Skyway Luggage Co.

National Labor Relations Board - Board Decisions

Mar 20, 1957

117 N.L.R.B. 681 (N.L.R.B. 1957)

SKYWAY LUGGAGE CO. 681,
engaged in unfair labor practices within the meaning of Section 8 (b) (3) of the
Act.
6. The above unfair labor practices are unfair labor practices within the meaning
of Section 2 (6) and (7) of the Act.
7. Neither District #4 Council of United Packinghouse Workers of America,
AFL-CIO, nor the International of that Union has engaged in unfair labor practices
against the Du Quoin Packing Company.
[Recommendations omitted from publication.]
Skyway Luggage Co. and Luggage Workers Union Local 51. Case
No.19-CA-1305. March 20,1957
DECISION AND ORDER,
On August 27, 1956, Trial Examiner Herman Marx issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom` and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief in support thereof, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
modification :
The Trial Examiner finds, and we agree, that the Respondent re-
fused to bargain with the Union on November 2, 1955, and thereafter,
in volation of Section 8 (a) (5) and (1) of the Act. The Respondent
refused, during contract negotiations, to furnish information about
a piecework bonus plan in effect in its covering department and to
negotiate about this bonus, although repeatedly requested to do so by
the Union. As the bonus was a part of wages, it was a bargainable
issue and not, as the Respondent maintained, a matter of manage-
ment prerogative. Although the Union executed a 5-year contract
on January 12, 1956, which contained no reference to this bonus plan,
we find, as did the Trial Examiner, that the contract does not-pre-
elude a finding of refusal to bargain. We find in this connection,
as did the Trial Examiner, that'the Union did not thereby waive its
demands for information and for negotiations on this issue, but, rather,
that it expressly reserved the matter for Board determination.' We
do,not find it necessary to adopt all the Trial Examiner's reasoning
"See N. L. R B. v The Item Company, 220 F 2d 956, 958 (C. A. 5), cert. denied
350 U. S. 905; cf. International News Service Division, 113 NLRB 1067.
117 NLRB No. 106.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with regard to this waiver issue, but rely on uncontradicted and cred-
ited testimony establishing that at the final negotiating conference
on December 14, 1955,2 when the Respondent repeated its refusals to
'furnish information and to bargain about this bonus plan, the Union
proposed that the matter be reserved for determination by the Board,
to be incorporated in a supplemental agreement if the Board required
the Respondent to bargain thereon, and the Respondent agreed that
the matter be submitted to the Board .3
ORDER,
Upon the entire record in this case, and, pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Skyway Luggage Co.,
Seattle, Washington, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Luggage Workers Union
Local 51, affiliated with International Leather Goods, Plastic and
Novelty Workers Union, AFL-CIO, as the exclusive bargaining rep-
resentative of all production, shipping, and maintenance employees
employed by the Respondent, excluding all office, professional, and
clerical employees, guards, and supervisors as defined in the Act, with
respect to the terms of section 24 of the proposed agreement submitted
by the said Union to the Respondent in September 1955, and the
maintenance, terms, and conditions of any plan or system of compen-
sation for any of the Respondent's employees in^ which piece rates
or piecework or quantity of production are factors, in whole or,in
part, in the computation of such compensation.
2 Although the parties met after December 14, the subsequent meetings , as the Trial
Examiner found , were devoted only to the formulation of the contract language and the
execution of the agreement . The December 14 meeting was the last meeting, however,
at which there was give-and-take discussion about the contract ' s substantive provisions.
In this sense, it was a "final " bargaining session
Steger, a representative of the Union , testified in part as follows with regard to his
discussion with Kotkins , president of the Respondent, at the December 14 conference :
I said, "Now , Mr. Kotkins , we have;had som'ediscussion , 'some trouble , regarding
the production bonus you have in effect Up until now we have had no success in
getting any information about it , and I would like to know what your position is on
it. We would like to incorporate that in the contract " :1Ir Kotkins said, "Now,
that bonus was put into effect because of a particular problem we had in that
department and, in effect, it is a company gift , it has nothing to do with the con-
tract, I am not going to talk about it. I said, ". . '. You must surely know.11
it is a part of wages, you are obligated to bargain on it , and I am sure that the
Board would order you to do so " He said he didn't think so I said, "well , if that
is the case , Mr Kotkins , we will have to leave it up to the Board whether you are
required to bargain on this matter If the Board orders that you are required to
bargain on it, I trust you will then sit down and negotiate provisions covering
the bonus " . I told him that we could either sign a memorandum of agreement
or addendum to the contract incorporating the additional . provisions of the produc-
tion bonus . . The only reply I can recall him making was to the effect that, "well,
we will let the, Board decide on that"
Kotkins testified at the hearing but did , not contradict any of this testimony.
SKYWAY LUGGAGE, CO. 683
(b) Refusing to bargain collectively with Luggage Workers Union
Local 51, affiliated with International Leather Goods, Plastic and
Novelty Workers Union, AFL-CIO, as the exclusive bargaining rep-
resentative of the employees in the unit described above, by refusing to
furnish the said Union with information describing and setting forth
in full the methods and bases for computing the compensation of any
of the Respondent's employees, which is based, in whole or in part,
upon any plan or system of compensation in which piece rates or
piecework or quantity of production are factors in such computation.
(c) In any like or similar manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form, join, or assist any labor organization, to join or assist Luggage
Workers Union Local 51, affiliated with International Leather Goods,
Plastic and Novelty Workers Union, AFL-CIO, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
.requiring membership in a labor organization as a condition of em-
ployment, as, authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Luggage- Workers
Union Local 51, affiliated with International Leather Goods, Plastic
and Novelty Workers Union, AFL-CIO, as the exclusive represent-
ative of the employees in the appropriate unit described above, with
respect to the terms of section 24 of the proposed agreement submitted
by the said Union to the Respondent in September 1955, and the main-
tenance, terms, and conditions of any plan or system of compensation
for any of the Respondent's employees in which piece rates or piece-
work or quantity of production are factors, in whole or in part, in
'the computation of such compensation; and, if an agreement is reached,
embody it in a signed contract.
(b) Upon request, furnish to Luggage Workers Union Local 51,
affiliated with International Leather Goods, Plastic and Novelty
,Workers Union, AFL-CIO, information, in writing, describing and
setting forth in full the methods and bases for computing the-
com-pensation of any of the Respondent's employees, which is based, in
whole or in part, upon any plan or system of compensation in which
piece rates or piecework or quantity of production are factors in such
computation.
(c) Post at its plant in Seattle, Washington, copies of the notice
attached hereto marked "Appendix A."' Copies of said notice, to
* In the event that 'this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to ,a Decree of the United States Court of Appeals , Enforcing an Order."
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be furnished by the Regional Director for the Nineteenth Region,
shall, after being signed by the Respondent's representative, be posted
by the Respondent and maintained by it for sixty.(60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable, steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the said Regional Director in writing, within ten (10)
days from the date of this Order, what steps the Respondent has
taken to comply therewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL bargain collectively, upon request, with Luggage
Workers Union Local 51, affiliated with International Leather
Goods, Plastic and Novelty Workers Union, AFL-CIO, as the
exclusive representative of all the employees in the bargaining
unit described below with respect to the terms of section 24 of
the proposed agreement submitted by the Union to us in Septem-
ber 1955, and the maintenance, terms, and conditions of any
plan or system of compensation for any of our employees in which
piece rates or piecework or quantity of production are factors,
in whole or in part, in the computation of such compensation ;
and if an agreement is reached, we will embody it in a signed
contract. The said bargaining unit is :
All our production, shipping, and maintenance employees,
excluding all office, professional,, and clerical employees,
guards, and supervisors as defined in the National Labor
Relations Act.
WE WILL, upon request of Luggage Workers Union Local 51,
affiliated with International Leather Goods, Plastic and Novelty
Workers Union, AFL-CIO, furnish the said Union with infor-
mation, in writing, describing and setting forth in full the
methods and bases for computing the compensation of any of our
employees, which is based, in whole or in part, upon any plan or
system of compensation in which piece rates or piecework or
quantity of production are factors in such computation.
