Cello-Foil Products, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1969

178 N.L.R.B. 676 (N.L.R.B. 1969)

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cello-Foil Products , Inc. and Printing Pressmen's
Union No. 135 , International Printing Pressmen
and Assistants ' Union of North America,
AFL-CIO. Case 7-CA-7016
September 26. 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On May 21. 1969, Trial Examiner Lloyd S.
Greenidge issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter. Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the pro\ isions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiners Decision and the entire record in this
case, including the exceptions and the brief, and
hereby adopts the findings. conclusions, and
recommendations of the Trial Examiner only to the
extent consistent herewith.
The Trial Examiner found that by unilaterally
instituting the pressman trainee job classification on
or about October 21, 1968, Respondent modified the
collective-bargaining agreement without complying
with the requirements of Section 8(d) of the Act,
thereby violating Section 8(a)(5). Respondent
contends, inter alia , that the agreement in effect at
the time permitted it to create the new classification
without the consent of the Union. We agree with
Respondent.
On January 14, 1967, Respondent and the Union
executed a collective-bargaining agreement effective
from that date until January 14, 1970. Five sections
of that contract are involved in this dispute.
Article 6, Section 6 of the contract reads, in toto.
The line of progression in the pressroom shall be
as follows:
Pressman
Plate Maker and/or Plate Mounter
Pressroom Helper.
Article 6(8)(b) provides for bidding by other
employees for pressroom helper jobs for a short
time after the execution of the contract. Article 6(5)
limits "bidding down" within the plant by providing
that:
no employee shall be permitted to bid for a job
for which the maximum of the rate range is less
than the maximum of the rate range of the job he
occupies except in cases of proven physical
disability.
A management rights clause, Article 2(2) and a
clause dealing with the establishment of new jobs,
Article 9(3), are discussed infra.
Respondent prints and converts flexible packaging
materials for producers of consumer products.
Production involves two operations: printing on the
material and converting it into bags. During the
summer of 1968, Respondent became aware that it
was losing substantial orders because it could not
produce on its normal schedule. Because of a
shortage of pressmen, all of its presses could not be
manned for three full shifts; as a result the normal
pressroom work backlog of 3 to 4 weeks had
expanded to 8 to I I weeks.
Respondent estimated that it needed about five
more pressmen. The temporary invitation to bid into
the pressroom pursuant to Article 6(8)(b) of the
contract, supra, and attempts to hire qualified
pressmen from outside had failed to alleviate the
shortage. The record indicates that the pressroom
helper job had a high rate of turnover and usually
did not attract men who were qualified, even after
training. to become pressmen. Because the
maximum rate of pay for a bag operator or slitter
adjustor exceeded the maximum rate for pressroom
helper, the former employees were precluded by the
contract from "bidding down" for the job in which
they could be trained to become pressmen.
Stymied in its attempts to build a staff of
qualified pressmen, Respondent sought Union
cooperation. After a grievance meeting on August
28, 1968, Respondent informed the Union that the
shortage of pressmen was causing a slowdown in the
production of printed material, that it was losing
business, and that as a consequence nine employees
in the bag and slitter departments would probably
have to be laid off within the week. Respondent
proposed that the problem be solved by creating a
new job classification of pressman trainee. with a
maximum pay rate high enough to permit most
other employees to bid for it The Union stewards
agreed to discuss the matter with senior employees,
but this was not done. The Union was noncommittal
at two later meetings and. at a fourth, on October
14, it rejected Respondent's proposal because of
seniority problems and the fear that, if it agreed to
the proposals, it would be accused of favoritism
toward certain employees who would benefit
thereby.
On September 27, Respondent was informed by
its attorney that it had the right, under Articles 9(3)
and 2(2) of the contract, to establish unilaterally the
pressman trainee classification. On October 21 and
30 and November 26, 1968, and February 25, 1969,
Respondent posted invitations to bid into the new
classification. Each time, Respondent accepted a bid
178 NLRB No. 103
CELLO- FOIL PRODUCTS , INC. 677
from an employee in another of its departments only
after it had determined that no pressroom employee
was qualified for, or would accept, appointment to
the new position. In this manner, four bagmen
became pressman trainees.
Respondent contends that Articles 9(3) and 2(2)
of the collective-bargaining agreement permit it to
create the new job classification without consulting
the Union. Article 9(3) provides in pertinent part
that:
When and if the Company creates a new job
classification it shall set the rate of pay therefor,
establish the manning thereof and advise the
Union as to both. If the Union disagrees with
either it may file a written grievance with respect
thereto starting at the Third Step of the grievance
procedure. If, as a result, a different rate of pay is
established, the different rate shall become
effective as of the date the job classification was
created.. .
A management rights clause, Article 2(2), reads as
follows:
The Union recognizes that except as specifically
limited or abrogated by the terms and provisions
of this agreement, all rights to manage, direct and
supervise the operations of the Company and the
employees are vested solely and exclusively in the
Company.
