Addressograph-Multigraph Corp.

National Labor Relations Board - Board Decisions

Feb 4, 1977

228 N.L.R.B. 6 (N.L.R.B. 1977)

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Addressograph-Multigraph Corporation and Local
Lodge 1228 of the International Association of
Machinists and Aerospace Workers, AFL-CIO-
Case 8-CA-9611
Upon the entire record in this case, including my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
February 4, 1977
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND
WALTHER
On September 16, 1976, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: The
charge in this case was filed by the Union on November 17,
1975, and the complaint issued on March 30, 1976. The
complaint alleges that Respondent refused to bargain in
violation of Section 8(a)(5) of the Act by announcing
additional duties for certain employees of Respondent
without first notifying or bargaining with the Umon and by
refusing thereafter to bargain over rates of pay for the
proposed job changes upon request by the Union. The
complaint also alleges that Respondent discriminated
against employees in violation of Section 8(a)(1) and (3) of
the Act by suspending them for 2 days because they
participated in a concerted protest of Respondent's refusal
to bargain with the Union. In its answer Respondent denies
the commission of any unfair labor practices.
A hearing in this case was held before me on June 7, 1976,
in Cleveland, Ohio. At the conclusion of the hearing, oral
argument was waived. The General Counsel and Respon-
dent have filed briefs.
I. THE BUSINESS OF THE COMPANY
Respondent Addressograph-Multigraph Corporation, a
Delaware corporation, operates a facility at 1200 Babbitt
Road, Euclid, Ohio, the only facility involved herein, where
it manufactures business machines. It annually ships goods
valued in excess of $50,000 directly to points located
outside the State of Ohio. I find that Respondent is an
employer engaged in commerce within the meaning of the
Act and that it will effectuate the policies of the Act for the
Board to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local Lodge 1228 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, referred to
herein as the Union, is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
For more than 40 years the Union has represented the
production and maintenance employees at Respondent's
Euclid plant , and the Union and Respondent have been
parties to a series of collective -bargaining agreements
covering those employees . The most recent agreement
became effective September 11, 1974, and is scheduled to
expire on June 6 , 1977. Article 28 of that agreement
provides , insofar as material herein , as follows:
RATES OF PAY
28.1 The established hourly rates or rate ranges for the
hourly rated job classifications and the established
hourly piecework classification rates and the hourly
daywork base rate ranges applicable to said piecework
classifications, together with the job descriptions appli-
cable to all job classifications, are those which appear in
the Departmental Labor Classification Rate Book for
All Factory Departments which is maintained by the
Company, and of which the Union is supplied with a
copy.
28.2 Whenever a new job classification is created, the
job description shall be prepared by the Company and
reviewed with the Union, and the rate or rate range
applicable thereto shall be negotiated and agreed upon
with the Union after which a new rate sheet shall be
prepared by the Company, signed by a Company and a
Union representative, and then placed in the Rate Book
in substitution for the former rate sheet.
Over the years when the Company has sought to alter the
duties of employees in anyjob classification it has followed
the procedure set forth in article 28.2 of the contract, and
228 NLRB No. 2
ADDRESSOGRAPH-MULTIGRAPH CORPORATION 7
the parties have treated the change as the creation of a new
job classification.'
Department 1152 at the plant is the automatic screw
machine department. At the times material herein, four
classifications of employees worked in that department.
Seventeen employees were classified as setup operators
whose job it was to load and operate one or more automatic
screw machines. They were responsible to see that the
machines they operated produced good quality pieces. For
each job the setup operator was given a blueprint, and a
quantity of stock was delivered to his machine for the job.
The setup operator was required to run all the stock
delivered to him for each job and before October 29, 1975,2
he had no responsibility for counting, estimating, or
otherwise calculating the amount of stock delivered to him
or the number of pieces produced by him on each work
order.
The dispute herein arose when, on October 29, the
Company informed the Union that it proposed to require
the setup operators to make a calculated count of the parts
produced by them on each job.
On that date Plant Manager Frank Jelenic and Employee
Relations Manager George Naftanail met with the union
executive committee. Jelenic told the union committee that
he wanted to inform it of a procedure that the Company
proposed to institute in department 1152 involving the
counting of parts and that he intended to meet with the
employees of that department in small groups to explain the
procedure to them. Jelenic stated that the union committee
members were free to attend the meetings if they desired.
Jelenic furnished the committee members copies of the
instructions that were to be given to the operators. The
union committee questioned whether the counting of parts
was part of the job duties of the setup operators and
predicted that there would be resistance from the operators
because nothing in the fob classification required them to
do it. In response to a question, Jelenic said there would be
no increase in pay with the addition of these duties. The
union committee indicated that it was not in a position to
take any action with respect to the Company's proposal
without first checking with the people in the department
and also requested that the Company wait before it took
further action until the regular executive committee mem-
ber who was familiar with department 1152 returned to
work from vacation.3
Following this meeting, the union committee members
met with the employees in department 1152 and showed
them their copy of the instructions proposed by the
Company.
