative.13 Sobczak acknowledged that there is noth-
ing in the collective agreement permitting such a modifica-
tion of job description nor permitting the elevation of an
employee, as in the case of Kathy Smigielski, from the "3-
month" wage-rate level to the "15-month" wage-rate level
stipulated in the wage-rate schedules appended to the col-
lective agreement. 14
C. Resolution and Rationale
The operative material facts in this case are essentially
undisputed. Respondent, an employer who, as found by
the Wisconsin Employment Relations Commission, has
previously violated its obligation to live up to its collective
agreement with a Board-certified exclusive bargaining rep-
resentative, is here again accused of violations going to the
heart of that agreement-namely, unilateral changes in sti-
12 Asked how many, or to estimate how many, times this occurred,
Sobczak replied he was unable to do so.
13 On cross-examination , Sobczak acknowledged that other employees
have even "within the past six months" been given wage-rate increases on
that basis and without discussion with or notification to the Union. After
first professing inability to recall their names, he later recalled that one of
them was Colleen Slattery, a spray painter, around January 1974 When it
was pointed out to Sobczak that her name is not included in the list fur-
nished by Respondent to the Union and the Board's Regional Director (i.e,
Resp. Exh. I ), Sobczak's explanation was that he does not believe she was
working for the Company at the time that list was prepared, and that-
although the list is captioned "Merit Increases as of 1-1-73" and covers
those until July 22, 1974-it omitted all employees no longer in Respon-
dent's employ.
Under later cross-examination, Sobczak testified that possibly "as high as
thirty percent" of Respondent's employees are being paid wage-rates
"above [the] scale" called for in the collective agreement , even within the
past 6 months, without negotiation with or notification to the Union; how-
ever, he professed inability to identify the employees involved. On redirect
examination , he limited the percentage being paid above collective -agree-
ment scale , for "merit" or on "reevaluation ," in the "plastic department," to
"somewhere around five percent , eight percent," still without disclosure of
whom Sobczak differentiates between a "merit increase" and a "reevalua-
tion increase" by describing the "merit increase" as being for "exceptionally
good work" whereas the "reevaluation increase" is for "work which is be-
yond the scope of [the employee's] present labor grade "
14 It cannot be said that Respondent was oblivious of the necessity to
negotiate concerning changes in the wage-rates called for by the collective
agreement , since, as stipulated at the hearing , the wage-rates shown on the
wage-rate schedules or progression charts appended to the collective agree-
ment were increased by 10 cents per hour to cover insurance , as a result of
negotiation with the Union subsequent to execution of that basic collective
agreement and the wage -progression charts thereto appended.
pulated rates of pay of employees, as well as in starting
rates and job descriptions.
Conceding that all of the employees involved were and
are members of the represented collective-bargaining unit,
and that its actions were unilateral and without negotiation
with or even notification to the bargaining representative,
Respondent's defense is that the pay increases were made
on a selective basis by it for "merit," or in certain instances
"reevaluation," and that, although no such increases are
stipulated or mentioned in the collective agreement, never-
theless it used to do these things before it entered into the
collective agreement and therefore they represent no
"change" in its method of operations.15 I reject this de-
fense.16 Respondent's practice, here established, of unilat-
erally granting to certain employees in the bargaining unit,
holding specified jobs with descriptions spelled out in the
collective agreement, wage-rate increases without negotiat-
ing with or even notifying their certified bargaining repre-
sentative, and of hiring employees at rates in excess of the
agreed-upon starting rate, and of changingjob descriptions
at times in connection therewith, is frontally invasive of its
employees' rights under the Act to bargain collectively and
establish these important matters and relationships
through collective negotiation, is in derogation of the status
of the certified bargaining representative, flouts the
Board's election processes and certification, and tears at
the main roots of the Act.
General Counsel's proof is unchallenged that the topic
of "merit raises" 17 was not discussed during the parties'
precontract negotiations . 18 The fact that a subject is not
discussed during precontract negotiations does not exempt
a party from the requirement of bargaining concerning it
during the contract term. In N.L.R.B. v. Jacobs Manufac-
turing Company, 196'F.2d 680, 684 (C.A. 2), the court
pointed out that the exception to the duty to bargain dur-
ing the contract term, as set forth in Section 8(d) of the Act
concerning modifications, does not relieve an employer of
the obligation to bargain "as to subjects which were neither
15 Respondent also denies that it changed job descriptions.
16 1 also reject Respondent 's denial that it changed job descriptions. It is
quite clear that it did , upon its own testimony that it altered the work
requirements of the positions held by its employees Patricia Riess (Piers)
and Molly (Mary) Tomblyn , assigning to them duties not included or called
for in the agreed-upon position descriptions of the positions they held, as
explicated in detail in the "Master Classification and Job Description List"
appended to the collective agreement . The admitted fact that in connection
therewith and, as Respondent concedes , for that "reason" Respondent in-
creased the contractually stipulated wage-rates of these employees and their
jobs, itself establishes that Respondent-contrary to its denial--did indeed
change job descriptions as alleged in the complaint as amended.
