C & C Plywood Corp.

414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT threaten employees with loss of employment in a unionized shop, under adverse business conditions. WE WILL NOT in any like or related manner threaten employees with less favorable conditions of employment , or the loss thereof, under a unionized shop. SUPERIOR PRESS, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Employees may communicate with the Board 's Regional Office, 849 South Broad- way, Los Angeles, California, Telephone No. 688-5204, if they have any questions concerning this notice or compliance with its provisions. C & C Plywood Corporation and Plywood, Lumber and Saw- mill Workers Local Union No. 2405, AFL-CIO. Case No. 19-CA-686. August 24, 1964 DECISION AND ORDER On January 3, 1964, Trial Examiner Maurice M. Miller issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charg- ing Party each filed exceptions to the Decision and a supporting brief. Respondent filed a brief in support of the Decision. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and finds merit in the exceptions. Accordingly, the Board adopts only so much of the findings, conclusions, and recommendations of the Trial Examiner as are consistent with this Decision. On May 1, 1963, Respondent and the Union entered into a collective- bargaining agreement effective to October 31, 1963. The agreement contained a wage clause in article XVII which stated in part: The Employer reserves the right to pay a premium rate over and above the contractual classified wage rate to reward any particular employee for some special fitness, skill, aptitude, or the like. 148 NLRB No. 46. C & C PLYWOOD CORPORATION 415 On May 20, 1963, Respondent posted a notice announcing that effective immediately and "for the next couple of months," members of the glue spreader crews would receive premium pay provided that they met certain production standards.' _ Respondent formulated and placed in effect the premimum pay schedule without prior notice to, or bargaining with, the Union. About a week later the Union learned of the plan from one of its members. By letter dated May 27, the Union asked Respondent for a conference to discuss the premium pay notice. In the letter, the Union said : We do not consider this to be premium pay within the meaning of Article XVII, but rather a change in wages made dependent upon a production basis rather than hourly rates agreed upon with the Union. The parties met on June 7 and 15, 1963. The Union requested rescis- sion of the plan. Respondent refused although it offered to discuss terms of the plan. The Union then filed the present unfair labor prac- tice charges alleging that Respondent had unlawfully refused to bar- gain by unilaterally establishing the premium pay plan. The Trial Examiner found that the dispute between the Union and Respondent involved only a disagreement as to the meaning of terms of a collective-bargaining contract and that the promulgation of the premium pay plan according to Respondent's understanding of those terms was not a violation of Section 8(a) (5). We disagree. In filing its unfair labor practice charge, the Union was complain- ing not of a violation of its contract with Respondent, but of the in- vasion of its statutory right as collective-bargaining representative of employees in the unit to bargain about any change in the terms and conditions of employment for such employees 2 Prima facie, Respondent's change in the terms for compensating glue spreader crews without notification to, or bargaining with, the Union violated Section 8 (a) (5).1 The Board has recognized, however, that the statutory right a union to bargain about changes in terms and condi- tions of employment may be waived by the union. Respondent's affirmative defense to the prima facie case is that there was such a waiver in this case. It contends: (a) during the contract negotia- The contract rates of pay for members of the glue spreader crew were : core feeder, $2 24; core layer, $2 29 ; sheet turner, $2.15 The premium pay schedule provided for an hourly rate of $2 50 to each member of the crew. 2 Timken Roller Bearing Co . v. N.L.R.B., 325 F. 2d 746 ( CA. 6) ; Smith Cabinet Manu- faotuiing Company, Inc, 147 NLRB 1506 This is not a case like United Telephone Company of the West, 112 NLRB 779, or Morton Salt Company, 119 NLRB 1402 , relied upon by the Trial Examiner , where an alleged breach of contract was the very basis for the 8 ( a) (5) allegation in the first case, and for the 8 ( a) (1) and ( 2) allegations in the second. 8 N.L.R .B. v. Benne Katz, d/b/a Williamsburg Steel Products Co., 369 U. S. 736. