Mackie Automotive Systems

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 347 (N.L.R.B. 2001)

MACKIE AUTOMOTIVE SYSTEMS 347
Mackie Automotive Systems and Teamsters Local
Union 728, AFL–CIO. Case 10–CA–31189
September 28, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On March 12, 1999, Administrative Law Judge Wil-
liam N. Cates issued the attached decision. The Respon-
dent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and the brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
A. Facts
The Respondent operates an automobile parts ware-
house (the warehouse) in Norcross, Georgia. The ware-
house is dedicated to continuously supplying automobile
parts3 on a “just in time” basis to General Motors Corpo-
ration (GM) at GM’s nearby automobile assembly plant
(the GM plant) in Doraville, Georgia, about five miles
from the warehouse.4 The Respondent employs ap-
proximately 16 supply delivery truckdrivers (the unit
employees) at the warehouse for the sole purpose of de-
livering assembly parts to the GM plant continuously
throughout the day. They only drive the trucks; they do
not load or unload them. They do not deliver to any
other customers.
At all times since February 27, 1997, the Union has
been certified as the exclusive collective-bargaining rep-
resentative of the unit employees.5 All of the other ap-
proximately 200 workers at the warehouse are employees
of GM, although they are supervised by the Respondent.
The parties stipulated that at various times material
herein, during the months of April 1997 through the time
of the hearing in February 1999, they met for the purpose
of engaging in negotiations over wages, hours, and other
terms and conditions of employment of the unit employ-
ees. The parties arrived at tentative collective-bargaining
agreements about August 12, 1997, and August 25, 1998
(subsequent to the August 3, 1998 unilateral change in
lunchbreak practice at issue here), but the unit employees
did not ratify the tentative agreements either time.

1 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) of the Act, we do not rely on Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), approved in NLRB v. Transportation Management Corp.,
462 U.S. 393, 399–403 (1983), overruled in part on other grounds,
Office of Workers Compensation Programs, Dept. of Labor v. Green-
wich Collieries, 512 U.S. 267, 276–278 (1994).
2 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001).
3 Such as gas tanks, carpets, struts, radiators, instrument panel har-
nesses, etc.
4 The GM plant produces approximately 1150 automobiles per day.
5 The bargaining unit is all full time supply drivers employed by the
Respondent at its Norcross, Georgia facility, excluding all other em-
ployees, office clerical employees, guards, and supervisors as defined
in the Act.
The record establishes that the Respondent’s opera-
tional practice has been to mirror the operating hours of
the GM plant. When the GM plant has ceased operating
for any reason, scheduled or not (e.g., holidays, sched-
uled plant maintenance shutdowns, unscheduled and
emergency plant shutdowns), the Respondent in turn has
ceased operating. The unit employees have not been
paid for time when the Respondent has not been operat-
ing because the GM plant is not operating.
Prior to August 3, 1998,6 the GM plant operated con-
tinuously throughout the workday, with no lunchbreaks,
and, mirroring that schedule, Respondent did the same.
GM employees loaded the trucks at the warehouse (under
the Respondent’s supervision) and unloaded them at the
GM plant continuously throughout the day, including
during what would otherwise have been the GM employ-
ees’ lunchbreak. The Respondent’s unit employees (the
drivers) in turn worked 9-1/2 hours continuously per day,
with no breaks, delivering parts from the warehouse to
the GM plant. The Respondent paid them a premium
rate (time and a half) for the 30 minutes each day that
they worked during what otherwise would have been an
unpaid 30-minute lunchbreak.
On August 3 GM notified the Respondent that, effec-
tive immediately, GM employees would be taking a 30-
minute lunchbreak, during which they would neither load
trucks at the warehouse or unload them at the GM plant.
The same day, mirroring the GM revised schedule, the
Respondent unilaterally discontinued its continuous
uninterrupted workday and implemented a 30-minute
lunchbreak for the unit employees, during which they did
not work, and for which they were not paid. The Re-
spondent did not provide the Union with advance notice
of and an opportunity to bargain about this change. At
the time, the parties were engaged in ongoing negotia-
tions for a collective-bargaining agreement.
Lunchbreaks, and payment for them, were express sub-
jects of discussion during those negotiations. Indeed, the
parties had specifically discussed the very change that
the Respondent subsequently unilaterally implemented
on August 3. When the Union found out about the Re-
spondent’s unilateral implementation of the change about
6 All the following dates are 1998, unless otherwise stated.
336 NLRB No. 27
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348
a week later, it demanded that the Respondent bargain
about it. The Respondent refused to do so, asserting that
it had the right to make the unilateral change in question.
Shortly thereafter, on August 31, the Union filed the in-
stant unfair labor practice charge.
The complaint alleges that the Respondent violated
Section 8(a)(1) and (5) of the Act by unilaterally, without
notice to or consultation with the Union, discontinuing
its practice of paying unit employees for their
lunchbreak.
B. The Judge’s Decision
The judge found that the Respondent violated the Act
as alleged. More specifically, he found that lunchtime
pay is a mandatory subject of bargaining, that the Union
was the exclusive collective bargaining representative of
the unit employees, and that the Respondent unilaterally
ceased paying the unit employees for 9-1/2 hours of
work each workday with pay at the premium rate of 1-
1/2 times the hourly rate for the 30 minutes each day that
would otherwise have been their lunchbreak.
In support of his finding of an unfair labor practice, the
judge found generally, citing NLRB v. Katz, 369 U.S. 736
(1962), that after employees become represented by a
collective-bargaining agent, their employer may no
longer make unilateral changes in wages, hours, and
other terms and conditions of employment, as it was
privileged to do before the employees became repre-
sented. Applying that principle, the judge found that,
starting before the Union’s February 27, 1997 certifica-
tion as the collective-bargaining representative of the
Respondent’s supply delivery truckdriver unit employ-
ees, the Respondent had been paying them premium pay
for work performed during the 30-minute period each
day that they would otherwise have been on an unpaid
lunchbreak. He further found, however, that from the
time of the Union’s certification onward, the Respondent
was obligated to bargain with the Union about any
changes in that practice, as a mandatory subject of bar-
gaining. Thus, the judge stated:
Because of the intervention of the bargaining repre-
sentative, the Company could no longer continue to
unilaterally exercise its discretion with respect to
working employees nine and a half hours and paying
them premium pay for what otherwise would have
been the employees’ lunch time, without negotiating
with the Union.
