Georgia Pacific Corp.

GEORGIA PACIFIC CORP. 67 Georgia Pacific Corporation and Oil, Chemical & Atomic Workers International Union, AFL- CIO. Case 17-CA-12115 10 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 12 September 1984 Administrative Law Judge James L. Rose issued the attached decision. The Respondent filed, exceptions and a supporting brief. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified.I ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Georgia Pacific Corporation, Blue Rapids, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). "(a) Forthwith reduce to writing and execute a memorandum of understanding setting forth the full agreement reached with the Union concerning implementation of a four-shift operation in the wall board plant." 2. Substitute the attached notice for that of the administrative law judge. ' To remedy the Respondent's unlawful refusal to execute the agree- ment reached between the parties concerning implementation of a four- shift operation in the wall board plant, the judge ordered the Respondent to sign the document provided to the Union on 20 February 1984 titled "Wallboard Operating Schedule " This document, however, appears to be a statement of the shift schedule itself rather than a memorandum of understanding setting forth the full agreement of the parties. Therefore, we shall modify the recommended Order and notice to require the Re- spondent to reduce to writing and excute a memorandum of understand- ing encompassing the parties' full agreement concerning the fourth shift 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Oil, Chemi- cal & Atomic Workers, International Union, AFL- CIO, by refusing to sign any agreements negotiated between us and that Union involving modifications of our collective-bargaining agreement with that Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL forthwith reduce to writing and exe- cute a memorandum of understanding setting forth the full agreement reached with the Union con- cerning implementation of a four-shift operation in the wall board plant. GEORGIA PACIFIC CORPORATION DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge. This matter was teed before me on July 12, 1984, at Manhat- tan, Kansas, on the General Counsel's complaint which alleges that the Respondent violated Section 8(a)(5) of the National Labor Relations Act by failing and refusing to execute a memorandum agreed to between the parties relating to the Respondent's implementation of a four- shift operation among some bargaining unit employees. The Respondent generally denied that it has commit- ted any unfair labor practices and affirmatively contends that it has a right under the collective-bargaining agree- ment to set shift schedules. Therefore, implementation of a fourth shift was not something about which the Re- spondent was obligated to bargain during the term of the agreement and it was therefore not obligated to execute any memorandum concerning the method by which the four shifts would operate. On the record as a whole, including my observation of the witnesses, briefs and arguments of counsel, I make the following FINDINGS OF FACTS AND CONCLUSIONS OF LAW 1. JURISDICTION The Respondent is a corporation engaged in various aspects of producing materials for the building industry including the mining of gypsum and the manufacture, distribution, and nonretail sale of drywall material at var- ious facilities throughout the United States including one located at Blue Rapids, Kansas. During the course and conduct of its business within the State of Kansas, the Respondent annually purchases goods and services valued in excess of $50,000 directly from sources outside the State of Kansas and annually delivers directly to points outside the State of Kansas finished products valued in excess of $50,000. The Respondent admits, and I find, that it is an employer engaged in interstate com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 275 NLRB No. 17 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. THE LABOR ORGANIZATION INVOLVED Oil, Chemical and Atomic Workers International Union, AFL-CIO (the Union) is admitted to be, and I find is, a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The facts involved here are for the most part undis- puted. In summary, for many years the Union has repre- sented a unit of the Respondent's production and mainte- nance employees at the Blue Rapids facility and has ne- gotiated a series of collective-bargaining agreements with the Respondent on behalf of them (who apparently com- promise Local Union No. 5-571). The 1981-1983 agreement became effective on Sep- tember 1, 1981, and was due to expire September 1, 1983. On August 29, 30, and 31, 1983, representatives of the parties met to negotiate a successor agreement. At the time of their first meeting, the Respondent was operating three 8-hour shifts each day, generally 7 days a week. Because this heavy workloau was adversely affecting employee morale and was causing absenteeism , the Re- spondent wanted a four-shift operation which would