Speedrack, Inc.

National Labor Relations Board - Board Decisions

May 17, 1989

293 N.L.R.B. 1054 (N.L.R.B. 1989)

1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Speedrack, Incorporated and International Union,
United Automobile, Aerospace & Agricultural
Implement Workers of America and its Local
Union No 1270 Case 14-CA-19131
May 17, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On April 15, 1988, Administrative Law Judge
Harold Bernard Jr issued the attached decision
The Respondent filed exceptions and a supporting
brief, and the Charging Party, International Union,
United Automobile, Aerospace & Agricultural Im-
plement Workers of America & its Local Union
No 1270 (the Union), filed a brief in support of the
judge's decision and in opposition to the Respond
ent's exceptions
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions only to the extent consistent with this
Decision and Order, in which we reverse the
judge's conclusion that the Respondent violated
Section 8(a)(5) and (1) as alleged and, accordingly,
dismiss the complaint
The judge found that the Respondent changed
the wage rates in an existing collective-bargaining
agreement without the consent of the Union, and
he concluded that this action violated Section
8(a)(5) of the Act The Respondent asserts that it
made these changes only after fulfilling certain pro-
cedural requirements set out in Section 8(d) of the
Act and negotiating with the Union to impasse
over the wage rates pursuant to the contract's
wage reopener provision The Respondent argues
that its invocation of the wage reopener effected an
expiration of the wage provisions in the contract,
entitling the Respondent to unilaterally implement
its wage modifications after impasse We agree
I FACTUAL BACKGROUND
The parties entered into an agreement effective
June 1, 1986, through August 31, 1988 The agree
ment contained a reopener provision that allowed
either party to reopen on either or both of two
issues wages and "foremen working "2 Reopening
' The Respondent has requested oral argument The request is denied
as the record exceptions and briefs adequately present the issues and the
positions of the parties
z The latter issue involved foremen performing bargaining unit work
could occur 15 months after the agreement's effec-
tive date 3 It is undisputed that the Respondent
gave written notice to the Union on July 1, 1987,
that it wanted to reopen the issue of wages and
that it also similarly notified the appropriate state
and Federal mediation agencies It is also undis
puted that the parties reached impasse on Septem-
ber 2, 1987, and that the Respondent unilaterally
implemented changes in the wage provisions on
September 4 in accordance with its final bargaining
position
II APPLICABLE PRINCIPLES
It is settled law that an employer's midterm con-
tract modification made without the consent of the
employees' collective bargaining representative is a
violation of Section 8(a)(5) of the Act as elucidated
in Section 8(d) 4 It is equally clear that the parties
to a collective-bargaining agreement can, by
mutual consent, include a reopener provision in
their contract, by which they agree to open up
specified subjects for bargaining before the expira-
tion date of the contract See, e g , NLRB v Lion
Oil Co, 352 U S 282, 285-286 (1957) It is not,
however, settled whether an employer who prop
erly invokes a reopener provision, in circumstances
in which the procedural requirements of Section
8(d) pertaining to termination of contractual provi
sions have been satisfied, and who bargains to im-
passe on the reopened subject violates Section
8(a)(5) by thereafter unilaterally implementing its
final offer more than 60 days after he gave notice
of his intent to reopen In order to decide this
issue-which was expressly left open in La Porte
Transit Co, 286 NLRB 132 fn 2 (1987), and which
is presented in this case-we must consider the
policies underlying Section 8(a)(5) and 8(d) 5
When parties agree to a reopener provision, they
essentially choose flexibility over stability as to
those provisions of their contract governed by the
3 The reopener provision reads as follows
Wage Reopener This Agreement may be reopened by either
party solely on the issues of wages and foremen working fifteen
(15) months after its effective date A party so desiring to reopen the
Agreement must do so by serving written notice on the other party
no later than July 31 1987
4 Allied Chemical & Alkali Workers Local 10 v Pittsburgh Plate Glass
404 U S 157 159 fn 2 185-187 ( 1971) citing with approval NLRB V
Scam Instrument Corp 394 F 2d 884 887 (7th Cir 1968) cert denied 393
U S 980 (1968) Oak Cliff Golman Baking Co 207 NLRB 1063 1064
(1973) enfd mem 505 F 2d 1302 (5th Cir 1974) cert denied 423 U S
826 (1975)