C. The Respondent’s Exceptions
The Respondent contends that the judge incorrectly
identified the status quo as payment for lunchbreaks and
that he fundamentally misunderstood the issue in finding
that it unilaterally changed its practice of paying the unit
employees for their lunchbreaks.
The Respondent contends that the record fails to show
that it ever paid employees for their lunchbreaks. Rather,
the Respondent argues that the record establishes that the
unit employees did not have lunchbreaks prior to August
3. Instead, in light of the schedule of continuous uninter-
rupted operations at the GM plant, the unit employees
were required to work straight through their workday
without such breaks. The Respondent maintains that,
prior to August 3, the unit employees had been compen-
sated with premium pay (time-and-a-half for 30 minutes)
not for their lunchbreaks, but for working through what
would otherwise have been their lunchbreaks. The Re-
spondent maintains that in response to the implementa-
tion of a 30-minute lunchbreak interruption in operations
at the GM plant starting on August 3, and consistent with
its established practice of mirroring changes in the opera-
tional schedule of the GM plant, it implemented a sched-
uling change that provided an unpaid lunchbreak for the
unit employees. The Respondent contends that the issue
to be decided is whether that scheduling change main-
tained or changed the status quo.
The Respondent argues that the relevant status quo
was that it only paid employees for time worked and
never paid for time not worked; particularly, that it never
paid for lunchbreaks, but that it paid for time worked in
lieu of lunchbreaks; that its work schedule for the unit
employees mirrored without exception GM’s schedule at
the warehouse and the GM plant; and that the unit em-
ployees’ work schedule was always subject to change
based on changes in GM’s schedule of operations. The
Respondent asserts that, consistent with that status quo,
the unit employees were, for example, not paid for time
not worked during GM’s annual summer and Christmas
shutdowns, during a 53-day strike against GM in 1998,
and during a GM maintenance/repair shutdown. Thus,
the Respondent contends that after GM changed its
schedule on August 3 by discontinuing loading trucks at
the warehouse or unloading them at the GM plant during
the GM employees’ 30-minute lunchbreak, the Respon-
dent consistently followed suit. It thereby maintained the
status quo by discontinuing its practice of having the unit
employees work straight through the 30-minute
lunchbreak, and paying them time-and-a-half for those
30 minutes. The Respondent instead provided the unit
employees with the same nonworking, unpaid 30-minute
lunchbreak that it provided to its nonunit employees.
The Respondent thus contends that it maintained the
status quo on and after August 3 by not paying unit em-
ployees for time when they were not working and by
mirroring the GM schedule of operations.
MACKIE AUTOMOTIVE SYSTEMS 349
D. Analysis and Conclusions
The Respondent’s operational practice, established
prior to the certification of the Union as the collective-
bargaining representative of the unit employees, was to
mirror the operating hours of the GM plant. Thus, when
the GM plant ceased operating for any reason, scheduled
or not, the Respondent in turn ceased operating. The
Respondent’s related practice was not to pay unit em-
ployees for time they did not work while the Respondent
was not operating because the GM plant was not operat-
ing. We agree with the judge that the Respondent’s ad-
herence to its pre-Union past practice did not entitle it,
after its employees selected union representation, unilat-
erally to cease paying the unit employees for 9-1/2 hours
of work each workday with pay at the premium rate of 1-
1/2 times the hourly rate for the 30 minutes each day that
would otherwise have been their lunchbreak.
It is well settled that an employer’s past practices prior
to the certification of a union as the exclusive collective-
bargaining representative of the employees do not relieve
the employer of the obligation to bargain with the certi-
fied union about the subsequent implementation of those
practices that entail changes in wages, hours, and other
terms and conditions of employment of unit employees.
Porta-King Building Systems, 310 NLRB 539, 543
(1993), enfd. 14 F.3d 1258 (8th Cir. 1994); Amsterdam
Printing & Litho Corp., 223 NLRB 370, 372 (1976),
enfd. 559 F.2d 187 (D.C. Cir. 1977). It is also well-
settled that lunchbreaks are mandatory subjects of bar-
gaining.7
Thus, adherence to past practice does not legitimize
the Respondent’s unilateral conduct here. Nor is the Re-
spondent’s unilateral conduct justified on any other
grounds. Where, as here, parties are engaged in negotia-
tions for a collective-bargaining agreement, an employer
has an obligation to refrain from unilateral changes ab-
sent overall impasse on bargaining for the agreement as a
whole.8 There are two limited exceptions to that general
rule: (1) when a union, in response to an employer’s dili-
gent and earnest efforts to engage in bargaining, insists
on continually avoiding or delaying bargaining, or (2)
when economic exigencies or business emergencies

7 See, e.g., Kurdziel Iron of Wauseon, 327 NLRB 155 (1998), enfd.
208 F.3d 214 (6th Cir. 2000); Rangaire Acquisition Corp., 309 NLRB
1043 (1992), enfd. 9 F.3d 104 (5th Cir. 1993); Van Dorn Machinery
Co., 286 NLRB 1233, 1240 (1987), enfd. 881 F.2d 302 (6th Cir. 1989).
8 Bottom Line Enterprises, 302 NLRB 373, 374 (1991), enfd. mem.
sub nom. Master Window Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th
Cir. 1994) (negotiations for a successor collective-bargaining agree-
ment); RBE Electronics of S.D., 320 NLRB 80, 81 (1995) (negotiations
for an initial collective-bargaining agreement).
compel prompt action.9 There is no contention or show-
ing that the parties were at impasse when the Respondent
unilaterally implemented the 30-minute unpaid
lunchbreak, or that the Union was avoiding or delaying
bargaining. Thus, absent compelling economic consid-
erations that would excuse the Respondent from its bar-
gaining obligation, it was obligated to bargain with the
Union about discontinuing its current scheduling practice
and implementing a 30-minute unpaid lunchbreak.