Respondent maintains that the words of Article
9(3) "(w)hen and if the Company creates a new job
classification..." mean that the Union agreed that
Respondent had the right to create such new job
classifications. It urges that the inclusion in that
section of the Union's right to utilize the grievance
procedure if it "disagrees with either" refers only to
the rate of pay or the manning of the new job and
further indicates that the Union relinquished any
right to be consulted regarding the creation of the
new job. Respondent also contends that the
management rights clause, Article 2(2), makes it
clear that unless the agreement contains a specific
abrogation thereof, Respondent would have the right
to establish unilaterally a new job classification.
Respondent claims there is no such limitation.
The Union claims to find a limitation on
Respondent's right to create new jobs in the
pressroom by virtue of Article 6(6). supra, which it
maintains creates a "closed line of progression" in
the pressroom.
We are of the opinion that Respondent's
interpretation of the contract is correct and that its
actions. which are permitted thereby, do not violate
the Act We reject the Union's contention that
Article 6(6) creates a "closed line of progression" in
the pressroom: while it undoubtedly creates a line of
progression, neither a reading of that section nor a
review of the record convinces us that it is a
"closed'' line. That section has not, in the
terminology of Article 2(2). supra, "specifically
limited or abrogated" the right to create new job
classifications, a right which the Union surrendered
to Respondent in Article 9(3). Respondent's actions
were therefore fully within its rights under the
contract.
As we have found that Respondent has not
violated Section 8(a)(5) of the Act, as alleged in the
complaint, we shall dismiss the complaint in its
entirety.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the complaint
be, and it hereby is, dismissed.
For the reasons set forth in the dissenting opinion in Eaton Yale &
Towne, Inc. 171 NLRB No 73, Member Zagona would in the
circumstances here defer to the arbitral process as provided by the parties'
contract However, he has considered the complaint on the merits and joins
his colleagues in dismissing it on that basis
TRIAL EXAMINER'S DECISION
Statement of the Case
LLOYD S. GRFENIDGE, Trial Examiner- This proceeding,
under Section 10(b) of the National Labor Relations Act.
as amended, was heard at Marshall, Michigan. on March
11, 1969, pursuant to die notice. The complaint, which
was issued on December 20, 1968,' on a charge filed the
preceding November 1, alleged that the Respondent,
herein at times called the Company, engaged in unfair
labor practices proscribed by Section 8(a)(5) and (1) of the
Act by refusing to bargain with the Union on or about
October 21 Respondent answered denying the refusal to
bargain.
Upon the entire record in the case.' my observation of
the witnesses . their attitude and demeanor on the stand,
and alter due consideration of' the briefs filed by the
Company and by the General Counsel, I make the
following*
FINDINGS of FACT
1. THE BUSINESS OF THE RESPONDFNI
Respondent, a Michigan corporation with its only office
and place of business in Battle Creek, Michigan, is
engaged in the printing and converting of flexible
packaging materials and related products. During the
calendar year ending December 31, 1967, a representative
period, Respondent. in the course and conduct of its
business operations, purchased and caused to be
transported to its Battle Creek plant goods and materials
valued in excess of S500.000 of which in excess of S50,000
were transported and delivered to its said plant directly
from points outside the State of Michigan. During the
same period, Respondent. in the course and conduct of its
business, sold and shipped products valued in excess of
All dates subsequently mentioned herein refer to the year 1968 unless
otherwise indicated
The General Counsel ' s motion to correct certain errors in the i.omplaint
with respect to the spelling of a name and lob titles was granted in the
absence of objections Raymond Kaminski, plant manager , appears
incorrectly as Ray Cominski , plant superintendent , and Thomas G Hall,
assistant vice president and plant superintendent appears incorrectly as
plant manager
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$50,000 directly to points outside the State . Upon the
foregoing admitted facts, I find that the Respondent is an
employer engaged in commerce within the meaning of'
Section 2 ( 6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that Printing Pressmen's
Union No. 135, International Printing Pressmen and
Assistants ' Union of North America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. FLIF UNFAIR LABOR PRACTICES
A. The Issues
The issues presented by the pleadings and litigated at
the hearing are whether Respondent refused to bargain on
October 21, 1968, in the following respects. (1) by
unilaterally establishing, creating. and opening to bids the
job classification of Pressman Trainee which classification
was used to train employees to advance to the position of
pressman and (2) by unilaterally modifying the terms of
the labor contract, in the manner set forth in (1) above,
without first complying with the requirements of' Section
8(d) of the Act.
There is no dispute, and it is found, that the following
individuals are, and at all times material have been,
supervisors within the meaning of Section 2(11) of the Act
and agents of the Respondent Karl Welk, president;
Thomas G. Hall, assistant vice president and plant
superintendent: and Ray Kaminski, plant manager
B. The Relevant Facts
1. Background
in major part, the evidence is not in substantial dispute.
The Respondent and the U nion commenced
negotiations for their first collective-bargaining contract in
October 1966 and, following a 10-week strike, became
parties to a labor contract effective from January 14.
1967, until January 14, 1970.'
Article Vl, section 6, of the contract establishes the
following line of progression in the pressroom.
Pressmen
Plate Maker and/or Plate Mounter
Pressroom Helper
As of August 20, 1968, there were about 13 pressmen, 5
plate makers/ plate mounters and 7 pressroom helpers.'
