Century Papers, Inc.

National Labor Relations Board - Board Decisions

Oct 27, 1965

155 N.L.R.B. 358 (N.L.R.B. 1965)

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon application , offer to each of the unfair labor practice strikers
immediate and full reinstatement to the former or substantially equivalent posi-
tion of each , without prejudice to the seniority or other rights or privileges pre-
viously enjoyed by each.
JAMES RUBIN D/B/A ORTHODONTIST'S SERVICE,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
HAWLEY'S, INC., '
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
PRIOR PLASTICS, INC.,
Employer..
Dated------------------- By-----------------------------------------(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of the right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Fifth
Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No..
751-5500.
Century Papers, Inc. and United Papermakers and Paperwork
ers, AFL-CIO, Local Union No. 854. Case No. 23-CA-1994..
October 27,1965
DECISION AND ORDER
Upon charges duly filed by United Papermakers and Paperworlers,.
AFL-CIO, Local. Union No. 854, the General Counsel of the National
Labor Relations Board, by the Regional Director for Region 23, issued'
an amended complaint dated May 14, 1965, against Century Papers,,
Inc., herein called Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices within the meaning of
Section 8(a) (5) and (1) and Section 22(6) and (7) of the National
Labor Relations Act, as amended. Copies of the charge, amended'
complaint, and notice of hearing were served upon Respondent and the-
Charging Party.
On May 19, 1965, Respondent duly filed its answer admitting cer-
tain allegations of the complaint, but denying the commission of any
unfair labor practices.
On June 17, 1965, all. parties to this proceeding entered into a stipu-
lation whereby they agreed that the charge, complaint, Respondent's
answer, amendment to complaint, and the stipulation of facts con-
stitute the entire record in the case and that no oral testimony is,
155 NLRB No. 40.
CENTURY PAPERS, INC. 359
necessary or desired by any of the parties. The parties further stipu-
lated that they waived a hearing before a Trial Examiner and the
issuance of a Trial Examiner's Decision. They agreed to submit the
stipulation directly to the Board for findings of fact, conclusions of
law, and a Decision and Order.
On June 24, 1965, the Board granted the parties' request to transfer
the case to the Board and to file briefs. Thereafter, the General Coun-
sel and Respondent filed briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
Upon the basis of the parties' stipulation, and upon the entire
record in this case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Century is engaged in the distribution of paper products at its prin-
cipal office and plant located at Houston, Texas. In the operation of
its business, Century annually purchases goods and materials directly
from points outside the State of Texas valued in excess of $50,000.
The parties admit, and we find, that Century is, and has been at all
times material herein, an employer engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
The parties stipulated , and we find , that United Papermakers and
Paperworkers , AFL-CIO, Local Union No. 854, is, and at all times
material herein has been, a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Union has been the certified bargaining representative of certain
of Respondent's employees since May 1963. In October of that year,
the parties signed a contract covering these employees which is to
expire in October 1966. On October 21, 1963, the effective date of the
contract, certain unit employees were received so-called "red circle"
hourly wage rates which were in excess of the maximum rates for their
classifications as set forth in the collective-bargaining agreement.
Certain other employees were being paid at the maximum level speci-
fied in the contract for their classifications. The wage rate for employ-
ees in these groups was at least $2 an hour. Two other employees in
the unit were receiving hourly rates of less than $2 on October 21. One
day later, on October 22, the Respondent without notification to or
bargaining with the Union granted wage increases to 13 employees in
the aforementioned group, and on October 21, 1964, at a time when
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were all earning in excess of $2 an hour, these employees were,
given additional increases , again without any bargaining with the,
Union.
Thereafter , the Union learned of these increases given by the
Respondent . It filed a grievance in January 1965, proceeding through
"Step 4" of the grievance procedure . ' However, on March 8 , 1965, the
Union filed the unfair labor practice charges herein and did not pro-
ceed further to the arbitration stage of the grievance machinery?
The job classifications and hourly base rates for employees covered
by the agreement are set forth in Exhibit A which is attached thereto.