guarantee each employee some days off each month. Thus in its August 11 submission of an agenda to the Union, the Respondent proposed: "4. Resolve agreement language to allow a four shift wallboard machine oper- ation." At the August 29 bargaining session this matter of four shifts was discussed. However, the Union contended that it had insufficient time to consider the various aspects in- volved and did not want to have such included in the new contract. Thus, on August 30, Jack Rauch, the plant manager, gave the Union the following: LETTER OF INTENT August 30, 1983 Subject: Four Shift Operation In consideration of a four shift operation at the Blue Rapids plant, it is the intent of the Company to meet with the Union Committee and work out the administrative details for implementing four shifts. It is understood that the Union Committee will cooperate to the extent necessary to resolve prob- lems of a four shift operation. It is also understood that four shifts will only be implemented if the majority of the people affected wish to do so. The parties then met again on August 31 and conclud- ed a new collective-bargaining agreement which became effective on September 1, 1983, until September 1, 1985. In early September the Respondent did in fact imple- ment a fourth shift for its supervisors and some time thereafter Lawrence Bach, the Union's local president, canvassed employees in the wallboard department. They agreed by a vote of 21 to 3 to pursue such for them- selves. On November 3 union representatives and the Compa- ny met to discuss a four-shift operation. The Company presented a proposal as to how this would work to which the Union objected on grounds that such would have the effect of reducing the amount of overtime pay. Finally, the Company proposed a plan the effect of which each employee works 7 days and then has 2 days off. Each 7-day grouping is assigned one of the three normal shifts. The cycle is completed in 4 weeks, during which each employee gets 3 time-and-a-half days and 3 double time days and 6 days off. (Under the contract time-and-a-half is paid for the sixth consecutive day of a "regular scheduled work week" and double time for the seventh.) At a union meeting on November 8, the employees agreed to this proposal and on November 9, Bach so in- formed Plant Manager Rauch. Then, and on at least two occasions thereafter, Bach contends that Rauch told him that he would get the schedule written as a memoran- dum agreement to be signed by the parties. While Rauch denies stating that he would draw such an agreement, there is no doubt that effective January 23, 1984, the Company did in fact implement the four-shift schedule. And on February 20, the Company did submit to the Union, along with three other documents which were to be signed as memoranda of agreement, the "Wallboard Operating Schedule" which the parties had previously discussed and which had been implemented. On February 20 Bach asked Rauch to make the sched- ule a memorandum of agreement to be executed. Rauch refused to do so on grounds that he had the management right to set shift schedules and would not therefore agree to execute a memorandum concerning this matter. There were subsequent discussions between representatives of the Union and representatives both of local management and individuals from the Company's headquarters in At- lanta . The Union contended there had been an agreement concerning the four-shift operating schedule which the Company was bound to execute as an agreement. The Respondent has steadfastly refused to do so because, it contends, it has the right to set shift schedules and there- fore going to a four-shift operation was neither some- thing over which it had a duty to bargain with the Union nor otherwise violative of the Act. B. Analysis and Concluding Findings The General Counsel argues, in brief, that implement- ing a four-shift operation is a mandatory subject of bar- gaining which was proposed by the Respondent during the 1983 negotiations but passed when the Union felt it did not have sufficient time to analyze the proposal. Sub- sequently, the parties did negotiate concerning imple- mentation of four shifts and reached an agreement which was implemented on January 23. However, the Respond- ent has refused the Union's demand to reduce the four- shift schedule to an executed agreement. The Respondent contends that under the management- rights clause of existing (and previous) collective-bar- gaining agreements it may set work schedules. Therefore discussion of various four-shift plans with union repre- sentatives was mere courtesy based in the parties amica- GEORGIA PACIFIC CORP 69 ble bargaining relationship The Respondent argues it was not required to negotiate with the Union nor did it do so. There can be little doubt that the matter of shifts is a mandatory subject of bargaining. As the Supreme Court said in Meat Cutters Local Union 189 v. Jewell Tea Co., 381 U.S. 676, 691 (1965): [W]e think that the particular hours of the day and the particular days of the week during which em- ployees