Cooper-Jarrett, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cooper-Jarrett, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, General Teamsters Local Union No. 261. Case 6-CA-10765 December 14, 1978 DECISION AND ORDER BY CHAIRMAN FANNING; AND) MtMBI RS J NKINS ANI) PEN F I O On August 29, 1978, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in opposition to the General Counsel's exceptions. 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' 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 and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. Member Penello would defer to the paries' griesance aind arhilr;.ion procedures for the reasons stated in Ro, Rohn.,on. In,-. d h a Roi R,,hinul (hevrolei, 228 NLRB 828 (1977). and in Member Walther's and his dissent- ing opinion in General American Iransportation (Ctrporaaum,n 228 NI RB 808 ( 1977) DECISION STA EMEN I ()F It E CASE JAMES L. ROSE. Administrative Law Judge: This matter was heard before me on June 8. 1978. at Sharon, Pennsyl- vania, upon the General Counsel's complaint, which al- leged that Respondent unilaterally implemented "produc- tion standards" I in violation of Section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 151, et seq. As rThe complaint refers to 'production standards" while the ontract wording is "work standards." 'he (;eneral ( Counsel contends that Ihese phrases are synonymous. amended at the hearing, the complaint alleges Respondent violated Section 8(a)(1) by issuing disciplinary warnings to some 24 employees who did not meet the new "production standards." Respondent denies, generally, that it unilaterally imple- mented production standards or that it has in any way engaged in any activity violative of the Act. Affirmatively, Respondent contends that the issues raised by the complaint should be resolved through the grievance procedure of the collective-bargaining agree- ment, and, accordingly, that jurisdiction of the Board should be deferred. Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971). Although de- termination of the issues here involves, to some extent, in- terpretation of contractual language, this matter also in- cludes allegations that Respondent disciplined employees in violation of Section 8(a)(1). Thus deferral is not appro- priate. General American Transportailon Corporation, 228 NLRB 808 (1977). Upon the record as a whole, including my observation of the witnesses, briefs, and arguments of counsel, I hereby make the following: FIN)IN(;S OF FA('I AND CONC(L tSIONS 01 LAW I JUtRISDICI ION Respondent is a common carner engaged in the inter- state shipment of merchandise with terminal facilities in several States including the one involved in this matter at West Middlesex, Pennsylvania. In the course and conduct of its business, Respondent annually transports in inter- state commerce goods, products, and materials valued in excess of $100,000. Respondent admits, and I find, that it is an employer engaged in interstate commerce within the meaning of Sec- tion 2(2), (6). and (7) of the Act. II lie LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, General Team- sters Local Union No. 261 (herein the Union) is admitted to he, and I find is, a labor organization within the mean- ing of Section 2(5) of the Act. III IIt ALILEt(Ii) IUNFAIR L.ABOR PRACTICES A. Background Facts At i.s West Middlesex facility, Respondent employs about 300 rank-and-file employees in four bargaining units, each of which is represented by the Union under separate collective-bargaining agreements. This matter in- volves the local cartage unit and the contract between the Union and Respondent covering those employees. Specifi- call., it concerns the dockworkers, the 60 or so employees who load and unload trailers. As has been the traditional practice in this industry, for many years Respondent measured the productivity of its dockworkers bs the pounds loaded or unloaded each hour. 840 COOPER-JARRETT, INC. An employee's production thus measured is then compared to the average of all employees on his particular shift to determine whether that employee is an adequate producer or not. Although the Union's business agent, Richard Glass. disclaimed any knowledge that Respondent ever compared the production of one employee to that of another. I find that such, in fact, has been the case. Specifically, Respon- dent's current union steward, Patrick Flahertv. 2 and ex- committeeman. William Smith. both testified that Respon- dent has long measured production by pounds per hour. and has, through its foremen, told low producers that they needed to improve. Documentary evidence shows that long before the events herein discussed, Respondent established a goal of 4,000 pounds per hour, and although this goal was rearely met. Respondent did reprimand employees who did not meet it. By memorandum to employees dated March 31, 1975. the facility manager Leslie Lenhart, announced the 4.000 pound goal and stated: "The rule is simple 'a fair day's work for a fair day's pay. In late May 1977,3 Thomas Bacola, an industrial engi- neer from Respondent's home office, was assigned to do an analysis of the West Middlesex operation. He spent about 4 to 6 weeks at the terminal working with each of the three shifts for about 1-1/2 weeks each. One result of Bacola's study was the development of a production measure formula based on the number of bills of lading and pieces of merchandise handled. Bacola felt that the bills and pieces formula is a fairer measure of a dockworker's production because such formula takes into consideration the additional time inherently required to move many light pieces. He did testify, however, that over a period of time (a week or more) the bills and pieces for- mula would correlate strongly with the pounds per hour formula. Thus, on a given shift, production