Cello-Foil Products, Inc.

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cello-Foil Products, Inc. and Printing Pressmen's Union No. 135 , International Printing Pressmen and Assistants' Union of North America, AFL-CIO. Case 7-CA-7016 September 26. 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On May 21. 1969, Trial Examiner Lloyd S. Greenidge issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter. Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the pro\ isions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiners Decision and the entire record in this case, including the exceptions and the brief, and hereby adopts the findings. conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. The Trial Examiner found that by unilaterally instituting the pressman trainee job classification on or about October 21, 1968, Respondent modified the collective-bargaining agreement without complying with the requirements of Section 8(d) of the Act, thereby violating Section 8(a)(5). Respondent contends, inter alia , that the agreement in effect at the time permitted it to create the new classification without the consent of the Union. We agree with Respondent. On January 14, 1967, Respondent and the Union executed a collective-bargaining agreement effective from that date until January 14, 1970. Five sections of that contract are involved in this dispute. Article 6, Section 6 of the contract reads, in toto. The line of progression in the pressroom shall be as follows: Pressman Plate Maker and/or Plate Mounter Pressroom Helper. Article 6(8)(b) provides for bidding by other employees for pressroom helper jobs for a short time after the execution of the contract. Article 6(5) limits "bidding down" within the plant by providing that: no employee shall be permitted to bid for a job for which the maximum of the rate range is less than the maximum of the rate range of the job he occupies except in cases of proven physical disability. A management rights clause, Article 2(2) and a clause dealing with the establishment of new jobs, Article 9(3), are discussed infra. Respondent prints and converts flexible packaging materials for producers of consumer products. Production involves two operations: printing on the material and converting it into bags. During the summer of 1968, Respondent became aware that it was losing substantial orders because it could not produce on its normal schedule. Because of a shortage of pressmen, all of its presses could not be manned for three full shifts; as a result the normal pressroom work backlog of 3 to 4 weeks had expanded to 8 to I I weeks. Respondent estimated that it needed about five more pressmen. The temporary invitation to bid into the pressroom pursuant to Article 6(8)(b) of the contract, supra, and attempts to hire qualified pressmen from outside had failed to alleviate the shortage. The record indicates that the pressroom helper job had a high rate of turnover and usually did not attract men who were qualified, even after training. to become pressmen. Because the maximum rate of pay for a bag operator or slitter adjustor exceeded the maximum rate for pressroom helper, the former employees were precluded by the contract from "bidding down" for the job in which they could be trained to become pressmen. Stymied in its attempts to build a staff of qualified pressmen, Respondent sought Union cooperation. After a grievance meeting on August 28, 1968, Respondent informed the Union that the shortage of pressmen was causing a slowdown in the production of printed material, that it was losing business, and that as a consequence nine employees in the bag and slitter departments would probably have to be laid off within the week. Respondent proposed that the problem be solved by creating a new job classification of pressman trainee. with a maximum pay rate high enough to permit most other employees to bid for it The Union stewards agreed to discuss the matter with senior employees, but this was not done. The Union was noncommittal at two later meetings and. at a fourth, on October 14, it rejected Respondent's proposal because of seniority problems and the fear that, if it agreed to the proposals, it would be accused of favoritism toward certain employees who would benefit thereby. On September 27, Respondent was informed by its attorney that it had the right, under Articles 9(3) and 2(2) of the contract, to establish unilaterally the pressman trainee classification. On October 21 and 30 and November 26, 1968, and February 25, 1969, Respondent posted invitations to bid into the new classification. Each time, Respondent accepted a bid 178 NLRB No. 103 CELLO-FOIL PRODUCTS , INC. 677 from an employee in another of its departments only after it had determined that no pressroom employee was qualified for, or would accept, appointment to the new position. In this manner, four bagmen became pressman trainees. Respondent contends that Articles 9(3) and 2(2) of the collective-bargaining agreement permit it to create the new job classification without consulting the Union. Article 9(3) provides in pertinent part that: When and if the Company creates a new job classification it shall set the rate of pay therefor, establish the manning thereof and advise the Union as to both. If the Union disagrees with either it may file a written grievance with respect thereto starting at the Third Step of the grievance procedure. If, as a result, a different rate of pay is established, the different rate shall become effective as of the date the job classification was created.. . A management rights clause, Article 2(2), reads as follows: The Union recognizes that except as specifically limited or abrogated by the terms and provisions of this agreement, all rights to manage, direct and supervise the operations of the Company and the employees are vested solely and exclusively in the Company. Respondent maintains that the words of Article 9(3) "(w)hen and if the Company creates a new job classification..." mean that the Union agreed that Respondent had the right to create such new job classifications. It urges that the inclusion in that section of the Union's right to utilize