Proctor Manufacturing Corp.

National Labor Relations Board - Board Decisions

Jun 16, 1961

131 N.L.R.B. 1166 (N.L.R.B. 1961)

1166 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. The operations of Respondent occur in commerce within the meaning of Sec-
tion 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. By discriminating in regard to the tenure of employment of Robert J. English,
the Respondent has engaged in and is engaging in an unfair labor practice within
the meaning of Section 8 (a) (3) of the Act.
4. By the foregoing conduct, and by requesting an employee to engage in the
surveillance of its employees, by threatening its employee with discharge if he did
not engage in the aforesaid surveillance , by promising benefits to its employee if
he did engage in the aforesaid surveillance,` and by interrogating employees with
respect to their union sentiments and with respect to the outcome of the pending
union election the Respondent has interfered with, restrained , and coerced its
employees in the exercise of their rights guaranteed by Section 7 of the Act and
thereby has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]
Proctor Manufacturing Corporation and Union de Trabajadores
de la Industria Electronica y Ramas Anexas de Rio Piedras,
FLT. Case No. 24-CA-1350. June 16, 1961
DECISION AND ORDER
Upon charges duly filed by Union de Trabaj adores de la Industria
Electronica y Ramas ,Anexas de Rio Piedras, FLT, herein called the
Union, the General Counsel of the National Labor Relations Board
by the Regional Director for the Twenty-fourth Region issued a com-
plaint dated October 7, 1960, against Proctor Manufacturing Corpo-
ration, herein called the Respondent, alleging that the Respondent
had engaged in and was engaging in certain unfair labor practices
affecting commerce within the meaning of Section 8(a) (1) and (5)
and Section 2(6) and (7) of the Act, as amended. Copies of the
charge, complaint, and notice of hearing before a Trial Examiner
were duly served upon the Respondent.
With respect to the unfair labor practices, the complaint alleges in
substance that the Respondent, after executing a collective-bargaining
agreement with the Union, which had been previously certified, there-
after established new work production quotas and piecework wage
rates based upon such quotas without giving notice to or consulting
with the Union, and has refused to bargain on this matter with the
Union.
On November 16, 1960, all parties to this proceeding entered into a
stipulation of facts and jointly requested the transfer of this proceed-
ing directly to the Board for findings of fact, conclusions of law, and
131 NLRB No. 142.
PROCTOR MANUFACTURING CORPORATION 1167
for the issuance of a Decision and Order based thereon. The parties
have waived their rights to a hearing before a Trial Examiner and the
issuance of an Intermediate Report and Recommended Order.
On November 28, 1960, the Board granted the request of the parties
to transfer the case to the Board. Upon the basis of the stipulation
of facts and the entire record in the case, including the briefs, the
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANY
The Respondent Employer, a Delaware corporation, maintains its
principal office and place of business at Rio Piedras, Puerto Rico,
where it is engaged in the manufacture and distribution of electrical
appliances. In the course of its manufacturing operations at the Rio
Piedras plant, the Respondent manufactured, sold, and shipped from
such plant, finished products valued in excess of $50,000 to points out-
side the Commonwealth of Puerto Rico.
We find that the Respondent is engaged in commerce within the
meaning of the Act and that it will effectuate the policies of the Act
to assert jurisdiction in this case.
II. THE LABOR ORGANIZATION INVOLVED
Union de Trabaj adores de la Industria Electronica y Ramas Anexas
de Rio Piedras, FLT, is a labor organization as defined in Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On September 22, 1958, the Union was certified by the Board as the
exclusive bargaining representative for a production and maintenance
unit at the Respondent's Rio Piedras plant. The Union thereupon
presented to the Respondent its first contract proposal which con-
tained a section on minimum wages, one of whose paragraphs reads
as follows :
The Employer likewise agrees to increase in no less than 10%
the present prices of the piecework and of the work per unit
without in any way altering said piecework quotas or work per
unit; provided that when because of imperative reasons of the
industry it becomes necessary to revise the piecework quotas or
the work per unit, said revision would be conducted only by
means of a study carried out by a committee composed of two
representatives of the Employer and two representatives of the
Union appointed by the latter. Any revision to this effect shall
take into consideration the different concurrent factors in the
work.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent submitted a counterproposal in which it did not
respond directly to the provision quoted above but which did provide,
with respect to minimum wages, that pieceworkers would be paid a
-certain minimum wage per hour. A few days later Respondent sub-
mitted a management rights clause which the Union eventually agreed
to and which was incorporated into the agreement finally executed
by the parties on March 4, 1959. This clause reads as follows :
The parties recognize that the right of management to direct and
control the business and affairs of the Employer, and its right to
control, supervise and administer the plant of the Employer, are
functions belonging exclusively to the Employer, and nothing in
this agreement will be interpreted in such a manner as to deprive
the Employer of said management rights unless said interpreta-
tion is expressly required by the provisions of this agreement.
