C & C Plywood Corp.

National Labor Relations Board - Board Decisions

Aug 24, 1964

148 N.L.R.B. 414 (N.L.R.B. 1964)

414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 you that:
WE WILL NOT threaten employees with loss of employment in a unionized
shop, under adverse business conditions.
WE WILL NOT in any like or related manner threaten employees with less
favorable conditions of employment , or the loss thereof, under a unionized shop.
SUPERIOR PRESS, 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 with the Board 's Regional Office , 849 South Broad-
way, Los Angeles , California , Telephone No. 688-5204, if they have any questions
concerning this notice or compliance with its provisions.
C & C Plywood Corporation and Plywood , Lumber and Saw-
mill Workers Local Union No. 2405 , AFL-CIO. Case No.
19-CA-686. August 24, 1964
DECISION AND ORDER
On January 3, 1964, Trial Examiner Maurice M. Miller issued his
Decision in the above-entitled proceeding, finding that Respondent had
not engaged in unfair labor practices and recommending that the
complaint be dismissed in its entirety, as set forth in the attached Trial
Examiner 's Decision. Thereafter, the General Counsel and the Charg-
ing Party each filed exceptions to the Decision and a supporting brief.
Respondent filed a brief in support of the Decision.
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 Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in the case, and finds merit in the exceptions. Accordingly, the Board
adopts only so much of the findings, conclusions, and recommendations
of the Trial Examiner as are consistent with this Decision.
On May 1, 1963, Respondent and the Union entered into a collective-
bargaining agreement effective to October 31, 1963. The agreement
contained a wage clause in article XVII which stated in part:
The Employer reserves the right to pay a premium rate over and
above the contractual classified wage rate to reward any particular
employee for some special fitness, skill, aptitude, or the like.
148 NLRB No. 46.
C & C PLYWOOD CORPORATION 415
On May 20, 1963, Respondent posted a notice announcing that effective
immediately and "for the next couple of months," members of the glue
spreader crews would receive premium pay provided that they met
certain production standards.' _
Respondent formulated and placed in effect the premimum pay
schedule without prior notice to, or bargaining with, the Union. About
a week later the Union learned of the plan from one of its members.
By letter dated May 27, the Union asked Respondent for a conference
to discuss the premium pay notice. In the letter, the Union said :
We do not consider this to be premium pay within the meaning
of Article XVII, but rather a change in wages made dependent
upon a production basis rather than hourly rates agreed upon
with the Union.
The parties met on June 7 and 15, 1963. The Union requested rescis-
sion of the plan. Respondent refused although it offered to discuss
terms of the plan. The Union then filed the present unfair labor prac-
tice charges alleging that Respondent had unlawfully refused to bar-
gain by unilaterally establishing the premium pay plan.
The Trial Examiner found that the dispute between the Union and
Respondent involved only a disagreement as to the meaning of terms
of a collective-bargaining contract and that the promulgation of the
premium pay plan according to Respondent's understanding of those
terms was not a violation of Section 8(a) (5). We disagree.
In filing its unfair labor practice charge, the Union was complain-
ing not of a violation of its contract with Respondent, but of the in-
vasion of its statutory right as collective-bargaining representative
of employees in the unit to bargain about any change in the terms
and conditions of employment for such employees 2 Prima facie,
Respondent's change in the terms for compensating glue spreader
crews without notification to, or bargaining with, the Union violated
Section 8 (a) (5).1 The Board has recognized, however, that the
statutory right a union to bargain about changes in terms and condi-
tions of employment may be waived by the union. Respondent's
affirmative defense to the prima facie case is that there was such a
waiver in this case. It contends: (a) during the contract negotia-
The contract rates of pay for members of the glue spreader crew were : core feeder,
$2 24; core layer , $ 2 29 ; sheet turner, $2.15 The premium pay schedule provided for an
hourly rate of $2 50 to each member of the crew.
2 Timken Roller Bearing Co . v. N.L.R .B., 325 F. 2d 746 ( CA. 6) ; Smith Cabinet Manu-
faotuiing Company, Inc, 147 NLRB 1506 This is not a case like United Telephone
Company of the West, 112 NLRB 779, or Morton Salt Company, 119 NLRB 1402 , relied
upon by the Trial Examiner , where an alleged breach of contract was the very basis for
the 8 ( a) (5) allegation in the first case, and for the 8 ( a) (1) and ( 2) allegations in the
second.
8 N.L.R .B. v. Benne Katz, d/b/a Williamsburg Steel Products Co., 369 U . S. 736.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions, the Union waived its right to be consulted about group incen-
tive pay; and (b) the wage clause in the contract gave the Respond-
ent the right unilaterally to put into effect a wage incentive plan.
In order to determine the validity of this waiver defense, the Board
must necessarily evaluate the testimony as to what occurred during
contract negotiations, and must interpret the wage clause of the con-
tract. We find no obstacle to either course. The Board is not un-
familiar with the problems of contract construction. For example,
it is frequently required to construe contracts in representation cases
when a contract is claimed to be a bar to a representation petition, and
in unfair labor practice proceedings involving the meaning and valid-
ity of union-security clauses, or clauses alleged to be violative of Sec-
tion 8 (e). Moreover, this is not a case where the identical question of
contract construction is pending before a civil court or an arbitrator
and in the interests of comity, the Board defers to the other tribunal.'
Accordingly, we reject the argument that, because determination of