the grievance procedure if it "disagrees with either" refers only to the rate of pay or the manning of the new job and further indicates that the Union relinquished any right to be consulted regarding the creation of the new job. Respondent also contends that the management rights clause, Article 2(2), makes it clear that unless the agreement contains a specific abrogation thereof, Respondent would have the right to establish unilaterally a new job classification. Respondent claims there is no such limitation. The Union claims to find a limitation on Respondent's right to create new jobs in the pressroom by virtue of Article 6(6). supra, which it maintains creates a "closed line of progression" in the pressroom. We are of the opinion that Respondent's interpretation of the contract is correct and that its actions. which are permitted thereby, do not violate the Act We reject the Union's contention that Article 6(6) creates a "closed line of progression" in the pressroom: while it undoubtedly creates a line of progression, neither a reading of that section nor a review of the record convinces us that it is a "closed'' line. That section has not, in the terminology of Article 2(2). supra, "specifically limited or abrogated" the right to create new job classifications, a right which the Union surrendered to Respondent in Article 9(3). Respondent's actions were therefore fully within its rights under the contract. As we have found that Respondent has not violated Section 8(a)(5) of the Act, as alleged in the complaint, we shall dismiss the complaint in its entirety.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the complaint be, and it hereby is, dismissed. For the reasons set forth in the dissenting opinion in Eaton Yale & Towne, Inc. 171 NLRB No 73, Member Zagona would in the circumstances here defer to the arbitral process as provided by the parties' contract However, he has considered the complaint on the merits and joins his colleagues in dismissing it on that basis TRIAL EXAMINER'S DECISION Statement of the Case LLOYD S. GRFENIDGE, Trial Examiner- This proceeding, under Section 10(b) of the National Labor Relations Act. as amended, was heard at Marshall, Michigan. on March 11, 1969, pursuant to die notice. The complaint, which was issued on December 20, 1968,' on a charge filed the preceding November 1, alleged that the Respondent, herein at times called the Company, engaged in unfair labor practices proscribed by Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union on or about October 21 Respondent answered denying the refusal to bargain. Upon the entire record in the case.' my observation of the witnesses . their attitude and demeanor on the stand, and alter due consideration of' the briefs filed by the Company and by the General Counsel, I make the following* FINDINGS of FACT 1. THE BUSINESS OF THE RESPONDFNI Respondent, a Michigan corporation with its only office and place of business in Battle Creek, Michigan, is engaged in the printing and converting of flexible packaging materials and related products. During the calendar year ending December 31, 1967, a representative period, Respondent. in the course and conduct of its business operations, purchased and caused to be transported to its Battle Creek plant goods and materials valued in excess of S500.000 of which in excess of S50,000 were transported and delivered to its said plant directly from points outside the State of Michigan. During the same period, Respondent. in the course and conduct of its business, sold and shipped products valued in excess of All dates subsequently mentioned herein refer to the year 1968 unless otherwise indicated The General Counsel' s motion to correct certain errors in the i.omplaint with respect to the spelling of a name and lob titles was granted in the absence of objections Raymond Kaminski, plant manager, appears incorrectly as Ray Cominski , plant superintendent , and Thomas G Hall, assistant vice president and plant superintendent appears incorrectly as plant manager 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $50,000 directly to points outside the State . Upon the foregoing admitted facts, I find that the Respondent is an employer engaged in commerce within the meaning of' Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED It is admitted and I find that Printing Pressmen's Union No. 135, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. FLIF UNFAIR LABOR PRACTICES A. The Issues The issues presented by the pleadings and litigated at the hearing are whether Respondent refused to bargain on October 21, 1968, in the following respects. (1) by unilaterally establishing, creating. and opening to bids the job classification of Pressman Trainee which classification was used to train employees to advance to the position of pressman and (2) by unilaterally modifying the terms of the labor contract, in the manner set forth in (1) above, without first complying with the requirements of' Section 8(d) of the Act. There is no dispute, and it is found, that the following individuals are, and at all times material have been, supervisors within the meaning of Section 2(11) of the Act and agents of the Respondent Karl Welk, president; Thomas G. Hall, assistant vice president and plant superintendent: and Ray Kaminski, plant manager B. The Relevant Facts 1. Background in major part, the evidence is not in substantial dispute. The Respondent and the U nion commenced negotiations for their first collective-bargaining contract in October 1966 and, following a 10-week strike, became parties to a labor contract effective from January 14. 