Henry I. Siegel Co., Inc.

National Labor Relations Board - Board Decisions

Jul 14, 1965

153 N.L.R.B. 1448 (N.L.R.B. 1965)

1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without complaint from the Electrotypers; and that the Employer's
assignment to the typographers will result in efficiency of operations.
Our present determination is limited to the particular controversy
which gave rise to this proceeding. In making this determination, we
are awarding the disputed work to employees of the Employer who are
represented by the Typographers and not to the Typographers Union
and its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Relations Act, as
amended, and upon the basis of the foregoing findings and the entire
record in this proceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute.
1. Typographers employed by Meredith Printing Company (West
Haven Plant) who are represented by New Haven Typographical
Union No. 47, International Typographical Union, AFL-CIO, are
entitled to perform the disputed work of mounting and blocking of
illustrations in the Employer's West Haven, Connecticut, plant.
2. New Haven, Meriden & Bridgeport Electrotypers Union No. 83,
International Stereotypers and Electrotypers Union, AFL-CIO, is
not entitled, by means proscribed by Section 8(b) (4) (D) of the Act,
to force or require Meredith Printing Company (West Haven Plant)
to assign the above work to employees who are represented by it.
3. Within 10 days from the date of this Decision and Determination
of Dispute, New Haven, Meriden & Bridgeport Electrotypers Union
No. 83, International Stereotypers and Electrotypers Union, AFL-
CIO, shall notify the Regional Director for Region 1, in writing,
by means proscribed by Section 8(b) (4) (D), to assign the work in
whether or not it will refrain from forcing or requiring the Employer,
dispute to electrotypers rather than to typographers.
Henry I. Siegel Co., Inc . and Amalgamated Clothing Workers of
America, AFL-CIO. Case No. 2-CA-9736. July 14, 1965
DECISION AND ORDER
On March 22, 1965, Trial Examiner Benjamin B. Lipton issued his
Decision in the above-entitled case, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof. The Charging Party
filed a brief in support of the Trial Examiner's Decision.
153 NLRB No. 125.
HENRY I. SIEGEL CO., INC. 1449
The National Labor Relations 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 con-
sidered the Trial Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the Trial Examiner's
findings only to the extent they are consistent herewith.
The instant case is a sequel to an earlier proceeding involving
Respondent and the Union where the Board found, on remand from
the Court of Appeals for the Second Circuit, that Respondent had
violated Section 8 (a) (5) and (1) of the Act by refusing to incorporate
in the parties' 1961-63 collective-bargaining contract a provision set-
ting forth the parties' agreement, reached during negotiations, that
Respondent would utilize a 121/2-percent incentive factor in computing
certain wage rates.'
While the litigation was pending in the previous case the existing
contract approached its termination date and the Union gave proper
notice of its intention to negotiate a new contract. At that time the
Union stated its intention to press for "an explicit provision [in the
new agreement] relating to the continued use of the 121/2 percent incen-
tive factor ...." On August 21 through 23 Respondent and the Union
engaged in negotiations for a new contract.
At the first bargaining session Union Negotiator Graham asked
Respondent's president, Jesse Siegel, "[a]re you continuing to use the
incentive factor?" Siegel turned to Gerakios, one of Respondent's
engineers, who nodded affirmatively, and Siegel said to Graham,
"[y]es, we haven't changed our engineering methods." Graham then
asked Siegel, "Will you agree then to make reference to it in the con-
tract ?" At this point, Abramson, Respondent's counsel, spoke up and
said, "We are neither agreeing nor disagreeing. Our position on the
incentive factor is the same as it was in 1961. We are not going to be
trapped into an unfair labor practice charge." Graham replied that
he was not trying to trap Respondent and that his only purpose in rais-
ing the issue was to protect the Union's rights in the pending litigation
before the court of appeals. Graham further inquired, "Is it true,
then, that your position in regard to the incentive factor is the same as
it was in 1961," and Abramson said, "Yes, we are not going to include
it in the contract."
Abramson testified that when, as a result of the Union's letter of
June 25, he became aware that the Union intended to raise the incentive
clause issue at the negotiations he advised Respondent to permit him
to respond to the Union's proposal, and prepared a written response
which Abramson testified he read after stating that the Respondent
1 147 NLRB 594 , enfd. 340 F. 2d 309 (C.A. 2).
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not intend to include the disputed clause in the agreement. The
statement is as follows :
The base rates determine the lowest amount which a piece
worker can earn without being considered an unsatisfactory
employee.
The piece rates which will be set forth in the agreement will
contain such approved engineering factors which we believe will
enable an efficient operator to achieve earnings in excess of the
base rates. Since the piece rates are subject to negotiation and
mutual agreement, the Company sees no need to specify the factors
employed in fixing piece rates.
