Speedrack, Inc.

1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Speedrack, Incorporated and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America and its Local Union No 1270 Case 14-CA-19131 May 17, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 15, 1988, Administrative Law Judge Harold Bernard Jr issued the attached decision The Respondent filed exceptions and a supporting brief, and the Charging Party, International Union, United Automobile, Aerospace & Agricultural Im- plement Workers of America & its Local Union No 1270 (the Union), filed a brief in support of the judge's decision and in opposition to the Respond ent's exceptions The National Labor Relations Board has delegat ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions only to the extent consistent with this Decision and Order, in which we reverse the judge's conclusion that the Respondent violated Section 8(a)(5) and (1) as alleged and, accordingly, dismiss the complaint The judge found that the Respondent changed the wage rates in an existing collective-bargaining agreement without the consent of the Union, and he concluded that this action violated Section 8(a)(5) of the Act The Respondent asserts that it made these changes only after fulfilling certain pro- cedural requirements set out in Section 8(d) of the Act and negotiating with the Union to impasse over the wage rates pursuant to the contract's wage reopener provision The Respondent argues that its invocation of the wage reopener effected an expiration of the wage provisions in the contract, entitling the Respondent to unilaterally implement its wage modifications after impasse We agree I FACTUAL BACKGROUND The parties entered into an agreement effective June 1, 1986, through August 31, 1988 The agree ment contained a reopener provision that allowed either party to reopen on either or both of two issues wages and "foremen working "2 Reopening ' The Respondent has requested oral argument The request is denied as the record exceptions and briefs adequately present the issues and the positions of the parties z The latter issue involved foremen performing bargaining unit work could occur 15 months after the agreement's effec- tive date 3 It is undisputed that the Respondent gave written notice to the Union on July 1, 1987, that it wanted to reopen the issue of wages and that it also similarly notified the appropriate state and Federal mediation agencies It is also undis puted that the parties reached impasse on Septem- ber 2, 1987, and that the Respondent unilaterally implemented changes in the wage provisions on September 4 in accordance with its final bargaining position II APPLICABLE PRINCIPLES It is settled law that an employer's midterm con- tract modification made without the consent of the employees' collective bargaining representative is a violation of Section 8(a)(5) of the Act as elucidated in Section 8(d) 4 It is equally clear that the parties to a collective-bargaining agreement can, by mutual consent, include a reopener provision in their contract, by which they agree to open up specified subjects for bargaining before the expira- tion date of the contract See, e g , NLRB v Lion Oil Co, 352 U S 282, 285-286 (1957) It is not, however, settled whether an employer who prop erly invokes a reopener provision, in circumstances in which the procedural requirements of Section 8(d) pertaining to termination of contractual provi sions have been satisfied, and who bargains to im- passe on the reopened subject violates Section 8(a)(5) by thereafter unilaterally implementing its final offer more than 60 days after he gave notice of his intent to reopen In order to decide this issue-which was expressly left open in La Porte Transit Co, 286 NLRB 132 fn 2 (1987), and which is presented in this case-we must consider the policies underlying Section 8(a)(5) and 8(d) 5 When parties agree to a reopener provision, they essentially choose flexibility over stability as to those provisions of their contract governed by the 3 The reopener provision reads as follows Wage Reopener This Agreement may be reopened by either party solely on the issues of wages and foremen working fifteen (15) months after its effective date A party so desiring to reopen the Agreement must do so by serving written notice on the other party no later than July 31 1987 4 Allied Chemical & Alkali Workers Local 10 v Pittsburgh Plate Glass 404 U S 157 159 fn 2 185-187 (1971) citing with approval NLRB V Scam Instrument Corp 394 F 2d 884 887 (7th Cir 1968) cert denied 393 U S 980 (1968) Oak Cliff Golman Baking Co 207 NLRB 1063 1064 (1973) enfd mem 505 F 2d 1302 (5th Cir 1974) cert denied 423 U S 826 (1975) 5 Our reference to the Act s policies is not intended to suggest that this issue can be determined without reference to the parties intent If we had clear evidence that the parties had a definite agreement whether there could be implementation on impasse then the issue could be resolved simply by giving effect to that intent As we explain below however we find no merit in the Union s arguments that the parties intended that the Respondent be barred from implementing a final offer after bargaining to impasse on the reopened issue 293 NLRB No 128 SPEEDRACK INC reopener, because each party has thereby waived the protection that the proviso to Section 8(d) of the Act would otherwise provide against being called on to bargain over matters governed by the contract prior to the period that commences 60 days before the contract's expiration See Allied Chemical & Alkali Workers