Du Quoin Packing Co.

DU QUOIN PACKING COMPANY 1059 Du Quoin Packing Company and Local P-156 Amalgamated Meat Cutters and Butcher Work- men of North America , AFL-CIO. Case 14-CA-5263 June 24, 1970 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND JENKINS On January 21, 1970, Trial Examiner William J. Brown issued his Decision in the above -entitled proceeding , finding that it was unnecessary to de- cide whether the Respondent had engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner 's Decision together with supporting briefs, and Respondent filed cross-exceptions to the Trial Examiner's Decision together with a support- ing brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner to the extent consistent herewith. The complaint alleges that the Respondent vio- lated Section 8(a)(5) and (1) of the Act by uni- laterally instituting and maintaining in effect a wage incentive system during the term of and in modifi- cation of the existing collective-bargaining agree- ment between the Respondent and the Union, and by failing to consult and bargain with and reach the agreement of the Union concerning such incentive plan. The current agreement extends to September 1971 and provides for the minimum hourly wage rates for all classifications of employees paid on an hourly, daily, or weekly basis. It also provides for the adjustment of grievances by a four-step procedure that terminates in binding arbitration. At a grievance committee hearing on July 14, 1969, the Respondent informed the union represen- tatives that it was about to install an incentive com- pensation plan for the six employees of the sliced bacon department, effective July 21. The plan was placed in effect on July 21, and the Union filed a grievance protesting the installation of the plan as a violation of the collective-bargaining agreement. The Trial Examiner dismissed the complaint, thereby leaving the parties to their voluntarily established dispute settlement procedures. For the reasons set forth below, we agree with the Trial Examiner's dismissal of the complaint.' As indicated in the Trial Examiner 's Decision, on July 14, 1969, the Respondent's representatives and the Union's representatives met on a grievance unrelated to the issues herein. Near the conclusion of the discussion on the grievance, Respondent in- formed the Union that it was about to install an in- centive compensation plan for the six employees working in the sliced bacon department effective July 21, 1969. At issue is the statement allegedly made by Union President Stephens at the time of the announcement by English, the Respondent's in- dustrial relations director. According to English's testimony, which was credited2 by the Trial Examiner, President Stephens asked if the Respondent didn't have to bargain with the Union concerning the plan, and English in- dicated his willingness to do so. Stephens noted that the International's industrial engineer would have to look at the plan. English testified that Stephens did not oppose putting the plan into effect, and that he stated that the Respondent had a right to put the plan in effect, but that it would have to bargain with the Union about the plan. The next committee meeting was held on July 21, 1969. John Hyche, the International field repre- sentative, was present. After the union representa- tives asked questions, they filed a grievance. The Respondent was willing to answer the Union's grievance at the meeting but , at the Union's request, the Respondent delayed its answer until the International 's industrial engineer had a chance to come down and study the plan. Mr. Neiderdeppe , the International's industrial en- gineer, arrived on August 13, discussed the incen- tive plan, and indicated that he saw nothing wrong with it. When English asked if they had an agree- ment about the incentive plan, the International representative indicated they would have to wait for a written report from the industrial engineer. As I Member Brown would affirm the Trial Examiner's findings for the did not credit , Stephens replied to English that the proposed change would reasons stated by the Trial Examiner in his Decision ' According to Union Committeeman Biby, whom the Trial Examiner 183 NLRB No. 108 have to await negotiation time 427-258 O-LT - 74 - 68 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the meeting broke up, Hyche told English to write up the rules and regulations and to let him have a copy. On September 3, English sent Hyche a copy of the plan. On August 26, the union committeemen asked the Respondent to extend the time limit for the Union's expression of a desire to arbitrate a grievance which dealt with the incentive plan.3 The Respondent extended the time. At that time, one committeeman asked where the Respondent was going to put the incentive plan into effect next. No one requested the Respondent not to put the plan into effect, nor did the Union ask that the plan be rescinded. There was another meeting on September 10, in which the incentive plan was discussed further and the committee recessed to work up language. En- glish sent a copy of the revised language to Hyche on September 11, 1969. A September 22 meeting was rescheduled for October 7. Hyche asked that the committee table processing the grievance until November 1, and that possibly a solution could be worked out without a hearing or arbitration. The October 28 meeting was postponed until November 12. After October 28, English called Hyche to seek an agreement to avoid the impending hearing or ar- bitration. There was a meeting on November 6. En- glish once again stated he would like an agreement but he was told there was no chance of reaching an agreement at that time. The Respondent met again with the Union on November 10. At that time, the Union advised the Respondent that they would like to go to arbitra- tion on a grievance. The grievance noted that the wage incentive plan put into effect by the Respon- dent on July 21, 1969, is in violation of the current contract. The Union, while not indicating its ap- proval of the incentive plan at the meeting on July 14, did not indicate its opposition. The