Our objection to the proposed clause is the same as stated in
our negotiations in September 1961. We objected then and now
object to the inclusion in the contract of any provision which
may be misinterpreted by our employees as an assurance that they
will or can achieve hourly earnings in excess of the established
base rate.
We will negotiate with the Union on base rates and piece rates
and on any other conditions of employment which are relevant and
proper. That is all we feel the Company is required to do.
Based on the foregoing evidence the Trial Examiner reasoned that
Graham's question and Respondent's answer thereto, interpreted in
the context of the parties' past dealings, connoted agreement that
Respondent would utilize the 121/.x-percent incentive factor in deter-
mining piece rates during the term of the contract under negotiation.
Accordingly, the Trial Examiner concluded that Respondent violated
Section 8(a) (5) and (1) by refusing to memorialize that agreement
in the collective-bargaining contract. Contrary to the Trial Exam-
iner, however, we do not find that a preponderance of evidence on the
record as a whole supports the conclusion that Respondent and the
Union "agreed" to utilize the 121/2-percent incentive factor for the
term of the new agreement.
Although it is unreasonable to regard Graham's question and Sie-
gel's and Abramson's answers as relating solely to Respondent's utili-
zation of the incentive factor for the few remaining weeks of the expir-
ing agreement as Respondent contends, neither is it reasonable to
interpret Graham's question as a proposal to utilize a 121/2-percent
incentive factor during the term of the new agreement under negotia-
tion and Respondent's answer as an acceptance of such proposal.
Indeed, Graham at the time indicated that his question was not a pro-
posal with respect to the contract under negotiation, but stated that
his only purpose in raising the issue was to protect the Union's rights
in the litigation then pending in the court of appeals.
HENRY I. SIEGEL CO., INC. 1451
Moreover , the parties included in their contract the following
provision :
ARTICLE XX-ACCEPTANCE CLAUSE
This Agreement contains and embodies all of the terms and condi-
tions agreed upon between the parties hereto at the collective-
bargaining sessions held on August 20, 21, and 22 , 1963, and which
terminated on August 22,1963.
In our opinion the Union 's agreement to this clause of the contract,
absent any reservation , or even discussion , with respect to the inclusion
of an incentive provision, constitutes , in effect, an admission by the
Union that no agreement , had been reached between the parties respect-
ing the incentive factor . Where, as here , the only evidence offered by
the General Counsel in support of the allegation in the complaint that
an agreement had been reached regarding incentives , is a general and
ambiguous question by a union negotiator and an equally ambiguous
reply by the employer , we find little which militates against the clear
and unambiguous language of the contract itself. The acceptance
clause clearly negates any inference of an oral agreement.
In light of the foregoing , we cannot agree with the Trial Examiner
that the General Counsel has established by a preponderance of the
evidence on the record as a whole that Respondent and the Union
agreed to utilize a 121/2 -percent incentive factor during the term of the
1963-66 collective-bargaining contract . Since Section 8(d) requires
that a party incorporate into a written contract only those matters as
to which "agreement" was reached , it is clear that Respondent did not
violate its duty to bargain by refusing to consent to including an incen-
tive clause in the current contract.
Accordingly , we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner Benjamin B . Lipton in New York, New
York, on October 26, 1964, based upon a complaint by the General Counsel' that
Respondent violated Section 8(a)(5) and ( 1) of the Act. All parties were repre-
sented and participated in the proceeding . Oral argument on the record and briefs
submitted by each of the parties have been duly considered. Disposition of Respond-
ent's motion to dismiss the complaint is made in accordance with the findings below.
Upon the entire record in the case , and from my observation of the demeanor of
the witnesses at the hearing , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , a New York corporation , maintains a place of business in New York
City, and operates plants, inter alia, at Fulton , Kentucky, and Dickson , Tennessee,
where it is engaged in the manufacture , sale, and distribution of men's and boys' cloth-
1 The Union 's charge was filed and served on January 3, 1964 , and the complaint thereon
was issued on August 26, 1964.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing and related products. During the year preceding issuance of the complaint,
Respondent in the course of its business had a direct outflow in interstate commerce
of products valued in excess of $50,000. Respondent admits, and I find, that it is
engaged in commerce within the meaning of the Act.
IL THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
A. Issues
Questions are presented in this proceeding, substantially similar to those previously
litigated involving the 1961 contract, which expired, viz:
1. Whether in negotiating terms for the new contract in 1963, Respondent orally
agreed that, during the term of the contract, piecework rates were and would continue
to be computed with the inclusion of a certain incentive factor.