Local 10 v Pittsburgh Plate Glass, supra at 186 They also must intend, in the absence of a clear indication to the contrary, that the bargaining will consist of more than one party asking the other if it would agree to a change, for even in the absence of a reopener pro- vision, changes may be made by mutual consent 6 In determining what freedom of action the parties may have under our Act during such reopener pe- riods, we must avoid imposing conditions that would turn reopener bargaining into little more than a charade that would barely differentiate it from the kinds of discussion that may lawfully occur even in the absence of a reopener The Supreme Court's reasoning in Lion Oil is in- structive in this regard The Court held that the Act did not prohibit the union there from striking during the term of a contract over contract modifi- cation demands, so long as the strike occurred more than 60 days after a contractually permitted notice of a desire to modify It read the term "expi ration date" in both Section 8(d)(1) and (4) as ap- plying not only to contract expiration dates but also to any date that the parties fix in the contract as a period in which modifications may be made In essence, the Court equated invocation of the re- opener provision with the expiration of the terms covered by the reopener It reasoned that if Con- gress contemplated a duty to bargain during re- opener periods, then it must have intended to allow unions to retain "the strike threat which, together with `the occasional strike itself, is the force de- pended upon to facilitate arriving at satisfactory settlements "' 352 US at 291 We likewise cannot conclude that the Congress would have intended, through Section 8(a)(5), to prohibit bargaining on properly reopened subjects from proceeding through the same natural course that bargaining may take when no contract is in effect, that is, a course in which an employer is ob- ligated to bargain in good faith and in which it may alter the current conditions pursuant to its final good faith offer if it has exhausted all possi- bilities for agreement with the union Taft Broad- casting Co, 163 NLRB 475, 478 (1967), enfd 395 6 Cf Communications Workers (New York Telephone Co) 186 NLRB 625 627 ( 1970) (Board interpreted the parties contractual modification provision as allowing the parties to do only what they would have been able to do absent the provision because the provision merely had provid ed for modification on mutual consent) 1055 F 2d 622 (D C Cir 1968) Of course, Section 8(d) still imposes some constraints, notably the require ments that the party invoking the reopener provide timely notice to the other party and to state and Federal mediation services and that the parties con tinue the relevant contract terms "in full force and effect without resorting to strike or lockout for a period of sixty days after [the] notice [to ter- minate or modify the contract] is given or the expi- ration date whichever occurs later "7 This statutory 60-day period, which "operates wholly independently of whatever notice requirement the parties have fixed for themselves,"8 provides a pro- tected period for negotiations free of pressure by either side At the end of that period, however, we see no basis in the policies of the Act for not al lowing an employer to implement its final offer on the reopened subject if it has bargained to impasse on that subject The Union, however, pointing out that the Su- preme Court in Lion Oil expressly noted the ab- sence of any no-strike clause in the collective-bar- gaining agreement at issue in that case, argues that it would be unfair and contrary to the policies of the Act to permit the Respondent to implement a proposal after impasse when the Union is preclud ed by the contract's no strike provision from strik- ing over the matter The short answer to that argu ment is that the Union is not precluded from strik- ing As we explain in Hydrologics Inc, 293 NLRB 1060 (1989), issued together with this opinion, absent clear agreement of the parties to the con- trary, the same statutory policies that privilege an employer's unilateral action after impasse on a re- opened subject also privilege the collective-bar- gaining representative's resort to an economic strike over the dispute on that subject notwith standing the existence of a no-strike clause Of course, as indicated, the parties could agree to place constraints on themselves with respect to unilateral implementation after impasse or the use of economic weapons, and that agreement would be controlling But we reject the Union's implicit argument that, without a clear agreement to the contrary, we must read into any collective bargain ing agreement containing a reopener an intent of the parties to bind their hands with respect to re- opened subjects in a way that their hands are not ordinarily bound with respect to subjects covered in expiring contracts Thus, in cases involving ter- minated contract provisions-whether terminated through a reopener or terminated through the expi ration of a contract-we will assume, in the ab- ' See EPE Inc 273 NLRB 1375 1378 (1985) 8 Lion Oil supra at 293 1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sence of evidence of a contrary intent, that the par- ties intended to reserve to themselves the freedom of action that is a normal part of the collective-bar gaining process when contractual provisions gov- erning the matters on the bargaining table are not in effect This means that where the parties have not thus constrained themselves, an