The Board recognizes as “compelling economic con-
siderations” only extraordinary, unforeseen events having
a major economic effect that requires the employer to take
immediate action.10 The Respondent does not contend
that GM’s implementation of a 30-minute lunchbreak and
cessation of operations at the GM plant and at the ware-
house was an extraordinary, unforeseen event having a
major economic effect that required it to take immediate
action.11 Nor does the Respondent contend that it was
confronted with an economic exigency short of the type
that would relieve it of its obligation to bargain entirely,
but nevertheless compelling prompt action, while still
requiring it to provide the Union with adequate notice and
an opportunity to bargain.12 Thus, we find that the Re-
spondent was not excused by compelling economic con-
siderations from its obligation to bargain with the Union
about the change in lunchbreak practice.
The Respondent cites no case in support of its proposi-
tion that the reduced demands of an employer’s cus-
tomer—even its only customer—permit the employer
simply to skip bargaining with its employees’ collective-
bargaining representative and to unilaterally change its
employees’ terms and conditions of employment. Thus,
we also agree with the judge that the fact that this unilat-
eral change was prompted by a bona fide scheduling
change implemented by GM does not excuse the Re-
spondent from its obligation to bargain with the Union.
For all of these reasons, we do not agree with the prin-
ciple applied by our dissenting colleague, that scheduling
and hours adjustments consistent with past practice not
only before but also after the certification of the union
may be made, whether during negotiations or otherwise,
without bargaining. Whatever the validity of that propo-
sition in the abstract, it would not license an employer,
9 RBE Electronics of S.D., supra, 320 NLRB at 81; Bottom Line En-
terprises, supra, 302 NLRB at 374.
10 Maple Grove Health Care Center, 330 NLRB 775, 776 (2000),
citing Hankins Lumber Co., 316 NLRB 837, 838 (1995).
11 Absent a dire financial emergency, the Board has held that eco-
nomic events such as loss of significant accounts or contracts, operation
at a competitive disadvantage, or supply shortages do not justify unilat-
eral action. RBE Electronics of S.D., supra, 320 NLRB at 81 (citations
omitted).
12 See id. at 81–82.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350
after its employees have chosen union representation, to
unilaterally change terms or conditions of employment
that constitute mandatory subjects of bargaining in keep-
ing with preunionization practices. Nor would that
proposition license an employer, while making changes
in schedules and hours of operation that are not impelled
by exigent or emergency circumstances, to make pre-
impasse unilateral changes in terms and conditions of
employment while engaged in negotiations with a union
for a collective-bargaining agreement.
The cases relied upon by the Respondent and our dis-
senting colleague are inapposite, and do not require a dif-
ferent result. In Kal-Die Casting Corp., 221 NLRB 1068
(1975), the respondent unilaterally reduced overtime
scheduling when it experienced a 44-percent reduction in
production requirements in a one-month period. In dis-
missing the allegation that the respondent unlawfully
failed to bargain with the union about this reduction in
overtime, the Board found that (1) the unilateral changes
concerned only routine production scheduling and ad-
justments relating to diminishing available hours of work,
(2) the respondent had not varied from its past practice of
reducing overtime under such circumstances, and (3) the
union had not attempted to discuss the reduction in over-
time with the respondent. Id. at 1068 fn. 1. Here, how-
ever, the unilateral change concerned (1) an established
term and condition of employment, (2) which was being
varied for the first time since the Union’s certification as
collective-bargaining representative in September 1997;
and (3) the Union, confronted with this fait accompli, did
attempt to bargain post facto about the change, but was
flatly denied the opportunity to do so. Thus, we find that
Kal-Die Casting is fundamentally distinguishable from
the instant case, and does not control the result here.
We find KDEN Broadcasting Co., 225 NLRB 25
(1976), also relied upon by the Respondent, to be equally
distinguishable. There, the respondent unilaterally
changed three employees’ work schedules shortly after
the union was certified as the collective-bargaining rep-
resentative. In finding that these unilateral changes did
not violate the Act, the Board affirmed the judge’s find-
ing that frequent schedule changes were normal proce-
dure before the advent of the union. The Board cited
Kal-Die Casting, supra, for the proposition that schedul-
ing and hours adjustments consistent with past practice
were not violative of the Act. The Board adopted the
judge’s rationale that “where the past practice is so
commonplace as to be a basic part of the job itself[,] a
continuation of that past practice cannot be characterized
as a unilateral change in working conditions.” Id. at 34–
35. Here, on the other hand, there is no showing that
frequent changes in lunchbreaks and changes in payment
for them were normal practice before the advent of the
Union, or that such a change was “so commonplace as to
be a basic part of the job itself.” Thus, we find that
KDEN Broadcasting, like Kal-Die Casting upon which it
relies, is fundamentally distinguishable from the instant
case, and does not control the result here.
Accordingly, we find that the Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally, without
notice to or consultation with the Union, discontinuing
its practice of paying unit employees for their
lunchbreak.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that Mackie Automotive Systems, Norcross,
Georgia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified
below.
Substitute the following paragraph for 2(c).
“(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”

MEMBER TRUESDALE, dissenting.
I disagree with my colleagues’ adoption of the judge’s
finding that the Respondent violated Section 8(a) (5) and
(1) of the Act by unilaterally changing its practice of
paying its drivers premium pay in lieu of taking a
lunchbreak and instituting a 30-minute unpaid break. In
my view, the sole issue for resolution is whether the Re-
spondent deviated from its established practice in insti-
tuting this practice. Contrary to my colleagues, I find
that the Respondent did not violate the Act because the
policy that the Respondent instituted on August 3, 1998,
was consistent with its established past practice.
The facts are straightforward and undisputed. The Re-
spondent’s Norcross facility was established in mid-1996
for the sole purpose of warehousing automotive parts and
delivering them to the General Motors’ assembly plant in
nearby Doraville, Georgia. The Respondent employs
only 16 supply delivery drivers at the Norcross facility;
the balance of the approximately 200 other employees
that perform other functions at the facility are General
Motors’ employees. The Respondent’s supply drivers,
whom the Union has represented since about February
27,1997, drive trucks loaded by General Motors’ employ-
MACKIE AUTOMOTIVE SYSTEMS 351
ees at the Respondent’s Norcross facility to the Doraville
assembly plant, where they are offloaded by General Mo-
tors’ employees for “just-in-time” use. Thus, the sole
function of Mackie drivers is to stand by and be prepared
to immediately depart in their trucks as soon as they are
loaded by General Motors’ employees at Norcross and to
return to Norcross to await further loads as soon as Gen-
eral Motors’ employees at Doraville have finished
unloading.
