Smith Cabinet Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1506 (N.L.R.B. 1964)

1,506 DECISIONS OF'•NATIONAL':LABOR RELATIONS' BOARD
(b). Furnish to,the aforesaid Regional Director an.adequate number of signed
copies of the aforesaid , notice for posting,by McCloskey & Company, and , by Foley-
Ernst, at the jobsite of the 'House of Representatives ' office building in Washington,
D.C., where notices to their employees are customarily posted, said employers being
willing. '
3. Notify said Regional Director, in writing ,,.within 20 days from receipt of this
Decision ,, what steps Respondents have taken to comply herewith.Is
16 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read "Notify said Regional Director , in writing, within 10 days from
the date of this Order, what steps the Respondents have taken to comply herewith."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND AGENTS AND TO ALL
EMPLOYEES OF FOLEY-ERNST
Pursuant to the Recommended Order of a Trial Examiner and in order to conduct
the business of Local 26 as required by the National Labor Relations Act, we
notify you that:
WE WILL NOT threaten , coerce , or restrain McCloskey & Co., or any other
person engaged in commerce or in an industry affecting commerce , where an
object thereof is (1) to force or require Foley-Ernst , to assign the work of
installing luminous egg crate ceilings, hangers, tees, cross tees, and wall angles,
,at the House of Representatives office building project in Washington , D.C., to
employees who are members of or represented by Local 26, International
Brotherhood of Electrical Workers, AFL-CIO, rather than to employees who are
members of or represented by Sheet Metal Workers International Association,
AFL-CIO; or (2) to force or require McCloskey & Co., to cease doing business
with Foley-Ernst.
ELECTRICAL WORKERS LOCAL 26, INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO,
Labor Organization.
Dated- ------------------ By-------------------------------------------
(Representative ) ( Title)
Dated------------------- By-------------------------------------------
( ROBERT MCALWEE)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any questions about this notice or whether Local 26 is comply-
ing with its provisions , they may communicate with the Board 's Office, Sixth Floor,
707 North Calvert Street, Baltimore , Maryland , Telephone No. 752-8460, Exten-
sion 2100.
Smith Cabinet Manufacturing Company , Inc. and Local Union
2577, United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO. Case No. 25-CA-1665. Jisne 30, 1964
DECISION AND ORDER
On April 9, 1963, Trial Examiner Reeves R. Hilton 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 attached Intermediate
Report. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.
147 NLRB No. 168.
SMITH, CABINET MANUFACTURING COMPANY, INC. 1507
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 Intermedi-
ate Report and the entire record in this case, including, the exceptions
and briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except as modified below.
In 1959, the Board certified the Union as. the collective-bargaining
representative of Respondent's production and maintenance employ-
ees. Thereafter, Respondent and the Union entered into collective-
bargaining agreements, the most recent of which, signed in March
1962, is effective to March 18, 1965. This agreement admittedly
contains no express provisions relating to the operation of a second
shift, the payment of premium shift rates, or other terms or conditions
of employment applicable to a second-shift operation, such as, for
example, the standards of selection of employees to work on such a
shift. As narrated in greater detail by the Trial Examiner, Respond-
ent instituted a second shift in September 1962, and, after abandon-
ment, reinstated the second shift and premium pay plan in December
1962, all without bargaining with the Union.
The Trial Examiner, on the basis of the factual findings detailed
in his Intermediate Report, concluded that Respondent violated Sec-
tion 8(a) (5) of the Act by (a) unilaterally establishing and main-
taining a second shift on and after September 1; (b) unilaterally
granting pay raises to second-shift employees on September 14; and
(c) refusing to bargain with the Union as the exclusive representative
of its employees on September 14 and 26 or October 1 and 4.
We agree with the Trial Examiner's ultimate unfair labor practice
finding. However, in adopting that finding, we consider it unneces-
sary to and do not decide whether the violation occurred before the
meeting which was held either on September 26 or October 1, 1962,
between the Union and Respondent. At that meeting, it is clear, the
Union requested bargaining with respect to the implementation of
the second-shift operation instituted by Respondent, but Respondent
refused to discuss standards for selection of second-shift personnel, the
matter of transfers of employees from first to second shift, and the re-
duction of any agreement on such matters to writing. Subsequently,
on December 10, after a period of discontinuance, Respondent uni-
laterally reinstated the second shift with premium pay. Respondent
took such action with full knowledge of the Union's objection to its
acting unilaterally with regard to a second shift, and subsequent to
the Union's assertion of its right and desire to bargain about matters
such as how employees were to be selected for jobs in the second shift
and the amount of premium pay for work on that shift. We limit
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
our findings of an 8(a) (5) and (1) violation to the Respondent's
aforementioned conduct on September 26 or October 1, and on
December 10. '
In reaching our conclusion, we have carefully considered Respond-
ent's defenses. Respondent contends principally that (1) under the
terms of the collective-bargaining contract, it had the right unilat-
erally to institute a second shift and premium pay, and (2) if there is
a dispute as to its right to act unilaterally concerning the matters
complained of, the controversy is one properly cognizable as a griev-
ance to be processed and resolved under the contract grievance pro-
cedure rather than one that should be adjudicated by the Board under
the unfair labor practice provisions of the Act. We do not agree.
