Standard Candy Co.

National Labor Relations Board - Board DecisionsJun 29, 1964

147 N.L.R.B. 1070 (N.L.R.B. 1964)

1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 568, AFL-CIO, or any other labor organization , as their collective -bargaining repre- sentative , unless and until Hotel , Motel &, Club Employees' Union, Local 568,. AFL- CIO, or such other labor organization , is, at the time of such picketing , currently certified as the collective-bargaining representative of such employees. 2. Take the following affirmative action which , it is found ,. will effectuate the policies of the National Labor Relations Act, as amended: (a) Post in conspicuous places in its business offices and meeting halls in Phila- delphia, Pennsylvania , and all other places where notices to members are customarily posted , copies of the attached notice marked "Appendix ." 22 Copies of said notice, to be furnished by the Regional Director of the Fourth Region of the National Labor Relations Board ( Philadelphia , Pennsylvania ), shall, after being signed by its authorized representative , be posted by it immediately upon receipt thereof, and maintained by it for 60 days thereafter . Reasonable steps shall be taken to insure that said notices are not altered , defaced , or covered by any other material. (b) Sign and forthwith mail to the aforesaid Regional Director such additional copies of the aforesaid "Appendix," as said Regional Director may request, for post- ing by Restaurant Management , Inc., said employer being willing, at the latter's restaurant premises in Philadelphia , Pennsylvania , known as "Singing Waters," where notices to employees thereof are customarily posted. (c) Notify said Regional Director in writing within 20 days from the date of this Decision what steps it has taken to comply herewith 23 22 If this Recommended Order is 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 . If the Board 's Order is enforced by a decree of the United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order." s In the, event this Recommended Order be adopted by the Board , this provision shall be modified to read : "Notify said Regional Director , within 10 days from the date of this Order , what steps it has taken to comply herewith." Standard Candy Company and American Bakery and Confec- tionery Workers , Local 128, affiliated with American Bakery and, Confectionery Workers' International Union , AFL-CIO. Case No. 26-CA-1623. June 29, 1964 DECISION AND ORDER On April 8, 1964, Trial Examiner Reeves R. Hilton issued his De- cision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, 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, the 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 Ex- 147 NLRB No. 116. STANDARD CANDY COMPANY 1071 aminer's Decision, the exceptions and brief, 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 Board hereby adopts as its Order the Order recom- mended by the Trial Examiner, and orders that Respondent Standard Candy Company shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge duly filed on September 5, 1963, by American Bakery and Con- fectionery Workers, Local 128, affiliated with American Bakery and Confectionery Workers' International Union , AFL-CIO, herein called the Union , the General Counsel of the National Labor Relations Board, through the Regional Director for the Twenty-sixth Region , issued a complaint , dated December 2, 1963, alleging that Standard Candy Company , herein called the Respondent or the Company, has engaged in and is engaging in certain acts and conduct in violation of Section 8(a)(5) and ( 1) of the National Labor Relations Act, as amended (29 U.S.C. 151, et seq. ), herein called the Act. The Respondent filed an answer in which it admits certain allegations of the complaint but denies the commission of any unfair labor practices. Pursuant to notice a hearing was held before Trial Examiner Reeves R. Hilton at Nashville , Tennessee , on January 20, 1964, at which time the parties were afforded full opportunity to be heard , to introduce relevant evidence , to present oral argu- ment, and to file briefs . About February 13, 1964 , counsel for the Respondent filed a brief, which I have fully considered. Upon consideration of the entire record, I make the following: FINDINGS OF FACT 1. THE RESPONDENT 'S BUSINESS The Respondent , a Tennessee corporation , has its principal office and place of business at Nashville , Tennessee , where it is engaged in the manufacture of candy. During the 12 months preceding the issuance of the complaint the Respondent manufactured , sold, and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Tennessee. The answer admits, and I find, the Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Sequence of events There is no dispute concerning the facts in this case. On July 28, 1960, following an election conducted on July 20, the Union was certified by the Regional Director as the exclusive bargaining representative for all the employees in a unit composed of: All production and maintenance employees, including sanitation department em- ployees, shipping department employees, city pickup and delivery drivers, and plant clerical employees , excluding all office clerical employees , professional employees, guards, and supervisors as defined in the Act. Thereafter , the Company and the Union executed an agreement although the record does not reflect the effective and termination dates of this contract. However , the parties executed a second collective-bargaining agreement , covering the employees in the above-described unit , which is effective from April 7, 1962, until March 31, 1964 , and ". . . shall remain in effect until a new Agreement has 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been consummated and signed, or this Agreement has, upon written notice, been canceled or terminated by the Company or by the Union." I The agreement was signed by H. H. Campbell, Jr., president of the Company, and Clarence W. Kemp, business representative for Local 128. On January 1, 1963, John W. McKnight became business representative for the Union and was responsible for servicing the current agreement . Around the latter part of January, McKnight visited Campbell to, explain his position in the matter. McKnight had no further contact with the Company until about August 5, when he sent a letter to Campbell requesting a