Boyer Bros., Inc.

342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boyer Bros., Inc. and Bakery and Confectionery Workers' International Union of America, Local 12B, AFL-CIO. Case 6-CA-7278 April 10, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On December 31, 1974, Administrative Law Judge Eugene E. Dixon issued the attached Decision in this proceeding, Thereafter, the Respondent filed excep- tions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Boyer Bros., Inc., Altoona, Pennsylvania, its officers agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. In paragraph 1(b) change the words "In any other like or related manner" to read "In any like or related manner." 2. Substitute the attached notice for that of the Ad- ministrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain with Bakery and Confectionery Workers' International Union of America, Local 12B, AFL-CIO, by unilaterally modifying our collective-bargaining agreement with said Union. WE WILL comply with said agreement as written. WE WILL NOT, in any like or related manner, in- terfere with, restrain, or coerce our employees in the exercise of their rights of self-organization, to form labor organizations, to join or assist Bakery and Confectionery Workers' International Union of America, Local 12B, AFL-CIO, or any other labor organization, to bargain collectively with representatives of their own choosing, and to en- gage in any other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities requiring membership in a labor organi- zation as a condition of employment as authorized in Section 8(a)(3) of the the Act. BOYER BROS, INC DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Administrative Law Judge: This pro- ceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Altoona, Pennsylvania, on October 3, 1974. The complaint, dated August 26, 1974, based upon charges filed and served on February 14, 1974, was issued by the Regional Director for Region 6 (Pittsburgh, Pennsylvania), on behalf of the General Counsel of the National Labor Rela- tions Board (herein called the General Counsel and the Board). The complaint alleged that Respondent has engaged in and was engaging in unfair labor practices by failure to bargain with Bakery and Confectionery Workers' International Union of America, Local 12B, AFL-CIO herein called the Charging Party or the Union, as the bargaining agent of the majority of its employees in an appropriate unit, thus violat- ing Section 8(a)(1) and (5) of the Act. In its duly filed answer Respondent denied the commission of any unfair labor prac- tices. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT I RESPONDENT'S BUSINESS Respondent is a corporation engaged in the manufacture and nonretail sale of candy at its sole plant located in Al- toona, Pennsylvania. During the 12-month period immedi- ately preceding the issuance of the complaint, a representa- tive period, - Respondent received at its Altoona, Pennsylvania, plant, directly from outside the Common- wealth of Pennsylvania, goods and materials valued in excess of $50,000. During the same period, Respondent shipped from its Altoona, Pennsylvania, plant goods and materials valued in excess of $50,000, directly to points outside the Commonwealth of Pennsylvania . Respondent is now, and has been at all tunes material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 217 NLRB No. 58 BOYER BROS., INC. 343 II THE LABOR ORGANIZATION Bakery and Confectionery Workers' International Union of America, Local 12B, AFL-CIO, at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES There is no dispute as to the facts and the issue is a narrow one as framed in the pleadings. Did Respondent violate Sec- tion 8(a)(5) by unilaterally without consultation denying union representatives access to the plant premises "for the purpose of administering the collective bargaining, contrary to established procedures." The Union has represented employees in an appropriate unit' since 1966. The current contract is effective through November 5, 1975, and provides, inter alia, the following: ARTICLE VI-PLANT VISITATION Section 1. Time of visit-The Company agrees that for the purpose of carrying out the terms of this Agreement a duly accredited representative of the Union shall have the right to visit the plant of the Company during work- ing hours provided said representative holds no confer- ences or meetings with any employees which would in any way interrupt the normal flow of work. Section 2. Authorization-The Company shall have the right to request any Union official who desires to visit the Company's premises to present proper credentials indicating the capacity in which he is representing the Union, and further, to state the reason for his visit to the plant. The Company agrees that it will not at any time withhold reasonable visitation permission from any properly accredited Union official. ARTICLE VII-GRIEVANCE PROCEDURE Section 1. Grievances, within the meaning of this griev- ance procedure and Arbitration Clause, shall consist only of disputes about the interpretation or application of particular clauses of this Agreement and alleged viola- tions of the Agreement, and may be brought by the Union, the Company or any employee in the bargaining unit. Section S. The following procedure shall be followed in the settlement of employee grievances: (a) Any employee who believes he has aevance which involves only himself may discuss the grievance with his department supervisor. If the employee re- quests, the Union representative of the department shall be advised of the grievance and may be present during the grievance presentation. 