Section 8(b) of this article provides for the opening of
all pressroom helper jobs for one time only The entire
section reads as set forth below:
'Respondent admits, and 1 find, that the Union is the exclusive
representative of the employees in the following appropriate unit within the
meaning of Section 9 ( a) and ( b) of the Act All production and
maintenance employees at its Battle Creek , -Michigan , plant, including
regular part-time employees , but excluding office clerical employees,
product control employees , artists, Accounting Department employees,
Sales Department employees , professional employees , guards and
supervisors as defined in the Act
'Rcsp E.xh I
Article V1. Seniority
Section 8• It is understood and agreed that immediately
upon execution of this labor agreement all pressroom
helper jobs shall be declared open for bid on a
plant-wide basis. The six (6) pressroom helper jobs shall
be posted on the plant bulletin boards for two (2)
regularly scheduled working days. Three (3) of the
pressroom helper jobs thus posted shall he awarded to
the employees with the most seniority who, in the
judgment of the Company, have the ability required to
satisfactorily perform the jobs. The three (3) successful
bidders with the greatest amount of seniority (but not
more than one (1) from each department) shall transfer
to the pressroom helpers' jobs at their then prevailing
rate of pay, and so long as they remain pressroom
helpers, shall remain at that rate of pay until and unless
the maximum of the rate range for the pressroom
helpers subsequently exceeds their rate of pay. Such
three (3) employees shall he the senior pressroom helper
employees and shall be ranked, senioritywise, within the
job classification on the basis of their plant-wide
seniority and, if openings are available on two (2) or
more shifts, may at the time of such openings exercise
their seniority for shift preference unless for training
purposes it is necessary to assign one (1) or more of
such employees to specific shifts. Such three (3) senior
pressroom helpers shall, in addition to the normal
duties of the job classification, be in training for
advancement to the next higher job classification in the
job progression sequence. When an opening occurs in
the next higher lob classification (plate maker and/or
plate mounter or pressman) such senior pressroom
helper or helpers will be advanced thereto. If, after
advancing to such opening, the employee demonstrates
that he does not have the ability to satisfactorily
perform the work in such higher classification he shall
return to the job classification from which he bid into
the pressroom.
(a) When the pressroom helpers' jobs have been
declared open as above provided and after filling three
(3) of such jobs as above provided, the Company shall,
in its own judgment and discretion, have the right to
select any three (3) other applicants who, irrespective of
their relative amounts of seniority, have indicated a
desire to be transferred to the pressroom helper
classification These three (3) employees shall be ranked
as the fourth, fifth and sixth helpers in the classification
on the basis of their plant-wide seniority
(b) The first paragraph of this section and subsection
(a) above shall apply only once. immediately upon the
execution of this agreement. Thereafter, any permanent
vacancies in the pressroom helper classification shall be
filled in accordance with the provisions of Section 5 of
this Article.
Section 5 of the same article states, in pertinent part,
that: "no employee shall be permitted to bid for a job for
which the maximum of the rate range is less than the
maximum of the rate range of the job he occupies except
in cases of proven physical disability."
The negotiating history that preceded final approval of
the above stated provisions is unclear but, from a
composite reading of the relevant testimony. I am
persuaded and find that they evolved as related below
With regard to article VI, section 6, Paul Burgess,' a
member of the Company's bargaining team, testified that
'Senior vice president , general manager , and corporate secretary
CELLO-FOIL PRODUCTS, INC. 679
initially the Company proposed a line of progression' as
follows pressmen, plate makers/plate mounter,,
slittermen, and pressroom helpers. Burgess explained that
the Company sought to have slittermen included in the
pressroom sequence because of their close familiarity with
operations similar to those performed by pressmen,
namely, design layout, individual roll width, colors, and
paper tensions. According to Burgess, the Union
countered with a proposal that the pressroom helpers be
called assistant pressmen and that they be elevated to a
position above the plate makers/plate mounters with an
appropriate increase in their rate of pay. The Company
rejected the Union's proposal because it appeared to he
unfair to the plate makers/plate mounters who are more
skilled employees. On the other hand, Robert Obenour.'
who was also in attendance at the bargaining sessions,
testified that the Union wanted an open line in the
pressroom but acknowledged that it proposed that the title
of pressroom helpers be changed to assistant pressmen.
Obenour also testified, credibly and without
contradiction. that the Company proposed article VI,
section 5, which prohibits an employee from bidding for a
job with a maximum rate range lower than the maximum
rate range for the job he occupies.
With respect to article VI, section 8, both parties agree
that the idea to open the pressroom helper lobs for one
time only was advanced by the Union '
According to Thomas Hall, the Company's assistant
vice president and plant superintendent. an invitation to
bid into the pressroom, posted pursuant to the provisions
of article VI. section 8, evoked a response that was
insufficient to take care of the Company's long standing
need for pressroom employees as only one employee took
advantage of the opportunity.' Following the progressional
sequence set forth in article VI, section 6. Hall then
solicited applicants for the pressman's job from among the
plate makers/plate mounters but only one of the four
employees in this classification expressed a desire to move
up In the interim, employees Earl May and Lynwood
Morrison had advanced from helper to plate mounter.