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions, the Union waived its right to be consulted about group incen- tive pay; and (b) the wage clause in the contract gave the Respond- ent the right unilaterally to put into effect a wage incentive plan. In order to determine the validity of this waiver defense, the Board must necessarily evaluate the testimony as to what occurred during contract negotiations, and must interpret the wage clause of the con- tract. We find no obstacle to either course. The Board is not un- familiar with the problems of contract construction. For example, it is frequently required to construe contracts in representation cases when a contract is claimed to be a bar to a representation petition, and in unfair labor practice proceedings involving the meaning and valid- ity of union-security clauses, or clauses alleged to be violative of Sec- tion 8 (e). Moreover, this is not a case where the identical question of contract construction is pending before a civil court or an arbitrator and in the interests of comity, the Board defers to the other tribunal.' Accordingly, we reject the argument that, because determination of the validity of the defense involves construction of the collective- bargaining contract, the complaint alleging an 8(a) (5) violation should be dismissed.5 (a) Waiver of a statutory right will not lightly be inferred. The relinquishment to be effective 'must be "clear and unmistakable." 6 Or as the Board said in the Proctor Manufacturing case: ° The Board's rule, applicable to negotiations during the con- tract term with respect to a subject which has been discussed in precontract negotiations but which has not been specifically cov- ered in the resulting contract, is that the employer violates•Sec- tion 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 unmis- takably waived its interest in the matter. In the present case, the Trial Examiner found that during contract negotiations, Respondent's negotiator mentioned that Respondent was "giving thought" to the possibility of promulgating a premium pay or incentive wage program for glue spreader crews. This alone, although in the context of a resulting contract which does not "specifi- cally cover" a group incentive pay plan, is not a waiver by the Union 4 See National Dairy Products Corporation, Detroit Creamery Division, 126 NLRB 434; United Telephone Company of the West, supra. The contract between the Union and Re- spondent contains no provision for arbitration. i Smith Cabinet Manufacturing Company, Inc., supra. 6 Timken Roller Bearing Co . v. N L R B., supra. 7 Proctor Manufacturing Corporation, 131 NLRB 1166, 1169 C & C PLYWOOD CORPORATION 417 under the above standard. In addition, we believe that any con- clusion that the Union "consciously yielded" on the group suggestion made by the Respondent is negated by the inclusion in the contract of a specific provision for individual premium pay. Moreover, the Trial Examiner found that this comment was made at a bargaining session when the parties had reached an impasse over the hourly rates for the three job classifications which constituted the glue spreader crews. Accordingly, we find that there is not sufficient evidence under the above standard to establish that the Union waived its right to bargain about a wage incentive system. (b) The wage clause gives Respondent the right to pay a premium rate to "reward any particular employee for some special fitness, skill, aptitude, or the like." It seems to us that this clause grants the Em- ployer the right to make individual merit increases for special com- petence or skill. We do not construe it, as Respondent apparently does, to authorize Respondent to select a group of employees and unilater- ally change the method of compensating them from a straight hourly basis, with a fixed rate for each job category, to what is In effect a production basis, by raising the hourly contract wage rate contingent upon increased productivity. To accept Respondent's construction is tantamount to saying that the Union inferentially surrendered to Re- spondent the right unilaterally to establish production standards and wage rates based thereon as a method for compensating employees. Such an intent is so contrary to labor relations experience that it should not be inferred unless the language of the contract or the history of negotiations clearly demonstrates this to be a fact. We see nothing in these negotiations or this contract to establish that the Union intended to waive its statutory right to bargain over the matter in dispute. The Union's prompt protest against Respondent's posting of the new wage schedule also belies any such intent. Accordingly, we find that by unilaterally changing the wage rates -for members of the glue spreader crews Respondent violated Section 8 (a) (5) and (1) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The conduct of the Respondent set forth above, occurring in connec- tion with the operations of Respondent as set forth in section I of the Trial Examiner's Decision, has a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 760-5T7-65-vol. 148-28 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom, and from like or related conduct, and that it take certain affirmative action to_ effectuate the policies of the Act. CONCLUSIONS OF LAW 1. C & C Plywood Corporation is an employer within the meaning of Section 2(2) of the Act, engaged in, commerce and business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Plywood, Lumber and Sawmill Workers Local Union No. 2405, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By instituting a premium pay plan for glue spreader crew work- ers without notice to, or bargaining with, the Union, Respondent violated Section 8 (a) (5) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Re- spondent, C & C Plywood Corporation, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Failing or refusing to bargain collectively with Plywood, Lum- ber and Sawmill Workers Local Union No. 2405, AFL-CIO, as the exclusive representative of its employees in the appropriate bargain- ing unit,' by unilaterally instituting a premium pay plan for glue spreader crews or otherwise changing any term or condition of employ- ment of employees within the aforesaid unit without prior notice to, and bargaining with, the Union. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will ef- fectuate the policies of the Act : (a) Upon request, bargain with Plywood, Lumber and Sawmill Workers Local Union No. 2405, AFL-CIO, with respect to the in- 8 The appropriate unit is composed of all production and maintenance employees of the Respondent at its veneer and plywood plants near Kalispell, Montana, excluding office clerical employees , guards, professional employees , and supervisors as defined in the Act. C & C PLYWOOD CORPORATION 41[9 saltation of a premium pay plan for glue spreader clews and, if ie- <luested by said Union, rescind any plan which Respondent may hake unilaterally instituted (b) Post in its plant in Kalispell, Montana, copies of the attached notice marked "Appendix '' 0 Copies of such notice, to be furnished bA the Regional Dnector for Region 19, shall, after being duly signed by an authorized representative of Respondent, be posted immediately upon I eceipt thereof, and be maintained by it for a period of 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees aie customarily posted Reasonable steps shall be taken by Respondent to insure that said notices ale not alter ed, defaced, of covered by any other material (c) Notify the Regional Dnectoi for Region 19, in writing, within 10 days from the date of this Orden, what steps Respondent has taken to comply lreiewith MEMBER LuEDoar, dissenting Unlike my colleagues, I would affirm the Trial Examinee for the reasons indicated un his Decision As the Trial Examiner there points out, the Board has long held that it will not effectuate the policies of the Act for it to police collective-bargaining agieements by attempt- ing to iesolve disputes over then meaning, whatever a proper con- struction of the disputed language in the contract may be, where it is evident that the Respondent acted reasonably and in good faith In such cases, the aggrieved party's remedy is to seek judicial of other enforcement of the contract As the '1'i tal Fxamnier found, this is precisely such a case My colleagues do not pill poi t to clepal t fi om the United Telephone case, 112 NLRB 779, relied on by the'1`rial Examiner here, wheie the Board applied this salutary rule Contrary to my colleagues, the case at bar differs in no significant respect from Un ted Telephone 10 There, as well as here, the employer, prima facie, violated the Act by uni- laterally changing teiins or conditions of employment, in both cases, the terms of the contract at least coloiably justified the employer's good-faith making of the change, and here, as well as there, the parties disagreed with respect to the meaning of the contract, and a determina- tion as to whether the employer violated the Act turns upon a proper construction of the contract In these encumstances, the Union s remedy is beforeanothei forum 9In the event that this Order Is enforced by a decree of a United States Court of Appeals, there shall he substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, Enforcing an Order " 10 While It is true thit the pendency of a cihi1 suit c'illing for interpretation of the con tract w is an addition'sl retison for dismissal of the complaint in United Telephone, the fact that here, no such suit is pending and there is no provision In the contract for arbi tration, does not alter the established rule that the Board is not the proper forum to remedy a breach of contract or to obtain specific performance of Its terms 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, like the Trial Examiner, I would dismiss the complaint. MEMBER BROWN took no part in the consideration of the above Decision and 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 fail or refuse to bargain collectively with Ply- wood, Lumber and Sawmill Workers Local Union No. 2405, AFL- CIO, by unilaterally instituting a premium pay plan for glue spreader crews or otherwise changing any term or condition of employment in the unit composed of : All production and maintenance employees at our veneer and plywood plants near Kalispell, Montana, excluding office clerical employees, guards, professional employees, and super- visors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaran- teed in Section 7 of the National Labor Relations Act. C & C PLYWOOD CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 327 Logan Building, 500 Union Street, Seattle, Washington, Telephone No. Mutual 2-3300, if they have any questioning concern- ing