Coppus Engineering Corp.

COPPUS ENGINEERING CORP. 595 Coppus Engineering Corporation and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Lodge 748, AFL-CIO. Case 1-CA-7101 February 28, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On December 29, 1970, Trial Examiner Sidney J. Barban issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting 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 Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the' exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. 1. The Trial Examiner found that the Respondent violated Section 8(a)(5) and (1) of the Act by unilater- ally discontinuing its past practice of holding an annual report party for its employees. We do not agree. Al- though we are satisfied, as the Trial Examiner found, that the report party constituted an employee benefit, the Respondent's conduct under all the circumstances in this case cannot be considered violative of Section 8(a)(5) of the Act. The record reflects that beginning in 1963, and con- tinuing until 1970, the Respondent provided an annual party for its employees, typically during February or March, which was held during the evening and con- sisted of a cocktail hour, dinner, and entertainment. During the party, various corporate officers reported to the employees on the Company's performance during the prior year, as well as prospects and plans for the coming year. The Respondent bore the entire expense of the party and all employees, including their spouses or dates, were invited. The 1969 party, which was held in March, cost approximately $2,200. 195 NLRB No. 113 Following certification of the Union, the parties commenced negotiations in August 1969 and, after 20-25 bargaining sessions, executed a' collective-bar- gaining agreement on December 18, 1969, effective from November 24, 1969, until November 24, 1972. The collective-bargaining agreement guarantees the continuation of certain existing employee benefits, in- cluding a Christmas bonus and turkey, but contains no reference to the report party. The - Respondent primarily defended the elimination of the report party on its assertion that the Union effectively waived its right to bargain over this matter by its unsuccessful attempts during negotiations to obtain a clause guaran- teeing continuation of this benefit. The Trial Examiner, however, rejected this defense and found that the Union had not clearly and unmistakably waived its statutory right to be consulted prior to the discontinu- ance of existing employee benefits.' It is undisputed that management representatives of the Respondent met sometime in February 1970, as they had in prior years, to discuss the subject of the annual report party. Due to concern over the growing ineffectiveness of a party format as a means of reporting to the employees on the Company's performance, it was decided that the party format would be eliminated and changed to one of a general employee meeting -to be held during working hours, followed by separate departmental meetings.2 Subsequent to this manage- ment meeting, the Respondent announced in an em- ployee bulletin dated February 13, 1970, that, "Our report party will not be held this year in its previous format or location. We do plan more effective means of reporting to employees on Company performance and plans." Although the Union was not notified of the impend- ing elimination of the report party prior to the Febru- ary 13 announcement, the 1970 report meeting was not in fact held until some 3 months later, in May 1970, when the Respondent inaugurated the new format of reporting on its performance to the employees. There is no evidence that during this 3-month period the Union made any effort whatsoever to request bargain- ing over the planned elimination of the report party. It was not until the report meeting in May 1970, when the elimination of the report party had become an actual- ity, that any union representative questioned the reason for its discontinuation. Even then, however, the union ' Although the Respondent renews this waiver argument in its exceptions to the Trial Examiner's Decision, we find it unnecessary to pass upon this issue in view of our disposition herein. ' The Trial Examiner found that an additional reason for the elimination of the report party, as the Respondent's President Forkey subsequently informed a union representative at the May 1970 report meeting, was the increased costs to the Respondent occasioned by execution of the collective- bargaining agreement. There is no allegation, however, that the elimination of the report party was discriminatorily motivated, nor would the record in any way support any such inference. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative did not object or request bargaining over this matter. Nor did the original unfair labor practice charge, filed on May 5, 1970, allege that the Respond- ent had breached its bargaining obligation by eliminat- ing the report party, and this allegation was never raised until a first amended charge was filed on June 3, 1970. Based on the foregoing circumstances, we believe that the February announcement of the elimination of the report party, although made without prior notice to the Union, was not such as would itself undermine the bargaining authority of the Union nor is there any indication that Respondent's prior decision to elimi- nate the party was irrevocable, or that it would have been futile for the Union to test the Respondent's good faith by making a timely request for bargaining over this matter. We therefore conclude that by failing to protest or request bargaining, the Union effectively waived its right to assert that Respondent's conduct in eliminating the report party constitutes unilateral ac- tion violative of Section 8(a)(5) of the Act.' 2. Further we do not agree with-the Trial Examiner's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing the shift hours and conditions of employment of employees working on Saturday. We find merit to the Respond- ent's exceptions that this controversy should be de- ferred to the grievance-arbitration procedures agreed to by the parties. In rejecting Respondent's defense in this regard, the Trial Examiner found that while the Union had filed a grievance over the change in the Saturday shift schedule, the Respondent had not taken any action to submit the controversy to arbitration and there was "no doubt of the Board's authority to decide this issue rather than require the union initially to go to