Kal Kan Foods, Inc.

National Labor Relations Board - Board Decisions

Apr 22, 1988

288 N.L.R.B. 590 (N.L.R.B. 1988)

590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kal Kan Foods, Inc. and United Food and Commer-
cial Workers Union, Local No. 770, AFL-CIO.
Case 21-CA-25049
April 22, 1988
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
CRACRAFT
On September 23, 1987, Administrative Law
Judge James M. Kennedy issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel and the
Charging Party filed answering briefs.
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, 1 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Kal Kan
Foods, Inc., Los Angeles, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
During the hearing the Respondent attempted to introduce bargain-
in history evidence to show both that the Respondent had the right,
under the current contract, to institute a "continuous operations" system
and that the Union waived any claim that the Respondent did not have
the right to switch to continuous operations. The judge rejected the evi-
dence, but allowed the Respondent to make an offer of proof. Even con-
sidering the offer of proof in a light most favorable to the Respondent,
we find that the parties' collective-bargaining agreement unambiguously
sets forth a system of three 8-hour shifts.
Furthermore, the offer of proof, even if credited, is insufficient to es-
tablish that the Union clearly and unmistakably waived its right to re-
quire the Respondent to adhere to the shift system prescribed in the con-
tract. We therefore find that the Respondent's changeover to a 7-day, 12-
hour shift system of continuous operations constituted an unlawful mid-
term modification in terms and conditions of employment in violation of
Sec. 8(a)(5) and (1) of the Act.
Frank M. Wagner, for the General Counsel.
Christopher W. Carlton and Joel E. Krischer (Latham &
Watkins), of Los Angeles, California, for the Respond-
ent.
David S. Adelstein (Schwartz Steinsapir, Dohrmann &
Sommers), of Los Angeles, California, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This
case was tried 1 before me in Los Angeles, California, on
June 11, 1987, on a complaint issued May 5, 1987, by the
Regional Director for Region 21 of the National Labor
Relations Board. The complaint is based on a charge
filed on October 24, 1986, 2 by United Food and Com-
mercial Workers Union, Local 770, AFL—CIO (the
Union) and alleges that Kal Kan Foods, Inc. (Respond-
ent) has engaged in certain unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the National
Labor Relations Act.
Issue
The sole issue presented is whether Respondent had
the right during the term of a collective-bargaining con-
tract, even with notice to the Union, to switch to a 7-
day, 12-hour shift system known as "continuous plant
operation" in the face of collective-bargaining contract
provisions prescribing a three 8-hour-shift system. Under
that system employees formerly worked a 5-day week,
Monday through Friday.
The parties were given full opportunity to argue orally
and to file briefs. All parties have timely filed briefs, and
they have been carefully considered. Based on the testi-
mony, the stipulations, and the record as a whole, I make
the following
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is a corporation which is engaged in the
processing, sale, and distribution of pet food products
having a plant located in Los Angeles. It admits that it
annually purchases and receives goods and products
valued in excess of $50,000 directly from suppliers locat-
ed outside California. Based on those facts it admits it is
an employer engaged in commerce and in a business af-
fecting commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits the Union and its predecessor,
UFCW Local 274, are or have been at material times
labor organizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A UFCW local has represented Respondent's produc-
tion and maintenance employees for a number of years.3
1 The General Counsel's motion to correct the transcript is granted.
2 All dates are in 1986 unless otherwise noted.
3 The parties have stipulated that The following is an accurate descrip-
tion of the bargaining unit and that it is appropriate within the meaning
of the Act: -
All production and maintenance employees employed at Respond-
ent's facility involved herein, excluding employees represented by
the Operating Engineers Union and all other employees, confidential
employees, guards and supervisors as defined in the Act.
288 NLRB No. 73
KAL KAN FOODS 591
Prior to July 1, UFCW Local 274 was the exclusive rep-
resentative of the employees in that unit. On that date
Local 274 merged with Local 770 and since that time
Local 770 has represented Respondent's employees. The
merger has been accepted by Respondent which has
granted recognition to Local 770. The legality of the
merger is, therefore, not an issue. The previous collec-
tive-bargaining contract with Local 274 expired on
March 31. Thereafter, Local 274 negotiated a new col-
lective-bargaining agreement, the one with which we are
concerned, though it is now administered by Local 770.