The contract, as stated, contains no mention of a second shift, of
premium shift rates, or of selection standards applicable to employee
transfers or assignments to a second-shift operation-matters subject
to the mandatory collective-bargaining requirements of the Act. The
mere silence of the contract on the subject does not constitute a re-
linquishment on the part of the Union of its statutory right to bargain
about employment conditions for employees on the second shift.' Nor
is there other persuasive evidence to support a finding that in nego-
tiating the current collective-bargaining agreement, the Union in-
tended to grant Respondent the right unilaterally to establish terms
and conditions of employment for second-shift employees.' We
reject, therefore, Respondent's contention that its failure and refusal
to bargain, as found above, was justified by the terms of the collective-
bargaining agreement.
We also reject, as without merit, Respondent's contention, that its
dispute with the Union relates to a grievance matter that should be
disposed of under the contract grievance procedure which includes
arbitration as its final step. The contract defines a grievance as a
"difference between the Company and the Union . . . as to the mean-
ing or'application of the provisions of the agreement." The Union's
complaint, which is the subject of our consideration here, does not
grow out of the collective-bargaining agreement or its administration.
i The Timken Roller Bearing Co v. N L R.B., 325 F 2d 746 (C A. 6), cert. denied
376 U S 971. '1:7^
2 Respondent would have the Board infer such a grant from a combination of separate
provisions in the contract which respectively , ( a) permit Respondent "to assign work
and number of hours to be worked" ; (b) provide that the workday shall consist of 24
hours; and (c ) authorize respondent to grant merit increases above the specified rates.
The law is well settled that, although a union may waive its statutory right to be con-
sulted about it bargainable subject , such a waiver must be clear and unmistakable and
will not be readily implied ( The Timken Roller Bearing Co. v. N.L R B , supra; N L R B.
v. Perkins Machine Company, 326 F. 2d 488 (C.A. 1) ; N.L.R B v. The Item Company,
220 F. 2d 956 , 958-959, cert . denied 350 U S. 836 ). Tested by the applicable criteria, it
appears clear to us that the foregoing contractural provisions , none of which adverts as
such to employment conditions applicable to a second-shift operation , are insufficient by
far, whether considered separately or in juxtaposition, to support an inference of waiver.
SMITH CABINET MANUFACTURING COMPANY, INC. 1509
It is not directed at any asserted violation or misapplication on the
part of Respondent of any item of the contract.3 Rather, it is di-
rected at-and seeks redress for-the denial of a statutory right guar-
anteed by Section 8(d) of the Act, namely, the right of the Union to
bargain about terms and conditions of employment which are not
covered by the contract.' In these circumstances, to dismiss the com-
plaint on the ground the Board should defer to arbitration procedure
would amount to an abdication of our responsibilities under the Act.
The Board is not disabled from resolving an unfair labor practice
issue simply because as an incident thereto it may be necessary to con-
strue a contract to determine whether the right to take unilateral ac-
tion has been contractually reserved to management. Section 10(a)
of the Act expressly provides with respect to the Board's power to
prevent unfair labor practices that "[T]his power shall not be af-
fected by any other means of adjustment that has been or may be
established by agreement, law, or otherwise."
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order, the Order recommended by the Trial Examiner, and orders
that the Respondent, Smith Cabinet Manufacturing Company, Inc.,
its officers, agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
MEMBER LEEDOM took no part in the consideration of the above De-
cision and Order.