WE WILL NOT, by so failing or refusing to bargain or to furnish
the said information, or in any like or similar manner, interfere
with, restrain, or coerce our employees in the exercise of the
SKYWAY LUGGAGE CO. 685
right to self-organization, to form, join, or assist any labor or-
ganization, to join or assist Luggage Workers Union Local 51,
affiliated with International Leather Goods, Plastic and Novelty
Workers Union, AFL-CIO, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all of such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the
Act.
SKYWAY LUGGAGE CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On January 6, 1956, Luggage Workers Union Local 51 ( also referred to herein
as the Union ), affiliated with International Leather Goods , Plastic and Novelty
Workers Union , AFL-CIO ( also designated herein as the International) filed a
charge with the National Labor Relations Board ( also referred to below as the
Board ) against the Respondent , Skyway Luggage Co . An amendment to the
charge was filed by the Union on February 28, 1956. Based upon the charge, as
amended, the General Counsel of the Board issued a complaint on April 12, 1956,
alleging that the Respondent ( also described below as the Company ) had engaged
in and was engaging in unfair labor practices within the meaning of the National
Labor Relations Act, as amended ( 61 Stat. 136-163), also referred to herein as
the Act. Copies of the charge , the amendment thereof, and the complaint have
been duly served upon the Respondent.
With respect to the claimed unfair labor practices , the complaint , in material sum,
alleges that the Company , in violation of Section 8 (a) (1) and ( 5) of the Act,
has refused to bargain collectively with the Union as the representative of an appro-
priate unit of the Company's employees by (1) failing and refusing "particularly
on or about October 24 , December 9, and December 10, 1955," to supply informa-
tion to the Union concerning "the operation of a piecework bonus" applicable to
persons employed in one of the Company 's departments , although requested by the
Union to furnish such information ; and (2 ) failing and refusing to negotiate with
the Union , on the subject of the said bonus, "particularly on or about October 24,
December 9 and December 10, 1955, and January 13 and 26 , 1956 and thereafter,"
although requested by the Union so to negotiate.
The Company has filed an answer denying the commission of any unfair labor
practices , and alleging , in substance , that the Company has fuinished and supplied
the Union with full information concerning the operation of the bonus ; that such
information was at all times available to the Union through the employees to whom
the bonus system is applicable ; that the Union and the Company entered into a
collective-bargaining agreement on January 12, 1956, which, by its terms, is to
remain in effect until November 14 , 1960; that the agreement covers ",the subject
of wages"; that during the course of negotiations which led to the agreement, the
Union and the Company discussed the subject of the bonus; and that the Company
is not obligated to bargain or negotiate with the Union with respect to the bonus
"during the life" of the agreement now in effect.
Pursuant to notice duly served upon all parties, a hearing was held before me, as
duly designated Trial Examiner , on May 17 and 18 , 1956, at Seattle , Washington
The parties were represented at the hearing, participated therein through their respec-
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive representatives, and were afforded a full opportunity to be heard, to examine
and cross-examine witnesses, adduce evidence, file briefs and proposed findings of
fact and conclusions of law, and submit oral argument. The parties submitted oral
argument after the close of the evidence. The Union and the Respondent have filed
briefs which have been read and considered The General Counsel has not filed
a brief.
Upon the entire record, and from my observation of the witnesses, I make the
following
FINDINGS OF FACT
1. NATURE OF THE RESPONDENT'S BUSINESS; JURISDICTION
The Company is a corporation of the State of Washington and maintains its
principal office and a factory in Seattle, Washington, where it is engaged in the
manufacture of luggage. It annually purchases raw materials, for use in the manu-
facture of its products, of the aggregate value of approximately $1,500,000. A sub-
stantial portion of such raw materials is shipped to the Company's plant in Seattle
from places outside the State of Washington. The value of these interstate ship-
ments to the Company amounts to approximately 90 percent of the dollar volume
of the Company's purchases. The Company's gross receipts from the sale of the
products it manufactures amount to about $4,000,000 annually. Approximately
90 percent of this sum is derived from sales made by the Company to customers
located outside the State of Washington.
The Company is, and has been at all times material to this proceeding, engaged
in interstate commerce within the meaning of the Act. The Board has jurisdiction
of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
The Company employs approximately 300 persons Of these, , all production,
shipping, and maintenance employees , excluding all office, professional , and clerical
employees, guards, and supervisors 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.
In the early stages of manufacture, the Company's luggage products take the
form of boxes. These are made of plywood in the plant's box department, and
then sent through a chute to a section of the plant known as the covering department
where each box is covered, by means of a gluing process, with a material known as
Koroseal. The employees who perform the covering work are known as coverers
and are included in the bargaining unit described above. The plant employs about
12 coverers when its operations are limited to a day shift, and some 20 or 22 on
occasions when a night shift is added The issues in this proceeding center on
certain wage practices of the Company, to be described later, applicable to the
coverers.
Since about December 1950, the Union has been the exclusive bargaining repre-
sentative, within the meaning of Section 9 (a) of the Act, of the employees in the
unit mentioned above. As such representative, the Union entered into a collective-
bargaining agreement with the Company on December 1, 1950. Among other
terms and conditions, the contract (section 10) provided "minimum" hourly wage
rates for the employees affected, including coverers. By its terms, the agreement
was to remain in effect until November 15, 1955, and thereafter was "automatically
to renew itself from year to year each November 15," unless either party gave the
other a "notice in writing of intention to reopen sixty . . . days prior to November
15, 1955, or November 15 of any following year."
Since June 1953, the Company has maintained a wage plan, whereby coverers can,
in given circumstances, earn wages in addition to those provided for them in the
collective,bargaining agreement between the Union and the Company. The plan
was put into effect without prior negotiation or consultation with the Union. The
Company refers to the additional compensation as a bonus . As the Company also
pays employees another type of bonus, based upon attendance factors, which is not
in issue here, to avoid confusion, and for convenience of reference, the term "piece
rate bonus" will be used below to describe the additional compensation paid em-
SKYWAY LUGGAGE CO. 687
ployees under the plan mentioned above, and the plan will be termed the "piece-rate
system." i
To be eligible for a piece-rate bonus in any given workweek, a coverer must work
at least 40 hours during the week (with a permissible tardiness margin of some
minutes each day), although the full 40 hours need not be devoted to covering
work.2 To compute the piecework bonus, the Company maintains a "point value"
for each style of box covered. The "point value" consists of a given number of
points, ranging from 2 to 5, depending upon the style of box. For each box
covered, a coverer is credited with the applicable number of points, and these are
totaled for the week. Thus, if a coverer processes 300 boxes in a given week, each
with a "point value" of 3, he will accumulate 900 points for the week. His weekly
wage, computed at the hourly rates at which he is employed (plus whatever attend-
ance bonus and night shift differential may be due him) is also converted into
points. This is accomplished by dividing such weekly wage by 0.05, resulting in a
number of points known as the "base." If the total "point values" exceed the
"base" points, the coverer is credited with "excess points," and is entitled to a
bonus of $0.04 for each "excess point," which he is paid in addition to his base
weekly salary.
The operation of the piece-rate 'system may be exemplified by applying it, hypo-
thetically, to a coverer who is employed for 40 hours at covering work in a given
week at a base hourly rate of $1.00, and who covers 300 boxes, each with a "point
value" of 3. Such a coverer's "base" points would total 800 ($40.00=.05), and
his "point values" would amount to 900 (300 boxes X 3 points). His "excess points"
would total 100 '(900-800), and at $0.04 per "excess point," he would be entitled
to a piece-rate bonus of $4.00 (100X$0.04), which added to his base weekly pay
of $40.00 would result in a total wage for him for that week of $44.00.3
On or about September 6, 1955, the Union duly notified the Company of its
election to terminate the contract of December 1, 1950, as of November 15, 1955.
Subsequent to the notification, on a date not specified in the record, the Union and
the Company agreed that the wage provisions and other "conditions" of the contract
would remain in effect until the execution of a new agreement.
