The Bunker Hill Co.

National Labor Relations Board - Board Decisions

Dec 28, 1973

208 N.L.R.B. 27 (N.L.R.B. 1973)

THE BUNKER HILL CO.
The Bunker Hill Company and Local Union 7854,
United Steelworkers of America , AFL-CIO. Case
19-CA-6071
December 28, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 31, 1973, Administrative Law Judge
Irving Rogosin issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief and the General Counsel
filed a brief in opposition to the Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions 1 of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law, Judge as
modified below, and hereby orders that Respondent,
The Bunker Hill Company, Kellogg, Idaho, its
officers, agents, successors, and assigns, shall take the
actions set forth in the said recommended Order, as
so modified:
1. Delete paragraph 1(a) from the recommended
Order and substitute the following:
"(a) Unilaterally, and without prior notice to or
consultation with the Union, promulgating or insti-
tuting any incentive wage rules involving its employ-
ees in the appropriate unit described herein."
2. Substitute the attached notice for the notice
attached to the Decision of the Administrative Law
Judge.
I Chairman Miller concurs in the result but does not adopt all of the
rationale of the Administrative Law Judge relating to the effect of the
"zipper clause " He sees no need to reach that issue , since Respondent, by
Its "Memorandum of Understanding," dated May 30, 1972, committed
itself, in writing, to sit down with the Union to review and seriously consider
any proposed changes or modifications of "Incentive Rules for Stripping."
This, in the Chairman's view, was a clear recognition by the Company of an
obligation to bargain about the subject matter here in issue , notwithstanding
any existing zipper clause , and effectively estops the Company from raising
the zipper clause as a defense to its subsequent unilateral action as to
"Incentive Rules for Stripping "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
27
WE WILL NO? unilaterally, and without notice
to or consultation with Local Union 7854, United
Steelworkers of America, AFL-CIO, promulgate
or institute any incentive wage plan involving our
employees represented for collective-bargaining
purposes by that labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
to form labor organizations, to join or assist Local
Union 7854, United Steelworkers of America,
AFL-CIO, or any other labor organization, to
bargain collectively through representatives of
their own choosing, 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 Act.
WE WILL, upon request of Local Union 7854,
United Steelworkers of America, AFL-CIO,
formally rescind the "Incentive Rules for Strip-
ping," dated August 23 and August 31, 1972,
which we promulgated unilaterally.
The appropriate bargaining unit is:
All production and maintenance employees
employed by the Bunker Hill Company at its
operation in and around Kellogg, Idaho,
excluding any craft units heretofore certified
by the National Labor Relations Board
(such as electricians, carpenters, bricklayers,
boilermakers, and blacksmiths, plumbers,
pipefitters, steam fitters and lead burners,
and machinists), all supervisory, technical
and clerical employees, gatemen, office
clerical employees, guards and watchmen as
certified by the National Labor Relations
Board on August 12, 1970, Case 19-
RC-5370.
THE BUNKER HILL
COMPANY
(Employer)
Dated By
(Representative) (Title)
208 NLRB No. 17
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 10th Floor, Republic Building, 1511
Third Avenue, Seattle, Washington 98101, Tele-
phone 206-442-4532.
DECISION
STATEMENT OF THE CASE
IRVING RoGosiN, Administrative Law Judge: The
complaint, issued March 21, 1973, alleges that Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act,'
Specifically, the complaint alleges that, on or about
August 23, 1972, and August 31, 1972, Respondent,
without prior notice to or consultation with the Union, the
certified bargaining representative of Respondent's pro-
duction and maintenance employees in the appropriate unit,
unilaterally promulgated new incentive rules covering
certain of its unit employees, and thereafter, on September
11, 1972,2 without prior notice to or consultation with the
Union, unilaterally withdrew said incentive wage rules,
thereby refusing to bargain with the Union as exclusive
representative of the employees in an appropriate unit, and
engaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act, and interfering with, restraining,
and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act, in violation of Section
8(a)(1).
Respondent's answer, dated March 29, 1973, admits the
procedural and jurisdictional allegations of the complaint,
including the status of the Union as exclusive representa-
tive of the employees in the appropriate unit, but denies the
substantive allegations of the complaint. As affirmative
defense, Respondent alleges that (1) under the terms of the
collective-bargaining agreement in effect between the
parties, Respondent was justified in taking the unilateral
action; (2) that the dispute between the Employer and the
Union was subject to the grievance and arbitration
procedure provided for in the contract, and (3) that the
Employer had not been afforded a hearing within 5 days as
required by the "rules of the National Labor Relations
Board." 3
Hearing was held on June 26, 1973, at Coeur d' Alene,
Idaho. The General Counsel and Respondent were
represented by counsel; the Union was represented by the
president of the local. All parties were afforded full
opportunity to be heard, to examine and cross-examine
1 Designations herein are as follows: The General Counsel, unless
otherwise noted or required by the context, his representative at the hearing,
The Bunker Hill Company, Respondent, the Company or the Employer,
Local Union 7854, United Steelworkers of America, AFL-CIO, the
Charging Party or the Union; the National Labor Relations Act, as
amended (61 stat , 136, 73 stat 519, 29 U S. Relations Act, as amended (61
Stat. , 136, 73 Stat 519, 29 U S. C 151, et seq ), the Act, the National Labor
Relations Board, the Board The charge was filed on October 2, 1972
witnesses, to introduce oral and documentary evidence
relevant and material to the issues, to argue orally, and to
file briefs and proposed findings of fact and conclusions of
law. The parties waived oral argument, reserving their right
to file briefs. Pursuant to an extension duly granted, briefs
were filed by the General Counsel and Respondent, on
August 6, 1973. No proposed findings of fact or conclu-
sions of law have been filed by any of the parties.