3 On the facts of this case, we consider it immaterial that the Union initially filed a
grievance under the contract grievance procedure, one which it did not, however, follow
through to the arbitration step. Although the grievance complained of Respondent's
failure to abide both by its "contract and legal obligations," It cited no contractual
provision claimed to have been violated It is apparent that the Union's real-and
only-complaint was over Respondent's failure to abide by Its statutory bargaining
obligations
4 N L R B v Benno Katz, etc, d/b/a Williamsburg Steel Products Co., 369 U S. 736;
The Timken Roller Bearing Co. v. NLRB., supra.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed by Local Union 2577, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, herein called the Union, the General Counsel
of the National Labor Relations Board, through the Regional Director for the
Twenty-fifth Region, issued a complaint dated December 17, 1962, against Smith
Cabinet Manufacturing Company, Inc., herein called the Respondent or the Com-
pany, alleging violations of Section 8(a) (1) and (5) of the National Labor Rela-
tions Act, as amended (29 U.S C., Sec. 151, et seq.), herein called the Act. The
answer of the Respondent admits certain allegations of the complaint but denies
the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Reeves R. Hilton
at Salem, Indiana, on February 5, 1963. All parties were present and represented
J
1510 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
at the hearing and were afforded full opportunity to ,be heard, to introduce relevant
evidence, to present oral argument, and to file briefs. About March 4, I received
briefs from counsel for the General Counsel and'the Respondent.
Upon consideration of the entire record, and upon my observation of the wit-
nesses, I make the following.
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS
The complaint alleges, and the answer admits, that the Company, an Indiana
corporation, has its office and place of business at Salem, Indiana, where it is en-
gaged in the manufacture of television cabinets, juvenile furniture, and related prod-
ucts. In the year preceding the issuance of the complaint the Company sold and
shipped finished products valued in excess of $100,000 from its Salem plant to points
outside the State of Indiana. I find the Company is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR, ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement; the issues
It is undisputed that the Union was certified about October 29, 1959, as the ex-
clusive bargaining representative in an appropriate unit comprising all production and
maintenance employees, including plant clerical employees, truckdrivers, leadmen,
and part-time janitress at the Company's plant, excluding main office employees,
watchmen, foremen, and supervisors as defined in the Act. Thereafter, the Com-
pany and the Union executed a collective-bargaining agreement effective from Febru-
ary 22, 1960, to February 22, 1962.
Following negotiations in the early part of 1962, the parties executed their second
collective-bargaining agreement which is effective from March 18, 1962, to March 18,
1965.
The General Counsel contends that the Company, as alleged in the complaint,
unlawfully refused to bargain with the Union on and after September 1, 1962, by
unilaterally instituting and maintaining a second shift at its plant, by granting premi-
um pay to these employees, and by refusing on and after September 25 and Octo-
ber 4 to bargain with the Union concerning the establishment of the second shift
and matters relating to that subject.'
The Company asserts that under the current contract it had the right to unilaterally
institute the second shift and premium pay, but, in any event, the Union was aware
of these changes and either agreed to them or failed to request the Company to bar-
gain and, finally, if there was any question concerning the validity of these changes
the Union should have proceeded under the grievance procedure provision of the
contract, instead of filing charges of unfair labor practices.
It is conceded the current agreement contains no provisions with respect to a
second-shift operation or the payment of premium shift rates
Here it might be noted that at all times material herein, Howard Parsley and
Chester Sowder, employed in the childcraft department, held the office of president
and chief steward of the Union, respectively; Charles George was steward for the
millroom and a member of the Union's executive board; Andrew Sayers was busi-
ness agent for the Louisville District Council of Woodworkers and handled or as-
sisted the Union in contract negotiations, processing of grievances, and day-to-day
problems; and Jules Berlin was executive secretary of the Kentucky State Council
of Carpenters and representative for the International Union. Lee Smith was vice
president of the Company, David Branaman was his assistant, and Clement Miller
was production manager of the childcraft department.
B. The second-shift operation
During June, as related by Smith, the Company decided to institute a second shift
in the millroom in order to eliminate the payment of overtime and production
"bottlenecks." Admittedly, Smith did not inform the Union of the Company's plan
to put on a second shift, nor discuss the matter with the Union. In the beginning
the second-shift operation, as appears from Smith's testimony and company records,
'All dates refer to 19G2, unless otherwise stated.
SMITH CABINET MANUFACTURING COMPANY, INC. 1511
was a small affair with a few regular day-shift employees, varying in number from
three to seven, working the second -shift,at•irregular intervals. Employees for the
second shift were obtained through solicitations by -the foreman and acceptance of
work on this shift was on a voluntary basis. The second shift was discontinued
during July, ,but was reinstated in August on substantially the same scale as in June.
However, during the last payroll period in August there were 12 men on the second
shift, practically all of whom worked 4 full shifts (apparently 10 hours constituted
a shift), and for the period ending September 1, substantially all the 12 men worked
5 full shifts.2. This situation prevailed until about November 10, when the second
shift was again discontinued for about 1 month and then was reactivated with about
nine employees.