Hall's attention then turned to the helper classification as
a possible source for much needed help in the pressroom.
His problems here were substantial as most helpers were
probationers due to a heavy turnover in the classification
Hall estimated that, within the past 2 years, about 30
helpers had left the Company's employ. Two helpers were
considered promotable, however. One was Bill Harvey. an
employee with 3 years' seniority, who had been bypassed
at an earlier date because of a physical disability.
The Company also gave consideration to canvassing
senior employees in the hag and slitter departments about
transfers to the pressroom since many of these employees
faced possible layoffs due to a lack of work. Fie thought
died abortively when it was recalled that article VI,
section 5, bars an employee from bidding for a job which
has a maximum rate less than the maximum rate for the
job he holds And. since the maximum rate for a hag
machine operator and slitter adjustor was, in each
instance, in excess of the $2.34 maximum for a pressroom
helper. bagmen10 and slitters were precluded by the
contract from bidding into the pressroom
'The only documentary reference thereto is Appendix A to the
Company's contract proposals (G C Erh 5 )
'Temporary organizer and principal spokesman for the Union
'Burgess' reference, at page 83 of the transcript, to article VII. Section'
8, is construed to mean article VI section 8, as there is no article VII,
section 8, in the contract
'The single applicant was Verne Ostrander , a slitter operator
It also appears that the Company attempted to hire
pressmen from outside but few were available. In the past
year, the Company engaged two employees for work in
the pressroom but, after short stays. both quit.
During the summer of 1968 it became apparent to the
Company that it was losing orders in substantial numbers
because of a shortage of pressmen The backlog of work
in the pressroom had reached a point where the normal 3
to 4 weeks' delay had expanded to 8 to I I weeks In
addition, the Company laced a problem in the slitting
department where it was converting printing equipment to
permit it to slit in line Converting to slit in line meant
that the normal work complement in the slitting
department would probably have to he reduced from eight
to five employees.
At that time, the Company had five presses but only
tour were in working condition Three of the four
Junctional presses ran the lull three shifts, the fourth ran
two and sometimes three shifts depending on whether
employees were willing to work overtime. A gravure press,
to be delivered in May, will require the services of three
additional pressmen. Anticipating personnel requirements
for the next year. the Company estimated. according to
Raymond Kaminski," that it needed a total of about live
additional pressmen. About this time, the Company gave
serious thought to establishing a new classification but,
before taking action in this regard, sought legal counsel as
to its rights under the contract
2. Discussion of contractual rights
On September 27 management representatives met with
Robert A. Huston, attorney for the Company, to discuss
the creation of a new job classification to meet its needs
for more pressmen in the end, the participants concluded
that the Company had the right under article 11, section 2,
and article IX, section 3, of the contract to unilaterally
establish a pressman trainee job classification. Article II,
section 2, reads as follows
The Union recognizes that except as specifically limited
or abrogated by the terms and provisions of this
agreement, all rights to manage, direct and supervise
the operations of the Company and the employees are
vested solely and exclusively in the Company
Article IX, section 3, states
When and it the Company creates a new lob
classification it shall set the rate of pay therefor,
establish the manning thereof and advise the Union as
to both If the Union disagrees with either it may file a
written grievance with respect thereto starting at the
Third Step of the grievance procedure If, as a result, a
different rate of pay is established, the different rate
shall become effective as of the date the j ob
classification was created unless new equipment is
involved to which case the rate shall become effective as
of the time experimental or pilot runs have been
completed and such machinery is cleared for actual
production operation
However, in the interest of better labor management
relations, it was decided to present the problem to the
Union and attempt to reach an agreement with it
"Excluding the bag inspector classification which had a maximum rate
of$209
"Plant manager
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Consultations with the Union
a. The August 28 meeting
Following a regular grievance meeting, the parties met
on August 28 in an initial discussion pertaining to the
establishment of a new job classification. The meeting was
attended by Paul E. Burgess, Thomas G. Hall, and
Raymond Kaminski on behalf of the Company and by
Verne Ostrander, president of Local 135, and Shop
Stewards Garrett Jones, Richard Brininstool, Mrs.
Clovella Marriott, and Mrs. Lillian Slaughter on behalf of
the Union. In the beginning, Burgess declared that there
was an urgent need for more pressmen. He told the
stewards that a shortage of pressmen was causing the
Company to lose business because not enough printed
stock was coming off the presses to continue a full bag
department operation and that. as a consequence, the
Company anticipated a layoff, within the next week, of at
least eight hag inspectors and possibly one slitter operator.
