Everbrite Electric Signs, Inc.

EVERBRITE ELECTRIC SIGNS, INC. 679 Everbrite Electric Signs , Inc. and United Electrical, Radio and Machine Workers of America (UE), Lo- cal 1172. Case 30-CA-2882 February 2, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On May 22, 1975, Administrative Law Judge Stan- ley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions 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 au- thority in this proceeding to a three-member panel: The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. We do not adopt paragraph B, 2, of the Adminis- trative Law Judge's recommended Order. The Union's right to proceed with grievance and arbitra- tion procedures must be determined by the terms of the contract, and we do not believe that the Board in the present circumstances should involve itself with the contractual rights of the parties. Accordingly, we shall delete paragraph B, 2, of the recommended Or- der. We shall also modify paragraph B, 1, of the rec- ommended Order so as to define clearly the scope of what we deem to be Respondent's affirmative bar- gaining obligations beyond the changes unilaterally established by Respondent. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Ever- brite Electric Signs, Inc., Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified herein: 1. Delete paragraph B, 2, of the Administrative Law Judge's recommended Order and renumber the subsequent paragraphs accordingly. 2. Substitute the following paragraph for para- graph B, 1: "1. Upon request, bargain collectively in good faith with the above Union as the exclusive bargain- ing representative of its employees in the aforesaid appropriate collective-bargaining unit, with respect to any change or modification in the rates of pay, wages, hours of employment, position descriptions, or other terms or conditions of employment set forth or involved in any subsisting labor agreement to which Respondent is a party with the aforesaid Union, including bargaining, upon request, with the Union over (1) the standards of eligibility for merit awards; (2) the procedures to be used in determining eligibility for merit awards; (3) whether, based on the standards and procedures agreed upon, other em- ployees in the unit are entitled to receive similar mer- it awards; or (4) whether merit increases should be established at all, and bargain, upon request, con- cerning the hire of any new employees at rates above those stipulated in the existing collective agreement; and embody - in a signed agreement any under- standing reached. Such bargaining shall be without prejudice to any wage rate increases heretofore granted or promised by Respondent above the wage rates set forth and stipulated in Respondent's subsist- ing collective agreement, whether such increases were or are denominated `merit increases,' 'reevalua- tions,' or otherwise, and shall be without prejudice to starting wage rates granted in excess of those set forth and stipulated in said agreement." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present evidence and arguments, the National La- bor Relations Board has decided that we, Everbrite Electric Signs, Inc., have violated the National Labor Relations Act. We have therefore been ordered to post this notice and to do what it says. The National Labor Relations Act gives employ- ees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT violate these rights of yours. WE WILL NOT grant, place into effect, an- 222 NLRB No. 100 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nounce, or promise any wage rate change (whether for "merit," "reevaluation," or other- wise) of the wage rates set forth in our existing collective agreement with United Electrical, Ra- dio and Machine Workers of America (UE), Lo- cal 1172, the exclusive collective-bargaining rep- resentative of our employees in the following unit, without first negotiating with that Union in regard thereto. The collective bargaining unit is: All regular full-time and part-time production and maintenance employees including plastic sign assemblers, plastic cleaners, plastic molders, plastic screeners, plastic spray painters, plastic die and model makers, material handlers, ware- house personnel and other allied operations re- quired in the production of plastic components and the final assembly and packing thereof; ex- cluding office clerical employees, salesmen, pro- fessional employees, guards and supervisors as defined in the National Labor Relations Act, as amended. WE WILL NOT start employees in at wages other than those set forth in that collective agreement without first negotiating with your Union. WE WILL NOT make any change in any job de- scription set forth in that collective agreement without first negotiating with your Union. WE WILL NOT in any of the above ways or in any other manner unlawfully fail or refuse to bargain with your Union, or interfere with, re- strain, or coerce employees in the exercise of their right to self-organization; to form, join, or assist any labor organization; to bargain collec- tively through representatives of their own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. WE WILL, upon request, bargain collectively in good faith with the above union as the exclusive bargaining representative of our employees in the aforesaid appropriate collective-bargaining unit, with respect to any change or modification in the rates of pay, wages, hours of employment, position descriptions, or other terms or condi- tions of employment set forth or involved in any subsisting labor agreement to which we are a party with the aforesaid Union, including bar- gaining, upon request, with the Union over (1) the standards of eligibility for merit awards; (2) the procedures to be used in determining eligi- bility for merit awards; (3) whether, based on the standards and procedures agreed upon, other employees in the unit are entitled to re- ceive similar merit awards; or (4) whether merit increases should be established at all, and bar- gain, upon request, concerning the hire of any new employees at rates above those stipulated in the existing collective agreement; and embody in a signed agreement any understanding reached. Such bargaining shall be without preju- dice to any wage rate increases heretofore grant- ed or promised by us above the wage rates set forth and stipulated in our subsisting collective agreement, whether such increases were or are denominated "merit increases," "reevaluations," or otherwise, and shall be without prejudice to starting wage rates granted in excess of those set forth and stipulated in said agreement. EVERBRITE ELECTRIC SIGNS, INC. DECISION Preliminary Statement; Issues OIILBAUM, Administrative Law Judge: This proceeding I under the National Labor Relations Act as amended, 29 U.S.C. Sec. 151, et seq. (Act) was heard by me in Milwau- kee, Wisconsin, on March 13-14, 1975, with all