This exhibit contains a listing of job classifications , giving minimum
and maximum hourly rates as of October 21,1963, and projected maxi-
mum rates to be effective October 21, 1964. The following sections
then appear:
Section 1. The above minimum hourly rates shall be effective-
from and after October 21,1963.
Section 2. The company agrees on effective date of this agree-
ment to increase all employees who have at least 12 months of
continuous service to the maximum regular hourly rate as above,
provided in Section 1.
Section 3. The Company agrees on the effective date of this
Agreement to increase all employees who have less than 12 months
of continuous service to the minimum regular hourly rates as
above provided in Section 1, except in those cases where the parties
have agreed to a different scale.
Section 4. The Company agrees to employ any person hired
after the effective date of this agreement at the minimum regular
rate as above provided in Section 1, and to grant a 5¢ increase to
each person at the end of each 3 months of continuous service.
Section 5. The parties agree that both the minimum and maxi-
mum rates as shown in Section 1 will be increased by 8¢ per hour
(including only rates of $1.99 per hour or less-rates of $0 and
over remain the same and unchanged) effective for the period
beginning October 21, 1964 to October 20, 1965. These rates are
shown in Section 1 and headed "October 21, 1964." [Emphasis
supplied.]
'The contract between Respondent and the 'Union defines a grievance as any dispute
between the Company and the Union or between the Company and any emplo3 ee or em-
ployees concerning the effect , interpretation , application , claim or breach or violation of
this Agreement , or any dispute which may arise between the parties.'
2 The contract provides for the submission of an unsettled dispute to an arbitrator.
The arbitrator does not have the authority to alter, amend , or change the terms or pro-
visions of the agreement in any way , but his decision , within the purview of his authority,
is "final and binding on the parties."
CENTURY PAPERS, INC. 361
The General Counsel contends that, by unilaterally raising the wage
rates of the aforementioned employees in October 1964,3 Respondent
violated Section 8 (a) (5) of the Act. Respondent argues that its wage
increases were authorized by the contract but, in any event, and more
significantly, the dispute herein turns on a question of contract inter-
pretation for the resolution of which a grievance procedure has been
provided and the Board should not intervene in the matter, at least
not until the case has been disposed of by an arbitrator. We do not
agree with Respondent's contentions.
Respondent's position that its unilateral wage action was justified
by the contract is based on the contention that all wages rates specified
in Exhibit A are minimum rates as section 1 demonstrates, and that
Respondent was free to raise these rates as it pleased. In our opinion,
however, the pertinent contract provisions are plain and unambiguous
and they are not reasonably susceptible of the interpretation urged by
Respondent. Significantly, the columns of Exhibit A are specifically
headed "minimum" and "maximum" for the relevant contract periods,.
clearly indicating that maximum rates had been negotiated for the job,
classifications set forth in the contract, including those at issue herein.
And while section 1 refers to the "above minimum hourly rates" to be
effective from October 21, 1963, section 2 provides that employees with
12 months of continuous service on date of agreement are entitled to,
the "maximum" hourly rates. Section 3 permits Respondent to raise
the wages of those with less than 12 months of service to the "mini-
mum" rates. Section 4 requires the hiring of employees at the "mini-
mum" rate. And section 5 requires an increase on October 21, 1964,
of 8 cents per hour in both the "minimum" and "maximum" rates
which are $1.99 an hour or less, and expressly states that rates over-
$2 per hour are to "remain the same and unchanged." Thus, the 8-cent-
an-hour increase, specified for the year beginning October 21, 1964,
takes effect only where the 1963 rates were under $2 an hour. All this,
demonstrates unmistakably that minimum and maximum rates are
provided for in the contract, that only such rates, either minimum or
maximum, as were hourly rated at less than $2, were required to be
increased for the year beginning October 21, 1964, and that no increase,
of the rates of the individuals in issue, since their rates were already
in excess of $2, was called for by the contract on October 21, 1964.