grievance and arbitration." After reviewing the record, however, we are con- vinced that the issue raised concerning the change in the Saturday shift schedule basically involves a ques- tion of contract interpretation, rather,than one of the Respondent's obligation under Section 8(a)(5) of the Act to refrain from unilaterally changing the em- ployees' wages, hours, or working conditions. Thus, the Respondent contends that when it changed the work schedule in January 1970 to require that employees working beyond noon on Saturday work until 3:30 p.m., with a one-half hour unpaid lunch period,4 it was ' See Emeryville Research Center, 184 NLRB No. 53; Holiday Inn Cen- tral, 181 NLRB 997; Hartmann Luggage Company, 173 NLRB 1254; Humble Oil & Refining Company, 161 NLRB 714; Justeson'sFood Stores, Inc, et al., 160 NLRB 687; Motorresearch CompanyandKems Corporation, 138 NLRB 1490. It is undisputed that prior to January 1970 Respondent's past practice with respect to employees required to work beyond 12 noon on Saturday was for those employees to work from 7 a.m. until 3 p.m with a paid lunch period. Although the Trial Examiner found that the record was not entirely merelyimplementing the terms of the recently executed collective-bargaining agreement, which provides in ar- ticle 7, section 1 that "the first shift shall run from 7:00 a.m. to 3:30 p.m. with a 30-minute lunch period." Al- though the parties never specifically discussed the sub- ject of the Saturday work schedule during the negotia- tions leading up to the collective-bargaining agreement, and there was never any clear meeting of the minds on the issue, the record establishes that the position taken by the Respondent was not patently erroneous, but was based upon a reasonable interpretation of ambiguous, if not conflicting, contractual provisions.' It is well established that the Board clearly has the authority to interpret contractual provisions where necessary to resolve unfair labor practice issues.' The lack of any need or reason for exercising that authority in the instant case, however, is persuasively demon- strated, in addition to the other factors noted, by the minimal effect which the Respondent's alleged unilat- eral conduct has had-upon bargaining unit employee. It is undisputed that it is "very rare" for any of the Respondent's employees to work beyond noon on Saturday. During a discussion with union ,representa- tives over this issue sometime in March 1970, the Re- spondent's Plant Manager Munroe further limited the impact of the shift schedule change when he informed the Union that if only one to three employees were assigned to work beyond noon on Saturday, they would be permitted, as in the past, to quit at 3 p.m.; it was only when more than three employees were involved that the Respondent would require them to work until 3:30 p.m. In addition, the General Counsel presented evi- dence of only a single instance where application of the change in the Saturday shift schedule had anydetri- mental effect on bargaining unit employees. This oc- curred sometime in January 1970, when two employees worked until 3 p.m. on a particular Saturday, but were only paid for 7-% rather than 8 hours as in the past. Although the record is not entirely clear on this point, it appears that it was this particular incident that prompted the Union to file a grievance over this matter. clear in this regard, it appears that the net effect of the change in the Saturday work schedule was to eliminate the paid lunch period for those employees required to work a full shift ' Other contractual provisions which may be relevant include the man- agement rights clause, article 3, section 1, which includes inter aha, the Respondent's right "to schedule the hours of work," and also article 7, section 2, which provides that "the present work schedule shall be main- tained as far as possible," but which permits changes in the shift schedules "by mutual agreement between the union and the employer " This latter clause further provides that where the parties are unable to agree to a change in the shift schedule, ",the Company shall have the right to institute such changes and the union shall have recourse to the grievance procedure." In addition, article 7, section 3, recognizes that "from time to time it may be necessary to establish different working hours on a regular basis for individu- als or groups within any of the 3 shifts," and that such changes "shall not be deemed to violate the shift schedule," 6 See, e.g, N.L.R.B. v. C & C Plywood Corporation, 385 U.S. 421 COPPUS ENGINEERING CORP. Finally we note that not only has the Union invoked the grievance-arbitration procedure with respect to this controversy, but the grievance has been the subject of numerous discussions between the parties and was still pending at the time of the hearing in this case. Al- though the grievance has not been submitted to arbitra- tion, access to that tribunal remains open. The Re- spondent, moreover, has expressed _ a willingness to have the dispute. resolved in this manner, and any deci- sion reached by an arbitrator would be final and bind- ing upon the parties. As we stated in Collyer,7 where "the contract and its meaning ... lie at the center of the dispute and the parties' contract contains voluntary arbitration ma- chinery to resolve such disputes, deferral to arbitration will best effectuate the purposes of the Act. Such is the situation here. Accordingly, for the reasons expressed in Collyer, we shall defer herein to the parties' contrac- tual settlement procedures. THE REMEDY Without prejudice to any party and without deciding the merits of the Saturday shift schedule controversy, we shall order that the complaint herein be dismissed, but we shall retain jurisdiction for a limited purpose. As we noted in Collyer, supra, our decision represented a developmental step in the Board's treatment of these problems, and the controversy here arose at a time when the Board decisions may have led the parties to conclude that the Board approved dual litigation of this controversy before the Board and before an arbitrator. We are also aware that the parties herein have not resolved their dispute by the contractual grievance and arbitration procedure and that, therefore, we cannot now inquire whether the resolution of the dispute will comport with the standards set forth in Spielberg.I In order to eliminate the risk of prejudice to any party we shall retain jurisdiction over the Saturday shift schedule dispute solely for