this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge duly filed and served July 31, 1963, the General Counsel of the National Labor Relations Board caused a complaint and notice of hearing to be issued and served upon C & C Plywood Corporation, designated as Respondent in this report . The complaint was issued September 18, 1963; therein Respondent was charged with unfair labor practices affecting commerce within the meaning of Sec- tion 8 (a) (1) and (5) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519. Thereafter, with an answer duly filed, Respondent conceded certain factual allegations set forth within the complaint, but denied the commission of any unfair labor practice. C & C PLYWOOD CORPORATION 421 Pursuant to notice, a hearing with respect to the issues was held at Kalispell, Montana, on October 16 , 1963, before trial Examiner Maurice M . Miller. The General Counsel and Respondent were represented by counsel ; the Charging Party was represented by its business representative . Each party was afforded a full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the isues. Before any testimony was heard, General Counsel's motion to amend the complaint with respect to certain minor textual matters was granted. When General Counsel 's presentation was complete , Respondent moved for dismissal of the complaint ; the motion was denied . When the record was com- plete, Respondent's counsel renewed his motion; disposition of the matter was reserved for this report . Since the hearing's close, briefs have been filed in behalf of the General Counsel, Respondent , and the Charging Party. These have been duly considered. Upon the entire testimonial record , documentary evidence received, and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, though an Oregon corporation, maintains its principal place of busi- ness in Kalispell, Montana, where it is engaged in processing and manufacturing ply- wood from green veneer. During the 12-month period preceding the complaint's issuance, Respondent purchased, from points outside the State of Montana, goods valued in excess of $50,000 and sold plywood valued in excess of $50,000 to pur- chasers located at various out-of-State points. Upon the complaint's jurisdictional allegations, which are conceded to be accurate , I find the Respondent is now, and at all times material has been , an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended . With due regard for the jurisdictional standards which the Board presently applies-see Siemons Mailing Service, 122 NLRB 81, and related cases-I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory objectives. II. THE LABOR ORGANIZATION INVOLVED ' Plywood, Lumber and Sawmill Workers Local Union No. 2405, AFL-CIO, variously designated as the Union or Charging Party herein , is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits Respondent's employees to membership. III. THE UNFAIR LABOR PRACTICES A. Issue Within their briefs , both counsel suggest that the sole question presented by the present record is whether Respondent violated Section 8(a)(5) of the statute when, during the term of its contract with the Charging Party, it unilaterally inaugurated a system of compensation, for some plywood plant workers covered thereby, designated as a production bonus or premium pay plan. General Counsel argues that the record shows Respondent's resort to unilateral action with respect to such a produc- tion bonus or premium pay plan, during the term of a subsisting contract, despite the fact that management's right to promulgate and maintain such a system of com- pensation had not been fully discussed , consciously explored, conceded or clearly waived by union negotiators . Respondent's counsel, however, contends , first, that representatives of the firm have bargained "fully and legally" with respect to all matters about which Respondent may legally be required to bargain, under the circum- stances. Secondly, Respondent argues that its course of conduct derived from management's good-faith belief that promulgation of the production bonus or premium pay plan, during their contract's term, was permissible under certain relevant contract language. Thirdly, Respondent contends that the Charging Party "effectively and clearly" waived its right to bargain regarding the challenged compensation plan. Lastly, Respondent's counsel suggests that the 'present dispute with respect to the propriety of Respondent's decision derives from differences between the firm's management and union representatives with respect to the proper interpretation of certain contract language ; counsel contends that this Agency has not previously assumed, and should not now assume , the role of a contract policeman, by attempt- ing to decide whether disputes regarding the meaning and administration of contract terms constitute an unfair labor practice. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Facts 1. Preliminary matters General Counsel alleges, and Respondent concedes, that the Charging Party herein, since on or about August 28, 1962, and at all times material thereafter, has been the certified representative for collective-bargaining purposes of Respondent's workers within a group defined as follows: All production and maintenance employees of the Employer at its veneer and ply- wood plants near Kalispell, Montana, excluding office clerical employees, guards, pro- fessional employees, and supervisors as defined in the Act. Through its answer, Respondent has conceded the appropriateness of the workers' group thus defined, for the purposes of collective bargaining, within the meaning of Section 9(b) of the statute. Further, Respondent has conceded that, by virtue of Section 9(a) of the Act, the Union has been, and now is, entitled to function as the exclusive representative of all the firm's employees within the unit described, for the purposes of collective bragaining in regard to rates of pay, wages, hours of em- ployment, and other conditions of work. 2. Contract negotiations From October 1962 until May 1, 1963, representatives of Respondent and the Charging Party negotiated with respect to a contract. Their negotiations required 11 bargaining sessions, the last 2 of which were held on March 12 and April 19; thereafter, the negotiators signed their "Working Agreement" with a May 1 effective date. The contract provided that it would remain in full force and effect through Octo- ber 31, 1963, and from year to year thereafter, absent some appropriately timed written notice proffered by either party of a desire to change, modify, or terminate it. Further, the contract contained, among others, the following provisions: Article XVII WAGES A. A classified wage scale has been agreed upon by the Employer and Union, and has been signed by the parties and thereby made a part of the written agreement. The Employer reserves the right to pay a premium rate over and above the contractual classified wage rate to reward any particular em- ployee for some special fitness, skill, aptitude or the like. The payment of such a premium rate shall not be considered a permanent increase in the rate of that position and may, at sole option of the Employer, be reduced to the contractual rate at such time as the Employer feels that the employee no longer merits the premium, except that no present employee of the date of signing of this original Working Agreement shall suffer a wage reduction as a result of this Agreement. [Emphasis supplied.] Article XIX WAIVER OF DUTY TO BARGAIN The parties acknowledge that during negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter of collective bargaining, and that the understanding and agreements arrived at by the parties after the exer- cise of that right and opportunity are set forth this Agreement. Therefore, the Employer and Union, for the life of this Agreement, each voluntarily and unqualifiedly waives the right and each agree that the other shall not be obligated to bargain collectively with respect to any subject matter not specifically re- ferred to or covered in this Agreement, even though such subjects or matters may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this Agreement. The contract likewise included a classified wage scale, with hourly rates specified for 27 job classifications. Wages were declared "closed" for the duration of the contract's term, subject to "opening" in the same manner as provided in the con- tractual termination provision. During a negotiating session "quite some time prior" to the contract's execution, Respondent's principal negotiator, General Manager Thomason, mentioned that some other lumber products company had proposed an "incentive bonus system" within its plywood department. Robert Weller, executive secretary of the Montana C & C PLYWOOD CORPORATION 423 District Council, Lumber and Sawmill Workers, and the Charging Party's principal negotiator, declared, however, that the Union would not agree to such a plan. None of the parties, then, pursued the matter. Later-but some time before their March 12, 1963, session-the negotiators reached tentative agreement with respect to the general "wage" clause of their projected contract. The clause, so far as the record shows, was reduced to written form, ready for subsequent incorporation within the contract when the parties reached complete agreement with respect to that document's terms. During their March 12 session, negotiators for Respondent and the Charging Party reached a temporary impasse regarding hourly wage rates for workers within the three job classifications which made up the firm's glue spreader crews. (These job classifications included core feeders, core layers, and sheet turners Through- out the period with which this case is concerned there were 118 to 201 workers em- ployed within the unit previously found appropriate by the Boaid for the purposes of collective bargaining; approximately some 26 to 32 men staffed Respondent's glue spreader crews.) Following separate caucus sessions, conducted with a Federal conciliator's participation, company and union negotiators met jointly to conclude the session. Within a context which the record, taken as a whole, leaves somewhat vague, General Manager Thomason of Respondent informed the union negotiators that the firm was considering