Nor is there merit in Respondent's contention that it is within the
exclusive province of an arbitrator to make such a determination, at
least in the first instance. This argument proceeds on the theory
that only a good-faith dispute over contract interpretation is involved,
the resolution of which should be through the contractual grievance
procedure and not by the Board. But Respondent's assertion that a
3 Respondent 's unilateral action in October 1963 falls outside the 10 ( b) period and is.
not alleged as an unfair labor practice.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispute over contract interpretation exists does not make it so. Its
-contention requires, of course, that we examine the contract. Having
done so, we believe that Respondent's efforts to invoke a question of
contract interpretation is wholly untenable and must fall in view of the
-plain and unambiguous provisions of the contract. Inasmuch as the
contract manifestly does not sanction the action taken by Respondent,
we find in Respondent's unilateral action in raising the wage rates a
deliberate attempt to modify the contract which gave rise, not to an
'arbitrable matter of contract interpretation, but to an unfair labor
practice 4 Our conclusion, therefore, is that Respondent violated
`Section 8 (a) (5) and (1) by its unilateral wage increases of October 21,
7964.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of Respondent set forth in section III, above, occur-
ring in connection with the operations described in section I, above,
have a close, intimate, and substantial relation 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.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor prac-
tices, we shall order it to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Century Papers, Inc., is an employer engaged in commerce and
business activities affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Papermakers and Paperworkers, AFL-CIO, Local Union
No. 854, is a labor organization within the meaning of Section 2(5) of
the Act.
3. By increasing the wages of certain unit employees without notifi-
cation to or bargaining with their statutory representative, Respondent
has violated Section 8 (a) (5) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
' See Huttig Sash and Door Company, Incorporated, 154 NLRB 811.
CENTURY PAPERS, INC. 363
Respondent, Century Papers, Inc., Houston, Texas, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Papermakers and
Paperworkers, AFL-CIO, Local Union No. 854, as the exclusive bar-
gaining representative of all employees in the appropriate unit 5 by
unilaterally changing wages rates or otherwise changing any other
conditions of employment of employees within the aforesaid unit
without prior notice to and bargaining with the Union.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Bargain collectively with United Papermakers and Paper-
workers, AFL-CIO, Local Union No. 854, as the exclusive representa-
tive of its employees in the apropriate unit with respect to wages,
hours, and other terms and conditions of employment.
(b) Post at its plant in Houston, Texas, copies of the attached
notice marked "Appendix." Copies of said notice, to be furnished by
the Regional Director for Region 23, shall, after being duly signed by
the Company's representative, be posted by the Company immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the Company to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 23, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
6 The appropriate unit is: All employees of the Respondent at its Houston , Texas, plant,
including production and maintenance employees , truckdrivers , shipping clerks, receiving
clerks, order routers, order fillers, warehousemen , papercutters, plant clericals , letterpress
printers, lithographic printers , diemakers , cutters, creasers , and finishers , but excluding
office clerical employees , salesmen, guards, watchmen , and supervisors as defined in
the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby Notify you that:
WE WILL NOT refuse to bargain collectively with United Paper-
makers and Paperworkers, AFL-CIO, Local Union No. 854, as
the exclusive bargaining representatives of all employees in the
appropriate unit by unilaterally changing wage rates or other-
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wise changing any other conditions of employment of employees
within the aforesaid unit without prior notice to and bargaining
with the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guaranteed
them by Section 7 of the Act.
CENTURY PAPERS, INC.,
Employer.
-Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date of posting,
,and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston,
'Texas, Telephone No. 228-4722, if they have any question concerning
this notice or compliance with its provisions.
Master Transmission Rebuilding Corporation & Master Parts,
Inc. and International Association of Machinists , AFL-CIO,
District Lodge No. 87. Case No. 20-CA-2974. October 928, 1965
DECISION AND ORDER
On June 23, 1965, Trial Examiner David F. Doyle issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged 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. The Trial Exam-
iner also found that the Respondent had not engaged in certain other
unfair labor practices and recommended that the complaint be dis-
missed with respect to such allegations. Thereafter, the Respondent
and the General Counsel filed exceptions to the Trial Examiner's Deci-
sion and supporting briefs.
Pursuant to the provisions 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 [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
-at the hearing and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
155 NLRB No. 35.