On September 26, 1955, the Union sent the Company a copy of a proposed
contract as a basis for the negotiation of a new agreement. For the same purpose,
the Union also sent an identical copy to each of two other Seattle luggage manufac-
turers (respectively referred,-to below as, Durabilt and Northwestern) with whom
the labor organization has collective-bargaining relations. Only one section of the
proposed contract terms need be quoted here, and that is section 24 which pro-
vided:"Bonus payments. Any Employer shall be free to give any Employees a
bonus provided that no bonus shall be based on piece work or competition between
Employees." It may also be noted that section 27 of the proposed contract dealt
with the subject of wages, although no wage scale was actually incorporated, since
the Union intended to submit a proposed scale at a later date.
i At bottom, as will appear, the piece-rate bonus is based upon a species of piece-rate
computations It may be added that the terminology applied to the additional compensa-
tion is of little or no moment, for, by whatevei name it is known, it is part of the wages
paid to the coverers foi their work
2 Coverers also perlonn miscellaneous duties in the covering department, such as
stacking boxes
s The method of computation varies somewhat in the case of a coverer who works at
least a 40-hour week, but devotes less than 40 hours to covering work In such a case,
by a process of arithmetical projection from the points actually earned, the Company
arrives at a sum of points which the Company assumes the employee would have earned
had he devote a full 40 hours to covering work One may assume, as the Respondent in
effect asserts, that this is done in fairness to such a coverer to enable him to earn addi-
tional compensation for the week, but that has no bearing on the basic question whether
the Respondent is obligated to bargain with the Union concerning the piecework system
and to furnish the Union with information relating to the operation of the system. I thus
deem it unnecessary, whether by exemplification or otherwise, to enlarge upon what has
already been said above concerning the basis upon which the Company computes the
piece-rate compensation The hypothetic illustration of the operation of the piecework
system in a given case, as outlined above, is sufficient for a discussion and resolution of
the meritorious issues To deal with evidence reflected in the record bearing on the
different luggage styles, "point values" applicable to each, the Company's reasons for
maintaining the piece-rate system, and the variables in its operation, would make no
significant contribution to a determination of the basic issues
Egg DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After submission to them of copies of the proposed contract terms, the three
employers held a series of joint bargaining meetings with the Union , although con-
templating the execution of separate agreements with the labor organization.
(Durabilt and Northwestern , it may be noted , are not affected by the issues, and
although some additional reference will be made to them below, various statements
made, and positions taken , by their representatives at the meetings do not materially
affect the issues.)
During the course of the negotiations , section 24 of the proposed contract terms
and the Company 's piece-rate system became a focus of controversy between the
Union and the Company, giving rise to the issues presented in this proceeding.
Pertinent features of the negotiations bearing on the issues will be summarized
below.
B. The alleged refusals to bargain concerning the piece-rate system
In general, the negotiators at the meetings followed the practice of discussing
sections of the proposed contract terms in numerical order . So far as the record
indicates , section 24 was first reached for discussion at a meeting held on October 2,
1955. On that occasion , the Union 's principal spokesman at the meeting, Charles
Hughes, an organizer for the AFL-CIO, expressed opposition to "all types of bonus
payments and piecework plans." In response , Mitchell T. Bowie, Jr.,,the Company's
personel director and its chief spokesman at all the joint bargaining sessions , stated
that the Company would not sign an agreement that included the proposal embodied
in section 24. To facilitate discussion of other provisions of the proposed contract,
the negotiators then agreed to regard section 24 as transposed to section 27, which
dealt with wages , and to defer consideration of section 24 for later discussion in
conjunction with section 27.4
Section 24 was reached again at a meeting, held in the latter part of October, at
which Kenneth R . Bowman , an organizer for the AFL-CIO , acted as the Union's
principal spokesman . having previously replaced Hughes in that capacity. When the
section was reached for discussion , Bowie quoted the position previously expressed
by Hughes , and reiterated the Company 's opposition to the section . Bowman also
asked Bowie to explain the operation of the Company 's piece-rate system. Bowie
said that he had entered the Company 's employ relatively recently, that he did not
know much about the piece-rate system, that he would look into its operation, and
,that he hoped that he would "be able to talk more intelligently " about the system at
the next bargaining session.5 During the meeting two employees of the Company,
4 The description of the October 2 meeting, which was the last attended by Hughes, is
based on Bowie ' s testimony On the other hand, Charlotte Walker , a representative of
the Union , testified that section 24 was first reached for discussion at a meeting held on
October 29 However , at a subsequent point, she conceded that the section "might have
been discussed " while Hughes was in attendance Moreovei , Walker' s testimony reflects
a faulty recollection of some features of the meetings ( for example, the number of meet-
ings held in September) Although , as will appear , Bowie's recollection concerning
various phases of the negotiations is faulty , I think it more probable than not that sec-
tion 24 was reached for discussion at an earlier point than October 29, particularly in
view of Walker ' s concession that the section "might have been discussed " at a meeting
attended by Hughes
5 At several places in his testimony , Bowie quotes himself as giving an explanation
(apparently at this meeting ) of the operation of the piece-rate system, describing the
alleged explanation at one point as "simple " and "not detailed at all " It is unnecessary
to set out Bowie's several versions of what lie claims lie said in that regard, for the
point of the matter is that the claimed "explanation," if given , was so vague that it
cannot be regarded as a discharge by the Company of any obligation it had to furnish
the Union with the information requested Moreover, Bowman and Walker in effect
denied that Bowie gave them any information concerning the basis for computing the
piece-rate bonus, and I credit their testimony in that regard. For one thing, the record,
taken as a whole , reflects a disposition by the Company to withhold the requested in-
formation during the course of the negotiations For another , Bowie admittedly had
only "a vague idea" at the time in question as to the operation of the piece-rate system,
and this lends credence to testimony by Walker , substantially supported by Bowman's
account , that Bowie's reply to the request for information was that lie knew little about
the piece- rate system , would "look into it further," and hoped to be "able to talk more
intelligently " about the matter at the next meeting Finally, reflecting on Bowie's
credibility , these is self-contradiction in his testimony on the subject of his knowledge
of the piece - rate system at the time of the meeting At the hearing, lie gave a compre-
hensive and detailed explanation of the system , and stated at one point that lie acquiied
SKYWAY LUGGAGE CO. 689
one a coverer and the other a box department worker, who had participated in the
drafting of the Union's contract proposals and were present at the meeting as mem-
bers of the Union's negotiating committee, expressed criticism of the piece-rate
system. Among other things, the coverer stated that there is competition among
coverers for boxes to cover when these were in short supply as a result of mechanical
failures in the box department; that the leadwoman in the covering department
showed favoritism in distributing work and assigning worktables; that coverers "lost
their bonus" when assigned to noncovering duties; and that they did not know how
their bonus payments were computed, were puzzled by the amounts they received,
and felt that under the Company's computations, they were paid less than they were
entitled to receive. The other employee stated that box department workers were
"very unhappy with the fact that the coverers got a bonus"; that when there was
equipment failure in her department, coverers complained about the lack of boxes
to cover; that box department employees were under pressure to keep the coverers
supplied with boxes and were "caught . . . in a speedup" for which they received
no premium pay; and that the employees in the box department "would like to see
a system worked out so they could understand it and know what the bonus was
about, if it was going to be maintained." Bowie replied that the failure of equip-
ment was accidental and that to his knowledge coverers "were not penalized in any
way for not having boxes to cover." He expressed the view that the complaints of
the employees were in the nature of grievances and "could be better handled in a
grievance procedure." He stated that he would look into the complaints, and would
endeavor to report about the matter at the next meeting .6
The Union submitted its wage proposals to the Company, Durabilt, and North-
western at a bargaining meeting held on November 2. During the course of the
meeting, Bowman asked Bowie if he had any information concerning the piece-rate
system, and Bowie expressed the view that the matter was not within the scope of
the negotiations, and stated that he did not wish to discuss it. The representatives of
Durabilt and Northwestern also voiced objections at the meeting (as they had pre-
viously done) to further discussion of the Respondent's piece-rate system at the
joint meetings, pointing out that the subject did not concern them .7 Bowman never-
theless maintained, in effect, that the bonus was a proper subject for discussion at
the joint negotiations.
Thereafter, at a meeting held on November 7, Bowman asked Bowie if he was
prepared to discuss the bonus. Bowie replied that he was still unfamiliar with the
operation of the piece-rate system, and suggested that representatives of the Union
meet with him at the plant "to look over the bonus operation." Bowie , Bowman,
knowledge of the system sufficient for such a detailed explanation about a month after
he entered the Company's employ (in May 1955). Yet, at another point, Bowie testified
that at the time of the October meeting his knowledge of the operation of the system
was "vague."
