Technicolor Graphic Services, Inc.

TECHNICOLOR GRAPHIC SERVICES, INC. Technicolor Graphic Services, Inc., South Dakota Operations and Motion Picture Laboratory Technicians, Local 780, and International Pho- tographers of the Motion Picture Industries, Local 666, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO. Case 18-CA-6230 December 4, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On August 21, 1980, Administrative Law Judge George F. McInerny issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the Charging Party filed an answering 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 briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Technicolor Graphic Services, Inc., South Dakota Operations, Sioux Falls, South Dakota, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order, except that the at- tached notice is substituted for that of the Adminis- trative Law Judge. i We agree with the Administrative Law Judge that Respondent vio- lated Sec. 8(aXS) of the Act at least with respect to its refusal to bargain over the effects of its decision to discontinue the quality control group. In the absence of eceptions thereto, we find it unnecessary to decide whether Respondent's failure to bargain over the decision itself also vio- lates Sec. 8(aX5) of the Act. Although the Administrative Law Judge states that he cannot make a determination as to whether Luden and Becker are professional employ- ees within the meaning of Sec. 2(12) of the Act, the record fully supports his findings that their job classification was included in the bargaining unit found appropriate by the Regional Director and that their duties have not changed as a result of their February 5, 1979, promotions Ac- cordingly, in the absence of record evidence to the contrary. we find that Luden and Becker are not professional employees within the meaning of the Act and that they remain members of the bargaining unit 253 NLRB No. 75 APPENDIX NoTrici To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions. the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT refuse to bargain with Motion Picture Laboratory Technicians, Local 780, and International Photographers of the Motion Picture Industries, Local 666, Interna- tional Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AL-CIO, as the exclusive representative of our employees in the appropriate unit described below, concern- ing the effect on employees of our abolition of one of our administrative units, or over in- creases in the wages and changes in the work- ing conditions of our employees. WE Will. NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the National Labor Rela- tions Act, as amended. WE WILL, upon request, bargain in good faith with the above-named Union, as the ex- clusive representative of our employees in the appropriate unit, over the abolition of any of our administrative units, and over changes in the wages, hours, and working conditions of our employees. The appropriate unit is: All full-time and regular part-time employ- ees employed in the photographic labora- tory, product inspection, data management, technical engineering photographic labora- tory maintenance, center services and logis- tics sections, including plant clericals, em- ployed at the Employer's Sioux Falls, South Dakota, facility; excluding employees em- ployed in user services operations, systems development, systems software, technical en- gineering computer maintenance, technical communications, applications, training and assistance and data analysis sections, office clerical employees, confidential employees, 569 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guards, assistant supervisors and supervisors as defined in the Act. TECHNICOLOR GRAPHIC SERVICES, INC., SOUTH DAKOTA OPERATIONS DECISION STATEMENI OF THE CASE GEORGE; F. MCINERNY, Administrative Law Judge: Based upon a charge filed on April 20, 1979, and amend- ed on June 21, 1979, by Motion Picture and Laboratory Technicians, Local 780, and International Photographers of the Motion Picture Industries, Local 666, International Alliance of Theatrical Stage Employees and Moving Pic- ture Machine Operators of the United States and Canada, AFL-CIO, herein referred to as the Union, the Regional Director for Region 18 of the National Labor Relations Board, herein referred to as the Board, issued a com- plaint and notice of hearing on June 21, 1979, alleging that Technicolor Graphic Services, Inc., South Dakota Operations, herein referred to as the Company or Re- spondent, had violated and was violating Section 8(a)(1) and (5) of the National Labor Relations Act, as amend- ed, 29 U.S.C. 151 et seq., by refusing to bargain with the Union through the unilateral transfer of work out of an appropriate bargaining unit which the Union had been certified by the Board as the collective-bargaining repre- sentative, and by unilaterally changing the wages and job titles of two employees in said unit. On June 28, 1979, Respondent duly filed an answer to the complaint, denying the appropriateness of the unit and denying the commission of any unfair labor prac- tices. Thereafter, and pursuant to said notice of hearing, a hearing was held before me at Sioux Falls, South Dakota, on November 1, 1979, at which all parties had the opportunity to present testimony and documentary evidence, to examine and cross-examine witnesses, and to argue orally. Following the close of the hearing it was discovered that a portion of the testimony given at the hearing had been omitted from the transcript furnished by the court reporter. Accordingly, the General Counsel, on Decem- ber 4, 1979, moved to correct the record by inserting a summary of the missing