the purpose of entertaining appropriate and timely motions for further considera- tion upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this Decision, been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the grievance or arbitration proce- dures have not been fair and regular or have reached a result which is repugnant to the Act.' Collyer Insulated Wire, 192 NLRB No 150 Spielberg Manufacturing Co, 112 NLRB 1080 Collyer Insulated Wire, supra. ORDER 597 Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed; provided, however that: Jurisdiction of this proceeding is hereby retained for the limited purposes indicated in that portion of our Decision and Order herein entitled "Remedy." MEMBER JENKINS, dissenting: Concerning the Respondent's unilateral cancellation of its annual report party, I would affirm the Trial Examiner's finding of a violation, for the reasons ex- pressed in his Decision. The Union attempted to obtain a provision in the bargaining agreement establishing the party and failed. This does not amount to a waiver, nor give the Respondent the right to rescind the prac- tice unilaterally without bargaining about it.10 Re- spondent's February 13 announcement, after which union inaction in not requesting bargaining amounted to a waiver in my colleagues' view, was not an an- nouncement that the party was not to be held, but that it would not be held "in its previous format or loca- tion." This announcement can only mean that the party would be held, but would be a different kind of party. I am unable to understand how such an announcement can establish any responsibility by the Union to request bargaining over cancellation of the party under pain, by waiver, of allowing the Respondent to cancel the party unilaterally-the very thing Respondent's announce- ment indicated would not be done. As for deferring to arbitration the Respondent's uni- lateral change in the Saturday shift schedule, I would determine the merits of this alleged violation for the reasons expressed in my dissent in Collyer Insulated Wire, 192 NLRB No. 150. 'o CloverleafDzvision of Adams Dairy Co., 147 NLRB 1410, 1413, The Timken Roller Bearing Co., 138 NLRB 15, enfd 325 F.2d 746 (C A. 6); General Electric Company, 173 NLRB 164, enfd. 414 F 2d 918. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Trial Examiner: This matter was heard at Worcester, Massachusetts, on September 22, 1970. The complaint, issued on August 12, 1970, based upon charges filed on May 5, 1970, and June 3, 1970, alleges that the above-named Respondent violated Section 8(a)(1) and (5) of the Act, by unilaterally changing certain working condi- tions and benefits previously enjoyed by employees in the unit represented by the above-named Charging Party, herein called the Union. Respondent's answer denies the commis- sion of any unfair labor practices but admits allegations of the complaint sufficient to justify the assertion of jurisdiction under current standards of the Board and to support a finding that the Union is a labor organization within the meaning of the Act. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in this case, from observation of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent, the Trial Examiner makes the following: FINDINGS AND CONCLUSIONS I THE ISSUES 1. The "Report Party. "Prior to the date that the Respond- ent and the Union entered into their first collective -bargain- ing contract, the Respondent had granted several benefits to its employees including an annual affair called "the report party." After the execution of the contract the Respondent, without affording the Union an opportunity to discuss the matter, discontinued the report party. The General Counsel contends that this unilateral action in respect to the report party, an asserted working condition, violated Respondent's obligation to bargain with the Union concerning the estab- lishment br alteration of employee working conditions. Re- spondent contends, in effect, that this issue was fully dis- cussed during contract negotiations and that by signing the agreement, which does not guarantee the report party, the Union agreed that its continuance should be discretionary with Respondent and waived any right to further bargain on the issue, and that this is further borne out by certain lan- guage in the Purpose and Intent and Management Rights clauses of the agreement,, which are set forth hereinafter. 2. The Saturday Work Schedule. For several years prior to the effective date ofthe collective-bargaining agreement, Re- spondent had maintained a work schedule on its day shift, Monday through Friday, ,beginning at 7 a.m. and ending at 3:30 p.m. On Saturdays, the normal work schedule ran from 7 a.m. until noon . On infrequent occasions, employees (usu- ally not many) would work beyond noon on Saturdays. On such occasions they would receive a paid lunch period and were excused at 3 p.m. for which they received 8 hours' pay. The collective-bargaining agreement sets forth the ,hours of work which had been normal for Monday through ' Friday, but does not specifically limit these hours to any days of the week. After the effective date the contract , Respondent, with- out notification to the Union, insisted that the hours of work set forth in the contract applied to Saturday work performed beyond noon and refused to pay employees who worked until 3 p.m. on Saturday a full 8-hours' pay. General Counsel contends that by these actions Respondent has unilaterally altered employee working conditions in violation of the Act. Respondent asserts that the schedule contained in the con- tract was bargained for by the parties and thus is applicable to Saturday work under the agreement . Respondent further contends that under certain specific terms of the contract, set forth hereinafter, the Union agreed that it would submit is- sues concerning changes in shift schedules to which it had not assented to the grievance process. II THE FACTS The Union was certified as the exclusive representative of the production and maintenance employees of Respondent as the result of an election conducted by the Regional Director of the Board on March 6, 1969.1 After some 20 to 25 meet- ' The election was held in the following unit which is found constitutes a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and maintenance em- ployees employed by the Respondent at its Worcester, Massachusetts plant, including leadmen, truckdrivers, testers, traffic coordinator, snag- gers, and expeditors, but excluding all office