Since the outset of this arrangement until August 1998,
the Respondent’s employees, like the General Motors’
employees assigned to the Respondent’s Norcross facil-
ity and the Doraville assembly plant, worked through
what would otherwise be their lunchbreak. Mackie’s
practice was to compensate their drivers for working
their entire shift without a lunchbreak by paying them
premium pay. On August 3, 1998, the Respondent dis-
continued that practice and instituted a 30 minute unpaid
lunchbreak. It is undisputed that the Respondent did so
without notifying or negotiating with the Union before
implementing its new practice.
The policy of allowing its drivers a true 30-minute
lunchbreak was made only after, and in response to,
General Motors’ decision to schedule a shutdown of pro-
duction for 30 minutes in the middle of each shift for its
employees. General Motors’ decision included both
General Motors’ employees at Norcross who loaded the
parts onto the trucks driven by the employees at issue
and the General Motors’ assembly employees at Dora-
ville who offloaded the parts. During this shutdown,
General Motors not only stopped receiving product at
Doraville during this half hour, but also directed its em-
ployees at Norcross not to load trucks during this time.
As the majority concedes, the Respondent has consis-
tently altered its employees’ schedules and incorporated
scheduling changes to mirror changes in the General Mo-
tors’ Doraville plant schedule. When the Doraville plant
ceased production for any reason, such as holiday obser-
vances, shut downs for various reasons, or emergency or
scheduled plant maintenance, the Respondent’s drivers
did not work, nor were they paid. Further, when the Gen-
eral Motors’ plant instituted work on Saturdays, the Re-
spondent’s drivers started to work Saturdays as well.
Most pertinently, when General Motors changed the
starting time of the second shift, the Respondent changed
its shift to correspond to General Motors’ changes. In
sum, Mackie drivers, without exception, were scheduled
to work only when the General Motors’ production line
was running. Thus, the Respondent’s consistent practice
when confronted with changes of any type in General
Motors’ employees’ schedules was unfailingly to change
the drivers’ schedules to reflect such changes.
It is well settled that, absent certain circumstances, an
employer acts in violation of Section 8(a)(5) and (1) by
unilaterally changing employees’ terms and conditions of
employment without affording its employees’ exclusive
representative an opportunity to bargain over such
changes. NLRB v. Katz, 369 U.S. 736, 743 (1962).1
Schedule and hour changes, however, that are consistent
with an employer’s past practice do not violate of the
Act.2 Thus, the critical issue here is what exactly was the
status quo that existed before the change at issue.
As detailed above, the Respondent’s description of its
existing practices is uncontroverted. At all times before
and after certification of the union, the Respondent’s
drivers’ work schedules were dictated by General Motors’
production schedule. All General Motors’ production
schedule changes were mirrored in changes to the Re-
spondent’s drivers’ work schedules. Prior to the recent
change in midday scheduling, the General Motors’ sched-
ule, which the Respondent’s schedule mirrored, provided
for uninterrupted production throughout the workday,
with no lunchbreaks. The Respondent only paid its em-

1 The majority cites cases and principles relating to bargaining obliga-
tions. I do not dispute the majority’s exposition of these general princi-
ples. I agree that under Board law an employer’s past practices prior to
union certification as the exclusive bargaining representative do not
relieve the employer of the obligation to bargain with the certified union
about subsequent changes to wages, hours, and other terms and condi-
tions of employment. Porta-King Building Systems, 310 NLRB 539,
543 (1993), enfd. 14 F.3d 1258 (8th Cir. 1994). I also agree that
lunchbreaks are a mandatory subject of bargaining under well-settled
Board law. Kurdziel Iron of Wisconsin, 327 NLRB 155, 155-–156
(1998), enfd. 208 F.3d 214 (6th Cir. 2000). I further agree that when an
employer is engaged in negotiations, it must refrain from unilateral
changes absent overall impasse on the whole agreement unless the un-
ion, in response to the employer’s diligent efforts to bargain, engages in
delaying tactics or economic or business exigencies compel prompt
action. RBE Electronics of S.D., 320 NLRB 80, 81 (1995); and Bottom
Line Enterprises, 302 NLRB 373, 374 (1991), enfd. mem. sub. nom.
Master Window Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994).
However, as I note above, I believe that scheduling and hours adjust-
ments consistent with past practice not only before but also after the
certification of the union may be made, whether during negotiations or
otherwise, without bargaining. And that is the applicable principle I
apply to the facts here.
2 See KDEN Broadcasting Co., 225 NLRB 25, 35 (1976), citing Kal-
Die Casting Corp., 221 NLRB 1068 (1975). These cases stand for the
proposition that unilateral scheduling and hours adjustments consistent
with past practice are not unlawful. Thus, contrary to the majority, I find
they have direct application to the facts here and disagree with the ma-
jority’s attempts to distinguish them. With respect to Kal-Die, there, as
here, the changes are routine scheduling changes and the employer had
not varied from its past practice in making such changes. Further, the
fact that the union in Kal-Die had not attempted to discuss the change is
not, in my view, critical to the Board’s finding that the employer’s ac-
tions there were lawful. This is evidenced in the citation to Kal-Die in
KDEN. With respect to KDEN, once again, there, as here, the record
established that frequent changes were the norm and thus, on that basis,
the employer’s continuation of that practice was found lawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 352
ployees for time worked and gave its employees premium
pay to compensate for working an extended midday shift
without a break.3 Finally, the Respondent never paid its
employees for time not worked, specifically including
lunchbreaks. Additionally, there is nothing to controvert
the Respondent’s regional human resources manager’s
testimony that, even after August, 1998, if an employee
was asked to work through what would otherwise be his
lunchbreak that employee would be compensated accord-
ingly with 30 minutes of premium pay.