During a collective-bargaining session in mid-November, the Union
presented a written memorandum summarizing the agreements
reached as of that date. The paragraph on minimum wages is set out
.below :
Effective from the beginning of the negotiations of our proposed
contract, the Employer shall grant a salary increase of 25 cents
over the present salary to the employees covered by same, who
are employed or may be employed by the Employer and who work
or may work on a piecework as well as on an hourly basis. All
the other paragraphs of this article in our proposed contract
continue up for discussion.
,Some months later, while bargaining continued, the Respondent sub-
mitted a new proposal containing no reference to work production
quotas or to piecework rates but presenting a minimum wage pro-
posal, which, with some modifications, eventually became article XII
,of the contract. It set forth neither minimum production quotas nor
the piecework rates which were to be in effect when the contract was
executed, nor how the existing quotas and rates were to be revised,
nor for the establishment of new quotas and rates either unilaterally
or by mutual agreement of the parties.
The stipulation of facts, upon which the foregoing is based, also
indicates that during the collective-bargaining negotiations there was
no discussion of the Union's demand, contained in its first proposal,
that production quotas and piecework rates could be revised only after
joint employer-union study. Furthermore, the parties agree that the
Respondent did not expressly claim during the negotiations that the
matter of establishing work quotas and piecework rates was within
its management prerogative, or that it could act unilaterally with re-
spect thereto. Finally, according to the stipulation of facts, the Union
PROCTOR MANUFACTURING CORPORATION 1169
never stated that it was waiving its claimed right to participate with
the Respondent in the establishment of quotas and rates.
After the execution of the agreement, as Respondent has. brought,
out new models of its products or has changed its method of produc-
tion, it has conducted time studies of the new operations and then,
without notice to or consultation with the Union, has established new
production quotas and piecework rates.' The Union protested these
unilateral changes and requested bargaining with respect thereto.
These demands have been rejected by the Respondent.
It is the General Counsel's contention that the establishment of
work production quotas and piecework wage rates are matters on
which the Respondent is required to bargain with the Union, and that
the Union has not waived its right to bargain thereon. The Respond-
ent does not dispute that the matters on which the Union sought to
bargain with it are generally mandatory subjects of bargaining, but
it does contend that the Union waived that right for the dura-
tion of their bargaining agreement. It relies on the management
rights clause of the contract by which all management rights not
given up in the contract are expressly reserved to it. It also argues
that the wage article of the contract contains the complete agreement
of the parties on that subject, and since piecework rates are not men-
tioned therein, that it was the intention of the parties that the estab-
lishment of such rates, and the production quotas on which they are
based, would remain a management right for the term of the contract.
The Board's rule, applicable to negotiations during the contract
term with respect to a subject which has been discussed in precontract
negotiations but which has not been specifically covered in the result-
ing contract, is that the employer violates Section 8(a) (5) if, during
the contract term, he refuses to bargain or takes unilateral action
with respect to the particular subject, unless it can be said from an
evaluation of the prior negotiations that the matter was "fully dis-
cussed" or "consciously explored" and that the Union "consciously
yielded" or clearly and unmistakably waived its interest in the mat-
ter.' We agree with the General Counsel that neither the negotiations
nor the contract itself establishes that the Union has waived its statu-
tory right to bargain over the matters in dispute.