5 Our reference to the Act s policies is not intended to suggest that this
issue can be determined without reference to the parties intent If we had
clear evidence that the parties had a definite agreement whether there
could be implementation on impasse then the issue could be resolved
simply by giving effect to that intent As we explain below however we
find no merit in the Union s arguments that the parties intended that the
Respondent be barred from implementing a final offer after bargaining to
impasse on the reopened issue
293 NLRB No 128
SPEEDRACK INC
reopener, because each party has thereby waived
the protection that the proviso to Section 8(d) of
the Act would otherwise provide against being
called on to bargain over matters governed by the
contract prior to the period that commences 60
days before the contract's expiration See Allied
Chemical & Alkali Workers Local 10 v Pittsburgh
Plate Glass, supra at 186 They also must intend, in
the absence of a clear indication to the contrary,
that the bargaining will consist of more than one
party asking the other if it would agree to a
change, for even in the absence of a reopener pro-
vision, changes may be made by mutual consent 6
In determining what freedom of action the parties
may have under our Act during such reopener pe-
riods, we must avoid imposing conditions that
would turn reopener bargaining into little more
than a charade that would barely differentiate it
from the kinds of discussion that may lawfully
occur even in the absence of a reopener
The Supreme Court's reasoning in Lion Oil is in-
structive in this regard The Court held that the
Act did not prohibit the union there from striking
during the term of a contract over contract modifi-
cation demands, so long as the strike occurred
more than 60 days after a contractually permitted
notice of a desire to modify It read the term "expi
ration date" in both Section 8(d)(1) and (4) as ap-
plying not only to contract expiration dates but
also to any date that the parties fix in the contract
as a period in which modifications may be made
In essence, the Court equated invocation of the re-
opener provision with the expiration of the terms
covered by the reopener It reasoned that if Con-
gress contemplated a duty to bargain during re-
opener periods, then it must have intended to allow
unions to retain "the strike threat which, together
with `the occasional strike itself, is the force de-
pended upon to facilitate arriving at satisfactory
settlements "' 352 US at 291
We likewise cannot conclude that the Congress
would have intended, through Section 8(a)(5), to
prohibit bargaining on properly reopened subjects
from proceeding through the same natural course
that bargaining may take when no contract is in
effect, that is, a course in which an employer is ob-
ligated to bargain in good faith and in which it
may alter the current conditions pursuant to its
final good faith offer if it has exhausted all possi-
bilities for agreement with the union Taft Broad-
casting Co, 163 NLRB 475, 478 (1967), enfd 395
6 Cf Communications Workers (New York Telephone Co) 186 NLRB
625 627 ( 1970) (Board interpreted the parties contractual modification
provision as allowing the parties to do only what they would have been
able to do absent the provision because the provision merely had provid
ed for modification on mutual consent)
1055
F 2d 622 (D C Cir 1968) Of course, Section 8(d)
still imposes some constraints, notably the require
ments that the party invoking the reopener provide
timely notice to the other party and to state and
Federal mediation services and that the parties con
tinue the relevant contract terms "in full force and
effect without resorting to strike or lockout
for a period of sixty days after [the] notice [to ter-
minate or modify the contract] is given or the expi-
ration date whichever occurs later "7 This
statutory 60-day period, which "operates wholly
independently of whatever notice requirement the
parties have fixed for themselves,"8 provides a pro-
tected period for negotiations free of pressure by
either side At the end of that period, however, we
see no basis in the policies of the Act for not al
lowing an employer to implement its final offer on
the reopened subject if it has bargained to impasse
on that subject
The Union, however, pointing out that the Su-
preme Court in Lion Oil expressly noted the ab-
sence of any no-strike clause in the collective-bar-
gaining agreement at issue in that case, argues that
it would be unfair and contrary to the policies of
the Act to permit the Respondent to implement a
proposal after impasse when the Union is preclud
ed by the contract's no strike provision from strik-
ing over the matter The short answer to that argu
ment is that the Union is not precluded from strik-