1967, until January 14, 1970.' Article Vl, section 6, of the contract establishes the following line of progression in the pressroom. Pressmen Plate Maker and/or Plate Mounter Pressroom Helper As of August 20, 1968, there were about 13 pressmen, 5 plate makers/ plate mounters and 7 pressroom helpers.' Section 8(b) of this article provides for the opening of all pressroom helper jobs for one time only The entire section reads as set forth below: 'Respondent admits, and 1 find, that the Union is the exclusive representative of the employees in the following appropriate unit within the meaning of Section 9( a) and (b) of the Act All production and maintenance employees at its Battle Creek , -Michigan , plant, including regular part-time employees, but excluding office clerical employees, product control employees, artists, Accounting Department employees, Sales Department employees , professional employees , guards and supervisors as defined in the Act 'Rcsp E.xh I Article V1. Seniority Section 8• It is understood and agreed that immediately upon execution of this labor agreement all pressroom helper jobs shall be declared open for bid on a plant-wide basis. The six (6) pressroom helper jobs shall be posted on the plant bulletin boards for two (2) regularly scheduled working days. Three (3) of the pressroom helper jobs thus posted shall he awarded to the employees with the most seniority who, in the judgment of the Company, have the ability required to satisfactorily perform the jobs. The three (3) successful bidders with the greatest amount of seniority (but not more than one (1) from each department) shall transfer to the pressroom helpers' jobs at their then prevailing rate of pay, and so long as they remain pressroom helpers, shall remain at that rate of pay until and unless the maximum of the rate range for the pressroom helpers subsequently exceeds their rate of pay. Such three (3) employees shall he the senior pressroom helper employees and shall be ranked, senioritywise, within the job classification on the basis of their plant-wide seniority and, if openings are available on two (2) or more shifts, may at the time of such openings exercise their seniority for shift preference unless for training purposes it is necessary to assign one (1) or more of such employees to specific shifts. Such three (3) senior pressroom helpers shall, in addition to the normal duties of the job classification, be in training for advancement to the next higher job classification in the job progression sequence. When an opening occurs in the next higher lob classification (plate maker and/or plate mounter or pressman) such senior pressroom helper or helpers will be advanced thereto. If, after advancing to such opening, the employee demonstrates that he does not have the ability to satisfactorily perform the work in such higher classification he shall return to the job classification from which he bid into the pressroom. (a) When the pressroom helpers' jobs have been declared open as above provided and after filling three (3) of such jobs as above provided, the Company shall, in its own judgment and discretion, have the right to select any three (3) other applicants who, irrespective of their relative amounts of seniority, have indicated a desire to be transferred to the pressroom helper classification These three (3) employees shall be ranked as the fourth, fifth and sixth helpers in the classification on the basis of their plant-wide seniority (b) The first paragraph of this section and subsection (a) above shall apply only once. immediately upon the execution of this agreement. Thereafter, any permanent vacancies in the pressroom helper classification shall be filled in accordance with the provisions of Section 5 of this Article. Section 5 of the same article states, in pertinent part, that: "no employee shall be permitted to bid for a job for which the maximum of the rate range is less than the maximum of the rate range of the job he occupies except in cases of proven physical disability." The negotiating history that preceded final approval of the above stated provisions is unclear but, from a composite reading of the relevant testimony. I am persuaded and find that they evolved as related below With regard to article VI, section 6, Paul Burgess,' a member of the Company's bargaining team, testified that 'Senior vice president , general manager , and corporate secretary CELLO-FOIL PRODUCTS, INC. 679 initially the Company proposed a line of progression' as follows pressmen, plate makers/plate mounter,, slittermen, and pressroom helpers. Burgess explained that the Company sought to have slittermen included in the pressroom sequence because of their close familiarity with operations similar to those performed by pressmen, namely, design layout, individual roll width, colors, and paper tensions. According to Burgess, the Union countered with a proposal that the pressroom helpers be called assistant pressmen and that they be elevated to a position above the plate makers/plate mounters with an appropriate increase in their rate of pay. The Company rejected the Union's proposal because it appeared to he unfair to the plate makers/plate mounters who are more skilled employees. On the other hand, Robert Obenour.' who was also in attendance at the bargaining sessions, testified that the Union wanted an open line in the pressroom but acknowledged that it proposed that the title of pressroom helpers be changed to assistant pressmen. Obenour also testified, credibly and without contradiction. that the Company proposed article VI, section 5, which prohibits an employee from bidding for a job with a maximum rate range lower than the maximum rate range for the job he occupies. With respect to article VI, section 8, both parties agree that the idea to open the pressroom helper lobs for one time only was advanced by the Union ' According to Thomas Hall, the Company's assistant vice president and plant superintendent. an invitation to bid into the pressroom, posted pursuant to the provisions of article VI. section 8, evoked a response that was insufficient to take care of the Company's long standing need for pressroom employees as only one employee took advantage of the opportunity.' Following the progressional sequence set forth in article VI, section 6. Hall then solicited applicants for the pressman's job from among the plate makers/plate mounters but only one of the four employees in this classification expressed a desire to move up In the interim, employees Earl May and Lynwood Morrison had advanced from helper to plate mounter. Hall's attention then turned to the helper classification as a possible source for much needed help in the pressroom. His problems