shall be required to work are subjects well within the realm of "wages, hours, and other terms and conditions of employment" about which em- ployers and unions must bargain. National Labor Relations Act, § 8(d) .. . . The Respondent does not seriously contend that shifts are not a mandatory subject of bargaining but argues, rather, that the Union has waived its right to bargain over changes in shifts by agreeing to the management- rights clause in the collective-bargaining agreement. I disagree. First, the Board will not find such a waiver absent "clear and unmistakable" language. Or, as the Board said in Hearst Corp., 151 NLRB 834 (1964), it "will not find that contract terms of themselves confer on the employer a management nght to take unilateral action on a manda- tory subject of bargaining unless the contract expressly or by necessary implication confers such a right." The Respondent relies on S-B Mfg. Co., 270 NLRB 485 (1984), where the management-rights clause specifi- cally reserved to the company the right to "determine the number of employees, the number of hours, and the schedules of employment." However, here the manage- ment-rights clause is not so specific, reading in its entire- ty* The Company has and will retain the unquestion- able and exclusive right and power to manage the plant and direct the working forces, including the right to hire, suspend, discharge, promote, or trans- fer its employees, providing that such power vested in the Company shall not be used in violation of the terms of this agreement. Under this management-rights clause, in its broadest construction, the Company has the right to set work schedules and shifts where such does not conflict with other specific provisions of the agreement. Thus, for in- stance, the Respondent probably could change the 7 a.m. to 3 p.m. shift to start at 8 a.m. However the four-shift operation as implemented in- volves a more fundamental change. The four-shift sched- ule clearly conflicts at least with the workweek provi- sions of article XI and potentially conflicts with the overtime provisions as well. And in any event, it is a change from the past practice. Article XI states, inter alia, that "[t]he normal work week for each employee shall consist of five (5) days of eight (8) hours each. This shall not be construed to re- strict the number of days a week or the number of hours a day that the Company may operate at the plant. The work week shall begin on Monday at 7:00 a.m. for ac- counting purposes." The four-shift schedule changes the workweek for two of the three crews each week. Thus if crew three begins on Monday, crew two begins on Wednesday, and crew one on Friday. A possible construction of the seniority clause (art. IV) along with subparagraph (d) of article XI(2) is that the Company may not schedule overtime for employees junior to those who are off. By scheduling the crews in four shifts, the 6 and 7 days are overtime days and some employees would be working those overtime hours at a time when senior employees would not be scheduled to work. At the time of the hearing, while the Company was still operating under the four-shift schedule, inasmuch as business had dropped off substantially, the plant was not running 7 days a week every week. Indeed, some weeks it would operate only 5 days while other weeks it would operate 6. The effect of this was that some employees were receiving more hours and thus more overtime than other employees. As Rauch testified, "[T]he schedule was designed for us to be oversold, and we are now un- dersold " Thus, the four-shift schedule resulted in some employees having more days off than others and poten- tially, at least, junior employees were getting overtime that senior employees would be entitled to under the col- lective-bargaining agreement (assuming the Union's not unreasonable interpretation is correct that overtime must be allocated according to seniority). In any event, creation of a four-shift schedule was more than simply adding a shift or changing hours. The four-shift operation was a fundamental change in the workweek for all employees in the wallboard depart- ment. Traditionally the Company had operated three shifts a day, 7 days a week. Creation of a four-shift schedule changed this, to the benefit of both the Compa- ny and the employees. The Company gets more stability and improved morale (or so it was hoped) and the em- ployees get days off without sacrificing all premium days. And the Company must necessarily have understood that working three crews in four shifts would run afoul of some provisions of the collective-bargaining agree- ment because in the agenda it submitted to the Union on August 11 it specifically proposed to "[r]esolve agree- ment language to allow four shift wallboard machine op- erations." When the Union claimed it did not have sufficient time to analyze the Company's plan Rauch gave the Union a letter of intent in which he stated that "it is the intent of the Company to meet with the Union Committee and work out the administrative details for implementing