financial statement as of January 31, a profit-and-loss statement showing earnings for the last year, and a complete copy of the Company's payroll for the weeks ending January 26 and July 27. The data was requested so the Union could determine what would be a reasonable wage increase based on earnings , if any, in accordance with article XX of the agreement.2 On August 9, McKnight met with Campbell and Campbell refused to furnish the data requested. McKnight then asked if Campbell contemplated any wage increase in the foreseeable future and he answered no, except that on September 1 he would have to increase the minimum wage rate from $1.15 to $1.25 an hour as required by law.3 Campbell made no mention of increases for any of the other employees. The meeting then ended. The Wage Increases The Company employed approximately 120 employees in the unit set forth in the contract, each of whom received a pay increase an September 1. At the hearing Campbell presented a tabulation showing the number of employees by "groups" (without giving job classifications or specific categories ), and their hourly rates before and after September I. The tabulation, insofar as the vast majority of em- ployees is concerned, shows as follows: Number of employees Hourly rate before Sept 1 Hourly rate after Sept 1 7- - - ------------------ ---------------------- $1.15 $1.52 9i----------------------------------------- 1.18 1.27 1------------ ------------ ------------------------------ ------------------- 1 21 1.28 2 -------------------------------------------2------------------------------------------- 1.23 1.30 Of the remaining 19 employees, 8 were considered as individuals, each receiving a different hourly rate, while there were 4 groups of employees consisting of 2 em- ployees per group, with employees within the particular group receiving the same pay rate, and I group consisting of 3 employees. The rates of these individuals and groups varied from $1.26 to $1.80 prior to September 1, and thereafter varied from $1.31 to $1.85 per hour. The increases ranged from 3 to 7 cents and averaged slightly less than 5 cents per hour. Campbell stated these increases were granted in order to maintain wage differentials among the groups and the amount of the increases was determined arbitrarily, without regard to any fixed formula. Campbell admitted he did not consult with the Union before effectuating these raises. It is undisputed the agreement was in full force and effect at all times material herein and that neither party, up to the date of the hearing, had served written notice of its intention to cancel or terminate the agreement. Concluding Findings The General Counsel contends that the Company, by unilaterally granting wage increases to the employees involved herein, without prior notification to, or con- 1 A copy of this agreement was received in evidence as General Counsel's Exhibit No. 3 The parties stipulated that the date April 7, 1963, appearing on the first page thereof should be April 7, 1962 2 This article provides, "The Company agrees to a two and one-half percent (21/2) in- crease in wage rates of all hourly employees and reserves the right to increase wages in January, 1963 on a percentage based on earnings, if any, of the operation of the Company. It is also agreed all hourly rates including piece work, shall be adjusted to reflect the 100 increase of 1960 which is now carried as a separate item on the payroll." s Fair Labor Standards Amendments of 1961 to the Fair Labor Standards Act of 1938, Public Law 87-30 (29 U.S.C. 206). STANDARD CANDY COMPANY 1073 sultation with, their exclusive bargaining representative, thereby refused to bargain collectively with the Union in violation of Section 8(a)(5) and (1) of the' Act. The Company asserts that under the provisions of the existing agreement, the Union had no right to request the Company to engage in negotiations on August 5, or at any time during the term of the agreement. The Company further contends that where, as here, it was under statutory obligation to raise the wages of certain employees, it was free to grant increases to other employees, on a nondiscriminatory basis, in order to maintain wage differentials, especially when. there was no prohibi- tion in the current agreement against its unilaterally granting wage increases. Both the Union and the Company rely upon the provisions of article XX of the agreement (supra), to support their respective positions, namely, that the Union had the right to request pay increases in August, and that the Company was free to unilaterally grant raises on September 1. In my opinion the clear, unambiguous language of article XX'sustains neither of these propositions. Certainly, the article cannot be interpreted as a wage-reopening clause as claimed by the Union. Again, while the article reserved to the Company "the right to increase wages in January 1963, on a percentage based on earnings, if any ." this language, in view of the time restriction, may not be construed as permitting the Company to grant raises any time it so desired. Moreover, the Company concedes the raises were granted to maintain wage differentials among the groups and that the amounts thereof were determined in arbitrary fashion, without regard to any formula. Thus, it is clear the raises were granted for reasons other than company earnings. Of course, the absence of any contract proscription against the granting of wage increases does not mean that the Company thereby had the right to unilaterally grant wage raises to its em- ployees? Furthermore, there is no evidence the Company complied with the modi- fication requirements of Section 8(d), hence the contract modification restrictions of that section apply in this case. The remaining question to be resolved is whether the Company was under statutory obligation to notify and consult with the Union before effectuating the wage in- creases. It seems well settled that an employer's duty to bargain with the representa- tive of his employees does not end with the consummation of a collective-bargaining agreement but his duty is a continuing one and includes the obligation to consult with the representative of his employees before granting additional benefits or otherwise changing the terms and conditions of the existing agreement .5 Here, of course, the Company was required to comply with the new minimum wage rate established under FLSA and, accordingly, raised the pay rate for seven of its employees frn,m $1.15 to $1.25 an hour. I find the Company did not violate the Act in adopting these wage changes .0 However, the Company unilaterally granted pay increases to the remaining em- ployees in the unit, some 113 in number, which exceeded the minimum wage rate and were granted for the purpose of maintaining wage differentials. By granting these increases, under the circumstances herein, I find the Company engaged in acts and conduct in violation of Section 8 (a) (5) and (1) of the Act .7 . IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with its operations set forth 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 commerce and the free flow of commerce. V. THE REMEDY Having found the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 4 Central Illinois Public Service Company, 139 NLRB 1407, enfd . 