here were substantial as most helpers were probationers due to a heavy turnover in the classification Hall estimated that, within the past 2 years, about 30 helpers had left the Company's employ. Two helpers were considered promotable, however. One was Bill Harvey. an employee with 3 years' seniority, who had been bypassed at an earlier date because of a physical disability. The Company also gave consideration to canvassing senior employees in the hag and slitter departments about transfers to the pressroom since many of these employees faced possible layoffs due to a lack of work. Fie thought died abortively when it was recalled that article VI, section 5, bars an employee from bidding for a job which has a maximum rate less than the maximum rate for the job he holds And. since the maximum rate for a hag machine operator and slitter adjustor was, in each instance, in excess of the $2.34 maximum for a pressroom helper. bagmen10 and slitters were precluded by the contract from bidding into the pressroom 'The only documentary reference thereto is Appendix A to the Company's contract proposals (G C Erh 5 ) 'Temporary organizer and principal spokesman for the Union 'Burgess' reference, at page 83 of the transcript, to article VII. Section' 8, is construed to mean article VI section 8, as there is no article VII, section 8, in the contract 'The single applicant was Verne Ostrander , a slitter operator It also appears that the Company attempted to hire pressmen from outside but few were available. In the past year, the Company engaged two employees for work in the pressroom but, after short stays. both quit. During the summer of 1968 it became apparent to the Company that it was losing orders in substantial numbers because of a shortage of pressmen The backlog of work in the pressroom had reached a point where the normal 3 to 4 weeks' delay had expanded to 8 to I I weeks In addition, the Company laced a problem in the slitting department where it was converting printing equipment to permit it to slit in line Converting to slit in line meant that the normal work complement in the slitting department would probably have to he reduced from eight to five employees. At that time, the Company had five presses but only tour were in working condition Three of the four Junctional presses ran the lull three shifts, the fourth ran two and sometimes three shifts depending on whether employees were willing to work overtime. A gravure press, to be delivered in May, will require the services of three additional pressmen. Anticipating personnel requirements for the next year. the Company estimated. according to Raymond Kaminski," that it needed a total of about live additional pressmen. About this time, the Company gave serious thought to establishing a new classification but, before taking action in this regard, sought legal counsel as to its rights under the contract 2. Discussion of contractual rights On September 27 management representatives met with Robert A. Huston, attorney for the Company, to discuss the creation of a new job classification to meet its needs for more pressmen in the end, the participants concluded that the Company had the right under article 11, section 2, and article IX, section 3, of the contract to unilaterally establish a pressman trainee job classification. Article II, section 2, reads as follows The Union recognizes that except as specifically limited or abrogated by the terms and provisions of this agreement, all rights to manage, direct and supervise the operations of the Company and the employees are vested solely and exclusively in the Company Article IX, section 3, states When and it the Company creates a new lob classification it shall set the rate of pay therefor, establish the manning thereof and advise the Union as to both If the Union disagrees with either it may file a written grievance with respect thereto starting at the Third Step of the grievance procedure If, as a result, a different rate of pay is established, the different rate shall become effective as of the date the job classification was created unless new equipment is involved to which case the rate shall become effective as of the time experimental or pilot runs have been completed and such machinery is cleared for actual production operation However, in the interest of better labor management relations, it was decided to present the problem to the Union and attempt to reach an agreement with it "Excluding the bag inspector classification which had a maximum rate of$209 "Plant manager 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Consultations with the Union a. The August 28 meeting Following a regular grievance meeting, the parties met on August 28 in an initial discussion pertaining to the establishment of a new job classification. The meeting was attended by Paul E. Burgess, Thomas G. Hall, and Raymond Kaminski on behalf of the Company and by Verne Ostrander, president of Local 135, and Shop Stewards Garrett Jones, Richard Brininstool, Mrs. Clovella Marriott, and Mrs. Lillian Slaughter on behalf of the Union. In the beginning, Burgess declared that there was an urgent need for more pressmen. He told the stewards that a shortage of pressmen was causing the Company to lose business because not enough printed stock was coming off the presses to continue a full bag department operation and that. as a consequence, the Company anticipated a layoff, within the next week, of at least eight hag inspectors and possibly one slitter operator. Burgess went on to say that the problem could be solved by establishing a new classification to be called pressman trainee and making the maximum rate for such classification $2 99, which would be higher than the maximum in any of the nonpressman classifications, except electrician, mechanic A, and slitter adjustor. He pointed out to the group that there were many employees with valuable experience in related areas, such as slitters and bagmen, and that they would benefit financially by transferring to the pressroom. Near the close of the meeting. Burgess asked the stewards to discuss the matter with the senior employees and ascertain whether any would be