Guerdon Industries, Inc.

National Labor Relations Board - Board Decisions

May 20, 1975

217 N.L.R.B. 1018 (N.L.R.B. 1975)

1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guerdon Industries, Inc. and Mobile Home Workers
Association . Case 17-CA-6091
May 20, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On December 11, 1974, Administrative Law Judge
John F. Corbley issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has de-
cided to affirm the rulings, findings, and conclusions of
the Administrative Law Judge and to adopt his recom-
mended Order, as modified herein.
The Administrative Law Judge found that Respond-
ent violated Section 8(a)(5) and (1) of the Act by unilat-
erally changing the terms of its collective-bargaining
agreement with the Union and that, as a consequence
of this action, certain employees who were entitled to
holiday pay for Christmas Day 1973 and New Year's
Day 1974 were denied these benefits. There are no
exceptions to the unfair labor practices found; however,
the General Counsel and the Charging Party have ex-
cepted to the Administrative Law Judge's determina-
tion of eligibility for such benefits to the extent that
such determination is predicated upon the date the
Union filed its grievance over this matter or limits the
class of eligibles to those employees who signed the
grievance. In agreement with the General Counsel and
the Charging Party, we find that the Union's grievance
and the date of its filing are totally irrelevant to the
consideration of employee entitlement to such benefits.
However, for the reasons stated infra, we do not agree
that acceptance of this conclusion should result in a
broadening of the class of employees eligible for such
benefits.
The Administrative Law Judge's finding that Re-
spondent violated Section 8(a)(5) and (1) of the Act
rests entirely upon his interpretation of the language in
the holiday pay provision of the collective-bargaining
agreement and his application of this provision to a
situation where, because of a plant shutdown, em-
ployees did not work during the period immediately
preceding or immediately after the Christmas 1973 and
New Year's 1974 holidays. Under the holiday pay
provision, employees are entitled to be paid for desig-
nated holidays, including Christmas Day and New
Year's Day, "provided, they have such holiday." Here,
as a result of the shutdown, all employees finished work
on December 19, 1973, and the first employees were
not recalled until January 7, 1974.
In interpreting the holiday pay provision, the Ad-
ministrative Law Judge concluded that the words
"their full schedule work day"referred to the regularly
scheduled hours of the plant and not the individual
employee's work schedule. Accordingly, he reasoned
that the only employees eligible for holiday pay during
this period were those who worked the last regularly
scheduled workday before the shutdown (December
19) and who also worked the first regularly scheduled
workday after the shutdown (January 7). Since no
exceptions were taken to this finding by the Administra-
tive Law Judge, we hereby adopt his interpretation of
the holiday pay provision.
Having determined the qualifications for employee
entitlement to holiday pay in the body of his Decision,
it would seem reasonable to expect that the Adminis-
trative Law Judge's proposed remedy and Order would
refer to the same class of eligibles. Yet, for some unex-
plained reason, the Administrative Law - Judge has
therein tied eligibility for such benefits to the filing of
the Union's grievance and has thereby both narrowed
in one sense and broadened in another the class of
employees eligible for these benefits. Thus, the Ad-
ministrative Law Judge's remedy and Order appear to
limit the eligibles to those employees who signed the
January 23 grievance and, who returned to work after
January 7, but before January 23. Such a determination
of eligibility is at variance with the Administrative Law
Judge's interpretation of the eligibility requirement un-
der the collective-bargaining agreement and, accord-
ingly, we shall amend the remedy and recommend Or-
der to make it consistent with our findings herein.
AMENDED REMEDY
The Administrative Law Judge's remedy is hereby
amended by deleting all reference to the Union's griev-
ance in determining eligibility for holiday benefits and
providing that the only employees entitled to holiday
pay for Christmas Day 1973 and New Year's Day 1974
are those employees who worked the full scheduled
workday on December 19, 1973, and on January 7,
1974, or who obtained prior permission from Respond-
ent to be absent on either such last or first scheduled
workday, or who had an emergency absence which was
later excused by the Respondent.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge, as modified below, -and
hereby orders that the Respondent, Guerdon Indus-
217 NLRB No. 169
GUERDON INDUSTRIES, INC.
tries, Inc., its officers, agents, successors, and assigns,
shall take the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph 2(b):
"(b) Provide to certain bargaining unit employees
identified in the `Amended Remedy' section of the
Board's Decision, their pay for the Christmas Day 1973
and New Year's Day 1974 holiday."
