Cincinnati Paperboard

National Labor Relations Board - Board Decisions

Aug 21, 2003

339 N.L.R.B. 1079 (N.L.R.B. 2003)

CINCINNATI PAPERBOARD 1079
Caraustar Mill Group, Inc. d/b/a Cincinnati Paper-
board and Paper, Allied-Industrial, Chemical
and Energy Workers International Union Local
5–0609, AFL–CIO–CLC. Case 9–CA–38996
August 21, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND ACOSTA
On January 10, 2003, Administrative Law Judge Karl
H. Buschmann issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions, as
modified, and to adopt the recommended Order.
The issue presented is whether the judge correctly
found that the Respondent did not violate Section 8(a)(5)
and (1) of the Act when it unilaterally changed its “trad-
ing time” shift policy to eliminate trades of less than a
full shift. For the reasons stated below, we adopt the
judge’s dismissal of the complaint.
As explained more fully by the judge, the Respondent
has long maintained a policy that permitted an employee
to trade with or assign a scheduled work shift or portion
thereof to another employee. The trade is undertaken by
completion of a form entitled “Schedule Change Re-
quest,” which identifies the employees involved and the
precise change. The request form is then submitted to a
supervisor for approval. Because of the administrative
burden of tracking the trading of partial shifts, as well as
its perceived effect on the Respondent’s attendance con-
trol program, the Respondent unilaterally changed the
policy to limit trades to full shifts only.
We agree with the judge that sections 2 and 4 of article
XXIV of the parties’ bargaining agreement allowed the
Respondent to change its shift trading policy unilater-
ally.2 Thus, Section 2(b) of the agreement confers on the

1 No exceptions were filed to the judge’s finding that the Respondent
did not violate Sec. 8(a)(5) and (1) by requiring the Charging Party to
vacate in-plant office space.
2 In dismissing the complaint, the judge applied a “clear and unmis-
takable” waiver standard to the conduct at issue, consistent with Board
precedent. Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983);
Johnson-Bateman Co., 295 NLRB 180 (1989). In NLRB v. Postal
Service, 8 F.3d 832 (D.C. Cir. 1993), the court found appropriate a
“contract coverage” analysis, rather than a clear and unmistakable
waiver analysis, where the contract covers the issue in dispute. Mem-
bers Schaumber and Acosta find that under either standard dismissal of
the complaint is warranted. Member Liebman relies on the judge’s
clear and unmistakable waiver analysis.
Respondent the “sole responsibility” to operate the plant
and direct the work force, including “[t]he righ[t] to . . .
schedule, and assign work.” Section 4 states that “The
Union recognizes the right of the Company to make and
put into effect changes in working conditions,” and pro-
vides that the Company is to keep the Union advised as
to “major” working condition changes that it puts into
effect in the plant from time to time. Section 4 defines
“major” working condition changes as those dealing with
“elimination of jobs, creation of new jobs, and substan-
tial changes in existing job requirements.” When such
major changes occur, section 4 provides that the parties
will negotiate any changes that may be required in exist-
ing hourly wage base rates. If no agreement can be
reached in hourly base rates, the matter may be submitted
to arbitration.
We agree with the judge, for the reasons he states, that
the shift trading time policy, at its core, pertains to the
scheduling and assigning of work: one employee is tak-
ing the assigned shift of another.
Under the terms of article XXIV, section 2, the Re-
spondent retains the sole responsibility and right to
schedule and assign work. See Good Samaritan Hospi-
tal, 335 NLRB 901 (2001) (provision conferring on em-
ployer the right to determine appropriate staffing levels
permitted implementation of staffing matrices);3 United
Technologies Corp., 287 NLRB 198 (1987), enfd. 884
F.2d 1569 (2d Cir. 1989) (provision conferring on em-
ployer the right to make and apply rules for discipline
privileged change in progressive disciplinary policy).
We also agree with the judge, for the reasons he states,
that the trading time policy cannot be considered a “ma-
jor” change in working conditions as defined in section 4
of the contract. Indeed, Union President Peter Eversole
testified that it was not. Accordingly, we conclude in
agreement with the judge, that sections 2 and 4 of article
XXIV exempt the trading policy from the Company’s
bargaining obligation.
Because the Respondent had no duty to bargain over
the trading policy, the Respondent did not violate Section