testimony or, in the alternative, to reopen the record to take testimony to correct the omissions. On December 31, 1979, 1 issued an Order To Show Cause why the General Counsel's motion should not be granted. Respondent filed an opposition to the General Counsel's motion to substitute a summary for the missing testimony, but joined in the alternative motion to reopen the record. Therefore, on February 12, 1980, I issued a further order reopening the hearing. In accordance with that order, a further hearing was held at Sioux Falls on March 20, 1980, at which the General Counsel and Respondent appeared and were given the opportunity to adduce additional evidence and to argue orally. Following this hearing, Respondent and the General Counsel filed briefs, which have been care- fully considered. Upon the entire record of this case, including particu- larly my observations of the witnesses and their demea- nor, I make the following: FINDINGS 01 FACT I. TFlE. BUSINESS 01 RELSPONI)ENT Respondent is a Delaware corporation having an office and place of business in Sioux Falls, South Dakota, where it is engaged in providing technical support for the Earth Resources Observation System, processing data received from satellites and reproducing copies of this data for agencies of the United States, foreign coun- tries, and the general public. During the calendar year 1978 Respondent derived gross revenues in excess of $1 million and shipped products valued in excess of $50,000 directly to points outside the State of South Dakota. The complaint alleges, the answer admits, and I find that Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. TIHE lABOR OR(;ANIZA'IION INVOI.V.I) The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 111. TH. AI IEGLED UNFAIR ABOR PRACTICES A. Background On June 26, 1978, the Union filed a petition with Region 18 in Case 18-RC-11921 for a bargaining unit described as "all production and maintenance photo- graphic employees" of the Company at its Sioux Falls lo- cation. Following a hearing, the Regional Director issued a Decision and Direction of Election on August 22, 1978, finding inter alia that the appropriate unit was the following: All full-time and regular part-time employees em- ployed in the photographic laboratory, product in- spection, date management, technical engineering photographic laboratory maintenance, center serv- ices and logistics sections, including plant clericals, employed at the Employer's Sioux Falls, South Dakota, facility; excluding employees employed in user services operations, systems development, sys- tems software, technical engineering computer maintenance, technical communications, applica- tions, training and assistance and data analysis sec- tions, office clerical employees, confidential em- ployees, guards, assistant supervisors and supervi- sors as defined in the Act. The Employer filed a request for review of this Deci- sion, which was denied, by direction of the Board, on September 21, 1978. On that same day, an election was held among 105 eligible employees, resulting in 49 votes for the Union, 30 against the Union, with 20 challenged ballots. On September 28 the Employer filed objections to conduct affecting the results of the election. Follow- ing an investigation the Regional Director issued a Deci- 570 TECHNICOLOR GRAPHIC SERVICES, INC sion on October 27, 1978, overruling the Employer's ob- jections and sustaining the challenges to 12 ballots. He went on in that Decision to certify the Union as the col- lective-bargaining representative for the employees in the unit described above. The Employer's request for review of this Decision was likewise denied, by direction of the Board, on January 30, 1979. On November 1, 1978, the Union requested that the Company commence bargaining. There was some delay in beginning negotiations, but there is no issue in this case of a general refusal of the Company to bargain in good faith. The evidence showed that the parties met on April 28, 1979, and had had eight bargaining sessions up to the date of the hearing herein on November 1, 1979. However, Respondent has raised in this case the af- firmative defense that the unit as described in the Com- plaint, the same as that found by the Regional Director, as affirmed by the Board, is inappropriate. Respondent did not attempt to introduce any evidence on this issue. Moreover, in the absence of newly discovered or previ- ously unavailable evidence or special circumstances, Re- spondent, in a proceeding alleging a violation of Section 8(a)(5), is not entitled to relitigate issues which were or could have been litigated in a prior representation pro- ceeding; Rules and Regulations of the Board, Section 102.67(f) and 102.69(c); Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941). In this affirmative defense, then, Respondent has not raised any issue which is properly litigable in this unfair labor practice proceed- ing, and that defense is rejected. I find the unit as alleged in the complaint and as set out above, and in my recom- mended Order, below, to be appropriate. B. The Quality Control Issue Respondent operates under a contract with the United States Department of the Interior in managing the Earth Resources Observation System (EROS) data center. The center receives data obtained from a satellite system called Landsat, analyzes that data, stores the data, and also reproduces it in the form of film or photographs for dissemination to the United States Government, other governments, organizations, and the public at large. During 1977, the Company was involved in the process of developing a new system, EROS Digital Image Proc- essing System (EDIPS). Under this system satellite data is first processed at the Goddard Space Flight Center in Maryland, then transmitted by microwave to Respond- ent's location where the data is further processed. With the introduction of the EDIPS system during 1978, Respondent was concerned with the quality as well as productivity of its operations. 