Upon the entire record in the case and, based upon the
appearance and demeanor of the witnesses4 and the briefs,
which have been carefully considered, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, Respondent's answer admits, and
it is hereby found that The Bunker Hill Company,
Respondent herein, is, and at all times material herein has
been, a Delaware corporation, engaged at Kellogg, Idaho,
and vicinity in the mining, smelting, and refining of
nonferrous metals, and the manufacture of chemical
fertilizers.
During the 12 months preceding issuance of the
complaint, a representative period of Respondent's annual
operations, Respondent's volume of sales and services were
valued in excess of $500,000. During the corresponding
period, Respondent sold products, and purchased goods
and materials, valued, in each instance, in excess of
$50,000, outside the State of Idaho.
On the basis of the foregoing, and upon the entire record,
it is hereby found that, at all times material herein,
Respondent has been an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union 7854, United Steelworkers of America,
AFL-CIO, the Union herein , is, and at all times material
herein has been, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The complaint alleges, Respondent's answer admits, and
it is hereby found that, on or about August 12, 1970,
following an election conducted by the Board, (Case
19-RC-5370), the Northwest Metal Workers Union,
Independent, was duly certified by the Regional Director
for Region 19 as the exclusive representative of Respon-
dent's employees in the following appropriate unit, herein
called the bargaining unit employees:
Unless otherwise stated, all events occurred in 1972
2 The complaint inadvertently states the date as September 11, 1973. The
correction was made at the hearing
3 Actually Sec 10(b) of the Act The answer erroneously alleges the
period as 10 days but was amended at the hearing to conform to the
language of the section
4 Respondent rested at the conclusion of the General Counsel 's case,
without calling any witnesses
THE BUNKER HILL CO.
All production and maintenance employees employed
by the Bunker Hill Company at its operation in and
around Kellogg, Idaho, excluding any craft units
heretofore certified by the National Labor Relations
Board (such as electricians, carpenters, bricklayers,
boilermakers and blacksmiths, plumbers, pipefitters,
steam fitters and lead burners, and machinists), all
supervisory, technical and clerical employees, gatemen,
office clerical employees, guards and watchmen as
defined in the Act.
The complaint further alleges, Respondent's answer
admits, and it is hereby found that, at all times material
herein, the above-described unit was, and has been, an
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
The complaint also alleges, Respondent's answer admits,
and it is hereby found that, on or about August 22, 1972,
the Regional Director for Region 19, in Case 19-AC-10,
issued a Decision and Order Amending Certification to
reflect a change in name of the certified bargaining
representative from Northwest Metal Workers Union,
Independent, to Local Union 7854, United Steelworkers of
America, AFL-CIO.
The complaint further alleges, Respondent's answer
admits, and it is hereby found that, on the basis of the
Decision and Order, above-described, and the prior
certification of the Independent, as above-described, the
Union, at all times since August 22, 1972, has been, and is
now, the duly certified exclusive collective-bargaining
representative of all employees in the appropriate unit
above-described for the purposes of collective bargaining
with respect to the rates of pay, wages, hours of
employment, and other conditions of employment, within
the meaning of Section 9(a) and (c)(1) of the Act.5
B. The Alleged Refusal To Bargain
1. "Incentive Rules for Stripping"
On August 23, 1972, Respondent posted on its bulletin
board, and distributed to the employees involved, a notice
entitled "Incentive Rules for Stripping." The "rules"
established a voluntary incentive program for the electro-
lytic department employees, known as "strippers."6 Under
this program, performance of incentive work would entitle
participants to a "reduction in the attendance time on the
job below the normal eight hour shift." The preamble to
the incentive rules, which stated that the purpose of the
program was "to achieve a stable employment base by
providing the employee with an opportunity to increase his
earnings by performing work over and above an estab-
lished base," announced that the incentive program was
voluntary on the part of the employee, and that the
program was being administered under specified rules set
forth in the notice, and "subject to all the provisions of the
5 Upon a timely request for review of the Regional Director's initial
Decision on the ground that he had erred in granting the amendment, the
Board dismissed the petition filed by the Local Union 7854, the charging
party herein The Bunker Hill Company (Case 19-AC-7),197 NLRB 334. At
the request of all parties, official notice has been taken of those proceedings.
Subsequently, the Regional Director, on or about August 22, 1972, issued
his Decision and Order amending the certification to reflect the name of the
29
Labor-Management Agreement and other Company
rules."
Later that day some unit employees went to the union
hall and brought copies of the notice to David M. Miller,
president of the Union. Miller, in turn, furnished a copy of
the notice to James P. Mooney, staff representative of the
Union's parent organization (United Steelworkers of
America, AFL-CIO), assigned to the Coeur d' Alene
mining district in the Kellogg area, Idaho, to assist in
administering the collective-bargaining agreement between
Respondent and the Union. Mooney and the union
committee had met with management, presumably Arthur
P. Lennon, Respondent's director of labor relations, earlier
that day, although the purpose of the meeting is not
revealed by the record. Upon their return to the union hall,
they found a number of zinc plant cell room workers or
strippers awaiting them with copies of the incentive rules
notice. It is undisputed that the incentive rules were
promulgated and posted without prior notice to or
consultation or negotiation with the Union.
Shortly after 4 o'clock that afternoon, Mooney, with
Miller on the extension, telephoned Lennon and requested
a meeting to discuss the rules. Mooney stated to Lennon
that the Company's action in promulgating or changing the
incentive rules was contrary to his previous understanding
with the Company, and that the men would not accept or
work under those rules while there was a collective-
bargaining agreement in existence. Lennon responded by
asking Mooney how he knew that the men would not
accept the rules since Mooney could hardly have had an
opportunity to meet with all the men. Acknowledging that
that was so, Mooney stated that enough of them had
expressed dissatisfaction with the rules at the union hall to
warrant his statement. Mooney proposed that the parties
meet in an effort to negotiate a set of rules which would be
acceptable to both parties. During this telephone conversa-
tion, Miller interspersed comments of his own in a similar
vein. Lennon declined to commit himself to such a meeting
but said he would discuss it with management.