2. If so, whether the Union, by signing the contract which did not incorporate such
verbal agreement and which contained a certain "acceptance clause," thereby waived
any claim to have an incentive factor provision specifically set forth in the contract.
3. Whether Respondent's refusal to include such a provision in the contract vio-
lated Section 8(a) (5) of the Act.
B. Background and summary of related prior litigation
All the pertinent facts have been set out in two Board decisions 2 and two opinions
in the Court of Appeals for the Second Circuit.3
As certified bargaining agent, the Union has had successive collective-bargaining
contracts with Respondent covering production and maintenance employees at the
Dickson, Tennessee, and Fulton, Kentucky, plants. During negotiations in 1961 cul-
minating in a 3-year written contract, Respondent orally agreed that the piece rates
(numbering over 100) for pressers and stitchers specified in the contract were engi-
neered on the basis of a 121/2-percent incentive above base rate 4 and that the same
incentive factor would similarly be utilized in establishing rates for all new or changed
operations during the contract term. However, Respondent refused the Union's
request to embody language reflecting the oral agreement in the contract ultimately
executed.
The contract, as signed , provided in pertinent part:
ARTICLE V-WAGES
Section 1. The Employer and the Union agree that piece rates and time work
rates shall be t ose set forth in the separate schedules annexed hereto as Schedule
A to be initialed by the parties hereto, the provisions of which are incoroprated
herein.
Section 2: Adjustments in individual rates and rates for new or changed opera-
tions shall be made by mutual agreement between the parties hereto, and shall
be related io the rate schedules contained in Schedule "A." If the parties cannot
agree upon such adjustments the question shall be referred to the Impartial
Chairman for decision as provided in Article XI hereof.
On essentially these facts, a Board Trial Examiner held that Respondent's refusal
to memorialize the oral agreement it reached, in principle, for the continued use of
the incentive factor in the setting of piece rates was a violation of Section 8(a)(5).
Originally, the Board, while adopting the factfindings of the Trial Examiner, dismissed
the complaint upon a conclusion that article V and schedule A impliedly reflect the
understanding of the parties that the incentive factor had been used in computing
all listed piece rates and that it would continue to be used in setting all rates for new
or changed piecework operations. Noting that article V, section 2, required that the
rates for new or changed operations be fixed by mutual agreement and that they "shall
be related to" those listed in schedule A, the Board inferred that the new rates could be
"related to" present rates only if they were computed in the same fashion; i.e., by
2140 NLRB 1292 (February 18,1963); 147 NLRB 594 (June 22, 1964)
® Amalgamated Clothing Workers of America, AFL-CIO (Henry I Siegel Co ) v N L R B.,
324 F. 2d 228 (November 6, 1963) ; and Henry I. Siegel Co , Inc. v. N.L.R.B., 340 F. 2d
309 (C.A. 2) (January 13, 1965).
4 Management engineers would obtain an average time for particular operation by • tim-
ing normal operators, add allowances for delay, fatigue and personal needs, and then
Increase the basic time or rate by a 1232-percent factor to provide incentive for increased
production.
HENRY I. SIEGEL CO., INC. 1453
including use of the incentive factor. On appeal by the Union, the Second Circuit
reversed the Board and remanded the case for the Board to determine: (1) whether
the Union, by signing the contract without provision for the incentive factor, had
waived its right to insist upon inclusion of such provision, and (2) whether the issue
had become moot because the contract in question had expired and was succeeded by
a new 3-year contract in 1963 (which likewise contains no language concerning use of
an incentive factor). In its Supplemental Decision, the Board decided both remand
questions in the negative and then concluded that Respondent violated Section 8(a)
(5) by refusing to incorporate in the 1961 contract its agreement that the incentive fac-
tor would continue to be utilized in computing piece rates. On the waiver question spe-
cifically, the Board found that the Union had consistently sought inclusion of such a
provision in the contract, both before and after its execution, that Respondent's statu-
tory obligation to bargain could not be satisfied until it and the Union settled on lan-
guage which would express the oral commitment that the incentive factor had been
and would continue to be used in computing piece rates under the contract, and that
the Union could not be deemed to have relinquished its statutory right to such a con-
tract provision without clear and unmistakable wording to such effect. In discussing the
mootness point, the Board observed that, in their representations, the parties disagreed
as to whether they had arrived at an understanding concerning the incentive factor in
the 1963 contract-"precisely similar in effect to that reached in the negotiations for
the 1961 contract." As the issue had not been litigated, it was not possible to resolve
the factual conflict in that proceeding. But in no event did the execution of a new
contract render moot the unfair labor practices found. As the 1961 contract was no
longer in effect, it would have been futile to order that Respondent bargain with the
Union over language of a provision to be added to this expired contract. The order
issued against Respondent required that it cease and desist from refusing to bargain in
the manner found to be unlawful and, affirmatively, to bargain with the Union upon
request "concerning the language of any provision as to which agreement had been
reached, and incorporate such provision in a written and signed agreement."