At two points in the negotiations, once directly and once by implica-
tion, a question was raised as to the Union's role in the revision of
piecework quotas. Thus, in its first contract proposal, the Union
offered to negotiate on the establishment of a joint employer-union
committee to revise such quotas when, in its words, "imperative rea-
'At no time has Respondent changed piecework rates or production quotas unless either
the method of production or the component parts of the manufactured products were
changed or eliminated
The Press Company, Incorporated , 121 NLRB 976
599198-62-vol 1..^,1--'i •-^)
1170 DECISIONS *OF NATIONAL LABOR 'RELATIONS BOARD
sons of the, industry" made such revision a necessity; and, during a'
subsequent bargaining session , in summarizing the agreements' already!
reached on the computation of minimum wages, the Union noted' that
its' other wage! proposals (among which was revision of work 'quotas'
through a joint,.committee), were still' 'up for discussion. -W6e note
initially:that'the Union's proposal did not clearly refer 'to changes in'
piecework quotas • or wage rates of new or changed jobs but seemed
rather to be concerned with overall revisions called for by 'changes in
the industry. But,:in any event, the parties never came to grips with'
the concrete issue of i whether the Union could insist on' negotiating
changes in specific piecework rates following on changes in methods
of production. 'The question was not in' fact raised by either party,
and whether this was due to oversight or to a failure to recognize its
eventual importance during the contract period is unexplained and,
in our view, 'not especially significant. What is significant is that
the matter was not fully discussed or consciously explored and that
the Union did not waive its interest and concern in the matter.
The contract's wage provisions did not set out the piecework rates,
work quotas, or hourly rates for individual jobs or classifications.
As for hourly paid employees, article XII provided for 10-cent per
hour increases during each of the 2 years of the agreement. As for
piece workers, article XII provided that their bonuses would be com-
puted on the basis of a specific hourly figure. They were also guar-
anteed a minimum wage which was to be computed by multiplying
the hours worked by a specific hourly rate. The article also recog-
nized the right of the employer to grant individual wage increases
on a merit basis. Thus, so far as the pieceworkers' wages are con-
cerned, article XII merely prescribed the method of computing the
minimum wage and bonus, but without identifying or enumerating
piecework rates. Under Section 8(d) of the Act the method of
computing the minimum wage and bonus could not be made the sub-
ject for renegotiation by either party during the term of the contract.
These two items, however, do not exhaust or exclude other elements
which go to make up wage determinations, and these necessarily re-
mained open for negotiations . To accept the employer's contention
that article XII and the management rights clause represent the
full and final agreement of the parties with respect to wage deter-
fninations other than minimum wages and bonuses would be to dis-
regard "the familiar concept of collective bargaining as a continuing
and developing process by which the relationship between an em-
ployer and the representative of his employees is to be molded." 8
The cases relied on by the Respondent are clearly distinguishable.
In Speidel Corporation, 120 NLRB 733; in N.L.R.B. v. Nash-Finch
3 The Press Company, incorporated, supra, at 978 ; N.L R.B. v Jacobs Manufacturing
Company, 196 F. 2d 680 (C.A. 2).
PROCTOR MANUFACTURING CORPORATION 1171
Company, 211 F. 2d 622 (C.A. 8) ; and in The Berkline Corporation,
123 NLRB 685, there were in fact effective waivers by the unions of
their previously maintained positions, and the contracts disclosed the
conscious acquiescence of the unions with the position taken by the
employers during negotiations. In Leisure Lads, Inc., 124 NLRB
431, the Board adopted pro forma the Trial Examiner's recom-
mended dismissal of a Section 8 (a) (5) allegation, based on the em-
ployer's failure to furnish the union with provisional piecework rates
when the union had in effect limited its request for information only
to the final rates. In the instant case, on the contrary, the stipulation
of the parties reveals that the right to change its work quotas and
rates during the contract term was never specifically claimed by the
employer or waived by the Union.
Accordingly, we conclude that the Respondent violated Section
8 (a) (5) and (1) of the Act by refusing to bargain with the Union
during the term of the contract on changes in piecework rates and
work production quotas.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, oc-
curring in connection with the operations of the Respondent Com-
pany set forth in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States and Territories, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the .Respondent has engaged in unfair labor
practices, we shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been stipulated that the Union represented a majority of
the employees in the appropriate unit described below. Having
found that the Respondent refused to bargain collectively with the
Union, we shall order that the Respondent, upon request, bargain
with the Union as the exclusive representative of the employees in
the appropriate unit with respect to the changing of piecework rates
and production quotas.