Regarding the previous understanding with the Compa-
ny, which Mooney mentioned in his telephone conversa-
tion with Lennon, reference was to a memorandum of
understanding, dated May 30, 1972, signed by Lennon, in
his official capacity, William F. Boyd, counsel for the
Company, David M. Miller, president of the local union,
and James P. Mooney, staff representative of the parent
labor organization. By the terms of this memorandum, the
Company agreed to withdraw, with prejudice, an action for
damages, filed in March 1971, against Northwest Metal
Workers Union, and certain individual members, then
pending in the Federal District Court, and resolved various
grievances filed by the Union, on behalf of named
employees. The memorandum further provided:
2. The Company has agreed to sit-down [sic ] with
exclusive bargaining agent as Local Union 7854. (Case 19-AC-10) It is
undisputed that the Union here has been the exclusive bargaining agent of
the unit employees since August 22, 1972.
6 The job title applies to employees in the cell room of the electrolytic
zinc plant who remove or strip the zinc sheets from aluminum plates on
which the zinc has been deposited by electrolysis in cells utilized for the
operation
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union, as soon as mutually convenient, to review
and seriously consider any proposed changes and/or
modifications of the Rules on Absenteeism, Discipline,
Work Rules, and Incentive Rules for Stepping.
On August 25, 1972, the Union sent a letter by registered
mail, return receipt requested, addressed to Lennon in his
official capacity, signed by Miller and Mooney in their
respective official capacities, as follows:
This will confirm our telephone conversation on
August 23 , 1972, during which the Union requested a
meeting for the purpose of reviewing proposed changes
and/or modifications of the Incentive Rules for Strip-
ping at the Zinc Plant Cell Room as provided for in the
Memorandum of Understanding intered [sic] into by the
Parties , dated May 30, 1972.
As stated , we are prepared to meet at your earliest
convenience . In fact, we are prepared to meet, and we
propose that we do meet , during the week of August
28th , along with a Committee of involved employees. Any
day next week is agreeable with us. Please advise as to
what date and time is convenient for the Company.
[Emphasis in original.]
On August 28, 1972, Lennon replied, by letter addressed
to Mooney, as staff representative of the Steelworkers,
agreeing to "sit down with the Union" on Tuesday
afternoon, August 29, 1972, in the staff house basement of
the company premises, at 2 p.m. "to review and seriously
consider any proposed changes and/or modifications of
the Incentive Rules for Strapping in compliance with our
Memorandum of Understanding of May 30, 1972." The
letter continued,
We understand that the Union referred to will be the
recognized agents of the employees and will not be a
group of employees having no official responsibility as
officers of the Union, nor any admixture of these two
groups. Your adding a "Committee of involved
employees" as part of the Umon goes beyond the
commitment we made in the Memorandum of Under-
standing.
Also, we reiterate that the Company has only agreed
to review and seriously consider the Union's proposed
changes and/or modifications of the Incentive Rules
for Stripping, previously adopted and posted by the
Company, and by such a meeting we have not made
such Rules subject to negotiations nor is this meeting to
be in any way construed as a negotiating session.
If this is not your understanding, let me know.
On August 29, the Union replied by letter to the
Company, addressed to the attention of Lennon, and
signed by both Mooney and Miller, submitting a copy of
"proposed incentive rules for stripping, including a
proposed rate to be paid for each additional load in excess
of the eight (8) load per shift base." The letter further
stated:
This proposal has been prepared with the assistance
of the strippers, the men who would be expected to do
the work under any incentive program agreed upon.
These proposed changes and/or modifications of the
incentive rules are presented to the Company in
accordance with the memorandum of understanding of
May 30, 1972. '
We realize, of course, that in order to effectuate an
agreement, there must be room for give and take by
both parties. We would hope that the Company is
prepared to give these proposals serious consideration.
The Union is certainly prepared to do likewise to any
counterproposals on the part of the Company.
The preamble to the Union's proposed incentive rules
reads as follows:
When agreement is reached, rules to be reduced to
writing in the form of a Memorandum of Agreement,
any change in these rules will be through [sic]
negotiations with the Union.
Particition [sic] in the incentive program is voluntary
on the part of the employees. The program is
administered under the guidelines outline [sic] below.7
On August 29, Lennon met with the union representa-
tives at the plant. In addition to Lennon, Richard Scott, his
assistant, Department Superintendent Edgar W. Whitley,
and R. L. Bird, manager of the zinc plant, attended for the
Company; Mooney, Miller, and members of the executive
board, on behalf of the Union. Miller distributed copies of
the Union's counterproposals and covering letter to those
present. Using his copy, Mooney reviewed the contents
and explained the Union's position, stating that, based on
the memorandum of understanding, dated May 30, the
Union had prepared counterproposals with the assumption
that concessions might be necessary on both sides in order
to reach an agreement. Mooney then stated that since
Miller was more familiar with the rules , Miller would
review and comment on each of the rules . Some changes
and insertions were made and initialed . Lennon then asked
for a recess, and he and his group left. When they returned,
Lennon said that the company representatives had some
questions they wanted to ask. Lennon, Whitley, and Bird
each asked questions dealing generally with the purport of
particular language in the counterproposals. Lennon, in
particular, questioned whether footnotes attached to the
Union's proposals were to be considered an integral part of
the rules. Both Mooney and Miller alternately responded,
stating their interpretation of the various rules, and
indicated that the footnotes were not to be regarded as part
of the rules.
At this juncture, Lennon stated that he wanted to make it
perfectly clear that the meeting was not a negotiating
session. Remarking that the Company appreciated the
effort which had been entailed in preparing the counter-
proposals, he stated that the Company had no intention of
negotiating with the Union concerning a set of incentive
rules or rates for the strippers in the zinc plant . He said
that management would examine the material which the
r For the purpose of this proceeding, it is unnecessary to set forth or
consider the Company's incentive rules or the Union's counterproposals on
the merits
THE BUNKER HILL CO.