ing As we explain in Hydrologics Inc, 293 NLRB
1060 (1989), issued together with this opinion,
absent clear agreement of the parties to the con-
trary, the same statutory policies that privilege an
employer's unilateral action after impasse on a re-
opened subject also privilege the collective-bar-
gaining representative's resort to an economic
strike over the dispute on that subject notwith
standing the existence of a no-strike clause
Of course, as indicated, the parties could agree
to place constraints on themselves with respect to
unilateral implementation after impasse or the use
of economic weapons, and that agreement would
be controlling But we reject the Union's implicit
argument that, without a clear agreement to the
contrary, we must read into any collective bargain
ing agreement containing a reopener an intent of
the parties to bind their hands with respect to re-
opened subjects in a way that their hands are not
ordinarily bound with respect to subjects covered
in expiring contracts Thus, in cases involving ter-
minated contract provisions-whether terminated
through a reopener or terminated through the expi
ration of a contract-we will assume, in the ab-
' See EPE Inc 273 NLRB 1375 1378 (1985)
8 Lion Oil supra at 293
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sence of evidence of a contrary intent, that the par-
ties intended to reserve to themselves the freedom
of action that is a normal part of the collective-bar
gaining process when contractual provisions gov-
erning the matters on the bargaining table are not
in effect This means that where the parties have
not thus constrained themselves, an employer who
observes the procedural requirements of Section
8(d) may implement a proposal on a reopened sub-
ject after bargaining to impasse
III ANALYSIS OF THE LEGALITY OF THE
RESPONDENT'S ACTIONS UNDER THE REOPENER
In the present case , all the procedural require-
ments of Section 8(d) were satisfied The Respond-
ent gave written notice on July 1, 1987, of its
desire to bargain for wage modification under the
reopener, and it also sent notices to the Federal
and state mediation agencies , thereby satisfying the
requirement under Section 8(d)(3) of the Act It en-
tered into bargaining with the Union and dunng
this period, which exceeded 60 days, it maintained
the contract's terms "in full force and effect" with-
out resort to lockout It gave notice of its intent to
implement its final offer on September 4, after bar-
gaining in good faith to impasse and after passage
of more than 60 days beyond the date of the initial
8(d)(1) notice Having reopened the wage provi-
sions of the contract, complied with the require-
ments of Section 8(d), and bargained to impasse
over the reopened provisions, the Respondent was
entitled to implement its final offer unilaterally, in
the absence of a clear indication by the parties to
the contrary
We find no evidence of a contrary intent here
The language of the reopener provision is straight-
forward, simply indicating which provisions may
be reopened, who may reopen them, and when and
how notice of an intent to reopen is to be given
Furthermore, as we explain below, the collective
bargaining history does not indicate that the re-
strictions for which the Union contends were
agreed on, that is that the parties intended through
the reopener to provide only for mutual discussion
of the reopened subjects
The Union relies heavily on testimony that, in
contemplating the reopener provision, its negotia
tors-notably Union President Mellon-had ex
pressed a fear that the Respondent might use the
provision to lower the employees' wages, and that
the Union agreed to the provision only after this
fear was placated by an "eleventh hour reassur-
ance" from the Respondent that no such action
would be permitted This asserted "reassurance,"
however, had been made in response to the Union's
concern over the "foremen working" issue, and
even Mellon's account of the "reassurance" (which
allegedly came from Lou Artale, the Respondent's
principal negotiator) does not support the Union's
restrictive interpretation of that asserted statement
(i e, that only discussions were contemplated under
the reopener) Mellon had testified that Artale had
told the Union that it could bung up the problem
of foremen performing bargaining unit work for
discussion under the reopener if the Union was not
satisfied with the Respondent's handling of the
issue 9 There is no indication that, by this state-
ment, the parties understood that they were pre-
cluding resort to any other actions under the re
opener (e g , the Respondent's right to unilaterally
implement or the Union's right to strike) Indeed,
the one aspect of the bargaining history that the
parties appear to agree on is that they had never