measured by bills and pieces might show a dockworker to be a low pro- ducer while pounds per hour would show otherwise, but over a period of time the number and size of pieces han- dled would tend to average. An individual consistently shown to be a low producer using one formula would be shown to be a low producer using the other. Bacola concluded that allowing 3.46 minutes per bill plus .33 minutes per piece equals "100 percent" efficiency. From his study he concluded that the dock employees, on an average, were producing at about 85 percent efficiency. On about August 15, Respondent posted a notice to the effect that it would begin measuring the production of dockworkers using the bills and pieces formula and that employees were expected to produce the average of their shifts. Shortly thereafter, employee Gary Collins was issued a warning letter for habitually low production and in Octo- ber he was given a 3-day suspension for continued low production. Following Respondent's issuance of this disci- pline, Lenhart met with Glass, Flaherty, and Smith. During this meeting, Glass stated that the Company could not dis- cipline Collins because of low production, that the Union 2 Sometimes referred tor in the record as Kenneth 3All dates are in 1977 unless otherwise indicated. never agreed to production standards. and that the Compa- ny could discipline an employee only if he did not give a "fair day's work." As a result of this meeting. LIenhart agreed. among other things, to withdraw the 3-day suspen- sion of Collins and issue him a final warning letter. While this was not completely satisfactory to Glass. inas- much ts he felt Collins should not have been given any kind of warning, the discipline was not protested by ('ol- lins. Further. Lenhart agreed to the Union's suggestion to assign Collins to a more experienced worker for a week of training. Subsequently. Respondent issued a number of written warnings to employees found to be habitually low pro- ducers baed on the bills and pieces formula. B. A.nalvsis and Concluding Findings So far as is material here, article 20 of the collective- bargaining agreement between the parties reads: The Union and the Employer recognize the principle of a fair day's work for a fair day's pay . . .. The Employer may establish reasonable work standards which shall take into account all factors relating to the work assignment, run, terminal and territorial opera- tional conditions, subject to agreement and approval with the Local Union, and to be filed for approval with the Conference Joint Area Committee. The General Counsel contends that the method of mea- suring an employee's production is a "work standard" which Respondent put into effect in violation of Section 8(a)(5) of the Act, both because it was a unilateral change of working conditions and because implementation of it breached the contract. And Respondent enforced the new "work standards" in violation of Section 8ta)( I) by issuing to low producers written warnings. Implicit in the General Counsel's contention here is that the bills and pieces for- mula amounts to a production quota. Respondent contends that the method of measuring pro- duction is not a work standard within the meaning of the contract. Rather. Respondent argues, the standard is a "fair day's work" as demonstrated by the average for each employee's shift. Only if an employee habitually falls be- low the average is he warned or otherwise disciplined. This standard. according to Respondent, has been in existence for many 'ears. Respondent contends that employees are not required to produce at 100 percent efficiency as determined by the bills and pieces formula any more than they were previous- ly required to produce 4,000 pounds per hour. Respondent argues that "100 percent" efficiency, as 4,000 pounds per hour, is a goal only. The standard to which employees are held is the average production of their shifts, regardless of how measured. There is no evidence, including the warning letters to Collins, rebutting Respondent's contention in this regard. To the contrary. the warning letters to Collins stated that he was being disciplined not for failing to produce at a 100 percent efficiency but for habitually failing to produce the average of his "peers." And Smith. on direct examination of the General Counsel in testifying to the August 15 meet- 8,1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing wherein the bills and pieces formula was explained: "He [Lenhart] said we got a lot of dead wood .... He said disciplinary [sic] would be taken if so called low producers don't get up to standards-get up to the average." In his memo of July 15, Bacola refers to the formula as "standards," as did Lenhart in his memo to employees of August 17, from which the inference is sought that the for- mula is a change in production requirements. But Lenhart further stated in that memo, "The rule is quite simple and nothing new in our industry. The rule is 'a fair day's work for a fair day's pay.' " Use of the word "standard" in refer- ring to the formula is not determative of the issues here. The substance of what is required of employees is impor- tant. I conclude that the bills and pieces formula, as with the pounds per hour formula, is simply a method of measuring production. It is not a standard, or quota, to which em- ployees are held. The standard required of employees is the average production of fellow employees on a given shift. Further, now, as before, an employee is disciplined only when he habitually falls below the average of his peers. In this respect the General Counsel contends that discip- lining employees for poor production is new with the bills and pieces formula, making its adoption a violation. All of the evidence on this point is to the contrary. Employees were disciplined in the past