Fourco Glass Co.

National Labor Relations Board - Board Decisions

Jul 24, 1980

250 N.L.R.B. 953 (N.L.R.B. 1980)

FOURCO GLASS COMPANY
Fourco Glass Company, Rolland Division and
United Glass and Ceramic Workers of North
America, Rolland Local No. 6, AFL-CIO-CLC.
Case 6-CA-12626
July 24, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On May 7, 1980, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, the Respondent filed
timely 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. 2
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 and
hereby orders that the Respondent, Fourco Glass
Company, Rolland Division, Clarksburg, West Vir-
ginia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, except that the attached notice is
substituted for that of the Administrative Law
Judge.
I We hereby modify the Administrative Law Judge's remedy so that
the backpay due is computed in a manner consistent with Board policy as
set forth in Ogle Protection Service. Inc.. 183 NLRB 682 (1970), with inter-
est thereon to be computed as set forth in Florida Steel Corporation. 231
NLRB 651 (1977). Member Jenkins would compute the interest in ac-
cordance with the formula set forth in his partial dissent in Olympic Medi-
cal Corporation. 250 NLRB No. 11 (1980).
z We have modified the Administrative Law Judge's notice to conform
with his recommended Order
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 an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to bargain collectively
with United Glass and Ceramic Workers of
North America, Rolland Local No. 6, AFL-
CIO-CLC, as the exclusive representative of
the employees in the bargaining unit described
below by unilaterally repudiating the incentive
system as it existed prior to July 31, 1979.
WE WILL NOT unilaterally institute changes
in rates of pay, wages, hours of employment,
or other terms and conditions of employment
of the employees in the bargaining unit de-
scribed below, during the term of any collec-
tive-bargaining agreement covering said em-
ployees, without first consulting with and bar-
gaining with the Union concerning such pro-
posed changes and reaching agreement on any
modification of the terms of the contract. The
bargaining unit is:
All production and maintenance employees,
excluding all employees under the jurisdic-
tion of the Window Glass Cutters League,
AFL-CIO, salaried and clerical employees,
professional employees and supervisors as
defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their right to self-organi-
zation, to form, join, or assist United Glass and
Ceramic Workers of North America, Rolland
Local No. 6, AFL-CIO-CLC, or any other
labor organizaiton, to bargain collectively
through representatives of their own choosing,
to engage in other concerted activities for the
purpose of collective bargaining or other
mutual aid or protection, or to refrain from
any or all such activities, except to the extent
that such right may be affected by the provi-
sions in Section 8(a)(3) of the Act.
WE WILL, upon request, restore the incen-
tive wage system which we repudiated on or
about July 31, 1979, and revoke the hourly
pay system which we instituted on or about
such date.
WE WILL make whole any employees who
were adversely affected by the above-de-
scribed unilateral action, for any loss of pay
they may have suffered by reason of the
change in the wage rate system, with interest.
FOURCO GI.ASS COMPANY, ROIt.AND
DIVISION
250 NLRB No. 144
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: This case
was heard before me in Clarksburg, West Virginia, on
January 23, 1980, upon due notice. The sole question
presented for decision is whether Fourco Glass Compa-
ny, Rolland Division (herein called the Company or Re-
spondent), violated Section 8(a)(1) and (5) of the Nation-
al Labor Relations Act, as amended (herein called the
Act), when, on or about July 31, 1979, it unilaterally
changed the method of payment of wages to some of its
employees from an incentive pay system to an hourly
wage rate.'
At the close of the hearing, oral argument was
waived; however, post-hearing briefs were subsequently
filed by counsel for the General Counsel and by counsel
for Respondent, which have been carefully considered.
Upon the entire record in this case, including argu-
ments of counsel, I make the following:
FINDINGS OF FACT
2
I. THE ALLEGED UNFAIR I.ABOR PRACTICES
At its Clarksburg, West Virginia, facility, Respondent
is engaged in the manufacture and nonretail sale of glass-
ware. For a period exceeding 30 years, the Company and
Union have engaged in collective bargaining, the last
collective-bargaining contract extending from March 25,
1977, to April 1, 1980. It appears that, for some period of
time prior to the events giving rise to the issue in this
case, some of the production jobs within the bargaining
unit covered by the contract were operated under an in-
centive pay system, while other production jobs were
hourly paid. This incentive pay system is provided for in
the contract, in pertinent part, as follows:
ARTICLE 30-INCENTIVE PROCEDURE
1. The Company will establish incentive plans
based on production standards which will provide
thirty-five percent (35%) incentive opportunity to
an experienced, qualified employee when the per-
formance is fully controlled by the employee's own
effort and the employee is turning out work of ac-
ceptable quality. This provision should not be con-
strued to be a guarantee; neither shall it be inter-
preted to mean that an employee shall not be able
to make more than thirty-five percent (35%). These
The original charge was filed on August 6. 1979, by United Glass
and Ceramic Workers of North America, Rolland Local No. 6, AFL-
CIO-CLC (herein called the Union): the complaint and notice of hearing
issued on October 22, 1979.