discussed the actions they would have been al-
lowed to take in the event the discussions pursuant
to the reopener failed
Finally, the Union argues that its failure to seek
changes to allow it to strike during a reopener
period is additional evidence that the parties' agree
ment does not contemplate unilateral implementa-
tion after impasse of a proposal on a reopened sub
ject This argument assumes , however, that the ex
isting no-stoke provision precluded the Union from
striking during the reopener period But as noted
above, and as explained more fully in Hydrologics
Inc, supra, in the absence of language to the con-
trary, it need not be assumed that a no-strike
clause, which applies only dunng the term of a
contract, would necessarily apply to subjects on
which the contract is, at least for a certain period
effectively terminated There is no language in the
present contract that either on its face, or in the
light of bargaining history, i ° indicates that the no
strike clause must apply to disputes over matters as
to which the contract has effectively expired 11
9It makes sense in this context that Artale would refer only to the
Union s being able to discuss any problems it had with the Respondent s
handling of this issue since the Union would never be in a position to
unilaterally implement changes in the work assignment of foremen
1s There is no evidence indicating that the parties ever discussed
whether a reopener stoke would be precluded by the no stoke provision
Also the no strike provision has been in the contract since the parties
initial agreement in 1965 In these circumstances Artale s response to a
leading question on cross examination that the no stoke provision prohib
ited the Union from stoking under any circumstances was his personal
opinion and not a sufficiently clear indication that the parties mutually
intended that the no stoke clause would operate as to matters that were
opened up for renegotiation
i i The Union also relies on bargaining history from 1982 in urging its
construction of the reopener In 1982 in the midterm of a contract that
did not contain a reopener the Respondent had requested negotiations
over wages and the Union told the Respondent it was not required to
discuss such changes The Union agreed however as a courtesy to do
so The Union argues that this statement shows that the purpose of the
reopener negotiated in the subsequent contract is merely to assure that
the Union must sit down and discuss proposed midterm changes We find
Continued
SPEEDRACK INC
In sum , we conclude that the policies of the Act
with regard to collective bargaining make it rea
sonable to read a contract reopener provision as
permitting the parties to respond to disputes over
reopened subjects by resort to the courses of action
normally allowed them when a contract has ex-
pired, so long as the procedural requirements of
Section 8(d) are met 12 By agreeing to a reopener,
the parties manifest their agreement to permit such
measures unless they include language to the con
trary As set forth above, the Union has made no
such showing of contrary intent here
Accordingly, we find that the Respondent law
fully implemented unilateral wage changes after
bargaining to impasse over those changes pursuant
to the contract's wage reopener provision, and w e
dismiss the complaint
ORDER
The complaint is dismissed
the Union s reliance on this evidence misplaced since there is no indica
tion that the parties discussed this incident during the 1986 negotiations
In any event it is equally feasible that the Respondent sought the reopen
er because although the Union had agreed to discuss the 1982 midterm
wage proposals (indeed Union President Mellon testified that the Union
would agree to talk anytime anyplace ) absent a reopener the Re
spondent would not be able to implement proposed changes without the
Union s consent even after bargaining to impasse
12 With the possible exception of one case noted below other cases in
which the Board has had occasion to consider the effect of contract re
opener clauses are not inconsistent with our approach here They have
involved contract language different from the language at issue here and
the legality of the employer s unilateral action has depended on the spe
cific language of the clause regarding the continuing status of the con
tract terms Thus in KCW Furniture Co 247 NLRB 541 (1980) enfd
634 F 2d 436 (9th Cir 1980) the contract provided that mere invocation
of the reopener provision was not intended either to terminate the con
tract or to forestall its automatic renewal Under those circumstances the
Board found that the employer violated Sec 8(a)(5) when acting as if the
contract provisions had terminated the employer unilaterally implement