for being low producers. Having concluded that Respondent's only standard of production for dockworkers is that they give a fair day's work, meaning that they produce the average of their peers, the question becomes whether the method used to measure production is a "work standard" within the meaning of the contract, or that changing the measurement formula has a significant impact on employee's working conditions. In effect, the General Counsel argues that the parties clearly meant to include within the phrase "work stan- dards" any method by which Respondent would undertake to measure the production of employees. I do not believe that such an interpretation of the contract is self-evident. Indeed, I find this phrase to be ambiguous. No doubt meant to be included in "work standard" are quotas. start- ing and quitting time, breaks, work clothes and the like, but the full reach of the clause is certainly not obvious. And there is no testimony in the record which would ex- plain what the parties had in mind in drafting this particu- lar provision. It is noted that the parties differ concerning what the past practice under this contract has been. Glass testified that while he is not "too familiar" with dockwork, even though he is charged with administrating the contract in question, Respondent had no right under the contract to discipline employees for low production and, implicitly, that no production requirements had ever been set. On the other hand, Respondent's witnesses, corroborated by the General Counsel's witnesses Flaherty and Smith, testified that Respondent has long had a practice of requiring em- ployees to produce the average of their peers. If dockwork- ers were required to produce at 100 percent efficiency as defined by Bacola, then such would amount to a produc- tion quota and fairly within the scope of "work standards." However, how Respondent chooses to measure employ- ees' production is not, because the method of measurement requires nothing of employees. It is against others' produc- tion that an employee is judged. Of course, if Respondent's method of determining whether an employee meets its standard of production is arbitrary or unreasonable then an employee suspension or discharge can be tested under the discharge clause of the contract (art. 47). There are many ways by which Respondent can measure an employee's production. One would be the subjective analysis of the dock foreman, a method also used by Re- spondent. Another is the previously discussed pounds per hour formula. Regardless, the ultimate determination and the one which can affect employees is whether the employ- ee produces to the average of his peers. I do not, therefore, believe that by changing its method of measuring production Respondent implemented a "work standard" in breach of the contract or Section 8(aX5), nor did it violate Section 8(a)(1) by issuing warn- ings to employees wvho it found produced less than the average of their shifts. The warnings in 1977 were not sub- stantively different from those given in 1975 and 1976. It may be that the bills and pieces method of measure- ment is so inaccurate an indicator of production that its use to determine production would be unreasonable, and that discipline of employees might be deemed uniust by the grievance committee. That, however, is not the issue before me. The issue simply is whether the method chosen by Re- spondent to measure production is a "work standard" within the meaning of the contract, and I find that it is not. Apart from whether Respondent breached the contract, the General Counsel contends that by imposing the bills and pieces formula, Respondent has made a unilateral change in working conditions, thereby violating Section 8(aX5). However, not every unilateral departure from a previous practice is violative of the Act. Peerless Food Products, Inc., 236 NLRB 161 (1978). Thus, in Rust Craft Broadcasting of New York, Inc., 225 NLRB 327 (1976), the Board held that installing timeclocks was not such a "radical change" as to be a violation. Noth- ing in that the change from handwritten to mechanically imprinted timecards represented a "marked departure from the previous practice, more importantly the rule itself (accurately recording hours worked) remained intact." This matter is analogous to Rust Craft. While instituting a change in mechanical procedure (the formula by which production is measured) the rule itself (producing to the average of one's peers) remained intact. And as in Rust Craft, the change, while unilaterally imposed, was not a material, substantial, or significant change from prior prac- tice. Thus, without resolving whether Respondent in fact no- tified the Union, or the Union somehow acquiesced in the change, I conclude that measuring production by the new formula did not constitute a unilateral change in violation of Section 8(a)(5). Since Respondent neither breached the contract nor in- dependently violated Section 8(a)(5) by implementing a unilateral change of working conditions, it follows that the warnings to employees for not producing were not violative of Section 8(a)(1). Wabash Transformer Corp., 215 NLRB 546 (1974). Upon the foregoing findings of fact and conclusions of 842 COOPER-JARRETT. INC. law, the entire record in this matter and pursuant to the provisions of Section 10(c) of the Act I hereby issue the following recommended: ORDER 4 The complaint is dismissed in its entirety. 4 In the event no exceptions are filed as provided by) Sec 10246 of the Rules and Regulations of the National Labor Relations Board. the findings. conclusions. and recommended Order herein shall. as provided in Sec 102l48 of the Rules and Regulations. be adopted by the Board and become its lindings, conclusions, and Order. and all objections thereto shall be deemed salaied for all purposes 843