Master Appliance Corp.

National Labor Relations Board - Board Decisions

May 29, 1967

164 N.L.R.B. 1189 (N.L.R.B. 1967)

MASTER APPLIANCE CORP. 1189
Master Appliance Corporation and Allover
Clipper Products Co. and Teamsters,
Chauffeurs , and Helpers Union Local
No. 43 , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America . Case 30-CA-233.
May 29,1967
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On May 20, 1966, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding,' finding, inter alia, that the
Respondent, by unilaterally terminating its practice
of fixed weekly amounts of overtime for all its
employees, violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended, and
directing that the Respondent make its employees
whole for any loss of earnings they suffered by
reason of this conduct.
On September 23, 1966, the Board's Regional
Director for, Region 30 issued and served upon the
parties a backpay specification and notice of
hearing, and the Respondent duly filed an answer
thereto. Pursuant to notice, a hearing was held
before Trial Examiner Laurence A. Knapp on
December 8, 1966, for the purpose of determining
the amounts of backpay due. On January 23, 1967,
the Trial Examiner issued his Decision, which is
attached hereto, finding July 15, 1965, to be the
cutoff date of the backpay period. Thereafter, the
General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief, the
Union filed cross-exceptions, and the Respondent
filed a reply to General Counsel's exceptions and
Charging Party's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
entire record in this case, including the Trial
Examiner's Decision, the exceptions and cross-
exceptions, the General Counsel's brief, and the
Respondent's reply, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner only to the extent consistent with this
Decision.
The record discloses, in relevant part, that on
May 28, 1965, after the Union won a Board election,
the Respondent, motivated by unlawfully dis-
criminatory considerations, unilaterally eliminated
its practice of having all employees work fixed
amounts of overtime each week. After charges had
been filed by the Union, the Respondent and the
Union entered into contract negotiations. During the
negotiations the Union inquired whether the
Respondent was willing to reinstate the former
overtime practice, but the Respondent insisted on its
right to terminate the practice and declined to
resume it. When the discussion on this matter
became heated, it was terminated by the Union's
remarks that further discussion was useless and that
the question of the Respondent's action relative to
the overtime matter should be left for disposition by
the Board.
The Respondent and the Union on September 17,
1965, executed a contract with an effective date of
July 15, 1965. This contract contained a general
provision regarding hours of work and wages, an
overtime provision which prohibited regular or
steady overtime for the entire shop if any employee
with seniority should be on layoff, and a zipper
clause which provided that the parties had
bargained fully with respect to terms and conditions
of employment. The contract contained no express
reference to the issue arising from the Respondent's
termination of its prior overtime practice.
The original hearing in this case was held on
September 29 and 30, 1965, before Trial Examiner
Dixon. At the hearing, the Respondent moved to
dismiss the charges on the ground that the issues
were moot because of the contract it had entered
into with the Union. The Board, in its Decision and
Order, denied this motion,2 and, in fact, added to the
Trial Examiner's recommended order a provision
requiring the Respondent to bargain with the Union,
which the Trial Examiner had expressly omitted
because of the contract.3
On July 21, 1966, the Respondent and the Union
entered into an agreement which provided that:
If the company proposal, with changes, agreed
-upon tonight (7/21/66) are ratified by the
membership, the cut-off date on N.L.R.B.
charges will be established as June 10, 1966, by
the Union.
It is understood that both parties have full rights
to all appeals.
The backpay specification alleges June 10, 1966,
as the cutoff date for the backpay obligation, while
the Respondent contends that the cutoff date should
be found to be July 15, 1965. The parties agreed at
the backpay hearing that the sole issue to be
determined was the date upon which the
Respondent's backpay liability should terminate,
' 158 NLRB 1009
2 158 NLRB 1009, fn 2
3 158 NLRB 1009, the section of the Trial Examiner's Decision
entitled "The Remedy."
164 NLRB No. 160
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the issue was narrowed to a determination based
upon one of these two dates. No exception was taken
to any other allegation in the backpay specification.
