Merillat Industries, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Merillat Industries, Inc. and Local 2037, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases 7-CA-15854-1, and 7-CA-16087 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING ANt) MIMBERS JENKINS AND PENFI. ItO On April 8, 1980, Administrative Law Judge Ste- phen Gross issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and Respondent filed cross-exceptions and a supporting brief, and a response to Charging Party's exceptions. 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 complaint be, and it hereby is, dismissed in its entirety. i In the absence of exceptions, we adopt, pro forma., the Administrative Law Judge's finding that Respondent did nrot violate Sec 8(a)(5) of the Act by barring Union Presidenlt Richard I.ong from admittance to the industrial relations committee meeting held on Respondent's premises. DECISION STATEMEN OF: THE CASE STEPH-N GROSS, Administrative Law Judge: Merillat Industries, Inc., hereafter Merillat or the Company, man- ufactures kitchen cabinets at a plant in Adrian, Michigan. Merillat's production and maintenance employees are represented by Local 2037, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, hereafter the Union or Local 2037. On December 11, 1978, the Union charged that: (1) Merillat refused to permit the union president to attend a grievance meeting between three Merillat stewards and the Company's management; and (2) Merillat unilaterally imposed new rules on absenteeism and tardiness without bargaining with the Union about them.' The charges formed the basis of a complaint issued on January 15, 1979, by the Regional Director for Region 7. m Hereafter the rules will be termed absentee rules or the new rules The complaint alleged that Merillat had violated Section 8(a)(1) and (5) of the Act. On February 20, 1979, Local 2037 filed a third charge, claiming that two Merillat employees had been dis- charged by reason of the unlawfully adopted absentee rules. On March 21, 1979, the complaint was amended and a consolidation order issued to take account of the new charge. Merillat's answer admitted the jurisdicational allega- tions of the complaint. But the Company denied any wrongdoing. I heard the case in Adrian, Michigan, on September 27, 1979. Merillat and Local 2037 filed briefs. The General Counsel did not. I. MERII.I.AAT'S A)OPTION OF NE.W ABSIENIF RULES Merillat's employees receive a "production bonus" along with their hourly wages. The bonus, which is based on each employee's production level per hour, climbed to over 80 cents an hour early in 1978. But then it dropped precipitously falling into the low 30 cents an hour by April 1978. Both the Union and Merillat's management were un- derstandably concerned about the decline. And in April the chief steward at Merillat, Robert Burns, asked to meet with company officials about the matter. The exact sequence of union-company meetings on the subject is unclear. There may have been an initial meet- ing on the subject between Burns and Robert Meyers, Merillat's head of industrial relations. In any event, in mid-April a contingent of six union stewards, including Burns, met with Meyers and two other Merillat officials. At the meeting Meyers presented the Company's view that high absenteeism rates were at least partially respon- sible for the drop in production and, therefore, in the production bonus. The stewards agreed that absenteeism was a problem and Meyers asked for any recommenda- tions the Union might have on the subject. But no union representative made any suggestion then. Later Burns told at least one steward to refrain from making any rec- ommendations on the ground that absenteeism was "the Company's problem, not ours." Another meeting between the stewards and Merillat officials, or perhaps two, followed in April rehashing the related concerns of decreases in production bonuses and high absenteeism. Then, in middle or late May, Meyers called Burns into his office to discuss a new absentee policy that Meyers said the Company was thinking of putting into effect. The Company's then existing absentee rules, hereafter the old rules, had been adopted about 3 years earlier, were not an explicit part of the Merillat- Union collective-bargaining agreement, and had been only loosely enforced.2 Meyers' proposal was more rig- orous in at least some respects than the old rules-even if the old rules were to be fully enforced. And implemen- tation of the proposal could, and later did, result in the dismissal of employees who would not have been liable for discharge under the old rules. Burns discussed various aspects of Meyers' proposal with Meyers and another company officer present at the 2 See Resp. Exhs. 3 and 4. 252 NLRB No. 114 784 MERILLAT INDUSTRIES, INC. meeting. Then, either at that meeting or at another later in May, Burns focused on the extent to which the new absentee rules would be retroactive. If they were fully retroactive, an employee not subject to discharge under the old rules could become eligible for discharge because of excessive absenteeism or tardiness the moment the new rules were put into effect. Burns suggested a modifi- cation in this respect. Burns did not otherwise object or demand bargaining on the subject. About June 5 the Company told Burns that it had accepted Burns' pro- posed modification. The last discussion of the new absentee-rules took place on June 13. Meyers and two other company offi- cers met with all seven stewards. Meyers gave the stew- ards copies of an absentee policy that was wholly, or at least largely, a reflection of the proposed policy that Meyers had previously discussed with Burns, including the modification proposed by Burns.' Meyers said that the Company was going to put it into effect on June 20. The Company did not suggest that the new rules were subject to negotiation and the "Dear Employee" letter that was one of the documents given to the stewards suggested that the Company considered the matter one for determination solely by the Company. 