It was ratified on May 27 but not executed until July 28
nearly a month after the merger. It is retroactive to
April 1 and does not expire until March 31, 1989.
The contract consists of 10 articles plus 3 appendices
, covering a total of 13 single-space typewritten pages. Ar-
ticle V governs the hours of work; article VI governs
overtime. Article VIII, which governs wages and bene-
fits, describes the shifts and the wage differentials to be
paid on each. The pertinent part of each article follows:
ARTICLE V
HOURS OF WORK
A. GUIDING PRINCIPLE
Morale, and therefore responsibility and produc-
tivity, cannot be achieved unless associates [employ-
ees] have a regular schedule and reasonable notice
of any change in that schedule. On the other hand,
the necessary amount of flexibility cannot be main-
tained if adjustment of any single associate's starting
time within a shift could result in rearrangement of
a significant number of other associates' schedules.
B. APPLICATION OF PRINCIPLE
To achieve mutuality of benefits, therefore, the
Company may exercise its right to change an asso-
ciate's starting time within a shift upon giving ade-
quate notice to the associate and appropriate consid-
eration to existing premium-pay policies and to the
impact such a change may have on his or her per-
sonal and family life.
ARTICLE VI
OVERTIME
A. GUIDING PRINCIPLE
Productivity and responsibility cannot be
achieved unless associates are allowed adequate
time off to rest. The ability to get a job done, how-
ever, requires that associates put in extra hours of
work when necessary.
B. APPLICATION OF' PRINCIPLE
To achieve mutuality of benefits, therefore, each
associate must recognize that it is his or her respon-
sibility to voluntarily work his or her fair share of
the overtime that does arise, and the Company will
reasonably balance overtime opportunities and ac-
commodate legitimate associate concerns.
ARTICLE VIII
WAGES AND BENEFITS
A. GUIDING PRINCIPLE
Morale, and therefore responsibility and produc-
tivity, are enhanced by paying above-average wages
and benefits to reward the expected above-average
performance. The Company, therefore, provides a
package of wages and benefits that includes the
major elements discussed in paragraph B.
B. APPLICATION OF PRINCIPLE
1. Wages [omitted, refers to separate schedule]
2. Shift Differentials: Shift differentials of
Twenty-Five Cents (25) and Fifty Cents (50) per
hour shall be paid for the second and third shifts re-
spectively. The shift differential pay for all hours
worked will be determined by the shift in which the
associate works more than four (4) or more [sic]
straight-time hours as follows:
First Shift 6 a.m -2 .30 p.m.
Second Shift 2 p,m.-10:30 p.m.
Third Shift

10 p.m.-6:30 a.m.
When an associate works four (4) straight-time
hours in each of two (2) shifts, he shall receive the
higher shift differential pay. No later than each
April 1, the Company shall review the shift differ-
entials to assure they remain competitive with the
employers in the wage survey.
3. [omitted]
4. [omitted]
Sometime during the summer Respondent appointed a
committee of management and employees, including a
union steward, to look into the feasibility of implement-
ing a continuous plant operation system. On September
12, Respondent's lawyer, Krischer, sent the Union an ini-
tial proposal. Union Executive Vice President Domin-
guez, by letter dated September 16, rejected the proposal
saying that the Union had no intention of reopening the
agreement for midterm modifications. On September 30,
after a meeting with the Union, Krischer sent a more
complete proposal that Dominguez again rejected. On
October 16, following some discussions among the union
membership and with another of Respondent's attorneys,
Union Attorney Adelstein asked for arbitration if Re-
spondent implemented the proposal as he had been ad-
vised. By letter of October 20, Krischer confirmed that
the plan would be implemented, saying Adelstein's sug-
gestion of arbitration was being considered. 4 By letter
dated November 3, Krischer advised Adelstein that the
plan was being implemented that day. It was later modi-
fied slightly on November 12.