ed its final offer after impasse in the reopener negotiations and after the
automatic renewal date had passed By contrast in Schaeff Namco Inc
280 NLRB 1317 ( 1986) an employers unilateral implementation of its
final wage offer on a third year reopener was found lawful because the
contract specifically provided for implementation if the parties failed to
agree on rates during a prescribed period See also Vienna Sausage Mfg
Co 252 NLRB 1317 (1980) ( in case involving clause regarding reopening
or automatic renewal employer violated Sec 8(a)(5) by responding to
unions timely notice to reopen with refusal to bargain unless union
would agree that contract would terminate and by insisting when union
refused to waive the no termination provision that the contracts auto
matic renewal thereafter relieved it of bargaining obligation notwith
standing its failure to bargain prior to the automatic renewal date)
The adminstrative law judge s decision adopted by the Board in Inta
Roto Inc 252 NLRB 764 769-770 (1980) enfd mem 661 F 2d 922 (4th
Cir 1981) is arguably inconsistent with our decision in the present case
to the extent it may suggest that a contract clause must use the term ter
minate before a notice to modify under a reopener can be deemed the
equivalent for any purpose of a notice to terminate But the case is distin
guishable since in finding that the employer violated Sec 8(a)(5) through
unilateral implementation of a wage offer the judge relied on contract
language that he construed as permitting unilateral action after impasse
and found that the parties had not in fact reached impasse before the em
ployer implemented his offer Id at 770
Mary Tobey Esq, for the General Counsel
1057
Lawrence J Casazza Esq of Chicago Illinois for the
Respondent
Stanley Eisenstein Fsq of Chicago, Illinois for the
Charging Party
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD JR Administrative Law Judge I
heard this case December 1987 in St Louis Missouri
The sole issue is whether the Employer violated Section
8(a)(5) of the Act by reducing wages without the con
sent of the Union in midterm of the parties collective
bargaining agreement following impasse in negotiations
held under a wage reopener clause
Based on the entire record,' including the parties
briefs, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent makes steel storage racks in Quincy Illi
nois, and annually receives products valued in excess of
$50 000 directly from suppliers located outside Illinois I
find that Respondent, as admitted, is an employer en
gaged in commerce within the meaning of the Act
II LABOR ORGANIZATION AND APPROPRIATE UNIT
The Union is admittedly a labor organization within
the meaning of Section 2(5) of the Act and, at all times
material, has been the exclusive bargaining representative
of Respondents employees in the following appropriate
unit
All production and maintenance employees em
ployed at the Employers Quincy Illinois facility
excluding office clerical and professional employees
office janitors stockroom attendants guards and
supervisors as defined in the Act
Respondent has recognized the Union as such representa
tive since 1965
III THE UNFAIR LABOR PRACTICE
The parties executed a contract in June 1986 contain
ing for them a first time wage reopener clause The over
all agreement was effective June 1 1986 until August
31 1988 the wage reopener clause allowed either side to
reopen for wage discussions 15 months into the con
tract s term It reads
i Respondents duly filed motion at hearing to quash the Charging
Party s subpoena duces tecum is granted because of a lack of either
claimed or apparent relevancy in the information sought by the subpoena
and further because said information in any event was not only offered
by witnesses testimony in large part but was also if desired more fully
elicitable through examination of witnesses at the hearing before me in
which counsel for the Charging Party participated Counsels stated sup
port for serving the subpoena that is because of the mere hope of possi
bly finding a smoking gun as he called it in Respondents records of
negotiations justifies the conclusion that he was engaged in a fishing ex
pedition like effort rather than the valid production of reasonably antici
pated probative evidence a further basis for this ruling
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
RATES OF PAY
1 Wage Reopener This Agreement may be re
opened by either party, solely on the issues of
wages and foremen working fifteen (15) months
after its effective date A party so desiring to
reopen the Agreement must do so by serving writ
ten notice on the other party no later than July 31,
1987 [G C Exh 2, art 8, sec 1 p 39 ]
On July 1, 1987, Respondent notified the Union it
wished to reopen the contract pursuant to article 8, set