On November 3, Jelemc, Naftanail, and another compa-
ny representative again met with the union executive
committee, including Santangelo who was familiar with
department 1152. Jelenic reviewed what he said at the
previous meeting and told the union committee that on the
following Wednesday the Company would hold several
i Several examples of such changes were described in testimony at the
hearing The representation was made by witnesses for the General Counsel
and not contradicted that , until the events which gave rise to this case, all
changes had been negotiated with the Union pursuant to the procedures set
forth in art 28 2 of the contract
2 All dates which appear hereafter occurred in 1975 unless otherwise
indicated
small meetings with the setup operators in the automatic
screw machine department to explain the procedures to
them and that the executive committee was welcome to
attend. Jelenic said that under no circumstances did he
want anyone disobeying an order to attend the meeting.
The Union took the position that the Company could not
change the procedures to be followed by the setup opera-
tors without first negotiating the change with the Union
and that the Company should give the employees more
money if it wanted to add to their job duties. The Company
took the position that it was not contrary to the contract to
put the change in effect without negotiating. Jelenic told the
Union that if it disagreed with the Company the Union
could grieve. Santangelo protested that the Company could
not force the employees to attend a meeting, and Naftanail
stressed that the employees would be paid for meeting and
that they could grieve if they did not like what they heard.
The Company insisted that it had the right to sit down and
explain the procedure to the people, but Santangelo
predicted that there would be a problem and that the
employees would not attend the meetings. The Company
told the union committee that, if an employee was ordered
to attend a meeting and refused, he would have to be
disciplined. Jelenic told the union committee that employ-
ees were required to attend the meetings but did not have to
say anything or negotiate. Company representatives also
indicated that after the employee meetings were held the
Company would meet further with the union committee
and discuss the procedure with the committee and answer
any questions that it might have. However, the Company
maintained its position that it was not making a change in
classification which required negotiation and that it did not
have to negotiate with the Union. According to Naftanail,
the Company did not intend to negotiate with the Union
after the employee meetings and it intended to implement
the procedure after discussing it with the Union without
change in the procedure regardless of the Union's position.
During the course of the meeting, Jelenic said that the
Company intended to put the change in effect on the day
after the employee meetings were scheduled to be held
regardless of their outcome.4
On the morning of November 7, the foremen in depart-
ment 1152 notified each employee that he was to attend a
meeting at 9 o'clock that morning. None of the employees
in the department appeared at the meeting, and all
remained at their machines working. Thereafter, Depart-
ment Foreman Orzech told each employee that he was
ordered to attend a meeting in the conference room to
discuss departmental procedures at 10 o'clock that morn-
ing. Again at 10 o'clock, none of the employees appeared
for the meeting, and all remained at their machines
working. That afternoon each of the employees in the
department was notified that he was suspended for the next
2 workdays because "You refused to follow my direct order
to attend this meeting. This refusal constitutes a clear act of
3 The facts in this case are largely undisputed Unless otherwise indicated,
the findings are based on uncontested testimony or minutes of meetings held
on October 29 and November 3. Although one witness for the General
Counsel testified to the contrary, I find specifically that the Company invited
members of the union committee to attend the employee meetings
4 1 have credited the testimony of Santangelo in this respect
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insubordination. Refusal to follow instructions and orders
cannot and will not be condoned."
Later, on November 3, the Company met with the union
committee. At that meeting Naftanail told the union
committee that the changes proposed for department 1152
would be negotiated with the Union before they were
implemented.5
On November 10, the Union filed a written grievance
over the suspensions which was denied by the Company.
The Umon gave a notice of its intention to take the
grievance to arbitration, but took no further action thereaf-
ter. From November 7 until the date of the hearing, the
Company took no further action to implement the pro-
posed change in procedure in department 1152.
B. Conclusions
1. The alleged refusal to bargain
The General Counsel contends that Respondent's pro-
posed change in procedure, which would have required the
setup operators to make a calculated count of parts
produced by them, constituted the creation of a new
classification within the meaning of article 28 of the
contract. Accordingly, the General Counsel argues, Re-
spondent's attempt to increase the responsibilities of the
setup operators unilaterally and its refusal to negotiate with
respect to the change in duties or a wage rate violated
Section 8(a)(5) of the Act, citing Beacon Piece Dyeing and
Finishing Co., Inc., 121 NLRB 953 (1958); C & S Industries,
Inc., 158 NLRB 454 (1966); Willamette Industries, Inc.,
Lebanon Division, 220 NLRB 707 (1975).
Assuming arguendo that Respondent was required to
negotiate with the Union with respect to any change in
duties and a wage rate for the classification,6 I have
difficulty accepting the contention that Respondent's
attempt to change the duties of the setup operators without
negotiation constituted a refusal to bargain.