Union had submitted but would promulgate whatever rules
the Company deemed appropriate. Finally, Lennon an-
nounced that there would be no counterproposals and no
further meetings with the Union. Mooney referred to the
Union's letter, and told Lennon that if the Company
disagreed with the Union's proposals, it behooved it to
submit counterproposals. Lennon retorted that there would
be no counterproposals from management. Mooney
commented that this attitude would not be productive in
establishing an incentive program in the zinc plant cell
room. Mooney remonstrated that the strippers would not
work on an incentive basis until some definite understand-
ing was reached regarding the rules and incentive rates of
pay, a position which the Union has steadfastly maintained
since. Lennon noted that there had not been an incentive
program in the plant for some time, that the Company
intended to establish such a program, and that it would
promulgate and post the program. The meeting ended on
that note, with Mooney still protesting that the Union
remained prepared to make a serious effort to reach
agreement on incentive rules so that a program could be
installed in the zinc plant, which would be in the best
interests of both the Company and the Union.
So far as the record reveals, Lennon made no reference
at this meeting either to the management rights (art. III) or
waiver provisions (art. XXV) of the labor contract.
On August 31, at about 2:30 p.m., shortly before the end
of the workday, some 25 strippers were in the lunchroom
adjacent to the cell room, where they found Lennon and
Bird. Bird told the men that management had another
proposal which he wanted to read to them, and distributed
copies to each of the men. Bird then read the proposals
verbatim. When he had finished reading, he asked whether
there were any questions, and several of the men queried
him.
The same day or the following day, copies of the
Company's new proposals appeared on the bulletin board
in the lunchroom and at the "shifter's" office. The new
incentive rules, dated August 31, introduced by the same
preamble contained in the earlier incentive rules, dated
August 23, were accompanied by the following memoran-
dum:
MEMORANDUM
31 August 1972
To: Electrolytic Department Cathode Strippers
Subject: Incentive Stripping Program
On May 30, 1972, we agreed to sit down with the
Union, when mutually convenient, to review and
seriously consider proposed changes in the Incentive
Rules for Stripping. Due to many problems, including
some within the Union, this meeting could not be
arranged until recently.
8 Whitley, called as a witness by the General Counsel, testified that this
action was taken in response to complaints by the strippers that they were
being required to work for unduly long periods in an atmosphere in which
noxious fumes were being emitted. They had previously been permitted to
leave their work area to go to the adjoining lunchroom after completion of
each 8-load work cycle during the normal 8-hour workday. It is evident that
this action was taken unilaterally and, despite the fact that it may have been
31
We- have now met with the Union, on Tuesday,
August 29, 1972, and critically reviewed their proposed
changes to the Rules. Since the meeting with the Union
we have met with management people involved with
the program and this group has given the Union's
proposals the serious consideration we promised.
The attached set of Incentive Stripping Rules reflects
those changes and modifications to the previous rules
suggested by the Union that we have deemed practica-
ble. We appreciate having received these suggestions
and we now offer this new Incentive Stripping Program
that we are convinced will provide the optimum benefit
to the strippers and the Company. There are no further
meetings scheduled with the Union on this program.
We hope that the Program will be accepted by
enough Strippers to make the Incentive Program a
continuing feature of the Electrolytic Department.
However, if it is not accepted by a sufficient number of
strippers to make it worthwhile, by Monday, Septem-
ber 11, 1972, it will be withdrawn and stripping will be
done on a day's pay basis.
/s/ Robert L. Bird
Robert L. Bird, Manager
Zinc Plant
No further meetings were held between Respondent and
the Union thereafter and, on September 11, 1972, the
following notice was posted over the signature of Ed
Whitley, department superintendent:
September 11, 1972
NOTICE
To: Electrolytic Department Cathode Strippers
For a 30-day trial period, strippers will be allowed to
leave the Department up to one hour early, provided all
the loads have been pulled and stripped, and all
strippers' assignments have been completed to the
foreman's satisfaction. Work assignments include
clean-up, straightening plates, and associated duties.
New men will be included in the above trial after a
3-shift break in period and their work load must be
completed before any employee is eligible to leave
early .8
On the same day, September 11, 1972, Respondent
withdrew the incentive plan promulgated on August 31,
1972, without further notice to or consultation or negotia-
tion with the Union.
Contentions and Conclusions
Respondent concedes that it did, in fact, unilaterally
promulgate incentive rules for stripping, and thereafter
beneficial to the employees, constituted a change in the terms and
conditions of their employment, a mandatory subject of collective
bargaining Inasmuch as this action has not been alleged to constitute
unilateral action in violation of Sec 8(a)(5), no finding is required as to
whether it was permissible under the management rights provision or
whether it was tantamount to a refusal to bargain
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unilaterally withdrew the incentive plan, and further
admits that it "absolutely and unequivocally"9 refused to
bargain about incentive rules with the Union.
In its brief, Respondent posits the issues as follows:
1. Whether the labor management agreement be-
tween The Bunker Hill Company and the Union
permits the Company to act as it did, the Union having
expressly waived its right to request bargaining under
Section 8(d) of the Act.
2. Whether the arbitration and grievance procedure
provided for in the labor management agreement is the
exclusive remedy for the Union under the facts and
circumstances of this case and requires the Board not
to assert jurisdiction under the Act.
3. Whether the issues raised by the complaint filed by
the Regional Director are moot in view of the fact that
on the one hand it is contended the Company
wrongfully unilaterally promulgated the incentive plan
and on the other hand wrongfully unilaterally withdrew
the incentive plan.