four shifts." Again the Company must necessarily have under- stood that it would have to reach some kind of an agree- ment with the Union amending provisions of the collec- tive-bargaining agreement if a four-shift operation was to be implemented. Indeed, representatives of the Company and the Union met and worked out the particular four-shift plan now in 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD place and this was favorably voted on by a majority of the employees affected. Then the plan was implemented. From these facts I cannot conclude a "clear and un- mistakable" waiver by the Union to bargain about the matter or that the Company could implement such a change unilaterally. To the contrary, part consideration, at least, for the Union's agreement to the contract, and the management-rights clause, was the Company's letter of intent. The parties would agree to the administrative details prior to implementation of the four-shift plan; and in no case would the four-shift operation go into effect without the agreement of "the majority of the people af- fected." Without resolving, the conflict between Bach and Rauch concerning whether Rauch actually stated that the Company would execute a memorandum of agree- ment concerning the four-shift operation, it is clear from the Company's acts that it intended to negotiate imple- mentation of a four-shift operation. In fact the record es- tablishes that the Company and the Union negotiated concerning the four-shift operation (one proposed four- shift schedule was rejected by the Union on grounds that it did not provide for enough overtime) and the schedule finally adopted by the Company was agreed to by the Union and ratified by a majority of the employees before it was put in place. It is settled that where the parties have reached agree- ment on a mandatory subject of bargaining, Section 8(d) requires "the execution of a written contract incorporat- ing any agreement reached if requested by either party " Further, there is no question that on numerous occasions the Union did in fact request the Company to execute as a memorandum of agreement the four-shift schedule. The fact that the Company and the Union have in the past occasionally agreed to make ad hoc changes in the collective-bargaining agreement (for instance changing the Good Friday holiday to Easter Sunday) does not make lawful the Company's refusal to execute the agree- ment in this case. In effect the Respondent argues the Union has waived by past practice its right to have an executed contract of its agreement with the Company. Without concerning whether such a fundamental right under the Act can be waived by the Union, suffice it that for a waiver to exist, it must be "clear and unmistakable" and there is no evidence brought forth by the Company that the Union waived its right to have the four-shift agreement executed. I therefore conclude that the Re- spondent breached its duty under Section 8(a)(5) of the Act in failing and refusing to execute the memorandum submitted by the Company to the Union on February 20, 1984, concerning the wallboard operating schedule. I will recommend an appropriate remedy including execu- tion by the Company of the wallboard operating sched- ule. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The unfair labor practice found above occurring in connection with Respondent's operations has a close, in- timate, and substantial relationship to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow thereof within the meaning of Section 2(6) and (7) of the Act. V. THE REMEDY Having found that the Respondent has engaged in the unfair labor practice, I shall recommend that it cease and desist therefrom and take certain affirmative action nec- essary to effectuate the policies of the Act The Re- spondent will be ordered immediately to sign the agree- ment reached with the Union concerning the four-shift operation it implemented on January 23, 1984. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The Respondent, Georgia Pacific Corporation, Blue Rapids, Kansas, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing or refusing to sign and give full effect to any agreements negotiated between it and the Union concerning midterm modifications of the existing collec- tive-bargaining agreement between the parties, including the operation of four shifts in the wallboard plant. (b) 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) Forthwith sign and continue to give effect to the agreement between the parties implemented on January 23 and reduced to writing on February 20, 1984, con- cerning implementation of the four-shift operation in the wallboard plant. (b) Post at its place of business in Blue Rapids, Kansas, copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent 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. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. I If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, 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. 2 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board "