In dismissing the complaint, Member Schaumber finds it unneces-
sary to pass on whether sec. 4 of the contract constitutes a waiver of the
conduct at issue in this case.
Member Acosta notes Member Liebman’s concurrence, setting forth
her view that the contract provisions here raise more compelling cir-
cumstances for finding a waiver than do certain other cases previously
decided by the Board. He does not find it necessary to discuss whether
the present case raises a more compelling circumstance for finding a
waiver than do those cases. He holds that dismissal is appropriate
under either a contract coverage or waiver analysis, and observes that to
the extent that waiver is questioned in this case, a contract coverage
analysis provides clear grounds for dismissing the complaint.
3 Member Liebman did not participate in Good Samaritan Hospital
and finds it unnecessary to rely on the result in that case.
339 NLRB No. 137
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1080
8(a)(5) and (1) of the Act when it unilaterally changed its
trading time policy to eliminate trades of less than a full
shift. We shall, therefore, dismiss the complaint.
ORDER
The recommended order of the administrative law
judge is adopted and the complaint is dismissed.

MEMBER LIEBMAN, concurring.
I agree that, in conjunction, sections 2 and 4 of the col-
lective-bargaining agreement amounted to a waiver of
the Union’s right to bargain over a change in the “trading
time” shift policy.
I write separately to deal with precedent that the
majority does not address. In my view, the contract
provisions here raise more compelling circumstances for
finding a waiver than did the contract provisions in Mi-
ami Systems Corp., 320 NLRB 71 (1995), enf. denied
sub nom. Uforma/Shelby Business Systems v. NLRB, 111
F.3d 1284 (6th Cir. 1997) (provision conferring on em-
ployer, inter alia, the right to schedule and assign did not
privilege unilateral elimination of third shift), and Bev-
erly California Corp., 326 NLRB 153 fn. 3 (1998), enfd.
in relevant part 227 F.3d 817 (7th Cir. 2000) (provision
conferring on employer the right to schedule its operation
and work force did not privilege implementation of a
master schedule that reduced the hours and earnings of
unit employees). In those cases, the unilateral conduct at
issue had a substantial economic component and, as a
factual matter, went beyond the kind of scheduling pre-
sent in this case: the substitution of one unit employee
for another unit employee, at the employees’ request,
during a scheduled shift assignment.1
I also view this case as distinguishable from Dearborn
Country Club, 298 NLRB 915 (1990). In that case, more
general contractual provisions were found lacking in
specific authorization to privilege a unilateral change in
overtime distribution. Here, the essence of the “trading
time” policy is the scheduling and assigning of work
enumerated in section 2 of article XXIV.

Linda Finch, Esq., for the General Counsel.
Curtis L. Cornett, Esq. (Cors & Bassett, LLC), of Cincinnati,
Ohio, for the Respondent.
Pete Eversole, of Bethel, Ohio, for the Union.

