National Gypsum Co.

646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gold Bond Building Products, a Division of National Gypsum Company and Independent Workers of North America, Local 354. Cases 25-CA-18685 and 25-CA-18891 August 30, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On August 23, 1989, Administrative Law Judge David L Evans issued the attached decision The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record m light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed 'We agree with the Judge's finding that there was no "past practice" requiring the Respondent to pay wages to employees on the Union's ne- gotiating committee for their time spent engaged in contract negotiations with the Respondent We find it unnecessary to rely on the judge's find- ing that, even if there had been such a past practice, the "zipper clause" included in the parties' 1983 collective-bargaining agreement eliminated It John Petrtson, Esq , for the General Counsel Daniel P Murphy and Steven S Greene, Esqs , of Atlanta, Georgia, for the Respondents DECISION STATEMENT OF THE CASE DAVID L EVANS, Administrative Law Judge This matter under the National Labor Relations Act (the Act) was tried before me on May 25, 1989, in Jasper, Indiana The charges against Gold Bond Building Products, a Di- vision of National Gypsum Company (Respondent) were filed by Independent Workers of North America, Local 354 (the Union) The charge in Case 25-CA-18685 was filed on May 26, 1987, 1 and complamt on that charge issued on July 31 The charge in Case 25-CA-18891 was filed on September 18, and a consolidated complaint on the two charges issued on November 25 Respondent duly filed answers admitting jurisdiction but denying the commission of any unfair labor practices On the entire record, and my observation of the de- meanor of the witnesses, and after considering the bnefs filed by the parties, I make the following All dates are in 1987 unless otherwise indicated FINDINGS OF FACT I JURISDICTION Respondent is a corporation which has a facility at Shoals, Indiana, where it is engaged in the manufacture, sale, and distribution of gypsum wall board During the year preceding issuance of the consolidated complaint, in the course and conduct of said business operations, Re- spondent purchased and received products, goods, and materials valued in excess of $50,000 directly from sup- pliers located at points outside Indiana, and during said period of time Respondent further sold and shipped di- rectly to customers located outside Indiana products, goods, and materials valued in excess of $50,000 Respondent admits, and I find and conclude, that Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act Re- spondent further admits, and I further find and conclude, that the Union is a labor organization withm the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES For over 25 years Respondent has recognized the Umon as the collective-bargaining representative of its production employees at the Shoals, Indiana facility There was a succession of collective-bargaining agree- ments, each having a 2-year duration, until April 15 when the last such agreement expired The parties met for negotiations for a successor to the 1985-1987 agree- ment on April 15, and on several dates thereafter, how- ever, those negotiations proved unsuccessful The complaint alleges that Respondent, in violation of Section 8(a)(5), refused to pay the Union's bargaining committee for wages lost while attending the negotiation sessions which began on Apnl 15 General Counsel con- tends that such payments were required by the 1985- 1987 contract and past practices of the parties Respond- ent denies that such payments were required by any wntten agreement, it denies that there was any such past practice, and it contends that, assuming that such prac- tice ever existed, it was terminated by the "zipper" clause which was negotiated in 1983 and which reap- pears in the 1985-1987 contract The contracts between the parties have contained a provision pursuant to which Respondent has paid the union president and five or six departmental union repre- sentatives for time lost in processing grievances As recit- ed in the 1985-1987 agreement, this provision is Article V—Conference, Grievance and Arbitration Procedure The parties to this Agreement agree that their ac- credited representatives shall have the power to adjust differences that may arise with respect to the application or interpretation of the terms of this agreement The accredited representatives of the Union shall consist of a committee of six (6) and the President which shall be selected by the Union as their accredited representatives and the Company representative shall be designated by the Company All meetings shall be at a pre-arranged time to 299 NLRB No 98 NATIONAL GYPSUM CO 647 cause the least interference with normal operations exclusive of Saturdays and Sundays Employees on the Union Committee shall suffer no loss of pay due to the time spent attending meetmgs with company representatives during their regular shift hours The zipper clause is This Agreement embodies the full scope of the subject of collective bargaining between the Com- pany and the Union, and supercedes and cancels all prior written or oral agreements ' General Counsel contends that Respondent paid employ- ee representatives for all wages lost during negotiations for all negotiations of contracts from at least 1961 until 1987, with the exception of parts of the negotiations of 1969 and 1973 2 Respondent acknowledges that m 1981, 1983, and 1985 it paid the union committee members for time lost in negotiations, but it denies that it did so pur- suant to the above-quoted article V or any action which would constitute a past practice, Respondent contends that the payments were made for each negotiation only upon specific requests by the Union before each year of negotiations began 3 Little time need be spent on the contention that article V would require such payments, as well as the fact that the article refers to the adjustment of grievances "with respect to the application or interpretation" of extant contracts, the Union, in the 1979, 1981, 1983, 1985, and 1987 negotiations, proposed articles that would have re- quired Respondent to pay for negotiation tune Obvious- ly, if the Union actually thought such payments were al- ready required by the written contracts, there would have been no point in introducing these proposals (which were rejected) Therefore, the real factual issues revolve around how the Union's employee representatives in ne- gotiations came to be paid, and whether a "past prac- tice" was proved Employee Leon J Brothers, who has been employed by Respondent for 34 years, testified that he had been on all contract negonatmg committees since 1961 On direct examination, he testified that until 1987 committee mem- bers were paid for time spent in negotiations and that there was no discussion of the matter before any negotia- tion began On cross-examination Brothers testified that there were no such discussions of which he had been aware Employee Doyle Ray Tolbert, who has been em- ployed by Respondent for 32 years, has been union