In sum, there is no evidence in the record that the Re-
spondent ever paid employees for time not worked, what-
ever the reason, or ever scheduled its drivers during times
the General Motors’ production line was not running. The
issue is simply whether the Respondent’s conduct in ef-
fecting the August 1998 schedule change to continue
these practices was unlawful because it was accomplished
without bargaining. I conclude it was not.
The Respondent’s alteration of its midday scheduling
was a routine modification consistent with these past
practices and thus did not violate Section 8(a)(5) and (1)
of the Act.4

Katherine Chahrouri, Esq., for the General Counsel.
Claud L. McIver, Esq., Keith B. Romich, Esq., and Keith A.
Watts, Esq., for the Respondent.
Waymon Stroud, Assistant Business Agent, for the Union.

BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is a
unilateral change in the practice of paying employees for their
lunchbreak case. At the close of a 2-day trial in Atlanta, Geor-
gia, on February 17, 1999, I rendered a Bench Decision in favor
of the General Counsel (the General Counsel) thereby finding a
violation of 29 U.S.C. § 158(a)(5) and (1). This certification of
that Bench Decision, along with the Order that appears below,
triggers the time period for filing an appeal (exceptions) to the
National Labor Relation Board (the Board). I rendered the
Bench Decision pursuant to Section 102.35(a)(10) of the Na-
tional Labor Relations Board’s Rules and Regulations.

3 In response to the majority’s determination that the loss of premium
pay was a deviation from past practice, I note that premium pay had
been given to the unit employees only because the drivers were forced to
work what was in effect “midday overtime” because the General Motors
facility they served ran without a break. Thus, in complete conformity
with past practice, when the General Motors facility instituted
lunchbreaks, Respondent followed the practice and no longer owed its
employees a premium for overtime no longer worked. In fact, had the
Respondent maintained a policy of paying the drivers premium pay in
lieu of a lunchbreak in the face of the General Motors’ change, this
would have been a deviation from the Respondent’s practice.
4 The majority suggests that the Respondent argues that its sole cus-
tomer’s reduced demand and the bona fides of its need should permit it
to omit bargaining. I do not interpret the Respondent’s arguments in this
way. The Respondent’s argument, which I accept, rests on its consistent
past practice.
For the reasons stated by me on the record at the close of the
trial, and by virtue of the prima facie case established by the
Government, a case not credibly rebutted1 by Mackie Automo-
tive Systems (Company). I found the Company violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations Act (the
Act), when on or about August 3, 1998, it unilaterally discon-
tinued its practice of paying employees for their lunchbreak.
More specifically the core issue decided centered around
whether the unilateral action by the Company on or about Au-
gust 3, 1998, regarding its discontinuing to pay for lunchbreak
for its unit employees was in fact a change or simply a return to
status quo by the Company. The undisputed2 evidence estab-
lished it was a change. The Company had, from its inception in
mid-1996, paid its unit employees from the time they com-
menced the workday until they concluded the workday (9-1/2
hours) without any unpaid time. The Company had paid its
unit employees from its inception for 30 minutes of each work-
day at a premium rate (1-1/2 times the hourly rate) for time that
would have been their lunchbreak. The evidence established
that on or about August 3, 1998, the Company unilaterally,
without notification to or bargaining with the Union, ceased
doing so. This was at a time after the Union had been certified
(a Certification of Representative issued on February 27, 1997)
as the collective-bargaining agent of the unit employees. I
concluded lunchtime pay was a mandatory subject of bargain-
ing. See, e.g., Van Dorn Machinery Co., 286 NLRB 1233
(1987). Applying settled law that when employees become
represented by a collective-bargaining agent, their employer
may no longer make unilateral changes in wages, hours, and
terms and conditions of employment as it was privileged to do
before its employees opted for union representation, I con-
cluded the Company had, by its unilateral action, violated Sec-
tion 8(a)(5) and (1) of the Act. NLRB v. Katz, 369 U.S. 736
(1961).
I certify the accuracy of the portion of the transcript, as cor-
rected,3 pages 229 to 243, containing my Bench Decision, and I
attach a copy of that portion of the transcript, as corrected, as
“Appendix A.”
CONCLUSIONS OF LAW
Based on the record, I find the Company is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act; that it violated the Act in the particulars and
for the reasons stated at trial and summarized above and that its
violations have affected and, unless permanently enjoined, will
continue to affect commerce within the meaning of Section 2(2)
and (6) of the Act.
1 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
2 The operative/essential facts were stipulated, admitted, and/or were
uncontested. In the factual narrative I attributed certain facts to certain
witnesses only for clarification; all facts set forth were credited.
3 I have corrected the transcript by making physical inserts, cross-
outs, and other obvious devices to conform to my intended words,
without regard to what I may have actually said in the passages in ques-
tion.
MACKIE AUTOMOTIVE SYSTEMS 353
REMEDY
Having found that the Company has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found the Company violated Section 8(a)(5) and (1)
of the Act by unilaterally discontinuing its practice of paying
employees for their lunchbreak, it is recommended the Com-
pany be ordered to cease and desist from refusing to meet and
bargain with the Union with regard to its decision to discon-
tinue paying its bargaining unit employees for their lunchbreak.
It is recommended the Company be ordered to reinstate its
practice of paying its bargaining unit employees for their
lunchbreak in the manner that existed prior to August 3, 1998.
It is recommended the Company be ordered to make all af-
fected bargaining unit employees whole for any loss suffered
by them as a result of the Company’s unilateral decision to
discontinue paying its bargaining unit employees for their
lunchbreak, as prescribed in Ogle Protection Service, 183
NLRB 682 (1970), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). Finally, I recom-
mended the Company be ordered, within 14 days after service
by the Region, to post an appropriate Notice to Employees,
copies of which are attached hereto as “Appendix B” for a pe-
riod of 60 consecutive days in order that employees may be
apprised of their rights under the Act and the Company’s obli-
gation to remedy its unfair labor practices.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Company, Mackie Automotive Systems, Norcross,
Georgia, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Failing and refusing to meet and bargain with Teamsters
Local Union 728, AFL–CIO regarding its decision to discon-
tinue its practice of paying employees for their lunchbreak.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Reinstate its practice, which existed prior to August 3,
1998, of paying its unit employees for their lunchbreak.