parties par- ticipating throughout by counsel, who were afforded full opportunity to present evidence and arguments and who, subsequent to the hearing, filed briefs received on April 14, 1975. Record and briefs have been carefully considered. The principal issues presented are whether Respondent Employer, while party to a collective agreement with the Charging Party Union, in violation of Section 8(a)(5) and (1) of the Act bypassed the Union and unilaterally placed into effect certain wage increases without bargaining with the Union; whether Respondent has further violated those Sections of the Act by hiring employees at wages exceeding the rate stipulated in the collective agreement, without bar- gaining with the Union; and whether Respondent has also violated those provisions of the Act by unilaterally chang- ing job descriptions as set forth in the collective agree- ment.2 i Complaint dated January 24, 1975, growing out of charged filed by the above Charging Party on October 8 as amended December 11, 1974 2 The latter two issues-i e, those dealing with unilateral hiring at rates in excess of those stipulated in the collective agreement , and unilateral changes of job descriptions stipulated in the collective agreement-were added at the conclusion of the case, by General Counsel's oral and wntten (G.C Exh. 10-Id) "motion to amend complaint to conform pleadings to proof," upon which I reserved decision. In view of the fact that these issues-closely intertwined with the basic issue-were litigated at the hearing , after being elicited from or brought out by Respondent itself during the hearing, and Respondent's express waiver of the right to present any further evidence in regard thereto as well as its further express declination of a continuance for that purpose, as disclosed by the transcript, General Counsel's motion to conform pleadings to proof is hereby granted . It should also be noted in connection, that Respondent has further expressly taken the position on the record that in the event this application of General Counsel to conform pleadings to proof is granted (as it hereby is), Respondent clearly under- stands that the case will not be reopened for further proof , in view of the fact that Respondent expressly declined the proffered offer by the Adminis- EVERBRITE ELECTRIC SIGNS, INC. 681 Upon the entire record and my observation of the testi- monial demeanor of the witnesses, I make the following, FINDINGS AND CONCLUSIONS 1. JURISDICTION At all material times Respondent has been and is a Wis- consin corporation engaged in the manufacture, sale, and distribution of plastic, neon, and electric signs at its South Milwaukee, Wisconsin, facility, the sole location involved herein, whence during the representative calendar year im- mediately preceding institution of this proceeding it sold and shipped goods and performed services, valued in ex- cess of $50,000, directly in interstate commerce to, and in- volving places outside of, Wisconsin. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; and that at all of those times the Charging Party Union ("Union" or "UE Local 1172") has been and is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent operates a sign-manufacturing factory (manufacturing, selling, and distributing large and small indoor and outdoor electric and neon signs), employing women and men on its production lines-in a supervisory as well as nonsupervisory capacity. Since December 6, 1972, Respondent's "plastic depart- ment" employees,3 consisting of about 125 persons, have been represented by UE Local 1172 as their Board-certi- fied exclusive collective-bargaining representative. Prior to November 1972 that bargaining unit had been represented by IBEW Local 494, which continues under collective agreement to represent the employees of Respondent's "service department" (installing and hanging signs), while employees of its "metal department" are represented under collective agreement with the Sheet Metal Workers Union. From May 2 until November 2, 1973, Respondent's "plastic department" employees engaged in a strike, during the course of which on June 26 in connection with contract negotiations the Union wrote Respondent requesting infor- mation regarding the names, wage rates, fringe benefits and any changes therein, and job classifications of mem- bers of the collective-bargaining unit. That request drew a reply on July 19 from Respondent's counsel which, in addi- trative Law Judge of a continuance for that purpose. Cf Presser Scientific, Inc., 158 NLRB 1375 (1966), enfd. 387 F.2d 143 (C.A. 4, 1967); The Lion Knitting Mills Company, 160 NLRB 801, 802 (1966) 3 Le, "All regular full-time and part-time production and maintenance employees including plastic sign assemblers, plastic cleaners, plastic mold- ers, plastic screeners, plastic spray painters, plastic die and model makers, material handlers, warehouse personnel and other allied operations required in the production of plastic components and the final assembly and packing thereof, excluding office clerical employees , salesmen, professional employ- ees, guards and supervisors as defined in the National Labor Relations Act, as amended." tion to expressing "reluct[ance]" to furnish names of em- ployees for reasons there alleged, further stated that except for a 4-percent wage increase as of the preceding April 16 "that your bargaining committee had agreed to," the Com- pany had made "no other wage adjustment for any em- ployee working . . . [and] no change in any fringe benefit or any other increment or benefit of any kind except that which had been in effect on May 2, 1973, the day you commenced the strike." There is no indication here that the Union's July 19 letter was otherwise answered. On November 2, 1973, the parties entered into a collec- tive agreement for about 2-1/2 years, from November 2, 1973, to April 1, 1976. That agreement is currently in force and was during events to be described. On October 9, 1974 (as thereafter amended), the Union filed a complaint against Respondent with the Wisconsin Employment Relations Commission, charging Respondent with unfair labor practices under the Wisconsin Employ- ment Peace Act in that since the preceding August Respon- dent had failed and refused to proceed with arbitration as required by its collective agreement. In its decision of No- vember 26, 1974, the Commission sustained the Union's allegation and-stating that it "finds no reason to permit Respondent to unilaterally rescind its agreement on the method of selection of an arbitrator"-ordered Respon- dent to cease and desist from such violation and to comply with the arbitration requirements of its collective agree- ment. There is no indication that this decision was ap- pealed. B. Alleged Violations of Section 8(a)(5) of the Act It will be recalled that, within the frame of reference above set forth, Respondent entered