Burgess went on to say that the problem could be solved
by establishing a new classification to be called pressman
trainee and making the maximum rate for such
classification $2 99, which would be higher than the
maximum in any of the nonpressman classifications,
except electrician, mechanic A, and slitter adjustor. He
pointed out to the group that there were many employees
with valuable experience in related areas, such as slitters
and bagmen, and that they would benefit financially by
transferring to the pressroom. Near the close of the
meeting. Burgess asked the stewards to discuss the matter
with the senior employees and ascertain whether any
would be interested in becoming pressmen trainees and,
ultimately, pressmen. While the stewards agreed to make
such inquiry and to report back to the Company, they did
not pursue the matter as, sometime the next day, news of
the Company's proposal was leaked to an employee by a
clerical worker in the office of Hall and Kaminski before
the stewards could approach him. However, independent
inquiries by Hall revealed a lack of interest in the
proposal Disappointed in the negative reaction to its oral
proposal, the Company decided to put its ideas in writing.
b. The September 9 meeting
At the close of another grievance meeting on
September 9, the Company presented copies of a written
proposal, denominated supplemental agreement," to
members of the Union's committee. This meeting was
attended by Burgess, Hall, and Kaminski on behalf of the
Company, and by Ostrander, Jones, Brininstool,
Slaughter, and Robert H. Whiteman on behalf of the
Union. Ostrander told the company representatives that
the committee had no authority to reach an agreement of
the type suggested without first presenting the proposal to
its bargaining agent and International representative.
There was no further reference to or discussion of the
proposal and the meeting closed with the Company urging
early consideration and a prompt response.
Sometime before September 23 Robert Obenour called
Burgess and requested a meeting.
c. The September 23 meeting
This was still another meeting called for the purpose of
discussing a grievance. Burgess. Hall, and Kaminski
represented the Company while Obenour, Ostrander.
Jones, Brinmstool, Whiteman. and Jerry Monarch
represented the Union. After the grievance was disposed
of, the Company asked whether the stewards had
presented its proposal to the International. Obenour
replied that he was aware of its existence but had not seen
it. Obenour then suggested that the Company's problem
might be solved by raising the wage rate for pressroom
helpers because a higher rate would attract more qualified
workers who, thereafter, could more readily meet the
Company's requirements for promotion to pressman.
Kaminski pointed out that some bag department
employees faced layoffs and asked if Obenour was
suggesting that the Company hire from the outside.
According to Kaminski, Obenour replied that he was in
tact suggesting just that. Finally, Obenour said that he
would discuss the proposal with the stewards and give the
Company an answer.
d. The meeting of October 14
Hearing nothing further from the Union with respect to
the proposal, the Company called a meeting for October
14. At this meeting Hall and Kaminski represented the
Company and Obenour, Whiteman, Jones, Ostrander, and
Brinistool represented the Union. At the outset, Hall read
a memorandum addressed to the union committee dated
October 14 and entitled "Need of Additional Pressmen.""
The memorandum detailed the problems that were
confronting the Company in manning the presses, told of
the loss of business and of the layoff of employees that
had ensued as a result thereof, restated the oft expressed
urgency for the creation of a new job classification, and
reminded the committee of the Company's past efforts to
reach an agreement on the matter. After reading the
statement, Hall elaborated on its contents by explaining
that the Company faced the loss of the Silver Cup account
which represented about one-third of the work in the poly
bag department. He also told the group that if the
Company did not obtain more pressmen it would have to
layoff employees in the hag department. The Union
replied reiterating a position advanced earlier, namely,
that the title of pressroom helper should be changed to
assistant pressman and the rate of pay increased to induce
employees to bid into the classification. At some point in
the meeting. Obenour stated that, if the contract was
reopened, the Union had changes of its own which it
desired to make. The suggestion implicit in the statement
was apparently rejected The discussion then turned to a
consideration of seniority, not mentioned in the proposed
supplemental agreement except for a statement therein
that the Pressman Trainee job shall be awarded to the
senior applicant who, in the judgment of the Company,
has the qualifications necessary to become a pressman
According to Kaminski, the Company has two seniority
lists. one for pressroom employees, the other for
employees in the rest of the plant. The question here was
whether a senior nonpressroom employee would retain his
plantwide seniority in the pressroom after transfer or
would receive a new seniority date If such employee was
eniority list ondropped to the bottom of the pressroom seniority'
transfer, he would forfeit the shift preference he had
enjoyed in the rest of the plant. Conversely, it he was
allowed to carry his plantwide seniority into the
pressroom, experienced pressmen with less overall
seniority would be prejudiced in shift assignments.
Obenour suggested that employees who bid into the
Pressman Trainee classification should enter the
"G C Exh 3 "Resp Exh. 4
CELLO-1`011- PRODUCTS. INC. 681
pressroom at the bottom of the seniority list but should
receive seniority credit equal to their plantwide seniority
after they had completed their training and had become
full fledged pressmen. He defined a "full fledged
pressman" as an employee who had reached the top rate
in the pressman's classification. The Company had never
considered seniority a problem. its main interest was the
contractual prohibition against employees bidding down.
A number of committee members present were pressmen
and, at least, one expressed concern that, under the
Obenour proposal, a senior bag employee could eventually
bump an experienced pressman off his shift The issue was
never resolved
About this point Ohenour asked whether the
Company's conferees had authority to sign an agreement
Kaminiski replied in the alfirmative and inquired whether
the Union's representatnes were so authorized To this
Obenour responded that before he signed the proposed
agreement the wording would have to be changed. The
committee then withdrew and caucused. When it returned
Obenour announced that the Union rejected the proposed
supplemental agreement because of the seniority problem.