1 Although it appears that an employee who has substituted for an-
other employee by trading time may accumulate, as a byproduct of the
trade or trades, additional hours of work that could require the payment
of overtime pay, this result is incidental to the “trading time” schedul-
ing policy. Indeed, the employee initiating the trade for her own con-
venience likely will have reduced the hours worked, making overtime
pay even less likely.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMAN, Administrative Law Judge. This case
was tried on September 10, 2002, in Cincinnati, Ohio, upon a
complaint dated March 29, 2002, alleging that the Respondent
Caraustar Mill Group, Inc. d/b/a Cincinnati Paperboard, vio-
lated Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act), by unilaterally changing its policies without bar-
gaining with the Union. The underlying charge was filed by
the Union, Paper, Allied–Industrial, Chemical and Energy
Workers International Union, Local 50609, AFL–CIO, on
January 9, 2002, and amended on March 29, 2002.
Upon motion by the General Counsel, Case 9–CA–39244,
which had been consolidated with this case, was severed during
the hearing.
On consideration of the entire record, including my observa-
tion of the witnesses and after consideration of the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Caraustar Mill Group, Inc. d/b/a Cincinnati Paperboard (Em-
ployer or Company) with an office and place of business in
Cincinnati, Ohio, is engaged in the operation of a paper mill.
With sales and shipment of goods valued in excess of $50,000
directly to points outside the State of Ohio, the Respondent is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Cincinnati Paperboard is a paper mill, which converts waste
paper, such as newspaper, containers, and mixed waste into
saleable paper products. It operates on a 24 hour a day, seven
days a week schedule. Its general manager from April 1, 1997,
to September 9, 2001, was Matthew Sullivan. Since September
2001, Hayward Allan Hall has served as the general manager.
The Company has a long standing bargaining relationship
with the Union and operates pursuant to a collective-bargaining
agreement, effective from June 19, 1998, to June 19, 2003 (GC
Exh. 2).
The parties have been unable to resolve two issues, one deals
with the employees’ practice of “trading time” and the other
involves the Union’s in-plant office.
With respect to the former, the record shows that the Re-
spondent had for many years maintained a policy whereby an
employee was permitted to trade shifts with another employee.
Peter Eversole, an employee and president of Local 609, de-
scribed the policy as follows (Tr. 22):

The trading time policy was a means to let men get
some time off when they needed it, for whatever reason,
and they could have their relief come in early for them, or
stay over late for them, and that way they wouldn’t get an
occurrence under the Attendance Control Program.
CINCINNATI PAPERBOARD 1081
. . . .
We would fill out what we call a Trading Timesheet,
and I would say, for example, I would ask my relief if he
would come in two years early for me, and if he agreed to
it, the [sic] we both would sign a form and then turn it into
our foreman, and then our foreman would either okay it or
deny it, and that—that’s how we went about doing it.

The policy had been of concern to Matthew Sullivan, the
prior plant manager, because, in his words, “the attendance
control program was being completely circumvented” when
there was “no timeframe in which these swaps had to be ar-
ranged” (Tr. 205). He discussed the issue with the Union and
decided to change the existing policy in 1999 (Tr. 205–206):

So, my decision was to make the policy that shift swaps or
trading time had to be approved by management at least by
the end of, [sic] of that employee’s shift preceding the one
that he wanted to trade. So, in essence that was a 12-hour
timeframe.

The new general manager, Allan Hall, started his position on
September 10, 2001, and was soon confronted with the prob-
lems associated with the trading time policy. Not only did he
perceive that an attendance problem existed at the plant, but he
also became aware that the payroll clerk, Pam Alexander, had
difficulties keeping track of the shift changes. During a union
management meeting on October 16, 2001, Hall informed the
Union that he wanted to change the trading time policy to full
shifts. Eversole, speaking for the Union, responded that they
should “talk about it” and “work something out on it” (Tr. 30).
The matter was postponed until the next union management
meeting on November 13, 2001.
During the November union management meeting, Hall in-
formed the Union of two policy changes, one dealing with the
trading time, the other dealing with an in-plant office for the
Union, as recalled by Eversole as follows (Tr. 31):

The trading time policy to full shifts only. And, he told me at
that time it was because it was creating a big burden on Pam
Alexander, who was our payroll clerk, to keep track of every-
thing. And he also informed me that he wanted the Union to
vacate the Union office by the end of the month.
At that point, I—I asked Mr. Hall verbally to negotiate
the two items, and he told me he didn’t feel he had to ne-
gotiate. And, I pointed out to him that, you know, I
thought under NLRB Rules that they were mandatory ne-
gotiable items.