into a collective agree- ment with the Union on November 2, 1973. That agree- ment is a full-range industrial relations contract, 46 pages long plus 17 appended pages, or 63 pages in all, covering the usual subjects. The 17 appended pages set forth wage scales and progressions in detail, including starting rates, and also highly specific, agreed-upon job descriptions. Based on information received-not from Respondent- that Respondent was paying certain employees wages other than those stipulated in the collective agreement, the Union on February 18, 1974, wrote Respondent, requesting information as to all employees who had been given such wage increases, together with the amounts and dates there- of as well as the criteria therefor; and also asking that the Union be consulted before any further such increases were given by the Company. A few days later, on February 21, 1974,¢ Union representatives met with company represen- tatives and requested to be informed as to which employ- ees had been given wage increases by Respondent and de- tails thereof. The company representatives undertook to let the union representatives know. Company minutes of this meeting, not disputed, establish that at this meeting, among other matters discussed, Union Representative Harry Bordis indeed raised the question of the wage in- creases. At the instant hearing, Respondent's Manufactur- ing Manager Arthur Sobczak, who attended the meeting as 4 Unless otherwise specified, all dates from this point on are in 1974. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a company representative, conceded that-even though this does not appear in the Company's minutes and Sobczak was unable to explain why not 5-he (Sobczak) told Bordis that he (Sobczak) was "not prepared to give him [Union Representative Bordis] any answer at all" or that "I hadn't had time to look into it and that I [will] notify [you] at a later date.... I [will] refer it to [Compa- ny President] Mr. Wamser.... I [will] talk to Mr. Wam- ser about it." According to Sobczak's testimony, a day or two later (i.e., on February 22 or 23) he told Bordis on the telephone that, in response to Bordis' letter of February 18, so far as Sobczak knew, the Company had no "set proce- dure" on "merit increases" and suggested that Bordis take the matter up with Company President Carl Wamser. Not receiving any answer to these written and oral inqui- ries, however, the Union on May 31 sent a further letter to Respondent, reminding Respondent and enclosing a copy of its previous (i.e., February 18) request, reiterating that request, enlisting the Company's good-faith treatment of the Union as bargaining representative and a cooperative relationship, and at the same time "respectfully demand- [ing] that the Company not give any more merit increase without the approval of the Union." This letter evoked a written response in the form of a letter to the Union from Respondent's attorneys, dated June 5, stating in material part: those called for by the collective - agreement from Re- spondent since April 29, 1974 (i.e., those covered by the complaint herein), are: No. Name 1974 Cents per Hr. 1 Smigielski , Kathleen (Kathy; Cathy) 4/29 22 2 Coda, Dorothy 7/15 10 3 Degerstedt , James 7/15 10 4 Duellman , Marcella 7/15 10 5 Hemersmann (Hermersmann), Jerome 7/15 10 6 Kubusek , Joanne 7/15 10 7 Piess (Riess), Patricia 7/15 20 8 Tomblyn, Molly (Mary) 7/22 20 It is my understanding of the law that a union is entitled to get a complete list of all current wages im- mediately before negotiating a new contract leading up to a modification. I do not understand that information concerning merit increases during the term of a contract is avail- able to the union. It is my understanding that a company can grant merit increases to individuals due to `special merit' concerning the employee's work. This is not a negotia- ble item nor does information or permission need to be given to the union. According to Union Representative Bordis, since during the ensuing week or weeks he was unsuccessful in reaching Respondent's counsel, John H. Wessel, Esq., the author of the above letter,' the Union thereafter , on June 20, filed a charge against Respondent accusing it of violating Section 8(a)(5) and (1) of the Act by refusing to furnish the request- ed information to it concerning the wage raises in question. The filing of that charge (Case 30-CA-2763-not the in- stant proceeding) by the Union eventuated in the sup- plying to the Union on August 15 by Respondent's counsel (with a copy to the Board's Regional Director) of a list of employees who had received alleged "merit increases" from Respondent since January 1, 1973; thereupon the charge was not proceeded with. The employees shown on Respondent's list and thus concededly those who received wage increases-other than 5 Sobczak indicated that the Company's "minutes" are not a verbatim transcript, but were prepared on the basis of Sobczak's handwritten notes which he "thinks" were destroyed 6 Mr Wessel denies receiving any telephone messages from Mr Bordis. It is unnecessary to resolve any theoretical issue on this point, since even if no such messages were received or left it would make no difference herein A ninth employee, not shown on Respondent's list fur- nished to the Union and the Board's Regional Director, added at the hearing on application of General Counsel, is: No. Name 1974 Cents Per Hr. 9 Finnesy (Finnessy; 12/23 Finnessey), Victoria or ("Vicki") 1 /4 25 Respondent's records show that its employee Kathleen Sm}gielski received a 22-cent-wage-rate increase on April 29 (1974), characterized by it on its "Change of Status" form as a "Re-evaluation" action and stating by way of explanation that "This employee has lerned [sic] all of the press and spray operation involved in the Fiberglass De- partment. I have re-evaluated her and recommend the in- crease." The form shows approval by Sobczak.7 It will have been observed that all but two of these "mer- it" wage-rate increases occurred in July-and also during the pendency before the Board of the above-described 7 It is to be noted that the list of wage-rate increases furnished by Respon- dent to the Union and the Board's Regional Director (ie, Resp. Exh 1) includes Kathy Smigielski as a "merit increase" At the instant hearing, however, Sobczak stated this was erroneous since the Smigielski increase was a "re-evaluation increase" and that the list comprised only employees who had received a "merit increase " This indicates that there are more, perhaps many more, employees in addition to the above-enumerated 9, who received unilateral wage-rate increases from Respondent to rates other than those stipulated in the collective agreement, upon the alleged basis of a unilateral "re-evaluation" by Respondent. EVERBRITE ELECTRIC SIGNS, INC. 683 union charge in Case 30-CA-2763. According to Respondent's witness Arthur