Union at no time requested that the incentive plan be discon- tinued. Union Committeeman Leslie Biby admitted that when the committeemen asked the Respondent to negotiate with respect to the incentive plan, English responded that they would supply all of the infor- mation, that the Respondent would negotiate, and that they would allow the Union's industrial en- gineer to come into the plant and study the jobs. Biby testified further that during the period of time that they were meeting concerning the incentive plan, the committeemen received copies of infor- mation from the Respondent. As a general rule, a union's statutory right to be notified and consulted concerning any substantial change in employment may be waived only if such waiver is expressed in clear and unmistakable terms, and such waiver will not lightly be inferred. However, in view of the foregoing, we find, after an evaluation of the negotiations, that the Union and the Respondent fully discussed the wage incentive plan that was announced by the Respondent at the July 14, 1969, meeting with the grievance commit- teemen, and that the Union unmistakably waived its interest in formal negotiation of the matter. As noted above, at the time that English in- troduced the incentive plan at the July 14 meeting, Union President Stephens stated that the Respon- dent had a right to put the plan in effect, but that the Respondent would have to bargain about the plan; Stephens noted that Mr. Neiderdeppe, the In- ternational's industrial engineer, would have to look at the plan; the Union did not express any ob- jection to the plan and asked when the plan was going to be put in effect; the Union's industrial en- gineer studied the incentive plan data at the plant and indicated that he saw nothing wrong with the plan; Hyche, at the August 13 meeting, told English to write up the rules and regulations and to let Hyche have a copy; and the Union did not ask that the plan be rescinded, but rather asked where the Respondent was going to put the incentive plan into effect next. The record evidence supports a finding that the Union was concerned, not with the adop- tion of the incentive plan, but with the revision of some of its language, as indicated by Hyche's sug- gested changes in the language. Additionally, we find that the record evidence supports a finding that the Respondent bargained with the Union concerning the incentive plan in view of the Respondent's timely notice at the July 14 meeting to the committeemen, some of whom had participated in the negotiations for the current contract, of its intention to install the incentive plan on July 21; the Respondent explained tha plan in detail to the committeemen and distributed typewritten material explaining the incentive plan; the Respondent offered to negotiate and to supply all relevant information; the Respondent's industri- al engineer explained the plan; the Respondent of- fered to allow the Union's industrial engineer to come in to the plant to study the plan; the Respon- dent met with the committeemen on July 21, and with Hyche, the International representative; the Respondent honored Hyche's request to allow Neiderdeppe, the International's industrial en- 3 On August 20, 1969, Stephens quit the Respondent's employ and resigned his union office He did not testify at the hearing DU QUOIN PACKING COMPANY gineer, to study the plan and he subsequently found nothing wrong with the plan on August 13; English gave each member of the committee copies of the incentive plan on August 26; the Respondent met with the committee on September 10, and the com- mittee recessed to work up language; the Respon- dent discussed the incentive plan at meetings on October 7 and November 6; and a final meeting was held on November 10, 1969, at which time the Union notified the Respondent that it would like to go to arbitration over the, incentive plan. The record supports the Respondent's contention that the Union did not reject the proposal; the Respon- dent and the Union have been negotiating the is- sues and questions arising from the introduction of the incentive plan; and the Union had agreed to the introduction of the plan, notwithstanding its dif- ficulty with language that was subsequently changed pursuant to the Union's recommendations. We conclude, therefore, that the Respondent's conduct did not constitute, under the circum- stances herein, a violation of Section 8(a)(5). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the complaint herein be, and hereby is, dismissed. TRIAL EXAMINER'S DECISION WILLIAM J. BROWN, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter referred to as the Act, came on to be heard at Pink- neyville, Illinois, on November 13, 1969.' The un- derlying charge of unfair labor practices had been filed on August 15 by the above-indicated Charging Party, hereinafter referred to as the Union, and the complaint herein was issued September 26 by the General Counsel of the National Labor Relations Board, acting through the Board's Regional Director for Region 14. It alleged, in addition to ju- risdictional matter, that the above-indicated Respondent, hereinafter sometimes referred to as the Company, engaged in unfair labor practices defined in Section 8(a)(5) and (1) of the Act. The Company's duly filed answer has denied the com- mission of the unfair labor practices alleged in the complaint; its brief calls for dismissal of the com- plaint in deference to available, and invoked, ar- bitration procedures. ' Dates hereinafter, unless otherwise specified, relate to the year 1969 1061 At the hearing the parties appeared and par- ticipated as noted above with full opportunity to present evidence and argument on the issues. Sub- sequent to the close of the hearing, briefs were received from all parties and have been fully con- sidered. On the entire record herein, and on the basis of my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The pleadings and evidence establish that the Company is a corporation organized under the laws of the State of Illinois with its principal office located at Du Quoin, Illinois, where it operates a meat packing plant. At its