The Union reacted by making an oral and written request to
bargain, as reflected in the following excerpt of a letter, dated
Nov. 15, 2001, to Hall (GC Exh. 4):

On Tuesday November 13, 2001, during our monthly union
management meeting, you informed the union of two changes
that the company was going to implement immediately. 1.
The company is going to change the requirement for trading
time. i.e.: if an employee wishes to trade time with another
employee, it must be for the full shift. 2. The company has
told the union that they must vacate the union office. And the
union will not be permitted to have a union office on com-
pany propriety.
This union is hereby requesting to bargain on the two
above-mentioned changes.

The Respondent implemented the changes and so informed
the employees by memorandum dated November 29, 2001 (GC
Exh. 8):

Effective December 3, 2001, employees may trade shifts, in
whole shift increments only, provided that prior approval by
management has been obtained to insure qualification and re-
sponsibility of coverage. The Schedule Change Request
Form must be authorized by management at least 48 hours be-
fore the beginning of the affected shift.
Employees following this procedure will not be charged for
an occasion in the mill attendance program.

The Union repeated its request to bargain by letter of De-
cember 3, 2001 (GC Exh. 6).
The Respondent made a detailed written response, dated De-
cember 21, 2001. Relevant excerpts of the letter appear below
(GC Exh. 7):

In response to your letter of December 3, 2001, I be-
lieve it appropriate to once again state the Company’s po-
sition with respect to the shift-swapping and union office
issues. As I indicated to you in my November 27, 2001
letter, the Company is changing the shift-swapping policy
currently in place because the partial swapping of shifts
has created a significant clerical burden on the Company
and could potentially cause the Company problems with
respect to its obligations to comply with federal wage-hour
laws. Moreover, and as I also previously indicated to you,
the Company believes that the partial swapping of shifts is
being utilized as a means of circumventing the Attendance
Control Program.
For all of these reasons, combined with the fact that,
under Article XXIV, Section 2 of the Contract, the Com-
pany has the “sole responsibility” for “the operation of the
plant and direction of the work force,” including the right
to assign work, the Company has decided to change the
shift-swapping to prohibit the partial swapping of shifts.
We do not believe that we have any duty to bargain with
the union over this issue merely because we have tolerated
the practice of the partial swapping of shifts in the past and
reject the suggestion that this policy has somehow risen to
the level of a contractual right.
. . . .
With respect to your request to negotiate the Union Of-
fice issue, you will recall that when Mr. Sullivan allowed
the Union to take up residence in the present space ap-
proximately two years ago, this was on a non-precedent
setting basis and only while the space was available.
Currently, the space is needed to expand our test area
and allow for additional storage space and we have not
been able to find a suitable replacement office for the Un-
ion. Though the Company maintains that this is not a ne-
gotiable item, the Company is willing to pursue other
ideas the Union may have been regarding the Union office
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1082
and files, at a mutually agreeable time in the near future.
In the meantime, however, the Company requires that the
Union remove its files from the lab area by January 4,
2002.