The Trial Examiner concluded in his Decision that
the 1965 contract had the effect of replacing the
prior overtime practice with different terms and
conditions of employment , and, therefore,
established July 15, 1965, as the cutoff date of the
backpay period. We find merit in the General
Counsel 's exceptions for the following reasons.
As noted above , although the contract was raised
by the Respondent as a defense at the original
hearing, the Board did not limit the Respondent's
liability for backpay to the date of the 1965 contract.
Such a limitation would have seemed appropriate if
the Board had viewed the 1965 contract as an
effective termination of the make -whole order it
issued.
Furthermore , it is established law that the remedy
of backpay is not a private , but public , right , granted
by the Board to effectuate the policies of the Act.4
Its purpose is not to punish the respondent or to
enrich the employees discriminated against, but
simply to make the employees whole through the
restoration of earnings lost as a result of the
employer 's discriminatory conduct . Agreements
between an employer and a union in which the union
waives its right to further backpay are given due
consideration in determining when the period of a
backpay obligation has terminated. Any waiver of an
employer's backpay liability by a union cannot be
lightly inferred , however , but must be in "clear and
unmistakable" language.5 The Board will not find
that contract terms in themselves amount to a
waiver unless the contract so provides expressly or
by necessary implication.
In the instant case, the Respondent argues that
the record supports an inference of waiver on the
basis of the wage, hour , and overtime provisions of
the 1965 contract . As the contract contains no
specific reference , however , to any agreement that
these provisions were intended as a termination of
the Respondent 's backpay obligation , which stems
not only from Respondent's violation of Section
8(a)(5), but from its violation of Section 8(a)(3) and (1)
as well , we are unable to conclude , on this basis
alone , that the Union clearly and unmistakably
waived its right to a continuation of the backpay
liability until the unfair labor practice in question
was remedied . Nor are we able to find adequate
support for an inference of waiver by considering
these provsisions in juxtaposition with the zipper
clause in the contract . A wrap-up clause of this
nature , which does no more than indicate that the
parties have embodied their full bargaining
agreement in the written contract , affords no basis
for an inference that the agreement contains an
implied understanding over and beyond those
actually written into the contract . 6 We find,
therefore, that the specific provisions of the 1965
contract do not establish a waiver of the backpay
obligation.
In determining the parties ' actual contractual
intent , we are not restricted to the contract
provisions themselves but may properly evaluate
them against the background of the bargaining
negotiations.' In the present case , the Union, during
the contract negotiations , expressly reserved its
right to have the overtime issue resolved by the
Board. This indicates that the Union was seeking
thereby to reserve its claim to backpay. To hold
otherwise would amount to giving the Union the
choice of insisting upon its right to the point of
impasse of relinquishing its claim to backpay in
order to obtain a contract.
Furthermore, the Board has held that the filing of
charges and the issuance of a complaint , without
more, are sufficient to raise the inference that the
charging union , by entering into a contract , was not
waiving its right to the remedy it was pursuing
through Board processes.8 Finally, it appears from
the 1966 agreement which expressly provides for
June 10, 1966, as the "cut-off date on N.L.R.B.
charges," that the Respondent and the Union
understood that the 1965 contract had not settled the
Union's claim for backpay or amounted to a waiver
on its part of its right to pursue that claim.
Accordingly, on the basis of the entire record, and
particularly the considerations set forth above, we
shall order the Respondent to make whole the
employees named below by paying them backpay
through June 10, 1966 , in the manner and amounts
set forth in the backpay specification.
SUPPLEMENTAL ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Master Appliance Corporation and Allover Clipper
Products , Racine, Wisconsin , its officers , agents,
successors , and assigns , shall make the following
named employees whole by paying them the
amounts set forth opposite their names , plus interest
accrued to the date of payment, less the tax
withholding by Federal and State laws:
4 Nathanson , Trusteee in Bankruptcy of Mackenzie Coach Lines
v N.L.R B ., 344 U .S 25; Clayton - Willard Sales, 126 NLRB 1325.
