Before WATERMAN, HAYS and MARSHALL, Circuit Judges.
HAYS, C. J.: Petitioner, as the person aggrieved by the Board's order dismissing in its entirety a complaint of unfair labor practice, brings this proceeding to review that order. We hold that the dismissal of the complaint was not justified by the reasons given by the Board and remand the case to the Board for consideration of whether there was a waiver of the right to bring a charge as to the conduct which was the subject of the complaint.
The complaint charged a refusal to bargain in violation of Section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. 158(a)(5). Petitioner was the charging party.
Petitioner is a labor organization which represents the employees at certain plants of Henry I. Siegel Co., Inc. for the purposes of collective bargaining and has been the recognized bargaining agent of such employees since 1946. It has had a series of successive contracts with the employer covering the period from 1946 to the present time. The controversy with which we are now concerned involved the collective agreement executed in 1961 to cover the period 1961 to 1963.
Most of the employees whom the petitioner represents are sewing machine operators and pressers. The 1961 agreement, like previous agreements between the parties, fixed "base rates" and "piece rates" for these employees. The "base rates" are, in effect, the rates which the least competent employee may be expected to make. The "piece rates" are figured by management engineers on the basis of time studies. They are composed of the average observed time required for a normal operator to perform each element of an operation plus certain additional allowances for such items as machine delays, personal needs and fatigue and plus an incentive factor of 121/2 per cent for increased production. The 1961 collective agreement contained the base rates and piece rates for almost 100 kinds of then existing operations. The agreement also provides for fixing rates for new or changed operations.
During the negotiations for the 1961 agreement the petitioner inquired of the employer whether the employer intended to continue to use the 121/2 per cent incentive factor in the computation of new and changed piece rates, and was assured that that factor would be used. There was thus, as the Trial Examiner and the Board found, an agreement between the employer and the petitioner to use the 121/2 per cent incentive factor in computing piece rates, though the Board refers to that agreement as an agreement "in principle."
The petitioner requested that a clause referring to the 121/2 per cent incentive factor be included in the collective agreement and proposed the following language:
"It is understood that the base rate in the stitching room is not yet fixed; to be filled in per hour and that the base rate for pressers is not yet fixed; to be filled in per hour and that the rates are engineered on the basis of a 121/2 percent incentive above the base rate."
The employer refused to accept this provision. In fact it refused, as the Board found, to incorporate in the agreement any reference at all to the 121/2 per cent incentive factor. It gave as its ground for such refusal that "any named percentage figure would be construed by the employees as a guarantee of earnings amounting to such percentage above the base rates."
The Trial Examiner held that the employer's refusal to execute a written contract including its oral agreement as to the 121/2 per cent incentive factor constituted a refusal to bargain in violation of Section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. 158(a)(5). The Board, while accepting all of the Trial Examiner's findings of fact, rejected his conclusion that the Act was violated by the employer's conduct.
It is well settled that the employer's refusal to incorporate an oral agreement in a written contract constitutes the unfair labor practice of refusal to bargain in violation of Section 8(a)(5). H.J. Heinz Co. v. NLRB, 311 U.S. 514 (1941).
The Board recognized this rule but dismissed the complaint on the ground that the contract as executed embodies the oral agreement. The Board finds this incorporation in the following provisions:
"Article V. Section 1. The Employer and the Union agree that piece rates and time work rates shall be those set forth in the separate schedule, annexed hereto as Schedule A to be initialed by the parties hereto, the provisions of which are incorporated herein.
Section 2. Adjustments in individual rates and rates for new or changed operations shall be made by mutual agreement between the parties hereto and shall be related to the rate schedules contained in Schedule A. If the parties cannot agree upon such adjustments the question shall be ...