Sobczak, who since January 1974 has been its Manufacturing Manager and up to that date since June 1972 its Manager of Production Planning and Control, in May 1974 he met with various subordi- nates including Sharon Beck, forelady of "large sign as- sembly" since at least May 1973. He reminded them that an important job known as the "Conoco sign order," con- sisting of 39 signs on hand since 1970 or 1971, was now ready to move ahead to completion against a time target of the week of June 26, before the usual annual 2-week plant shutdown scheduled to begin on June 28 (Friday)s through July 15 (Monday).' Forelady Sharon Beck conveyed this message to the employees under her, telling them not only of the deadline date but also-of the quality standards to be met. She said nothing to the employees about any increase in wages or wage-rates if the Conoco job deadline was met, or for any other reason or on any other basis. The Conoco job deadline was met to the satisfaction of management and the customer, and the plant was shut down from June 28 to July 15, but Sharon Beck worked the first week of July, during which she recommended to Sobczak that her sign assembly crew should be given a "merit increase .. . particularly on Conoco." According to Sharon Beck's testi- mony, this was the first time during her tenure as forelady (i.e., since shortly before May 1973) that she had recom- mended such a wage increase for employees. She accord- ingly -signed "Change of Status" forms to accomplish these wage increases. On the forms of employees Coda, Deger- stedt, Duellman, Hemersmann, and Kubusek, characteriz- ing the action as a "Merit Increase," she gave as explana- tion, "Extra-ordinary performance . in meeting Conoco deadline." According to the testimony of Company Manufacturing Manager Sobczak, however, not all of the employees who worked on the Conoco Job received a wage increase-only those who in the Company's opinion enabled the "dead- line" to be met. The "Change of Status" form of Patricia Riess (Piess), which-unlike the foregoing five-is not signed by Sharon Beck but by Foreman Patefield and also effective on July 15, is characterized thereon not only as a "Merit Increase" but also as a "re-evaluation," and states as explanation for the wage-rate increase that she "assists in helping with warehouse tickets Schlitz Re-cycle inventories and other administrative duties assigned by the Foreman." The "Change in Status" form of Mary (Molly)'Tomblyn, also signed by Patefield but effective on July 22, likewise char- acterizes the action as both a "Merit Increase" and a "Re- evaluation," and gives the same explanation as in the case of Patricia Riess (Piess). The "Change of Status" form on Victoria Finnessy, dat- ed December 23 and signed by General Foreman John W. Nolte, characterizes her 25-cent hourly wage-rate increase as a "Merit Increase," with the explanation that "Vicki has maintained a near perfect rate of efficiency for the past several months. Vicki has been used at first station line 8 June 28 was the starting date to compensate for the July 4 holiday. 9 Sobczak's testimony to this effect is corroborated by that of Forelady Sharon Beck. assembly to be sure target is attainable." An accompanying "Payroll Rate Change" form, dated January 4, 1975, char- acterizes this wage-rate increase not only as a "Merit In- crease" but also as "Length of Service." 10 Each of these wage-rate increase forms was approved by Sobczak. It is conceded that each was thereupon placed into effect, without consultation or negotiation with or no- tification to the Union; and that each of the employees involved was and is a member of the collective-bargaining unit of which the Union was and is the exclusive certified representative. - Credited testimony of Respondent's Forelady Sharon Beck establishes that on July 15, after Sobczak had ap- proved her wage-rate increase recommendation for the five employees that day, she informed those employees that "because of the job [you] had been doing and especially because of the Conoco job," she had recommended them for an increase and that it had been approved, and she told them the amount. Sharon Beck further testified that even prior to the Conoco job she had been holding periodic meetings, every other week since around the end of 1973, with her subordinates, who had been regularly expressing to her their dissatisfaction with their pay, which they indi- cated should be increased, and that she had expressed her agreement with them. Undisputed credited testimony of Respondent's subpenaed employee James Degerstedt, a highly impressive witness still in Respondent's employ and one of the recipients of a July 15 wage-rate increase, estab- lishes that sometime before July, before Respondent gave the wage-rate increase he and other employees received here, he and fellow-employees met with their forelady, Sharon Beck, and discussed work problems and better- ments (e.g., tool procurement) as well as the "possibility of getting a raise," whereupon Sharon Beck promised she would try and "see what [I] could do ... and let [you] know. . . . She said she would talk for us and she said we would be getting it"; subsequently Sharon Beck told them she thought they would be getting an increase, which was indeed received in their next paycheck. ll Conceding that the described wage-rate increases were unilaterally given by Respondent to unit employees during the term of the collective agreement, without notice to or opportunity by the Union to discuss or negotiate concern- ing them, Respondent's Manufacturing Manager Sobczak testified that this was a continuation of a policy, neither reduced to writing nor "set" nor definite, followed by Re- spondent in its "plastic department" prior to the collective agreement with the Union. He also conceded that during the term of the subsisting collective agreement Respondent has also been hiring employees at pay levels higher than 10 According to Respondent, of the 25-cent increase to Victoria Finnessy, 5 cents was a regular wage-progression increase called for by the collective agreement, and the balance of 20 cents was for "merit" u It will have been noted that this , as well as all of the other wage-rate increases, occurred during the term of the collective agreement between Respondent and the Union According to Degerstedt, he had also received another such increase in early 1974 or late 1973, while in the "Screening Department" under forelady Carol Arndt (Arnt) after soliciting it from her These two increases were separate and apart from, and in addition to, the "periodic increases" or progresssion increases stipulated in the collective agreement, and were, according to Degerstedt, referred to by Carol Arndt as a "bonus " 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the "starting" rates stipulated in the collective agreement, without notice to the Union and without