4 and I credit Burns' recollection that a Merillat representative said that the Company had the right to impose the new rules unilaterally under the management rights provision of the collective-bargaining agreement.5 The stewards, on their part, did not object, did not suggest any changes, and did not propose bargaining. The Company did put the new absentee policy into effect on June 20, 1978.6 The rules' implementation did not trigger any response from the Union for at least 4 months. And while Burns' testimony on the subject is somewhat ambiguous, it does not appear that his failure to file any grievance about the matter in that time stemmed from the Company's claim that the manage- ment rights clause of the contract gave the Company the right to implement the rules unilaterally.7 Then, in November and December, two employees were fired for absenteeism. At that point the rules become the subject of grievances by the Union. The Company held fast to its adoption of the new rules and, rather than arbitrate the matter, the Union filed the charges that led to this proceeding.8 Analysis Absentee rules affecting employment tenure are a man- datory subject of bargaining: e.g., Southern Florida Hotel & Motel Association, 245 NLRB No. 49 (1979). Merillat's new rules did affect employment tenure. And, as the Company agrees, the rules accordingly could not proper- a See G.C Exhs. 5 and 6. 4 See G.C Exh 6. ' I do not credit Burns' statement that the Company said that the rules were not negotiable The management rights clause is par 50 of the col- lective-hargaining agreement (G C Eh 2: see fn 8. infru) ' The new rules as implemented were identical to the rules given to the stewards on June 13. i See transcript p 61-62 compare transcript p 60 The employee fired in November would have been subject to dis- charge under the old policy (had that policN been riglorously enforced). The employee fired in December sould nlt hase been ly be unilaterally implemented absent waiver by the Union of its right to bargain about them. A. The Company Did Not Bargain The Company never asked Local 2037 to bargain about the new rules. Merillat's communications about the rules, before and after recommendations on what to do about the problem, was fully advised in advance of the nature of the proposed rules, did make one suggested change that was accepted by the Company, and was given advance copies of the rules. But none of that was equivalent to the Company telling the Union that it wished to implement new absentee rules and that it was ready to bargain about the matter. B. The Management Rights Clause The Act does not preclude unions from contractually waiving their rights to bargain about matters such as ab- sentee policies: e.g., Southern Florida Hotel & Motel Asso- ciation, supra. The Company argues that the Union did so in agreeing to the management rights clause in the then effective collective-bargaining agreement.9 But there must have been a "clear relinquishment" by the Union of its right to bargain about a new set of ab- sentee rules affecting employee tenure for the Board to find that the Union contractually waived that right: Rose Arbor Manor, 242 NLRB 795 (1979); Southern Florida Hotel & Motel Association, supra. And here neither the wording of the clause itself, nor any other evidence, sug- gests that by agreeing to the management rights clause of the contract the Union waived its right to bargain about new absentee rules. C. Implications of the Union's Response In sum, the new absentee rules were a mandatory sub- ject of bargaining, the Company did not offer to bargain about them and, in fact, suggested to union representa- tives that it did not have to, and the Union did not con- tractually waive its right to bargain about them. But under the circumstances present here, that does not mean that the Company violated the Act when it implemented the new rules. The Company advised the stewards long in advance that it was concerned about absenteeism, wanted to do something about the problem, and was eager for recom- mendations. Burns, the chief steward and a participant in past bargaining with the Company, deliberately opted to let Merillat figure out a method of dealing with absentees without Union input. Subsequently, and still several weeks prior to the Company's adoption of the new rules, Burns was advised of their nature and then proposed a change that was accepted by the Company. Finally, 1 week prior to the rules' implementation all of the stew- ards were given copies of the rules. At no time prior to the rules' implementation did the Union request bargain- ing, dispute the Company's claim that the Company , Ihe clause provides that: "The Union recognizes that the Company has the exclusive right to hire and fire and to direct the affairs of the Company and to, determine its business operations and policies in accord- anlce ith Ihe terms of this Agreemenl G C txh 2. par. 50 785 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could unilaterally adopt the rules, or object to the rules' adoption. And even after the rules' implementation, the Union did not file any grievance on the subject until over 4 months had passed.' ° By failing to take any such action in timely fashion the Union lost its right to object to Merillat's actions. As the Board has stated: Established Board precedent requires a union that has notice of an employer's change in a term or condition of employment to timely request bargain- ing in order to preserve its right to bargain on that subject. City Hospital of East Liverpool, 234 NLRB 58, 59 (1978).]" D. The Zipper Clause Paragraph 52 of the collective-bargaining agreement reads: The Company and the Union agree that both sides have been free to bring up all demands and no ne- gotiations shall be requested on any matters wheth- er covered in this Agreement or not, during the term of this Agreement. Arguably that clause makes it improper for the Company to make any change during the term of the contract in any matter that is a mandatory subject of bargaining absent acquiescence by the Union. In any case, it clearly does not permit Merillat to avoid bargaining over the im- plementation of new absentee rules that it seeks to adopt. (See N.L.R.B. v. C & C Plywood Corp., 385 U.S. 421 (1967).) But the Union did not refer to this clause in dis- cussing the new rules with Merillat and, as discussed