9 Findings with respect to the meeting are based on a composite of testimony given by
Bowie, Bowman, and Walker. Bowie described a meeting which he asserts-was held on
October 24. Walker testified to a meeting which, according to her, took place on
October 29. Bowman gave no precise date for the meeting he described. However, the
several descriptions apparently refer to the same meeting. I am led to that conclusion
primarily by the fact that all 3 witnesses testified in somewhat similar vein to' com-
plaints made by 2 employees at a bargaining meeting held late in October. While there are
some substantial variances between Bowie's version of the meeting on the one hand, and
the respective accounts of Bowman and Walker on the other, only two of the differences
require comment. One of these relates to Bowie's claim that he gave a "simple explana-
tion" of the piece-rate system. Disposition of that claim has been made in the preceding
footnote. The other variance involves a claim by Bowie that he made a contract proposal
addressed to section 24 Bowman and Walker denied that such a proposal was made.
I shall describe the alleged proposal and resolve the credibility issue at a later point.
As to aspects of the meeting other than the differences noted, I believe that a composite
of testimony given by the three witnesses reflects the material substance of the discussion
concerning section 24 and the Company's piece-rate system.
7 The representatives of Durabilt and Northwestern repeatedly expressed that position
during the meetings, although there was negotiation at the joint meetings of various
matters that did not concern all three employers. I shall make no further reference to
the position of the other employers, nor shall I refer to testimony quoting them on the
subject of bonuses and piece rates, since the views they expressed do not bear materially
on the issues It may be noted that the evidence establishes, without dispute, as will
appear, that the Company refused to bargain concerning the piece-rate bonus on occasions
when the other employers were not present.
423784-57-vol. 117-45
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Charlotte Walker, the Union's financial secretary, thereupon agreed to meet at
the plant on November 11. The three negotiators met at the plant on the appointed
date, observed the coverers performing their duties, and discussed conditions under
which these employees performed their work. During the discussion, Henry L.
Kotkins, president of the Company, came into the covering department and invited
Bowman to inspect a new machine with him, and the two left Bowie and Walker.
While at the machine, Bowman and Kotkins engaged in some discussion concerning
the skill of coverers, and Bowman then told Kotkins that employees were "unhappy"
with the piece-rate system, that the Union had been unable to secure information
concerning its operation from Bowie, and that "something should be done about it."
Kotkins replied, "My position is that we instituted this bonus system, the union has
nothing to do with it, and therefore we are not going to bargain on it, the issue is
closed." With that, Kotkins left Bowman.
Bowman renewed the Union's request for information concerning the piece-rate
system at a bargaining meeting held on or about November 29. Bowie replied that
he had discussed the matter with Kotkins, that the latter had taken the position that
"the bonus was over and above the contract," that it was a "gift" from the Company
to the coverers, that the method of computation was not the concern of the Union,
and that the labor organization had no right to negotiate with respect to the bonus.
Bowman maintained that the Union had a right to negotiate with the Company
concerning the piece-rate bonus and was entitled to the requested information, but
the upshot of the matter was a refusal by Bowie to talk about the subject any further
at the meeting.8
However, the Union raised the subject again on December 9 at a meeting limited
to representatives of the Union and the Company, and attended by Carlton Steger,
a representative of the International, who acted as the Union's principal spokesman at
the meeting (as well as at a number of subsequent bargaining sessions). At the
meeting, after a discussion of various "issues" (relating to such matters as "wages,
classifications, holidays and vacation pay") that had not been resolved in the previogs
negotiations, Steger adverted to the piece-rate bonus and said that the Union would
like to negotiate "certain contract provisions relative to this production bonus and
incorporate them in the contract." Bowie replied that the subject had been dis-
cussed on prior occasions with Bowman and Walker, that the Company had taken
the position that the piece-rate bonus "was not negotiable," and that the Company
had put the bonus into effect and was not required to discuss it any further. Bowie
also reiterated his view that the bonus was "over and above the contract." Steger
maintained, in substance, that the piece-rate bonus was "a part" of the wages paid
coverers and, therefore, a proper subject for negotiation, and that, under decisions
of the National Labor Relations Board, a bargaining labor organization is entitled
to information pertaining to wages paid employees it represents so that it can
intelligently represent them. Toward the end of the meeting, Steger requested Bowie
to furnish him with information setting forth the Company's job classifications, the
number of employees in each, and the hourly rates applicable to the respective
classifications. In addition, Steger asked for information relating to the piece-rate
system, specifying that he wished "to know how the bonus was computed, . how
it was converted into a money factor, . and how the rates were set." Bowie made
written notes of details of the request and read his notes back to Steger, atthe latter's
instance, and Steger asked Bowie to supply the information at the next meeting.
8 Bowie, contrary to Bowman and Walker, testified that the piece -rate bonus was not
discussed at any joint bargaining meetings in November I do not credit Bowie's relevant
testimony for a number of reasons. First, it is evident from the record as a whole that
the piece-rate system was a matter of concern to the Union and employee members of its
negotiating committee, and I thus think it plausible that the Union continued to press
the subject in November. Second, Bowman and Walker admittedly came to the plant
on November 11 to observe the covering operation, and it is quite likely that the visit
stemmed from a discussion of the piece-rate bonus at a bargaining meeting a few days
earlier, as Walker in effect testified Third, Bowie's testimony concerning relevant
features of the negotiations is quite sketchy at a number of points, and I gathered the
impression that this stemmed either from a substantially faulty recollection or from a
disposition by him, in the course of his testimony, to pass over relevant events of the
meetings somewhat more lightly than the circumstances warranted. Finally, it is un-
disputed that Kotkins told Bowman at the plant on November 11 that the Company would
not bargain concerning the piece-rate bonus, and that the "issue is closed," and it is
quite credible that Bowie, Kotkins' subordinate , expressed similar positions in November,
particularly after the visit to the plant, as Walker in effect testified. In sum, I have
based findings as to the November meetings on a composite of testimony by Bowman
and Walker.
SKYWAY LUGGAGE CO. 691
The following day, at a bargaining session attended by representatives of all three
employers, Bowie gave Steger the information the latter had requested, except that
pertaining to the piece-rate system. When Steger asked for the omitted data, Bowie
replied that it would not be furnished, that the Company felt that the piece-rate
bonus "is over and above the contract" and that it did not "have to talk" about the
matter. In response, Steger said that the Union was entitled to the information and
would secure it. "Either you are going to give it to us voluntarily," he told Bowie,
"or we are going to have the government order you to give it to us and you are
going to bargain on it and we are going to enter into further agreement on this
matter and include provisions about it at some future date." That substantially
ended 'the conversation relating to the piecework system at the meeting of
December 10.9
The Respondent and the other employers held bargaining meetings with the
Union on December 11 and 13, the second of these meetings extending into the early
morning hours of December 14. The sense of the evidence is that at the second
meeting the Union and the Company reached tentative accord on the terms of a
3-year contract,1° except for some issues relating to an attendance bonus and
classifications. " 1
Bowie, Bowman, Steger, and Kotkins thereafter held a bargaining meeting at
the Company's office on December 14. In the course of the meeting, Kotkins
stated that the Company desired a contract of 5 years' duration, and as an induce-
ment for acceptance of the proposal by the Union, offered to make provision in the
proposed agreement for an attendance bonus and automatic increases in hourly
rates during the additional 2-year term. He also registered objection to some
language, previously agreed upon , relating to the discharge of employees. The
-parties discussed, and negotiated with respect to, the attendance bonus and classi-
fication questions and the matters raised by Kotkins, Steger advancing a proposal
that the employees be given an additional holiday in exchange for the longer con-
tractual term sought by the Company, and Kotkins making a counterproposal that
the additional holiday be limited to employees with at least 4 years of service with
the Company. During the course of the discussion, Steger raised the subject of
the piece-rate system, telling Kotkins that the Union had been unsuccessful in its
efforts to secure information from the Company concerning the system and that
the Union would like to incorporate provisions relating to the piece-rate bonus in
the contract. Kotkins replied that the Company had put the piece-rate system
into effect to meet a problem in the covering department, that the bonus is a
"gift" from the Company to the employees affected and "has nothing to do with
the contract," and that he would not discuss the matter further. In response,
Steger stated, in effect, that the piece-rate bonus is part of the wages paid coverers
and that the Company is obligated to bargain with respect to the bonus, and ex-
pressed certainty that the National Labor Relations Board would direct the Com-
pany to bargain with respect thereto. Kotkins stated that he did not think that the
Board would do so. Steger replied: "Well, if that is the case, Mr. Kotkins, we will
have to leave it up to the Board whether you are required to bargain on this
matter. If the Board orders that you are required to bargain on it, I trust you will
sit down with the committee and the representatives and the business agent and
negotiate provisions covering the bonus." Steger also stated that following such
negotiations, the parties "could either sign a memorandum of agreement or adden-
dum to the contract incorporating the additional provisions of the production bonus."