Du Quoin plant the Company annually receives, directly from points outside the State of Illinois, goods valued in excess of $50,000 and annually ships, directly to points outside the State of Illinois, goods valued in excess of $50,000. I find, as the Company concedes, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The pleadings and evidence establish that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES At its Du Quoin packing plant, there are some 300 employees in about 14 departments. The Union has been recognized as exclusive bargaining representative of employees engaged in production, maintenance, and delivery operations since 1941. The currect agreement extends to September 1971, and contains union-shop and checkoff clauses. It also provides for the adjustment of differences as to the meaning and application of any provisions of the Agreement or of any local trouble of any kind. These grievance procedures terminate in binding arbitration. The agreement also establishes minimum hourly wage rates for the several classifi- cations of employees. The Company's management hierarchy includes J. T. English, industrial relations director, William G. Brown, industrial engineer; and Charles N. Baughman, personnel director. Union representa- tives, at times herein material, including Local Union President Stephens,' Committeemen Leslie Biby, Walter Mohr, and Eugene Commeans; Union International Representative John Hyche and Inter- national Union Industrial Engineer Skip Neiderdeppe, also participated on behalf of the Union in events herein involved. x Stephens quit the Company's employ August 20 and resigned his union office 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 14 company and union representatives met on a grievance unrelated to the issues herein and, at the conclusion of discussion on the grievance, English informed the union representa- tives that the Company was about to install an in- centive compensation plan for the six employees of the sliced bacon department effective July 21. Ac- cording to Biby, Stephens, who did not testify, stated that such a change would have to await negotiation time; English testified that Stephens said that the Company had the right to install the plan but would have to bargain thereafter. I credit English's account on this. On July 21 the plan was placed in effect in the sliced bacon department and at the outset of a meeting of the parties that afternoon, the Union filed a grievance protesting the installation of the plan as a violation of the collective-bargaining agreement. In the course of this meeting it was ex- plained to the union representatives that the plan would not result in any employee's earning less than the hourly minimum established in the collec- tive-bargaining agreement. Both Hyche and Stephens took the position that the plan should have been negotiated with the Union prior to its in- stallation. In addition, Hyche voiced certain specific objections to the plan itself. The next meeting of the parties took place in the afternoon of August 13. On the morning of that date the Union's industrial engineer, "Skip" Neiderdeppe, and Stephens had discussed the plan with Brown, Baughman, and English. I credit Brown's testimony that Neiderdeppe, who did not testify, stated that the plan was adequate and the best one for the particular industry and that he had no objections to it. In the course of that meeting the Company furnished a written reply to the union grievance to the effect that it believed it had not violated the agreement, and agreed to provide the Union will all the relevant information for negotiat- ing purposes. On August 26 the parties met for discussion of the Union's grievance. The Union had permitted the 10-day period for demanding arbitration, established in the agreement, to lapse without such demand and the Company agreed to waive the limitation to permit arbitration of the grievance. In the course of this meeting the Company announced its intention of installing the incentive plan in the beef kill floor and, when Commeans asked where it might be installed after that, English stated that it would probably be in the luncheon meat and 'GC Exh 3 wiener package line. No objection was voiced at that meeting to the proposed extension of the plan. The plan was made effective respecting the beef kill department's 18 employees on September 8. On September 10 the parties met and discussed union objections to the Company's draft incentive plan. Certain additional language was drafted by the Company to meet certain union objections and the language was presented to the Local Committee and mailed to Hyche. It was agreed to meet again on September 22 but this date was, at Hyche's request, postponed to October 7 when the plan and the grievance were discussed and the union representatives requested a further postponement to November 1. On October 29 the Local Union Committee asked further delay on their grievance until November 12, and the Company agreed. On November 6, however, a meeting was held at which, although no specific union proposals were advanced, Hyche took the position that the plan should have been negotiated. On November 10 the Local Committee requested that the parties proceed to arbitration. Biby's testimony indicates that the parties are proceeding with the arbitration. I agree with the Company that the factors held material in the Board's Decision in Jos. Schlitz Brewing Company, 175 NLRB 141, are present in the instant case and that, without adjudicating the merits of the controversy, the complaint should be dismissed in its entirety, leaving the parties to their voluntarily established dispute settlement procedures. On the basis of the foregoing findings of fact and upon the entire record in this case, I make the fol- lowing: CONCLUSIONS OF LAW 1. The Company is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the purview of Section 2(5) of the Act. 3. In the circumstances of this case it would not effectuate the policies of the Act to issue any remedial order. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law it is recommended that the com- plaint herein be dismissed.