17 Whether or not the increases here given were for "merit" is a matter of
conjecture for which one would have to rely on Respondent's ipse dixit
There is , for example, no showing or method of determining whether other
employees were not also entitled to such an increase because of the compa-
rable "merit" of their performance. Furthermore , some of the increases here
are not denominated "merit" increases by Respondent, but "reevaluation"
increases . The vice in making unilateral changes (increases or decreases,
since the same principle would apply to decreases as well) in the wage-rates
stipulated and agreed upon in the collective agreement, without bargaining
about them, is well-illustrated by this tactic of applying self-serving labels to
them as an attempted escape-hatch from the bargaining obligation Cf.
J H Allison & Company, 70 NLRB 377 (1946), enfd. 165 F.2d 766 (C.A. 6),
cert. denied 355 U.S. 814 rehearing denied 335 U S. 905
ie It would seem that wage starting rates and position descriptions were
discussed , since those subjects are extensively covered in detailed, lengthy
appendices to the collective agreement
EVERBRITE ELECTRIC SIGNS , INC. 685
discussed nor embodied in any of the terms and conditions
of the contract." 19
The fact that these particular subjects (selective "merit"
pay increases, at Employer's sole option; hiring of employ-
ees at more than contractual starting rates, at Employer's
sole option; job description changes or modifications, at
Employer's sole option) may not have been negotiated or
are not explicitly spelled out in the parties' collective agree-
ment does not contrary to Respondent's contention-
give the Employer a free hand to indulge in these practices,
which are of vital concern to employees and at the core of
the collective-bargaming process, unilaterally and without
bargaining with the employees' collective-bargaining repre-
sentative. The collective agreement here contains no zipper
provision. Nor would the fact-even if it be assumed it is
the fact-that such practices on the part of the Employer
existed prior to execution of the collective agreement justi-
fy their continuation subsequent to the collective agree-
ment. It could be said that there is hardly any purpose in
entering into an industrial agreement if practices prior to
the agreement, not sanctioned by the agreement, are to be
perpetuated, resumed, or revived; in any event, it is not to
be assumed that such matters are rendered exempt from
the requirement of negotiation. Particularly is this true
where, as here, the matters in question (wage raises, hiring
rates, and job descriptions) go to the very heart of the job
situation in the plant. It hardly conduces to industrial
peace-the core purpose of the Act-for an employer who
has entered into a collective agreement covering these sub-
jects in detail to go about changing them as spelled out or
dealing with them in ways not contained in the collective
agreement, without consulting with the employees' bar-
gaining representative. Such unilateral action by the Em-
ployer-more especially in the frame of reference here
(Sec. II, A supra, e.g., the Wisconsin State Board histo-
ry)-is suggestive of evasiveness and of lack of that candor
and good faith which characterize a sound industrial rela-
tions climate; it undermines the very foundations of the
collective-bargaining system and converts the collective
bargaining principle into a mockery. "[T]he right of collec-
tive bargaining is wholly inconsistent with unilateral com-
pany action affecting matters within the scope of the agree-
ment." Consolidated Aircraft Corporation v. N.L.R.B., 141
F.2d 785, 787 (C.A. 9). As stated in J. I. Case Company v.