The court of appeals, on return of the case after remand, approved in substance the
Board's disposition of the issues and enforced the order. The court indicated that the
Union, having pressed the issue throughout and having been unable to compel
Respondent to include the desired provision in the contract, did not "'waive' a com-
pleted refusal to bargain simply by signing up for the best it can get." On the moot-
ness issue, the court commented that there of course could be no assumption that the
facts litigated on the 1961 contract were the same with respect to the 1963 contract,
stating that-"the parties who agreed on the first occasion [as to the continued use
of the incentive factor] may have disagreed on the second."
C. Evidence relating to the 1963 contract
1. Agreement on use of the incentive factor
The previous contract carried an effective term from September 25, 1961, to Sep-
tember 1, 1963, with provision for yearly automatic renewal thereafter absent notice
by either party of desire to amend or terminate. By letter dated June 25, 1963,5 the
Union notified Respondent of its desire to amend the agreement, and included the
following paragraph:
Please be advised that during the negotiations precedent to the contemplated
amendment of the agreement, we intend to demand the inclusion in the amended
agreement of an explicit provision relating to the continued use of the 121/2
percent incentive factor in engineering piece rates at both plants.
Bargaining sessions in 1963 took place on August 21, 22, and 23. Appearing for
the Union were James J. Graham, assistant genetal counsel, Charles S. English, vice
president, Cleron A. Smith with two or three assistants, and shop committees of eight
or nine employees from the two plants. Respondent was represented by William
Abramson, attorney, Jesse Siegel, president, Sam Siegel, officer, Mike Gerakios, chief
engineer , and two plant managers.
Graham's testimony is largely uncontradicted. On August 21, he posed the ques-
tion to Jesse Siegel, "Are you continuing to use the incentive factor?" Siegel turned
to Gerakios, who nodded his head affirmatively. Siegel then answered Graham, "Yes,
we haven't changed our engineering methods." Graham asked Siegel, "Will you
agree then to make reference to it in the contract?" At this point, Abramson spoke
up and said, "We are neither agreeing nor disagreeing. Our position on the incentive
factor is the same as it was in 1961.. We are not going to be trapped into unfair labor
5 All dates are in 1963, unless otherwise specified.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice charge." Graham replied that he was not trying to trap Respondent and
that his only purpose in raising the issue was to protect the Union 's rights in the pend-
ing litigation before the court of appeals. Graham further inquired, "Is it true, then,
that your position in regard to the incentive factor is the same as it was in 1961," and
Abramson said , "Yes, we are not going to include it in the contract."
Abramson testified that, after receipt of the Union's letter of June 25 indicating it
would raise the incentive factor issue in the forthcoming negotiations , he prepared a
written statement, and that he read this statement on August 21 at the conclusion of
the discussion concerning the incentive factor. The alleged statement , as quoted in
the record, follows
The base rates determine the lowest amount which a piece worker can earn
without being considered an unsatisfactory employee.
The piece rates which will be set forth in the agreement will contain such
approved engineering factors which we believe will enable an efficient operator
to achieve earnings in excess of the base rates Since the piece rates are subject
to negotiation and mutual agreement , the Company sees no need to specify the
factors employed in fixing piece rates.
Our objection to the proposed clause is the same as stated in our negotiations
in September 1961. We objected then and now object to the inclusion in the
contract of any provision which may be misinterpreted by our employees as an
assurance that they will or can achieve hourly earnings in excess of the estab-
lished base rate. [Emphasis supplied.]
We will negotiate with the Union on base rates and piece rates and on any
other conditions of employment which are relevant and proper. That is all we
feel the Company is required to do.
However, as he indicated, Abramson went beyond the statement by adding some
"observations." Additionally, Graham's testimony finds corroboration in an affi-
davit by Abramson, dated September 25, which he submitted to the court of appeals
in connection with a motion by Respondent to dismiss the Board case on the ground
of mootness.6 Abramson averred, inter alia, that "[Respondent] was asked by Mr.