' Timken Roller Bearing Co . Y. N.L R B., 325 F 2d 746 (C A. 6),
cert . denied 376 U.S. 971; New York Mirror, 151 NLRB 834, Smith
Cabinet Manufacturing Company , 147 NLRB 1506.
6 New York Mirror, supra, 840
7 C & C Plywood Corporation , 148 NLRB 414 ; Kennecott
Copper Corporation (Chino Mines Division), 148 NLRB 1653
8 See United States Gypsum Company, 155 NLRB 1216
MASTER APPLIANCE CORP. 1191
Jerry Snell $ 741.00
Willie K. Sauer 537.65
Rudolf Stoewe 208.00
Stephen Krewal 2,979.35
Mary Hegeman 763.15
Hazel Walters 501.91
Viola Anderson 194.61
Letha Mueller 336.15
Alice Crilley 384.70
Marcia Hoffman 668.78
Wilma Gibbons 683.69
Elsie Donnelley 64.73
Eleanor Sunde 40.51
Verna Junim 70.54
Helen Sheeder 68.56
TRIAL EXAMINER'S DECISION IN SUPPLEMENTAL
BACKPAY PROCEEDINGS
STATEMENT OF THE CASE AND OF PRIOR PROCEEDINGS
LAURENCE A. KNAPP, Trial Examiner: This sup-
plemental proceeding for the determination of
backpay, heard before me in Racine, Wisconsin, on
December 8, 1966, springs from an earlier Decision of the
Board, 158 NLRB 1009, issued May 20, 1966. In that
Decision the Board, upholding the findings of Trial
Examiner Dixon, found that Respondent had violated the
Act by, inter alia, a discriminatory elimination of an
employment practice whereby overtime had regularly
been given to and performed by its employees, and
ordered Respondent to make its employees whole for their
corresponding losses of earnings . Differences having
thereafter arisen between the parties concerning the
amount of backpay due under the Board's Order, the
Board's Regional Director, on September 23, 1966, issued
and noticed for hearing the backpay specification in this
supplemental proceeding.' As set forth in Respondent's
answer to the specification, and as expressly stipulated by
counsel at the hearing herein, the sole issue to be
determined is presented by the contention of Respondent
that the backpay "cutoff" date, i.e., the date upon which
Respondent's liability for backpay should terminate, is
July 15, 1965, the effective date of a collective-bargaining
agreement entered into by Respondent and the Charging
Party (hereinafter called the Union). Respondent takes no
other exception to the allegations of the specification so
that if its contention' as to the July 15, 1965, cutoff date is
found not meritorious, then in this state of the pleadings
the cutoff date alleged in the specification, namely,
June 10, 1966, and the amounts of backpay calculated on
that basis as set forth in the specification, are entitled to
adoption without more.
Following the hearing, counsel for the General Counsel
and for Respondent submitted briefs which I have
considered. Upon the entire record in the case I make the
following:
1. FINDINGS OF FACT
The only facts necessary to find in this proceeding are
those which the parties consider relevant to Respondent's
position that the backpay cutoff date is July 15, 1965. In
this connection, Respondent's evidence is, and I find, that
following collective bargaining between Respondent and
the Union, these parties, on September 17, 1965, entered
into a collective-bargaining agreement with an effective
date of July 15, 1965. This agreement (Resp. Exh. 1)
contains provisions dealing with such customary matters
as wages, hours, grievance and arbitration procedure,
seniority, vacations, sickness and accident insurance, etc.
Respondent contends that the legal effect of the execution
of this agreement, and of certain provisions thereof, is to
fix July 15, 1965, as the backpay cutoff date. Particular
provisions of the agreement relied upon by Respondent in
this connection are set forth in the footnote below.' In
further relation to Respondent's position, I find that the
type of general overtime practice Respondent was found to
have discriminatorily discontinued has never since been
resumed and that no such overtime has been worked by
Respondent's employees since its discontinuance. It
should further be noted that the Board did not order
Respondent to reinstate the overtime system, and that, on
the basis of Respondent's discontinuance of this system
without prior bargaining over the matter with the Union,
the Board's Order requires Respondent to bargain
collectively with the Union concerning wages, hours, and
other terms and conditions of employment.