employer who observes the procedural requirements of Section 8(d) may implement a proposal on a reopened sub- ject after bargaining to impasse III ANALYSIS OF THE LEGALITY OF THE RESPONDENT'S ACTIONS UNDER THE REOPENER In the present case, all the procedural require- ments of Section 8(d) were satisfied The Respond- ent gave written notice on July 1, 1987, of its desire to bargain for wage modification under the reopener, and it also sent notices to the Federal and state mediation agencies , thereby satisfying the requirement under Section 8(d)(3) of the Act It en- tered into bargaining with the Union and dunng this period, which exceeded 60 days, it maintained the contract's terms "in full force and effect" with- out resort to lockout It gave notice of its intent to implement its final offer on September 4, after bar- gaining in good faith to impasse and after passage of more than 60 days beyond the date of the initial 8(d)(1) notice Having reopened the wage provi- sions of the contract, complied with the require- ments of Section 8(d), and bargained to impasse over the reopened provisions, the Respondent was entitled to implement its final offer unilaterally, in the absence of a clear indication by the parties to the contrary We find no evidence of a contrary intent here The language of the reopener provision is straight- forward, simply indicating which provisions may be reopened, who may reopen them, and when and how notice of an intent to reopen is to be given Furthermore, as we explain below, the collective bargaining history does not indicate that the re- strictions for which the Union contends were agreed on, that is that the parties intended through the reopener to provide only for mutual discussion of the reopened subjects The Union relies heavily on testimony that, in contemplating the reopener provision, its negotia tors-notably Union President Mellon-had ex pressed a fear that the Respondent might use the provision to lower the employees' wages, and that the Union agreed to the provision only after this fear was placated by an "eleventh hour reassur- ance" from the Respondent that no such action would be permitted This asserted "reassurance," however, had been made in response to the Union's concern over the "foremen working" issue, and even Mellon's account of the "reassurance" (which allegedly came from Lou Artale, the Respondent's principal negotiator) does not support the Union's restrictive interpretation of that asserted statement (i e, that only discussions were contemplated under the reopener) Mellon had testified that Artale had told the Union that it could bung up the problem of foremen performing bargaining unit work for discussion under the reopener if the Union was not satisfied with the Respondent's handling of the issue 9 There is no indication that, by this state- ment, the parties understood that they were pre- cluding resort to any other actions under the re opener (e g , the Respondent's right to unilaterally implement or the Union's right to strike) Indeed, the one aspect of the bargaining history that the parties appear to agree on is that they had never discussed the actions they would have been al- lowed to take in the event the discussions pursuant to the reopener failed Finally, the Union argues that its failure to seek changes to allow it to strike during a reopener period is additional evidence that the parties' agree ment does not contemplate unilateral implementa- tion after impasse of a proposal on a reopened sub ject This argument assumes , however, that the ex isting no-stoke provision precluded the Union from striking during the reopener period But as noted above, and as explained more fully in Hydrologics Inc, supra, in the absence of language to the con- trary, it need not be assumed that a no-strike clause, which applies only dunng the term of a contract, would necessarily apply to subjects on which the contract is, at least for a certain period effectively terminated There is no language in the present contract that either on its face, or in the light of bargaining history, i ° indicates that the no strike clause must apply to disputes over matters as to which the contract has effectively expired 11 9It makes sense in this context that Artale would refer only to the Union s being able to discuss any problems it had with the Respondent s handling of this issue since the Union would never be in a position to unilaterally implement changes in the work assignment of foremen 1s There is no evidence indicating that the parties ever discussed whether a reopener stoke would be precluded by the no stoke provision Also the no strike provision has been in the contract since the parties initial agreement in 1965 In these circumstances Artale s response to a leading question on cross examination that the no stoke provision prohib ited the Union from stoking under any circumstances was his personal opinion and not a sufficiently clear indication that the parties mutually intended that the no stoke clause would operate as to matters that were opened up for renegotiation i i The Union also relies on bargaining history from 1982 in urging its construction of the reopener In 1982 in the midterm of a contract that did not contain a reopener the Respondent had requested negotiations over wages and the Union told the Respondent it was not required to discuss such changes The Union agreed however as a courtesy to do so The Union argues that this statement shows that the purpose of the reopener negotiated in the subsequent contract is merely to assure