forth above for the purpose of negotiating the issue of
wages (G C Exh 6) The parties later met for negotia
tions four times, August 1 and 12 and September 1 and 2
devoted to addressing Respondents proposals for wide
scaled and severe across the board wage cuts ranging
from 40 to 43 percent drops in the existing wages called
for in the parties agreement which as noted, was not
due to expire until August 31, 1988
The parties to this hearing are in agreement that these
negotiations to resolve Respondents demands for wage
reductions led to an impasse on September 2 when the
Union rejected Respondents final offer, and when Re
spondent thereupon announced it would be implementing
wage reductions on September 4
Respondent further communicated its decsion to uni
laterally reduce wages in a letter to employees attached
to paychecks on September 3, and took the action itself
on the next day, September 4 (G C Exh 11) As a
result, contract established pay scales ranging between $9
and $10 hourly rates dropped steeply to a $5 to $7 range
per hour in the approximately 25 work classifications at
Respondents plant (G C Exh 2 p 40, and G C Exh
10)
Analysis and Conclusion
The record and the parties positions on brief clearly
show that the Respondent made changes in an existing
collective bargaining agreement without the consent of
the Union a plain violation of Section 8(a)(5) of the Act
given the clear prohibition against such conduct arising
from Section 8(d) of the Act La Porte Transit Co 286
NLRB 132 (1987) and cases cited at 137
Respondent contends on brief that the parties wage
reopener clause, as simply worded, constituted an expi
ration of the wage provisions freeing Respondent to
modify the wage structure on the parties impasse in ne
gotiations As authority in support of this contention Re
spondent was only able to offer a case involving a differ
ent principle from the issue here, the right to strike on
due notice in midterm of a contract authorizing a re
opening on wages and footnote quotations of dicta un
controlling here and indeed even alien to the controlling
issues in those two cases See respectively Lion Oil Co,
109 NLRB 680 (1945) enfd 352 US 282, 291 (1957),
Kelly Goodwin Hardwood Co 269 NLRB 33 38 fn 25
(1984) and Herman Bros 273 NLRB 124 fn 1 (1984) In
any event it is clear that Respondents assertions to the
contrary the Board has not decided such a question in
Respondents favor Thus in the La Porte Transit deci
sion cited above the Board noted
Even assuming arguendo, that the terms of the par
ties reopener provision would privilege post im
passe unilateral changes, the record shows that the
Respondent did not bargain to a good faith impasse
prior to its implementation of changes
In footnote 2, the Board expressly noted it was unneces
sary to decide, as a general proposition whether the
terms of the parties reopener provision would permit
unilateral changes if a good faith impasse had been
reached
There was argument by the parties here also addressed
at a past instance during the term of an earlier agreement
which had no reopener when the Union at first denied
Respondents request to discuss midterm wage modifica
tions, vague clues advanced to devining the parties' in
tentions when the present contracts wage reopener
clause was agreed on torturously reasoned arguments
about the legal significance of the present contracts no
strike clause and whether the Union nevertheless planned
on striking over Respondents last offer before Respond
ent s unilateral action was taken and so on-none of
which shed much light
The simple truth is that no discussion of midterm
changes in a fixed term collective bargaining agreement
is required under Section 8(d) of the Act if such modi
fication is to become effective before such terms and
conditions can be reopened under the provisions of the
contract C & S Industries, 158 NLRB 454 (1966),
Standard Oil, 174 NLRB 177 (1969), Campo Slacks 266
NLRB 492 (1983), and cases cited in La Porte Transit,
supra at 137 This clearly confers on the Union the right
not to agree to discuss any such changes, and there is not
a scintilla of evidence in the record on which it can rea
sonably be concluded that the Union gave up-under the
wage reopener language here-any more than the right
not to agree to discuss the issue of wages Thus the par
ties bargained-for agreed on language merely states in
pertinent part
1 Wage Reopener This agreement may be re
opened by either party solely on the issues of wages
(and foremen working) fifteen (15) months after its
effective date
That of course, left completely untouched and wholly
intact or preserved if you will the Union s statutorily
mandated right to consent to any changes before such
changes are made La Porte Transit supra at 137