a premium pay or incentive pay program for work- ers on glue spreader crews. So far as the record shows, Thomason's comment elicited no reply. Within his brief, the Charging Party's business representative professes no recol- lection with respect to such as statement purportedly made by Respondent' general manager; the Union contends that such a statement, if made, must have been made to the Federal conciliator during Respondent's separate caucus. During cross- examination, however, Business Representative Weller substantially conceded knowledge with respect to Thomason's comment. With respect to this aspect of the case, his testimony reads as follows: Q. Now, wasn't it true that these so-called premium incentive plans were discussed at some length in the meeting , particularly, that occurred on March 12, 1963? A. I don't think so, in fact, the company didn't actually propose any incentive rates. Q. Didn't the company advise you and your associates representing the union that they were studying an incentive or premium program? A. That they had and probably were studying it or considering it or something. Q. And that they were anticipating putting one into effect? A. They may have said they would like to or had in mind something like that but they didn't anticipate they were going to put anything into effect. With matters in this posture, I find that Thomason did mention that Respondent was "giving thought" to the possibility of promulgating a premium pay or incentive pay program for glue spreader crews. While a witness, Respondent's general manager testified that the firm's consideration of some possible premium or incentive pay for these crews derived from management's belief that such a plan would be permissible under Respondent's contractually reserved right to pay "premium rate(s) over and above the contractual classified wage rate(s)" which had been set forth within their projected contract's tentative "wage" provision; Thomason, however, could not recall any specific reference to Respondent's presumption regarding the relationship between premium pay plans which the firm' s management was then considering and the projected contract's general "wage" provision. (Summoned as Respondent's witness, Dexter Bright, Montana representative for Timber Products Manufacturers Association, who had been present throughout the negotiations, testified that his notes regarding the March 12 session show "Company is working on an incentive plan for spreader crews under premium clause." [Emphasis supplied.] Such a notation, however, cannot be considered reliable, probative, or sub- stantial evidence that Respondent's negotiators mentioned their reliance upon the projected contract's "premium clause," to justify the firm's consideration of some incentive pay plan for glue spreader crews. Since Bright had previously participated in discussions with management representatives regarding the propriety of some incentive pay plan consistent with the projected contractual provision. his notation could be construed merely as a reflection of his personal conception regarding Re- spondent's presumptive justification ) Final agreements were reached Anril 19 with respect to remaining differences be- tween the negotiators: on May 1, 1963, the negotiated "Working Agreement" between Respondent and the Charging Party was signed. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, on May 20, Respondent posted a plant notice regarding a premium pay schedule for glue spreader crews which management proposed to try for a few months to determine how it [would] work" for those concerned. The plant pro- vided that core feeders, core layers, and sheet turners would receive pay at the rate of $2.5U per hour, contingent upon their particular crew's achievement of certain stated production standards within the firm's regular 2-week pay period; later, these standards were modified to reflect the norms which crews would have to meet within a weekly period. (With respect to each of the three job classifications noted, the posted premium rate represented an hourly pay rate substantially higher than the classified hourly rate called for by the working agreement between Respondent and the Charging Party, previously negotiated. While the classified contractual wage rates for each of the three job classifications varied, the achievement of Respondent's stated production standard by a given glue spreader crew would entitled every mem- ber of the crew in question, regardless of job classifications , to receive the same $2.50 hourly premium rate. ) According to the posted plan, once Respondent's production standard was met, regardless of the degree by which production might execeed such a standard, the premium rate payable would remain the same. The plan made no provision for further premium rate increases commensurate with increased , produc- tion under the plan. Respondent's proposal to.pay $2.50 per hour thus represented a set premium rate declared payable to each glue spreader crew member whenever his particular crew, within a given pay period, reached or exceeded the previously set production goal. The record shows that