For his part, the General Counsel adduced
uncontradicted testimony concerning a discussion
between counsel for Respondent and an official of the
Union during the bargaining negotiations which led to the
1965 agreement, designed to establish and which does
establish that during these negotiations the Union did not
waive its right to pursue its charges of violation and any
i In obvious anticipation of this proceeding , counsel for the
General Counsel and for Respondent entered into a stipulation on
September 15 and 16, 1966, in which, with Respondent conceding
that the Board's Order in the main case is in all respects valid and
proper , these parties registered the existence of their dispute
relative to the amount of backpay, agreed that the backpay issue
could be set down for hearing and determination , and further
stipulated that in the event of any judicial review of a Board
backpay determination, the sole issue for the court would be that
of the validity of that determination.
2 These provisions are:
1 Section 7 of "ARTICLE V-SENIORITY," which reads.
No regular or steady overtime will be worked for the entire
shop if employees with seniority are then on layoff.
2 The first paragraph of section 1 of "ARTICLE
VIII-HOURS OF WORK AND OVERTIME," which reads-
The general workweek shall begin at 7.00 a. m on each
Monday morning and end at 7.00 the next Monday morning
and each work day shall begin at 7.00 a.m. and end the
following day at 7 a in The standard work day shall consist of
eight (8) hours which shall not include the noon lunch period
of one-half (1/2) hour The standard workweek shall consist of
forty (40) hours, Monday through Friday inclusive
3 Section 13 of article VIII, which reads-
It is agreed that the parties hereto have fully bargained
with respect to wages, hours and all other terms and
conditions of employment and have fully settled the same for
the term of this agreement in accordance with the terms
hereof.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resulting claims to backpay in the Board proceedings
which led to the backpay order.3
II. THE LEGAL ISSUE; ANALYSIS AND DISPOSITION
The proper path to pursue in determining the issue of
the backpay "cutoff" date comes clearly into view when
there is borne in mind the essential character of the
overtime system which Respondent discontinued. As the
Board's findings in the underlying main proceeding show,
this was not what is commonly denoted by the term
"overtime"; i.e., hours greater thanithe norm worked on an
occasional basis by particular employees, as production or
related requirements may from time to time necessitate.
On the contrary, as those findings establish, Respondent's
practice, in effect steadily for some years, was one under
which Respondent's employees as a whole, and as a fixed,
regular , and continuous matter , worked overtime-the
female employees for an average of 5 hours per week and
the male employees for an average of 10-20 hours per
week. This well-established system, as the Board found,
was utilized in substitution for wage increases and was
Respondent's way of providing its employees, as a whole,
with greater earnings than they would otherwise have
received. In short, Respondent's so-called "overtime"
system was a combination wage-hour pattern applicable to
all its employees as a group and determinative of their
total earnings or income levels.
A plantwide earnings-level system of this character
obviously represents a term or condition of employment
and a prime subject of mandatory bargaining between
Respondent and the Union, as the Board necessarily found
and concluded in its main Decision.4 Equally obviously,
therefore, whether this general "overtime" practice
should or should not continue to exist as the governing
formula relative to the wage rates, hours of employment,
and resulting gross earnings of the employees were
matters on which the Union, as the bargaining
representative selected by Respondent's employees at the
May 27, 1965, election, was empowered to deal with and
dispose of in collective -bargaining negotiations with
Respondent for an agreement respecting wages, hours,
and other terms and conditions of employment applicable
to all the employees represented. Such an agreement was
negotiated between Respondent and the Union, and
I On the basis o. this testimony, I find that during the
discussion in question Mr Brach, negotiating counsel for
Respondent, made some inquiry concerning the charges filed by
the Union and that, in response, the union official, Mr Gnmmer,
referred to Respondent's termination of the overtime practice as
violative of the Act on the grounds (later sustained by the Board)
that this action had not been discussed with the Union as the
employees' bargaining representative and was an antiunion move
on Respondent's part, that in the further course of this discussion
Mr. Gnmmer inquired whether Respondent was willing to
reinstate the practice and Mr Brach, in response to this query or
otherwise, declined to resume and insisted upon Respondent's
right to terminate the practice; and that as exchanges of this tenor
continued and grew more heated they were brought to an end by
statements of Mr Grimmer to the effect that further discussion
was useless and the question of the validity of Respondent's
action relative to the overtime matter should be left for processing
before and disposition by the Board.