Graham whether such incentive factor would again be used"; that he anticipated
"such request would be made and such question asked" by reason of the Union's
June 25 letter ; and that in "answering the '[Union 's] question as to the continuation
of the said incentive factor of the agreement ," he read a prepared statement, as
quoted hereinabove.7
Assuming that Abramson read the statement as appears above,8 I find that it does
not materially conflict with Graham 's testimony , which is in any event accepted as
credible.°
With the exception of certain changes in article XX, the "acceptance clause," dis-
cussed below, the negotiations were substantially concluded on August 22, and the
contract executed by Respondent about October 30, was made effective from Sep-
tember 1, 1963, to August 31, 1966 , with provision for yearly automatic renewal as
in the 1961 contract . The contract annexes lengthy piece rate schedules and con-
tained in article V, sections 1 and 2, the identical provisions which appeared in the
1961 contract ,10 e.g., that adjustments in piece rates for new and changed operations
shall be made by mutual agreement , and shall oe "related to" the existing rate sched-
ules; and that failing agreement on such adjustments , the question shall be referred
to arbitration under the procedures provided in the contract.
0It may be noted that Abramson 's affidavit describes the position of the Union taken
before the court-"that the Board would, upon remand, have the power to order [Re-
spondent ] to incorporate in the 1963 contract the incentive factor agreed upon in connec-
tion with the 1961 contract "
7 Abramson 's testimony at the present hearing that his affidavit before the court was
not correct, that there was no request from the Union "for the continued use of the in-
centive factor ," is not credited.
8 Graham testified he did not see Abramson read any statement Abramson appeared
to rely upon the fact that-"I prepared it to read it, so I read it" Abramson said that
Graham was a "considerable distance," about 30 or 40 feet away, and "couldn ' t tell" if
he was reading or not . Jesse Siegel stated , after initial hesitancy, that he saw Abramson
reading ; he estimated that Graham was,8 to 10 feet away.
9 It was stipulated that the 'Union 's vice president , English, was present throughout
the negotiating sessions , and that he would testify , if called , in substance as Graham
testified , on direct and on cross -examination , as to what took place at those sessions.
10 Set forth earlier herein.
HENRY I. SIEGEL CO., INC. 1455
Conclusions
The overriding contested question under this heading is posed by Respondent's
denial that it agreed to continue the use of the incentive factor in establishing piece
rates for new or changed operations during the term of the 1963 contract. It argues,
essentially, that without such agreement there is no need for a written clause in the
contract. Respondent was alerted beforehand, by the June 25 letter, that the Union
would again raise the issue by demanding the inclusion of a provision relating to the
"continued use" of the incentive factor. At the negotiations, Graham broached the
subject by inquiring of Jesse Siegel-"Are you continuing to use the incentive factor?"
I do not agree with Respondent that in this question only the present tense was
implied; rather, in my opinion, the word "continuing," as used, connotes the sense
of progression or continuity. In the whole context of the case, Graham' s question
must be construed as a request encompassing the existing piece rates, set out in the
contract, as well as future piece rates to be adjusted by mutual agreement .11 Siegel's
response ("Yes, we haven't changed our engineering methods") was clearly affirma-
tive and sufficient to constitute a concession or agreement. As earlier described,
there followed a request by the Union and refusal by Respondent "to make reference
in the contract to the incentive factor." 12
At the time of this bargaining session, on August 21, an appeal was pending before
the Second Circuit from the Board's Decision dismissing the complaint. Both sides
were, quite evidently and with mutual awareness, maintaining their respective posi-
tions in the litigation . For its part, the Union was seeking a reversal of the Board
and an order compelling incorporation in the 1963 contract of a clause on the incen-
tive factor. Its purpose in raising the question again in 1963, as it specifically stated,
was to protect its rights in the pending litigation. And Respondent readily asserted
that its "position on the incentive factor is the same as it was in 1961 " On Novem-
ber 6, the court did reverse the Board and remand, as shown. Ultimately, it was held
that, absent litigation of the disputed facts as to the 1963 contract, there could be no
order requiring inclusion of such a clause in the contract. Clearly, however, it was
found that Respondent's refusal constituted the alleged violation, and that, in effect,
the 1961 contract should have contained an appropriate reference to the incentive
factor agreement (although the issuance of such an order upon Respondent, after
the contract had expired, would have been futile). In actual and legal effect, the use
of the incentive factor in fixing piece rates was an existing condition of employment
and part of the wage structure under the 1961 contract. When the subject came up
in the 1963 negotiations, Respondent was in no position to equivocate. It could have
sought, if it desired, to abandon or vary from the past usage of the incentive factor,
and to do so it would have been incumbent upon it clearly to state its desire for such
a change. However, it gave no indication of an intent to change, but rather, as
found, it affirmatively agreed, in response to the Union's queries, that the practice
would continue under the 1963 contract.