CONCLUSIONS OF LAW
1. The Respondent, Proctor Manufacturing Corporation, is en-
gaged in commerce within the meaning of the Act.
2. Union de Trabajadores de la Industria Electronica y Ramas
Anexas de Rio Piedras, FLT, is a labor organization within the
meaning of Section 2 (5) of the Act.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. All of the Respondent's production and maintenance employees
at its plant at Rio Piedras, Puerto Rico , including group leaders,
quality control inspectors, quality control clerks, drivers, and in-
coming inspector , excluding administrative , executive, and profes-
sional employees , office clerical employees , watchmen, guards, and
supervisors as defined in the Act, constitute a unit appropriate for
the purposes' of collective bargaining within the meaning of Section
.9(a) of the Act.
4. The aforesaid labor organization was on July 16, 1960, and, at
all times thereafter, has been, the exclusive representative of all em-
ployees in such unit for the purposes of collective bargaining within
the meaning-of Section 9 (a) of the Act.
5. By refusing to bargain collectively with the aforesaid labor or-
ganization as the exclusive representative of its employees in an appro-
priate unit, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (5) of the Act.
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the Re-
spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Proctor Manufac-
turing Corporation, Rio Piedras, Puerto Rico, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Union de Trabajadores
do la Industria Electronica y Ramas Anexas de Rio Piedras, FLT, as
the exclusive representative of all its employees in the appropriate
unit with respect to changes in piecework rates and work production
quotas.
(b) Unilaterally, and without notice to Union de Trabajadores de
la Industria Electronica y Ramas Anexas de Rio Piedras, FLT,
changing piecework rates or work production quotas.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to'self-organization,
to form labor organizations, to join or assist Union de Trabajadores
de la Industria Electronica y Ramas Anexas de Rio Piedras, FLT, or
any, other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
PROCTOR MANUFACTURING CORPORATION 1173
tection, or to refrain from any or all of such activities, except to the
extent that such right may be affected by an agreement in conform-
ity with Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Union de Trabaj adores
de la Industria Electronica y Ramas Anexas de Rio Piedras, FLT, as
the exclusive representative of all the employees in the aforesaid unit
with respect to proposed changes in piecework rates and work pro-
duction quotas and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post in conspicuous places at its plant, including all places
where notices to employees are customarily posted, copies of the notice
attached hereto marked "Appendix." 4 Copies of said notice, to be
furnished by the Regional Director for the Twenty-fourth Region,
shall, after being duly signed by the Respondent's representative, be
posted by it immediately upon receipt thereof, and be maintained by
it for at least 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
notice is not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Twenty-fourth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
4 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with Union de
Trabajadores de la Industria Electronica y Ramas Anexas de Rio
Piedras, FLT, as the exclusive representative of all our employees
in the appropriate unit with respect to changes in piecework rates
and piecework quotas.
WE WILL NOT unilaterally, and without notice to Union de
Trabajadores de la Industria Electronics y Ramas Anexas de
Rio Piedras, FLT, change piecework rates or piecework quotas.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or 'assist
Union de Trabajadores de la Industria Electronica y Ramas
Anexas de Rio Piedras, FLT, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization, as authorized in Section 8(a) (3) of the National
Labor Relations Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL, upon request, bargain collectively with Union de
Trabaj adores de la Industria Electronics y Ramas Anexas de
Rio Piedras, FLT, as the exclusive representative of all employees
in the following bargaining unit, with respect to proposed
changes in piece-work rates and work production quotas, and, if
an understanding is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All our production and maintenance employees including
group leaders, quality control inspectors, quality control
clerks, drivers, and incoming inspectors, excluding adminis-
trative, executive, and professional employees, office clerical
employees, watchmen, guards, and supervisors as defined in
the Act.
PROCTOR MANUFACTURING CORPORATION,
Employer.
Dated---------------- By -------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
Mohican Trucking Company and Truck Drivers and Warehouse-
men Local 40, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , Petitioner.
Cage No. 8-RC-4000. June 16, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, hearings were held before Norman R. Prusa, hearing
officer. The hearing officer's rulings made at the hearings are free
from prejudicial error and are hereby affirmed.
131 NLRB No. 148.