interested in becoming pressmen trainees and, ultimately, pressmen. While the stewards agreed to make such inquiry and to report back to the Company, they did not pursue the matter as, sometime the next day, news of the Company's proposal was leaked to an employee by a clerical worker in the office of Hall and Kaminski before the stewards could approach him. However, independent inquiries by Hall revealed a lack of interest in the proposal Disappointed in the negative reaction to its oral proposal, the Company decided to put its ideas in writing. b. The September 9 meeting At the close of another grievance meeting on September 9, the Company presented copies of a written proposal, denominated supplemental agreement," to members of the Union's committee. This meeting was attended by Burgess, Hall, and Kaminski on behalf of the Company, and by Ostrander, Jones, Brininstool, Slaughter, and Robert H. Whiteman on behalf of the Union. Ostrander told the company representatives that the committee had no authority to reach an agreement of the type suggested without first presenting the proposal to its bargaining agent and International representative. There was no further reference to or discussion of the proposal and the meeting closed with the Company urging early consideration and a prompt response. Sometime before September 23 Robert Obenour called Burgess and requested a meeting. c. The September 23 meeting This was still another meeting called for the purpose of discussing a grievance. Burgess. Hall, and Kaminski represented the Company while Obenour, Ostrander. Jones, Brinmstool, Whiteman. and Jerry Monarch represented the Union. After the grievance was disposed of, the Company asked whether the stewards had presented its proposal to the International. Obenour replied that he was aware of its existence but had not seen it. Obenour then suggested that the Company's problem might be solved by raising the wage rate for pressroom helpers because a higher rate would attract more qualified workers who, thereafter, could more readily meet the Company's requirements for promotion to pressman. Kaminski pointed out that some bag department employees faced layoffs and asked if Obenour was suggesting that the Company hire from the outside. According to Kaminski, Obenour replied that he was in tact suggesting just that. Finally, Obenour said that he would discuss the proposal with the stewards and give the Company an answer. d. The meeting of October 14 Hearing nothing further from the Union with respect to the proposal, the Company called a meeting for October 14. At this meeting Hall and Kaminski represented the Company and Obenour, Whiteman, Jones, Ostrander, and Brinistool represented the Union. At the outset, Hall read a memorandum addressed to the union committee dated October 14 and entitled "Need of Additional Pressmen."" The memorandum detailed the problems that were confronting the Company in manning the presses, told of the loss of business and of the layoff of employees that had ensued as a result thereof, restated the oft expressed urgency for the creation of a new job classification, and reminded the committee of the Company's past efforts to reach an agreement on the matter. After reading the statement, Hall elaborated on its contents by explaining that the Company faced the loss of the Silver Cup account which represented about one-third of the work in the poly bag department. He also told the group that if the Company did not obtain more pressmen it would have to layoff employees in the hag department. The Union replied reiterating a position advanced earlier, namely, that the title of pressroom helper should be changed to assistant pressman and the rate of pay increased to induce employees to bid into the classification. At some point in the meeting. Obenour stated that, if the contract was reopened, the Union had changes of its own which it desired to make. The suggestion implicit in the statement was apparently rejected The discussion then turned to a consideration of seniority, not mentioned in the proposed supplemental agreement except for a statement therein that the Pressman Trainee job shall be awarded to the senior applicant who, in the judgment of the Company, has the qualifications necessary to become a pressman According to Kaminski, the Company has two seniority lists. one for pressroom employees, the other for employees in the rest of the plant. The question here was whether a senior nonpressroom employee would retain his plantwide seniority in the pressroom after transfer or would receive a new seniority date If such employee was eniority list on dropped to the bottom of the pressroom seniority' transfer, he would forfeit the shift preference he had enjoyed in the rest of the plant. Conversely, it he was allowed to carry his plantwide seniority into the pressroom, experienced pressmen with less overall seniority would be prejudiced in shift assignments. Obenour suggested that employees who bid into the Pressman Trainee classification should enter the "G C Exh 3 "Resp Exh. 4 CELLO-1`011- PRODUCTS. INC. 681 pressroom at the bottom of the seniority list but should receive seniority credit equal to their plantwide seniority after they had completed their training and had become full fledged pressmen. He defined a "full fledged pressman" as an employee who had reached the top rate in the pressman's classification. The Company had never considered seniority a problem. its main interest was the contractual prohibition against employees bidding down. A number of committee members present were pressmen and, at least, one expressed concern that, under the Obenour proposal, a senior bag employee could eventually bump an experienced pressman off his shift The issue was never resolved About this point Ohenour asked whether the Company's conferees had authority to sign an agreement Kaminiski replied in the alfirmative and inquired whether the Union's representatnes were so authorized To this Obenour responded that before he signed the proposed agreement the wording would have to be changed. The committee then withdrew and caucused. When it returned Obenour announced that the Union rejected the proposed supplemental agreement because of the seniority problem. Soon thereafter Obenour requested a private meeting with Kaminski at which time he told the company representative that there was no use in pushing the proposal because the committee felt that the Company was attempting to adjust the rules to satisfy a few employees. Alter Kaminski and Obenour rejoined the group, either Kaminski or Hall voiced his disappointment in the committee's decision, stated that he did not know what the Company was going to do, and expressed hope that the decision was not a final rejection of the proposal and that the committee would reconsider. 