2. Substitute the attached notice for that of the Ad-
ministrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence, it has been decided that we, Guerdon Indus-
tries, Inc., have violated the Nationale Labor Relations
Act and we have been ordered to post this notice.
WE WILL NOT change or refuse to abide by the
terms of the collective-bargaining agreement be-
tween us and Mobile Home Workers Association,
effective from March 16, 1972, at least until
March 14, 1975, and any supplements thereto un-
less we first bargain with that Association. This
collective-bargaining agreement covers our em-
ployees in the following collective-bargaining unit:
All production and maintenance employees, in-
cluding plant clean-up employees, group leaders
and local truck drivers employed by the Guer-
don Industries, Inc., in Newton, Kansas, but
excluding the over-the-road truck drivers, jani-
tor guards, draftsmen, sales representatives, of-
fice clericals, inspectors, servicemen and super-
visors as defined in the Act.
WE WILL honor and enforce the provisions of
the above-mentioned collective-bargaining agree-
ment including that agreement's grievance and
holiday pay provisions.
WE WILL give Christmas and New Year's holi-
day pay to those employees who worked on, or
were properly excused from working on, the regu-
lar workday immediately before and immediately
after the plant shutdown at the end of the year
1973 and the beginning of 1974.
GUERDON INDUSTRIES, INC.
DECISION
STATEMENT OF THE CASE
1019
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on September 24, 1974, at Newton,
Kansas, pursuant to a charge filed by Mobile Home Workers
Association (hereinafter sometimes referred to'as the Charg-
ing Party or the Union) on June 3, 1974, and served by
registered mail upon the Respondent on the same date, and
upon a complaint and notice of hearing dated July 31, 1974,
which was thereafter also duly served on the Respondent.
The complaint, which was amended on the record at the
hearing, alleges that Respondent has violated, and is violat-
ing, Section 8(a)(5) and (1) of the Act by changing, or depart-
ing from, the grievance procedure and paid holiday provi-
sions of its collective-bargaining agreement with the
Charging Party without bargaining with the latter, although
the Union, the complaint further alleges, is the exclusive
bargaining representative of Respondent's employees. In its
answer, which was also amended on the record at the hearing,
the Respondent denies the commission of any unfair labor
practices.
For reasons which appear hereinafter, I find and conclude
that Respondent has violated, and is violating, Section 8(a)(5)
of the Act in the manner alleged by the complaint.
At the hearing all parties were represented by counsel and
were given full opportunity to examine and cross-examine
witnesses, to introduce evidence and to file beefs. The Charg-
ing Party made a brief oral argument at the conclusion of the
hearing. The other parties waived this right. A brief and
supplemental brief have subsequently been filed by Respond-
ent.
Upon the entire record' in the case including the briefs
and from my observation of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The Respondent is engaged in the manufacture of mobile
homes with a facility located in Newton, Kansas, the only
facility involved herem.
In the course and conduct of its business operations, Re-
spondent annually purchases materials valued in excess of
$50,000 directly from suppliers located outside the State of
Kansas and/or annually sells products valued in excess of
$50,000 directly to customers located outside the State of
Kansas.
The complaint alleges, the answer admits , and I find that
Respondent is now, and at all times material has been, an
employer engaged in commerce within the meaning of the
Act.
i On October 8, 1974, I issued an order on all parties to show cause in
writing why the record should not be corrected in certain particulars No
party having objected, the record was corrected accordingly.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer as amended admits, and
I find that the Union is now , and at all times material has
been, q labor organization within the meaning of Section 2(5)
of the Act.
III BACKGROUND AND SEQUENCE OF EVENTS
Following a secret ballot election which was won by the
Union in Case 17-RC-6629, the Regional Director for Re-
gion 17 of the National Labor Relations Board certified the
Union as the exclusive collective-bargaining representative of
the employees in the following unit:
All production and maintenance employees, including
plant clean-up employees, group leaders and local truck
drivers employed by Guerdon Industries in Newton,
Kansas, but excluding the over-the-road drivers, janitor
guards, draftsmen, sales representatives , office clericals,
inspectors, servicemen and supervisors as defined in the
Act.
The Respondent and the Union are parties to a collective-
bargaining agreement covering the employees in the aforesaid
unit, effective from March 16, 1972, to midnite March 14,
1975, which continues in full force and effect from year to
year thereafter unless written notice of modification or termi-
nation is timely given by either party. Respondent and the
Union have subsequently amended this agreement with a
supplement dated October 11, 1972, which establishes a
workweek consisting of four 10-hour days.