2 There is no issue in this case as to the jurisdiction of the National
Labor Relations Board, or as to the status of the Union as a labor organi-
zation within the meaning of the Act The complaint alleges sufficient
facts concerning the interstate operations of Respondent, which are ad-
mitted in Respondent's answer to the complaint upon which I may, and
do hereby, find that Respondent is now, and has been at all times materi-
al, an employer engaged in commerce within the meaning of Sec 2(2).,
(6), and (7) of the Act.
It is alleged in the complaint, admitted in the answer, and I find that
the Union is now, and has been at all times material herein, a labor orga-
nization within the meaning of Sec 2(5) of the Act.
production standards will be determined through
time study using modern accomplishment rating and
rest allowance techniques. Before these time studies
are taken, methods studies will be made and the
proper method and equipment will be established.
2. All production jobs, meaning all jobs coming
under the jurisdiction of the labor contract, that can
be measured will be considered for the application
of incentive. If incentive would enable the Compa-
ny to save money as well as offer increased earnings
opportunities to the participants, an incentive plan
will be established.
Sometime prior to February 23, 1979, the Company
reached a decision, based upon economic considerations,
to eliminate the incentive pay system, and so notified the
Union by letter of its desire to have a meeting to discuss
the matter. On March 14, 1979, a meeting was held be-
tween representatives of the Company and representa-
tives of the Union wherein the Company advised the
Union that it was considering the elimination of the in-
centive pay plan and its replacement by hourly rates for
the affected jobs.3 At that meeting, the Union indicated
its opposition to the Company's proposal, but agreed to
meet again at a future date.
A second meeting between the parties was held on
April 17, 1979, wherein the Company proposed rates of
pay for the employees who were then working under the
incentive pay plan. Such rates were comparable to wage
rates paid for similar job classifications at another of Re-
spondent's plants which was under contract with another
local union of the same International union. The union
representative responded that the Union had not agreed
to the elimination of the incentive pay program; that the
existing contract was a bar to said elimination, and that
the appropriate time to consider this issue was at the
next contract negotiations. The Company took the posi-
tion that it did not feel that its proposal was a violation
of the existing collective-bargaining contract. The union
representative requested that Respondent hold in abey-
ance its decision to implement the elimination of the in-
centive pay program until the Union could further con-
sider the proposal.
A third meeting between the parties was held on June
12, 1979, at which the Company again stated its intention
to eliminate the incentive pay program and substitute an
hourly wage rate for the affected jobs. The union repre-
sentative responded that it could not agree to the elimi-
nation of the incentive pay program since to do so
would weaken its position in upcoming contract negotia-
tions.
On June 28, 1979, the Company dispatched the follow-
ing letter to the president of the Union:
At the IRC meeting of June 12 the Union agreed
that it would notify the Company by June 14 its po-
sition on:
1. Incentives (Elimination)
: At that time, approximately one-fourth of the jobs in the bargaining
unit (50 out of 20(X) were covered by the incentive program
954
FOURCO GLASS COMPANY
2. Continuous Agreement (Extension)
To this date, having not heard from the Union the
Company is of the opinion that the Union is in
agreement, and the implementation of same will be
as soon as possible.
On June 29, 1979, the union president responded to the
Company's June 28 letter:
I explained to the Division Manager, Gail Bart-
lett, as he was leaving on vacation, and later to the
Division Manager at Jerry Run, that before any
agreement on either Incentives (Elimination) or
Continuous Agreement (Extension) could be agreed
upon I would get back to this company for a meet-
ing with the Company and I.R.C. Board.
There are other reasons which I can explain if
needed. This union can at any time after July 2,
1979, meet and try to reach some kind of under-
standing on these two issues. As you know I am on
my long turn off, so call my home the day and time
you wish to meet.
On July 3, 1979, the parties met again to discuss this
issue. At that meeting, Respondent again stated that it
had decided to implement the elimination of the incen-
tive pay program sometime in the future. The union rep-
resentative again stated at that meeting that the Union
was opposed to the elimination of the incentive pay pro-
gram.
On July 17, 1979, the parties met again on the issue,
and Respondent's representative stated that the incentive
pay program would be eliminated, and that the hourly
rates, previously discussed, would be imposed on July
31, 1979. The Union again indicated its opposition to the
Respondent's announcement.
By letter dated July 18, 1979, the Company notified
the union president that effective Monday, July 30, 1979,
the Company would eliminate incentive rates of pay in
certain departments, that hourly rates would be substitut-
ed, and that such hourly rates would be presented to the
Union prior to July 30. By letter dated July 20, 1979,
from the union president to the personnel director of the
Company, the Union protested the Company's actions
and indicated that said letter would serve as a grievance
and protest to the Company's violation of the contract.