the validity of the defense involves construction of the collective-
bargaining contract, the complaint alleging an 8(a) (5) violation
should be dismissed.5
(a) Waiver of a statutory right will not lightly be inferred. The
relinquishment to be effective 'must be "clear and unmistakable." 6
Or as the Board said in the Proctor Manufacturing case: °
The Board's rule, applicable to negotiations during the con-
tract term with respect to a subject which has been discussed in
precontract negotiations but which has not been specifically cov-
ered in the resulting contract, is that the employer violates•Sec-
tion 8(a) (5) if, during the contract term, he refuses to bargain
or takes unilateral action with respect to the particular subject,
unless it can be said from an evaluation of the prior negotiations
that the matter was "fully discussed" or "consciously explored"
and that the Union "consciously yielded" or clearly and unmis-
takably waived its interest in the matter.
In the present case, the Trial Examiner found that during contract
negotiations, Respondent's negotiator mentioned that Respondent was
"giving thought" to the possibility of promulgating a premium pay
or incentive wage program for glue spreader crews. This alone,
although in the context of a resulting contract which does not "specifi-
cally cover" a group incentive pay plan, is not a waiver by the Union
4 See National Dairy Products Corporation , Detroit Creamery Division , 126 NLRB 434;
United Telephone Company of the West , supra. The contract between the Union and Re-
spondent contains no provision for arbitration.
i Smith Cabinet Manufacturing Company, Inc., supra.
6 Timken Roller Bearing Co . v. N L R B., supra.
7 Proctor Manufacturing Corporation , 131 NLRB 1166, 1169
C & C PLYWOOD CORPORATION 417
under the above standard. In addition, we believe that any con-
clusion that the Union "consciously yielded" on the group suggestion
made by the Respondent is negated by the inclusion in the contract
of a specific provision for individual premium pay. Moreover, the
Trial Examiner found that this comment was made at a bargaining
session when the parties had reached an impasse over the hourly rates
for the three job classifications which constituted the glue spreader
crews.
Accordingly, we find that there is not sufficient evidence under the
above standard to establish that the Union waived its right to bargain
about a wage incentive system.
(b) The wage clause gives Respondent the right to pay a premium
rate to "reward any particular employee for some special fitness, skill,
aptitude, or the like." It seems to us that this clause grants the Em-
ployer the right to make individual merit increases for special com-
petence or skill. We do not construe it, as Respondent apparently does,
to authorize Respondent to select a group of employees and unilater-
ally change the method of compensating them from a straight hourly
basis, with a fixed rate for each job category, to what is In effect a
production basis, by raising the hourly contract wage rate contingent
upon increased productivity. To accept Respondent's construction is
tantamount to saying that the Union inferentially surrendered to Re-
spondent the right unilaterally to establish production standards and
wage rates based thereon as a method for compensating employees.
Such an intent is so contrary to labor relations experience that it
should not be inferred unless the language of the contract or the
history of negotiations clearly demonstrates this to be a fact. We see
nothing in these negotiations or this contract to establish that the
Union intended to waive its statutory right to bargain over the matter
in dispute. The Union's prompt protest against Respondent's posting
of the new wage schedule also belies any such intent.
Accordingly, we find that by unilaterally changing the wage rates
-for members of the glue spreader crews Respondent violated Section
8 (a) (5) and (1) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The conduct of the Respondent set forth above, occurring in connec-
tion with the operations of Respondent as set forth in section I of the
Trial Examiner's Decision, has a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States and tends
to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
760-5T7-65-vol. 148-28
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in certain unfair labor
practices, we shall order that it cease and desist therefrom, and from
like or related conduct, and that it take certain affirmative action to_
effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. C & C Plywood Corporation is an employer within the meaning of
Section 2(2) of the Act, engaged in, commerce and business affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Plywood, Lumber and Sawmill Workers Local Union No. 2405,
AFL-CIO, is a labor organization within the meaning of Section 2 (5)
of the Act.
3. By instituting a premium pay plan for glue spreader crew work-
ers without notice to, or bargaining with, the Union, Respondent
violated Section 8 (a) (5) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that Re-
spondent, C & C Plywood Corporation, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Failing or refusing to bargain collectively with Plywood, Lum-
ber and Sawmill Workers Local Union No. 2405, AFL-CIO, as the
exclusive representative of its employees in the appropriate bargain-
ing unit,' by unilaterally instituting a premium pay plan for glue
spreader crews or otherwise changing any term or condition of employ-
ment of employees within the aforesaid unit without prior notice to,
and bargaining with, the Union.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which it is found will ef-
fectuate the policies of the Act :
(a) Upon request, bargain with Plywood, Lumber and Sawmill
Workers Local Union No. 2405, AFL-CIO, with respect to the in-
8 The appropriate unit is composed of all production and maintenance employees of the
Respondent at its veneer and plywood plants near Kalispell, Montana, excluding office
clerical employees , guards, professional employees , and supervisors as defined in the Act.
C & C PLYWOOD CORPORATION 41[9
saltation of a premium pay plan for glue spreader clews and, if ie-