Carolina Carton Co.

718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carolina Carton Company and Printing Specialties & Paper Products, Local No 527, affiliated with International Printing and Graphic Corn mumcations Union, AFL-CIO Case 11-CA- 10893 5 October 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 10 November 1983 Administrative Law Judge Benjamin Schlesinger issued the attached de cision The Respondent filed exceptions and a sup porting 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 in light of the exceptions and brief and has decided to affirm the judge's rulings findings, 1 and conclusions only to the extent consistent with this Decision and Order The judge concluded that the Respondent s fail ure to give notice to and bargain with the Union over three employees 1 1/2 day layoffs violated Section 8(a)(5) of the Act Specifically, the judge found that the management rights clause of the col lective bargaining agreement was ambiguous as to defining what rights existed prior to the contract The Respondent excepts to the judge s findings It contends that its lack of notice regarding the temporary job curtailments was in keeping with well established plant practice and that the man agement rights clause of the collective bargaining agreement retained for the Company the right to make this decision The Respondent further con tends that through the operation of the zipper clause the Union waived its right to bargain over the job curtailments For the reasons set forth below, we agree with the Respondent s conten tions 2 The Respondent manufactures and sells folding cartons and the volume of its business depends on the number of incoming orders During the late winter and early spring months orders for the car 1 The Respondent has excepted to some of the judge s credibility find ings The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings 2 Inasmuch as we are dismissing the complaint based on our findings that the work curtailments were in keeping with established plant prac lice and that the management rights clause retained for the Respondent its right to take this action we find it unnecessary to pass on the Re spondent s zipper clause argument tons decline, which results in less production work for the employees In February March, and April 1982 and 1983, respectively the Respondent fre quently notified the employees of entire depart ments not to report to work Fridays due to lack of work Notification of this action was posted by the Respondent on a bulletin board the Monday or Tuesday preceding the Friday layoff The Union never received advance notification of the layoffs and never asserted that the Respondent's failure to bargain over the layoffs was unlawful On 28 August 1982 the Respondent and the Union entered into a collective bargaining agree ment The contract was for a term of 1 year On Wednesday morning, 23 February 1983 3 Plant Superintendent Frank Franklin observed that employees Grady Blassingame, Kenneth Woody and Porter Young were running out of work The employees worked together as a team on a machine that cuts the cartons That morning at 11 a m the men completed all work on the machine Immedi ately thereafter, Franklin told the employees that at noon they were being sent home for the remainder of the workday and not to report back Thursday, 24 February, or Friday, 25 February There was no further work to be processed on their machine due to lack of incoming orders Apparently, the Re spondent became aware of the shortage of materi als for the machine only an hour before the em ployees were notified Further, the men could not be reassigned to work in the glue department or mow the grass as had previously been the proce dure when they ran out of work because any alter native jobs were already manned The employees were advised to report back to work the following Monday Prior to sending the employees home the Respondent did not notify the Union of this action or bargain with the Union over the job curtail ments The collective bargaining agreement which covers the period in which the three employees jobs were curtailed contains no provision regarding temporary job curtailments However the manage ment rights clause of the contract states Except to the extent expressly abridged by a specific provision of this Agreement, the Corn pany reserves and retains solely and exclusive ly all of its inherent rights to manage the busi ness—without regard to whether those rights were ever exercised in the past—as such rights existed prior to the execution of this Agree ment 3 All dates are in 1983 unless otherwise indicated 272 NLRB No 112 CAROLINA CARTON CO 719 In his decision the judge found that the manage ment rights clause was ambiguous The judge de termmed that the clause was ambiguous because it did not define what rights existed prior to the exe cution of the agreement Based on this finding the judge concluded that the Respondent was required to notify and bargain with the Union because the unilateral job curtailments affected the three em ployees terms and conditions of employment 4 Contrary to the judge, we find that the Respond ent had no duty to notify and bargain with the Union over the temporary layoffs or job curtail ments of the three employees in February 1983 The record is clear that the Respondent had a past practice of temporarily laying off employees for lack of work during slack periods It also is clear that the practice was to implement such layoffs without notice to or bargaining with the Union Although it appears that the temporary layoffs oc curred mostly on Fridays because that is when the available work generally ran out, we do not find that the past practice was specifically tied to a par ticular day of the week Thus it is immaterial that the temporary layoffs here occurred on Wednesday and Thursday as well as Friday We therefore find