C. The granting of premium shift pay
'In September, Smith experienced difficulty in securing men for the second shift,
so he decided the Company should pay premium,rates as an incentive for workers
on this shift. He then contacted two local companies around September 11 to
inquire of their policy regarding shift differentials and he was informed their second-
shift employees were paid a premium rate of 5 cents an hour. Smith thereupon
discussed the matter of premium rates with the company president and the foremen
involved and, obviously, they approved the granting of premium rates. Smith ad-
mitted he did not contact the union representatives concerning the matter for the
reason "there was nothing to talk about yet." Thereafter on September 14, Smith
prepared the following memorandum:
SEPTEMBER 14, 1962.
MEMO To ALL EMPLOYEES:
As you know, the company has been running small 2nd Shift crews on produc-
tion in some places in the plant.
The Company decided to add 50 per hour shift premium to all persons work-
ing a full 2nd Shift.
This will be effective starting for the work week Sept. 10, 1962, and, of course,
applies only as long as a person is on the 2nd Shift.
(Signed) LEE SMITH,
SMITH CABINET MFG. CO., INC.
On the afternoon of September 14, Smith met with Parsley and Sowder in Miller's
office, pursuant to arrangements made by Miller. Smith testified he informed
Parsley and Sowder (Miller was also present) that the Company was granting
premium pay to the second shift as an incentive to workers and because other em-
ployers in the area were paying shift differential rates. Smith then read the fore-
going memorandum to Parsley and Sowder and neither of them voiced any objec-
tion to the contents of the memorandum as thus read. Smith then said if there was
no objection to his statement, "that's it," whereupon Parsley or Sowder (he could
not recall which one) remarked "it sounds all right to me" and added, in a joking
manner, "I'd like to get on the night shift." Smith thereupon instructed Miller to
post the notice immediately in his department and additional copies were prepared
and posted throughout the plant. The meeting then ended.
Miller testified substantially the same as Smith, with the addition that Parsley
asked how many men would be employed on the second shift and he replied he could
not give a definite number because the size of the shift depended on production
requirements.
George, called as a company witness, stated he knew the second shift started
sometime in May or June, and at a meeting of the executive board, probably in
June, there was brief discussion about having a steward on the second shift but it was
decided he should take care of the matter by occasional checks on the shift.
Parsley testified Smith announced he was giving the second shift premium pay of
5 cents an hour, retroactive to September 10, and there was no discussion whatever
concerning the granting of premium pay or the institution of the second shift. The
only comments to Smith's announcement was Sowder's remark he would prefer the
2 The Company's records show that for the week ending June 9, three men worked five
shifts, and for the week ending June 23, one man worked five shifts, three men worked
three shifts, and three men worked only two shifts. For the week ending August 25,
two men worked five shifts, eight men worked four shifts, and two men worked three
shifts. For the week ending September 1, nine men worked five shifts, two men four
shifts, and one man two shifts. For the week ending September 8, 13 men worked 4 shifts
For the week ending September 15, 10 men worked 5 shifts, 3 men worked 4 shifts, 1 man
3 shifts, and 1 man 2 shifts
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
night shift and Parsley's inquiry regarding the size of the shift . Smith answered
he would like to have half the force on the night shift but he could not do so be-
cause the contract provided the Company would have to maintain a 45-hour week if
it worked over 400 employees . Parsley denied that Smith read the memorandum
at the meeting , but it was posted shortly after the meeting ended . Parsley admitted
he knew the Company had been operating a regular night shift for about 2 or 3
weeks prior to the meeting.
Sowder's account of the meeting was that Smith said the meeting would not take
long, that the Company had decided to increase the size of the second shift and to
give the employees premium pay of 5 cents an hour. Parsley asked the extent of
the increase and Smith replied he did not know , that he would like to have half
the crew on the second shift . Sowder remarked he would not mind working on
the second shift . Sowder denied that Smith read the memorandum to them or
that he asked for their opinion regarding the second shift or premium pay. Ac-
cording to Sowder, neither he nor Parsley agreed to, or objected to, the granting
of premium pay.
Parsley made no attempt to appraise Sayre of the meeting with Smith until about
September 25, for he knew Sayre was on a 30 -day leave of absence and was not avail-
able prior to that time.
However, on September 24, Parsley attended the regular monthly meeting of the
Kentucky State Council of Carpenters at Louisville and reported to Berlin that the
Company had granted shift premium pay without prior notice to or consultation with
the Union.
The testimony of Parsley and Sayre is to the effect that Parsley telephoned Sayre
on September 25 to state the Company had established a second shift and granted
premium shift pay. Sayre told Parsley to arrange a meeting with Smith for the
purpose of discussing these matters.
Sayre confirmed the fact he was absent from his office in Louisville from about
August 21 to September 25.