that the Union must sit down and discuss proposed midterm changes We find Continued SPEEDRACK INC In sum, we conclude that the policies of the Act with regard to collective bargaining make it rea sonable to read a contract reopener provision as permitting the parties to respond to disputes over reopened subjects by resort to the courses of action normally allowed them when a contract has ex- pired, so long as the procedural requirements of Section 8(d) are met 12 By agreeing to a reopener, the parties manifest their agreement to permit such measures unless they include language to the con trary As set forth above, the Union has made no such showing of contrary intent here Accordingly, we find that the Respondent law fully implemented unilateral wage changes after bargaining to impasse over those changes pursuant to the contract's wage reopener provision, and w e dismiss the complaint ORDER The complaint is dismissed the Union s reliance on this evidence misplaced since there is no indica tion that the parties discussed this incident during the 1986 negotiations In any event it is equally feasible that the Respondent sought the reopen er because although the Union had agreed to discuss the 1982 midterm wage proposals (indeed Union President Mellon testified that the Union would agree to talk anytime anyplace ) absent a reopener the Re spondent would not be able to implement proposed changes without the Union s consent even after bargaining to impasse 12 With the possible exception of one case noted below other cases in which the Board has had occasion to consider the effect of contract re opener clauses are not inconsistent with our approach here They have involved contract language different from the language at issue here and the legality of the employer s unilateral action has depended on the spe cific language of the clause regarding the continuing status of the con tract terms Thus in KCW Furniture Co 247 NLRB 541 (1980) enfd 634 F 2d 436 (9th Cir 1980) the contract provided that mere invocation of the reopener provision was not intended either to terminate the con tract or to forestall its automatic renewal Under those circumstances the Board found that the employer violated Sec 8(a)(5) when acting as if the contract provisions had terminated the employer unilaterally implement ed its final offer after impasse in the reopener negotiations and after the automatic renewal date had passed By contrast in Schaeff Namco Inc 280 NLRB 1317 ( 1986) an employers unilateral implementation of its final wage offer on a third year reopener was found lawful because the contract specifically provided for implementation if the parties failed to agree on rates during a prescribed period See also Vienna Sausage Mfg Co 252 NLRB 1317 (1980) (in case involving clause regarding reopening or automatic renewal employer violated Sec 8(a)(5) by responding to unions timely notice to reopen with refusal to bargain unless union would agree that contract would terminate and by insisting when union refused to waive the no termination provision that the contracts auto matic renewal thereafter relieved it of bargaining obligation notwith standing its failure to bargain prior to the automatic renewal date) The adminstrative law judge s decision adopted by the Board in Inta Roto Inc 252 NLRB 764 769-770 (1980) enfd mem 661 F 2d 922 (4th Cir 1981) is arguably inconsistent with our decision in the present case to the extent it may suggest that a contract clause must use the term ter minate before a notice to modify under a reopener can be deemed the equivalent for any purpose of a notice to terminate But the case is distin guishable since in finding that the employer violated Sec 8(a)(5) through unilateral implementation of a wage offer the judge relied on contract language that he construed as permitting unilateral action after impasse and found that the parties had not in fact reached impasse before the em ployer implemented his offer Id at 770 Mary Tobey Esq, for the General Counsel 1057 Lawrence J Casazza Esq of Chicago Illinois for the Respondent Stanley Eisenstein Fsq of Chicago, Illinois for the Charging Party DECISION STATEMENT OF THE CASE HAROLD BERNARD JR Administrative Law Judge I heard this case December 1987 in St Louis Missouri The sole issue is whether the Employer violated Section 8(a)(5) of the Act by reducing wages without the con sent of the Union in midterm of the parties collective bargaining agreement following impasse in negotiations held under a wage reopener clause Based on the entire record,' including the parties briefs, I make the following FINDINGS OF FACT I JURISDICTION Respondent makes steel storage racks in Quincy Illi nois, and annually receives products valued in excess of $50 000 directly from suppliers located outside Illinois I find that Respondent, as admitted, is an employer en gaged in commerce within the meaning of the Act II LABOR ORGANIZATION AND APPROPRIATE UNIT The Union is admittedly a labor organization within the meaning of Section 2(5) of the Act and, at all times material, has been the exclusive bargaining representative of Respondents employees in the following appropriate unit All production and maintenance employees em ployed at the Employers Quincy Illinois facility excluding office clerical and professional employees office janitors stockroom attendants guards and supervisors as defined in the Act Respondent has recognized the Union as such representa tive since 1965 III THE UNFAIR LABOR PRACTICE The parties executed a contract in June 1986 contain