2 This was particularly true of the finished product, the photographic prints which represented the final stage of the data-gathering This statement is largely drawn from the Regional Director's Deci- sion and Direction of Election in Case 18-RC-11921 which was agreed by the parties to represent these facts fairly 2 This material is taken from the credible testimony of Harold Lock- wood. Respondent's Deputy Manager for the facility I do not discredit this testimony because he may have said in his affidavit to the oard something slightly at variance with his testimony at the hearing. It was clear from all his testimony, that he was interested in both productivity and quality, but he further said that productivity did not work out as ex- pected process. Accordingly, Respondent turned its attention to the photographic laboratory, There, the quality control function was handled in two separate sections. The qual- ity of the film and paper used was under the supervision of photographic engineers employed in the production systems engineering section. and the quality of the equip- ment used in the production, enlargement, or reduction of photographs was supervised by the production proc- essing section. Because of this concern about quality in the advent of the new EDIPS process, it was decided to establish a separate quality control branch. to be responsible for both of these elements of quality control, and to have that branch report directly to Manny Morales, the head of the photographic Laboratory.' The new branch was then set up either late in 1977 or early in 1978 and was staffed during the times material herein by Diane Matzke, whose functions were the test- ing of raw stock, the manufacture of control film strips, and the testing other film and paper materials, and Jack T. Pursall, Ruel Eneboe, and Scott Meidl, whose func- tions looked to the quality of the printing and processing equipment. Matzke, Pursall, and Eneboe all testified that they were led to believe that their assignment to the quality control branch was a recognition of their consid- erable talents and that they constituted an important, even elite, group. Pursall and Eneboe also testified that no one told them that the quality control group was to be temporary, although Matzke, who was the first to be assigned to the group, did say that quality control would be experimental and that the Company might have to change some functions within quality control. 4 In any event, the group was organized and proceeded to function during 1978. Then, sometime in the fall, Lockwood became concerned about production. By Oc- tober 1978 production was at a level so low as to be "completely unacceptable" to him. He investigated and found that people who had previously been engaged in production were now in quality control, no longer en- gaged in production. Accordingly, Lockwood directed that the photographic laboratory be again reorganized and the quality control unit was abolished. 5 Diane Matzke was reassigned to production printing, with Scott Meidl. Jack Pursall and Eneboe were trans- ferred to production processing. Pursall continued to spend at least part of his time on quality control of equipment, but Matzke's duties were entirely changed. There is no evidence as to the duties of Eneboe and Meidl in their new assignments. Both Pursall and Matzke testified that their opportuni- ties for advancement were restricted or limited by their 3 The deputy manager testified that the reports were to be channeled through the engineers in production systems engineering, but the ei- dence is to the contrary Morales did not testify. 4 Lockwood testified that the group was only temporary until the em- ployees became familiar sith EDIPS processes. He admitted that he did not know hether the employees were even advised of this In the ahb- sence of any testimony from Morales. I find that employeers were not so notified. 5 There were, apparently. some other changes in the oserall structure of the lahbratory. hut these are not alleged i the complaint to hbe unla'.- ful. and ere really not litigated I make no findings svilh respect to these Items 571 DECISIONS OF NATIONAL LABOR RELATIONS 1()ARD transfers. Lockwood testified to the contrary, but I regard all this testimony as mere speculation. There is no probative evidence, other than these unsupported state- ments, that these transfers would make any difference at all to the future prospects of these employees. Moreover, the record shows that their pay and hours remained the same after the transfers, even though their duties and su- pervision changed. There is in this case no evidence that the termination of the quality control group, and the transfer of the em- ployees, was attributable in any way to Respondent's hostility toward the Union, or that it was, or could be perceived, as detrimental in any way to the Union. Thus, even in the absence of any documentary evidence, I accept Lockwood's version of the reason for the aboli- tion of quality control, and find that it was due to legiti- mate business considerations and unrelated to the Union or to the employees' union activity. The complaint also alleges that Respondent transferred work out of the bargaining unit. This has reference to Matzke's functions, while she was in quality control, of raw stock testing and control strip manufacture. With re- spect to