* As previously noted, the Board's finding of refusal to bargain
rests exclusively upon Respondent's discontinuance of the
overtime system without first negotiating with the Union on the
matter
concluded on September 17, 1965, but with its provisions,
including the wage and hour and related terms, effective
as of July 15, 1965. This agreement covers a wide range of
subjects, as previously noted, and contains extensive
provisions establishing the (hourly) wage rates for what I
infer are all job classifications represented in
Respondent's plant (article X), including overtime and
holiday premium rates; and provisions establishing a
"standard" 8-hour day and a "standard" 40-hour week
(article VIII). The wage and hour pattern established by
these provisions contains no requirement that
Respondent's employees be regularly accorded overtime
and otherwise obviously is different from the combination
wage and hours-of-work pattern which constituted
Respondent's previous practice; the new pattern, thus,
can only be regarded as replacing the prior system as an
employment term or condition, whether that effect was or
was not (as it was not) explicitly so noted in the contract.5
With or without the benefit of the "zipper" clause (see
item 3 of fn. 2, supra), the agreement settled the matters of
wages and hours, and, in doing so on a basis other than
continuation of the system previously prevailing in these
areas, represented an abandonment by mutual consent of
that previous system as of the effective date of the
agreement . Put another way, the Union was faced in the
bargaining negotiations with the alternatives of insisting to
the point of impasse upon resumption and continuation of
Respondent's previous "overtime" (combination wage-
hour) pattern or agreeing to different terms relative to
wages and hours of work. Quite plainly, it chose the latter
course. Having done so, the effect of the contract was to
fix the terms as to wages, hours, etc., which were to prevail
in Respondent's plant and thus, necessarily, to establish
the terminal point of the different employment practices
previously prevailing as a term or condition of employment
of the employees.a Neither the Union, nor derivatively the
General Counsel, can in the same breath assert that
following the contract Respondent was somehow subject
to two different sets of wage and hour stipulations, those
set forth in the agreement and others not. Rather, in
entering into the agreement it did, the Union necessarily
consented to and acquiesced in Respondent's
abandonment of the prior employment practice.7
Moreover, if circumstantial evidence bearing upon
specific intent is to be considered, the contract's
5 As earlier indicated, however (fn. 3, supra), at one point in
the negotiations the Union inquired whether Respondent would
resume the former "overtime" practice and Respondent refused
to do so
6 Employment practices affecting employees generally, such as
steady overtime, assume the status of terms or conditions of
employment within the meaning of the Act, as many Board and
court decisions uniformly recognize
' In this connection, it is noteworthy that the Board did not
order Respondent to resume the former overtime practice (thus
leaving the matter to the collective bargaining between the parties
which the Board's order contemplates ); and that with , so far as
this record is concerned, no specific objection by the Union
subsequent to the execution of the 1965 contract , that system has
never been resumed This long acquiescence by the Union after
conclusion of the 1965 agreement goes far to indicate its
recognition that the provisions of that agreement were dispositive
of the rights of the employees and obligations of Respondent
relative to wages and hours of work and, in any case, should estop
the employees and the Union as their representative, and
derivatively the General Counsel, from belatedly asserting a
contrary claim
MASTER APPLIANCE CORP.