objection by the Union, but also without any indication of any knowledge on the part of the Union.12 Sobczak acknowledged that he has at no time informed the Union of any company poli- cies concerning wage-rate increases by the Company not called for by the collective agreement. With regard to the aforedescribed wage-rate increases of Kathy Smigielski, Patricia Riess (Press), and Mary (Molly) Tomblyn, it appears from Sobczak's testimony that these wage-rate increases are accounted for and explained by Respondent on the basis of performance of duties by these employees beyond or in addition to those called for by their job descriptions as spelled out in the collective agree- ment-also concededly without notification to, or opportu- nity to negotiate by, the Union as collective-bargaining representative.13 Sobczak acknowledged that there is noth- ing in the collective agreement permitting such a modifica- tion of job description nor permitting the elevation of an employee, as in the case of Kathy Smigielski, from the "3- month" wage-rate level to the "15-month" wage-rate level stipulated in the wage-rate schedules appended to the col- lective agreement. 14 C. Resolution and Rationale The operative material facts in this case are essentially undisputed. Respondent, an employer who, as found by the Wisconsin Employment Relations Commission, has previously violated its obligation to live up to its collective agreement with a Board-certified exclusive bargaining rep- resentative, is here again accused of violations going to the heart of that agreement-namely, unilateral changes in sti- 12 Asked how many, or to estimate how many, times this occurred, Sobczak replied he was unable to do so. 13 On cross-examination, Sobczak acknowledged that other employees have even "within the past six months" been given wage-rate increases on that basis and without discussion with or notification to the Union. After first professing inability to recall their names, he later recalled that one of them was Colleen Slattery, a spray painter, around January 1974 When it was pointed out to Sobczak that her name is not included in the list fur- nished by Respondent to the Union and the Board's Regional Director (i.e, Resp. Exh. I), Sobczak's explanation was that he does not believe she was working for the Company at the time that list was prepared, and that- although the list is captioned "Merit Increases as of 1-1-73" and covers those until July 22, 1974-it omitted all employees no longer in Respon- dent's employ. Under later cross-examination, Sobczak testified that possibly "as high as thirty percent" of Respondent's employees are being paid wage-rates "above [the] scale" called for in the collective agreement, even within the past 6 months, without negotiation with or notification to the Union; how- ever, he professed inability to identify the employees involved. On redirect examination, he limited the percentage being paid above collective -agree- ment scale, for "merit" or on "reevaluation," in the "plastic department," to "somewhere around five percent , eight percent," still without disclosure of whom Sobczak differentiates between a "merit increase" and a "reevalua- tion increase" by describing the "merit increase" as being for "exceptionally good work" whereas the "reevaluation increase" is for "work which is be- yond the scope of [the employee's] present labor grade " 14 It cannot be said that Respondent was oblivious of the necessity to negotiate concerning changes in the wage-rates called for by the collective agreement, since, as stipulated at the hearing , the wage-rates shown on the wage-rate schedules or progression charts appended to the collective agree- ment were increased by 10 cents per hour to cover insurance , as a result of negotiation with the Union subsequent to execution of that basic collective agreement and the wage -progression charts thereto appended. pulated rates of pay of employees, as well as in starting rates and job descriptions. Conceding that all of the employees involved were and are members of the represented collective-bargaining unit, and that its actions were unilateral and without negotiation with or even notification to the bargaining representative, Respondent's defense is that the pay increases were made on a selective basis by it for "merit," or in certain instances "reevaluation," and that, although no such increases are stipulated or mentioned in the collective agreement, never- theless it used to do these things before it entered into the collective agreement and therefore they represent no "change" in its method of operations.15 I reject this de- fense.16 Respondent's practice, here established, of unilat- erally granting to certain employees in the bargaining unit, holding specified jobs with descriptions spelled out in the collective agreement, wage-rate increases without negotiat- ing with or even notifying their certified bargaining repre- sentative, and of hiring employees at rates in excess of the agreed-upon starting rate, and of changingjob descriptions at times in connection therewith, is frontally invasive of its employees' rights under the Act to bargain collectively and establish these important matters and relationships through collective negotiation, is in derogation of the status of the certified bargaining representative, flouts the Board's election processes and certification, and tears at the main roots of the Act. General Counsel's proof is unchallenged that the topic of "merit raises" 17 was not discussed during the parties' precontract negotiations. 18 The fact that a subject is not discussed during precontract negotiations does not exempt a party from the requirement of bargaining concerning it during the contract term. In N.L.R.B. v. Jacobs Manufac- turing Company, 196'F.2d 680, 684 (C.A. 2), the court pointed out that the exception to the duty to bargain dur- ing the contract term, as set forth in Section 8(d) of the Act concerning modifications, does not relieve an employer of the obligation to bargain "as to subjects which were neither 15 Respondent also denies that it changed job descriptions. 16 1 also reject Respondent's denial that it changed job descriptions. It is quite clear that it did, upon its own testimony that it altered the work requirements of the positions held by its employees Patricia Riess (Piers) and Molly (Mary) Tomblyn, assigning to them duties not included or called for in the agreed-upon position descriptions of the positions they held, as explicated in detail in the "Master Classification and Job Description List" appended to the collective agreement . The admitted fact that in connection therewith and, as Respondent concedes , for that "reason" Respondent in- creased the contractually stipulated wage-rates of these employees and their jobs, itself establishes that Respondent-contrary to its denial--did indeed change job descriptions as alleged in the complaint as amended. 