Soon thereafter Obenour requested a private meeting with
Kaminski at which time he told the company
representative that there was no use in pushing the
proposal because the committee felt that the Company
was attempting to adjust the rules to satisfy a few
employees. Alter Kaminski and Obenour rejoined the
group, either Kaminski or Hall voiced his disappointment
in the committee's decision, stated that he did not know
what the Company was going to do, and expressed hope
that the decision was not a final rejection of the proposal
and that the committee would reconsider.
4 The decision to establish a new job classification
and the implementation thereof
On October 18 the Company decided to exercise its
alleged rights under article 11, section 2. and article IX,
section 3, and to establish a Pressman Frainee
classification with a pay range of $2.25-$2.99 later
increased to $2 35-S3.09 Notices of the creation of the
new job classification and invitations for bids were posted
on October 21 and 30. November 26. and Fcbruar} 25. In
each instance, the Company followed the progressional
sequence in the pressroom and, only after it had
concluded that no employee was qualified for promotion
or was willing to accept an appointment to the new
position. was an opening awarded to a senior employee
from another part of the plant Four employees, all
bagmen. were selected for these vacancies.
On November 1 the Union filed the instant unfair labor
practice charge against the Respondent alleging, inter a/ta,
that, on October 21, Respondent "unilaterally effectuated
a material change in the terms and conditions of the
employment of employees . .
5. The grievance initiated
Article Ili of the collective-bargaining contract
establishes a grievance and arbitration machinery for the
settlement of complaints "regarding the meaning,
interpretation or application of the terms and provisions
of this agreement." Section 2 thereof reads, in pertinent
part, as follows.
FiFTii STEP If, at this point, the grievance has not been
satisfactorily settled, either party hereto shall have the
right to submit such grievance to arbitration by the
American Arbitration Association in accordance with
its Voluntary Labor Arbitration Rules, then obtaining,
provided such submission is made within thirty (30)
calendar days after receipt by the Union of the
Company's Fourth Step grievance answer. If the
grievance has not been submitted to arbitration within
said thirty (30) calendar day period, it shall be
considered as being null and void The arbitrator shall
have no authority to add to, subtract from. change or
modify any provisions of this agreement but shall be
limited Solely to the interpretation and application of
the specific provisions contained herein.
On January 13 all members in the pressroom helper
classification filed a grievance alleging that they were
being bypassed in the line of progression. The grievance,
processed through the fourth step of the grievance
procedure, was finally denied by the Company on March
3. There is no evidence that the arbitration provison of the
contract was ever invoked.
C Analisis and Conclusion
Respondent earnestly argues that the Board should
withhold the exercise of its jurisdiction in this case
because a resolution of the issues posed requires an
interpretation of the contract and such an interpretation
by the Board would interfere with the machinery
established by the parties to settle their grievances through
arbitration The argument is devoid of merit It is firmly
established that the availability of grievance-arbitration
procedures does not foreclose the Board from asserting its
jurisdiction Thus, Section 10(a) of the Act expressly
states. "The Board is empowered to prevent any
person from engaging in any unfair labor practice
This power shall not he affected by any other means of
adjustment or prevention that has been or may he
established by agreement, law, or otherwise
Further, the board , with court approval, has consistently
held that it is not precluded from resolving an unfair labor
practice issue simply because , as an incident thereto, it
may he required to construe the scope of a contract which
an arbitrator is also authorized to construe ." Moreover.
the inere existence of contractual grievance and
arbitration procedures is insufficient to warrant deferral to
arbitration particularly where, as here, arbitration has not
been invoked" and the time to do so has long past
Respondent's reliance upon the Supreme Court's
decision in C & C Pltivood" to support the argument
advanced here is misplaced . It is recognized, of course.
that the contract in that case did not provide for
arbitration and, therefore, the question whether to defer to
arbitration was not directly before the Court However,
the rationale of C & C Pltiwood, when read together with
the Court's decision in Acme Industrial Co.," establishes
that the presence of an issue of contract interpretation
does not deprive the Board of jurisdiction even though the
contract contains a provision for arbitration and that the
Board does not exceed its jurisdiction in necessarily
"See N L R B v Huttig Sash & Door Co., Inc . 377 F 2d 964 (C A 8),
enfg 154 NLRB 811, C & S Industries , Inc . 158 NLRB 454, Cloverleaf
Division of Adams Dairi Co, 147 NLRB 1410. Smith Cabinet
Manufacturing Company, Inc, 147 NLRB 1506
"See N L R B v Huttig Sash & Door Co Inc , supra, Cloverleaf
Division of Adams Dairy Co . supra , 1415-16. C & S Industries Inc ,
supra, 460, ct McLean Trucking Company. 175 NLRB No 66
"N L R B v C & C Plywood Corporation , 385 U S. 421 See also
Mastro Plastics Corp v N L R B. 350 U S 270
"N L R B v Acme Industrial Co. 385 U S 432
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
construing the contract to decide the unfair labor practice
Accordingly, for the reasons set forth above, I shall
proceed to decide the case on its merits."