Three sections of this collective-bargaining agreement are
particularly relevant to the allegations of the complaint. One
concerns holidays and another the processing of grievances.
The third, called the "Entire Contract" clause, provides that
the entire contract of the parties is set forth in the agreement
and that the agreement takes precedence over prior practices
and individual employee contracts previously in existence
before the contract was executed.
The provision concerning holidays does not, in haec verba,
provide that holiday pay will be given employees if the holi-
day occurs during a plant shutdown for other than vacation
purposes.
Although the contract does not, in fact, state that it deals
with the matter of holiday pay in such specific circumstances,
there had been a practice prior to the execution of the con-
tract whereby holiday pay was provided employees for holi-
days occurring during a nonvacation plant shutdown. Thus,
the employees were paid for the New Year's holiday on Janu-
ary 1, 1972, even though the plant was shut down during that
week which ended on January 6, 1972.2 The shutdown dur-
ing this period was a nonvacation plant closing.' One em-
ployee, Stapleton, who is also the treasurer of the Union and
2 There was also evidence of a 2-week shutdown between December 24,
1970 and January 10, 1971, in which holiday pay was provided for both
Christmas and New Years Day. However, the Christmas holiday occurred
at the end of a workweek and the New Year's holiday occurred at the end
of a vacation week.
3 There was also testimony that a hoilday was paid during a plant shut
down around the Christmas-New Year's period in 1967. However, it was
not shown whether this was a shut down for vacation or nonvacation pur-
poses
who testified at the hearing, was paid for working on the
Good Friday holiday in March 1970 even though he was off
and unable to work during the period January 14, 1970, to
April 30, 1974.4 Insofar as this record shows there was no
instance where the Respondent did not pay for holidays fall-
ing during any nonvacation plant shutdown occurring before
the execution of the 1972 collective-bargaining agreement.
The Respondent's operations were again shut down at this
location for economic reasons (but for nonvacation purposes)
from December 20, 1973, to January 7, 1974, and all em-
ployees were laid off during this period.' About 60 to 70 of
them were recalled on the latter date. None was paid for the
Christmas holiday of 1973 nor for the New Year's holiday,
January 1, 1974, even though the contract otherwise provides
that both are paid holidays for unit employees.
The refusal of Respondent to pay its employees at this
location for these two holidays and Respondent's rejection of
a grievance about this matter ultimately gave rise to the
present proceeding.
During the period between Christmas 1973 and New
Year's Day 1974 the plant began receiving telephone calls
from laid off employees inquiring whether they would be
given pay for the two holidays. Production superintendent
Kuhn called this to the attention of Krueger, the plant gen-
eral manager, who, in turn, telephoned Crawford, Respon-
dent's director of industrial relations in Louisville, Kentucky,
to inquire whether the employees should be paid for the two
instant holidays. Crawford told Krueger that no pay would
be forthcoming to the employees for these 2 days because the
collective-bargaining agreement did not require it.
Also after Christmas 1973, the Union's treasurer, Staple-
ton, received inquiries from employees about the matter of
holiday pay but he informed them they would not become
entitled to this pay under the contract until they were recalled
to work.
As noted, some 60 to 70 employees of the work force of 160
to 180 employees were recalled on January 7, 1974. During
the ensuing week Stapleton met informally with both Krue-
ger and Kuhn on the plant floor and was told that Respond-
ent did not intend to pay employees for the two holidays.
Stapleton did not immediately file a grievance over this
matter, on advice of counsel, because the employees had not
yet received' their first paycheck in 1974 and such check
would show unmistakeably whether the employees had been
paid for the two instant holidays. The check was received by
the recalled employees on January 17, 1974, and did not
include that hoped for holiday pay.
Stapleton then filed a grievance at the second step of the
3-step grievance procedure with Kuhn on January 23, 1974.
This grievance, dated January 21, 1974, was signed by Staple-
ton himself, Joe Garcia, the Union president, and three other
union officials. The grievance complained that Respondent
had not paid "eligible employees" for the Christmas 1973 and
New Year's 1974 holidays. This grievance was rejected by
Kuhn and returned to Stapleton on January 24, 1974, with
the following notation by Kuhn.
4 Except for February 11, 1970, when he worked for 3-1/2 hours
5 This was the first plant closure during the life of the 1972 collective-
bargaining agreement which was not occasioned by a vacation.
GUERDON INDUSTRIES, INC. 1021
This grievance refused as it is-in violation of procedure
established on grievances within the agreement by and
between Guerdon Inc. Newton, Kansas plant and Mo-
bile Home Workers Association.