4 The decision to establish a new job classification and the implementation thereof On October 18 the Company decided to exercise its alleged rights under article 11, section 2. and article IX, section 3, and to establish a Pressman Frainee classification with a pay range of $2.25-$2.99 later increased to $2 35-S3.09 Notices of the creation of the new job classification and invitations for bids were posted on October 21 and 30. November 26. and Fcbruar} 25. In each instance, the Company followed the progressional sequence in the pressroom and, only after it had concluded that no employee was qualified for promotion or was willing to accept an appointment to the new position. was an opening awarded to a senior employee from another part of the plant Four employees, all bagmen. were selected for these vacancies. On November 1 the Union filed the instant unfair labor practice charge against the Respondent alleging, inter a/ta, that, on October 21, Respondent "unilaterally effectuated a material change in the terms and conditions of the employment of employees . . 5. The grievance initiated Article Ili of the collective-bargaining contract establishes a grievance and arbitration machinery for the settlement of complaints "regarding the meaning, interpretation or application of the terms and provisions of this agreement." Section 2 thereof reads, in pertinent part, as follows. FiFTii STEP If, at this point, the grievance has not been satisfactorily settled, either party hereto shall have the right to submit such grievance to arbitration by the American Arbitration Association in accordance with its Voluntary Labor Arbitration Rules, then obtaining, provided such submission is made within thirty (30) calendar days after receipt by the Union of the Company's Fourth Step grievance answer. If the grievance has not been submitted to arbitration within said thirty (30) calendar day period, it shall be considered as being null and void The arbitrator shall have no authority to add to, subtract from. change or modify any provisions of this agreement but shall be limited Solely to the interpretation and application of the specific provisions contained herein. On January 13 all members in the pressroom helper classification filed a grievance alleging that they were being bypassed in the line of progression. The grievance, processed through the fourth step of the grievance procedure, was finally denied by the Company on March 3. There is no evidence that the arbitration provison of the contract was ever invoked. C Analisis and Conclusion Respondent earnestly argues that the Board should withhold the exercise of its jurisdiction in this case because a resolution of the issues posed requires an interpretation of the contract and such an interpretation by the Board would interfere with the machinery established by the parties to settle their grievances through arbitration The argument is devoid of merit It is firmly established that the availability of grievance-arbitration procedures does not foreclose the Board from asserting its jurisdiction Thus, Section 10(a) of the Act expressly states. "The Board is empowered to prevent any person from engaging in any unfair labor practice This power shall not he affected by any other means of adjustment or prevention that has been or may he established by agreement, law, or otherwise Further, the board , with court approval, has consistently held that it is not precluded from resolving an unfair labor practice issue simply because , as an incident thereto, it may he required to construe the scope of a contract which an arbitrator is also authorized to construe." Moreover. the inere existence of contractual grievance and arbitration procedures is insufficient to warrant deferral to arbitration particularly where, as here, arbitration has not been invoked" and the time to do so has long past Respondent's reliance upon the Supreme Court's decision in C & C Pltivood" to support the argument advanced here is misplaced . It is recognized, of course. that the contract in that case did not provide for arbitration and, therefore, the question whether to defer to arbitration was not directly before the Court However, the rationale of C & C Pltiwood, when read together with the Court's decision in Acme Industrial Co.," establishes that the presence of an issue of contract interpretation does not deprive the Board of jurisdiction even though the contract contains a provision for arbitration and that the Board does not exceed its jurisdiction in necessarily "See N L R B v Huttig Sash & Door Co., Inc . 377 F 2d 964 (C A 8), enfg 154 NLRB 811, C & S Industries , Inc . 158 NLRB 454, Cloverleaf Division of Adams Dairi Co, 147 NLRB 1410. Smith Cabinet Manufacturing Company, Inc, 147 NLRB 1506 "See N L R B v Huttig Sash & Door Co Inc , supra, Cloverleaf Division of Adams Dairy Co . supra , 1415-16. C & S Industries Inc , supra, 460, ct McLean Trucking Company. 