17 Whether or not the increases here given were for "merit" is a matter of conjecture for which one would have to rely on Respondent's ipse dixit There is, for example, no showing or method of determining whether other employees were not also entitled to such an increase because of the compa- rable "merit" of their performance. Furthermore, some of the increases here are not denominated "merit" increases by Respondent, but "reevaluation" increases. The vice in making unilateral changes (increases or decreases, since the same principle would apply to decreases as well) in the wage-rates stipulated and agreed upon in the collective agreement, without bargaining about them, is well-illustrated by this tactic of applying self-serving labels to them as an attempted escape-hatch from the bargaining obligation Cf. J H Allison & Company, 70 NLRB 377 (1946), enfd. 165 F.2d 766 (C.A. 6), cert. denied 355 U.S. 814 rehearing denied 335 U S. 905 ie It would seem that wage starting rates and position descriptions were discussed, since those subjects are extensively covered in detailed, lengthy appendices to the collective agreement EVERBRITE ELECTRIC SIGNS, INC. 685 discussed nor embodied in any of the terms and conditions of the contract." 19 The fact that these particular subjects (selective "merit" pay increases, at Employer's sole option; hiring of employ- ees at more than contractual starting rates, at Employer's sole option; job description changes or modifications, at Employer's sole option) may not have been negotiated or are not explicitly spelled out in the parties' collective agree- ment does not contrary to Respondent's contention- give the Employer a free hand to indulge in these practices, which are of vital concern to employees and at the core of the collective-bargaming process, unilaterally and without bargaining with the employees' collective-bargaining repre- sentative. The collective agreement here contains no zipper provision. Nor would the fact-even if it be assumed it is the fact-that such practices on the part of the Employer existed prior to execution of the collective agreement justi- fy their continuation subsequent to the collective agree- ment. It could be said that there is hardly any purpose in entering into an industrial agreement if practices prior to the agreement, not sanctioned by the agreement, are to be perpetuated, resumed, or revived; in any event, it is not to be assumed that such matters are rendered exempt from the requirement of negotiation. Particularly is this true where, as here, the matters in question (wage raises, hiring rates, and job descriptions) go to the very heart of the job situation in the plant. It hardly conduces to industrial peace-the core purpose of the Act-for an employer who has entered into a collective agreement covering these sub- jects in detail to go about changing them as spelled out or dealing with them in ways not contained in the collective agreement, without consulting with the employees' bar- gaining representative. Such unilateral action by the Em- ployer-more especially in the frame of reference here (Sec. II, A supra, e.g., the Wisconsin State Board histo- ry)-is suggestive of evasiveness and of lack of that candor and good faith which characterize a sound industrial rela- tions climate; it undermines the very foundations of the collective-bargaining system and converts the collective bargaining principle into a mockery. "[T]he right of collec- tive bargaining is wholly inconsistent with unilateral com- pany action affecting matters within the scope of the agree- ment." Consolidated Aircraft Corporation v. N.L.R.B., 141 F.2d 785, 787 (C.A. 9). As stated in J. I. Case Company v. N.LR.B., 253 F.2d 149, 153 (C.A. 7, 1958): 19 In given circumstances, even where a subject has been discussed in precontract negotiations but not incorporated into the collective agreement, this does not necessarily free a party to act unilaterally concerning that subject during the contract term. Thus, it has been held that the fact that a profit-sharing plan had been discussed in precontract negotiations is not a defense to a Section 8(a)(5) charge that the employer unilaterally instituted an incentive pay plan without consulting with the employees' bargaining representative Titan Box Corporation, 208 NLRB 787 (1974). See also, The Bunker Hill Company, 208 NLRB 27 (1973); John E. Holkko d/b/a Lifetime Shingle Company, 203 NLRB 688 (1973), Hamilton Electronics Company, 203 NLRB 206 (1973); Alamo Express, Inc, 200 NLRB 178, enfd. 489 F.2d 134 (C.A. 5, 1974); ef, N L,R B. v United Brass Works, Inc., 287 F.2d 689, 697 (C.A. 4, 1961 ); individual merit wage increases , dictum. In State Farm Mutual Automobile Insurance Co, 195 NLRB 871, 890 (1971), continuation of merit increases without bargaining was held unlawful since the employ- ees' bargaining representative had no way of knowing whether there was a substantial departure from past practice The[se] contentions [of Respondent employer, that union complaints in regard to wage rates must be han- dled within the context of precontract negotiations or as grievances under the contract] stem from a basic disagreement between petitioner [ i.e., Respondent em- ployer] and the Board as to the proper conception of the Union's role as representative of the employees and of the very nature of the collective bargaining pro- cess. The contention that the Union's right to data is limited to pending wage negotiations overlooks the fact that collective bargaining is a continuing process which, "[a]mong other things, . . . involves day to day adjustments in the contract and other working rules, resolution of new problems not covered by existing agreements, and the protection of employee rights al- ready secured by contract." Conley v. Gibson, 1957, 355 U.S. 41, 46 . . . See also Aeronautical Industrial District Lodge 727 v. Campbell, 1949, 337 U.S. 521, 525 A collective bargaining agreement thus provides "the framework within which the process of collective bargaining may be carried on." Timken Roller Bearing Co. v. N.L.R.B., 1947, 1 Cir., 161 F.2d 949, 955. The Union not only has the duty to negotiate collective bargaining agreements but also the statutory obliga- tion to police and administer the existing agreements. Under all of the circumstances, it is accordingly found and determined that Respondent has, substantially as al- leged in the complaint as amended, bypassed the union as its employees' duly certified collective-bargaining represen- tative, and has bargained individually with its employees; has unilaterally raised employees' wage-rates to levels high- er than those stipulated in its subsisting collective agree- ment; has unilaterally paid starting wages higher than those stipulated in that agreement; and has unilaterally changed job descriptions stipulated in that agreement 