provisions concerning the "standard" 8-hour day and the
"standard" 40-hour week, coupled with the further
provision that "No regular or steady overtime will be
worked for the entire shop if employees with seniority are
then on layoff," clearly indicate the implicit understanding
of the parties that Respondent was to be under no
obligation to resume or continue, as a standard or regular
employment practice, the prior so-called "overtime"
system but, rather, that Respondent was to be precluded
from doing so in one circumstance; i.e., when any
employee with seniority rights (as defined in the
agreement) should be on layoff status. If this latter
provision may be interpreted as implicitly authorizing
Respondent to employ the previous "overtime" practice in
some circumstances, the only effect of such an
interpretation, for present purposes, would be to permit
Respondent to make use of the prior practice without
violating the agreement or its bargaining obligation to the
Union. But a provision interpreted to permit Respondent
so to resume the prior practice necessarily implies the
existence of a right, exercisable in Respondent's
discretion, not to do so.
Viewed in still another light, if Respondent had not
terminated the "overtime" practice on May 28 but had
continued it until July 15 and had then abandoned the
practice , as a general and uniform one, in consequence of
a collective-bargaining agreement with the Union
containing provisions establishing a different wage, hour,
and earnings pattern, certainly July 15 would have to be
accepted as the date upon which Respondent's wages-
hours of work terms changed from one pattern to another.
That, in legal effect, is what happened in this case, since it
is immaterial , for purposes of determining the terminal
point of the backpay period, that its beginning date was
fixed by a violation of the Act. That violation did not
render any the less bargainable the question whether this
former practice or some other terms as to wages and hours
8It should be noted that in the instant specification, the
General Counsel alleges June 10, 1966, as the proper cutoff date,
and does so because, the specification alleges, this was a "date
upon which the Union expressly agreed to an increase in wages
for all Respondent 's employees in lieu of overtime ." The only
record evidence pertinent to this allegation is a copy of an
agreement entered into between representatives of the Union and
Respondent , apparently on July 21 , 1966, which is to the effect
that if the Union's membership were to agree that night upon
some unidentified proprosal of Respondent , the Union would
accept June 10, 1966, as the cutoff date of the backpay claim
period . (The agreement preserves Respondent 's rights to contend
otherwise ) I consider it significant that the General Counsel has
thus been willing to acknowledge that a contractual agreement
1193
should govern the employment conditions of Respondent's
employees."
I thus conclude that Respondent correctly contends that
the effect of the 1965 agreement and the surrounding
factors I have alluded to was to replace the prior
"overtime" practice with different terms and conditions of
employment applicable to Respondent's employees and to
establish, as I find and conclude, July 15, 1965, as the
cutoff or terminal date of the backpay period.
In his brief, the General Counsel does not deal with the
matter of the effect of the 1965 contract or its provisions as
serving to establish the cutoff date. Rather, he seeks to
rebut positions he anticipated would be but have not been
urged by counsel for Respondent. Thus, he argues that in
entering into the 1965 contract the Union did not waive the
rights of the employees to pursue the backpay claim in the
main proceedings before the Board, and, further, that such
a claim could not have been waived, once the charges were
filed, without the express approval of the Board. These
propositions of law are no doubt correct but the issue
presented is not whether the claim could be or was waived.
On the contrary, the Board's order in the main proceeding
upholds that claim and establishes the date when the
consequent right to backpay shall begin. The true question
is the date upon which that right terminated and none of
the General Counsel 's arguments have any relevance to
this real issue.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and
conclusions , I find July 15, 1965, to be the proper cutoff
date of the backpay period, and recommend that the
Board so find and remand the case to the Regional
Director for further proceedings, including the issuance of
a revised specification if necessary, consistent with that
finding."
between Respondent and the Union can suffice to establish the
terminal date of the backpay period, in my view, he has simply
failed to apply this principle properly, that is, to give this same
effect to the 1965 agreement
B It is not possible on the basis of the specification previously
issued to calculate the amounts of backpay payable, in respect to
the period from May 28 to July 15, 1965, to the correspondingly
eligible employees. Presumably the necessary revised
calculations will be readily reached by agreement among the
parties without the necessity of further formal proceedings, since
Respondent has contended for the July 15 cutoff date and has not
challenged the methods of calculation utilized in the existing
specification.
U S GOVERNMENT PRINTING OFFICE 1969 OL-298-668