N.LR.B., 253 F.2d 149, 153 (C.A. 7, 1958):
19 In given circumstances, even where a subject has been discussed in
precontract negotiations but not incorporated into the collective agreement,
this does not necessarily free a party to act unilaterally concerning that
subject during the contract term. Thus, it has been held that the fact that a
profit-sharing plan had been discussed in precontract negotiations is not a
defense to a Section 8(a)(5) charge that the employer unilaterally instituted
an incentive pay plan without consulting with the employees' bargaining
representative Titan Box Corporation, 208 NLRB 787 (1974). See also, The
Bunker Hill Company, 208 NLRB 27 (1973); John E. Holkko d/b/a Lifetime
Shingle Company, 203 NLRB 688 (1973), Hamilton Electronics Company,
203 NLRB 206 (1973); Alamo Express, Inc, 200 NLRB 178, enfd. 489 F.2d
134 (C.A. 5, 1974); ef, N L,R B. v United Brass Works, Inc., 287 F.2d 689,
697 (C.A. 4, 1961 ); individual merit wage increases , dictum. In State Farm
Mutual Automobile Insurance Co, 195 NLRB 871, 890 (1971), continuation
of merit increases without bargaining was held unlawful since the employ-
ees' bargaining representative had no way of knowing whether there was a
substantial departure from past practice
The[se] contentions [of Respondent employer, that
union complaints in regard to wage rates must be han-
dled within the context of precontract negotiations or
as grievances under the contract] stem from a basic
disagreement between petitioner [ i.e., Respondent em-
ployer] and the Board as to the proper conception of
the Union's role as representative of the employees
and of the very nature of the collective bargaining pro-
cess. The contention that the Union's right to data is
limited to pending wage negotiations overlooks the
fact that collective bargaining is a continuing process
which, "[a]mong other things, . . . involves day to day
adjustments in the contract and other working rules,
resolution of new problems not covered by existing
agreements, and the protection of employee rights al-
ready secured by contract." Conley v. Gibson, 1957,
355 U.S. 41, 46 . . . See also Aeronautical Industrial
District Lodge 727 v. Campbell, 1949, 337 U.S. 521, 525
A collective bargaining agreement thus provides
"the framework within which the process of collective
bargaining may be carried on." Timken Roller Bearing
Co. v. N.L.R.B., 1947, 1 Cir., 161 F.2d 949, 955. The
Union not only has the duty to negotiate collective
bargaining agreements but also the statutory obliga-
tion to police and administer the existing agreements.
Under all of the circumstances, it is accordingly found
and determined that Respondent has, substantially as al-
leged in the complaint as amended, bypassed the union as
its employees' duly certified collective-bargaining represen-
tative, and has bargained individually with its employees;
has unilaterally raised employees' wage-rates to levels high-
er than those stipulated in its subsisting collective agree-
ment; has unilaterally paid starting wages higher than
those stipulated in that agreement; and has unilaterally
changed job descriptions stipulated in that agreement 20
See J. H. Allison & Company, 70 NLRB 377 (1946), enfd.
165 F.2d 766 (C.A. 6), cert. denied 335 U.S. 814, rehearing
denied 335 U.S. 905 21
20 Respondent's possible suggestion in its answer that this proceeding is
time-barred by Sec 10(b) of the Act is without substance , inasmuch as all of
the unfair labor practices found grow out of incidents occurring within the
6-month period preceding the filing of the charge here (October 8, 1974)
Respondent 's suggestion that the Union waived its rights is likewise rejected
as contrary to the facts. Although, as is well known , a waiver may arise only
out of a conscious and unequivocal relinquishment of a right based on
knowledge of the facts (Timken Roller Bearing Co. v. N.L R.B., 325 F.2d
746, 751 (C A. 6, 1963), cert denied 376 U S. 971 (1964), General Electric
Company v. N L R B., 414 F.2d 918, 923-924 (C A. 4, 1969, cert. denied 396
U.S. 1005 (1970), Fafnir Bearing Company v. N L R B, 362 F.2d 716, 722
(C.A 2, 1968); Tucker Steel Corp., 134 NLRB 323, 332,(1961) and cases
cited)-not true as to the Union here, in view of Respondent 's failure to
notify the Union-it is clear that the Union diligently pursued its attempts
to obtain information (including by filing with the Board its earlier 8(a)(5)
charge against Respondent) and to vindicate its position. Likewise,
Respondent's contention in its brief that "No employee has filed any com-
plaint or submitted any testimony objecting to the conduct of the respon-
dent" is totally devoid of merit. a complaint under the Act is issued by
General Counsel, based on a charge filed by anybody (other than the Agen-
cy itself, which does not originate any charges); and a case may, of course,
be established without the testimony of an employee, which is likewise not
required. Finally, Respondent's statement in its brief that "Prior to the hear-
ing, the complantant [sic] withdrew its allegation of violation of Section 8(a)
5" herein is unsupported by the record.
21 At the hearing, Respondent's counsel conceded that under the Allison
Continued
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings and the entire record, I
state the following:
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. Through bypassing the Union as its employees' duly
certified collective-bargaining representative, through bar-
gaining individually with its employees, and through uni-
laterally granting increases in stipulated wage-rates, paying
starting wages in excess of those stipulated, and changing
job descriptions stipulated, in its subsisting collective
agreement with the Union, and through failing and refus-
ing to bargain with said Union in respect thereto, under the
circumstances set forth and found in "II," supra, Respon-
dent has engaged and is continuing to engage in unfair
labor practices in violation of Section 8(a)(5) and (1) of the
Act.