clerical employees, engi- neer draftsmen, engineering clerical employees , casual employees, sea- ings, the Respondent and Union executed a written contract on December 18, 1969, effective from November 24, 1969, until November 24, 1972. A. The Report Party Since 1963 until 1970, Respondent has annually, in about February or March, provided an evening affair for production and maintenance employees and others , together with their spouses and dates, at which management reported to the employees on the progress of the company and its prospects. Food and beverages were supplied by Respondent. It was testified that one such party recently cost $2,200. During the campaign prior to the election, in a letter to the employees dated February 7, 1969, Respondent listed a num- ber of "financial or fringe benefits" provided by Respondent for the "protection, leisure and security" of its employees, as part of its argument that the employees should reject the Union. Among those set forth : "SOCIAL FUNCTIONS - Outing, Old Timers and Report Parties are held each year." Later in the campaign, in asserted answer to union arguments that Respondent might take away the benefits previously granted by management , Respondent denied that it wanted to take away the benefits which had been granted. At the outset of the negotations, the Union presented its written proposal for an agreement . Respondent countered with a written proposal on its own . So far as appears, the report party and other similar fringe benefits were not specifi- cally mentioned in the written proposals . At a meeting in September (at which Peter H. Horstmann, vice president of Respondent, Duane T. Sargisson, Respondent's counsel, Gus Coontz, an officer of Respondent, and others represented Respondent, and Vincent J. Curran, Union International rep- resentative, employees Lisardo Rio, Joseph C. Camarra, and others represented the Union) the Union requested Respond- ent to include various fringe benefits including the report party in the contract . Respondent's response was that it con- sidered these items as discretionary on its part and desired to have them outside the agreement; if included, they would have to be negotiated as part of the economic basis for the agreement. The Union stated that it wanted to pass the issue at that time. At a later meeting (attended by those named above and possibly others), the issue was raised again. According to the testimony of Horstmann , which is not inconsistent with other evidence in this respect, the following occurred: There was a discussion, a request on the part of the Union, that items like the report party be guaranteed later on in the negotiations ... We indicated the same position, essentially, as originally, that we would not guarantee them unless they were counted as economic items in the contract ... if they were left out of the con- tract it was for the reason that we did not want to guarantee them. We would not take credit for them economically. On each of the occasions during the negotiations when the report party was raised during the negotiations, Respondent advised the Union at the time that it had no plans to discon- tinue the report party. No other evidence of negotiations on the subject appears. The report party was not included in the final bargaining contract signed by the Respondent and the Union.2 sonal employees, professional employees, technical employees, sales- men, guards, factor manager, foremen and all other supervisors as defined in the Act From the fact that the Union signed the contract although it contained no reference to the report party, Horstmann stated his conclusions that the Union agreed to leave the continuance of this matter to the discretion of COPPUS ENGINEERING CORP. 599 A survey of the final agreement shows that a number of the items mentioned in, Respondent's letter of February 7 are covered in the contract (e.g., vacations, holidays, pension plan, hospitalization, life insurance, educational assistance, etc.). Respondent refers in particular , however, to Article 32, "Additional Benefits" in which it agreed to continue its previ- ous practices in respect to granting a Christmas bonus and giving a Christmas turkey, but providing for no other similar benefits. In a long bulletin dated February 13, 1970, devoted to a number of matters, the employees were notified that the re- port party would not be held in 1970 as previously, but "a more effective means of reporting ..` . Company performance and plans" was contemplated. The Union was not notified or afforded an opportunity to bargain on this item prior to its announcement . Thereafter, beginning in May, Respondent began a series of report meetings during working hours at which company progress and plans were discussed. At the first of these meetings, Camarra, the president of the Union asked Forkey, the president of Respondent, if a party was going to be held . According to General Counsel's witness Rio, Forkey replied "that we were not having a report party, as such, . . . that was why we were having the type of meeting that we had and that we, hoped to have better communica- tions with the employees , along those lines," and further in respect to the reason for discontinuing the report part, For- key "said that the cost of unionization was so great that it rather-well, that it was rather expensive for him to have them." According to Respondent's Vice President Horst- mann, Forkey did state, on this occasion, that the report party was being discontinued in favor of better reporting methods, that he expected the cost of the report meetings would "be on the order of a typical report party,"3 and that Forkey also "included the fact that the cost of unionization was also significant," but, Horstmann asserts, this was not made "as a comparison or the balance with the report party." Upon consideration of the two versions, which are really not significantly different, it is found that Forkey cited as one reason for the discontinuance of the report party , the cost of the contract to Respondent . In the circumstances , whether Forkey specifically said that the new report meetings would be less expensive , that would be a reasonable inference from his comment. General Counsel further showed that a number of benefits which the employees had enjoyed prior to unionization (e.g., coffeebreaks, family outing, old-timers party) which were not included in the collective-bargaining agreement have been continued as previously. Respondent. It was the observation of the