20 See J. H. Allison & Company, 70 NLRB 377 (1946), enfd. 165 F.2d 766 (C.A. 6), cert. denied 335 U.S. 814, rehearing denied 335 U.S. 905 21 20 Respondent's possible suggestion in its answer that this proceeding is time-barred by Sec 10(b) of the Act is without substance, inasmuch as all of the unfair labor practices found grow out of incidents occurring within the 6-month period preceding the filing of the charge here (October 8, 1974) Respondent's suggestion that the Union waived its rights is likewise rejected as contrary to the facts. Although, as is well known, a waiver may arise only out of a conscious and unequivocal relinquishment of a right based on knowledge of the facts (Timken Roller Bearing Co. v. N.L R.B., 325 F.2d 746, 751 (C A. 6, 1963), cert denied 376 U S. 971 (1964), General Electric Company v. N L R B., 414 F.2d 918, 923-924 (C A. 4, 1969, cert. denied 396 U.S. 1005 (1970), Fafnir Bearing Company v. N L R B, 362 F.2d 716, 722 (C.A 2, 1968); Tucker Steel Corp., 134 NLRB 323, 332,(1961) and cases cited)-not true as to the Union here, in view of Respondent's failure to notify the Union-it is clear that the Union diligently pursued its attempts to obtain information (including by filing with the Board its earlier 8(a)(5) charge against Respondent) and to vindicate its position. Likewise, Respondent's contention in its brief that "No employee has filed any com- plaint or submitted any testimony objecting to the conduct of the respon- dent" is totally devoid of merit. a complaint under the Act is issued by General Counsel, based on a charge filed by anybody (other than the Agen- cy itself, which does not originate any charges); and a case may, of course, be established without the testimony of an employee, which is likewise not required. Finally, Respondent's statement in its brief that "Prior to the hear- ing, the complantant [sic] withdrew its allegation of violation of Section 8(a) 5" herein is unsupported by the record. 21 At the hearing, Respondent's counsel conceded that under the Allison Continued 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW 1. Jurisdiction is properly asserted in this proceeding. 2. Through bypassing the Union as its employees' duly certified collective-bargaining representative, through bar- gaining individually with its employees, and through uni- laterally granting increases in stipulated wage-rates, paying starting wages in excess of those stipulated, and changing job descriptions stipulated, in its subsisting collective agreement with the Union, and through failing and refus- ing to bargain with said Union in respect thereto, under the circumstances set forth and found in "II," supra, Respon- dent has engaged and is continuing to engage in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 3. Said unfair labor practices have affected, are affect- ing, and unless permanently restrained and enjoined will continue to affect, commerce within the meaning of Sec- tion 2(6) and (7) of the Act. REMEDY It goes without saying that, having been found to be in violation of Section 8(a)(5) and (1) of the Act, Respondent should be required to cease and desist therefrom and to bargain with the Union regarding the matters involved. It seems reasonably evident from the essentially undis- puted facts that Respondent is continuing to engage in a program designed to flout and frustrate the collective-bar- gaining principle, a basic building block of the Congres- sionally declared national labor relations policy whose ob- jective is to achieve and maintain industrial peace. Under these circumstances, a somewhat stronger remedy is re- quired than the usual routine cease-and-desist order and requirement to bargain, for such a routine order would serve to (1) permit Respondent to retain the full benefits of its having ignored the wage-rate requirements of its collec- tive agreement through its unilateral granting of raises to selected employees; (2) leave comparably situated employ- ees whose wage-rates have not been raised remediless; (3) leave Respondent's bypassing of its employees' Board-cer- tified exclusive bargaining representative essentially uri- remedied, thereby undermining the status of that represen- tative, discouraging the employees in the exercise of their right to bargain collectively, and flaunting the Board's pro- cesses by flouting the purposes of its secret-ballot elections and official certification; (4) thwarting a, if not the, basic case, with which he expressed familiarity, an employer who announces a "general" wage increase violates the Act, but contended that an employer who does so with respect to less than all employees does not violate the Act This position is plainly devoid of tenability purpose of the Act 22 Under these circumstances, while a make-whole or costs-imposition remedy will be withheld in view of the Board's policy against the granting of such relief, a lesser yet still somewhat stronger than routine rem- edy seems required. I deem it reasonable, accordingly, to include in the recommended order a requirement that, in addition to ceasing and desisting from unlawful conduct of the nature described, Respondent shall bargain collectively in good faith with the Union not only with respect to the wage-rate increases and other matters involved but also concerning similar wage-rate increases for the other em- ployees in the bargaining unit whose stipulated wage-struc- ture system as set forth in the collective agreement has been disarranged by Respondent's unilateral changes; and also that, at the Union's option, Respondent shall fulfill its contractually required obligations to proceed with any grievance/arbitration proceedings sought by the Union concerning Respondent's failure to grant comparable wage-rate increases to other employees (or to scale-up its wage structure to reflect its higher starting rates for certain new employees) in the bargaining unit. Inclusion of these requirements in the recommended order should serve to more effectually remedy the unfair labor practices and the disruption to the collective bargained wage structure brought about by Respondent's unilateral actions here, and at the same time to serve as a deterrent to further violations of the nature described. Moreover, these provi- sions are perceived as fair, and as carrying out the purposes and policies of the Act as well as the requirements of the parties' own collective agreement. Since Respondent's violations are aimed at core guaran- tees and policies of the Act, the recommended order will, as is usual in such cases, include a provision requiring Re- spondent to cease and desist from any violation of its em- ployees' rights under the Act. The order will also contain the usual requirement of posting of a Notice to Employees to apprise them of the outcome of the case, their rights under the Act, and what their employer is required to do and not to do. Upon