1 The appropriate unit is comprised of all production and maintenance employees, truckdrivers, shipping and receiving employees at the Em- ployer's Altoona, Pennsylvania, plant, excluding all other employees, office clerical employees, guards, professional employees, line supervisors and all other supervisors as defined in the Act (b) If the grievance has not been satisfactorily an- swered within twenty-four (24) hours by the department supervisor, the Union departmental representative shall immediately present the grievance to the Production Manager in writing signed by the employee and the Union representative. (c) If no satisfactory agreement is reached within three (3) working days, the matter shall be presented within three (3) working days to the Local Representative of the Union to the Personnel Manager or his designee who shall give a written answer to the grievance within three (3) plant working days. Immediately prior to January 24, 1974, a burned-out mo- tor in one of the production lines caused a layoff of the personnel on that entire line. The Union felt that the layoff violated the seniority clauses of the contract in that the em- ployees or some of them should have been given the oppor- tunity "to go to another line to do light duty work." On January 24 Union Representative Sullivan discussed the mat- ter with Barry Drugg, Respondent's personnel manager. At this meeting it became apparent that the parties' under- standing as to what constituted the production department for seniority purposes differed. Because of this difference of opinion Sullivan, who had never been in the plant production area, felt it necessary to see the various production lines in order to be able intelligently to resolve the problem with Respondent. Accordingly, Sullivan related to.Drugg the rea- sons for his request and asked for a visit on January 28. Drugg denied Sullivan's request but told Sullivan to call him again the following day, January 25. Sullivan complied with Drugg's request at which time Drugg again denied Sullivan permission to visit the production area. The only reason given to Sullivan by Drugg for the denial was that "he did not feel it was necessary." - On January 28, Sullivan, accompanied by union represen- tatives, again met with Drugg for further discussions in re- gard to the seniority problem. Following fruitless discussions on the matter Sullivan again orally requested from Drugg the right to visit the production areas in an attempt to resolve the issue. Drugg again denied Sullivan's request by merely stating that he did not feel it was necessary. Because of the denials on January 24, 25, and 28, Sullivan on February 8 submitted to Drugg by mail a written grievance charging Respondent with violation of article VI of the agreement by prohibiting him from visiting the production area of the plant in order to gather information necessary to the administration of the contract. On February 13 Sullivan received by mail Respon- dent's answer rejecting his grievance as being "without merit." Thereupon Sullivan filed the unfair labor practice charges on February 14, 1974. On February 25 Sullivan met with Drugg in Respondent's conference room to go over the new plant rules that Respond- ent has issued. Since no resolution of the seniority problem has been reached Sullivan resubmitted his request for permis- sion from Drugg to tour the plant production area. Again Drugg refused the request stating that "it was not necessary." Sometime around March 20, Sullivan was informed by a number of his members that employees in one of Respon- dent's production lines were becoming ill due to what was thought a speedup of that line by Respondent. Pursuant to 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this information Sullivan telephoned Drugg on March 22 and requested permission to visit the plant in order to observe the line in question. Drugg asked Sullivan the purpose of the visit and Sullivan explained what he had been told. Drugg stated he-would check out the situation and get back to Sullivan. Having received no answer to his request during the tele- phone conversation, Sullivan sent a letter to Drugg which requested to tour the plant on March 27 for the purpose of evaluating the employee complaints regarding machine speedups. On March 25, Drugg called Sullivan as per his March 22 promise. During the conversation Drugg told Sul- livan that he had checked out the allegations and saw no need for Sullivan to visit the plant. Drugg also asked Sullivan at this time why he did not have his stewards file a grievance.' Sullivan replied that "He could not get his stew- ards to file a grievance and that was the problem." On March 27 Sullivan again met Drugg to discuss the unresolved seniority problem. During this meeting Sullivan reiterated his request for a tour of the plant which Drugg again denied. At this time Sullivan also requested a meeting in early April with Respondent's vice president Francis Loc- kert to discuss departmental seniority and other problems. The meeting with Lockert was held on April 2 and Sullivan again requested permission for a visit to the plant. As Drugg had in the past, Lockert denied Sullivan's request. Sullivan thereupon asked for a written reason for Respondent's re- peated refusals to allow him permission to visit the plant. No such written explanation was ever supplied. On October 1, 1974, an arbitration between Respondent and the Union was held on a grievance that had been pro- cessed on a matter not connected with the matters here at issue. In order to acquaint the arbitrator with the circum- stances involved in that arbitration, Respondent requested that the abritrator view the limited area of the plant involved. As a party to the proceeding, Sullivan accompanied Respon- dent's representatives and the arbitrator to the production area where he viewed .two production lines. For this visit, Sullivan and the rest of the visitors were required to sign Respondent's customary nondisclosure slips as follows: Re: Visitor's Non-Disclosure Agreement In consideration of your permitting me to visit your premises, I agree not to divulge or appropriate to my own use or to the use of others any trade secrets or confidential information or knowledge obtained by me during such visitation unless expressly authorized by you. I also hereby expressly assume all risks while on your premises and waive any right of action against you for any injury or damage suffered by me while upon your premises. I further indemnify and hold you, your succes- sors, and your assigns harmless from and against all loss, liability, damage and expense, including reasonable counsel fees, resulting from your or my negligence caus- ing such loss, liability, damage and expense. At no time was an indivudual employee grievance filed with respect to the matters Sullivan was claiming as a basis for his requested tour of the production lines. 