Initially, it is necessary to consider the General
Counsel's contention that in October 1968 Respondent
violated Section 8(a)(5) of the Act by unilaterally
establishing, creating, and opening to bids the job
classification of Pressman Trainee which he asserts is
being utilized to train employees to progress to the
classification of pressman. The record clearly establishes
that the Respondent unilaterally created the Pressman
Trainee classification after having failed to reach an
agreement with the Union and that employees in the new
classification are being trained to advance to the position
of pressman That the creation of a new job classification
and the institution of a program concerned with the
selection and training of employees to become qualified
pressmen are matters which fall within the meaning of
"wages, hours. and other terms and conditions of
employment" as set out in Section 8(d) of the Act and
are, therefore, mandatory subjects of bargaining is plainly
evident. The qualifications to be met by applicants for
participation in the program and the terms and conditions
under which they will work after acceptance are obviously
matters related to and embraced within the statutory
language. I find, therefore, that the creation of the
Pressman Trainee classification and the institution of a
training program were mandatory bargainable subjects
and that the Respondent did not bargain with the Union
concerning the decision to establish the new job
classification, the selection of applicants for the training
program or the terms and conditions which were to
govern their participation therein
The Company urges that the Union waived its right to
be consulted prior to the establishment of the new
classification by the provisions of article II, section 2 (the
management rights clause), and article IX, section 3
(delineates the Company's rights with respect to the
creation of new job classifications), both quoted above
A union may, of course, waive its right to be notified
and consulted concerning any substantial change in
employment but such waiver must be expressed in clear
and unmistakable terms and will not he lightly interred.'°
The fact that article IX, section 3, also provides for the
utilvation of grievance procedures in the event of union
dissatisfaction with the rate of pay or manning established
by the Company for a new classification does not preclude
the Union from pursuing an alternative course of action,
namely, the assertion of its right to bargain about these
matters 20 And, although the Union in article IX, section
3, recognizes the right of the Company to create a new
job classification, this provision must be construed in the
context of article Vi, section 5 (prohibits employees from
bidding for a job for which the maximum of the rate
range is less than the maximum of the rate range of the
job he occupies), and section 6 thereof (establishes a
closed line of progression in the pressroom) which clearly
delimit the exercise of the Company's right to bring about
changes in the pressroom. Similarly. article It, section 2,
by its very language, is expressly limited by the terms and
provisions of the contract.
"See N L R B • Scam Instrument Corp, 394 F 2d 884 (C A 7), enfg
163 NLRB 284, Unit Drop Forge Division Eaton Yale & Towne Inc. 171
NLRB No 73, C & S Industries . Inc . supra , 459-460
"Cloverleaf Division of Adams Dater Co. supra, 1412, Clifton Precision
Products Division , Litton Precision Products. inc. 156 NLRB 555,
562-563, Smith Cabinet Manufacturing Company. Inc. supra, sa, also The
Timken Roller Bearing Co v N L R B , 325 F 2d 746 (C A 6), cert
Viewed in this perspective, I am persuaded and thus
find that there is no basis in the wording of article IX.
section 3, or article 11 section 2. for inferring that the
Union surrendered to the Company the right unilaterally
to establish the Pressman Trainee classification and to
institute a training program for employees selected for the
new position
I consider now the General Counsel's contention that
by unilaterally establishing the new classification and
using it to train employees to advance to the position of
pressmen, Respondent modified the existing contract in
derogation of the provisions of Section 8(d) of the Act
The General Counsel's theory appears to be that the
unilateral establishment of the Pressman Trainee
classification and the institution of a training program
therefor had the effect of changing contractual provisions
which prohibit an employee from bidding for a job with a
lower maximum rate range (article VI, section 5),
establish a closed line of progression in the pressroom
(article VI, section 6), and permit a one-time hid into the
pressroom (article VI, section 8). It will be recalled that
the Company met with the Union on four different
occasions for the purpose of discussing and ultimately
gaining approval of its proposal The final meeting on
August 14 ended with the Union's rejection of the
proposal. One week later, in a posted notice to the
employees, the Company announced the creation of the
new classification and solicited bids for the position.
Surely, the Union was not obliged to agree to any
modification of the existing contract and, having failed to
reach an agreement, the Company was not then at liberty
to unilaterally modify the terms and conditions of
employment of its employees during the life of the
contract.2' Here, it is quite clear that, by unilaterally
creating the Pressman Trainee classification, Respondent
superimposed that classification upon the contractually
established progressional sequence in the pressroom in
violation of article VI, section 6, of the contract.22 And,
by opening the classification to bids and setting the
maximum rate range at a level above that of any
oonpressroom classification, except electrician, mechanic
A, and slitter adjustor, Respondent circumvented the
proscriptions of article VI, section 5, and section 8, (a)
and (b). Such actions by the Respondent amounted to
modifications of contract terms within the meaning of
Section 8(d) and I so find.'