Examiner from the manner of his testimony as well as from its content that Horstmann had a tendency to testify to his subjective conclusions with respect to the negotiations as objective facts. Horstmann thereafter admitted that he did not remember what the union negotiators said in this respect and that it was his interpreta- tion that the Union had agreed to permit Respondent to discontinue the report party at will. Under the circumstances , Horstmann's testimony that the Union specifically agreed to this is not credited J Horstmann testified that the report meetings would approximate the cost of a recent report party , about $2,200, apparently based upon the cost of employee wages, benefits and taxes for the periods the report meetings were held during working hours The comparison is hardly satisfactory In the case of the party, Respondent's cost was a clear out-of-pocket expendi- ture. In the case of the report meetings the true loss was the value of the production and services lost, which may have been less than the out-of- pocket cost of the report party, but not necessarily so B. Saturday Work As previous noted, prior to the unionization of the production and maintenance employees, Respondent's estab- lished practice with respect to Saturday work was to pay employees who worked past noon for a full 8 hours work for performance from 7 :00 a.m. to 3:00 p.m., with time for lunch and coffee breaks. On other days of the week, the work shcedule on the first shift was from 7 :00 a.m. to 3:30 p.m., with the coffeebreaks and an unpaid '/z-hour lunch period. In the experience of the employees who testified, very few em- ployees, on very few occasions, worked beyond noon on Saturdays for Respondent. - In January 1970, Respondent began applying to employees who worked past noon on Saturdays the work schedule which had previously been applicable only from Monday through Friday. This was done without notice to or consultation with the Union. Respondent asserts that this was done in conform- ance with the terms of the contract as discussed hereinunder. According to the testimony of Union President Camarra, when Respondent officials were questioned about this change in practice,, they stated that if only a few (one to three) em- ployees worked, the Respondent would follow its previous practice, but if more than that number worked past noon on Saturday, Respondent was concerned that this might become very costly. It was indicated that Respondent was thinking of the possibility that the entire shop might be required to work. The Union filed a grievance under the agreement because of this action of Respondent, which is pending. According to Horstmann; the matter is appropriate for arbitration. Both Lisardo and Camarra,'who represented the Union at the negotiations, testified that there was no proposal by the Respondent or discussion during the negotiations with re- spect to changing the closing hour on Saturday, and Lisardo denied that, the Union at any time agreed to the change. Insofar as the record reveals, the bargaining on this subject developed-as follows: The Union 's original proposal concern- ing "Hours of Work" (art. VII) provided, in part, that "The regular work week shall consist of an eight (8) hour day and forty (40) hour week beginning with Monday through Friday, inclusive." The proposal contained no specific provision for shift starting time or quitting time. Thereafter, Respondent made two written counterproposals to the Union . Insofar as the quoted matter above is concerned , the counterproposals were identical with the Union's proposal.'Horstmann testified that this part of the proposal was agreed . At a subsequent meeting, the Union submitted a rough handwritten piece of paper headed up "Shift hours", which specified no days of the week but clearly set forth what had been Respondent's shift hours 'for its first and second shifts, Monday through Friday (the handwritten proposal also set forth` hours of work for a third shift which the Respondent ' had never had). The proposal also requested a paid Y,-hour lunch period for the second and third shifts, with a _, proposal that if the shop operated on a three-shift basis, each shift should be of 2 hours duration and each receive a half hour paid lunch. Horstmann testified that the discussion on this proposal on that day involved the issue of paid lunch on the first shift in particular, also the coffeebreak and washup time. He states that there was no discussion concerning changes in shift schedules. It was agreed that Respondent would reword the "Hours of Work" article and submit it for further discussion. The following day, the Respondent submitted a draft "Hours of Work" proposal. This draft did not contain the previously agreed upon language providing that the regular work week would be from Monday through Friday. It did provide for shift hours for a first and second shift which were identical with the normal hours previously worked from Monday through Friday, and also provided for shift hours for 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a third shift. The proposal also provided that Respondent could change these shift schedules upon at least 3 days' notice to the Union, and that different work hours could be estab- lished for individuals or groups within a shift. According to Horstmann, this proposal was submitted by Respondent's counsel, who stated that this was Respondent's response to the Union's request of the preceding day and was intended as "a general and complete" proposal with respect to hours of work. Ther was no discussion of the application of the shift schedules to any specific day of the week. A principal point of discussion centered on the proposal that Respondent might change the shift schedule on notice to the Union, as a result of which it was' agreed that such changes could be made "by mutual agreement between [the Union and the Respondent],-but if Respondent and the Union could not agree on the proposed changes in shift hours, Respondent might make the change, but the Union should "have recourse to the grievance procedure." There was discussion of paid lunch periods, but no change was made in the Respondent's proposal. It was also agreed to add to the proposal a provision that the contract did not constitute a guarantee of hours of work or days of work in a week. With these changes the language of the Respondent's proposal was'agreed and ap- pears in the final agreement.4 III ANALYSIS AND CONCLUSIONS The general principles of law applicable to