Kuhn's notation was dictated by Krueger at the direction of
Respondent's industrial relations manager, Crawford.
January 24, 1974, was a Thursday and the last day of
Respondent's 4-day workweek. The employees returned to
work on the following Monday, January 28, 1974, but were
again laid off after working that day and about 3-1/2 hours
on January 29, 1974. Between Tuesday, January 29, 1974,
and Monday, February 4, when the employees again returned
to work, Stapleton presented the grievance to Krueger at the
third and final step of the grievance procedure.
When presenting the grievance to Krueger, Stapleton told
Krueger that the Respondent had always paid for holidays in
the past and that-he, Stapleton, thought that Respondent
could not legally avoid doing so on this occasion. Krueger
denied any such obligation and added that he, Krueger, had
his orders from "the head office in Louisville, Kentucky."
Krueger also told Stapleton that the grievance was untimely.
Krueger did not allow the grievance and refused to sign
it.6
More employees of those laid off on December 20, 1973,
were recalled on February 11 and February 28, 1974. All of
the remainder were notified to return to work on April 1,
1974. No separate grievances were filed by the Union over the
failure of these later recalled employees to be given holiday
pay for Christmas 1973 and New Year's Day, 1974.
On May 8, 1974, the Union filed a grievance over Krue-
ger's announced refusal to pay some 45 employees for vaca-
tions which would be taken in July 1974. The paychecks for
these employees-which would have shown whether or not
they would receive the instant vacation pay-had not yet
been furnished them. Stapleton explained the apparent
prematurity of this grievance on the basis that Stapleton
hoped to have the matter settled by arbitration, if necessary,
before vacations actually began in July 1974.
On August 8, 1974, Union Official Joseph Russell submit-
ted a grievance on behalf of himself and certain other em-
ployees over Respondent's claimed failure to pay a certain
production bonus. The checks on which this bonus would
have appeared-had it been paid-had not yet been issued by
Respondent.
At the hearing on September 24, 1974, the General Coun-
sel offered to defer to arbitration the matters embraced by the
complaint, but the Respondent did not accept this order.
Respondent instead took the position, about which more will
be said, that the Regional Director had failed to follow cer-
6 These findings are made on the basis of the credible testimony of Staple-
ton in this regard. I do not credit Krueger's denial that Stapleton presented
Krueger the grievance during the instant period. For Krueger's testimony is
contrary to the logical sequence of events, to wit-the presentation of the
grievance at the second step to Kuhn (which is undisputed) the presentation
at the third and final step to Krueger, as I have found, and subsequent
notification by the Union of its intent to seek arbitration, which will appear
Stapleton's version is also bolstered by his recollection that Krueger stated
to Stapleton at the third step meeting that he, Krueger, had his orders
concerning the grievance from Respondent's office in Louisville, Kentucky
While Krueger denied meeting with Stapleton at the third step, Krueger
confirmed that his position in the matter was based on instructions he had
received from Louisville
tain administrative guidelines prior to the issuance of the
complaint. These guidelines, says Respondent, required that
the Regional Director should have provided Respondent with
written notice that the complaint would issue if Respondent
did not advise him of its intention to seek arbitration of the
matter.
Concluding Findings
Before proceeding to the merits of complaint, certain other
questions must first be disposed of-the issue of the appropri-
ate unit, the Union's representative status, if any, in that unit
and the positions of Kuhn and Krueger in Respondent's
hierarchy.
I find as alleged in the complaint, as amended, that the
following unit is appropriate for collective bargaining within
the meaning of Section 9(b) of the Act.
All production and maintenance employees, including
plant cleanup employees, group leaders and local truck
drivers employed by the Guerdon Industries in Newton,
Kansas, but excluding the over-the-road truck drivers,
janitor guards, draftsmen, sales representatives, office
clericals, inspectors, servicemen and supervisors as de-
fined in the Act.
I reach this conclusion on the basis that the Union was
certified by the Regional Director as the exclusive collective-
bargaining representative of the employees in the same unit
after the Union won the secret ballot Board-conducted elec-
tion in Case 17-RC-6629. Respondent so admitted at the
hearing in its amended answer and further admitted that the
instant unit had been found to be appropriate within the
meaning of Section 9(b) of the Act. Respondent further ad-
mitted at the hearing, and I find, that it has a collective-
bargaining agreement with the Union covering this unit. This
contract, which was received into evidence at the hearing,
likewise so reflects and further indicates that it became effec-
tive on March 16, 1972, for a term of 3 years. The instant unit
has, therefore, previously been found appropriate and is also
supported by a bargaining history of more than 2 years at the
time of the hearing.
