Henry I. Siegel Co., Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1964

147 N.L.R.B. 594 (N.L.R.B. 1964)

594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above -named employee , if presently serving in the-
Armed Forces of the United States, of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train -
ing and Service Act of 1948 , as amended , after discharge from the , Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,.
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , Midland'
Building, 176 West Adams Street, Chicago , Illinois , Telephone No. Central 6-9660,.
if they have any question concerning this notice or compliance with its provisions.
Henry I. Siegel Co., Inc. and Amalgamated Clothing Workers-
of America, AFL-CIO. Case No. 06-CA-1179. June 22, 1964
SUPPLEMENTAL DECISION AND ORDER
On February 18, 1963, the Board issued its Decision and Order in,
this proceeding, 140 NLRB 1292, holding that the Respondent was not
required to include in its written contract with the Charging Union,,
herein called the Amalgamated, a provision setting out an understand-
ing that the enumerated piece rates for its pressers and stitchers and
incorporated a 121/2 percent incentive factor, and reciting the parties"
agreement that all piece rates for new or changed operations would
also incorporate the same factor. The Board found that the bar-
gaining contract between the Respondent and the Amalgamated, al-
"though making no-Specific reference to the 121/2 percent factor, did
embody. in. article V and schedule A thereof, the understanding of the
parties that the factor had been and would continue to be used in
setting piece rates. The Board therefore dismissed the complaint,.
rejecting the findings and conclusions of the Trial Examiner that the
Respondent had violated Section 8(a) (5) and (1) by refusing to in-
clude an. explicit reference to the incentive factor in the contract.
Thereafter, the Amalgamated petitioned .the Court of Appeals for #
the Second Circuit for review of. our Order, and on November 6, 1963,
the court held 1 that the reasons given in our Decision did not justify
dismissal of the complaint, and remanded the matter for further con-
sideration of two points : (1) whether the Amalgamated, by executing
a written contract which did not contain a provision as to the incen-
tive factor had waived its right to insist upon such a provision now,
and (2) what weight should be given to the fact that the 1961 con-
tract, over which the dispute arose, has now expired and has been re-
placed by another which also contains no explicit reference to the
inclusion of the incentive- factor in determining piece rates. The Re-
spondent and the Amalgamated subsequently filed briefs with the
Board on the issues presented by the court's remand, and these have
been fully considered in our determination.
1 Amalgamated Clothing Workers of America, AFL-CIO v. N. L.R.B., 324 F. 2d 228.
147 NLRB No. 78.
HENRY I. SIEGEL Co., INC. 595
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Jenkins].
1. As the Board in its original Decision and Order had decided to
dismiss the complaint for the reasons mentioned above, the Board
considered it unnecessary to pass on the finding of the Trial Examiner
that the Amalgamated had not waived its right to insist on the in-
clusion of a specific provision as to the use of the incentive factor,
by its eventual execution and acceptance of the 1961 contract. The
Board has now considered the Respondent's contention that the execu-
tion of the 1961 contract constituted such a waiver, and agrees with
the Trial Examiner that the Amalgamated was not precluded thereby
from pressing its claim that the Respondent's agreement as to the use
of the incentive factor should be reduced to writing. It is clear from
the record that the position of the Amalgamated both before and after
execution of the contract has consistently been that specific reference
to the use of the incentive factor should be included in the contract, and
that it has never, by word or action, waived its claim. The respond-
ent could not satisfy its statutory obligation to bargain until it and
the Amalgamated had settled on language which would express its
oral commitment that the incentive factor had been and would con-
tinue to be used in the computation of piece rates under the 1961
contract .2
2. It is apparent from the briefs and other documents filed with
us that the 1961 contract has been replaced by a contract executed by
the parties in 1963 which likewise contains no specific reference to use
of the 121/2 percent incentive factor; The Amalgamated asserts that
in negotiating this agreement it arrived at an understanding with the
Respondent concerning the incentive factor precisely similar in effect
to that reached in the negotiations for the 1961 contract. The Re-
spondent, however, denies that it made any commitment in the 1963
negotiations' to continue the use of this factor. As the issue thus
framed with respect to negotiations for the 1963 contract has not been
litigated, we do not find it possible to. make a determination concerning
it in this proceeding.