the issues in- volved here are well established. Thus, Respondent is not only obligated to bargain exclusively with the chosen repre- sentative of its employees concerning their terms and condi- tions of employment, but is also obligated under the Act not to change established employment conditions without con- sultation and bargaining with the representative of its em- ployees, in the absence of circumstances excusing or justify- ing such unilateral action. N.L.R.B. v. Katz, 369 U.S. 736. This right to be consulted may be waived by the Union, but it must be shown that the Union clearly, consciously, and unmistakably waived its statutory right to be consulted as to the change in question. See Clifton Precision Products Divi- sion, 156 NLRB 555, 562, 563, and cases cited. Nor is such waiver established by the mere fact that the condition or term of employment was discussed during contract negotiations, but is not contained in the resulting contract. See Clifton Precision Products, supra, at p. 563, and cases cited. As the Board stated in The Press Company, Inc., 121 NLRB 976, at pp. 997-978 (fn. omitted): "It is well established Board precedent that, although a subject has been discussed in precontract negotiations and has not been specifically covered in the resulting contract, the employer violates Section'8(a)(5) of the Act 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 the union `consciously yielded' or clearly and unmistakably waived its interest in the matter."5 A. The Report Party There is no question but that the Respondent and the employees considered the annual report party, at which Re- spondent furnished an evening meal and refreshments'for employees and their spouses or dates, as a benefit of employ- ment. Respondent had given such a party annually since 1963. In its campaign urging the employees not to vote for the Union, Respondent listed this item- as one of the benefits enjoyed by the employees, which Respondent said, counter- ing Union arguments to the employees, Respondent did not desire to take away from the employees. Under the circum- stances, absent justification for its action, Respondent was not privileged to unilaterally discontinue this fringe benefit with- out affording the Union an opportunity to dscuss the matter. See Wald Manufacturing Company, Inc. v. NLR.B. 426 F.2d 1328 (unilateral discontinuance of picnic and Christmas party); Southland Paper Mills, Inc., supra. (unilateral discon- tinuance of right to hunt on game preserve). The Respondent, however, argues in essence that the Union "waived its right to insist on further negotiations when it signed the contract absent the report party clause which it repeatedly sought and was refused," and by certain clauses in the final agreement asserted to reserve the continuance of this benefit, to Respondent's discretion.' The facts show that on two occasions during the negotia- tions the Union requested the Respondent to include all of the fringe benefits enjoyed by the employees, including the report party, in the contract as items which Respondent would promise to continue for the term of the agreement. On each occasion, Respondent asserted that it did not want to guaran- tee the continuance of these benefits, but wanted to decide in the future whether to continue these matters. However, on both occasions the Respondent advised the Union that it had no intention at that time to eliminate any of these benefits. No other discussion of the report party during the negotaations appears. At some other time, under circumstances which do not appear, the Respondent did agree to include two fringe benefits, the Christmas bonus and the Christmas turkey, in the contract. Other fringe benefits not mentioned in the con- tract, of a character similar to the report party, have never- theless not been discontinued by Respondent. The contract clauses relied upon, set forth in footnote 6, above, clearly do not serve to establish that the Union con- sciously, clearly and unmistakably waived its statutory right to be consulted prior to the discontinuance of existing em- ployee benefits. While these clauses, and the articles of which they are a part, seek to limit the matters granted by Respond- thereafter. To the extent that those cases may indicate such a principle as a per se rule, the Board has' not adopted it. See, e g., Southland Paper Mills, Inc., 161 NLRB 1077 (esp. at p 1085), see also Leeds & Northrup Co. v. N.L.R.B., 391 F.2d 874, 878, holding that in such situations waiver is a factual matter to be determined on the record as a whole. In a very recent case-finding waiver, the Board reiterated the principle that such waiver must be "expressed in clear and unmistakable terms," and "will not lightly be inferred." See L. C Cassidy & Son, Inc., 185 NLRB No 134. See also, C & C Plywood Corporation, 148 NLRB 414, 416, enfd. 385 U.S. 421. ' The contract language ,referred to is the following: 4 At other places in his testimony, Horstmann asserted that Respondent specifically advised the Union that the shift hours in Respondent's proposal applied to all days, of the week, and that the Union agreed to this. This is not credited. From observation of the witness, and from the record as a whole, I am convinced that these assertions were interpretative rather than factual. 5 Respondent cites N.L.R.B. v Nash-Finch Company, 211 F.2d 622, and Intermountain Equipment Company v NLR.B., 239 F.2d 480, in support of its argument that, by signing the final contract which made no reference to the report party, after Respondent had refused to include a guarantee of that matter in the agreement, the Union waived its right to be consulted Article 1. Purpose and Intent This agreement is intended to set forth all the rights of the union and the employees, all of which anse as a result of this agreement Article 3. Management Rights any rights or authority the company had prior to the signing of this agreement shall be retained by the company except those rights which are specifically modified by the express provisions of this agreement COPPUS ENGINEERING CORP. 601 ent in the contract, they are far too general to evidence a specific intent to cancel rights which existed by reason of the statute quite apart from the contract or any grant of the Respondent. Cf. N.LR.B. v. C& CPlywood Corporation, 385 U.S. 421 (esp. fn. 4); see Unit Drop Forge Division, 171 NLRB No. 73. Although it is asserted that Respondent retains any right it had prior to the execution of the contract (except that specifically