(b) Make whole all affected unit employees, in accordance
with the remedy section of this Bench Decision, for all mone-
tary losses suffered by our unit employees as a result of the
above described unilateral change in our paid lunchbreak pol-
icy.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
sonnel records and reports, and all other records necessary to
analyze the amount of monetary loss due under the terms of this
Order.
(d) Within 14 days after service by the Regional Director of
Region 10 of the National Labor Relations Board, post at its
Norcross, Georgia facility, copies of the attached notice marked
“Appendix B.”5 Copies of the notice, on forms provided by the
Regional Director for Region 10 after being signed by the
Company’s authorized representative, shall be posted by the
Company and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that during the pendency of these pro-
ceedings the Company has gone out of business or closed the
facility involved in these proceedings, the Company shall du-
plicate and mail, at its own expense, a copy of the notice to all
employees in the Norcross, Georgia area, employed by the
Company at any time since August 3, 1998.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Company has taken to comply.
229
APPENDIX A
THIS IS MY DECISION
The charge in this matter was filed by the Union on or about
August 31, 1998, and thereafter timely served on the Company.
Mackie Automotive Systems, hereinafter, the Company, is a
Georgia corporation with an office and place of business lo-
cated in Norcross, Georgia. Where it is engaged in the business
of providing and delivering automotive parts to the General
Motors Corporation Doraville, Georgia Assembly Plant. At all
times material herein the Company at it’s Norcross, Georgia
facility purchased and/or received goods valued in excess of
fifty thousand dollars ($50,000.00) from suppliers located out-
side the State of Georgia.
The evidence establishes, the parties stipulated, and I find the
Company is an employer engaged in commerce within the
meaning of Section 2(2) (6) and (7) of the National Labor Rela-
tions Act as Amended, hereinafter referred to as the Act.
The evidence establishes, the parties stipulated, and I find
that Teamster Local Union 728, AFL–CIO, hereinafter referred
to as the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
The parties stipulated all full time supply drivers employed
by the Company at its Norcross, Georgia facility, but excluding
all other employees, office clerical employees, guards, and
supervisors, as defined in the Act, constitute a
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 354
230
unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act. The parties admitted
and/or stipulated that at all times since February 27, 1997 the
Union, by virtue of Section 9(a) of the Act, has been, and is, the
exclusive bargaining representative of the employees in the unit
just described for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment, and other
terms and conditions of employment.
If it is not clear, the certification of representative for the Un-
ion issued on February 27, 1997.
The parties stipulated that at various times material herein
during the months of April 1997 through the present the Com-
pany and the Union have met for the purpose of engaging in
negotiations with respect to wages, hours, and other terms and
conditions of employment.
The evidence establishes, the parties stipulated, and I find
that Human Resource Manager Robert Surowiec is an agent
and supervisor of the Company within the meaning of Section
2(13), and 2(11) of the Act.
The evidence establishes the Company and Union negotia-
tors arrived at tentative collective bargaining agreements ap-
proximately on or about August 12, 1997, and on or about Au-
gust 25, 1998. The bargaining unit membership, however,
rejected and/or failed to ratify both
231
tentative agreements.
The Government has alleged in its Complaint and contends
that on or about August 3, 1998 the Company discontinued its
practice of paying its employees for their lunch beak. The
Government further contends or alleges that this change affects
the terms and conditions of employment of employees in the
bargaining unit that I have earlier described. The Government
contends the Company made the change unilaterally without
notice to, or consultation with, the Union.
The Company, on the other hand, asserts and/or contends no
practice or policy was changed. The Company contends it had
never paid for lunch for its employees. The Company contends
there was only a scheduling change that was brought about by
changes at the General Motors Assembly Plant, Doraville,
Georgia. General Motors no longer requiring its employees to
load and/or unload during lunchtime any deliveries made to the
General Motors Doraville, Georgia Assembly Plant.
The Company contends herein that it simply effectuated a
scheduling change to correspond to the scheduling changes
General Motors had made. The Company herein contends it
simply went back to the status quo that had always been, that it
did not pay lunch for its employees at any time. That it only
paid for employees when they were actually working. When
the time came that they were no longer working during what
otherwise would have been a time for a lunch break, they
232
were not paid for that.
A factual background is necessary for this case. According
to Human Resources Manager Surowiec General Motors is the
only customer of the Company served from its Norcross, Geor-
gia facility, which is the only facility of the Company involved
herein. The Company is located five point four (5.4) miles, or
approximately twenty (20) minutes driving time, favorable
traffic conditions, from General Motors Doraville, Georgia
Assembly Plant to the Company herein.
The Company herein employs sixteen (16) of its own supply
delivery drivers, which drivers constitute the bargaining unit
involved herein. There are approximately two hundred (200)
other employees that work at the Company’s Norcross, Georgia
facility, and are supervised by the Company herein. However,
these approximately two hundred (200) individuals are General
Motors’ employees who are represented by the United Auto-
mobile Workers Union in a bargaining unit not at issue herein.
Prior to approximately on or about August 1996 the work
performed by the Company herein was performed by General
Motors itself. General Motors Doraville, Georgia Materials
Director testified that General Motors became concerned with
the amount of expenditure it was necessary to produce a unit.
Meaning, an automobile. And that as a result of that General
Motors began to focus on its core business of putting parts on
and producing automobiles. General Motors went to a Tier 2
233
Suppliers system.
Company Human Resources Manager Surowiec testified that
with General Motors seeking to be more competitive in the
automobile industry it went to what, in shorthand purposes,
may be referred to as “outsourcing”. Surowiec testified Gen-
eral Motors went to outsourcing for two primary reasons. Gen-
eral Motors wanted to reduce the number of General Motors
employees in producing cars, and to free up floorspace at its
General Motors Assembly Plant, in this particular instance the
plant located at Doraville, Georgia.