The cases relied upon by the General Counsel all
involved situations in which changes were unilaterally
placed in effect by employers without any bargaining. Here
the change in procedure was announced to the union
committee but never placed in effect. Respondent's officials
indicated the intention to place it in effect after explaining
it to the affected employees and to do so without bargain-
ing. However, after the refusal of the employees to attend
the meeting, the change in procedure was never placed in
effect, and Respondent's employee relations manager told
Union Representative Jennings that Respondent would
negotiate the changes before implementing them.
It may well be that a statement of intention to make
unilateral changes can constitute evidence of bad-faith
5 Union Representative Jennings so testified Naftanail was not ques-
tioned specifically about the position taken by him at this meeting, but
testified that as of the earlier meetings the Company did not intend to
negotiate the proposed change in procedure for the setup operators and that
company representatives did not tell the Umon at either of the previous two
meetings that it would negotiate the change There was no apparent reason
for Jennings to attnbute to Naftanail the statement to which Jennings
testified unless Naftanail made it In the absence of direct contradiction and
in view of the fact that the change was never implemented , I credit Jennings
in this regard
6 Respondent does not concede that it had any duty to bargain it
contends that it had no duty to bargain because the change in duties had
bargaining in a context indicating repudiation of an
employer's bargaining obligation. Here, however, the
context indicates a long bargaining relationship, with no
hint of such repudiation but rather an honest disagreement
over the scope of Respondent's bargaining obligation. To
be sure, had Respondent implemented the change in the
mistaken belief that it had the right to do so, its action
nonetheless would have constituted a direct violation of the
obligation imposed by Section 8(d) of the Act. But having
stopped short of implementing the change, the preliminary
steps taken by Respondent in this case do not warrant the
inference that Respondent sought to repudiate its bargain-
ing obligation or to undermine the Union's representative
status.
Moreover, having set the change in motion, Respondent
was not obligated to negotiate whether or not it intended to
pursue its plans to implement the change. Respondent had
the option of dropping the proposed change, in which case
the existing classification and wage rate prevailed, and no
negotiation was required. Insofar as the evidence discloses,
that option was pursued by Respondent in this case.
Accordingly, I find that the General Counsel has failed to
establish that Respondent refused to bargain with the
Union in violation of Section 8(a)(5) and (1) of the Act.
2. The suspensions
The General Counsel contends that the disciplinary
suspensions of the department 1152 employees for refusing
to attend the meeting called by Respondent to explain the
proposed change violated Section 8(a)(3) and (1) of the Act
because the employees were engaged in a concerted protest
of Respondent's refusal to negotiate the change and their
wage rate with the Union. The General Counsel contends
that the refusal to attend the meeting was analogous to an
unfair labor practice strike and that the logic of Board
decisions protecting unfair labor practice strikers even in
the face of a no-strike clause applies to the refusal of the
department 1152 employees to attend the meeting in this
case, citing Kellstone, Inc., 206 NLRB 156 (1973).
The analogy urged by the General Counsel is not apt.
First, I have concluded above that there was no unfair labor
practice committed by Respondent.? Moreover, whether or
not Respondent had committed unfair labor practices,
there was no strike in this case. The employees did not cease
work but chose to determine for themselves what they
would do while on company time , despite contrary instruc-
tions from their employer. Notwithstanding the fact that
they produced parts for the period involved and would not
have done so if they attended the meeting, it was not in
their province to make this choice. "Respondent was at
minimal impact on the setup operators and was simply a day-to-day
operating decision which Respondent had the perogative to make without
bargaimng . Respondent contends further that it fulfilled any bargaining
obligation it might have had by its willingness to entertain a gnevance over
the proposed change . For the reasons set forth below , I find it unnecessary to
reach these issues
r i note further that, even if the General Counsel's contentions as to the
refusal to bargain were accepted, the resultant unfair labor practice found
would be a far cry from the employer' s repudiation of its contract and entire
bargaining obligation found in Keisione, Inc, supra, to warrant the
conclusion that the contractual no-stoke clause had not been breached.
ADDRESSOGRAPH-MULTIGRAPH CORPORATION
liberty to determine the use to which it wished to put the
time for which it was paying the employees, and the
employees were not free to make a choice in favor of
working."8 Accordingly, I find that the refusal of the
department 1152 employees to attend the meeting called by
Respondent was not protected concerted activity and that
the suspensions based on that refusal did not violate the
Act.
CONCLUSIONS OF LAW
1. Addressograph-Multigraph Corporation is an em-
ployer engaged in commerce within the meaning of the Act.
I Daisy Originals Inc, of Miami, 187 NLRB 251, 255 (1971)
9 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 herein shall, as provided in Sec 102 48
9
2. Local Lodge 1228 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of the Act.
3. The General Counsel has failed to establish that
Respondent has engaged in unfair labor practices as alleged
in the complaint.
Upon the basis of the above findings of fact and
conclusions of law and the entire record in this case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby issue the following recommend-
ed:
ORDERS
The complaint is dismissed in its entirety.
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