3. Said unfair labor practices have affected, are affect-
ing, and unless permanently restrained and enjoined will
continue to affect, commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
It goes without saying that, having been found to be in
violation of Section 8(a)(5) and (1) of the Act, Respondent
should be required to cease and desist therefrom and to
bargain with the Union regarding the matters involved.
It seems reasonably evident from the essentially undis-
puted facts that Respondent is continuing to engage in a
program designed to flout and frustrate the collective-bar-
gaining principle, a basic building block of the Congres-
sionally declared national labor relations policy whose ob-
jective is to achieve and maintain industrial peace. Under
these circumstances, a somewhat stronger remedy is re-
quired than the usual routine cease-and-desist order and
requirement to bargain, for such a routine order would
serve to (1) permit Respondent to retain the full benefits of
its having ignored the wage-rate requirements of its collec-
tive agreement through its unilateral granting of raises to
selected employees; (2) leave comparably situated employ-
ees whose wage-rates have not been raised remediless; (3)
leave Respondent's bypassing of its employees' Board-cer-
tified exclusive bargaining representative essentially uri-
remedied, thereby undermining the status of that represen-
tative, discouraging the employees in the exercise of their
right to bargain collectively, and flaunting the Board's pro-
cesses by flouting the purposes of its secret-ballot elections
and official certification; (4) thwarting a, if not the, basic
case, with which he expressed familiarity, an employer who announces a
"general" wage increase violates the Act, but contended that an employer
who does so with respect to less than all employees does not violate the Act
This position is plainly devoid of tenability
purpose of the Act 22 Under these circumstances , while a
make-whole or costs-imposition remedy will be withheld in
view of the Board's policy against the granting of such
relief, a lesser yet still somewhat stronger than routine rem-
edy seems required. I deem it reasonable, accordingly, to
include in the recommended order a requirement that, in
addition to ceasing and desisting from unlawful conduct of
the nature described, Respondent shall bargain collectively
in good faith with the Union not only with respect to the
wage-rate increases and other matters involved but also
concerning similar wage-rate increases for the other em-
ployees in the bargaining unit whose stipulated wage-struc-
ture system as set forth in the collective agreement has
been disarranged by Respondent's unilateral changes; and
also that, at the Union's option, Respondent shall fulfill its
contractually required obligations to proceed with any
grievance/arbitration proceedings sought by the Union
concerning Respondent's failure to grant comparable
wage-rate increases to other employees (or to scale-up its
wage structure to reflect its higher starting rates for certain
new employees) in the bargaining unit. Inclusion of these
requirements in the recommended order should serve to
more effectually remedy the unfair labor practices and the
disruption to the collective bargained wage structure
brought about by Respondent's unilateral actions here,
and at the same time to serve as a deterrent to further
violations of the nature described. Moreover, these provi-
sions are perceived as fair, and as carrying out the purposes
and policies of the Act as well as the requirements of the
parties' own collective agreement.
Since Respondent's violations are aimed at core guaran-
tees and policies of the Act, the recommended order will,
as is usual in such cases, include a provision requiring Re-
spondent to cease and desist from any violation of its em-
ployees' rights under the Act. The order will also contain
the usual requirement of posting of a Notice to Employees
to apprise them of the outcome of the case, their rights
under the Act, and what their employer is required to do
and not to do.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, there is hereby
issued the following:
22 If further indication of Respondent's intransigence is required, it is
furnished by its insistence at the hearing that any decision adverse to it here
would require cancellation and withdrawal of the wage-rate increases it has
granted and a refunding thereof by the employees to Respondent (Tran-
script "It's an inconsistent position . to say that while I've sinned it's
perfectly right to [wallow] in the sin.") Aside from the iniquity of such a
position, it is obvious that if earned out it would turn the employees against
their certified collective-bargaining representative, overcome the effect of
the election and Board certification, and oust the Union-thereby accom-
plishing, through its own illegal actions, Respondent's basic aim of under-
mining and ridding itself of the Union, and through this ruse setting the Act
on its head. As is well known, in situations of this nature the Board tradi-
tionally orders that although the respondent shall cease and desist from
continued violation and shall bargain, this shall be without prejudice to
wage raises and other betterments already granted by the offending employ-
er, this will be done here Of a piece with the foregoing contention of Re-
spondent is its further argument, in justification of its actions here, that "no
employee listed in paragraph 7 of the government complaint in any way
filed any objection to the wage increase" (Resp br) and that no witness
testified that the wage increase "interfered with their rights or with the flow
of commerce" (id)
EVERBRITE ELECTRIC SIGNS, INC. 687
ORDER23
Respondent Everbrite Electric Signs, Inc., South Mil-
waukee, Wisconsin, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Bypassing United Electrical, Radio and Machine
Workers of America (UE), Local 1172, the duly certified
collective-bargaining representative of its employees in the
following appropriate collective-bargaining unit, and bar-
gaining individually with employees therein:
All regular full-time and part-time production and
maintenance employees including plastic sign assem-
blers, plastic cleaners, plastic molders, plastic screen-
ers, plastic spray painters, plastic die and model mak-
ers, material handlers, warehouse personnel and other
allied operations required in the production of plastic
components and the final assembly and packing there-
of; excluding office clerical employees, salesmen, pro-
fessional employees, guards and supervisors as defined
in the National Labor Relations Act, as amended.