that the Respondent s failure to notify and bargain with the Union over the temporary layoffs of the three employees was in accord with its past prac tice Furthermore, we do not agree with the judge that the management rights clause was ambiguous regarding what rights existed prior to the contract As noted the Friday curtailments occurred in Feb ruary, March, and April 1982 and 1983, respective ly prior to the execution of the contract Indeed, the Union knew of the Respondent s standard prac tice regarding sending employees home for lack of work and had an opportunity to address this prac tice in its contract negotiations However the Union did not bargain over the issue of temporary job curtailments Although a provision of the con tract does cover reductions in force that provision does not specifically cover temporary layoffs or job curtailments 5 Moreover such job curtailments were a result of the employees having no work to perform due to a decrease in business operations Here the three employees had no work to be proc 4 The Judge did not specifically rule on the General Counsel s conten tion that the Job curtailments were unlawful because when the employees previously ran out of work they were assigned other jobs at the plant 5 The provision states J In all matters involving such things as job openings reductions in force recalls promotions and transfers from one Job to another the seniority nghts of the employees shall be given full consideration by the Company and where the skill ability aptitude fitness expen ence attendance and other such factors are in the judgment of the Company substantially equal as between employees involved in a proposed change seniority shall govern essed on their machine because there were no orders and no more materials at the facility to begin a new job Therefore, the management rights clause is unambiguous in retaining for the Respond ent its right to temporarily curtail its work force in response to business conditions We therefore conclude that the Respondent was under no duty to notify and bargain with the Union over the temporary job curtailments and we shall dismiss the complaint in its entirety ORDER The complaint is dismissed DECISION FINDINGS OF FACT AND CONCLUSIONS OF LAW BENJAMIN SCHLESINGER Administrative Law Judge On Wednesday February 23 1983 1 between 11 a m and noon Respondent Carolina Carton Company laid off em ployees Grady Blassingame Kenneth Woody and Porter Young starting at noon and for the next 2 days February 24 and 25 The complaint alleges that Respondent effect ed the layoff without notice to or prior bargaining with Charging Party Printing Specialties & Paper Products Local No 527 affiliated with International Printing and Graphic Communications Union AFL-CIO (Union) in violation of Section 8(a)(5) and (1) of the National Labor Relations Act 29 U S C § 151 et seq 2 At least in 1982 and 1983 Respondent has had slow seasons in late winter and spring and frequently has worked 4 day weeks laying off all its workers or certain departments on Fridays Its prior posting of notices on a Monday or Tuesday for a Friday layoff is not contended to be illegal although no notice thereof was given di rectly to the Union And its notification to the three em ployees on Wednesday February 23 that they were going to be laid off that Friday is not alleged to violate the Act because workers were often laid off on Fridays What is claimed to be illegal herein is that when the three employees previously ran out of work they were always assigned to different tasks such as mowing grass cleaning up gluing or repairing skids and that they were never laid off except on Fridays as to which they were given 3 or 4 days notice Respondent s supenn tendent Frank Franklin testified however that on Feb ruary 23 there was no other work to give them so he sent them home He also testified that he has sent em ployees home during midday when a machine breaks down or when work runs out but I do not credit his tes timony that the three employees were ever treated in 1 All dates refer to the year 1983 unless otherwise stated 2 The Union s unfair labor practice charge was filed on May 25 and amended on June 27 Complaint issued on July 8 and a hearing was held on August 31 in Spartanburg South Carolina Respondent a South Caro lina corporation is engaged in the manufacture sale and distribution of folding cartons and purchases and receives from and sells and ships to points outside South Carolina goods valued in excess of $50 000 Re spondent has admitted and I conclude that it is an employer within the meaning of Sec 2(2) (6) and (7) and that the Union is a labor orgamza tion within the meaning of Sec 2(5) of the Act 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that manner because none of their work records so indi cate and Respondent never produced any documentary evidence such as timecards or pay records to support its contention Section 8(a)(5) of the Act mandates that an employer must bargain in good faith with the collective bargaining representative of its employees concerning wages hours and other terms and conditions of employment NLRB v Katz 369 U S 736 (1962) It is beyond dispute that a layoff affects employees terms and conditions of em ployment as to which an employer must give notifica tion and bargain C & D Battery Division—Eltra Corp 263 NLRB No 106 (1982) (unpublished) The Board has held that a unilateral layoff of only 1 day without notice violates the Act Clements Wire & Mfg Co 257 NLRB 1058 (1981) Respondent does not dispute these principles of Board law Rather Respondent contends that its collective bar gaining agreement with the Union 3 effectively waives any right to bargain about proposed layoffs However Board law requires that any waiver be supported by clear and unmistakable language and the agreement does not support Respondent s position It is