Kotkins replied in effect that the Company's obligation in the premises would be
left to the Board to decide. That concluded the discussion of the subject of the
piece-rate system. With respect to the other matters discussed, the evidence indi-
0 Of the several witnesses (Bowman, Walker, Steger, and Bowie) who described the
meetings of December 9 and 10, Steger gave the most detailed account of conversations
relating to the piecework system, and appeared to have the best recollection. I have
based findings concerning the meetings on Steger's testimony. It may be noted that
whatever differences the several versions of the 2 meetings reflect, the important fact
that at one point or another Bowie tooK the position that the piece-rate bonus was not
a bargainable matter, and refused, to furnish information relating to the bonus, is borne
out by the testimony of all 4 witnesses, including Bowie.
10 Steger 's testimony indicates somewhat tangentially that the parties agreed on a
3-year term for the proposed contract.
n The Union reached complete agreement with Dnrabilt and Northwestern at the
meeting of December 13.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cates that the negotiators reached an accord,12 agreeing that the contract would
provide for a 5-year term with specified periodic increases in hourly rates during the
term, an additional holiday for employees with at least 4 years of service, and an
attendance bonus; that various aspects of the agreement reached during the dis-
cussion would be subject to ratification by the Company's employees affected by
the negotiations, and put into suitable language for inclusion in a contract; and that
the provisions relating to discharges, to which Kotkins had registered objection,
would be referred to counsel for such language revision as would be acceptable
to the Union and the Company.13
The substance of a proposed collective-bargaining agreement between the Union
and the Company was submitted to and ratified by a majority of employee's of the
Company present at a meeting of the Union's members during the evening of
December 14.
During the next few weeks Bowman, Bowie, and Walker met with counsel for
the Company on a number of occasions, and the four worked out a draft of a
contract embodying terms to which the representatives of the Company and the
Union had previously agreed, and which the employees had ratified. In these meet-
ings, no reference was made to the piece-rate system, nor did the Union's representa-
tives request any information concerning the system.
Representatives of the Union, including Bowman, came to the Company's office
on or about January 12, 1956, and, together with Kotkins, signed the contract. The
agreement, which, by its terms, is to remain in effect until at least November 14, 1960,
contains neither the language nor the substance of section 24 of the proposal sub-
mitted by the Union to the Company early in the negotiations, nor is there any
reference to the compensation of employees at piece rates or to the piece-rate
bonus or system. The contract establishes a wage scale for employees by occupa-
tional category, consisting of a "minimum" hourly rate for each specified category,
and provides for periodic increases in the rates. (The issues require no detailed
statement of the rates or of the circumstances under which the increases take effect.)
On the occasion of the visit of the Union's representatives to the Company's office,
shortly after the contract was signed, Kotkins referred to the Union's request for
information concerning the piece-rate system, told the Union's representatives that
he was willing to give them the information, and showed them two mimeographed
forms used by the Company in connection with the piece-rate system. One is a
memorandum addressed "to employees on the covering tables" and purports to
outline and illustrate the basis upon which the piece-rate bonus is computed.14 The
other is a "report" containing blank spaces for applicable entries, upon which the
Company records a coverer's daily hours of work and production for the given
week, and computes the piece-rate bonus due the employee for that week. Using
the documents, as well as two reports which contained entries pertaining to a cov-
erer's work, Kotkins outlined the use of the forms to Bowman.15
' The testimony relating to the meeting does not concretely spell out all details of
the accord, but these may be inferred from the terms of the contract ultimately signed,
taken in conjunction with a composite of testimony given by Bowie and Steger.
13 Kotklns and Steger were evidently the principal participants in the meeting at the
,office There is no indication in the record that Bowie and Bowman said anything on
the occasion. Although a witness, Kotkins gave no testimony concerning the meeting.
While I have drawn to some extent on Bowie's testimony for findings relating to the
meeting, the description given above is based, in the main, on Steger's account , since he
was one of the two principal participants in the discussion, gave the most circum-
stantially detailed version of the meeting, and appeared to me to have a better recol-
lection of details than either Bowie or Bowman (who also testified concerning the
meeting). It may be noted that Bowie, like Kotkins, gave no testimony disputing Steger's
account of his conversation with Kotkins on the subject of the piece-rate bonus ; and
that the gist of Bowman's version of the discussion of the subject is substantially similar
in most respects to Steger's account, although Bowman does not quote Kotkins as making
a statement to the effect that the Company's bargaining obligation would be left to the
Board for decision.
14 The memorandum, a copy of which is supplied to each coverer, contains an error.
It states that the "bonus points" are computed by dividing the weekly pay by 5, whereas
the divisor is actually .05
zs Kotkins testified that he outlined the use of the forms "in a rather quick general
way " However, Walker stated. that Kotkins and Bowman "went over" the forms
"thoroughly," although according to Walker, upon completion of Kotkins' explanation,
Bowman said that be did not "understand it fully."
SKYWAY LUGGAGE CO. 693
On January 26, 1956, the Union wrote a letter to the Company requesting nego-
tiations concerning the piece-rate bonus. The Company replied by letter dated
February 2, 1956, taking the position that the bonus is not "now " a "legal subject
for collective bargaining ," and declining to bargain with respect to the subject.
In summarizing pertinent features of the evidence above, I have reserved for
separate comment testimony by Bowie to the effect that he made a counterproposal
in connection with section 24 at a number of bargaining meetings. According to
Bowie, who testified that he made a written note of his proposal , he expressed the
willingness of the Company to agree to a contractual provision that "any piecework
rates should guarantee the minimums provided above, determined by proper stand-
ards." Walker, who testified that she made contemporaneous notes of every "con-
crete offer" made by the Company during the bargaining meetings , and that she
attended every meeting except that of December 14 (which was attended by Bowman
and Steger ) at the Company's office, denied that Bowie made the offer he described
or any statement similar to it. Bowman , who also asserted that he made contempo-
raneous notes of every offer made by the Company at the meetings he attended (he
participated in all bargaining sessions beginning with a meeting in mid -October),
entered a similar denial.
Taking the record as a whole, Bowie's claim is unpersuasive . He testified that he
first made the proposal to Hughes at the meeting of October 2 when section 24 of
the Union 's proposed terms was reached for discussion . However , his initial de-
scription of what was said on that occasion contains no reference to the alleged
counterproposal . It was only at a later-point in his testimony , after stating that he
made the offer to Bowman at a meeting late in October , that Bowie advanced the
claim that he had also previously made it to Hughes. Bowie testified that he could
not recollect what response Hughes made . Stating that he told Bowman at a meeting
held about October 24 that the Company would not agree to the provisions of section
24, Bowie added : "I believe at the same time I did say we would go along with some
statement that would guarantee-rather a statement to the effect that any piecework
rates would guarantee the minimums in the contract ." Bowie's demeanor in giving
this testimony was one of uncertainty . Moreover, as in the case of his testimony
regarding Hughes, he stated that he could not recollect what reply Bowman made to
the alleged offer . The faulty quality of Bowie 's testimony on the subject of the
alleged offer became particularly manifest in connection with testimony by him that
he "think ( s) it (the offer ) came up again on one of the meetings where Mr . Steger
was present ," and (at another point ) that he "proposed this particular statement to
get the ball rolling" ( or, in other words, that he made the offer to Steger to facilitate
collective bargaining ). He stated that he was led by his notes "to believe" that he
made the proposal to Steger . But after consulting his notes , he conceded that he
could not "recall at this time that (he) actually made that statement" ( the offer) to
Steger. Another point worth noting is that the claim that the Company made any
proposal addressed to section 24 is not quite in harmony with the position taken by
Kotkins, the Company's top management official , at the last bargaining meeting, that
held at the plant on December 14. On that occasion , it will be recalled , in response
to a statement by Steger that the Union would like to include provisions in a con-
tract relating to the piece-rate bonus, Kotkins termed the bonus a "gift " to the em-
ployees, stated that the bonus "had nothing to do with the contract," and said that
he would not discuss the matter any further. In the light of this adamant position,
which had been expressed by Bowie, in effect , on a number of previous occasions,
taking into account the pattern of Bowie's testimony on the subject of the alleged
offers to Bowman , Steger, and Hughes , and in the face of the unequivocal denials by
Bowman and Walker, I am unconvinced that Bowie made any proposal such as he
claims, whether to Bowman , Steger , or Hughes . The sum of the matter is, and I
hold, that Bowie 's claim is not established by the preponderant weight of the evidence.