About September 26, Parsley , in line with Sayre's request , told Branaman that he
and Sowder would like to meet with Smith , and they did meet with Smith and
Branaman that same day. In substance Parsley expressed disagreement with the
manner in which the Company had established the second shift and premium pay
and stated that these were proper subjects for negotiations between the parties.
Smith claimed the parties had already agreed on these matters and Parsley denied
they had agreed to anything . The meeting ended with Parsley stating they would
bring up the subject at the next regular grievance meeting.
Smith said the meeting was a very brief one and the only reference to the second
shift was a remark by Parsley or Sowder as to how the shift was going and he or
Branaman replied it was going all right.
Branaman had no idea as to why the meeting was held, but he testified to the
same effect as Smith.
Smith said the same group met again about October 1 , and this time Parsley and
Sowder requested "something in writing" regarding the selection of men for the
second shift . Smith took the position there was nothing wrong with the present
method of selection While Smith 's testimony is not too clear, Parsley apparently
inquired what would happen if the Union or some individual disagreed with the
Company's list of employees selected for work on the second shift. Smith said,
"It was all settled when we agreed down there that we had the night shift, and if
there are any problems then file a grievance on it and we will proceed to find out
what is right and what is wrong " Parsley and Sowder disagreed and reiterated the
matter should have been negotiated . The meeting then ended.
Branaman stated the meeting of October 1 was held at the request of either
Parsley or Sowder and discussion centered on the second-shift operation and premium
pay. Branaman , on the basis of his notes of the meeting , 3 testified Parsley and
Sowder expressed concern as to the manner in which the Company selected men for
the second shift and complained the Company had simply "told " them it was adding
5 cents for workers on this shift Parsley and Sowder stated they wanted a written
agreement, or something in writing , spelling out the method of selecting men for the
second shift and, seemingly , asked that seniority and ability be considered as factors
in choosing workers for this shift . After some discussion , Smith stated if there was
any real problem involved the Company would "just take back the five cents and
forget about it." Parsley or Sowder expressed opposition to withdrawing premium
pay. Apparently , at that point, Smith suggested the Union file a grievance on the
matter and the meeting , which lasted about 45 minutes , then ended.
'The notes were received in evidence as Respondent ' s Exhibit No. 3.
SMITH CABINET MANUFACTURING COMPANY, INC. 1513
Neither Parsley nor Sowder testified concerning any meeting held on October 1.
However, it is obvious from the testimony they were referring to the same meeting,
although they fixed the date thereof as around September 26.
On October 4, the parties held their monthly grievance meeting but practically
the entire session was devoted to discussion of the second shift and premium pay.
Sayre and Smith acted as spokesmen for the respective parties.
Sayre opened the discussion by stating it was the Union's position that the
second-shift operation and premium pay were bargainable matters and , therefore,
should have been negotiated and agreed upon by the parties, rather than being
effectuated by the Company 's unilateral action . Sayre made it clear he was not
objecting to the amount of premium pay, but that the entire matter should have
been the subject of negotiations between the parties . Smith asserted the Company
had the right to install the second shift and pay premium rates , that if he had engaged
in negotiations the Union undoubtedly would have wanted higher premium pay, and
if Sayre opposed the Company 's action he would post a notice advising the employees
the Union was opposing the 5-cent premium pay for second -shift employees. Al-
though Sayre's memory was hazy, he did recall Miller being called into the meeting
and stating that at an earlier meeting Smith had read a notice to Parsley and Sowder
prior to posting it on the bulletin board. When it was obvious the parties could
not reach any agreement , Sayre remarked the Company would hear from him shortly
and left the meeting.
Parsley testified generally along the same line as Sayre , although he stated Smith
announced he would withdraw the 5-cent increase if opposed by the Union and post
a notice to that effect at the plant . He also added that when Smith claimed he and
Sowder had agreed to the Company 's action he "told him [ Smith ] we hadn't, he just
come down and told us what he was going to do."
Smith testified that Sayre accused the Company of violating the contract by uni-
laterally giving premium shift pay. Smith explained he had contacted Parsley and
Sowder regarding premium pay and they did not object to his plan . Like Sayre,
Smith said Miller was called in and affirmed that Smith had read the notice or
memorandum to Parsley and Sowder at an earlier meeting . He further stated that
the increase had been in effect for about 3 weeks and if the Union had any com-
plaint it should have promptly requested a meeting instead of waiting to bring up
the matter at the regular grievance meeting. Smith maintained his position and
ended the discussion by telling the Union "to arbitrate it or do something else."
Branaman related there was much discussion on the selection of men for the
second shift and premium pay, with the Union contending all this had been accom-
plished without its prior approval and the Company contending the Union had
approved its action . The meeting concluded with Smith stating that so far there had
been no problem in respect to these matters and if a problem did arise the Union
could file a grievance , which the parties could work out.