It has been noted by the Board in the case of the
Standard Oil Co 174 NLRB 177 178 (1969), that
The Unions consent was required if management s
proposed modifications were to take effect When
the Union lawfully withheld its assent a stalemate
did obtain The Trial Examiner correctly found
however, that although an employer may unilateral
ly institute changes when an impasse occurs during
the negotiations for an initial bargaining agreement
or following the expiration date of an expiring con
tract, the employer may not do so where as here,
the ocntract has not yet terminated Accordingly,
SPEEDRACK INC 1059
the Trial Examiner correctly ruled that Respondent
was not free in the manner sought to modify the un
expired agreement over the Union s objections but
was obligated to maintain in effect all preexisiting
contractual commitments for the contract term We
affirm, therefore, the Trial Examiners finding that
by unilaterally publishing and implementing terms
and conditions of employment inconsistent with the
extant collective bargaining agreement, Respondent
violated Section 8(a)(5) and (1) of the Act
It is true that the Board expressly stated its basis for
finding a violation of Section 8(a)(5) in La Porte as being
the absence of a valid impasse, it is also true that the
Board expressly affirmed and adopted Judge Robert A
Giannasi s rulings, findings and conclusions, otherwise
tacitly at least, reaffirming the judge s view on Sections
8(a)(5) and 8(d) generally as to the statutory rights con
ferred on the parties to not discuss or agree to midterm
modification of a fixed term contract There is absolutely
no warrant in the record before me or in law to find any
larger relinguishment of the Union s rights under the Act
than that it gave up its right not to agree to discuss a
midterm modification as proposed by Respondent Be
cause, as noted above, Respondent admittedly modified
wage provisions, a mandatory subject of bargaining, in
midterm of the parties fixed term contract without the
Union s consent, a right which was not shown to have
been waived I find Respondent violated Section 8(a)(5)
and (1) of the Act See La Porte Transit Co supra, and
cases cited above In reaching this decision I note that
the holdings in KCW Furniture Co, 247 NLRB 541
(1980) enfd 634 F 2d 436 (9th Cir 1980) and Robert A
Barnes Inc, 268 NLRB 343 (1983) finding violations
and cited by General Counsel involved specific reopener
clause language preventing the exercise of said clauses
from constituting a termination of the agreement and
that this fact was noted in the decisions While there was
no such language in the reopener clause involved here
its mere absence would not reasonably be viewed as con
stituting a waiver or forfeiture of important statutory
rights since the omission cannot constitute `clear and un
mistakable evidence of any intention to give up such
rights See e g, Timken Roller Bearing Co v NLRB 325
F 2d 746, 751 (6th Cir 1963) cert denied 376 U S 97
(1964), N L Industries, 220 NLRB 41 43 (1975), 102
(1963), Ohio Industries, 257 NLRB 413, 414 (1981), enfd
702 F 2d 624 (6th Cir 1983)
CONCLUSIONS OF LAW
1 The appropriate bargaining unit within the meaning
of Section 9(b) of the Act is
All production and maintenance employees em
ployed at the Employers Quincy, Illinois facility
excluding office clerical and professional employees,
office janitors, stockroom attendants, guards, and
supervisors as defined in the Act
2 At all times material, the Union has been the exclu
sive representative of all the employees in the aforesaid
unit for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act
3 By unilaterally implementing charges in the collec
tive bargaining agreement with respect to wages without
the consent of the Union, Respondent violated Section
8(a)(5) and (1) and Section 8(d) of the Act
4 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that Respond
ent cease and desist therefrom and take certain affirma
tive action designed to effectuate the policies of the Act,
including the posting of the attached notice In particu
lar, I shall recommend that Respondent be ordered to re
scind its unilateral changes retroactive to September 4,
1987, and to make whole the employees covered by the
collective bargaining agreement for the loss of wages
that they sustained as a result of Respondents unlawful
conduct reducing wages on September 4, 1987 Such
payments shall be made with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987) 2
[Recommended Orde• omitted from publication ]
2 Under New Horizons interest is computed at the short term Federal
rate for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621 Interest accrued before 1 January 1987 (the effective
date of the amendement) shall be computed as in Florida Steel Corp 231
NLRB 651 (1977)