ing for them a first time wage reopener clause The over all agreement was effective June 1 1986 until August 31 1988 the wage reopener clause allowed either side to reopen for wage discussions 15 months into the con tract s term It reads i Respondents duly filed motion at hearing to quash the Charging Party s subpoena duces tecum is granted because of a lack of either claimed or apparent relevancy in the information sought by the subpoena and further because said information in any event was not only offered by witnesses testimony in large part but was also if desired more fully elicitable through examination of witnesses at the hearing before me in which counsel for the Charging Party participated Counsels stated sup port for serving the subpoena that is because of the mere hope of possi bly finding a smoking gun as he called it in Respondents records of negotiations justifies the conclusion that he was engaged in a fishing ex pedition like effort rather than the valid production of reasonably antici pated probative evidence a further basis for this ruling 1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD RATES OF PAY 1 Wage Reopener This Agreement may be re opened by either party, solely on the issues of wages and foremen working fifteen (15) months after its effective date A party so desiring to reopen the Agreement must do so by serving writ ten notice on the other party no later than July 31, 1987 [G C Exh 2, art 8, sec 1 p 39 ] On July 1, 1987, Respondent notified the Union it wished to reopen the contract pursuant to article 8, set forth above for the purpose of negotiating the issue of wages (G C Exh 6) The parties later met for negotia tions four times, August 1 and 12 and September 1 and 2 devoted to addressing Respondents proposals for wide scaled and severe across the board wage cuts ranging from 40 to 43 percent drops in the existing wages called for in the parties agreement which as noted, was not due to expire until August 31, 1988 The parties to this hearing are in agreement that these negotiations to resolve Respondents demands for wage reductions led to an impasse on September 2 when the Union rejected Respondents final offer, and when Re spondent thereupon announced it would be implementing wage reductions on September 4 Respondent further communicated its decsion to uni laterally reduce wages in a letter to employees attached to paychecks on September 3, and took the action itself on the next day, September 4 (G C Exh 11) As a result, contract established pay scales ranging between $9 and $10 hourly rates dropped steeply to a $5 to $7 range per hour in the approximately 25 work classifications at Respondents plant (G C Exh 2 p 40, and G C Exh 10) Analysis and Conclusion The record and the parties positions on brief clearly show that the Respondent made changes in an existing collective bargaining agreement without the consent of the Union a plain violation of Section 8(a)(5) of the Act given the clear prohibition against such conduct arising from Section 8(d) of the Act La Porte Transit Co 286 NLRB 132 (1987) and cases cited at 137 Respondent contends on brief that the parties wage reopener clause, as simply worded, constituted an expi ration of the wage provisions freeing Respondent to modify the wage structure on the parties impasse in ne gotiations As authority in support of this contention Re spondent was only able to offer a case involving a differ ent principle from the issue here, the right to strike on due notice in midterm of a contract authorizing a re opening on wages and footnote quotations of dicta un controlling here and indeed even alien to the controlling issues in those two cases See respectively Lion Oil Co, 109 NLRB 680 (1945) enfd 352 US 282, 291 (1957), Kelly Goodwin Hardwood Co 269 NLRB 33 38 fn 25 (1984) and Herman Bros 273 NLRB 124 fn 1 (1984) In any event it is clear that Respondents assertions to the contrary the Board has not decided such a question in Respondents favor Thus in the La Porte Transit deci sion cited above the Board noted Even assuming arguendo, that the terms of the par ties reopener provision would privilege post im passe unilateral changes, the record shows that the Respondent did not bargain to a good faith impasse prior to its implementation of changes In footnote 2, the Board expressly noted it was unneces sary to decide, as a general proposition whether the terms of the parties reopener provision would permit unilateral changes if a good faith impasse had been reached There was argument by the parties here also addressed at a past instance during the term of an earlier agreement which had no reopener when the Union at first denied Respondents request to discuss midterm wage modifica tions, vague clues advanced to devining the parties' in tentions when the present contracts wage reopener clause was agreed on torturously reasoned arguments about the legal significance of the present contracts no strike clause and whether the Union nevertheless planned on striking over Respondents last offer before Respond ent s unilateral action was taken and so on-none of which shed much light The simple truth is that no discussion of midterm changes in a fixed term collective bargaining agreement is required under Section 8(d) of the Act if such modi fication is to become effective before such terms and conditions can be reopened under the provisions of the contract C & S Industries, 158 NLRB 454 (1966), Standard Oil, 174 NLRB 177 (1969), Campo Slacks 266 NLRB 492 (1983), and cases cited in La Porte Transit, supra