Respondent's objection to the inclusion of an incentive factor clause in the 1963
contract is admittedly the same as the one it advanced in 1961; i.e., that it might be
misinterpreted by the employees as a guarantee that their earnings would exceed the
base rate. This same argument was considered and rejected in the prior case. As
in that case, the statutory obligation which devolved upon Respondent was to bargain
in good faith until it and the Union "had settled on language which would express its
oral commitment that the incentive factor had been and would continue to be used
in the computation of piece rates" under the 1963 contract.13
"In oral argument on the record, Respondent admitted, inter alia, that "so far [as to
new or changed operations] the incentive factor has been one of the factors used in rais-
ing the so-called base rate," that the Union never asked for more than that, and that
the practice is exactly the same as it has been in the past.
13 In the 1961 negotiations, from which the Trial Examiner and Board inferred an oral
agreement, the union representatives asked "whether the factor was still being used in
the fixing of piece rates . . . were told that it was," and "further assured that no change
in this respect was contemplated " (140 NLRB at 1299, 1301 ) It is also noted that in
argument on the record herein, Respondent's counsel conceded that "The demand was
the same but the company's response [in 1963] was different "
13 As appears in the prior opinion of the Board and the court, a practical reason for
incorporating the oral commitment in the contract is given rise under article V, section
2, of the contract (supra) It is provided that piece rates for new or changed operations
must be "related to" the existing piece-rate schedules, which contain the incentive factor
In disputes over new rates referred to arbitration, there would be no assurance, without
a written provision, that the arbitrator would decide the case by reference to the oral
agreement on use of the incentive factor
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The legal questions, applicable here, have already largely been determined by the
Board and the court. The incentive factor has been an ingredient in the piece rates
for a considerable time, antedating 1961. Respondent does not suggest that it seeks
for the present or the future to abandon this compensatory procedure. It seems well
understood by the Union and Respondent that there is no contractual obligation to
guarantee higher earnings for the piecework employees beyond the base rate. There
appears no reason why the employees cannot be made to understand, orally or in
writing, that the contract contains no such guarantee.14 Respondent does not clearly
reveal any other objective. If it had the additional purpose of holding the discretion
whether or not to apply the incentive factor during the contract term, it should have
taken this precise approach in the negotiations and bargained for such a clause in
the contract.
2. The waiver question
Respondent relies upon the following provision in the executed 1963 contract as
precluding the Union from contending that any matter agreed upon by the parties
was left out of the contract:
ARTICLE XX-ACCEPTANCE CLAUSE
This Agreement contains and embodies all of the terms and conditions agreed
upon between the parties hereto at the collective bargaining sessions held on
August 20, 21 and 22, 1963, and which terminated on August 22, 1963.
Evidence was adduced on both sides concerning the negotiations leading to this
clause. On August 21, Respondent submitted to the Union a list of contract clauses
which included a proposal, viz:
ACCEPTANCE CLAUSE
This Agreement contains and embodies all of the terms and conditions agreed
upon between the parties hereto at the collective bargaining sessions held on
August [blank], 1963.
The Union executes this agreement without any reservations of any kind
whatsoever.
Graham objected to the second sentence as adversely affecting the Union's rights in
the litigation before the court of appeals. He proposed a qualifying revision, to
which Abramson agreed, and the bargaining sessions concluded on August 22 with the
acceptance clause reading as follows.
ACCEPTANCE CLAUSE
This agreement contains and embodies all of the terms and conditions agreed
upon between the parties hereto at the collective bargaining sessions held on
August 20, 21, and 22, and which terminated on August 22, 1963.
The union executes this agreement without any reservations of any kind what-
soever, except that it is understood and agreed that the Union will not be deemed
to have waived any rights arising under this agreement or under any pending
litigation between the parties hereto.
Several days later, Abramson telephone Graham and suggested further revision of
the acceptance clause, as he preferred that the contract make no mention of the court
of appeals litigation. As a consequence, it was agreed to delete the entire second
paragraph of the clause as last revised.
On October 2, Abramson wrote Graham taking issue with a purported affidavit of
Graham submitted to the court of appeals in which it was stated that Jesse Siegel
had agreed to continue the use of the incentive factor and that Graham had requested
that reference be made thereto in the 1963 contract. Asserting that the negotiated
acceptance clause was intended to reflect the understanding that the contract "would
embody all matters agreed upon without reservation," Abramson indicated that
"there had been no complete meeting of minds," and requested that bargaining be
resumed as early as possible.