C. Discussion of the issues and concluding findings
The evidence amply establishes that the Respondent repeatedly took the position
during the negotiations , in one form or another , that it has a right to pay the piece-
rate bonus as a matter of managerial prerogative , without reference to, or consulta-
tion with , the Union , and that it was not obligated to bargain with respect to the
piece-rate system . That position was- clearly erroneous , if for no other reason than
that the piece-rate bonus has been , and is, a part of the wages paid coverers, and
thus, under the plain terms of Section 8 (a) (5) of the Act, the Respondent was
under an obligatfion to bargain with the Union concerning the proposal embodied
in section 24 of the proposed agreement submitted to the Company in September
1955. That obligation , it may be noted , was unaffected by any question whether
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the working conditions of coverers and other employees were good or bad, whether
the piece-rate system was advantageous or disadvantageous to employees, or whether
it has been fairly or inequitably applied. From what has been said, it is evident
that the Respondent repeatedly refused to bargain with the Union concerning its
piece-rate system.
The Respondent, however, contends in its brief "that it is not obligated to negoti-
ate with the Union with respect to the covering (piece-rate) bonus during the life
of the existing agreement between the parties." (The contract, it may be noted, has
no provision for its reopening during its term.) In that regard, the Respondent
asserts that the Union's relevant bargaining proposals were abandoned "in the give
and take of bargaining one issue for another," and that all issues arising during the
negotiations were merged in an agreement constituting the final bargain between
the parties. To support the claim of abandonment, the Respondent points out that
various issues, other than those relating to the piece-rate system, were dropped dur-
ing the negotiations , and stresses such factors as the absence of any reference to
the piece-rate system or bonus either in the terms of agreement submitted to the em-
ployees for ratification on December 14, or in the contract as finally executed;
the failure by the Union to mention the system or bonus to the Company at any
time between the bargaining meeting of December 14 and the execution of the con-
tract about a month later; and the provision in the contract, as executed by the
parties , of a schedule of minimum wage rates. But the factors upon which the
Respondent relies do not tell the whole story. A waiver of statutory bargaining
rights will not be inferred unless there be a "clear and unmistakable showing that
the waiver occurred" (International News Service Division of The Hearst Corpora-
tion, 113 NLRB 1067, 1070).18 The record contains no such showing. On the
contrary, it establishes that the Union neither bargained away nor abandoned its
proposals regarding the piece-rate system, irrespective of what happened to other
issues during the course of negotiations, and notwithstanding the fact that agree-
ment was reached upon a schedule of minimum wage rates. The Union made a
substantial number of efforts during the negotiations to have the Company bargain
concerning the piece-rate system, but the Company repeatedly refused. That the
Union's attempts were dissociated from the agreement reached concerning a wage
schedule is evidenced by the fact that Steger made an effort to bargain concerning
the piece-rate system at the meeting with Kotkins at the plant on December 14, after
a tentative accord had been reached during prior meetings concerning a schedule of
wage rates, as well as upon other matters. In response, adamantly adhering to
the position taken by the Company on prior occasions, Kotkins replied that the
piece-rate bonus is a "gift" from the Company to the employees affected, that it
"has nothing to do with the contract," and that he would not discuss the matter any
further. I think it noteworthy that Kotkins did no rest his refusal to bargain on the
fact that wage rates had been the subject of negotiation or of a tentative agreement
already reached. In any event, the matter did not end with Kotkins' refusal, for
Steger expressly told him that the Union would submit the Company' s bargaining
obligation in the premises to the Board for decision, and Kotkins signified his con-
currence in such a course. Significantly enough, this conversation between Kotkins
and Steger occurred at the last bargaining meeting between the parties. (Subse-
quent meetings were devoted to the formulation of contract language and the exe-
cution of the agreement.) As matters stood at the close of the last bargaining ses-
sion , it was only natural for the Union to conclude, as it apparently did, that further
efforts to induce the Company to bargain concerning the piece-rate system would
be futile. The labor organization took the reasonable course of notifying the Com-
pany that it would seek an order from the Board requiring the Company to bargain
concerning the piece-rate bonus, thus in effect expressly negating any intention to
waive or abandon its bargaining rights in the premises, and then proceeded to embody
the terms upon which agreement had been reached iri a contract. So far as the claim
of abandonment is concerned, in the context of events, particularly those of the last
bargaining meeting, I think it unimportant that the terms submitted to the employees,
or those embodied in the signed contract, contain no reference to the piece-rate
system or bonus, that the Union did not renew its efforts to bargain concerning the
system or bonus between the bargaining session of December 14 and the execution
of the contract, or that the agreement contains a schedule of minimum wages for
16 See also N. L. R. B. v. J. H. Allison h Co., 165 F. 2d 766 (C. A. 6), cert. denied 335
U. S 814; Tide Water Associated Oil Company, 85 NLRB 1096; E. W. Scripps Company,
94 NLRB 227; Hekman Furniture Company, 101 NLRB 631, enfd. 207 F. 2d 561
(C. A. 6) ; and American Smelting and Refining Company, Tacoma Plant, 115 NLRB 55.
SKYWAY LUGGAGE CO. 695
the employees. The sum of the matter is that there is no merit in the contention
that the Union abandoned its bargaining proposals related to the piece-rate system
either during the negotiations or by its act of entering into the agreement.17
The primary question posed in this proceeding is whether Section 8 (d) of the
Act absolves the Company of any obligation to bargain concerning the Union's
piece-rate proposals during the term of the current agreement. Section 8 (d) pro-
vides, in part, that the duty to bargain collectively "shall not be construed as re-
quiring either party to discuss or agree to any modification of the terms and con-
ditions 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."
A position comparable to that taken by the Respondent in connection with
Section 8 (d) was considered by the Court of Appeals for the Second Circuit in
N. L. R. B. v. Jacobs Manufacturing Company, 196 F. 2d 680. In that case, a
union nad entered into a collective-bargaining agreement with an employer follow-
ing negotiations. The contract contained a provision for reopening its terms on
the subject of wages. During the term of the agreement the union exercised its
right to reopen the contract. In its reopening notice, it requested a wage increase,
changes in an existing group insurance program, and the adoption of a pension
plan. The insurance program had been discussed in the negotiations that had
led to the agreement, but nothing on the subject had been put into the contract.
The subject of pensions had not been discussed. During the meetings which fol-
lowed the reopening notice, the employer refused to negotiate concerning the in-
surance program and the pension plan, taking the position that these matters
were not within the scope of the reopening provisions of the contract. .The union
filed a charge with the Board. In the proceeding which followed (94 NLRB 1214),
a majority of the Board concluded that the employer was obligated to negotiate
on the subject of pensions, nothwithstanding the provisions of Section 8 (d), and
had violated the Act in refusing to do so. A majority, in part differing in composi-
tion (and expressing differing reasons in reaching a conclusion), held that the
employer was not obligated to bargain with respect to the group insurance
program.18 In the subsequent enforcement proceeding in the Court of Appeals for
the Second Circuit, the employer's bargaining obligation with respect to the in-
surance program was not before the court for decision.
17 On December 17, 1955, Steger wrote to Walker suggesting that she send the Company
"a communication" that the execution of a contract would not constitute a waiver of the
Union's bargaining rights concerning the piece-rate bonus. After the contract was
executed, Walker wrote to the Company to that effect in a letter dated January 26, 1956.