On October 17, the Union filed the charges in this case.
Upon the resumption of the second shift on December 10, the Union filed a
grievance on December 19 on the grounds this action was taken without prior notice
to it and requested the Company to bargain with respect to shift premium pay,
seniority relating to shifts , etc. The grievance was denied by the plant superin-
tendent and by the plant manager at steps 2 and 3, respectively , of the grievance
procedure . On December 24, the Union wrote the Company that it intended to
submit the grievance to arbitration . The Company claims it has never refused to
arbitrate the matter and, apparently , the grievance is still pending.
Analysis and Concluding Findings
It is, of course , well settled that an employer's duty to bargain with the representa-
tive of his employees does not end with the consummation of a collective -bargaining
agreement but the duty is a continuous one which involves day -to-day adjustments
in the contract and the protection of employee rights already secured by the
contract . (J. I. Case Company v. N.L.RB., 253 F. 2d 149, 153 (C.A. 7)). Since
the parties were conducting their labor relations under the terms of an existing agree-
ment the broad question posed is whether the Company thereafter fulfilled its statu-
tory obligation to bargain with the Union with respect to the institution of a second
shift and the payment of premium pay. Here the question is more legal than factual,
for there is no real dispute on the basic facts, although as might be expected, the
testimony varies on some phases of the case
The facts concerning the second-shift operation are undisputed ; it was established
in June, discontinued in July, resumed in August , and ,maintained until November 10,
when it was again discontinued and once more reinstated on December 10 The
plan to establish the shift , as well as the method for recruiting employees, was
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determined and effectuated by the Company without prior notice to or consultation
with the Union. Obviously, the operation worked smoothly until early September
when Smith had difficulty in securing men willing to work the shift. Faced with
this situation, Smith and the company president decided to pay premium shift rates
as an inducement to employees to work the second shift. Smith thereupon prepared a
memorandum to the employees, dated September 14 (supra), announcing the Com-
pany's decision in the matter. On the same day Smith met with Parsley and Sowder
and informed them of the Company's action in this respect. Whether Smith ex-
plained the reason for granting premium rates or read the memorandum, as he
claimed, or whether he merely advised Parsely and Sowder of the increase, as they
asserted, is immaterial for there is no doubt Parsley and Sowder were apprised of
the Company's position on the matter of premium rates. Smith's own testimony
completely refutes the idea that his meeting with Parsley and Sowder was called for
the purpose of bargaining with them concerning premium shift pay for, as plainly
stated in the memorandum, the Company had already decided upon the amount of
the increase, as well as the date it was to become effective. The object of the
meeting, in my opinion, and as credibly stated by Parsley and Sowder, was simply to
announce the Company's decision and nothing more. Thus, it was not until after
Smith had declared, in parliamentary fashion, there being no objection, "that's it,"
that Parsley or Sowder responded "it sounds all right" and jokingly added he would
like to get on the shift. Smith thereupon instructed Miller to post the memorandum
immediately, which he did, and the meeting ended.
I find nothing in the testimony indicating Parsley or Sowder expressly or impliedly
agreed to accept premium shift pay, in fact the only point made by Smith was that
Parsley and Sowder failed to voice any objection to his actions. Under the circum-
stances that was about the only position they could take and I do not consider their
position constituted a waiver of the Union's right to bargain on either the institution
of the second shift or premium pay.
Concededly, Parsley and Sowder did not communicate with Sayre, their advisor in
such matters, until September 25, for the reason they knew Sayre was not available
before that date. As a consequence of their report to him, Parsley and Sowder met
with Smith and Branaman about September 26 or October 1. Unquestionably, at
this meeting Parsley and Sowder expressed dissatisfaction with the manner in which
the Company was operating the second shift and the way it had announced premium
shift pay and requested Smith to negotiate with them in the hope they could reach
some written agreement covering these subjects. However, Smith refused their
request by adamantly stating the matter "was all settled" and if they had any com-
plaints they could file -a grievance. It is equally clear from Branaman's testimony
that Smith foreclosed any discussion for he declared if there was any problem re-
garding premium pay he would simply cancel it and concluded by telling Parsley and
Sowder they should file a grievance.
At the meeting on October 4, Smith refused Sayre's request to bargain on these
subjects on the grounds there had been no problem regarding the second shift and
premium pay, that Parsley and Sowder had agreed to accept the payment of premium
rates, and if the Union had any complaint it could file a grievance.