the first, the evidence shows that one Lynn Ca- meron, an employee of production systems engineering and probably not a member of the bargaining unit per- formed raw stock testing on 11 occasions between De- cember 15, 1978, and August 13, 1979, doing this for a total of 9 hours and 55 minutes in that entire period.' With regard to control strips which are made by a ma- chine called a sensitometer, the evidence shows only that in the period from August 23 to October 26, 1979, some unit people and some nonunit people made these strips. In this period there were 10 instances of nonunit people doing work which Matzke identified as being work she would have done if she remained in quality control. The total amount of time spent by the nonunit people in these 10 instances was 4 hours and 7 minutes.7 I cannot find in these circumstances, which strike me as minimal, that the General Counsel has established by a preponderance of the evidence that Matzke's work was transferred to non- unit people. Nine hours and 55 minutes in an 8-month period does not, in my opinion, represent a meaningful portion of the functions which Matzke testified that she performed. The same thing is true of the control strip manufacture; 4 hours and 7 minutes over 2 months is not enough to allow me to conclude that any sort of pattern or practice has been established. However, Respondent did abolish the quality control group on December 5, 1978, and it was admitted that Respondent did not notify or bargain with the Union about that decision. I have found that Respondent's action in discontinuing the quality control function was dictated by legitimate business considerations, and that no monetary or other damage was suffered by any em- ployees as a result of this decision. In this case, where the election had been held on September 21, 1978, and the Union was later certified as the exclusive bargaining representative for these employees as members of an ap- propriate bargaining unit, there still exists an obligation s See GC. Exh. 5 7 See G.C Exh 6 on the part of Respondent to notify the Union and bar- gain with it about the effects of its action on unit em- ployees. Anchortank. Inc., 239 NLRB 430 (1978). W. R. Grace & Co., Construction Products Division, 230 NLRB 617, (1977), and cases cited therein. Therefore, I find that Respondent has violated Section 8(a)(5) and (1) of the Act by not bargaining with the Union about the effects of its decision to discontinue the quality control group. C. The Upgrading o 7Two Employees Charles K. Luden and Mark Becker were photograph- ic chemists employed in the production systems engi- neering branch of the photographic laboratory. Luden has a bachelor's degree in chemistry and worked on the treatment and handling of chemical wastes from Re- spondent's processes. Before February 5, 1979, he was classified as a photographic chemist II. He apparently was treated as a technician because his function is de- scribed in the Regional Director's Decision and Direc- tion of Election in Case 18-RC 11921 in the following words: "Technicians mix the chemicals used in the proc- essing of the film and are responsible for the safe disposal of these chemicals." The mixing of chemicals described here was the responsibility of Mark Becker. Luden voted in the election held pursuant to that Direction," and con- sidered that he and Becker were part of the bargaining unit. On February 5, 1979, Luden and Becker were called into Manny Morales' office. Morales told them that he had permission from the Government s to give them pro- fessional status. They would no longer have to sign in or out on timesheets, would not be paid overtime, but would receive compensatory time, and that they would be out of the bargaining unit. Luden demurred at this, and was told to think it over but that, if they did not accept the positions, the Company was going to fill them and that someone else would do it. Luden called the Union's assistant business agent. Andrew Younger, in Florida. Younger told Luden to take the job and that the Union would take the matter up with the Company. Luden and Becker then took the promotions. Here again there is no evidence of any attempt to erode or undercut the position of the Union, or to injure or discriminate against union adherents. But again Re- spondent admitted that it had not informed or bargained with the Union about this. Indeed, Respondent took the position at the hearing and in its brief that it could pro- mote people out of the bargaining unit without discuss- ing that action with the Union. This would be true if, for example, Luden and Becker had been promoted to super- visory positions, leaving their former positions to be filled by others. Here, there is some evidence that these " Becker was hired too late to appear on the eligibility list. * As noted Respondent operates under a contract swsith the United States Department of the Interior. Under this contract it is apparent that the Interior Department retained considerable control oser jobs at the Company Wage rates apparently were set by the United States )cepart- ment of l.abor, some being "exempt" from overtime pay requirements Whatever standards are followed by these departments in establishing po- silions or setting rates for these positions were not presented in this case I must, then, be guided by the talndards he Board has established. 