The parties have stipulated that before November 3
unit employees worked Monday through Friday during
the week in one of the following three shifts: First
4 Art. IX of the contract does not require arbitration of such matters.
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
shift-6 a.m. to 2:30 p.m.; second shift-2 p.m. to 10:30
p.m.; or third shift-10 p.m. to 6:30 a.m. Employees who
worked the second shift received 25 cents more per hour
than employees who worked on the first shift; the em-
ployees who worked the third shift earned 50 cents more
per hour than the employees who worked the first shift.
In addition the parties have stipulated that before No-
vember 3, whenever an employee worked 4 straight-time
hours in each of two shifts, the employee received the
higher shift differential for all hours worked in those
shifts. Furthermore, all hours worked outside a normal
shift (overtime) were voluntary.
According to another stipulation, on November 3,
when Respondent instituted the "continuous plant oper-
ation" system, the plant began to operate 7 days per
week, requiring four of the five new shifts to have 12-
hour workdays. According to additional stipulations,
under the continuous plant operation system each work-
week begins at 6 a.m. on Sundays and ends at 5:59 a.m.
the following Sunday. The five shifts are known as the
A, B, C, D, and E shifts. Beginning on November 3 the
employees on A, B, C, and D shifts worked 12 hours per
shift and were paid the first 8 hours at straight time and
the next 4 hours at time and a half. Furthermore, under
the continuous plant operation system, the employees on
A and B shifts (the daytime shifts) no longer receive a
shift differential for any hours worked. Employees on C
and D shifts (the nighttime shifts) receive a 50-cent dif-
ferential for all hours worked. Finally, the parties have
stipulated that Respondent has operated under the "con-
tinuous plant operation" system from November 3 up
and through the date of the hearing in this matter, June
11, 1987.
IV. ANALYSIS AND CONCLUSIONS
The General Counsel and the Charging Party contend
that Respondent's implementation of the continuous plant
operation system on November 3 is a breach of the col-
lective-bargaining obligation both as a repudiation of the
collective-bargaining contract and as a unilateral change.
Respondent contends that the collective-bargaining con-
tract permits the change and also asserts that there is in-
dependent evidence that the Union and/or its predeces-
sor waived any objections to such a change. It does not
now contend that the September-October discussions
amount to a waiver, 5 but refers instead to conversations
that occurred during the course of collective bargaining.
The General Counsel and the Charging Party rejoin
that the collective-bargaining contract unambiguously
sets forth the number and hours of the shifts, the shift
differentials to be paid, and the means of calculating
overtime. They assert, therefore, that there is no way
that the collective-bargaining contract can be interpreted
to permit the changes that Respondent implemented on
November 3. Specifically, they rely on the parol evi-
dence rule to bar any evidence that Respondent has of-
fered to alter or vary the written instrument. As Re-
spondent, apart from the contract itself, could only offer
oral testimony relating to the question of whether the
5 Such a contention could not be sustained. Herman Bros., 273 NLRB
124 (1984).
Charging Party waived the terms of the written contract
in favor of Respondent's right to implement the continu-
ous plant operation system, I declined to hear that evi-
dence. Respondent asserts that I have erred in my ruling
as it contends the parol evidence rule is disfavored in the
collective-bargaining field. It urges that I reopen the
hearing to take the proffered testimony.
In this regard, it should be noted that during the hear-
ing I permitted Respondent to make an extensive offer of
proof and it took advantage of that opportunity. On
hearing the offer of proof, as well as arguments that the
collective-bargaining contract contained ambiguities, I
concluded that Respondent's argument and proffered
evidence could not constitute a defense to the alleged
violation of the Act. Because it has reasserted these argu-
ments in its brief, I have carefully reexamined the factual
and legal contentions. However, the material which Re-
spondent has presented fails to persuade me to change
my ruling.
Both the General Counsel and the Charging Party
urged the prohibition of the oral testimony based on a
traditional application of the parol evidence rule. Al-
though I find merit in their position, the use of the parol
evidence rule in cases such as this is not the sole ratio
decidendi. The principal logic to be applied is whether
Respondent without the Union's consent made changes
in the wages, hours, and terms and conditions of employ-
ment that are so great that they may be considered a
breach of the duty to bargain collectively in good faith.