granted in the contract ), it must be kept in mind that even prior to the contract , after the certification of the Union as the exclusive representative of the unit employees, Respondent had no right to change conditions of employ- ment of those employees without consulting their representa- tive. The issue is whether the Union has specifically agreed to give up that right to be consulted: All that the record shows is that on two occasions, the Union sought to have Respondent agree to continue the re- port party and other benefits for the term of the contract. Respondent refused. In doing so, however, Respondent ad- vised the Union that it had no intent to discontinue any of these benefits. In these circumstances, as to the report party and some other benefits, the Union desisted from its efforts to have these benefits guaranteed for the term of the agree- ment. But this is a far cry from showing that the Union agreed that if Respondent decided during the term of the contract to change conditions not enumerated in the contract, it might do so unilaterally and without consulting with the Union. On the basis of the above analysis and the record as a whole, it is found that the Union did not agree that Re- spondent should have the right to unilaterally discontinue the report party or waive its right to be consulted or bargain upon the issue. Finally, Respondent argues that even if a violation be found, it is merely technical, "that the social aspect of the report meeting is de minimus and no significant detriment resulted to employees in the bargaining unit," and further that, by substituting "report meetings" during working hours for the report party dinner affairs, all that occurred was a "shift in format" for reporting to the employees concerning Respondent's business. However, whatever relative impor- tance the report party might appear to have to the Examiner, it seems clear that the matter of its discontinuance has consid- erable significance to both the Respondent and the em- ployees. In fact, the record shows that Respondent discon- tinued the report party in significant part in an attempt to recoup part of the expense of the contract just negotiated with the Union.' In the circumstances, the matter can hardly be denominated as de minimis. Having refused to guarantee the continuance of the report party for the term of the contract, Respondent was, indeed, free to propose a change in the format of its reports to the employees. But it could not effec- tuate the change without prior consultation and bargaining with the Union . As stated by the Court of Appeals for the Fifth Circuit in Armstrong Cork Co. v. N.L. R.B., 211 F. 2d 843, at p. 847, in a related context, "Good faith compliance with Section 8(a)(5) and (1) of the Act presupposes that an employer will not alter existing `conditions of employment' without first consulting the exclusive bargaining representa- tive selected by his employees and granting it an opportunity to negotiate on any proposed changes." Unilateral changes, such as that involved here, as the Court stated, "naturally [tend] to undermine the authority of the certified bargaining agent and [violate] the above sections of the Act." ' Respondent thus used the report party, in part, to modify the economic cost of the collective agreement just negotiated, although it had previously discouraged the Union from seeking to include the report party and other benefits in the agreement to avoid that very result. For the reasons stated, and on the entire record , it is found that Respondent, by unilaterally discontinuing its past prac- tice of holding a report party , as set forth herein, violated Section 8(a)(5) and (1) of the act. B. Saturday Hours of Work After execution of the collective agreement, Respondent, without notice to the Union, changed its prior practice of paying employees for a full day for work performed on Satur- day from 7 a.m. to 3 p.m., and required that those employees work until 3:30 p.m., which had been the prior practice on the first shift for work from Monday through Friday only. It would also appear that Respondent has also withdrawn the paid lunch period previously given to such employees on Saturday, (but not given to first shift workers on Monday through Friday) though this is not as clear in the record as it might be. Respondent's asserted basis for making these changes is that while the contract sets forth shift hours which are identical with those that prevailed previously from Mon- day through Friday (and provides for an unpaid lunch period for the first shift as had been the prior practice from Monday through Friday), the contract does not specify that these terms are applicable only to work performed on Monday through Friday, and no specific shift hours for Saturday ap- pear in the agreement. The Respondent therefore claims that the shift hours in.the contract apply to all workdays. Respondent further argues that even if this were not so, "the union bargained away its right for further negotiations by agreeing that the company shall have the unilateral right to institute changes and the union would have recourse to the grievance procedure."' In elaboration of this the Respondent contends that even if it acted "improperly ", the grievance procedure "is specifically established as the forum for resolv- ing the dispute," and Respondent had the right to act in reliance upon the contract "and require the. union to first proceed to binding arbitration." At no time during the negotiations between the Union and the Respondent for the bargaining agreement was there any discussion of changing the established Saturday work hours. In fact, the parties did not mention Saturday hours of work during the negotiations, so far as this record shows. After the parties had agreed that the contract should contain a clause defining Monday through Friday as the "regular work week," the Union requested that the same article of the contract contain the specific shift hours which the employees were then working from Monday through Friday (as well as hours for a third shift which was not in operation ). When drafted by Respondent, however, the article contained no reference to the "regular work week" of Monday through Friday, but set forth only the shift hours. There was no discussion of this omission, or reason given for it. Instead , the discussion seems to have centered upon Respondent's additional proposal that it retain the right to change the shift hours with notice to the Union. With respect to this proposal , the final agreement provides that such changes may be made "by mutual agree- Section 2 of article 7, "Hours of Work," to which Respondent refers, reads. The present shift schedules shall be maintained as far as possible How- ever shift schedules may be changed from time to time by mutual agreement between the union and the employer to meet varying condi- tions of business. Indiscriminate changes shall not be made in schedules, and, provided, further, changes deemed necessary by the employer shall be made known to the union at least three (3) days in advance, and where possible , five (5) days in advance, of the date when they are to become effective In the event that no agreement can be reached between the parties relative to the change in the shift schedule, the Company shall have the right to institute such requested changes and the union shall have recourse to the grievance procedure. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment," with a proviso that if no agreement can be reached, the Respondent then may make the proposed changes and the Union may have "recourse to the grievance procedure." In these circumstances it is clear that the question of changing the shift hours for Saturday, which then differed from those which applied during the regular workweek, was neither "fully discussed," nor "consciously explored" in the negotiations, nor did the Union consciously yield to the Re- spondent on the issue, or clearly and unmistakably waive, by reason of the ,negotiations or the terms of the agreement, its right to be consulted prior to any change made in the previ- ously, established Saturday schedule. -In particular, contrary to Respondent's position, the fact that the collective-bargain- ing agreement itself requires Respondent to seek agreement with the Union prior to making shift changes supports the conclusion that the Union did not waive its statutory right to consultation and bargaining before shift changes are made. Further, the change made by Respondent was not merely a change in shift hours, but, in fact, constituted a reduction in pay for employees' working past noon on Saturday. Respond- ent, in its explanation to the Union of this change , indeed, made clear that its purpose was to limit its costs by requiring employees to work longer on Saturday for a full day's pay. There is no indication in the record that the Union had thus agreed to such reduction or to permit Respondent to unilater- ally reduce the compensation of employees. It is noted, further, that although Respondent urges that this matter be dismissed because the Union has not taken this matter to arbitration, Respondent has taken no affirmative action to have the matter taken to arbitration, and does not here assert any present intention that the matter be decided by arbitration. In any event, the issue has not been taken to arbitration, has been fully litigated, and there is no doubt of the Board's authority to decide this issue rather than require the union initially to go to grievance and arbitration., See Unit Drop Forge Division, etc. v. N.LR:B.., 412 F. 2d 108.9 See also, Weltronic v. N.L.R.B., 419 F.2d 1120; N.L.R.B. v. Scam, 394 F.2d 884. For the reasons stated, and upon the entire record, it is found that Respondent, by unilaterally altering the shift hours and conditions fo employment of employees working on Saturday, as set forth herein, violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, 2. The Union is a labor organization within the meaning of Section 2(5) -of the Act, which has been at all times material, and continues to be, the exclusive representative of Respondent's employees in the appropriate unit set forth in footnote-1, hereinabove, for the purposes of collective bar- gaining within the meaning of Section 9(a) and (b) of the Act. 3. By unilaterally discontinuing its prior practice of giving its employees in the appropriate unit a report party in 1970, and by unilaterally changing the shift hours and conditions of employment of employees working past noon on Satur- days, as set forth hereinabove Respondent violated Section, 8(a)(1) and (5) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, it will be recommeded that Respondent'cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In order that the unit employees may be restored as nearly as possible to the rights which they would have enjoyed ab- sent Respondent's actions in violation of the Act, it is appro- priate that Respondent be ordered to reinstate for unit em- ployees the hours and terms and conditions of employment for Saturday work in effect prior to the effective date.of the collective-bargaining agreement, and its previous practices with respect to the report party until such time as the Union and the Respondent are in agreement with respect to, changes in these conditionsof employment , or an impassed has been reached on these issues after good faith bargaining for a reasonable period with respect to any proposed changes in these conditions. It is further appropriate that Respondent be ordered to reimburse the unit employees for any losses suf- fered by reason of Respondent's changes in shift hours and other conditions of employment for Saturday work, with in- terest at the rate of 6-percent per annum. Upon consideration of all of the facts, including the fact that a report party for 1970 would now not be appropriate, I find that a proper remedy for the cancellation of the report party in 1970 would be the distribution to each unit employee of a proportionate share of what would-have been the cost to the Respondent of the report party in 1970. 10 Inasmuch as the employees would not normally have received this benefit in the form of a cash payment, it is not recommended that Respondent be ordered to pay interest on this sum. [Recommended Order omitted from publication.] 10 In its brief, Respondent estimates this amount as $12 22 per employee and spouse (or date). The record before me is not sufficiently detailed to Once the status quo has been reinstated, should the parties disagree on determine whether there may be any controversy over the employees eligi- proposed changes after proper good-faith bargaining on the issue, as re- ble to share, but this should obviously be limited to-employees at, the time quired by the law and the agreement, the matter may then be ripe for the party normally, would have been given These matters maybe settled by arbitration if the parties desire agreement of the parties or in a supplemental hearing , if necessary