On October 14, Abramson sent Graham this letter:
This is to confirm our telephone conversation of this morning that the agreement
which became effective September 1, 1963 incorporates all of the terms, condi-
tions, and provisions negotiated at the collective bargaining sessions between
the above parties held on August 20, 21 and 22, 1963, and that the Amalgamated
"As the court observed, "It would be simple enough to devise language which would
protect against misconstruction."
HENRY I. SIEGEL CO., INC. 1457
Clothing Workers of America has no present or future intention of filing an
unfair labor practice charge against Henry I. Siegel Co., Inc. arising out of the
said negotiations.
On October 15, Graham replied in substance- He wished to correct a possible
misunderstanding by Abramson of the telephone conversation on August 14. Even
though the Board (as of then) had dismissed the complaint, the issue was still vital
to the Union despite the execution of the 1963 contract and will be determined by
the court of appeals. He had assured Abramson in the phone conversation that the
Union had no present intention of filing a charge as a consequence of the 1963 nego-
tiations, "either now or some future time," but he "obviously" could not commit the
Union to such a course "in the event the situation changes in the distant future."
Graham's testimonial version was that the parties clearly understood the Union
was not agreeing that, if the litigation culminated in its favor, the acceptance clause
would preclude insertion of a reference to the incentive factor in the contract. Abram-
son testified that his sole interest in the acceptance clause was to prevent an unfair
labor practice charge arising out of the 1963 negotiations, and that he took Graham's
letter of October 15 as an unqualified assurance there would be no charge filed, and
consequently withdrew his request for resumption of bargaining. About Ocotber 30,
the contract was executed with the shortened form of the acceptance clause; on
November 6, the court of appeals handed down its initial decision reversing and
remanding, and on January 3, 1964, the Union filed the present charge-all as pre-
viously described.15
Conclusions
The actual language employed in the acceptance clause is not free of ambiguity.
The negotiations preceding agreement on this clause plainly show the Union's ada-
mant opposition to waiving its rights in the pending litigation. As it finally emerged,
the clause may reasonably be construed as meaning that the contract contains all
that was agreed upon in the bargaining sessions to be included therein, leaving open
by silence the continuing unsettled legal issue of incorporating an incentive factor
clause.
Such a waiver, as Respondent urges, implies that the Union consciously intended
abruptly to abandon the whole course of the litigation and to render nugatory the
agreement on the incentive factor it sought and obtained in those very negotiations
for the 1963 contract. All the evidence points to the contrary. Nor was any specific
quid pro quo asserted or shown for such a concession by the Union.
A similar waiver argument was unsuccessfully advocated by Respondent in the
prior case based upon the fact of the Union's execution of the 1961 contract without
specification of the incentive factor agreement. The principles stated there equally
apply here, notwithstanding the acceptance clause. There is absent the clear and
unmistakable language necessary to hold that the Union relinquished its statutory
right to have the desired clause incorporated in the contract. The Union, which
at no time ceased its pursuit of the issue, did not "waive" the completed refusal
to bargain by signing up "for the best it can get" in the 1963 contract negotiations.
Accordingly, I find that Respondent violated Section 8(a)(5) and (1) as alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing the free flow
of commerce.
15 Respondent raises here no issue, as such , that the Union was estopped from filing
this charge In its final opinion on January 13, 1965 , the court affirmed the Boaid's
rejection of Respondent ' s contentions of waiver and mootness And it stated " We thus
need not determine whether the Board would be required to give effect to a cleat and
uncoerced agreement not to file an unfair labor practice charge, in view of the principle
that violations of the National Labor Relations Act give rise to public rather than private
rights " I do not , in any event , find from Graham 's letter of October 15 that there was
such a clear agreement not to file it charge From the Union ' s standpoint , if its position
turned out to be correct , it desired a positive remedy of an incentive factor clause in-
corporated in a current contract The court ' s ruling and remand on November 6, ac-
cording to the Union , presented such a "changed situation ," referred to in its October 15
letter , which impelled it to file the charge
796-027-66-vol 153 93
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall recom-
mend that it cease and desist from such conduct.
It has been found that Respondent unlawfully refused to incorporate in the 1963
contract its oral commitment that the 12th-percent incentive factor had been and
could continue to be used in the computation of piece rates under that contract. The
Board held in the prior case that Respondent could not satisfy its statutory obliga-
tion to bargain until it and the Union settled on language to embody such an oral
agreement in the contract.
In its brief, the Union requests that an order be issued requiring the inclusion in
the 1963 contract of a clause specifically stating that "the attached piece rates have
been computed to include a 121/2-percent incentive allowance and all new piece rates
during the life of this contract shall be computed to include the same allowance."
The Union states its purpose as one of expedition, so that the clause may be included
in the 1963 contract before its termination in 1966 and not permit the "semantic
controversy" to continue indefinitely.