I further conclude that Respondent is, and was at all times
material herein, the exclusive bargaining representative of the
employees in this unit within the meaning of Section 9(a) of
the Act, as also alleged in the complaint. I reach this conclu-
sion on the basis of the Union's outstanding certification
issued by the Regional Director in Case 17-RC-6629 and its
continuing status as the recognized exclusive bargaining rep-
resentative of that unit pursuant to the terms of the aforemen-
tioned collective-bargaining agreement which does not expire
(at the earliest) until March 14, 1975.
I find that Delbert Kuhn and John Krueger, who are re-
spectively the production superintendent and the general
manager of Respondent's Newton, Kansas, plant, are super-
visors within the meaning of Section 2(11) of the Act. I reach
this conclusion on the basis that Kuhn, at the second step of
Respondent's contractual grievance procedure with the
Union, and Krueger, at the third step of the same grievance
procedure, have the authority in the interest of Respondent
to adjust grievances of employees in the above-described col-
lective-bargaining unit. Inasmuch as Krueger is a supervisor,
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as just found, and is also the general manager of this plant and
was the admitted representative of Respondent in the matter
of disposing of the grievance which ultimately gave rise to this
proceeding, I further find that he is, and was, at all times
material herein, an agent of Respondent, acting in its behalf
within the meaning of Section 2(13) of the Act.
Respondent contends in its brief that the matter of the
complaint should be deferred to arbitration under the Board's
Collyer policy' (1) the Regional Director in his handling of
the charge and complaint failed to follow certain guidelines
issued by the General Counsel and (2) because, in any event,
the issues of the case are susceptible to resolution under the
grievance and arbitration machinery agreed to by Respond-
ent and the Union in their collective-bargaining agreement.
Respondent's request for deferral on the basis of the
claimed failure of the Regional Director to follow the General
Counsel's guidelines represents a change in its position stated
at the hearing which was that the complaint should be dis-
missed for this reason. However, I find no basis either to
dismiss the complaint based on this claim or to defer the
matter to arbitration at this time under the Board's Collyer
policy.
The guidelines, which the Regional Director purportedly
did not follow, were issued by the General Counsel on May
10, 1973, and appear in 4CCH Labor Law Reports ¶ 9031,
Respondent contends that the Regional Director did not is-
sue it a letter as contemplated by part I(A),(5),(B) of these
guidelines at p. 15, 131, which letter should have advised it
that the investigation of the case had been completed and that
the complaint would issue unless Respondent notified the
Regional Director in writing, within 7 days, of Respondent's
willingness to arbitrate. Inasmuch as counsel for the General
Counsel was unable at the hearing to show that such a letter
had been sent, I conclude that it was not. However, I find no
sanction in the instant guidelines requiring that the complaint
be dismissed for this reason or any Board policy reflected in
its decisions which would require such a result. Moreover, a
condition set forth in these guidelines for deferral is that a
respondent must agree that it will not rely-in any such
arbitration procedure-on contract time limitations for the
filing of grievances.' That is, it will not take the position
before the arbitrator that the matter should be dismissed
because the time limitations for the processing of the case
through the contractual grievance and arbitration machinery
have expired. Inasmuch as Respondent has consistently taken
the position that the grievance was not filed within the time
limitations of the contract, the issuance of such a letter offer-
ing the opportunity for deferral would have been a futile act
on the part of the Regional Director.
This same rule, requiring a disclaimer of the contract's
time limitation as a precondition to deferral, also obtains
under Board law. That is, the Board will not defer a matter
to arbitration where it is the intention of one of the parties
to seek dismissal of the case on the grounds that the time
limitations of the contractual grievance arbitration machin-
ery have not been complied with.' If a respondent were to
7 Collyer Insulated Wire, A Gulfand Western System Co, 192 NLRB 837
(1971)
a See fns 67 and 75 of the guidelines
9 See The Detroit Edison Company, 206 NLRB 898 (1973).
prevail in such a contention before an arbitrator the matter
would be dismissed without any consideration of its merits.
In any event, the General Counsel at the hearing herein
offered the Respondent the opportunity to arbitrate the case
but Respondent did not accept this offer.