It is unnecessary to pass upon the effect of this correspondence as evidencing an intention
by the Union not to waive or abandon its piece-rate proposals, in view of Steger's con-
versation with Kotkins before the execution of the agreement.
'e A minority of two members saw no distinction in the fact that the insurance program
had been discussed in the earlier negotiations, and held that the employer was obligated
to bargain concerning the insurance program as well as the pension plan. In so doing,
they relied upon two earlier Board decisions, Tide Water Associated Oil Company, 85
NLRB 1096, and Allied Mills, Inc., 82 NLRB 854. Those cases held, in effect, that Sec-
tion 8 (d) does not relieve parties to a collective-bargaining agreement of the obligation
to bargain with respect to bargainable subjects not covered by the contract, irrespective
of whether such matters had been the subject of discussion in negotiations leading to
the agreement. Although the majority held that the employer was under no obligation to
bargain concerning the insurance program, the road by which each of its members reached
that result differed from the paths followed by the others. One of them, Member Murdock,
in effect distinguished the Tide Water and Allied Mills cases, and said that it was un-
necessary to "reexamine" the position relied upon by the minority. He rested his con-
clusion on the fact that the reopening provisions of the contract were limited to the
subject of wages and that the union could not require the employer to bargain on the
other subjects by including them in the reopening notice He did not pass upon the
question whether the employer would have been required to bargain with respect to
insurance and pensions had these matters been made the subject of a separate bargaining
request It is evident, in sum, that the Jacobs case should not be read as overruling
the Tide Water and Allied Mills cases. That conclusion is supported, also, by the results
reached by the Board in Niles-Bement-Pond Co., 97 NLRB 165, enfd. 199 F. 2d 713
(C. A. 2) ; Bemis Bro. Bag Co , 96 NLRB 728, reversed (on grounds not relevant here)
206 F. 2d 33 (C A. 5) ; Nash-Finch Company, 103 NLRB 1695, reversed (on facts
distinguishable from those involved here) 211 F. 2d 622 (C. A. 8).
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Construing the relevant provisions of Section 8 (d), the court said:
The respondent's position is that, except as to subjects expressly reserved for
further negotiations in a reopening clause, any fixed period contract creates
a static period in the entire industrial relationship between the employer and
his employees, for the term of the contract, even as to aspects of that relation-
ship which were not covered by that contract or even discussed in the nego-
tiations leading up to it.
We, however, agree with the Board that § 8 (d) cannot fairly be given such
a broad effect. The purpose of this provision is, apparently, to give stability
to agreements governing industrial relations. But, the exception thus created
necessarily conflicts with the general purpose of the Act, which is to require
employers to bargain as to employee demands whenever made to the end that
industrial disputes may be resolved peacefully without resort to drastic meas-
ures likely to have an injurious effect upon commerce, and the general purpose
should be given effect to the extent there is no contrary provision. Since the
language chosen to describe this exception is precise and explicit, "terms and
conditions contained in a contract for a fixed period," we do not think it
relieves an employer of the duty to bargain as to subjects which were neither
discussed nor embodied in any of the terms and conditions of the contract.
Therefore, we hold that it was the respondent's statutory duty to bargain on
the subject of pensions. In so deciding, however, as we have already indicated
in commenting upon the Board 's ruling concerning the group insurance issue,
we do not intend to pass upon the effect, if any, on the duty to bargain, of
mere previous discussion of a subject without putting any terms and conditions
as to it into the contract.
In the light of the bargaining provisions of the Act, one may assume that what
the court meant by the term "discussed" was not a stated refusal by a varty to bargain
concerning a subject legitimately raised for negotiation, or the expression by the party
of a hermetically sealed position in the premises , but an open-minded discussion,
in good faith, of the proposal advanced for negotiation.19 In any event, it is plain
that the court did not intend to pass upon the effect of Section 8 (d) upon the
employer's bargaining obligation had the employer and the union "discussed" the
pension plan in the negotiations leading to the contract. This is evident from the
fact that the court reserved judgment on a similar question in connection with the
group insurance program. Similarly, it is unnecessary to decide what result would
be required in the instant proceeding had the Union and the Company "discussed" the
subject embodied in section 24 of the proposed agreement submitted to the Company
early in the negotiations. Like the pension plan in the Jacobs case, the piece-rate
system, for all practical purposes, was not "discussed" during the negotiations , unless
one distorts the plain meaning of the Respondent's attitude and labels the various
terms in which it refused to consider its piece-rate system a bargainable subject,
and declined to bargain concerning the matter, as "discussions" of the subject. In
point of fact, as evidenced by statements made both by Bowie and Kotkins, the
Respondent expressly refused to discuss the piece-rate system, as a matter for bar-
gaining, on a number of occasions during the negotiations, Kotkins taking that
position as late in the negotiations as the last bargaining session which was held on
December 14. In other words, I hold that the Respondent did not "discuss" the
Union's proposals relating to the piece-rate system or bonus in the sense of bargain-
ing in good faith concerning the proposals, as the Respondent was required by
the Act.
The court's holding in the Jacobs case with respect to the pension plan, as well
as various decisions by the Board,20 is applicable here, and thus the pertinent inquiry
.39 This construction of the court's use of the word "discussed" Is amply warranted by
Section 8 (d) of the Act which provides, in part: "For the purposes of this section, to
bargain collectively is the performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times and confer in good faith
with respect to wages, hours, and other terns and conditions of employment. . . .
In that connection see, also, Board Chairman Herzog's concurring opinion in the Jacobs
case , 94 NLRB 1214, 1217.
m Tide Water Associated Oil Company, supra, and Allied Mills, Inc., supra. As noted
earlier, I do not read the Board 's decision in the Jacobs case as overruling the two
earlier cases . See also Niles -Bement-Pond Co.,' supra; Bemis Bro . Bag Co., supra; and
Nash-Finch Company, supra.
SKYWAY LUGGAGE CO. 697
is whether the wage or other provisions of the agreement can be taken to mean
that the piece-rate system or bonus is a subject "embodied in any of the terms and
conditions of the contract."
The answer to that question may be found both in the agreement and the course
the negotiations took. The contract makes no reference to the piece-rate system
or bonus, nor did the parties ever reach a bargain or an accord on the subject. The
Company, as a matter of fact, in effect dissociated the piece-rate bonus from its
obligation to bargain concerning wages or any other subject. This is established
by the statements its representatives made in the course of the negotiations. Through
them, the Company made and reiterated claims that the piece-rate bonus is a "gift,"
"has nothing to do with the contract," and is paid "over and above the contract,"
all summing up to a position, in effect, that the bonus, unlike the employees' wage
rates or other bargainable matters,. was not a proper subject for bargaining. It is
also manifest that the Union's efforts to bargain concerning the piece-rate system had
ends and aims in addition to participation of the Union in the erection of the Com-
pany's wage structure. Put another way, the Union's interest in the piece-rate bonus
stemmed not merely from the character of the bonus as wages, but because, in the
Union's view, it affected the working conditions of employees in other respects.
Section 24 of the proposed agreement submitted to the Company provided that "no
bonus shall be based on piece work or competition between Employees" [emphasis
supplied]. Significantly, also, this contract proposal was separately set forth in
a section devoted solely to the proposal (although the parties agreed during the
negotiations to consider the terms embodied in section 24 as transposed to the wage
section of the proposed agreement in order to facilitate the discussion of other
matters). What is more, from the tenor of the complaints concerning the piece-rate
system voiced by employee members of the Union's negotiating committee at a
bargaining meeting held in October, it is manifest that the Union did not regard
the system merely as a subject for wage negotiations. Whether these complaints
were justified is beside the point, for the question of their justification does not alter
the fact that the Union sought to place the piece-rate system on the bargaining table
for discussion not only because it had a legitimate interest in the character of the
piece-rate bonus as wages, but because, in its view, the system resulted in disharmony
among employees, "competition" among them, and a "speedup" in their work or, in
other words, in undesirable working conditions. It is also noteworthy that the
Union, having reached substantial agreement with the Company on the subject of
wage rates and other matters as a result of the bargaining session at the plant on
December 14 and prior meetings, nevertheless attempted to bargain concerning the
piece-rate system at the meeting at the plant and, when met with Kotkins' refusal
to discuss the subject, expressly reserved the right to raise the question again, thus,
in effect, signifying a separation, in its view, between the wage rates and other
matters, upon which an accord was reached, on the one hand, and the piece-rate
system, on the other, as subjects for bargaining. The sum of the matter is that the
terms of the agreement and the course taken by the negotiations negate any con-
clusion that the piece-rate system or bonus is, within the meaning of the Jacobs case,
a subject "embodied in any of the terms and conditions of the contract." In short, I
hold that neither the contract nor Section 8 (d) of the Act relieves the Company of
the obligation to bargain concerning the subject of its piece-rate system, including
the terms of the proposal embodied in section 24 of the proposed agreement sub-
mitted to the Company early in the negotiations.