Relying on the management rights and waiver provisions
of the collective-bargaining agreement, Respondent main-
tains that it was justified in unilaterally promulgating, as
well as subsequently withdrawing, the incentive plan.
Article III, Management Rights, of the collective-bar-
gaining agreement between The Bunker Hill Company, A
Subsidiary of Gulf Resources and Chemical Corporation,
and Northwest Metal Workers Union, Independent, the
Union's predecessor, effective from November 6, 1972, to
November 5, 1973, provides:
It is recognized that the management of operations,
methods and means of production and the full
direction and size of the working force, and the
contracting out of work is the function and responsibil-
ity of the Company.
The entire conduct of its functions and responsibili-
ties is solely within the judgment of the Company
except as it may be otherwise expressly modified by
this Agreement.
Respondent further relies upon the waiver or "zipper"
clause, contained in article XXV, Effective Date and Term
of Agreement, which contains the following language:
The parties hereto specifically waive their rights to
request bargaining under Section 8(d) of the Labor-
Management Relations Act of 1947 as amended with
respect to unwritten terms dealing with wages, hours
and other terms and conditions of employment for the
life of this Agreement.
Respondent does not contend that the incentive rules
constituted a nonmandatory or voluntary subject of
collective bargaining. Nor does Respondent contend that
the subject of incentive rules are not encompassed within
the provisions of Section 8(d) of the Act. Since the
statutory term "wages" encompassess "emoluments result-
ing from employment in addition to or supplemental to
actual `rates of pay,' " and are in the nature of "direct and
immediate economic benefits flowing from the employ-
ment relationship," (W. W. Cross & Co., Inc. v. N.L.R.B.,
174 F.2d, 875, 878 (C.A. 1, 1949), it is clear that incentive
programs designed to increase or supplement the actual
earnings of employees are within the contemplation of the
term "wages" as used in the Act . 1o It is, therefore, found
that the incentive rules for stripping clearly constituted a
mandatory subject of collective bargaining.
The issue, however, is whether Respondent was justified
in taking unilateral action with regard to the plan by
reason of the management rights (art. III ), and express
waiver provisions (art. XXV) quoted above.il
The management rights article here is not essentially
different from the provision considered in Proctor Manu-
facturing Corporation,12 where the Board held that the
clause did not permit the employer to establish work
production quotas and piecework wage rates unilaterally
and that the "rule, applicable to negotiations during the
contract term with respect to a subject which has been
9 Resp. br, p. 4, 11, 2 and 3.
10 C & S Industries, Inc, 158 NLRB 454, involved the unilateral
institution of a incentive wage system without prior negotiations and written
consent of the union as provided in the contract The Board noted that,
"[a llthough the contract makes no specific mention of wage incentives, such
incentives are inseparably bound up with and are thus plainly an aspect of
the payment of wages, a subject expressly covered by the contract." (Citing
John W Bolton & Sons, Inc., 91 NLRB 989, The Ingalls Shipbuilding
Corporation, 143 NLRB 712, 158 NLRB 454, 459; see also N L R.B v C &
C Plywood Corporation, 385 U S. 421 (1967). Any doubt that the
"superimposition of an incentive wage plan upon the contractually
established wage structure operated as a `modification' of contract terms,
within the meaning of Section 8(d)," (C & S Industries, Inc, supra at 459) in
this case is dispelled by the preamble to each of the proposed incentive
rules, dated August 23 and 31, 1972, respectively, reciting that, "The
purpose of this program is to achieve a stable employment base by
providing the employee with an opportunity to increase his earnings by
performing work over and above an established base " (Emphasis supplied)
Moreover, the sentence which follows, "Performance of incentive work also
earns a reduction in the attendance time on the job below the normal eight
hour shift " clearly denotes a modification in the normal hours of work, a
mandatory subject of collective bargaining
11 Although not specifically referred to at the hearing, Respondent also
relies , in its brief , on other language in the collective -bargaining agreement
precluding modification, except in writing The article in question is-
ARTICLE XXI
Agreement May Not Be Amended Except By Written Document
A. The parties realize that not infrequently, after agreements similar
in part to this Agreement have been executed , one party thereto will
contend that the other party has at some time during negotiations for
or during the term of the Agreement , orally agree to amend, modify,
change, alter or waive one or more provisions of the Agreement , or that
by the action or inaction of such party, the Agreement has been
amended, modified , changed or altered in some respect With this
realization in mind and in order to prevent such contention being made
by either party hereto , insofar as this Agreement is concerned, the
parties have agreed to and do hereby agree that no provision or term of
this Agreement may be amended , modified, changed, altered or waived
except by written document executed by the parties hereto
12 131 NLRB 1166, 1168 The management rights provision there read'
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 interpretation is
expressly required by the provisions of this agreement
THE BUNKER HILL CO. 33
discussed in precontract negotiations but which has not
been specifically covered in the resulting 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 discussed' or `consciously explored' and that the
Union `consciously yielded' or clearly and unmistakably
waived its interest in the matter."
It should be noted that in the instant case, there is no
actual evidence of any "prior negotiations" concerning
incentive wage plans. There is some intimation in the
record that an incentive wage plan may have existed at the
plant at some time in the past, but there is no affirmative
evidence that Respondent and the Union, or its predeces-
sor, had "fully discussed" or "consciously explored" the
subject matter.13
In any event, Respondent is not relying on an implied
waiver, resulting from the conduct of the Union's predeces-
sor during negotiations culminating in the collective-
bargaining agreement, but on the express contract lan-
guage with regard to waiver. This clause provides:
The parties hereto specifically waive their rights to
request bargaining under Section 8(d) of the Labor-
Management Relations Act of 1947 as amended with
respect to unwritten terms dealing with wages, hours
and other terms and conditions of employment for the
life of this Agreement. [Emphasis supplied.]