Connected to that concern is the corollary question of
whether the Union in fact gave its consent to such a
change. The Board has dealt with these questions on nu-
merous occasions, but the lead case in the field was de-
cided almost 25 years ago. That case, C & C Plywood
Corp., 148 NLRB 414 (1964), 6 contains nearly all the fea-
tures raised here. Specifically, it speaks to Respondent's
argument that the contract permitted changes similar to
those which were made here (or did not prohibit them);
it also speaks to the waiver defense and the sufficiency of
the evidence to support it. The rule the Board applied
then is the rule that is to be applied now: Waiver of a
statutory right will not be lightly inferred and evidence
of its relinquishment must be "clear and unmistakable."
Thus, the real issue is the clarity and extent of the
waiver, not so much the issue of whether the parol evi-
dence rule can be used to exclude oral evidence offered
to vary the terms of a fully integrated, unambiguous
agreement.
I do think, however, that the parol evidence rule has a
valid application here.8 Specifically the rule, generally
6 Affd. 385 U.S 421 (1967).
7 C & C Plywood, supra at 416. See also Metropolitan Edison v. NLRB,
460 U.S. 693, 703 (1983); Timken Roller Bearing Co. v. NLRB, 325 F.2d
746 (6th Cir. 1963); Dow Chemical Co., 261 NLRB 186, 190-191 (1982).
8 The Board has long utilized the parol evidence rule in appropriate
circumstances. Petersen & Lytle, 60 NLRB 1070 fn. 1 (1945); Electro Met-
allurgical Co., 72 NLRB 1396 (1947); Jersey Contracting Corp., 112 NLRB
660 (1955); Teamsters Local 439 (Pittsburgh-Des Moines Steel), 196 NLRB
971 (1972); Food Fair Stores, 202 NLRB 347 (1973); Prestige Bedding Co.,
212 NLRB 690 (1974); Schorr Stern Food Corp., 227 NLRB 1650 (1977);
Gollin Block & Supply Co., 243 NLRB 350 (1979), Air-Vac Industries, 259
NLRB 336 (1981); Electrical Workers IBEW Local II (Los Angeles
NECA), 270 NLRB 424 (1984), enfd. 772 F.2d 571 (9th Cir. 1985).
KAL KAN FOODS 593
S ,
considered to be a substantive rule of law dealing with
the formation of contracts, rather than an exclusionary
rule of evidence, is as follows: Where the parties to a
contract express their agreement in an integrated writing,
intending it to embody the full and final expression of
their bargain, any other expression, usually oral, made
prior to or contemporaneous with the writing, is inad-
missible to vary the terms of the writing. The authors of
the Restatement 2d, Contracts, in §§ 209 and 210, 9 have
said that a written agreement is to be considered "inte-
grated" within the meaning of the rule if it constitutes a
fmal expression of one or more terms of the agreement.
They further state that it is the court which determines
the degree of integration as a preliminary question before
deciding whether the parol evidence rule applies. Clearly
no particular form is required for an agreement to be
found integrated.
Although Respondent argues that the absence of an in-
tegration clause (i.e., one which says the contract is the
final expression of the bargain) suggests that this contract
is not fully integrated, its absence does not require me to
concur. To the contrary, I easily conclude that this col-
lective-bargaining contract is the final and complete
statement of the parties and is therefore fully integrated
insofar as the pay and shift systems are concerned. And,
Restatement 2d, Contracts, § 213, 1 ° states first that a
binding integrated agreement discharges prior agree-
ments to the extent that they are inconsistent with them
and second that it discharges prior agreements to the
extent that they are within its scope. Thus, as noted in
the parol evidence rule itself, prior agreements are not to
be used to vary the terms of the written agreement be-
cause they have been "discharged" by the execution of
the written contract.
'Restatement 2d, Contracts, §§ 209, 210.