Counsel for the Company argues that when an employer, as in this case, notifies
the union representatives of his intention to make changes in wages, hours, or condi-
tions of employment and the representatives agree to the changes, or do not request
the employer to bargain thereon, the employer has fulfilled his statutory duty to
bargain, citing Union Screw Products, a Partnership, 78 NLRB 1107, and ,Mont-
gomery Ward & Co., Incorporated, 137 NLRB 418. Manifestly, this argument stems
from the events at the meeting of September 14, for counsel concedes the Union did
request the Company to bargain on October 1, some 4 months after the start of the
second shift and 3 weeks after premium pay had been granted.
I do not consider the Union Screw case as authority for the Company's conten-
tion. In that case the employer and the union had an agreement which provided
for "a flat increase of wages of all production employees of ten cents (100) per
hour" when average productivity reached 50 percent. The agreement further pro-
vided that if the employer was permitted to increase the sale price of his products,
he was then under OPA restrictions, he would "notify the union of such increase,"
so they could bargain on the matter of wage increases. Later, when OPA restric-
tions were lifted, the employer notified a member of the shop committee of his in-
tention to grant the increase in accordance with the terms of the agreement and the
member agreed thereto. Admittedly, the employer did not notify the union business
agent. However, the Board held that under all the circumstances the notice was
sufficient under the terms of the contract and the employer did not unlawfully refuse
to bargain with the union.
SMITH CABINET MANUFACTURING COMPANY, INC. 1515
In the Montgomery Ward case , the employer and the union had an agreement
covering drivers employed at its Denver , Colorado, terminal . Subsequently, the
employer notified the union it was opening two new terminals in other cities and
the union president made no objection to establishment of the new terminals. When
the terminals were opened the union requested the employer to apply the old agree-
ment to employees at these terminals, some of whom had been transferred from the
Denver terminal, which the employer refused to do because, (1) there was a ques-
tion concerning the representation of these drivers, and (2) the dispute should be
processed through the grievance procedure of the agreement. The Board held that
since the union did not request bargaining concerning the establishment of the termi-
nals, but only objected to the employer's refusal to apply the agreement at the new
terminals, the employer did not unlawfully refuse to bargain. The Board also held
that the dispute should have been settled in accordance with the specific grievance
procedure in the agreement which provided for final arbitration of "all grievances
involving the interpretation or application of the (contract's) provision."
The facts in the above cases are plainly distinguishable from the facts in this case.
As I have already found, Smith called the meeting on September 14 to formally an-
nounce the Company's decision to grant premium pay, not to negotiate, or give the
Union an opportunity to negotiate , the matter. Nor can the Company justify its
failure to bargain on the ground Parsley and Sowder did not make a formal demand
to bargain on that date. There is no merit to this contention for such a demand
would have been futile as demonstrated by the Company's summary rejection of
the Union's requests for bargaining on September 26 or October 1 and October 4
Moreover, the Board in The Black-Clawson Company, 103 NLRB 928, 931, specif-
ically held:
a recognized majority representative which enjoys a current collective bar-
gaining agreement is not required to make a new demand for a bargaining con-
ference whenever the employer desires to make changes in conditions of
employment. It is rather the employer's duty to consult with the representative
of the employees before granting additional benefits or otherwise changing con-
ditions of employment.
Certainly, it cannot be said, as argued by the Company, that the Union was
dilatory in pressing its demand for bargaining after the shift operation and premium
pay had been brought to its attention. From the record it is clear the second-
shift operation was an intermittent and irregular operation until about the first week
in September and the granting of premium pay was first announced on September 14.
The Company admits the Union formally requested bargaining on these subjects no
later than October 1. Under the circumstances, I fail to see how the Union's delay
of 2 or 3 weeks in requesting the Company to bargain can be found to be unreason-
able or that the Company was prejudiced by this brief delay. (See Motoresearch
Company and Kems Corporation, 138 NLRB 1490).
The Company further contends that the issues here should have been resolved in
accordance with the grievance procedure of the contract rather than unfair labor
practice proceedings. The agreement defines a grievance as "a difference between
the Company and the Union . . . as to the meaning or application of the provisions
of this Agreement." The agreement contains no provisions whatever covering a
second-shift operation or premium shift rates, consequently the issues do not involve
any interpretation or application of the agreement's provisions. (Cf. Montgomery
Ward & Co., Incorporated, supra.) Equally without substance is the contention
that the Company, under the management-rights clause in the agreement, had the
right to unilaterally establish the second shift and grant premium rates to employees
working the shift. (Proctor Manufacturing Corporation, 131 NLRB 1166, 1170.)