The incentive wage plan here, which is not expressly
mentioned in the contract, would, of course, be embraced
in the phrase "unwritten terms." As the Board said,
however, in C & S Industries, Inc., "Although the contract
makes no specific mention of wage incentives, such
incentives are inseparably bound up with and are thus
plainly an aspect of the payment of wages, a subject
expressly covered by the contract." 14
It is, of course, well settled that a bargaining representa-
tive may waive statutory rights guaranteed employees,
provided such waiver does not contravene the policies of
the Act. In this regard, however, the Board has held, in
Tide Water Associated Oil Company, 85 NLRB 1096, 1098,
"We are reluctant to deprive employees of any of the rights
guaranteed them by the Act in the absence of a clear and
unmistakable showing of a waiver of such rights. [Footnote
omitted.] We cannot, therefore, predicate a specific waiver
13 The following colloquy occurred at the hearing
JUDGE RoGosiN: .. in the interest of my following the issue[s ], is
this [the August 23, 1972, Incentive Rules ] the first time an incentive
plan was ever inaugurated at the plant, Mr Boyd, or is this merely a
change in the existing incentive plan
MR. Born. Frankly, Your Honor, it isn't the first time, but we
maintain that is the first time that can be talked about at this hearing
In the colloquy which followed, counsel for the General Counsel stated that
he was not "taking a position as to whether any changes in incentive rules
prior to August 22 would [constitute] a refusal to bargain if there were
actually unilateral changes because, in fact, no union had been certified
prior to that date and there was a hiatus period [sic ] during the summer of
1972 before the amendment certification issued on August 22nd. Thereafter
on August 23rd is the first change with respect to incentive rules after the
amendment for certification was issued" The matter was not further
pursued at the hearing so there is no basis for inferring that an incentive
of the right to bargain collectively concerning pension
plans upon the . . . agreement, particularly in view of the
vagueness of the `Management Functions' clause and the
ommission from the contract of any of the terms and
conditions of the Retirement Allowance Plan." 15
As to any contention that Section 8(d) of the Act does
not require Respondent to discuss any modification of the
existing agreement during its term, the Board, adopting the
language of the Trial Examiner, indicated that the
pertinent language of the section
refers to terms and conditions which have been integrated
and embodied into a writing. Conversely it does not have
reference to matters relating to "wages, hours and other
terms and conditions of employment," which have not
been reduced to writing. As to the written terms of the
contract either party may refuse to bargain further
about them, under the limitations set forth in the
paragraph, without committing an unfair labor prac-
tice. With respect to unwritten terms dealing with
"wages, hours and other conditions of employment,"
the obligation remains on both parties to bargain
continuously.16
A waiver of statutory rights will not be inferred from the
mere absence from the contract of specific reference to a
subject protected by the Act, or because the contract
contains a general management prerogatives clause, or
because the union failed during contract negotiations to
obtain contract protection of its statutory rights.17 Nor can
the statutory protection be forfeited, except by express
waiver, since a provision protecting the right "would
normally be implied in an agreement by operation of the
Act itself." 18
It is, therefore, found that neither the management rights
clause nor the "zipper" or "wrap-up" provision of the
contract authorized or permitted Respondent to institute
the incentive rules for stripping, announced on August 23
and 31, 1972, without prior notice to or consultation or
negotiation with the Union. To the extent that it may be
material, it is found that the evidence fails to establish that
incentive wage rules, a subject not specifically covered in
the resulting contract, was discussed between Respondent
and the Union's predecessor during precontract negotia-
tions, or with the Union after it acquired exclusive
representative status at any time prior to the posting of the
first incentive rules for stripping.
wage program was "fully discussed" or "consciously explored," or that the
Union "consciously yielded" or clearly and unmistakably waived its interest
in the matter.
i4 158 NLRB 454, and cases cited
15 Tide Water Associated Oil Company, 85 NLRB 1096, 1098
16 Supra at 1099-00
17 See, e.g, Timken Roller Bearing Co v N L R B., 325 F 2d 746, 751
(C.A. 6, 1963), enfg 138 NLRB 15, cert denied 376 U.S 971 (1964);
N L R B v. The Jacobs Manufacturing Company, 196 F 2d 680, (C.A 2,
1952), enfg 94 NLRB 1214; N L R B v. J. H. Allison & Company, 165 F.2d
766, 768 (C.A. 6, 1948), cert denied 335 U S 814 (1948), enfg. 70 NLRB
377, New York Mirror, 151 NLRB 834, 839-841, Proctor Manufacturing
Company, 131 NLRB 1166 See also The Beacon Journal Publishing
Company, 164 NLRB 734; Unit Drop Forge Division Eaton Yale & Towne,
Inc, 171 NLRB 600.
is See N L R B v Perkins Machine Company, 326 F 2d 488, 489 (C A. 1,
1964), Cloverleaf Division of Adams Dairy Co, 147 NLRB 1410, 1413-14.
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent further contends that neither the memoran-
dum of understanding, dated May 30, 1972, in which
Respondent "agreed to sit-down" with the Union, and "to
review and seriously consider any proposed changes
and/or modifications of ...-Work Rules and Incentive
Rules for Stripping," nor its meeting with the Union on
August 29 amounted to a recognition of any duty to
bargain with the Union concerning the incentive program.
It has been noted that Lennon, Respondent's director of
industrial relations, failed to rely on either the management
rights or waiver provisions of the contract during this
meeting. Respondent's position that, by consenting to
"review and seriously consider" the Union's counterpropo-
sals it was not conceding that the subject of the incentive
rules was negotiable, is immaterial on the issue of its
statutory duty to bargain. If anything, once the duty to
bargain on the subject has been established, any reserva-
tions by Respondent, expressed or otherwise, would
amount to evidence of recalcitrance to bargain about the
issue. Nor need it be decided whether, by meeting with the
Union and "listening" to its counterproposals, Respondent
may be deemed to have acquiesced in the Union's position
as to the bargainability of the incentive rules. It is
abundantly clear, as was repeatedly asserted by Respon-
dent, that it had no intention of negotiating a set of
incentive rules with the Union.