true that the con tract contains a management rights clause but that is at best ambiguous It states Except to the extent expressly abridged by a spe cific provision of this Agreement the Company re serves and retains solely and exclusively all of its inherent rights to manage the business—without regard to whether those rights were ever exercised in the past—as such rights existed prior to the exe cution of this agreement There is no definition of what rights existed prior to the execution of the agreement and the only rights that may be reasonably inferred are those which were subject to the provisions of the Act Mike 0 Connor Chevrolet Co 209 NLRB 701 (1974) enf denied on other grounds 512 F 2d 684 (8th Cir 1975) Furthermore the issue here is not whether Respondent has the right to lay off its em ployees it is solely whether Respondent may do so with out first consulting with the Union pursuant to its statu tory duty under Section 8(d) The agreement s zipper clause 4 is not helpful to Re spondent either Despite its purported waiver of the 3 The agreement dated August 28 1982 was for a term of 1 year It recognized the Union as the representative of the following appropriate unit All production and maintenance employees employed by Carolina Carton Company at its Greenville South Carolina facility including truck drivers shipping and receiving employees and working fore men excluding office clericals guards professional and supervisory employees as defined in the Act 4 The zipper clause reads as follows The parties hereto acknowledge that during the negotiations re suiting in this Agreement each had the unlimited right and opportu nity to make demands or proposals with respect to any subject or matters not removed by law from the area of collective bargaining and that all agreements reached by the parties are set forth in this document Therefore except as provided elsewhere in this Agree ment the Company and the Union unqualifiedly waive the right for the duration of this contract to bargain collectively with respect to any subject matters not specifically referred to in this Agreement Further this Agreement cancels and supersedes any and all previous Agreements whether written or oral right to bargain collectively with respect to any subject matters not specifically referred to in this Agreement layoffs and seniority are subjects of the agreement Indeed leaving aside the fact that the three employees were never laid off in the middle of a day a past prac tice which the zipper clause may well have closed the fact remains that two of the three employees had greater seniority than most of their fellow employees The agree ment provides that seniority shall be given consideration in all matters involving such things as job openings re ductions in force recalls promotions and transfers from one job to another Although this provision does not refer to layoffs specifically it relates to employee rights to retain or obtain employment and thus includes layoffs The Union was given no opportunity to discuss either the decision or the effects of the decision or to argue for the layoff of other employees who had less seniority 5 Of equal significance the General Counsel is not seek ing to insert into Respondent s agreement a new term and condition of employment which a zipper clause is intended to prevent What is involved here is the statuto ry obligation to bargain prior to effectuating a change of a term and condition of employment and the agreement is specific in providing that All provisions of this Agreement shall be subordinate and subject to any stat ute or law that may be applicable —a provision which modifies the management rights clause and read most fa vorably to Respondent creates an ambiguity as to whether the waiver contained in the zipper clause is sub ordinate to 8(a)(5) bargaining obligations I conclude that Respondent unilaterally changed the existing working conditions of the three employees and then illegally utilized the zipper clause as a sword to justify its refusal to notify the Union of its change prior to effectuating it That constitutes a violation of Section 8(a)(5) and (1) of the Act GTE Automatic Electric 261 NLRB 1491 1492 fn 3 (1982) Pepsi Cola Distributing Co 241 NLRB 869 (1979) National Car Rental System 252 NLRB 159 163 fn 22 (1980) modified in other re spects 672 F 2d 1182 (3d Cir 1982) 6 Respondent s ac tivities 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 ob structing commerce and the free flow thereof THE REMEDY Having found that Respondent has violated Section 8(a)(5) and (1) by laying off the three employees without notice to and bargaining with the Union I shall recom mend that it cease and desist therefrom and shall order Respondent to bargain in good faith with the Union as to any changes of its employees terms and conditions of 5 Respondent did not lay off probationary employees who had ern ployment of less than 90 days Blassingame was first employed in Sep tember 1959 Woody in May 1966 and Young in July 1975 6 Additional defenses were raised in the answer and at the hearing but Respondent has not dealt with them in its brief and they appear to have been abandoned Nonetheless I have reviewed the record and conclude that (1) the unfair labor practice charge was timely filed and is not barred by Sec 10(b) of the Act and (2) Collyer Insulated Wire 192 NLRB 837 (1971) does not apply to the instant controversy because the collective bargaining agreement does not contain an arbitration clause CAROLINA CARTON CO 721 employment I shall further order that Respondent make whole the three employees for the 1 1/2 days wages lost by reason of Respondent s unlawful conduct with inter est thereon computed in the manner prescribed in Florida Steel Corp 231 NLRB 651 (1977) 7 [Recommended Order omitted from publication ] 7 See generally Isis Plumbing Co 138 NLRB 716 (1962)