According to Human Resources Manager Surowiec the
Company operates as a “just in time” parts delivery supplier to
General Motors Assembly Plant. According to Surowiec the
Company receives at its Norcross, Georgia facility parts pur-
chased from various suppliers around the United States, and
perhaps the world. These parts are brought to the Company’s
facility, such as gas tanks, headliners, carpets, struts, radiators,
instrument panel harnesses, in-dash computer equipment and
the like.
According to Human Resources Manager Surowiec, when an
automobile body cavity leaves the Paint Department at General
Motors Doraville, Georgia Assembly Plant a broadcast is sig-
naled to the Company’s Canadian headquarters, as well as the
Company’s Norcross, Georgia location. Surowiec testified that
as soon as the parts need is signaled to the Company an
234
employee, termed by him as “a runner”, employed by General
Motors and represented by the United Auto Workers, walks
around the facility pulling the needed parts and placing them in
racks. The racks are then loaded by General Motors forklift
operators onto the Company herein’s trucks. It is at this point
that the sixteen (16) supply drivers in the Teamster Union bar-
gaining unit herein come into the situation.
MACKIE AUTOMOTIVE SYSTEMS 355
The Company’s trucks are loaded at the Company facility by
General Motors employees, and they are offloaded at the Gen-
eral Motors Doraville, Georgia Assembly Plant by General
Motors employees. The employees loading and offloading the
trucks are represented by the United Auto Workers labor or-
ganization.
The General Motors Doraville, Georgia Assembly Plant pro-
duces approximately one thousand one hundred and forty-eight
(1,148) units, or automobiles, per day.
Actually, I think the automobile produced is a sports utility
type vehicle, but not critical to this case.
According to Human Resources Manager Surowiec, the
Company’s supply drivers do just that. They drive the delivery
trucks. They have nothing to do when the trucks are being
offloaded by General Motors’ employees at the General Motors
Assembly Plant. Likewise, when the trucks are being loaded at
the Company here they are loaded by General Motors employ-
ees and the supply drivers do not help load the trucks.
235
The only other function mentioned for the drivers herein, that
they perform at the Company’s facility is, they replace batteries
in the forklift trucks on the occasions when the batteries are
need to be replaced. The forklifts themselves are operated by
General Motors employees.
Prior to August 3, 1998, General Motors’ employees at the
Company’s facility herein, and at General Motors Doraville,
Georgia Assembly Plant would load and offload the Company
supply delivery trucks even during what was General Motors’
employees lunch times. Hence, according to Human Resources
Manager Surowiec, the Company herein’s supply delivery driv-
ers were paid from the time they commenced work until the
time they left work for each shift.
According to Surowiec, General Motors communicated to
the Company herein that it would no longer ship or receive
parts during the General Motors employees’ thirty (30) minute
lunch period. Surowiec testified that because General Motors
changed its schedule the Company herein was compelled to
follow suit and change its schedule. Surowiec explained that if
General Motors employees were not loading or unloading the
Company’s trucks at the time they were at lunch, then there
was no need for the drivers in this Company to be working.
Therefore, the Company herein provided its employees a
fixed lunch time, but without pay. According to Surowiec, the
Company’s policy and practice was always not to pay for lunch
236
time unless directed to work, or the drivers needed to be on
call. Surowiec explained that all that took place after August 3,
1998 was merely a scheduling change. Surowiec added, the
change was driven by General Motors scheduling, in that when
General Motors did not work there was no need for the supply
drivers of the Company herein to work.
Company employee supply driver Cloack testified that from
September 3, 1996 until August 3, 1998 no lunch break was
given, and the employees were paid for thirty (30) minutes at
time and a half pay, which time could have been utilized for a
lunch period. According to the testimony of Cloack, the loss
for each driver amounted to approximately two hundred dollars
($200.00) per month.
Union Assistant Business Agent and Local Vice President
Waymon Stroud testified, the unit employees were concerned
in negotiations about, among other items, employees working
through lunch breaks. Stroud stated lunch breaks was an item
discussed during contract negotiations. Union Assistant Busi-
ness Agent Stroud testified the Company did not discuss with
the Union implementing the August 3, 1998 change of where
the supply delivery drivers were no longer paid for the time
they commenced work until they left work. But rather, were
provided a specific thirty (30) minute lunch break to correspond
with the General Motors United Auto Workers represented
employees thirty (30) minute lunch break.
237
Stroud testified the Union demanded bargaining, but the
Company had already implemented what he termed was a uni-
lateral change without consulting with the Union about the
implementation. Union Assistant Business Agent Stroud ac-
knowledged that prior to August 3, 1998 the unit drivers were
paid the entire workday in that they had no lunch break time.
He also acknowledged that the supply drivers work schedule
mirrored the General Motors employees hours of work.
General Motors Doraville, Georgia Assembly Plant Materi-
als Director testified, General Motors’ efforts to reduce over-
time, and perhaps other non-productive time, had from his area
of concern alone, reduced overtime expenses from twenty thou-
sand dollars ($20,000.00) per day to five hundred dollars
($500.00) per day.
Did the Company’s actions herein violate the Act as a unilat-
eral change in working conditions for unit employees?
Namely, the supply delivery truck drivers, or was what oc-
curred here a return to the status quo and merely a scheduling
change, not a practice or policy change of the Company.
First, let me state what may be apparent, legal principles by
which the case will be governed. The parties, I do not think,
dispute that if what happened constituted a unilateral change on
the part of the Company, then it would be unlawful, and they
would have violated the Act if they did not negotiate
238
with the Union about the implementation of the change. I don’t
thing there’s any question that they did not negotiate with the
Union about it. However, if what took place was merely a
return to the status quo, and there was no change, then the
Company would be privileged to continue to do that. That is,
return to its original status quo, and do so without having vio-
lated the Act.
In that respect it is well settled law that when employees be-
come represented by a collective bargaining agent, their em-
ployer may no longer make unilateral changes in wages, hours,
and terms and conditions of employment as it was privileged to
do before the employees opted for Union representation. That
principle would be found among other places, in NLRB v. Katz,
369 US 736, a 1962 case.
Accordingly, if an employer is contemplating any changes
affecting bargaining unit personnel, it has a duty to notify the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356
bargaining agent of the proposed changes, afford that represen-
tative an opportunity to bargain over the proposal, and if bar-
gaining is requested, meet with the representative and bargain
collectively in good faith concerning the proposal before put-
ting such a proposal into effect.