Although, as has been stated at the outset, the gravamen
of the complaint is Respondent's unilateral action in
promulgating incentive rules affecting "strippers," the
General Counsel maintains that the allegations are
sufficiently broad to state a case of refusal to bargain
based on Respondent's failure, upon demand, to negotiate
with the Union the substantive terms of the incentive rules.
Assuming that the complaint sufficiently alleges a refusal
to bargain on that ground,19 and that Respondent was
placed on sufficient notice that the General Counsel would
be seeking a remedial order requiring Respondent to
bargain with the Union about the substantive terms of
incentive rules, Section 8(d) of the Act would appear to
preclude such result. To hold that Respondent is required
to bargain regarding an incentive wage plan not contained
in the contract, during its term, would amount to a
19 The only paragraphs of the complaint susceptible to this interpretation
are:
10 On or about August 23 and August 25, 1972, the Union,
through its agent and staff representative J P. Mooney, demanded that
Respondent meet and bargain about changes in incentive rules
11. On or about August 29, 1972, the Union and Respondent held
a meeting at which the Union presented counterproposals and changes
in incentive rules.
12. During the meeting referred to above in paragraph 11,
Respondent's Director of Industrial Relations , Art Lennon, stated that:
a incentive rules were not subject to negotiations between
Respondent and the Union;
b Respondent would not submit any future counterpro-
posals to the Union on incentive rules, and
c no future meetings would be held with the Union to
discuss incentive rules between the parties.
The remaining allegations of the complaint relate to the unilateral change in
the incentive rules . It is significant that the conclusionary allegations of the
complaint refer only to pars. 9, 12, 13, and 14 as the basis for the violation
of Sec. 8(a)(5), in two separate paragraphs (15 and 16).
20 Proctor Manufacturing Corporation, 131 NLRB 1166, 1170.
21 It is noted that the collective -bargaining agreement expires, by its
"modification," which the Union could not demand,
except under the conditions outlined in Section 8(d). This
is not inconsistent with the finding, previously made, that
incentive wage plans are encompassed within the term
"wages," and that unilateral action to achieve such object,
without prior notice to the Union and an opportunity to
negotiate, constitutes a refusal to bargain.
The situation here is distinguishable from that in the
Proctor case, where the Board held
Under Section 8(d) of the Act the method of computing
the minimum wage and bonus could not be made the
subject 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 remained
open for negotiations 2°
The Board there said that the contract "merely prescribed
the method of computing the minimum wage and bonus,
but without identifying or enumerating piecework rates."
(Id. ) Here, the wage rates were established under the
contract, but the Union was seeking to "superimpo[se] ..
an incentive wage plan upon the contractually established
wage structure ," entailing a "modification of contract
terms, within the meaning of Section 8(d)." (C & S
Industries, Inc., 158 NLRB 454, 459.)2i
It is, therefore, found that Respondent has not, since
August 23, refused to bargain with the Union, by failing
and refusing to negotiate the substantive terms of incentive
rules, in violation of Section 8(a)(5) of the Act.
As to its defense that the issue of the incentive rules
should have been resolved by the grievance and arbitration
procedure provided for in the contract, it should be noted
that Respondent does not contend that the matter should
now be deferred to arbitration. On the contrary, despite an
inconclusive exchange of communications, prior to the
issuance of the complaint, between counsel for the General
Counsel and counsel for Respondent, seeking to ascertain
its position with regard to deferral to arbitration, under
guidelines established by the General Counsel, Respondent
declined to take a position.22
Despite his unwillingness to take a position on this issue
terms, on November 5, 1973, and that this matter may not be decided by the
Board before the expiration date Since it has been found that the incentive
rules constitute a mandatory subject of collective bargaining, the parties
may be better advised to have recourse to the requirements of Sec. 8(d) to
achieve modification of the contract with regard to an incentive wage plan
22 On March 16, 1973, counsel for the General Counsel wrote to counsel
for Respondent, in relevant part, "Our agency will issue a complaint in this
matter on March 21, 1973, unless you indicate to me in writing before that
date that you are willing to arbitrate the incentive rules dispute underlying
the charge and that you are willing to waive any contractual time limitations
on the filing and processing of grievances to arbitration ." In his response,
Respondent's counsel, while qualifying the statements attributed to him by
the General Counsel regarding the Company's unwillingness to submit the
dispute to arbitration , stating that he had only discussed recommendations
he had made to his client, continued "Contrary to the implication contained
in your letter, it has been our feeling from the start that the issue you refer to
between the company and the union would probably be a matter for
arbitration if a grievance was processed properly under the contract" He
further stated that he had not told counsel that the Company would not
"waive the contractual time limitation set forth in the contract in issue," but
had merely said that that would be his recommendation , and that he did not
have authority to agree or refuse to do so.
THE BUNKER HILL CO.
at the hearing, Respondent's counsel asserted that Respon-
dent was standing on the position that, while the dispute
was a matter for the grievance and arbitration procedure,
by failing to file a timely grievance, the Union was
precluded from pursuing the matter to arbitration and that,
since this was the exclusive remedy which had been
available to the Union, the Board should dismiss these
proceedings.
It should be noted that Respondent contends that under
the language of the grievance procedure, it does not itself
have recourse to this procedure, and that only the Union
may initiate grievance proceedings.23
In any event, the record leaves no doubt that Respon-
dent has been unwilling either to waive the contractual
time limitation for the filing of a grievance or, for that
matter, to proceed to arbitration. Instead, it contends that,
having failed to resort to the grievance and arbitration
machinery, the Union has forfeited its exclusive remedy for
relief and that this proceeding should not be deferred to
arbitration, but should be dismissed. Under these circum-
stances, the issue of deferral to arbitration is not involved.