Sec. 209. Integrated Agreements
(1) An integrated agreement is a writing or writings constituting a
final expression of one or more terms of an agreement.
(2) Whether there is an integrated agreement is to be determined
by the court as a question preliminary to determination of a question
of interpretation or to application of the parol evidence rule.
(3) Where the parties reduce an agreement to a writing which in
view of its completeness and specificity reasonably appears to be a
complete agreement, it is taken to be an integrated agreement unless
it is established by other evidence that the writing did not constitute
a final expression.
Sec. 210. Completely and Partially Integrated Agreements
(1) A completely integrated agreement is an integrated agreement
adopted by the parties as a complete and exclusive statement of the
terms of the agreement.
(2) A partially integrated agreement is an integrated agreement
other than a completely integrated agreement.
(3) Whether an agreement is completely or partially integrated is
to be determined by the court as a question preliminary to determi-
nation of a question of interpretation or to application of the parol
evidence rule.
10 Sec. 213 states:
Sea 21$. Effect of Integrated Agreement on Prior Agreements (Para!
Evidence Rule)
(1) A binding integrated agreement discharges prior agreements to
the extent that it is inconsistent with them.
(2) A binding completely integrated agreement dis-
charges prior agreements to the extent that they are
within its scope.
A parallax to all this, of course, is Section 8(d) of the
Act. In two specific places in Section 8(d), the statute
states that the parties to a collective-bargaining agree-
ment shall not, during its duration, modify or terminate
its substantive terms by substituting terms that are incon-
sistent with those that have been negotiated. Obviously,
there are strong similarities between Section 8(d) and the
parol evidence rule, for Section 8(d) requires the parties
to maintain the terms and conditions of employment that
have been negotiated and which have, as a result of the
negotiations, been reduced to writing. Oral variances will
not usually be a sufficient defense to a deviation from
those terms. Likewise, an attempt to orally modify a
fully integrated contract will not be permitted under the
parol evidence rule and a deviation from those terms will
be regarded as a breach of contract.
Despite their similarities, and although the General
Counsel and the Charging Party have successfully per-
suaded me that the parol evidence rule applies here, its
application must necessarily be subordinated to the man-
date of Section 8(d), which it is the Board's duty actually
to enforce. The Board, under the Act, does not specifi-
cally enforce the terms of any collective-bargaining con-
tract, although in this case, as in many other cases before
the Board, the conduct may well constitute a breach of
both Section 8(d) and the contract. As the Board noted
in C & C Plywood, "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 employ-
ees." 148 NLRB at 415. The question here, as it was in
C & C Plywood, is whether the Union has waived its
right to insist on adherence to the terms set by negotia-
tions, embodied in the collective-bargaining agreement
and supported by Section 8(d).
Respondent first contends that the contract itself con-
tains evidence of waiver. It further contends that in the
1983 negotiations, reaffirmed during the 1986 negotia-
tions, it told the Union's negotiators that it was consider-
ing implementing a continuous plant operation system
and nothing in the contract would prohibit it from imple-
menting such a system. According to the offer of proof
that Respondent made, no union official objected.
With respect to the first contention, I can find no sup-
port for the argument in the contract itself. First, it is
true that the contract contains a management-rights
clause, which is set forth in the footnote below; 11 it also
contains a clause permitting it to modify the starting tinie
of an individual employee. Article V,B, quoted supra.
These two clauses are offset to a great degree by article
11 Art. III:
MANAGEMENT RIGHTS AND RESPONSIBILITIES
This Agreement recognizes the right of the Company to conduct
all its business and direct its working forces in all particulars except
as expressly modified herein
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
VIII,B,2, which sets forth the three-shift system together
with a formula for paying wages in accordance with that
system. I think it is fair to say that article V,B, only per-
mits Respondent to change the starting time of a few em-
ployees; it does not authorize a total change of the entire
system.