In order for a duty to rise that they bargain about a change
the change must be about a mandatory subject of bargaining. Is
compensation for a lunch period a term and condition of em-
ployment such that it would be a mandatory
239
subject of employment? I don’t think there’s any dispute that it
is. And among one of the cases cited by counsel for General
Counsel that principle can be found, among other places, in
Van Dorn Co. Machinery, reported at 286 NLRB 1233, and
specifically at 1240.
If, on the other hand, the changes that were made herein, for
lack of a better way to describe them, was really a movement
back to what had previously been the case, then the Company
could do so and be supported by the cases that the Company
cites. In particular, KDEM Broadcasting Co. reported at 225
NLRB 25, specifically at 34 and 35, a 1976 case; and Kal-Die
Casting Corporation, 221 NLRB 1068, more specifically at
1071 and 1072, a 1975 case.
I am persuaded that the Company herein violated the Act as
alleged in the Complaint for the following reasons. Always
from the inception of this Company, the Company paid pre-
mium pay for the one half hour time that the employees could
otherwise have been on a lunch break, or lunch period.
You have the inception of the Company probably taking
place in August of 1996. In February, more specifically, Feb-
ruary the 27th of 1997, you have the advent of the Union. And
from that point forward the Company is compelled to bargain
with the Union in good faith about any changes. That the
Company did not do. When the Union first learned of the im-
plementation the change had already been made. The Union
240
sought bargaining, and was told that it was not a bargainable
matter, that they were privileged to do so in that they had never
paid for work not performed. And that it was not a change, it
was merely a scheduling situation.
I am persuaded contrary, that it was a change. And that no
defense has been established by the Company that would justify
its actions, or relieve it from its responsibility to bargain over
that subject matter.
The Company contends that the status quo is the key, and
that the status quo herein was these four factors. That the
Company only paid for time worked, that the Company never
paid for time not worked, that the Company herein’s schedule
was the same as General Motors’ schedule, and that they only
paid this premium because the employees could not take a
lunch break. That’s the key on which this case turns, in my
opinion, is Item 4. It had always been, from the inception of
this Company, its practice to pay a premium because the em-
ployees could not take a lunch break.
You have the Union come along as the representative of
these employees, and then you have a change from that practice
where a paid premium was provided the employees because
they could not take lunch. The fact that this change was
prompted by a bona fide scheduling change of General Motors,
and was in no way discriminatorily motivated does not remove
it from the umbrella of bargaining obligations. Because of the
241
intervention of the bargaining representative the Company
could no longer continue to unilateral exercise its discretion
with respect to working employees nine and a half hours and
paying them premium pay for what otherwise would have been
the employees’ lunch time without negotiating with the Union.
It is no defense to a finding of a violation of the Act that the
decision herein, as I have decided, will have profound effect on
the Company herein, as well as on General Motors. That may
well be the fact, but standing alone that does not warrant a dis-
missal of the allegations herein. How easily all of this could
have been avoided had the Company simply negotiated on this
particular matter before it went forward and implemented it.
Even in the two tentative agreements that are in the record
reached between the Union’s negotiator and the Company’s
negotiator the Company’s position prevailed. Unfortunately
the employees did not ratify them.
The two cases that the Company would rely on for their po-
sition that this is a return to the status quo are distinguishable.
In the KDEN Broadcasting Co. case, for example, the record is
replete with evidence that the working schedules of the em-
ployees were frequently changed by the Company before the
advent of the Union. And, that the changes made were simply
to follow the same pattern they had exercised earlier.
242
In the current case, the case before me, the Company had al-
ways paid a premium for the thirty (30) minutes that would
have been available for the employees as a time for lunch, or a
lunch break.
In the Kal-Die Casting Corporation case, for example,
where the hours of overtime available were dramatically re-
duced and the Company had always used overtime in a manner
consistent with a need, they were privileged to do so without
violating the Act on that particular point. But here, without
sounding redundant, this Company had always, without fail,
paid a premium of thirty (30) minutes at time and a half for the
employees at a time when the employees could otherwise have
been on break.
The key and controlling factor here is the intervention of the
Union between what the Company had always done, and what
it unilaterally changed to. And without bargaining with the
Union before implementing it, the Company violated Section
8(a)(1) and (5) of the Act. And I so find.
I will order that the Company not refuse to meet and bargain
with the Union regarding premium payments for what other-
wise would allow a time for employees to take lunch breaks.
And that the Company will, on request of the Union, reinstate
the payments, and negotiate with the Union on the subject mat-
ter. And I will order that the Company make whole affected
employees for any monetary loss they suffered as a
MACKIE AUTOMOTIVE SYSTEMS 357
243
result of the unilateral change.
In due time the court reporting service will serve on me, and
any party requesting a copy, a copy of the transcript. At that
point I will certify to the Board the pages of the transcript that
constitute my decision. It is my understanding that the time for
taking exceptions or appealing my decision runs from my certi-
fication of the decision. However, I would invite your attention
to the Board’s Rules and Regulations with respect to taking
exceptions in this case.
It has been a pleasure to hear this case. I urge the parties, as
I have throughout this proceeding, to work this matter out
among themselves in a manner that is acceptable to all sides.
And with that, this trial is closed.
(Whereupon, the hearing in the above entitled matter was
closed.)

APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT refuse to meet and bargain with Teamsters
Local Union 728, AFL–CIO with regard to our decision to
discontinue our practice of paying our bargaining unit employ-
ees for their lunchbreak. The bargaining unit is:
All full-time supply drivers employed by the Company at its
Norcross, Georgia facility, but excluding all other employees,
office clerical employees, guards, and supervisors as defined
in the Act.
WE WILL NOT In any like or related manner interfere with,
restrain, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL reinstate our practice that existed prior to August
3, 1998, of paying our unit employees for their lunch break.
WE WILL make whole all affected bargaining unit employ-
ees for any monetary loss they suffered as a result of our unilat-
eral change regarding paying our unit employees for their
lunchbreak.
MACKIE AUTOMOTIVE SYSTEMS