In defense, Respondent contends that it had the
contractual right under article 11, section 2, and article
IX. section 3, of the contract, quoted above, to
unilaterally establish the new job classification and that by
agreeing Co a further provision in article iX, section 3,
which permits the Union to invoke the
grievance-arbitration procedures in the event of a dispute
over the pay rate and manning established by the
Company for such classification, the Union bargained
away its right to prior notice or consultation with respect
to the institution of the new classification The contention
lacks substance. After a careful review of the record, I am
persuaded and find that even if article II, section 2
(management rights clause), and article IX, section 3 (the
denied 376 U S 971
'0N L R B v Huttig Sash & Door Company, Inc, supra . Unit Drop
Forge Division Eaton Yale & Towne Inc , supra
"C & S Industries , Inc. supra, 457
"See C & S Industries. Inc , supra, 459
"See The Standard Oil Company (Ohio ). 174 NLRB No. 33, PPG
Industries Inc. 172 NLRB No 61, The Scam Instrument Corporation,
163 NLRB No 39, C & S Industries, Inc , supra
CELLO-FOIL PRODUCTS, INC.
clause which allegedly gives Respondent the right
unilaterally to create a new job classification when and if
it finds it necessary to do so), could arguably support
Respondent's contract interpretation claims, such a
construction is not tenable in view of the more specific
language of article Vl, section 6, which establishes a
closed and restricted line of progression in the pressroom.
It is a well-recognized principle of contract construction
that an instrument is to be interpreted as a whole and that
where provisions appear to he inconsistent the more
specific rather than the general provision shall be given
effect.=d Moreover. as stated above, the availability of
grievance procedures does not preclude the Union from
insisting on its right to bargain about changes in contract
terms.35
Respondent also appears to contend that the parties
bargained to an impasse prior to the institution of the new
classification. There is no merit in this contention
Impasse is not controlling or material where, as here, a
change in the terms and conditions of employment is
made during the life of an existing contract. See The
Standard Oil Cotnpani (Ohio), supra, C & S Industries.
Inc , supra By way of further defense, Respondent argues
that the change was motivated by pressing economic
considerations The Board has held, however, that
economic necessity is no justification for an infraction of
the statute. See C & S Industries, supra.
Finally, Respondent stresses its good faith and the
absence of union animus. In this regard. Respondent
points to the fact that it sought to avoid layoffs and
followed the progressional line in the pressroom before
accepting applications from non pressroom employees. It is
well settled, however, that the existence of union animus is
not a prerequisite for a finding of an 8(a)(5) violation. See
Fibreboard Paper Products Corp v. 'V L.R B., 322 F.2d
411 (C A.D.C.), Unit Drop Forge Division Eaton Yale &
Towne, Inc , supra Furthermore, unilateral changes in the
terms and conditions of employment constitute a violation
of the bargaining obligation even in the absence of a
showing of had faith N L R B. v. Benne Katz, etc , d/h/a
Williamsburg Steel Products Co , 369 U.S. 736
Accordingly, rejecting the Respondent's defenses, I find
and conclude that Respondent refused to bargain with the
Union on October 21, 1968, and since by (1) unilaterally
creating, establishing and opening to bids the job
classification of Pressman Trainee, and instituting a
training program therefor and (2) unilaterally modifying
the terms of the contract without complying with the
provisions of Section 8(d) of the Act. By such conduct
Respondent upset the delicate balance of interests
painfully struck by the parties in their bargaining
negotiations and thereby engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
IV. 1 HE EFFrC P OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section 111,
above, occurring in connection with Respondent's
operations described in section 1, above, 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 obstructing commerce and
the free flow of commerce.
''Restatement of the Law of Contracts, sections 235(c) and 236(c),
Williston on Contracts, 3d cd section 624
"See Unit Drop Forge Division Eaton Yale & Towne. Inc, supra
V. THE REMEDY
683
It having been found that Respondent has engaged in
certain unfair labor practices , I shall recommend that it
take certain affirmative action designed to effectuate the
policies of the Act.
To remedy the unlawful actions taken by Respondent, I
shall recommend that Respondent cease and desist from
unilaterally instituting changes in the wages , hours, and
other terms and conditions of employment of its
employees in the bargaining unit herein found appropriate,
during the term of any collective -bargaining contract
covering said employees without first reaching an
agreement with the Union covering such changes . I shall
also recommend that, upon request , Respondent revoke
and rescind the institution of the Pressman Trainee job
classification and that it bargain collectively with Printing
Pressmen ' s Union No. 135, International Printing
Pressmen and Assistants' Union of North America.
AFL-CIO, as the exclusive representative of all employees
in the unit found to be appropriate for the purposes of
collective bargaining.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONClUSiONS OFLAw
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Printing Pressmen's Union No. 135, International
Printing Pressmen and Assistants' Union of North
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees employed
by Respondent at its Battle Creek, Michigan, plant.
including regular part-time employees, but excluding office
clerical employees, product control employees, artists,
Accounting Department employees, Sales Department
employees, professional employees, guards and supervisors
as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Al all times material, the Union has been, and now
is, the exclusive representative of the employees in the
aforesaid unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By unilaterally instituting the Pressman Trainee job
classification on or about October 21, 1968, the
Respondent changed the existing terms and conditions of
employment of the employees in the aforesaid unit and
modified the subsisting collective-bargaining contract
without complying with and in violation of the
requirements of Section 8(d) of the Act.
6 By its acts as set forth in Conclusion 5, above, the
Respondent engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]