The Respondent has violated Section 8 (a) (5) of the Act by refusing on Novem-
ber 2, 1955, and since, to bargain with the Union concerning the subject of its piece-
rate system, including the terms of section 24 of the proposed agreement submitted
by the Union to the Respondent in September 1955, and by such refusals has inter-
fered with, restrained, and coerced its employees in the exercise of rights guaranteed
by Section 7 of the Act, thereby violating Section 8 (a) (1) of the Act.21
The issues remaining for disposition are (1) whether the Respondent violated the
Act by its several refusals to furnish information concerning the operation of its
piece-rate system, and (2) whether the Board should order the Respondent to
furnish such data.
n The first specific statement by the Respondent that it would not bargain took place
at the meeting held on November 2 It is unnecessary to decide whether statements made
by Bowie at previous meetings to the effect that the Company would not agree to the
terms of section 24 were tantamount to refusals to bargain.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the first of these questions, it is- well settled that a bargaining agent is
"entitled to information (from the employer) which would enable it to properly
and understandingly perform its duties as such in the general course of bargaining"
(N. L. R. B. v. Whitin Machine Works, 217 F. 2d 593 (C. A. 4), cert. denied 349
U. S. 905); 22 and that information pertaining to wages is presumptively relevant to
collective bargaining involving wage issues 23 The obligation includes the duty to
furnish information, upon proper request, concerning the operation of piece-rate and
incentive systems 24
The information sought by the Union was clearly relevant to the bargaining
negotiations and, in the light of the principles stated above, the Union had a statutory
right (not to speak of its duty to the employees it represents) to seek an explanation
of the operation of the piece-rate system, and the Company was under a correspond-
ing obligation to furnish it. I find no merit in the claim intimated by the Respondent
at the hearing that it is absolved of its obligation because the number of coverers is
small and the Union should resort to them for the relevant information. Similar
contentions have been raised and rejected in a substantial number of cases.25 Thus
I deem it unnecessary to explore evidence on either side of the question whether the
employees are adequately informed concerning the Company's method of computing
the piece-rate bonus. Moreover, the Respondent did not discharge its obligation
by giving the Union an explanation of its piece-rate system-after the execution of
the agreement, for the Union was entitled to the information, and the Company
was obligated to supply it, as an incident of, and during, the negotiations. The sum
of the matter is that the Respondent refused to bargain with the Union on No-
vember 2, 1955, and thereafter during the negotiations, by refusing to furnish the
Union with information concerning the operation of its piece-rate system, although
properly requested to do so; and that by such refusals the Respondent violated
Section 8 ,(a) (5) of the Act and interfered with, restrained, and coerced employees
in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating
Section 8 (a) (1) of the Act.
As described above, after the present contract was signed, Kotkins gave Bowman
an explanation of the operation of the piece-rate system. The testimony also con-
tains a detailed description by Bowie of the methods by which the bonus is com-
puted. The question is thus presented whether the Board should require the Com-
pany to furnish the Union with an explanation of its piece-rate system as part of any
bargaining that may take place under the order to be recommended below. For
reasons that will appear, I believe that such a requirement is appropriate.
It is evident that the Respondent's bargaining attitude on the subject of the piece-
rate system is bottomed on a position that the system is none of the Union' s business,
and that the Company is free to pay or withhold the piece-rate bonus from its em-
ployees as it sees fit, and without consultation with the Union. It both established
and subsequently modified the piece-rate system without such consultation. More-
over, there is good reason to conclude that the Company withheld the information
concerning the piece-rate system during the negotiations as a matter of deliberate
policy, and that when it supplied it after the execution of the agreement, it was moved
to do so by the fact that a charge had been filed with the Board rather than by any
s' See also, among other cases, American Smelting and Refining Company, Tacoma
Plant, 115 NLRB 55 ; Boston Herald-Traveler Corp. v. N. L R B ., 223 F. 2d 58 ( C A. 1) ;
N. L. R. B. v. Yawman & Erbe Manufacturing Co., 187 F. 2d 947 (C. A. 2) ; and
N. L. R B. v. Item Company, 220 F. 2d 956 (C. A. 5).
23 American Smelting and Refining Company , Tacoma Plant, supra ; Boston Herald-
Traveler Corp . v. N. L. R. B., supra ; and N. L. R. B. v. Yawman & Erbe Manufacturing
Co., supra.
24 N. L R. B. v. New Britain Machine Co., 210 F. 2d 61 (C. A. 2) ; Vanette Hosiery
Mills, 80 NLRB 1116, 1128; City Packing Company, 98 NLRB 1261, 1269; Mason &
Hughes, Inc., 86 NLRB 848, 850; Dimie Manufacturing Company, 79 NLRB 645, 658.
xs Aluminum Ore Company, 39 NLRB 1286, 1297, enfd. (as modified on a ground not
relevant here) 131 F. 2d 485 (C. A. 7) ; Hastings & Sons Publishing Company, 102 NLRB
708, 714; Electric Auto-Lite Company, 89 NLRB 1192, 1199; J. H. Allison & Company,
70 NLRB 377, 385, enfd. 165 F 2d 766 (C. A. 6), cert. denied 335 U. S. 814; Hearst
Corporation, 102 NLRB 637, 645.
SKYWAY LUGGAGE CO. 699
recognition of its statutory obligation.26 The order to be recommended below will
require the Respondent to bargain with the Union, upon the latter's request, with
respect,to the, proposal embodied in section 24 and the piece-rate system. Against
the background of the Respondent's attitude and position regarding the piece-rate
system in the past, there is no assurance that it will not again modify the system,
without notice to, or consultation with, the employees' bargaining representative,
before returning to the bargaining table, and, during the course of any future bargain-
ing required by the Board's order, determine for itself, without regard to its statutory
obligation, when or whether it will supply the Union with information concerning
whatever piece-rate system may then be current. Such a course could conceivably
be productive of additional litigation and disruptive of the bargaining process.
Accordingly, to facilitate that process, minimize the possiblity of further proceedings
such as these, and effectuate the policies of the Act, I'shall recommend that the order
issued by the Board require the Respondent to furnish the Union, upon its request,
in connection with any bargaining visualized by the terms of the order, with informa-
ition, then current, setting forth the methods and bases for computing the com-
pensation of employees based upon any plan or system of compensation in which
piece rates, piecework, or quantity of production are factors.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section III, above, occurring in con-
nection with the operations of the Company described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among ' the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that .the Respondent has engaged in unfair labor practices violative
of Section 8 (a) (1) and (5) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact, and of the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
1. Luggage Workers Union Local 51, affiliated with International Leather Goods;
Plastic and Novelty Workers Union, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. All production, shipping, and maintenance employees employed by Skyway
Luggage Co., excluding all office, professional, and clerical employees, guards, and
supervisors as defined in the Act, constitute, and have constituted at all times material
to this proceeding, a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
3. The said Union was, in December 1950, and at all times since has been, the
exclusive representative of all the employees in the aforesaid appropriate unit for
,the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act.
4. By failing and refusing on November 2, 1955, and since, as found above, to
bargain collectively with the Union as the exclusive representative of the said Com-
pany's employees in the aforesaid appropriate unit, the Company has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 ( a) (5) of
the Act.
5. By interfering with, restraining, and coercing its said employees in the exercise of
the rights guaranteed to them in Section 7 of the Act, as found above, the Company
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
28That conclusion is warranted by the fact that the Company persisted in a policy of
withholding the information during the negotiations ; by the timing of the explanation
which came about a week after the charge was filed and immediately after the execution
of the agreement; and by Walker's description of the occasion of the explanation. The
sense of her testimony is that Kotkins opened the discussion which led to the explanation
by adverting to the charge as one of "just two things that are left."