Consequently, I perceive no basis now to defer the matter
to arbitration, and I shall instead deal with the complaint on
its merits. -
As to the allegations of the complaint that Respondent
unilaterally changed the time limitations governing the filing
of grievances under the contract, Respondent advances a
number of related contentions. It avers that the Union did not
file its grievance until January 23, 1974, or seven working
days after Union Treasurer Stapleton was notified by Respon-
dent's plant superintendent (during the work week of January
7, 1974) that no pay would be given the employees for the
Christmas 1973 and New Year's 1974 holidays. Respondent
further contends that any grievance filed'after January 16,
1974, was properly considered as untimely and is barred by
the agreement. 10
I find no warrant in the grievance procedure language to
conclude that the grievance was untimely filed on January 23,
1974. While it is true that step # 1 of the grievance machinery
prescribes that an employee must file a grievance within three
working days of the time the employee knows or, with due
diligence, shoud have known of the existence of the matter to
be grieved, the grievance procedure further specifically au-
thorizes the Union to file a grievance at step #3 with the
general manager or his designee." In addition the procedure
provides that the parties may, by mutual agreement, skip any
step of the grievance procedure, which, I conclude, would
also permit the filing of a grievance by the Union at step
#2 as the initial step.
In the present case the Union first filed the holiday pay
grievance at step # 2 with the production manager, Kuhn, on
January 23, 1974. In rejecting the grievance, Kuhn stated
merely that the grievance was rejected because it violated the
grievance procedure. Since Respondent has never contended
that the filing of the grievance at step #2 was not by mutual
agreement and since its only position in respect to this matter
has at all times been that the grievance was untimely, I con-
clude that this last was the reason why Kuhn (at Plant
Manager Krueger's direction) stated that the grievance vi-
olated the grievance procedure.
But insofar as a union grievance is concerned, step #2 of
the grievance machinery has no time limitation which relates
to the time the matter aggrieved upon arose. The only time
limitation mentioned in step #2 requires that an employee
must take his grievance to the production manager at that
step within 3 working days after the employee received his
answer at step #I or within 3 working days after the time
for such an answer has expired . Because no grievance was
10 Respondent also contends that the Union's claim, that it was entitled
to wait to see whether the holidays were covered by the January 17, 1974,
paychecks, must be rejected as being inconsistent with past practice and the
Union's conduct in respect to later pay grievances which were filed before
the applicable paychecks were due. I reject this contention because the past
practice referred to by Respondent involved, unlike here, a vacation shut-
down over the Christmas-New Year's period of 1970-71. The Union's
conduct subsequent to the events in question here has no bearing on such
events
11 See Joint Exh 1, p. 13 "Grievance Miscellaneous."
GUERDON INDUSTRIES, INC.
filed at step # 1 of the procedure in the present case and since
the grievance was not filed by an employee, the foregoing
limitation does not apply herein. The only limitation on the
tinting of the Union's grievance would then be one of laches,
that is whether or not the Union slept on its rights for an
unreasonable length of time before prosecuting the matter. In
all the circumstances of this case I am not persuaded that the
Union's inaction for some 2 weeks or 7-8 working
days-after Krueger and Kuhn informally informed Staple-
ton that the bonus would not be paid--constitutes laches.
11 so hold, even if the only time limitation, with which we
are here concerned, began to run when Krueger and Kuhn
informed Stapleton of Respondent's intentions.
[ do not, however, conclude that this is the only time
limitation with which we are concerned. For separate and
apart from the grievability of the stated intentions of Re-
spondent in this matter, the actual failure to provide the
holiday pay when due to the employees is yet more grievable.
That holiday pay was due no later than the first paychecks
handed out after the layoff. These checks were given to the
employees on January 17, 1974. January 23, 1974-the day
Stapleton filed the grievance with Kuhn-was the third
working day after January 17, 1974.12 A delay to the third
working day after the subject matter of the grievance arose
cannot be deemed unreasonable. For a grievance at that junc-
ture could have been timely filed by an employee at step
# 1 of the grievance procedure.
The third step of the grievance likewise has no time limita-
tion upon a union grievance. Here again the question is
whether the Union's delay (from January 24, 1974, to some-
time during the period January 29, 1974, and February 4,
1974) in advancing its grievance from the second step to the
third step was unreasonable and constitutes laches. Since
there was another layoff on January 29, 1974, the third work-
ing day after January 24, 1974, was February 4, 1974. I
conclude that this delay until the third working day was not
an unreasonable time to wait before carrying the grievance to
the third step.
[ find, therefore, that Respondent by refusing to entertain
the grievance on January 23, 1974, at the second step and its
later refusal to entertain the grievance at the third step be-
tween January 29, 1974, and February 4, 1974, in each in-
stance on the ground that the grievance was untimely filed,
has unilaterally modified its contractual grievance procedure.