324 F. 2d 916 (C.A. 7). 5J. I. Case Company v. N.L.R.B., 253 F . 2d 149 , 153 (C.A. 7) ; The Black-Clawson Com- pany, 103 NLRB 928. 931. Southern Transport, Inc., 145 NLRB 615. TN.L.R.B. v. Ilenne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736; Southern Coach & Body , Company, Inc., 141 NLRB 80; Equitable Life Insurance Com- pany, 133 NLRB 1675 ;Carter Machine and, Tool Co ., 133 NLRB. 247 ;' Central Illinois Public Service Company, 'supra. 756-236-65-vol. 147-69 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and upon the 'entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Standard Candy Company is an employer as defined in Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) thereof. 2. American Bakery and Confectionery Workers, Local 128, affiliated with Ameri- can Bakery and Confectionery Workers' International Union, AFL-CIO, is a labor organization as defined in Section 2(5) of the Act. 3. All production and maintenance employees, including sanitation department employees, shipping department employees, city pickup and delivery drivers, and plant clerical employees, excluding all office clerical employees, professional em- loyees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein the Union has been, and now is, the exclusive representative of all the employees in the appropriate unit for the purposes of col- lective bargaining within the meaning of Section 9(a) of the Act. 5. By granting pay increases to employees employed in the above unit without prior notice or consultation with the Union, the 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 within the mean- ing of Section 2(6) and (7) of the Act. 7. By granting increases to a group of seven employees employed in the said unit, in order to conform with the minimum wage requirements of FLSA, the Respond- ent has not engaged in any unfair labor practices. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I recommend that Standard Candy Company, its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Failing or refusing to bargain collectively with American Bakery and Con- fectionery Workers Local 128, affiliated with American Bakery and Confectionery Workers' International Union, AFL-CIO, as the exclusive representative of all its employees in the unit found to be appropriate herein by unilaterally granting wage increases to employees within the said unit without prior notice to, and consultation and bargaining with, the Union. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a). Upon request, bargain collectively with American Bakery and Confectionery Workers Local 128, affiliated with American Bakery and Confectionery Workers' International Union, AFL-CIO, as the exclusive representative of all its employees in the unit found appropriate with respect to wage increases and related matters and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant at Nashville, Tennessee, copies of the attached notice marked "Appendix." 8 Copies of the notice, to be furnished by the Regional Director for the Twenty-sixth Region, shall, after being signed by the Respondent's representa- tive, be posted by it 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 employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. In the event that this Recommended Order 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." MIRA-PAK, INC. 1075 (c) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision and Recommended Order, what steps the Respondent has taken to comply herewith.9 It is further recommended that unless on or before 20 days from the date of the receipt of this Decision and Recommended Order the Respondent notifies the said Regional Director in writing that it will comply with the above Recommended Order, the National Labor Relations Board issue an Order requiring it to take such action. 9In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said 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 Relations Act, we hereby notify our employees that: WE WILL NOT fail or refuse to bargain collectively with American Bakery and Confectionery Workers Local 128, affiliated with American Bakery and Confectionery Workers' International Union, AFL-CIO, as the exclusive rep- resentative of all our employees in the appropriate unit described below, by unilaterally granting wage increases to employees within the unit without prior notice to, and consultation and bargaining with, the aforesaid union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL, upon request, bargain collectively with the said union as the exclusive representative of all our employees in the appropriate unit with respect to wage increases and related matters and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees, including sanitation depart- ment employees, shipping department employees, city pickup and delivery drivers, and plant clerical employees, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. STANDARD CANDY COMPANY, 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, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-3161, if they have any question concerning this notice or compliance with its provisions. Mira-Pak, Inc. and Ervin D. Flygare Mira-Pak, Inc. and John W. Gentry. Cases Nos. 23-CA-1643 and 23-CA-1643-2. June 29, 1964 DECISION AND ORDER On February 4, 1964, Trial Examiner Rosanna A. Blake issued her Decision in the above-entitled proceeding, finding that Respondent, Mira-Pak, Inc., had engaged in unfair labor practices in violation of 147 NLRB No. 126.