As indicated in its letters, and its oral communications to the
Union, the Company implemented a change in the trading time
policy and, in response to the Company’s request, the Union
vacated the in-plant office.
The General Counsel argues that the two policy changes
must be considered mandatory subjects of bargaining, and that
the Respondent violated the Act by its refusal to bargain in
good faith with respect to both unilateral changes, the trading
time policy and the in-plant office. The Respondent argues that
the changes were clearly within the purview of the management
rights clause contained in the collective-bargaining agreement,
which operates as waiver by the Union of its bargaining rights.
Analysis
Trading Time
Neither party disputes the basic facts in this case, that for
many years the Respondent permitted its employees to trade
full and partial shifts. Indeed, the policy is the subject of a
proviso in the collective-bargaining agreement (GC Exh. 2).
The Respondent unilaterally changed and modified that policy
by prohibiting the trading of partial shifts. The Respondent had
notified the Union of its intention to change the policy but re-
peatedly rejected the Union’s requests to bargain. That the
trading time policy is a mandatory subject of bargaining is also
not seriously in dispute. The General Counsel, citing case law,
correctly submits that similar working conditions have been
considered mandatory subjects of bargaining in the past, and
that this policy is considered one as well. The Respondent has
not raised the issue, presumably because it seems clear that an
employee’s right to effectively change his or her working hours
go to the heart of an employee’s conditions of employment. I
accordingly agree that an employer who intends to effectuate
any changes in the existing trading time policy must first afford
the Union the opportunity to bargain in good faith.
The Respondent, however, argues that the Union had waived
its bargaining rights about the issue. Referring to several provi-
sions in the collective-bargaining agreement, the Respondent
insists that the policy change was clearly justified as a man-
agement decision for at least two reasons. First, the Company
had incurred a certain financial liability under the wage-hour
regulations to make up for past overtime earned by employees
as a result of the shift trading practice. It had to pay several
employees overtime pay due for a 2-year period as a result of a
grievance filed by union president, Peter Eversole. Second, the
Company’s payroll clerk, Pamela Alexander, was frequently
faced with the frequent and burdensome task of keeping track
of the shift changes where some employees traded as little as
half hour shifts and where several employees may have covered
one employee’s shift.
The General Counsel does not take issue with the Respon-
dent’s justifications for its policy changes, but argues that the
Respondent had a duty to bargain, and that the contractual pro-
visions relied upon by the Respondent are generally worded
management rights clauses, sometimes referred to as “zipper”
clauses, which cannot be construed as waivers of statutory bar-
gaining rights.
Article XXIV of the contract provides in part as follows (GC
Exh. 2):
ARTICLE XXIV-RESPONSIBILITIES
Section 2. The parties recognize that the operation of
the plant and the direction of the work force therein are the
sole responsibility of the Company, subject to the terms
and conditions of this Agreement and letters of under-
standing. Such responsibility includes among other
things:
(a) The right to discharge, discipline, demotes, layoff,
or suspend for just cause, subject to Article XXII of this
Agreement.
(b) The rights to hire, schedule, and assign work.
(c) The right to transfer, promote, demote, layoff or re-
call, subject to Article XX of this Agreement.
. . . .
Section 4. The Union recognizes the right of the
Company to make and put into effect changes in working
conditions. It is the policy of the Company to keep the
Union advised as to major working condition changes,
which it puts into effect in the plant from time to time.
Such major working condition changes are those, which
deal with elimination of jobs, creation of new jobs, and
substantial changes in existing job requirements. When
such major working condition changes occur, the parties
agree to negotiate any changes that may be required in ex-
isting hourly base rates. If no agreement can be reached,
then such item may be submitted to arbitration in accor-
dance with the provisions of Article XIX.