On July 31, 1979, Respondent eliminated the incentive
pay program and implemented hourly rates for the af-
fected employees. Since that date, the incentive pay pro-
gram has not been reinstituted.4
II. ANALYSIS AND CONCLUDING FINDINGS
It is the position of the General Counsel that Respond-
ent violated Section 8(a)(5) of the Act by unilaterally re-
fusing to apply and/or repudiating an existing contract
provision pertaining to an incentive plan because Section
8(d) of the Act (which defines the duties of parties re-
specting collective bargaining under Section 8(a)(5)) de-
* The job classifications of the affected employees are sayers, hand
benchers. machine mailers, packers. box bxoys. assemblers, paper cutters,
checkers, and loaders and trucker%
scribes the correlative right of the Union in such circum-
stances not to be required to discuss or agree to the
modification of any terms of such collective-bargaining
agreement. s The Company's defense appears to be two-
fold; (1) that it met with the Union on at least five occa-
sions between March and August 1979, in an honest and
sincere effort to reach a fair and equitable settlement of
the issue, and the Company's proposal reflected rates of
pay which it was already paying employees at another
plant for comparable work; and (2) the pertinent provi-
sions of the collective-bargaining agreement were not so
clear and unambiguous as to find that the Company's
conduct constituted a repudiation of the contract. I am
unable to agree with Respondent's contentions for the
reasons set forth below.
As for (1) above, the fact that the Union agreed to
meet to discuss the Company's proposal, and further as-
suming that the Company's proposal was a "fair and
equitable" one, does not legitimize the Company's con-
duct. Section 8(d) of the Act clearly provides that nei-
ther party to a collective-bargaining agreement is re-
quired "to discuss or agree to any modification of the
terms and conditions contained in a contract for a fixed
period, if such modification is to become effective before
such terms and conditions can be reopened under the
provisions of the contract." The fact that the Union was
willing to listen to the proposal, and did not disagree
that the proposal was not "fair and equitable," did not
constitute a waiver of its rights under Section 8(d) of the
Act since the Union, from the very first, objected to any
proposed elimination of the incentive pay system. Thus,
it cannot be earnestly contended that the conduct of the
Union in any way constituted a waiver of its rights
under Section 8(d) of the Act.
As for (2) above, the intent of the parties to the incen-
tive pay procedure set forth in sections 1 and 2 of article
30, above-quoted, seems clear; that is to say, the proce-
dure provides in section 1 that the Company will estab-
lish incentive pay plans which will provide 35 percent
"incentive opportunity" to experienced, qualified em-
ployees; and in section 2 that all production jobs that can
be measured will be considered for the application of the
incentive pay procedure. At the time of the events here
under consideration, this had been accomplished years
ago, and the procedure was in effect for approximately
one-fourth of the jobs in the production unit. However,
the Company vigorously argues that the second sentence
of section 2, above-quoted, provides the necessary flexi-
bility or ambiguity through which it could repudiate the
incentive pay system without running afoul of the pro-
5 The pertinent part of Sec. 8(d) states:
The duties imposed upon employers, employrees, and labor organiza-
tions by paragraphs (2), (3), and (4) shall become inapplicable upon
an intervening certification of the Board, under which the labor or-
ganization or individual, which is a party to the contract, has been
superseded as or ceased to be the representative of the emplorees
subject to the provisions Iof section 9(a), and the duties sr inmposed
shall not be construed as requiring either party to discuss or agree to ant,
mirdificratin orf th, terrin and conditions contained in a contract foir a
fixed p irtod. ij such modifiration is to become ffectivre beforei *uh
termns and condirtins can be reopened under lth proisrtons of the con-
truci. [Emphasis supplied i
955
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
scriptions of Section 8(d) of the Act. On page 5 of its
brief, it is stated:
In other words, it is the Company's position the
contract provides that it establish and maintain in-
centive plans on only those jobs where it could save
money as well as offer increased earnings opportu-
nities to the participants. If in its judgment such in-
centive plans could no longer afford the Company
the opportunity to save money, as well as offer in-
creased earnings opportunities to employees, then
its obligation to continue to maintain said plans no
longer exists. If, in the Union's judgment, the Com-
pany cannot establish that it is no longer saving
money, then it can resort to the grievance and arbi-
tration procedure.