ear- lier, did not object in any manner to the implementation of the new rules until over four months after their adop- tion. Accordingly, the contract's zipper clause would not appear to strengthen the Union's position here. 12 II. ATTENDANCE OF THE PRESIDENT OF LOCAL 2037 AT A MERILIAT INDUSTRIAL RELATIONS COMMITTEE MEETING A. The Facts Sections 29 and 30 of the Merillat-Local 2037 collec- tive-bargaining agreement provide that grievances shall be considered by an industrial relations committee, herein the committee, made up of three members of man- agement, on the one hand, and, on the other, "the Chief Steward and two. .... Regular Stewards." The stewards asked the president of Local 2037, Rich- ard Long, to sit in on a committee meeting scheduled for July 26, 1978, in order to "advise and Counsel" them. Long was not a Merillat steward, never had been, and in fact was not a Merillat employee. On the day of the '0 There can be no doubt that the Union had notice of the change: stewards are union officers (see, e.g., Midwest Precision Castings, 244 NLRB (1979)); the collective-bargaining agreement does not provide for any specific form of notice to the Union; and Burns testified that he talked "to the Local about the policy that was handed out." " Accord: Citizens National Bank of Willmar. 245 NLRB No. 47 (1979); Austin-Berryhill, Inc., 246 NLRB No. 160 (1979). 12 The issue was not litigated Respondent's brief refers to the zipper clause, but as support for the Company's position. The Union's brief does not touch on the issue. meeting, Long showed up at the Company's office. That was the first time in at least 19 years that the Union sought to have present at a committee meeting anyone but the three stewards. Merillat's industrial relations officer, Robert Meyers, refused to permit Long to attend the meeting and claimed that by seekinq to be present Long was "not abiding by the contract." Meyers did agree to talk to Long about the grievance at issue, but not during the committee meeting. And Meyers later advised the Union that he had no objection to Long remaining on the Com- pany's premises during committee meetings so that the stewards could consult with him from time to time as long as he was not in the meeting room. (See G.C. Exh. 9.) Long told Meyers that he recognized that he could not act as a member of the committee but that he was entitled to serve as an advisor to the stewards at the committee meeting. Meyers, however, insisted that Long was not entitled to attend the meeting and prevented him from doing so. B. Analysis A union has the right to determine who its representa- tives are to be at a grievance meeting with an employer. But a union may contract away its freedom to choose its representatives by specifying, in a collective-bargaining agreement, who they are to be: see Native Textiles, 246 NLRB No. 38 (1979). Local 2037 did that. Long was not one of the persons designated in the agreement as a com- mittee member and, accordingly, it is clear that Merillat could properly insist that Long not act as a representa- tive of the Union at the committee meetings. But Long did not seek to act as a union representative at a committee meeting. Rather, he sought to attend one only in order to advise the persons who were the Union's representatives. The Merillat-Local 2037 con- tract is silent about whether the committee representa- tives of either the Company or the Union may have ad- visors present at grievance meetings. And neither party has pointed to any controlling case law.' 3 The issue is a narrow one, particularly since there is little doubt that parties to collective-bargaining agree- ments may by specific contractual language determine for themselves whether they want to allow representa- tives to management-labor meetings to be able to bring advisors. Nonetheless if it were clear which ruling, one favoring the Company's position, or, one favoring the Union's, would best promote the policies of the Act, that position ought to be adopted here. But that is not at all clear. And under the circumstances it seems best to focus on the parties' past practices, since those past practices represent the closest approximation of evidence of how Merillat and Local 2037 would have intended the issue here to be resolved had they thought about it during ne- gotiations leading to their collective-bargaining agree- ment. In that respect there is no dispute that for as long I3 The Company points to a number of cases it considers pertinent. But all such cases involve union officers who sought to participate direct- ly in bargaining or grievance negotiations with the employer, rather than, as here, attempted merely to act as an advisor to designated representa- tlives. 786 MERILLAT INDUSTRIES, INC. as anyone can remember-at least 14 years-the only persons who have attended Merillat-Local 2037 industri- al relations committee meetings have been the six per- sons specified by the collective-bargaining agreement. That being the case, my recommendation is that the Board dismiss the complaint's allegation that Merillat violated the Act when it refused to permit Long to attend a meeting of the industrial relations committee. CONCI USIONS OF LAW 1. Merillat did not violate the Act when it implement- ed a new absentee policy since the Union had notice of the proposed adoption of the new rules, had an opportu- nity to discuss them in advance of their implementation, proposed a change that Merillat adopted, and failed to object in timely fashion to the rules' implementation or request bargaining about them. 2. Merillat did not violate the Act when it refused to permit Local 2037's president to attend, as an advisor to the union representatives, a grievance meeting of the Company's industrial relations committee, in view of the collective-bargaining agreement's silence on the matter and the long history of committee meetings being attend- ed only by the persons specified in that agreement. On the basis of the foregoing findings of fact. conclu- sions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 The complaint is dismissed in its entirety. s 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 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 787