Since Section 10(a) of the Act expressly provides that the
power of the Board to prevent unfair labor practices
enumerated in Section 8, "shall not be affected by any
other means of adjustment or prevention that has been or
may be established by agreement, law, or otherwise .. .
and, in the absence of any basis for deferral to arbitration,
this defense is rejected as without merit.
Respondent's defense, that it "was not afforded a
hearing within five (5) [as amended at the hearing] days
from the date of the complaint," as required by the Board's
Rules and Regulations (actually Sec. 10.(b)) is based on an
erroneous interpretation of the section. This provides, in
pertinent part, that the notice of hearing shall be issued
"not less than five days after the serving of said
complaint." According to the affidavit of service, the
complaint and notice of hearing were served on March 23,
1973, and the hearing held on June 26, 1973. It can hardly
be contended, as Respondent appears to do, that the Act
requires that a hearing be held within 5 days from the date
of the complaint. This contention is wholly without merit.
Finally, Respondent contends that, even if it be held to
have violated the Act, by unilaterally promulgating the
incentive rules, its rescission, on September 11, 1972, of the
plan, posted on August 31, 1972, "cured" any wrongful
conduct in which it might have engaged. Although this
argument may appear to have superficial appeal, it
obviously stems from the contention that if Respondent
had the right to institute the incentive rules unilaterally, it
had a concomitant right to withdraw the plan unilaterally.
It is well settled that the abandonment of unfair labor
practices, particularly where there is no assurance that the
unfair labor practices will not be repeated, does not render
the issue moot. Whether, under the circumstances, Respon-
23 The grievance procedure does not specifically provide that the
Employer may initiate proceedings, and Respondent contends that the
provisions had been so construed by the parties Art XVI, Grievance
Procedure, states at the outset, "An employee who believes his rights under
this Agreement have been adversely affected by the action of the Company
will be required to follow the procedure set forth in this Article for the
presentation, investigation and determination of a grievance " There follows
35
dent was required to notify and negotiate with the Union
before rescinding the incentive rules need not be decided.
It is, therefore, found, on the basis of the foregoing and
upon the entire record, that by unilaterally, and without
prior notice to or negotiation with the Union, promulgat-
ing the incentive rules on August 23 and 31, 1972,
Respondent has failed and refused to bargain collectively
with the Union, in violation of Section 8(a)(5), thereby
interfering with, restraining, and coercing employees in the
exercise of rights guaranteed in Section 7, in violation of
Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above occurring in connection with the operations of
Respondent, described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes, burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, it will be recommended that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent unilaterally, and
without prior notice to or negotiation with the Union,
promulgating the incentive rules described above. It will,
therefore, be recommended that Respondent cease and
desist from the unfair labor practices in which it has been
found to have engaged.
Upon the basis of the above findings of fact, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
I. The Bunker Hill Company, Respondent herein, is
now, and at all times material herein has been, an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Local Union 7854, United Steelworkers of America,
AFL-CIO, the Union herein, is, and at all times material
herein has been, a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by the Bunker Hill Company at its operation in and
around Kellogg, Idaho, excluding any craft units hereto-
fore certified by the National Labor Relations Board (such
as electricians, carpenters, bricklayers, boilermakers and
blacksmiths, plumbers, pipefitters, steam fitters and lead
a three-step grievance procedure, culminating in arbitration (art XVII) The
grievance procedure appears to apply exclusively to disciplinary action
alleged to have been taken against employees, and does not appear to deal
with matters of contract interpretation Apart from any question of
mutuality of remedy, it is undisputed that Respondent at no time sought to
invoke the grievance and arbitration procedure in an effort to resolve the
dispute regarding the incentive rules
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
burners, and machinists), all supervisory, technical and
clerical employees, gatemen, office clerical employees,
guards and watchmen as certified by the National Labor
Relations Board on August 12, 1970, Case 19-RC-5370,24
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. Local Union 7854, United Steelworkers of America,
AFL-CIO, the Union herein, was, on August 22, 1972, and
at all times thereafter has been, the exclusive representative
of all employees in the appropriate unit, described above,
including "strippers," for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By unilaterally, and without prior notice to or
consultation with the Union, promulgating incentive rules
for stripping on August 23 and 31, 1972, Respondent has
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(5), thereby interfering
with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act within the
meaning of Section (a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record, and
pursuant to Section 10(c) of the Act, I make the following
recommended:
ORDER 25
The Respondent, The Bunker Hill Company, Kellogg,
Idaho, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unilaterally, and without prior notice to or consulta-
tion with the Union, promulgating or instituting any
incentive wage rules, or making any changes in wages,
24 The description of the appropriate unit is based on the recognition
clause of the collective-bargaining agreement between Respondent and the
predecessor Union, presently, in effect.
25 In the event no exceptions are filed as provided by Sec. 102,46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
hours, or terms or conditions of employment of its
employees in the appropriate unit described herein.
(b) 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 Local Union 7854, United Steelworkers of
America, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other protected concerted
activities for the purpose of collective bargaining or other
mutual aid or protection guaranteed in Section 7 of the
Act, 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 a
condition of employment , authorized in Section 8(a)(3) of
the Act, as amended.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Upon request of Local Union 7854, United Steel-
workers of America, AFL-CIO, formally rescind the
"Incentive Rules for Stripping," dated August 23 and
August 31,' 1972, which Respondent promulgated unilater-
ally.
(b) Post at its plant at Kellogg, Idaho, copies of the
attached notice marked "Appendix . " 26 Copies of said
notice, on forms provided by the Regional Director for
Region 19, after being signed by Respondent's duly
authorized representative , shall be posted by Respondent
immediately upon receipt thereof , and maintained by it for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered,
defaced , or covered by any other material.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date (of this ) Order, what
steps Respondent has taken to comply herewith.
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
26 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."