The foregoing argument is not persuasive for the fol-
lowing reason: The second sentence of section 2 pro-
vides a standard under which a production job will be
established; there is no provision in that or in any other
section of the agreement providing a procedure under
which a particular job or jobs may be disestablished
within the lifetime of the agreement. The Company's ar-
gument that the Union can resort to the grievance and
arbitration procedure if it is unhappy with the Compa-
ny's repudiation is not appealing since, if it is the Compa-
ny's opinion that it has a grievance or right under the
contract which it feels the Union does not recognize, the
contract makes it clear that the "grievance procedure
shall also be available to the Company and any Company
grievance shall be processed commencing at Step 3 of
the procedure." 6
In the light of the foregoing discussion, I find myself
in agreement with the contention of the General Counsel
that Respondent was statutorily required to wait until
the expiration of the contract to implement the change in
working conditions C d S Industries, Inc., 158 NLRB
454 (1966). In that case the Board contrasted the situa-
tion where an employer, during timely negotiations for a
new agreement near the end of an expiring contract, pro-
poses a change in contract conditions and the union re-
fuses to bargain. The employer does not violate his statu-
tory obligation, under those circumstances when he uni-
laterally institutes the change. The Board went on to
hold 158 NLRB at 457:
The situation is dfferent [sic], however, where, as
here, an employer seeks to modify during the life of
an existing contract terms and conditions of em-
ployment embodied in the contract and made effec-
tive for its term. In the latter situation, a bargain
having already been struck for the contract period
and reduced to writing, neither party is required
under the statute to bargain anew about the matters
the contract has settled for its duration, and the em-
ployer is no longer free to modify the contract over
the objection of the Union.
In view of all of the foregoing, I find that the conduct
of Respondent, on or about July 31, 1979, in unilaterally
6 See art 6, sec H, on page 10 of Ihe collective-bargaining agreement
repudiating or modifying an existing contract provision
over the repeated objections of the Union, was in dero-
gation of Section 8(d) of the Act, and therefore was in
violation of Section 8(a)(5) of the Act.
CONCILUSIONS OF LAW
I. Fourco Glass Company, Rolland Division, is an em-
ployer engaged in commerce within the meaning of the
Act.
2. United Glass and Ceramic Workers of North Amer-
ica Rolland Local No. 6, AFL-CIO, is a labor organiza-
tion within the meaning of the Act.
3. All production and maintenance employees em-
ployed by Respondent at its Clarksburg, West Virginia,
facility, excluding all employees under the jurisdiction of
the Window Glass Cutters League, AFL-CIO, salaried
and clerical employees, professional employees, and su-
pervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been the
exclusive representative of all employees within the said
appropriate unit for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment,
or other terms and conditions of employment within the
meaning of Section 9(a) of the Act.
5. By unilaterally repudiating the incentive pay system
provided for in the collective-bargaining agreement exist-
ing between the Respondent and the Union on or about
July 31, 1979, the Respondent has engaged in and is en-
gaging 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 affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent refused to bargain by
unilaterally repudiating the incentive pay system in the
manner described above, I will recommend that, upon
request, Respondent restore such system as it existed
prior to Respondent's implementation of an hourly wage
program on or about July 31, 1979, and that it cease and
desist from instituting changes in the rates of pay, wages,
hours of employment, or other terms and conditions of
employment of its employees during the effective term of
the collective-bargaining agreement covering said em-
ployees without first reaching agreement with the Union
concerning such changes.
I will further recommend that the approximately 50
employees affected by Respondent's unlawful conduct be
made whole for any losses suffered thereby. Any back-
pay for such employees is to be computed in the manner
prescribed in F: W. Woolworth Company, 90 NLRB 289
956
FOURCO GLASS COMPANY
(1950), with interest as prescribed in Florida Steel Corpo-
ration, 231 NLRB 651 (1977). 7
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 8
The Respondent, Fourco Glass company, Rolland Di-
vision, Clarksburg, West Virginia, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with the Union as
the exclusive representative of its employees in the
above-described appropriate unit by making unilateral
changes in their rates of pay, wages, hours of employ-
ment, or other terms and conditions of employment
during the term of the contract without first reaching
agreement with the Union concerning such changes.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their right to self-organization, to form, join, or assist
United Glass and Ceramic Workers of North America,
Rolland Local No. 6, AFL-CIO-CLC, or any other
labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right
See, generally, Isis Plumbing d Hearing Co., 138 NLRB 716 (1962).
"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 find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the 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.
may be affected by the provisos to Section 8(a)(3) of the
Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Upon request of the Union, rescind the hourly
wage rate plan which Respondent unilaterally instituted
on or about July 31, 1979, and restore the incentive pay
plan which existed prior thereto.
(b) Make whole the employees who may have been
adversely affected by the Respondent's unilateral repudi-
ation of the incentive pay plan on or about July 31, 1979,
with interest.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at the Respondent's plant in Clarksburg, West
Virginia, copies of the attached notice marked "Appen-
dix." 9 Copies of said notice on forms provided by the
Regional Director for Region 6, after being duly signed
by Respondent's authorized representative, shall be
posted by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees 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 6, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board' shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.
957