at 137 This clearly confers on the Union the right not to agree to discuss any such changes, and there is not a scintilla of evidence in the record on which it can rea sonably be concluded that the Union gave up-under the wage reopener language here-any more than the right not to agree to discuss the issue of wages Thus the par ties bargained-for agreed on language merely states in pertinent part 1 Wage Reopener This agreement may be re opened by either party solely on the issues of wages (and foremen working) fifteen (15) months after its effective date That of course, left completely untouched and wholly intact or preserved if you will the Union s statutorily mandated right to consent to any changes before such changes are made La Porte Transit supra at 137 It has been noted by the Board in the case of the Standard Oil Co 174 NLRB 177 178 (1969), that The Unions consent was required if management s proposed modifications were to take effect When the Union lawfully withheld its assent a stalemate did obtain The Trial Examiner correctly found however, that although an employer may unilateral ly institute changes when an impasse occurs during the negotiations for an initial bargaining agreement or following the expiration date of an expiring con tract, the employer may not do so where as here, the ocntract has not yet terminated Accordingly, SPEEDRACK INC 1059 the Trial Examiner correctly ruled that Respondent was not free in the manner sought to modify the un expired agreement over the Union s objections but was obligated to maintain in effect all preexisiting contractual commitments for the contract term We affirm, therefore, the Trial Examiners finding that by unilaterally publishing and implementing terms and conditions of employment inconsistent with the extant collective bargaining agreement, Respondent violated Section 8(a)(5) and (1) of the Act It is true that the Board expressly stated its basis for finding a violation of Section 8(a)(5) in La Porte as being the absence of a valid impasse, it is also true that the Board expressly affirmed and adopted Judge Robert A Giannasi s rulings, findings and conclusions, otherwise tacitly at least, reaffirming the judge s view on Sections 8(a)(5) and 8(d) generally as to the statutory rights con ferred on the parties to not discuss or agree to midterm modification of a fixed term contract There is absolutely no warrant in the record before me or in law to find any larger relinguishment of the Union s rights under the Act than that it gave up its right not to agree to discuss a midterm modification as proposed by Respondent Be cause, as noted above, Respondent admittedly modified wage provisions, a mandatory subject of bargaining, in midterm of the parties fixed term contract without the Union s consent, a right which was not shown to have been waived I find Respondent violated Section 8(a)(5) and (1) of the Act See La Porte Transit Co supra, and cases cited above In reaching this decision I note that the holdings in KCW Furniture Co, 247 NLRB 541 (1980) enfd 634 F 2d 436 (9th Cir 1980) and Robert A Barnes Inc, 268 NLRB 343 (1983) finding violations and cited by General Counsel involved specific reopener clause language preventing the exercise of said clauses from constituting a termination of the agreement and that this fact was noted in the decisions While there was no such language in the reopener clause involved here its mere absence would not reasonably be viewed as con stituting a waiver or forfeiture of important statutory rights since the omission cannot constitute `clear and un mistakable evidence of any intention to give up such rights See e g, Timken Roller Bearing Co v NLRB 325 F 2d 746, 751 (6th Cir 1963) cert denied 376 U S 97 (1964), N L Industries, 220 NLRB 41 43 (1975), 102 (1963), Ohio Industries, 257 NLRB 413, 414 (1981), enfd 702 F 2d 624 (6th Cir 1983) CONCLUSIONS OF LAW 1 The appropriate bargaining unit within the meaning of Section 9(b) of the Act is All production and maintenance employees em ployed at the Employers Quincy, Illinois facility excluding office clerical and professional employees, office janitors, stockroom attendants, guards, and supervisors as defined in the Act 2 At all times material, the Union has been the exclu sive representative of all the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act 3 By unilaterally implementing charges in the collec tive bargaining agreement with respect to wages without the consent of the Union, Respondent violated Section 8(a)(5) and (1) and Section 8(d) 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 Having found that Respondent has engaged in certain unfair labor practices I shall recommend that Respond ent cease and desist therefrom and take certain affirma tive action designed to effectuate the policies of the Act, including the posting of the attached notice In particu lar, I shall recommend that Respondent be ordered to re scind its unilateral changes retroactive to September 4, 1987, and to make whole the employees covered by the collective bargaining agreement for the loss of wages that they sustained as a result of Respondents unlawful conduct reducing wages on September 4, 1987 Such payments shall be made with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) 2 [Recommended Orde• omitted from publication ] 2 Under New Horizons interest is computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest accrued before 1 January 1987 (the effective date of the amendement) shall be computed as in Florida Steel Corp 231 NLRB 651 (1977)