Decision Date10 September 1965
Docket NumberNo. 19769.,19769.
Citation351 F.2d 224
CourtU.S. Court of Appeals — Ninth Circuit

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin Pollack, Hans J. Lehmann, Attys., N. L. R. B., Washington, D. C., for petitioner.

George J. Tichy, Spokane, Wash., for respondent.

Before BARNES and KOELSCH, Circuit Judges, and MATHES, Senior District Judge.

MATHES, Senior District Judge:

The National Labor Relations Board petitions to enforce its order of August 24, 1964, which directs among other things that respondent: "Upon request, bargain with Plywood, Lumber, and Sawmill Workers Union No. 2405, AFL-CIO, with respect to the institution of a premium pay plan for glue spreader crews and, if requested by said Union, rescind any plan which Respondent may have unilaterally instituted."

The order sought to be enforced is the culmination of Administrative proceedings which followed filing by the union of a complaint before the Board on July 31, 1963, charging that respondent, as employer, "has engaged in and is engaging in unfair labor practices" within the meaning of section 8(a), subsections (1) and (5) of the National Labor Relations Act 29 U.S.C. § 158(a) (1) and (5), in that: "On or about May 20, 1963, the Employer unilaterally, and without agreement with representatives of its employees, changed the wages, rates of pay and conditions of certain of its employees at a time when such rates of pay, wages and conditions had just been incorporated in a signed contract with the Union and were not subject to renegotiation or change by either party."

Respondent conceded that at all times material to the proceeding, it was engaged in the business of processing and manufacturing plywood from green veneer at Kalispell, Montana; that since on or about August 28, 1962, the union had been the certified representative for purposes of collective bargaining of the employees involved and, as such, by virture of § 9(a) of the Act 29 U.S.C. § 159(a), had been and is now the exclusive bargaining representative of all employees in that unit; that from September, 1962, until May 1, 1963, the union and respondent engaged in a number of bargaining sessions culminating in a signed collective-bargaining agreement, effective from May 1, 1963, until October 31, 1963, but remaining in full force and effect from year to year thereafter, absent notice of a desire to change; that since on or about May 20, 1963, without consulting the union, the respondent unilaterally, and over the objection of the union, instituted a group wage incentive plan affecting approximately one-fourth of the employees in the appropriate bargaining unit.

Respondent denied the unfair-labor-practice charge, and asked the Board to dismiss the complaint. Respondent's consistent position has been that the group wage incentive plan was instituted in the good-faith belief that the plan was permissible under the provisions of the collective-bargaining agreement and that, even if not expressly permitted, the only issue presented to the Board was a disagreement as to the proper interpretation of the contract. Thus respondent has contended throughout that the matter was not properly before the Board on an unfair-labor-practice charge.

The two articles of the collective-bargaining agreement relied upon by respondent are the following:

"Article XVII
"A. A classified wage scale has been agreed upon by the Employer and Union, and has been signed by the parties and thereby made a part of the written agreement. The Employer reserves the right to pay a premium rate over and above the contractual classified wage rate to reward any particular employee for some special fitness, skill, aptitude or the like. The payment of such a premium rate shall not be considered a permanent increase in the rate of that position and may, at sole option of the Employer, be reduced to the contractual rate at such time as the Employer feels that the employee no longer merits the premium, except that no present employee of the date of signing of this original Working Agreement shall suffer a wage reduction as a result of this Agreement.
* * * * * *
"Article XIX
"The parties acknowledge that during negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter of collective bargaining, and that the understanding and agreement arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement. Therefore, the Employer and Union, for the life of this Agreement, each voluntarily and unqualifiedly waives the right and each agrees that the other shall not be obligated to bargain collectively with respect to any subject matter not specifically referred to or covered if this Agreement, even though such subjects or matters may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this Agreement."

The Trial Examiner found that respondent acted in the good-faith belief that it was authorized by the above-quoted provisions of the collective-bargaining agreement to take the unilateral action it did with respect to the premium pay in question. The Examiner then concluded:

"General Manager Thomason\'s decision — so far as the record shows — was consciously reached within the framework of his firm\'s contract, as he construed it, and did not reflect a deliberate attempt to modify or terminate it. See United Telephone Company of the West, 1111 NLRB 779. The Board\'s decision in the cited case — with respect to circumstances substantially comparable — declared that:
"Regarding the question of which party correctly interpreted the contract, the Board does not ordinarily exercise its jurisdiction to settle such conflicts. As the Board has held for many years, with the approval of the courts; `* * * it will not effectuate the statutory policy * * * for the Board to assume the role of policing collective contracts between employers and labor organizations by attempting to decide whether disputes as to the meaning and administration of such contracts constitute unfair labor practices under the Act.\'"

The Trial Examiner thereupon recommended to the Board:

"Upon these findings of fact and conclusions of law, and upon the entire record in the case, my recommendation is that the Board, pursuant to Section 10(c) of the National Labor Relations Act, as amended, dismiss the present complaint in its entirety."

The Board, with one member dissenting, reversed the Trial Examiner, observing in part:

"The Trial Examiner found that the dispute between the Union and Respondent involved only a disagreement as to the meaning of terms of a collective-bargaining contract and that the promulgation of the premium pay plan according to Respondent\'s understanding of those terms was not a violation of Section 8(a) (5). We disagree.
"In filing its unfair labor practice charge, the Union was complaining not of a violation of its contract with Respondent, but of the invasion of its statutory right as collective-bargaining representative of employees in the unit to bargain about any change in the terms and conditions of employment for such employees."

Because the union elected to file an unfair labor practice complaint with the Board, rather than to proceed in the courts, the question presented involves the power of the Board under § 10(a):

"The Board is empowered * * * to prevent any person from engaging in any unfair labor

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8 cases
  • International Union, United Auto., Aerospace and Agr. Implement Workers of America v. N.L.R.B., 85-2857
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 3 Octubre 1986
    ...aff'd, 410 F.2d 953 (6th Cir.1969); C & C Plywood Corp., 148 N.L.R.B. 414, 416 (1964), enforcement denied on other grounds, 351 F.2d 224 (9th Cir.1965), rev'd, 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486 (1967); but see Consolidated Foods Corp., 183 N.L.R.B. 832 (1970). In light of this rule......
  • Gannett Rochester Newspapers, a Div. of Gannett Co., Inc. v. N.L.R.B.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 26 Marzo 1993
    ...on which the union has "consciously yielded" its rights. See, e.g., C & C Plywood Corp., 148 N.L.R.B. 414 (1965), enf. denied, 351 F.2d 224 (9th Cir.1965), rev'd, 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486 ...
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 3 Mayo 1967
    ...Board's order because of "a good-faith dispute as to the correct meaning of the provisions of the collective-bargaining agreement." 351 F.2d 224, 228 (1965). In reversing, the Supreme Court did not question the employer's good faith. It was enough that the employer's interpretation of the c......
  • National Labor Relations Board v. Plywood Corp, 53
    • United States
    • U.S. Supreme Court
    • 9 Enero 1967
    ...the employer to institute the premium pay plan, divested the Board of jurisdiction to entertain the union's unfair labor practice charge. 351 F.2d 224. We granted certiorari to consider a substantial question of federal labor law. 384 U.S. 903, 86 S.Ct. 1337, 16 L.Ed.2d In August 1962, the ......
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