175 NLRB No 66 "N L R B v C & C Plywood Corporation , 385 U S. 421 See also Mastro Plastics Corp v N L R B. 350 U S 270 "N L R B v Acme Industrial Co. 385 U S 432 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD construing the contract to decide the unfair labor practice Accordingly, for the reasons set forth above, I shall proceed to decide the case on its merits." Initially, it is necessary to consider the General Counsel's contention that in October 1968 Respondent violated Section 8(a)(5) of the Act by unilaterally establishing, creating, and opening to bids the job classification of Pressman Trainee which he asserts is being utilized to train employees to progress to the classification of pressman. The record clearly establishes that the Respondent unilaterally created the Pressman Trainee classification after having failed to reach an agreement with the Union and that employees in the new classification are being trained to advance to the position of pressman That the creation of a new job classification and the institution of a program concerned with the selection and training of employees to become qualified pressmen are matters which fall within the meaning of "wages, hours. and other terms and conditions of employment" as set out in Section 8(d) of the Act and are, therefore, mandatory subjects of bargaining is plainly evident. The qualifications to be met by applicants for participation in the program and the terms and conditions under which they will work after acceptance are obviously matters related to and embraced within the statutory language. I find, therefore, that the creation of the Pressman Trainee classification and the institution of a training program were mandatory bargainable subjects and that the Respondent did not bargain with the Union concerning the decision to establish the new job classification, the selection of applicants for the training program or the terms and conditions which were to govern their participation therein The Company urges that the Union waived its right to be consulted prior to the establishment of the new classification by the provisions of article II, section 2 (the management rights clause), and article IX, section 3 (delineates the Company's rights with respect to the creation of new job classifications), both quoted above A union may, of course, waive its right to be notified and consulted concerning any substantial change in employment but such waiver must be expressed in clear and unmistakable terms and will not he lightly interred.'° The fact that article IX, section 3, also provides for the utilvation of grievance procedures in the event of union dissatisfaction with the rate of pay or manning established by the Company for a new classification does not preclude the Union from pursuing an alternative course of action, namely, the assertion of its right to bargain about these matters 20 And, although the Union in article IX, section 3, recognizes the right of the Company to create a new job classification, this provision must be construed in the context of article Vi, section 5 (prohibits employees from bidding for a job for which the maximum of the rate range is less than the maximum of the rate range of the job he occupies), and section 6 thereof (establishes a closed line of progression in the pressroom) which clearly delimit the exercise of the Company's right to bring about changes in the pressroom. Similarly. article It, section 2, by its very language, is expressly limited by the terms and provisions of the contract. "See N L R B • Scam Instrument Corp, 394 F 2d 884 (C A 7), enfg 163 NLRB 284, Unit Drop Forge Division Eaton Yale & Towne Inc. 171 NLRB No 73, C & S Industries . Inc . supra, 459-460 "Cloverleaf Division of Adams Dater Co. supra, 1412, Clifton Precision Products Division , Litton Precision Products. inc. 156 NLRB 555, 562-563, Smith Cabinet Manufacturing Company. Inc. supra, sa, also The Timken Roller Bearing Co v N L R B , 325 F 2d 746 (C A 6), cert Viewed in this perspective, I am persuaded and thus find that there is no basis in the wording of article IX. section 3, or article 11 section 2. for inferring that the Union surrendered to the Company the right unilaterally to establish the Pressman Trainee classification and to institute a training program for employees selected for the new position I consider now the General Counsel's contention that by unilaterally establishing the new classification and using it to train employees to advance to the position of pressmen, Respondent modified the existing contract in derogation of the provisions of Section 8(d) of the Act The General Counsel's theory appears to be that the unilateral establishment of the Pressman Trainee classification and the institution of a training program therefor had the effect of changing contractual provisions which prohibit an employee from bidding for a job with a lower maximum rate range (article VI, section 5), establish a closed line of progression in the pressroom (article VI, section 6), and permit a one-time hid into the pressroom (article VI, section 8). It will be recalled that the Company met with the Union on four different occasions for the purpose of discussing and ultimately gaining approval of its proposal The final meeting on August 14 ended with the Union's rejection of the proposal. One week later, in a posted notice to the employees, the Company announced the creation of the new classification and solicited bids for the position. Surely, the Union was not obliged to agree to any modification of the existing contract and, having failed to reach an agreement, the Company was not then at liberty to unilaterally modify the terms and conditions of employment of its employees during the life of the contract.2' Here, it is quite clear that, by unilaterally creating the Pressman Trainee classification, Respondent superimposed that classification upon the contractually established progressional sequence in the pressroom in violation of article VI, section 6, of the contract.22 And, by opening the classification to bids and setting the maximum rate range at a level above that of any oonpressroom classification, except electrician, mechanic A, and slitter adjustor, Respondent circumvented the proscriptions of article VI, section 5, and section 8, (a) and (b). Such actions by the Respondent amounted to modifications of contract terms within the meaning of Section 8(d) and I so find.' In defense, Respondent contends that it had the contractual right under article 11, section 2, and article IX. section 3, of the contract, quoted above, to unilaterally establish the new job classification and that by agreeing Co a further provision in article iX, section 3, which permits the Union to invoke the grievance-arbitration procedures in the event of a dispute over the pay rate and manning established by the Company for such classification, the Union bargained away its right to prior notice or consultation with respect to the institution of the new classification The contention lacks substance. After a careful review of the record, I am persuaded and find that even if article II, section 2 (management rights clause), and article IX, section 3 (the denied 376 U S 971 '0N L R B v Huttig Sash & Door Company, Inc, supra. Unit Drop Forge Division Eaton Yale & Towne Inc , supra "C & S Industries , Inc. supra, 457 "See C & S Industries. Inc , supra, 459 "See The Standard Oil Company (Ohio ). 