Compare the facts in C & C Plywood. There, the con-
tract permitted the employer to pay a premium wage
rate over and above the contract scale in order to
reward an employee for some special fitness, skill, or ap-
titude. The employer attempted to utilize that clause to
grant an across-the-board wage increase to the entire
crew. The Board, supra at 417, said to accept Respond-
ent's construction of the contract clause would be "tanta-
mount to saying that the Union inferentially surrendered
to Respondent the right unilaterally to establish produc-
tion standards and wage rates based thereon is a method
for compensating employees. Such an intent is so con-
trary to labor relations experience that it should not be
inferred unless the language of the contract or the histo-
ry of negotiations clearly demonstrates this to be a fact."
Similarly, Respondent's construction of article V,B, is
so contrary to labor relations experience that it should
not be inferred unless the language of the contract or his-
tory of negotiations clearly demonstrates it to be a fact.
The contract does not do so, and none of Respondent's
offers of proof even deal with that clause as granting Re-
spondent such a right. Respondent's argument is, instead,
that because the contract did not specifically prohibit the
implementation of a continuous plant operation system it
therefore had the right to do so. Respondent's construc-
tion of article V,B, allowing for the change of starting
times for a few employees as justifying a wholesale
change is too tortured to be acceptable.
Second, the management-rights clause itself recognizes
that Respondent cannot make changes where the con-
tract "expressly" provides coverage. Obviously, article
VIII,B,2, provides an "express" modification of manage-
ment's general right to direct its work force. It offers Re-
spondent no refuge.
Third, in its offer of proof Respondent proffered evi-
dence that the Union had specifically waived any objec-
tion to the implementation of the continuous plant oper-
ation system. At best, the offer consisted of proposed tes-
timony to the effect that during the course of the 1983,
and later the 1986, negotiations, Respondent's representa-
tives told the Union's representatives that the Company
was thinking of implementing a continuous plant oper-
ation system and their reply was that they understood or
that they had no objection. Assuming that a union offi-
cial made such an acknowledgment, it could not qualify
as a "clear and unmistakable waiver" of later-negotiated
contract terms setting working conditions inconsistent
with a yet-to-be-articulated continuous plant operation
system. It defies logic to assume that any umon official,
in 1983 while discussing the possibility that Respondent
might choose to implement another work-shift system
would ever be able to waive it when it finally began to
crystalize in September 1986.
Respondent does not contend that it told the union of-
ficials in 1983 how such a system would work then or
even during the 1986 negotiations. It was not until 3-1/2
months after the 1986-1989 contract was ratified that Re-
spondent began transmitting descriptions of its proposal.
The union negotiators could not have known either in
1983 12 or during the 1986 negotiations what they were
being asked to accept as a substitute. Accordingly, I
could never conclude that the Union had sufficient
knowledge to make a clear and unmistakable waiver
here.
Respondent's offer of proof is quite similar to the evi-
dence offered by the employer in C & C Plywood.
There, the employer's negotiator had mentioned during
negotiations that the company was "giving thought" to
promulgating a premium pay or incentive wage program.
The Board said that although the statement was made in
a context that resulted in a contract, it did not amount to
a waiver by the union under the clear and unmistakable
standard. Indeed, in that case as well as this, the lan-
guage used by the negotiator can be characterized as
precatory, i.e., too vague to have any legal significance.
Respondent makes one last, all-encompassing argu-
ment. It argues that this particular contract, and its im-
mediate predecessor, the 1983-1986 contract, are some-
how different from ordinary collective-bargaining con-
tracts. It notes that the parties call the document a mutu-
ality of benefits or "MOB" contract. Respondent asserts
that in exchange for the higher wages found in the MOB
contract, the Union gave up wage guarantees and certain
other benefits such as restrictions on the Employer's abil-
ity to make job assignments. Assuming that to be true, it
seems to be generally immaterial. The applicable law
continues to be the clear and unmistakable waiver stand-
ard. Neither the management-rights clause nor anything
else in this contract rise to that level. Accordingly, I am
unable to concur with Respondent in any respect. It
simply has not offered any evidence that would meet the
clear and unmistakable waiver standard.
Likewise, the parol evidence rule bars the evidence,
for the proffer could not be used to alter or vary the col-
lective-bargaining agreement. It is a fully integrated con-
tract on the point and is clear and unambiguous insofar
as the question of which shift and pay systems are to be
followed. Prestige Bedding Co., supra at 700.