2 Involving a specific employee complaint presumably In their testimony Respondent 's officials maintained that the only time Sullivan would be permitted plant visitation is when it is necessary to resolve a specific written grievance, when that grievance reaches the third step of-the grievance procedure . Respondent's counsel, maintaining the same posi- tion, stated: The Company's position is, first, that the contract must be specifically and clearly followed in regard to this. I think the only question that comes up is . . . whether the Comapny is on strong ground . . . interpreting the word, reasonable . . . to mean that the only point at which they will grant Mr. Sullivan access to the plant is at the third step of the grievance procedure when he is entitled to come into the picture .. . Conclusions Respondent concedes "that it has a continuing duty to bargain during the term of the collective-bargaining agree- ment" but contends that at all times it has done so. Appar- ently feeling that the issue here is whether or not it "refused to process a grievance" it relies on the Board's decision in Jacobs Manufacturing Company, 94 NLRB 1214 (1951), where the Board refused to find a violation for such conduct. But the issue here is not that Respondent refused to process a grievance. I agree with the General Counsel that the issue is whether or riot Respondent unilaterally, in violation of Section 8(a)(5) and 8(d), modified the contract. Section 8(d), which defines the obligation to bargain, states that "the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms or condi- tions contained in a contract for a fixed period, if such modifi- cation is to become effective before such terms and conditions can be reopened under the provisions of the contract." The Board has consistently held that an employer acts in deroga- tion of its. bargaining obligation under Section 8(d) and vio- lates Section 8(a)(5) when he unilaterally modifies contrac- tual terms of conditions of employment during the effective period of a contract. Oak Cliff-Golman Bakery Company, 202 NLRB 614 (1973); Osage Manufacturing Company, 173 NLRB 458 (1968); and Kinard Trucking Company, Inc., 152 NLRB 449 (1965). I agree with the General Counsel that here Respondent has in effect unilaterally and without discussion modified article VI, section 2 of the contract by eliminating the word "reasonable" and adding the words "after a griev- ance has been filed, and after it has been reduced to writing, and after it reaches the third step of the grievance procedure." This, I find, violates Section 8(a)(5) of the Act. The Remedy Having found that Respondent has committed certain un- fair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action to restore as nearly as possible the situation that would have existed absent the unfair labor practices. Having found that Respondent has refused and is refusing to bargain collectively in good faith with the Union as the representative of the employees in an appropriate unit by unilaterally modifying the collective-bargaining agreement, I shall recommend that upon request Respondent cease and BOYER BROS., INC. desist such modification and further that it comply with said agreement as written. I shall also recommend that Respondent be ordered to cease and desist from infringing in any like or related manner upon the rights guaranteed its employees by Section 7 of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operation of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent, Boyer Brothers, Inc., at all times material has been and is an employer engaged in commerce within the meaning of-Section 2(2), (6), and (7) of the Act. 2. Bakery and Confectionery Workers' International Union of America, Local 12B, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, truckdriv- ers, and shipping and receiving employees at the Employer's Altoona, Pennsylvania, plant; excluding all other employees, office clerical employees, guards, professional employees, line supervisors, and all other supervisors as defined in the act constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Bakery and Confectionery Workers' International Union of America, Local 12B, AFL-CIO, at all times material herein has represented a majority of employees in the above appropriate unit within the meaning of Section 9(a) of the Act. 5. Since January 1974 Respondent has failed and refused to bargain collectively in good faith with the Union in viola- tion of Section 8(a)(5) of the Act. 6. By the foregoing conduct Respondent has interfered with, restrained and coerced and is interfering with, restrain- ing, and coercing employees in the exercise of rights guaran- teed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDERS 345 Boyer Bros., Inc., its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing and failing to bargain in good faith with the above-named Union by unilaterally modifying the collective- bargaining agreement. (b) In any other like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights of self-organization, to form labor organizations, to join or assist Bakery and Confectionery Workers' Interna- tional Union of America, Local 12B, AFL-CIO, or any other labor organization, to bargain collectively with representa- tives of their own choosing, and to engage in any other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: (a) Comply with the collective-bargaining agreement be- tween the parties as written. (b) Post at its place of business in Altoona, Pennsylvania, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by its representative shall be posted by Respondent immediately upon receipt thereof and be maintained for 60 consecutive days thereafter in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writing, within 20-days from the date of this Order, what steps Re- spondent has taken to comply herewith. 3 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 4 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National 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 "