By such acts Respondent refused to fulfill its obligation to
bargain with the Union as the exclusive representative of its
employees and violated, and is violating, Section 8(a)(5) and
(1) of the Act.
More precisely, the vice in Respondent's actions here is
that it has unilaterally imposed a time hmitation on the filing
of grievances by the Union at step # 2 and 3 of the procedure,
even though the contract contains no such limitations, and
these unilaterally imposed limitations are unreasonably
brief."
'Turning now to the principal question-the failure of Re-
spondent to provide holiday pay for Christmas 1973 and New
12 Under Respondent's 4 day Monday-Thursday workweek system.
13 Respondent further contends that the Union's notification of intention
to seek arbitration was also untimely. I will not treat with this contention,
because the complaint does not allege that the rejection of the latter notice
by Respondent also violated the Act.
1023
Year's 1974-Respondent contends essentially that theycon-
tract does not provide for holiday pay where a holiday occurs
during a nonvacation plant shutdown. Respondent also con-
tends that, regardless of any past practice for such payment,
a provision of the contract, denominated as the "Entire Con-
tract" clause, extinguishes any past practice not specifically
preserved in the contract and that this provision further con-
tains an explicit waiver14 of the right to bargain about any
matter not contained in the contract.15 Respondent con-
tends that, even if the past practice in regard to holiday pay
was not extinguished by the "Entire Contract" clause, the
General Counsel has not established that such practice oc-
curred with such regularity as to become an embedded ele-
ment of Respondent's past benefit structure.
I do not deem it necessary to reach or pass upon all of these
contentions, because, in limine, I disagree with the argument
that the contract does not provide for holiday pay during
nonvacation plant shutdowns. The contract rather states un-
der its "Holiday" clause that:
Regular full time employees shall receive pay at their
straight time rate in effect at- the time of the holiday for
8 hours per day for each of the following holidays:
New Year's Day Good Friday
Memorial Day Independence Day
Labor Day Thanksgiving Day
Friday after Christmas Day
Thanksgiving
provided they have worked their full scheduled work day
immediately before and immediately after such holiday
(unless prior permission to be absent is obtained from the
Company, or the employee has an emergency absence
which is later excused by the Company). [Emphasis
supplied.]
Read literally this provision says that holiday pay will be
given to each employee whenever a holiday falls between
scheduled workdays and the -employee works on the sched-
uled workday preceding the holiday as well as the scheduled
workday succeeding the holiday. While the contract makes
further specific provisions for pay for holidays occurring on
weekends or during vacations it does not limit the foregoing
quoted language to weekend or vacation situations.
Inasmuch as those employees who were laid off on Decem-
ber 20, 1973, and returned to work upon recall on January
7, 1974, did in fact work their scheduled workdays before and
after the Christmas 1973 and New Year's 1974 holidays, it
follows that they are entitled to pay for those two holidays.
I so find. 16
14 With one exception not relevant hereto
15 Some such eliminated prior practices included free coffee and milk at
morning breaks, a summer picnic, an employee Christmas party and
Thanksgiving turkeys for employees Only one grievance has been filed in
respect to the discontinuance of any of these items. After the Respondent's
rejection of this grievance based on the "Entire Contract" clause, the matter
was not taken to arbitration.
16 Moreover, a literal interpretation of this provision, as set forth above,
is supported by the past practice of Respondent to provide holiday pay
where holidays occurred, as here, during a nonvacation layoff. While it is
true that the incidence of such holidays during nonvacation layoffs was not
a frequent occurrence before the contract was executed, it is nonetheless
(Continued)
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I, accordingly, conclude that Respondent's failure to pay
employees for the two holidays was contrary to the holiday
pay requirements of its collective- bargaining agreement with
the Union. I further conclude that by failing to make these
payments as required by the contract, Respondent has unilat-
erally altered its wage and benefit structure and that by such
act it has unlawfully avoided its bargaining obligation with
the Union in violation of Section 8(a)(5) and (1) of the Act.
In reaching the foregoing conclusions that Respondent has
violated the Act, I have not been unmindful, as Respondent
contends, that this record is devoid of any evidence that
Respondent maintains an animus against the Union. How-
ever, where, as here, an employer has acted in fundamental
derogation of its bargaining obligation," it is not necessary
for the General Counsel further to demonstrate that the Re-
spondent's unlawful act was accompanied by an antipathy
towards the Union.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with its operations described in sec-
tion I, above, have a close, intimate, and substantial relation-
ship 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.