Respondent had no right in that situation to make the
drastic changes that it did without the specific consent of
the Union. NLRB v. Katz, 369 U.S. 736 (1962); C & C
Plywood Corp., supra; Shen-Mar Food Products, 221
NLRB 1329, 1330 (1976); Huttig Sash & Door Co., 154
NLRB 811, 815-817 (1965). Had there truly been a
waiver or an actual agreement, given its importance, it
no doubt would have been reduced to writing some-
where, probably as a specific reservation of rights modi-
fying article VIII. See Southern California Edison Co.,
284 NLRB 1205 fn. 1 (1987).
12 Moreover, the Board early held that waivers found m preceding
contracts do not survive when a new contract is reached J. L Case Co.,
71 NLRB 1145, 1146 (1946) Here, the 1983 "waiver," if it can be called
by that name, even preceded the execution of the 1983-1986 contract.
Thus, the facts that Respondent offers here are not as strong as n J. I.
Case, because this purported waiver is one step more remote.
KAL KAN FOODS 595
TIM REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, I shall recommend that it be
ordered to cease and desist therefrom. As Respondent's
unilateral implementation of the continuous plant oper-
ation system may have resulted in a loss of pay to at
least some employees, Respondent shall be directed to
reinstitute the shift and pay systems (including returning
to voluntary overtime) in effect prior to November 3,
1986, and shall also be required to make whole any em-
ployee who lost pay as a result of that change, together
with interest there. Interest on such amounts shall be
computed in accordance with the Board's recent decision
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Based on the foregoing fmdings of fact and the record
as a whole, I make the following
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times material, an
employer engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
3. At all times material the Union has been the exclu-
sive collective-bargaining representative of Respondent's
employees in an appropriate unit within the meaning of
Section 9(a) of the Act.
4. About November 3, 1986, Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by implementing the con-
tinuous plant operation system, which materially
changed shifts, overtime, pay, and other terms and con-
ditions of employment of employees in the appropriate
unit and it made such changes in circumstances when it
was barred from doing so by Section 8(d) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed13
ORDER
The Respondent, Kal Kan Foods, Inc., Los Angeles,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Continuing to operate its Los Angeles plant in ac-
cordance with the continuous plant operation system that
it implemented on November 3, 1986.
(b) Refusing to bargain in good faith with United
Food and Commercial Workers Union, Local No. 770,
AFL-CIO by failing to maintain the wages, hours, and
working conditions as set forth in the collective-bargain-
ing agreement that it negotiated with that union's prede-
cessor and that became effective on April 1, 1986.
18 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the fmdings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reestablish the shift and pay systems that were in
effect at its Los Angeles plant prior to November 3,
1986.
(b) Reestablish the voluntary overtime policy as it ex-
isted prior to November 3, 1986.
(c) Make whole any employee who lost pay or other
income as a result of its implementing the continuous
plant operation system on November 3, 1986, together
with interest thereon as set forth in the remedy section.
(d) Post at its Los Angeles, California, facility copies
of the attached notice marked "Appendix." 14 Copies of
the notice, on forms provided by the Regional Director
for Region 21, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice readmg "Posted by Order of the Nation-
al 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE NATIONAL LABOR
RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT continue to operate our plant under the
"continuous plant operation" system that we implement-
ed on November 3, 1986.
WE WILL NOT refuse to bargain in good faith with
United Food and Commercial Workers, Local No. 770,
AFL-CIO by unilaterally deviating from the terms set
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
_
forth in our collective-bargaining contract that became
effective on April 1, 1986.
WE WILL NOT in any like or related manner deprive
our employees of their rights listed above.
WE WILL reestablish the shift and pay systems that
were in effect prior to November 3, 1986.
WE WILL reestablish the voluntary overtime policy as
it existed prior to November 3, 1986.
WE WILL make whole, with interest, all employees
who lost pay or other income as a result of our imple-
menting the continuous plant operation system on No-
vember 3, 1986.
KAL Kr FOODS, INC.