174 NLRB No. 33, PPG Industries Inc. 172 NLRB No 61, The Scam Instrument Corporation, 163 NLRB No 39, C & S Industries, Inc , supra CELLO-FOIL PRODUCTS, INC. clause which allegedly gives Respondent the right unilaterally to create a new job classification when and if it finds it necessary to do so), could arguably support Respondent's contract interpretation claims, such a construction is not tenable in view of the more specific language of article Vl, section 6, which establishes a closed and restricted line of progression in the pressroom. It is a well-recognized principle of contract construction that an instrument is to be interpreted as a whole and that where provisions appear to he inconsistent the more specific rather than the general provision shall be given effect.=d Moreover. as stated above, the availability of grievance procedures does not preclude the Union from insisting on its right to bargain about changes in contract terms.35 Respondent also appears to contend that the parties bargained to an impasse prior to the institution of the new classification. There is no merit in this contention Impasse is not controlling or material where, as here, a change in the terms and conditions of employment is made during the life of an existing contract. See The Standard Oil Cotnpani (Ohio), supra, C & S Industries. Inc , supra By way of further defense, Respondent argues that the change was motivated by pressing economic considerations The Board has held, however, that economic necessity is no justification for an infraction of the statute. See C & S Industries, supra. Finally, Respondent stresses its good faith and the absence of union animus. In this regard. Respondent points to the fact that it sought to avoid layoffs and followed the progressional line in the pressroom before accepting applications from non pressroom employees. It is well settled, however, that the existence of union animus is not a prerequisite for a finding of an 8(a)(5) violation. See Fibreboard Paper Products Corp v. 'V L.R B., 322 F.2d 411 (C A.D.C.), Unit Drop Forge Division Eaton Yale & Towne, Inc , supra Furthermore, unilateral changes in the terms and conditions of employment constitute a violation of the bargaining obligation even in the absence of a showing of had faith N L R B. v. Benne Katz, etc , d/h/a Williamsburg Steel Products Co , 369 U.S. 736 Accordingly, rejecting the Respondent's defenses, I find and conclude that Respondent refused to bargain with the Union on October 21, 1968, and since by (1) unilaterally creating, establishing and opening to bids the job classification of Pressman Trainee, and instituting a training program therefor and (2) unilaterally modifying the terms of the contract without complying with the provisions of Section 8(d) of the Act. By such conduct Respondent upset the delicate balance of interests painfully struck by the parties in their bargaining negotiations and thereby engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. 1 HE EFFrC P OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section 111, above, occurring in connection with Respondent's operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. ''Restatement of the Law of Contracts, sections 235(c) and 236(c), Williston on Contracts, 3d cd section 624 "See Unit Drop Forge Division Eaton Yale & Towne. Inc, supra V. THE REMEDY 683 It having been found that Respondent has engaged in certain unfair labor practices , I shall recommend that it take certain affirmative action designed to effectuate the policies of the Act. To remedy the unlawful actions taken by Respondent, I shall recommend that Respondent cease and desist from unilaterally instituting changes in the wages , hours, and other terms and conditions of employment of its employees in the bargaining unit herein found appropriate, during the term of any collective -bargaining contract covering said employees without first reaching an agreement with the Union covering such changes . I shall also recommend that, upon request , Respondent revoke and rescind the institution of the Pressman Trainee job classification and that it bargain collectively with Printing Pressmen ' s Union No. 135, International Printing Pressmen and Assistants' Union of North America. AFL-CIO, as the exclusive representative of all employees in the unit found to be appropriate for the purposes of collective bargaining. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONClUSiONS OFLAw 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Printing Pressmen's Union No. 135, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by Respondent at its Battle Creek, Michigan, plant. including regular part-time employees, but excluding office clerical employees, product control employees, artists, Accounting Department employees, Sales Department employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Al all times material, the Union has been, and now is, the exclusive representative of the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By unilaterally instituting the Pressman Trainee job classification on or about October 21, 1968, the Respondent changed the existing terms and conditions of employment of the employees in the aforesaid unit and modified the subsisting collective-bargaining contract without complying with and in violation of the requirements of Section 8(d) of the Act. 6 By its acts as set forth in Conclusion 5, above, the Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]