THE REMEDY
Having found that Respondent has violated Section 8(a)(5)
and (1) of the Act, I shall recommend that the Board issue
an order requiring Respondent to cease and desist from the
unfair labor practices found and to take certain affirmative
action deemed necessary to effectuate the policies of the Act:
More particularly, I shall recommend that Respondent be
directed to honor its contract with the Union for the remain-
der of that contract's term and, further, that Respondent give
certain employees holiday pay for Christmas 1973 and New
Year's 1974. The employees covered by this backpay order
will be all those employees embraced by the grievance (the
rejection of which gave rise, in part, to the complaint herein)
that is, all those employees who worked the last scheduled
workday before the December 20, 1973, plant shutdown and
who worked their first scheduled workday on or after Janu-
ary 7, 1974, up until January 23, 1974 (the day the grievance
was filed), unless prior permission to be absent on either such
last or first scheduled workday was obtained from Respond-
ent or any such employee had an emergency absence which
was later excused by the Respondent."
Finally, I shall recommend that Respondent be directed to
post an appropriate notice.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
the Union is a labor organization both within the meaning of
the Act.
2. The following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All production and maintenance employees, including
plant clean-up employees, group leaders and local truck
drivers employed by the Guerdon Industries in Newton,
Kansas, but excluding the over-the-road truck drivers,
janitor guards, draftsmen, sales representatives, office
clericals, inspectors, servicemen and supervisors as de-
fined in the Act.
3. By unilaterally changing, or departing from, the require-
ments in its collective -bargaining agreement for the entertain-
ment of grievances filed by the Union and for the payment
of wages to its employees for holidays occurring during a
nonvacation plant shutdown between scheduled work days,
Respondent has violated , and is violating , 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.
also true, insofar as this record shows, that the holiday pay was given
whenever the situation arose (i.e., there is no evidence of any contrary
practice in such circumstances)
"See N.L.R.B. v. Benne Katz etc. d/b/a Williamsburg Steel Products Co.,
369 U.S 736 (1962); Fibreboard Paper Products Corp. v. N L. R.B., 379 U.S
203 (1964).
ORDER19
Respondent Guerdon Industries, Inc., Newton, Kansas, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from-
(a) Refusing to bargain collectively concerning wages,
hours, and other terms and conditions of employment by
unilaterally changing, or departing from, the grievance and
holiday pay provisions of its collective- bargaining agreement
with Mobile Home Workers Association which is the exclu-
sive bargaining representative of Respondent's employees in
the following appropriate collective bargaining unit, covered
by said agreement:
All production and maintenance employees including
plant clean-up employees, group leaders and local truck
drivers employed by the Guerdon Industries in Newton,
Kansas, but excluding the over-the-road truck drivers,
janitor guards, draftsmen, sales representatives, office
clericals, inspectors, servicemen and supervisors as de-
fined in the Act.
to This order will not therefore benefit any employee recalled after the
grievance was filed on January 23, 1974, because no such employee would
be "eligible," i.e., would not yet have worked his regularly scheduled work-
day after the two holidays. As I have found, no grievance was filed in respect
to the later recalled employees and only the January 23, 1974, grievance is
involved in the complaint.
19 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objection thereto shall be
deemed waived for all purposes.
GUERDON INDUSTRIES, INC.
(b) In any like or related manner interfering with , restrain-
ing, or coercing employees in the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Honor and enforce the terms of its March 1-6, 1972,
collective-bargaining agreement with Mobile Home Workers
Association, and any supplements thereto, during the term of
said agreement, including particularly that agreement's griev-
ance and holiday pay provisions.
(b) Provide to certain bargaining unit employees identified
in the "Remedy" section of the Administrative Law Judge's
Decision herein their pay for the Christmas 1973 and New
Year's 1974 holidays.
(c) Preserve and, upon request , make available for exami-
nation and copying, all payroll records , social security pay-
ment records , timecards , personnel records and reports, and
all other records necessary or useful in checking compliance
with this recommended Order.
1025
(d) Post at its Newton , Kansas, plant copies of the attached
notice marked "Appendix . 1121 Copies of this notice on forms
provided by the Regional Director for Region 17, shall, after
being duly signed by Respondent, be posted by it immediately
upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter , in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that
such notices are not altered , defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 17, in writing,
within 20 days from date of this Order, what steps the Re-
spondent has taken to comply herewith.
20 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading, "Posted
by Order of the National Labor Relations Board " shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Relations Board "