the basis of the foregoing findings of fact and con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, there is hereby issued the following: 22 If further indication of Respondent's intransigence is required, it is furnished by its insistence at the hearing that any decision adverse to it here would require cancellation and withdrawal of the wage-rate increases it has granted and a refunding thereof by the employees to Respondent (Tran- script "It's an inconsistent position . to say that while I've sinned it's perfectly right to [wallow] in the sin.") Aside from the iniquity of such a position, it is obvious that if earned out it would turn the employees against their certified collective-bargaining representative, overcome the effect of the election and Board certification, and oust the Union-thereby accom- plishing, through its own illegal actions, Respondent's basic aim of under- mining and ridding itself of the Union, and through this ruse setting the Act on its head. As is well known, in situations of this nature the Board tradi- tionally orders that although the respondent shall cease and desist from continued violation and shall bargain, this shall be without prejudice to wage raises and other betterments already granted by the offending employ- er, this will be done here Of a piece with the foregoing contention of Re- spondent is its further argument, in justification of its actions here, that "no employee listed in paragraph 7 of the government complaint in any way filed any objection to the wage increase" (Resp br) and that no witness testified that the wage increase "interfered with their rights or with the flow of commerce" (id) EVERBRITE ELECTRIC SIGNS, INC. 687 ORDER23 Respondent Everbrite Electric Signs, Inc., South Mil- waukee, Wisconsin, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Bypassing United Electrical, Radio and Machine Workers of America (UE), Local 1172, the duly certified collective-bargaining representative of its employees in the following appropriate collective-bargaining unit, and bar- gaining individually with employees therein: All regular full-time and part-time production and maintenance employees including plastic sign assem- blers, plastic cleaners, plastic molders, plastic screen- ers, plastic spray painters, plastic die and model mak- ers, material handlers, warehouse personnel and other allied operations required in the production of plastic components and the final assembly and packing there- of; excluding office clerical employees, salesmen, pro- fessional employees, guards and supervisors as defined in the National Labor Relations Act, as amended. (b) Directly or indirectly granting, announcing, or plac- ing into effect, or promising so to do, wage rates for em- ployees, whether designated "merit increases," "reevalua- tions," or otherwise, or starting wage rates, other than those set forth and stipulated in any subsisting collective agreement to which Respondent is a party, or changing any position description therein set forth and stipulated, without first negotiating in good faith with-its employees' duly designated or selected exclusive collective-bargaining representative with respect thereto; but without prejudice to any wage-rate increases or starting rates already grant- ed,_ announced, or promised. (c) Failing or refusing to bargain collectively in good faith with said Union as the exclusive collective-bargaining representative of its employees-in the aforesaid appropriate collective-bargaining unit. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their right of self- organization; to,bargain collectively through representa- tives of their own choosing; to engage in concerted activi- ties for the-purposes'of collective bargaining or,other mutu- al aid or protection; or to refrain from any and all such activities, except to the extent that such right may be af- fected by an agreement lawfully requiring membership in a labor organization as a condition of employment, as au- thorized in Section 8(a)(3) of the Act as modified by the Labor-Management Reporting and Disclosure Act of 1959. 23 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order which follows herein shall, as provid- ed in Sec. 102 48 of those Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 2. Take the following affirmative actions, necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with the above Union as the exclusive bargaining representative of its employees in the aforesaid appropriate collective-bar- gaining unit, with respect to any change or modification in the rates of pay, wages, hours of employment, position de- scriptions, or other terms or conditions of employment set forth or involved in any subsisting labor agreement to which Respondent is a party with the aforesaid Union; and embody in a signed agreement any understanding reached. Such bargaining shall be without prejudice to any wage- rate increases heretofore granted or promised by Respon- dent above the wage-rates set forth and stipulated in Respondent's subsisting collective agreement, whether such increases were or are denominated "merit increases," "reevaluations," or otherwise, and shall be without preju- dice to starting wage rates granted in excess of those set forth and stipulated in said agreement. Said collective bar- gaining shall include collective bargaining in regard to sim- ilar wage-rate increases for the other employees in said col- lective-bargaining unit, and in regard to the effective date or dates thereof; and also in regard to the scaling-up of Respondent's wage-structure to reflect its higher starting rates for certain new employees in said unit in excess of those set forth and stipulated in said subsisting collective agreement. (b) Upon request by said Union, fulfill Respondent's obligations under its subsisting collective agreement with said Union, to proceed with grievance and arbitration pro- cedures concerning Respondent's failure to grant wage- rate increases to other employees in said bargaining unit equivalent to those heretofore granted only to certain em- ployees of Respondent's selection, and concerning the ef- fective date or dates thereof; and also concerning Respondent's failure to scale-up its wage structure to re- flect its higher starting rates for certain new employees in the bargaining unit. (c) Post at its plant in South Milwaukee, Wisconsin, copies of the attached notice marked "Appendix."24 Copies of said Notice, on forms provided by the Board's Regional Director for Region 30, after being signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or -covered by any other material. (d) Notify the Regional Director for Region 30, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 24 In the event this Order is enforced by a Judgment of a United States Court of Appeals, the words in the Notice "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board"