King Radio Corp., Inc.

614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD King Radio Corporation, Inc. and Communication Workers of America, AFL-CIO. Case 17-CA-3249 October 7, 1971 ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On June 28, 1971, the National Labor Relations Board issued an Order in the above-entitled proceed- ing, granting a Joint Motion for Clarification of the Board's Order in this case which is dated July 9, 1968, and reported at 172 NLRB No. 109. In granting the Joint Motion for Clarification the Board, without ruling on the merits of the positions taken by the parties, gave the parties leave, as requested by them, to submit briefs upon which the Board would render final disposition. Thereafter, the General Counsel and the Respondent filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. In its Decision and Order of July 9, 1968, the Board found, inter alga, that the Respondent violated Section 8(a)(5) and (1) of the Act by making unilateral changes in its wage rate progression and wage structure systems while it was under a duty to bargain with the Union with respect to such changes. A change in the Federal minimum wage laws became effective on February 1, 1967, and the Respondent made some increases in the minimum salaries paid to employees in job classifications affected by the new statutory minimum wage standards and in job classifications not thereby affected. Changes in the Respondent's wage rate progression system had the effect of slowing down the rate at which some or all employees could receive increases from the levels of their base pay. The Board's Order directed the Respondent to cease and desist from unilaterally changing the wage rate progressions or wage structure system, and to take the following affirmative action with respect to these unilateral changes: Forthwith abrogate, cancel, and disestablish, in all respects, the wage structure system which Respondent unilaterally established and placed into effect for bargaining unit employees on and since February 1, 1967; provided, however, (a) that all increased minimum wage rates, whether statu- tory or otherwise, for alljob classifications, placed into effect by Respondent for said unit employees on or since February 1, 1967 shall not be abrogated, reduced or otherwise changed without bargaining in good faith with the Union thereon, and (b) that in all respects other than said increased minimum wage rates (whether statutory or otherwise, for all job classifications), the wage rate progressions, wage rate progression system (including automatic wage rate progressions), and all other features of Respondent's wage structure system which were in effect immediately prior to Respondent's said February 1, 1967 unilateral change, shall forthwith be reinstituted and re- stored, and shall not be changed without bargain- ing in good faith with the Union thereon. The quoted portion of the Board's Order was granted enforcement by the Court of Appeals for the Tenth Circuit.' The parties now dispute the meaning of that portion and ask the Board for clarification. The General Counsel contends that where, for example, an employee began earning a minimum wage of $1.40 an hour on February 1, 1967, the Order requires Respondent to reinstitute its old wage progression system and to superimpose it upon the new wage structure so that such employee shall receive automatic increments of 5 cents an hour per month for 4 consecutive months, as he would have received under the old system, making his hourly wage $1.60 after 4 months. On the other hand, under the wage progression system instituted by Respon- dent on February 1, 1967, that employee received an increment of 10 cents an hour after 60 days and additional increments of 5 cents an hour in consecu- tive periods of 90 days, thereby reaching a level of $1.60 an hour only after 240 days. The Respondent contends that inasmuch as it instituted the new progression system only in response to and as part of the new schedule of minimum wage rates (statutory or otherwise), the Board's Order contemplates that the new progression system be retained. We find no justification for reading the Order in the manner now suggested by the Respondent. On the contrary, the Respondent itself previously recognized the Order as demanding what the General Counsel contends it does, for in its brief to the court of appeals in the instant case the Respondent stated: The Board's order apparently intends to require the Company to reinstitute the progression in- creases of 5 cents for four consecutive months for employees who were below the $1.40 an hour rate on February 1, 1967, totally disregarding the Company's increasing those employees from $1.25 to $1.40 an hour, at the same time granting them an additional 10 cents to $1.50 an hour, after 60 I N L R B v King Radio Corporation, Inc, 416 F 2d 569 (C A 10), cert denied 397 U S 1007 193 NLRB No. 98 KING RADIO CORP., INC. 615 days of employment, and 5 [cent] increases each 90 days thereafter ... . We agree that this is the intention of the Board's Order and see no reason to construe it otherwise.2 The Respondent was directed forthwith to reinstitute the wage rate progressions in effect prior to February 1, 1967, thereby paying to its employees all increments upward from the new minimum wage rates (statutory or otherwise) that they would have received had the wage progression system not been unilaterally changed. The Order did not, as contended by the General Counsel, either explicitly or implicitly direct the Respondent to reimburse the employees for any increments they failed to receive from the time the progression system was changed unilaterally up to the time the formula for remedying the unfair labor practice was set forth by the Board. Instead, the Board's Order, in directing reconstitution of the wage rate progressions forthwith, fixes the date of Respon- dent's obligation as of the date of the Order; it contemplates payment of the increases due under the reconstituted progression system from the date of the Order forward, until changed after bargaining as required by the Act. Accordingly, it is hereby ordered that the Board's Order dated July 9, 1968, be, and it hereby is, clarified as directing the Respondent to reconstitute and restore its wage rate progressions in existence immedi- ately prior to the changes adopted on February 1, 1967, such restoration not to be restricted, limited, or diminished by that provision of the Order directing Respondent to retain its increased minimum wage rates. 2 As for the contention that the Order, thus construed , is punitive and beyond the Board's power to remedy unfair labor practices , that argument was made to, and rejected by, the court of appeals