Considering all the evidence, I find the Company by unilaterally establishing and
maintaining a second shift on and after September 1, and by unilaterally granting
pay increases on September 14, and by refusing to bargain with the Union as the
exclusive representative of its employees on September 14 and 26 and/or October 1
and 4, thereby engaged in acts and conduct in violation of Section 8(a)(5) and (1)
of the Act.4
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations set forth in section I, above, have a close, intimate, and
4 N L R B. v Benne Katz, etc, d/b/a Williamsburg Steel Products Co, 369 U S 736;
Southern Coach & Body Company, Inc, 141 NLRB 80; Carter Machine and Tool Co ,
133 NLRB 247; Proctor Manufacturing Corporation, supra.
1516 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
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 the Respondent has engaged in certain unfair labor practices, I will
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 above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Smith Cabinet Manufacturing Company, Inc., is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local Union 2577, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, is a labor organization as defined in Section 2(5) of the Act.
3. All production and maintenance employees, including plant clerical employees,
truckdrivers , leadmen, and part-time janitress at the Respondent 's plant in Salem,
Indiana, excluding main office employees , watchmen , foremen , and supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. At all times material herein the Union has been and now is the exclusive repre-
sentative of all the employees in the appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 ( a) of the Act.
5. By establishing and maintaining a second shift and by granting premium shift
pay without prior consultation and bargaining with the Union , and by refusing to
bargain collectively with the Union , the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the Act, I recommend that the Respondent, Smith
Cabinet Manufacturing Company, Inc., its officers , agents, successors , and assigns.
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local Union 2577, United Brotherhood
of Carpenters and Joiners of America , AFL-CIO, as the exclusive representative
of all its employees in the appropriate unit with respect to the establishment of a
second-shift operation , premium shift pay, and related matters.
(b) Instituting changes in the terms and conditions of employment in the appro-
priate unit , such as the establishment of a second-shift operation and premium shift
rates without first consulting with and bargaining with the aforementioned exclusive
representative concerning workshift operations , premium shift pay, and related
matters.
(c) In any like or related manner intefering with , restraining , or coercing em-
ployees in the exercise of rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which will effectuate the policies of the
Act.
(a) Upon request , bargain collectively in good faith with Local Union 2577,
United Brotherhood of Carpenters and Joiners of America , AFL-CIO, as the ex-
clusive representative of all its production employees in the appropriate unit with
respect to any second-shift operation , premium shift rates , and related matters, and,
if an understanding is reached , embody such understanding in a written agreement.
(b) Post at its plant at Salem , Indiana, copies of the attached notice marked
"Appendix ." 5 Copies of the notice , to be furnished by the Regional Director for
the Twenty -fifth Region , shall, after being signed by the Respondent 's representative,
be posted by the Respondent immediately upon receipt thereof , and be maintained
for a period of 60 consecutive days thereafter , in conspicuous places , including all
5If this Recommended Order be adopted by the Board ,, the words "a Decision and
Order" shall be substituted for the words " the Recommended Order of a Trial Examiner"
in the notice In the further event that the Board ' s Order be enforced by a decree of a
United States Court of Appeals , the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
CERTAIN-TEED PRODUCTS CORPORATION 1517
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.
(c) Notify said Regional Director, in writing, within 20 days from the date of
the receipt of this Intermediate Report and Recommended Order, what steps it has
taken to comply herewith .6
e In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Local Union 2577, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive
representative of all our employees in the appropriate unit with respect to the
establishment of a second-shift operation, premium shift pay, and related
matters.
WE WILL NOT institute changes in the terms and conditions of employment in
the appropriate unit, such as the establishment of a second shift and the granting
of premium shift rates, without first consulting with and bargaining with the
above Union as the exclusive representative of such employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of rights guaranteed in Section 7 of the Act.
WE WILL, upon request, bargain collectively with Local Union 2577, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive
representative of all our employees in the following bargaining unit, with respect
to the institution of a second -shift operation , premium shift rates, and related
matters, and , if an understanding is reached , embody such understanding in a
signed agreement. The bargaining unit is:
All production and maintenance employees, including plant clerical em-
ployees, truckdrivers, leadmen, and part-time janitress, at the Salem,
Indiana, plant, excluding main office employees, watchmen, foremen, and
supervisors as defined in .the Act.
SMITH CABINET MANUFACTURING COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 614
ISTA Center, 150 West Market Street, Indianapolis, Indiana, Telephone No. Mel-
rose 3-8921, if they have questions concerning this notice or compliance with its
provisions.
Certain-Teed Products Corporation and United Stone and Allied
Products Workers of America , AFL-CIO. Cases Nos. 16-CA-
1819, 16-CA-1864, and 16-CA-1905. June 30, 1964
DECISION AND ORDER
On February 14, 1964, Trial Examiner Reeves R. Hilton issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices and
147 NLRB No. 160.