Respondent's premium pay plan was formulated, and management's bulletin with respect thereto posted, without prior notice to the Charg- ing Party, and without affording union representatives any opportunity to consult or bargain with company spokesmen regarding its propriety . The plan came to the Charging Party's attention , however, when one of Respondent's workers brought a copy of the firm's bulletin to the union office. By letter dated May 27, Business Representative Weller of the Charging Party requested a conference with company representatives to discuss the firm 's premium pay notice . Respondent was advised that: We do not consider this to be premium pay within the meaning of Article XVII, but rather a change in wages made dependent upon a production basis rather than hourly rates agreed upon with the Union. Weller professed the Union's willingness to discuss hourly rate increases or premium hourly rates, generally, but declared that his organization did not consider the subject of production bonuses, or wage rates based upon production standards , properly open for negotiations. . Respondent replied promptly, suggesting a conference date. Thereafter, two meetings were held, the first on June 7 and the second on July 15. During both sessions , union representatives, though given a chance ' to seek a clarification or to negotiate regarding the terms of the firm's incentive bonus or premium pay plan, refused to raise questions or to discuss them . They simply requested the plan's rescis- sion. Shortly after the first meeting noted, Respondent was notified , by letter, that: . we do not consider the unilateral changing of agreed upon hourly wage rates to a method of computing wages by a different method to be proper either under the contract or under statutes regulating collective bargaining relationships . . . . Respondent's representatives, however, maintained their previously declared posi- tion with respect to the propriety of the posted premium compensation plan under the contract's general "wage" provision . They refused to rescind the plan . With matters in this posture, the charge herein was filed. C. Conclusions General Counsel contends that Respondent's May 20 bulletin promulgated a new compensation plan for glue spreader crew personnel, which the firm's newly negotiated contract did not sanction The posted notice, so the argument runs, reflected Re- spondent's promulgation of a group incentive or production bonus plan, which did not provide for the compensation of "particular" workers at some premium hourly rate calculated to reward such workers, particularly, for their special fitness, skill, aptitude, or the like-this, because Respondent 's plan merely provided that each member of a deserving glue spreader crew would receive a uniform premium rate, regardless of job classification , whenever the given crew's production reached or exceeded stated production norms. Respondent, however, argues that article XVII within its current contract permitted management 's promulgation of the "nreminm pay" program now in question-this, because the uniform hourly rate which might C & C PLYWOOD CORPORATION 425 be payable under the plan represented a premium rate payable whenever the firm's stated production norm would be reached or exceeded , and because the capacity of glue spreader crews to satisfy such a production standard would necessarily derive from their possession of "some special fitness, skill ,- aptitude" or the like. Substantially, therefore, this case reflects a dispute with respect to the scope, of Respondent's' contractually reserved right to pay a premium rate conditioned upon the firm's desire to reward particular workers possessed of certain qualifications General Counsel's complaint charges no statutory 'violation severable from this dispute between Respondent' and the Charging Party, derived entirely from their conflicting contract interpretations . (Respondent is,charged , merely, with unilaterally promulgating a group wage incentive plan, without prior consultation and despite union objections . Respondent contends , precisely, that management was free to take such concededly unilateral action without prior consultation , pursuant to its con-, tractually reserved right to pay premium rates for specifically designated purposes.) Certainly these disparate contentions , with respect to the type of wage rate revision which the contract permitted , reveal that the general "wage" provision in question cannot really be considered sufficiently clear, in this particular regard, to forestall disputes regarding its scope . Despite a contrary contention by General Counsel and the Charging Party's representative , no persuasive demonstration has been proffered that Respondent's management, when it promulgated the disputed premium pay plan for glue spreader crew members , was acting in bad faith. (Considerable testimony was received relative to various functions performed by core feeders, core layers, and sheet turners working as members of glue spreader crews; Respondent has suggested that workers within these job classifications must possess certain designated