The present dispute has not been over the wording of the clause. Considering the
length of the litigation and the findings and order in the prior case, I perceive no
necessity for a new course of bargaining over language. "It would be simple
enough," as the court said, "to devise language which would protect against miscon-
struction" by the employees of such a clause-the basic objection of Respondent.
The clause suggested by the Union is plainly worded and reasonably describes the
oral agreement. However, explicitly to meet Respondent's stated objection, I will
recommend the addition of the following sentence: "However, it is fully understood
that there is no assurance, guarantee, or basis for claim under this contract that any
employee will receive an increase or obtain earnings in excess of the established base
rate for the operation " This clause is to be appropriately inserted in article V,
section 1, of the contract.
It is my opinion that the affirmative order recommended does not write a contract
for the parties, deprive Respondent of any cognizable bargaining right under the Act,
nor otherwise cause it prejudice, and that such remedy is called for and appropriate,
within the Board's powers, to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, I make
the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. All nonsupervisory production and maintenance employees at Respondent's
Dickson, Tennessee, and Fulton, Kentucky, plants, constitute a unit appropriate for
collective bargaining within the meaning of Section 9(b) of the Act.
4. The Union has been, at all times material, the exclusive representative of all
employees in the appropriate unit for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing to put into writing its agreement that a 12th-percent incentive factor
had been and would continue to be utilized under the 1963 contract, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I recommend that Respondent, Henry I. Siegel Co., Inc.,
New York, New York, Fulton, Kentucky, and Dickson, Tennessee, 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 appro-
HENRY I. SIEGEL CO., INC. 1459
priate unit , by refusing to reduce to writing and incorporate in a written and signed
contract its agreement reached with such Union concerning 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 appro-
priate unit.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Upon request, bargain collectively with Amalgamated Clothing Workers of
America, AFL-CIO, by incorporating the following provision in the 1963 contract,
appropriately within article V, section 1, and properly execute the contract so revised:
The attached piece rates have been computed to include a 121/2 percent incentive
allowance and all new piece rates during the life of this contract shall be com-
puted to include the same allowance However, it is fully understood that there
is no assurance , guarantee , or basis for claim under this contract that any
employee will receive an increase or obtain earnings in excess of the established
base rate for the operation.
(c) Post at its plants at Dickson , Tennessee , and Fulton , Kentucky , copies of the
attached notice marked "Appendix." 16 Copies of such notice , to be furnished by
the Regional Director for Region 2, shall , after being duly signed by an authorized
representative of Respondent , be posted immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter , in conspicuous places,
including all places where notices to its employees are customarily posted. Reason-
able steps shall be taken by Respondent to insuie that said notices aie not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 2, in writing , within 20 days from
the date of the receipt of this Decision , what steps Respondent has taken to comply
herewith.17
"In the event that this Recommended Order shall be adopted by the Board, the words
"a Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
17 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively with Amalgamated Clothing
Workers of America, AFL-CIO, as the exclusive representative of the employees
in the appropriate unit, by refusing to reduce to writing and incorporate in a
written and signed contract our agreement reached with the aforesaid Union
concerning an incentive factor to be applied in the computation of piece rates,
or any other subject of bargaining as to which agreement has been reached.
WE WILL NOT in any like or related manner interfere with the efforts of the
aforesaid Union to bargain collectively as the exclusive bargaining agent of all
employees in the appropriate unit.
WE WILL, upon request, bargain collectively with the aforesaid Union by
incorporating in the current 1963 contract, at the appropriate place, the follow-
ing provision, and properly execute the contract so revised:
The attached piece rates have been computed to include a 121/2 percent
incentive allowance and all new piece rates during the life of this contract
shall be computed to include the same allowance. However, it is fully
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
understood that there is no assurance, guarantee, or basis for claim under
this contract that any employee will receive an increase or obtain earnings
in excess of the established base rate for the operation.
The appropriate collective-bargaining unit , consists of: All nonsupervisory
production and maintenance employees at our Dickson, Tennessee, and Fulton,
Kentucky, plants.
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 directly with the Board's Regional Office, Region 2,
Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone
No. 751-5500, if they have any questions concerning this notice or compliance with
its provisions.
Jewell Smokeless Coal Corporation and United Mine Workers of
America, District #28. Case No. 5-CA-2794. July 15, 1965
DECISION AND ORDER
On March 8, 1965, Trial Examiner Eugene E. Dixon issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and is engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. There-
after, the Respondent filed exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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 and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
that Respondent, Jewell Smokeless Coal Corporation, Vansant, Vir-
ginia, its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order.
153 NLRB No. 128.