572 TECHNICOLOR GRAPHIC SERVICES, INC. employees fit the definition established by Section 2(12) of the Act for professional employees. They hold bache- lor's degrees acquired, presumably, from a college or university. There is some evidence, but not much, that they exercise independent judgment. On the other hand, there is no indication ill the record that they engage in work which is predominantly intellectual and varied in character as opposed to routine mental. manual, me- chanical, or physical work, and the degree of the exer- cise of discretion and judgment is not revealed by the record. Further, there is no evidence that the work per- formed by Luden and Becker is of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. On the basis of the record in this case I cannot make a deter- mination as to whether Luden and Becker are profession- al employees within the meaning of Section 2(12). Their status as technical employees and members of the bar- gaining unit was determined by the Regional Director, as noted above, and affirmed by the Board. Harold Lock- wood testified, credibly, that their duties had not changed as the result of their promotion. Thus I find, for purposes of the Act, that they remain technical employ- ees and members of the bargaining unit. It follows, then, that by unilaterally increasing the wages of Luden and Becker without notice to or discussion with the Union. Respondent has further violated Section 8(a)(5) and (1) of the Act, even though the United States, through the Department of the Interior, had granted Respondent per- mission to do this N.IL.R.B. v. A4merican Manufacturing Company of 7Teas, 351 F.2d 74 (5th Cir. 1965), and cases cited therein. IV. I TlE R-MNE)Y Having found that Respondent has violated Section 8(a)(5) and (1) of the Act I shall recommend that it cease and desist from its unfair labor practices, and that it take certain affirmative action designed to effectuate the poli- cies of the Act. Specifically, I shall recommend that, upon request of the Union, Respondent bargain with the Union as the representative of its employees in an appro- priate unit, over any changes in the wages, hours, and working conditions of its employees, including, but not limited to, the impact of the termination of the quality control group in December 1978, and the unilateral wage increases granted in February 1979. I will not, as requested by the General Counsel, order a return to the status quo ante through the reestablish- ment of the quality control unit, or the recession of the "professional" status of Luden and Becker. In the latter case I have found that they are not professional employ- ees in any case and, with respect to the former, I have discerned no monetary or career disadvantages to any employees through Respondent's action. Thus I believe that the unfair labor practices I have found will be ade- quately remedied by the posting of an appropriate notice and the order to bargain, leaving the parties to work out solutions of these issues at the bargaining able. CONCI LSIONS or LAW 1. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By unilaterally abolishing its quality control group without bargaining with the Union over such discontinu- ance, Respondent has violated Section 8(a)( Il) and (5) of the Act. 4. By unilaterally increasing the wages and changing the working conditions of its employees Charles Luden and Mark Becker, without discussing those increases or changes with the Union, Respondent has violated Sec- tion 8(a)( ) and (5) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this matter, and pursuant to Section 10(c) of the Act, I hereby issue the followving recommended: ORDER' The Respondent, Technicolor Graphic Services, Inc.. South Dakota Operations, Sioux Falls, South Dakota, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Abolishing any of its constituent administrative units unilaterally and without bargaining with the Union over the effects of such action on its employees. (b) Raising employees' wages and changing their working conditions unilaterally and without bargaining with the Union. (c) In any like or related manner interfering with. re- straining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is de- signed to effectuate the policies of the Act: (a) Upon request, bargain in good faith with the Union, as the representative of its employees in an appro- priate unit, over any changes in wages, hours, and work- ing conditions of its employees and the effect of the abo- lition of any administrative unit. The appropriate unit is: All full-time and regular part-time employees em- ployed in the photographic laboratory, product in- spection, data management, technical engineering photographic laboratory maintenance, center serv- ices and logistics sections, including plant clericals. employed at the Respondent's Sioux Falls, South Dakota, facility excluding employees employed in user services operations, systems development, sys- tems software, technical engineering computer maintenance, technical communications, applica- tions, training and assistance and data analysis sec- m~ In the event lno exceptirls re iled a, proided h Se I1)2 4h of the Rules and Regulations o he Natinal I.ahor Relaons Ioard, the Findings. conclusilns and recommenl.ded ()rder hercin hall, a pr-lided in Se 1)2 48 f Res d R a adopted he Rul.res and Rglall, he adpitd h the tird and hrecorltr Its findings, cnctlusi, lls ,and Order, aid ial ohivctiols Ithreh- shall hc deemed aedJ fir all purposes 573 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lions, office clerical employees, confidential em- ployees, guards, assistant supervisors and supervi- sors as defined in the Act. (b) Post at its place of business in Sioux Falls, South Dakato, copies of the attached notice marked "Appen- dix."'' Copies of said notice, on forms provided by the I In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Regional Director for Region 18, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 574