skills, aptitudes , and the like, together with the ability effectively to mesh such "skills, aptitudes and fitnesses" with those of other crew members. Upon the entire record, however, no conclusion need be reached with respect to the substantive merits of Respondent 's view. The belief of the firm's management that each crew member's "skill, aptitude and fitness" could properly be compensated through payment at some uniform premium rate, pursuant to the con- tract's general "wage" provision, certainly cannot be dismissed as lacking rational justification.) General Manager Thomson's decision , so far as the record shows , was con- sciously reached within the framework of his firm's contract, as he construed it, and did not reflect a deliberate attempt to modify or terminate it. See United Telephone Company of the West, 112 NLRB 779. The Board's decision in the cited case, with respect to circumstances substantially comparable , declared that: Regarding the question of which party correctly interpreted the contract, the Board does not ordinarily exercise its jurisdiction to settle such conflicts. As the Board has held for many years , with the approval of the courts: ". . it will not effectuate the statutory policy . . . for the Board to assume the role of policing collective contracts between employers and labor organizations by attempting to decide whether disputes as to the meaning and administration of such contracts constitute unfair labor practices under the Act ." [Citing cases I In this connection, further, see Morton Salt Company , 119 NLRB 1402 , wherein the Board-albeit in a case which did not involve a refusal to bargain-reached a com- parable conclusion. Without passing upon Respondent 's other contentions, I find these considerations dispositive of this case. Within his complaint , General Counsel has charged Respondent with a further refusal, upon union demand , to bargain collectively regarding the newly promulgated group wage incentive plan. With matters in their present posture, however, this con- tention cannot be sustained . Though Respondent's management clearly refused to concede any lack of propriety or justification with respect to the firm's promulgation of the disputed premium pay plan, spokesmen for the Company made manifest, throughout, their readiness to negotiate regarding the specific terms and conditions under which premium pay would be awarded workers on glue spreader crews. Representatives of the Charging Party, however, made no effort to bargain regarding the plan's content. With matters in their present posture, therefore , Respondent can- not be found in default , upon this ground either, with respect to its statutory obliga- tion to bargain i 'On November 118, 1963, counsel for Respondent filed a motion to correct transcript herein The motion listed 138 corrections for the 112-page record While most of the transcript errors cited seem to be without real significance , no protests with respect to the motion have been filed The motion is herewith made part of the record ; correction of the transcript with respect to each of the matters set forth within the motion is hereby ordered. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the light of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. C & C Plywood Corporation is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. 2. Plywood, Lumber and Sawmill Workers Local Union No. 2405, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act, as amended, which admits employees of C & C Plywood Corporation to membership. 3. Respondent did not, through management's promulgation of a premium pay plan for glue spreader crew workers prior to consultation with union representatives, or through its refusal to rescind the plan upon union demand, refuse to. bargain with the Charging Party, within the meaning of Section 8(a) (5) of the Act, as amended; nor has Respondent thereby interfered with, restrained, or coerced employees in their exercise of rights statutorily guaranteed , within the meaning of Section 8(a) (1) of the Act, as amended. RECOMMENDED ORDER Upon these findings of the fact and conclusions of law, and upon the entire record in the case, my recommendation is that the Board, pursuant to Section 10(c) of the National Labor Relations Act, as amended , dismiss the present complaint in its entirety. Cy Tanner d/b/a Tanner's Cleaners and Cleaning and Laundry Workers Union, Local 457, Amalgamated Clothing Workers of America, AFL-CIO. Case No. 5-CA-2671. August 05, 1964 DECISION AND ORDER On May 12, 1964, Trial Examiner Joseph I. Nachman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. He further found that the Re- spondent had not engaged in another unfair labor practice alleged in the complaint and recommended that such allegation be dismissed. Thereafter, the Respondent and the Charging Union each filed excep- tions, with supporting briefs, to the Decision. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Decision, the exceptions and briefs, and the entire record in this case, and here- by adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order the Order recom- 148 NLRB No. 48.