The Board now finds, pursuant to the remand of the Court of Ap-
peals, that the Respondent, by refusing to put into writing in the 1961
contract its agreement that ,a 121/2-percent incentive factor would con-
2 See The Timken Roller Bearing Company v . N.L.R.B., 325 F. 2d 746 (C.A. 6), and
N.L.R.B. v. Perkins Machine Company , 326 F. 2d 488 (C .A. 1), which hold that an em-
ployer's obligation to bargain on a matter arising from a union's statutory right is not
extinguished by the fact that the parties have considered in their negotiations, and have
thereafter omitted , a provision with respect thereto in their written contract . A relinquish-
ment by a union of a statutory right--in this case, to have incorporated in written form
what has been agreed to orally-must be in clear and unmistakable language , and silence
in the bargaining agreement does not amount to such relinquishment.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tinue to be utilized, has engaged in unfair labor practices within the
meaning of Section 8 ( a) (5) and 8 (a) (1) of the Act.
THE REMEDY
As we have noted, it appears that the 1961 contract, which was the
subject of the negotiations giving rise to the dispute involved herein,
has since expired and been replaced by another which now governs
the relationship between the Respondent and the Amalgamated. We
believe that it would be futile to order the Respondent to bargain now
with the Amalgamated over the language of a provision to be added
to a contract which is, in any event, no longer effective. It appears,
however, that the parties are still in dispute concerning inclusion in
a contract of the incentive factor, and that subsequent events have
not mooted the unfair labor practices found in this proceeding. There-
fore, although we shall not now, for the reasons stated above, order
the Respondent to incorporate a provision relating to the use of the in-
centive factor in any specific contract, we shall nevertheless.order the
Respondent to cease and desist from refusing to bargain in the manner
here found to constitute a violation of the Act, and affirmatively, to
comply with its statutory bargaining obligation.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended , the Board hereby orders that Henry I. Siegel Co ., Inc., its
officers, agents , successors , and assigns , shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Clothing
Workers of America , AFL-CIO, as the exclusive representative of
the employees in the appropriate unit for which it has been rec-
ognized, by refusing to reduce to writing and incorporate in a written
and signed contract any agreement reached with such Union concern-
ing an incentive factor to be applied in the computation of piece rates,
or any other subject of bargaining as to which the parties have reached
agreement.
(b) In any like or related manner , interfering with the efforts
of such Union to bargain collectively as the exclusive bargaining agent
of all employees in the appropriate unit.
2. Take the following affirmative action , which the Board finds will
effectuate the policies of the Act :
(a) Upon request , bargain collectively with Amalgamated Cloth-
ing Workers of America , AFL-CIO, concerning the language of any
provision as to which agreement has been reached , and incorporate
such provision in a written and signed agreement.
HENRY I. SIEGEL CO., INC. 597
(b) Post at its plants at Dickson, Tennessee, and Fulton, Kentucky,
the attached notice marked "Appendix." 3 Copies of said notice, to
be furnished by the Regional Director for the Twenty-sixth Region,
shall, after being duly signed by an authorized representative of Re-
spondent, be posted immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its employes are customarily
posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Twenty-sixth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
3 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
AVE WILL, if agreement is reached with Amalgamated Clothing
Workers of America, AFL-CIO, concerning an incentive factor
to be applied in the computation of piece rates, or any other sub-
ject of bargaining, reduce such agreement to writing and incorpo-
rate it in a written and signed contract.
WE WILL NOT, by refusing to reduce to writing an agreement
concerning an incentive factor to be applied in the computation
of piece rates, or in any like or related manner, interfere with the
efforts of Amalgamated Clothing Workers of America, AFL-
CIO,.to,,bargain,.collectively. as the exclusive representative of all
employees in the appropriate unit.
HENRY I. SIEGEL CO., 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 directlyi with the Board's Regional,
Office, 746 Federal Office Building, 167 North Main Street, Memphis,
Tennessee, Telephone No. 534-3161, if they have any questions con-
cerning this notice or compliance With its provisions.