(b) Directly or indirectly granting, announcing, or plac-
ing into effect, or promising so to do, wage rates for em-
ployees, whether designated "merit increases," "reevalua-
tions," or otherwise, or starting wage rates, other than
those set forth and stipulated in any subsisting collective
agreement to which Respondent is a party, or changing
any position description therein set forth and stipulated,
without first negotiating in good faith with-its employees'
duly designated or selected exclusive collective-bargaining
representative with respect thereto; but without prejudice
to any wage-rate increases or starting rates already grant-
ed,_ announced, or promised.
(c) Failing or refusing to bargain collectively in good
faith with said Union as the exclusive collective-bargaining
representative of its employees-in the aforesaid appropriate
collective-bargaining unit.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right of self-
organization; to,bargain collectively through representa-
tives of their own choosing; to engage in concerted activi-
ties for the-purposes'of collective bargaining or,other mutu-
al aid or protection; or to refrain from any and all such
activities, except to the extent that such right may be af-
fected by an agreement lawfully requiring membership in a
labor organization as a condition of employment, as au-
thorized in Section 8(a)(3) of the Act as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
23 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order which follows herein shall, as provid-
ed in Sec. 102 48 of those Rules and Regulations, be adopted by the Board
and become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
2. Take the following affirmative actions, necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with
the above Union as the exclusive bargaining representative
of its employees in the aforesaid appropriate collective-bar-
gaining unit, with respect to any change or modification in
the rates of pay, wages, hours of employment, position de-
scriptions, or other terms or conditions of employment set
forth or involved in any subsisting labor agreement to
which Respondent is a party with the aforesaid Union; and
embody in a signed agreement any understanding reached.
Such bargaining shall be without prejudice to any wage-
rate increases heretofore granted or promised by Respon-
dent above the wage-rates set forth and stipulated in
Respondent's subsisting collective agreement, whether
such increases were or are denominated "merit increases,"
"reevaluations," or otherwise, and shall be without preju-
dice to starting wage rates granted in excess of those set
forth and stipulated in said agreement. Said collective bar-
gaining shall include collective bargaining in regard to sim-
ilar wage-rate increases for the other employees in said col-
lective-bargaining unit, and in regard to the effective date
or dates thereof; and also in regard to the scaling-up of
Respondent's wage-structure to reflect its higher starting
rates for certain new employees in said unit in excess of
those set forth and stipulated in said subsisting collective
agreement.
(b) Upon request by said Union, fulfill Respondent's
obligations under its subsisting collective agreement with
said Union, to proceed with grievance and arbitration pro-
cedures concerning Respondent's failure to grant wage-
rate increases to other employees in said bargaining unit
equivalent to those heretofore granted only to certain em-
ployees of Respondent's selection, and concerning the ef-
fective date or dates thereof; and also concerning
Respondent's failure to scale-up its wage structure to re-
flect its higher starting rates for certain new employees in
the bargaining unit.
(c) Post at its plant in South Milwaukee, Wisconsin,
copies of the attached notice marked "Appendix."24 Copies
of said Notice, on forms provided by the Board's Regional
Director for Region 30, after being signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof and maintained by it for
60 consecutive days thereafter in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or -covered by any
other material.
(d) Notify the Regional Director for Region 30, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
24 In the event this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the Notice "Posted by Order of the National
Labor Relations Board" shall read "Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board"