presi- dent since 1968 and, as such, has been on the Union's ne- 2 In 1969 there was a strike, and in 1973 there was a lockout Employ- ee members of the Union's negotiating committee were not paid for their time spent in negotiation sessions during the strike and lockout 3 The complaint further alleged that Respondent also required certain named individuals to use "personal days" to qualify for overtime pay rather than allowing them to use negotiating time for such computations Respondent moved to dismiss the allegation on the basis that there was no evidence in support thereof I granted the motion Inasmuch as there had been no evidence that any of the named employees lost any overtime pay by Respondent's action General Counsel urges reconsideration and reversal I have reconsidered, however, I adhere to my ruling Moreover, as in the case of pay for hours lost, I find that General Counsel has failed to prove a past practice regarding the use of negotiating time for pur- poses of overtime calculations gotiatmg committees since that year On direct examina- tion Tolbert testified that each year employee negotiators were paid for negotiating time without any bargaining havmg occurred Tolbert further recounted an exchange between himself and Plant Manager Al Houston about a week before the April 15 bargaining began According to Tolbert The way I recall it, we met at a point I was going to the shop to get some material, and engaged in conversation [with Houston] about [how a prior union] election went, and when to expect to start negotiations, and who was going to provide the place to meet and if he knew where it was going to be at, and if the place would be provided by the company, and the committee be paid as always, and the time be allowed off as always, without any question And at that time, he said, "we'll see about the place to meet as time goes on, and then we'll see about providing the place And there's one thing that I want to share with you now We're not going to pay the committee That will be taken up in negotiations more than likely at the first business, the first negotiation [session] " And I said, "you're violating about a 30-year plant practice, you realize that" And he said, "doesn't make any difference That's our position" Tolbert testified that at the April 15 session, Respond- ent's attorney, Samuel Shiffman, stated at the beginning He wanted us to understand that there was going to be about four issues that the company [was] not going to provide from now on and that was no check-off of dues, no arbitration, no union shop and no committee pay When asked what the Union's response was, Tolbert tes- tified That again, the statement was made probably [by Union International Representative] Richard North- rup or someone else on the committee, maybe even myself that, again, you're violating a 30-year prac- tice, and that it will do nothing to enhance the ne- gotiation sessions that we face here On April 22, the union negotiating committee filed a grievance under article XI, Management Rights, 4 over the negotiating pay issue Ultimately, the grievance was denied by Houston who told the committee that the matter could be handled through negotiations On cross-examination Tolbert was asked if the Union had not, over the years, asked for negotiation pay and if the Respondent had not granted it only after such re- quests Tolbert was evasive, but at one point he did re- spond that the Union had asked about negotiating pay for each negotiation, but "[for clarification, most usual- ly" 4 The Union's failure to file under art V, as quoted supra, further de- tracts from any contention that the parties had ever meant that art V was Intended to cover negotiations, as opposed to grievance-handling ses- sions 648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Thomas A Shimshock, at the time of the hearing, was plant manager of Respondent's Pennsylvania plant, but he had been plant manager of the Shoals, Indiana plant from January 1981 to July 1985 Shunshock testified that he, along with others, represented management in the ne- gotiations of 1981, 1983, and 1985 In each of those years, according to Shunshock, Tolbert asked before ne- gotiations began if the employee negotiating committee members would be compensated for pay for time lost in negotiations and that each time he granted the request In 1985, there were two requests, one before negotia- tions, and one at the 1 1 th hour before the 1983-1985 contract expired Shunshock testified that on the latter occasion, when it was clear that negotiations were going to extend beyond April 15, 1983, Tolbert asked if Re- spondent would continue to pay for the members' negoti- ating time Shunshock replied that he would have to check with company headquarters because he had no au- thority to grant the request, he did not then have such authority because he was then scheduled to become plant manager of Respondent's Pennsylvania plant by April 15, 1983 After checking with headquarters, Shimshock m- formed Tolbert that the members would be paid, and they were 5 While it is clear enough from Tolbert's testimony of his March 1987 exchange with Houston, I find from the testimony of Shnnshock (and Houston), which I found credible, that in 1981, 1983, 1985, and 1987 Tolbert and/or other members of the Umon's employee bargain- ing committee asked each year if negotiation pay would be granted, and the grants were made on those requests, and not according to some "past practice" 5 At various pomts in the transcription of Slumshock's cross-examina- tion, It is stated that "Mr Greene" interrupted General Counsel The interruptions were mine, and the record is accordingly corrected Moreover, to the extent that any such past practice ex- isted before 1983, it was disestablished by the zipper clause which was negotiated that year 6 Accordingly, I shall recommend dismissal of the 8(a)(5) and (1) allegations of the complaint I shall further recommend dismissal of the 8(a)(1) alle- gation of the complaint that, 7 Respondent has maintained an unlawful no-solicitation rule since March 18 In 1956, or approximately 33 years before the instant hearing, Re- spondent issued an employee handbook which contained a facially invalid no-solicitation rule Respondent intro- duced credible, unrebutted testimony that over the past 25 years the rule has been completely ignored, and the handbook has not been used for any other purpose during that penod 8 In view of this testimony, and the fact that there is no evidence that the unit employees (except perhaps Doyle, Brothers, and a few other oldtim- ers) were even aware that the handbook even existed, there is insufficient evidence to prove a violation in this regard On these fmdmgs of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 ORDER The complaint is dismissed 5 E I du Pont & Co, 294 NLRB 563 (1989) 7 This Is the Sec 10(b) date of the charge in Case 25-CA-18891 8 There has been no redistribution of the handbook during the years Doyle, in an obvious exercise in case-budding, did ask Houston for a copy of the book while the charges were pending Houston searched and found a copy and gave It to Doyle 9 1f 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