It is well settled that the Board generally scrutinizes a man-
agement rights clause to assure that it properly and specifically
can be construed as a waiver for specific unilateral action. A
waiver will not be inferred lest the employer can demonstrate
that the union “clearly and unmistakenly” waived its right to
bargain over work rule, as for an example an attendance policy.
Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 698 (1983).
Management rights clauses, which are couched in general terms
and make no reference to the particular subject will not likely
be considered as waivers of statutory bargaining rights. John-
son-Bateman Co., 295 NLRB 180, 185 (1989), AK Steel Corp.,
324 NLRB 173 (1997).
The management rights clause at issue contains several pro-
visions, which go beyond a mere general proviso in at least two
respects. First, in addition to the Company’s right “to dis-
charge, discipline, demote, layoff, or suspend for just cause,”
the agreement recognizes “the right to hire, schedule, and as-
sign work.” The authority to schedule and assign work appears
to me sufficiently specific to include the right to make changes
in the employees` shift assignments including the right to make
changes in the trading of shifts policy. Second, according to
the agreement, the “Union recognizes the right of the Company
to make and put into effect changes in working conditions” and
requires the Company to advise the Union and negotiate any
changes when “major working conditions” are involved,
CINCINNATI PAPERBOARD 1083
namely “those which deal with elimination of jobs, creation of
new jobs, and substantial changes in existing job require-
ments.” I believe that a change in the trading time policy can-
not be construed as a substantial change in existing job re-
quirements. Stated differently, a change in policy, permitting
the employees` to trade only full or complete shifts, rather than
partial and full shifts, can hardly be defined as a major working
condition or a substantial change. Finally, I also find that an
interpretation of the two contractual provisions, quoted above,
appears entirely consistent in their intent to exclude this policy
change from the Company’s bargaining obligation. I find that
the Union waived its right to bargain over this issue and I ac-
cordingly dismiss this allegation in the complaint. United
Technologies Corp., 287 NLRB 198 (1987), enfd. 884 F.2d
1569 (2d Cir. 1989). See Dorsey Trailers, Inc., 327 NLRB 835
(1999).
The In-Plant Office
In late 1999, when Eversole became union president, he
asked former general manager Sullivan to use a vacant room in
the plant as an office. Sullivan agreed, provided that the space
would not become a hangout for employees. Since May 2000,
the Union has used the room as an in-plant office. At a union-
management meeting in September 2000, the Respondent noti-
fied the Union that it had to vacate the office, because the space
was needed by the Company to store testing equipment. The
parties discussed several alternatives, including providing the
Union with additional lockers in another part of the building.
In its written response of November 27, 2001, Hall advised the
Union that the space was provided “on a non-precedent basis
for as long as the office space was available,” but that the space
was now needed by the Company. The letter also stated that if
the Union were willing to pay the costs for an office, the Com-
pany would be willing to discuss and negotiate such a proposal
(GC Exh. 5). In a subsequent letter, dated December 21, 2001,
the Company reiterated its willingness “to pursue other ideas
the Union may have regarding the Union office and files,” but
also stated “that this was not a negotiable item,” and requested
“that the Union remove its files from the lab area by January 4,
2002.” Although the Union had requested to bargain, it vacated
the office on January 4, 2002.
The General Counsel submits that the use of an in-plant of-
fice by the Union is considered a mandatory subject of bargain-
ing, and that the Respondent’s unilateral action violated the
Act, citing American Ship Building Co., 226 NLRB 788 (1976),
and BASF Wyandotte Corp., 274 NLRB 978 (1985). The Re-
spondent, argues that the Union used the office for only 18
months, that the Respondent had permitted its use by the Union
on a conditional bases and that it was not provided to the Union
pursuant to any collective bargaining.
In American Ship Building, supra, the Board held that the
Respondent was not under an obligation to bargain with respect
to the movement of the union office, because the company’s
actions were not made unilaterally. There, as here, the com-
pany had given notice to the union of its intentions, meetings
were held during which the company explained its reasons,
alternate sites were discussed, and months passed before any
action was taken. The General Counsel, in an effort to distin-
guish that case from the case at bar, observed that, here, the
Respondent rejected the Union’s request for alternate spaces
and only offered storage space for the filing cabinet. However,
the record shows that the Respondent was willing to discuss
other alternatives. I find the scenario in this case to be suffi-
ciently similar to the one in American Ship Building, supra, and
I conclude that the Respondent actions did not violate the Act,
after considering the following significant factors in this case.
First, I found not a scintilla of evidence in the record of anti-
union animus by the Employer. Second, the Company origi-
nally provided the space to the Union in a manner comparable
to the granting of a favor or a privilege rather than by negotia-
tion or by any other means. It seems that such a privilege can
be taken away in the same fashion without going through the
bargaining process, otherwise an employer may think twice
before agreeing to a similar union request in the future. Finally
the Union has not demonstrated that its loss of the particular in-
plant office adversely affected or interfered with the employ-
ees` major working conditions. According to the management
rights clause, the union waived its bargaining rights.
CONCLUSIONS OF LAW
1. The Respondent, Caraustar Mill Group, Inc. d/b/a Cincin-
nati Paper Board, is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
On the basis of the foregoing findings of fact, conclusions of
law, and the entire record, I issue the following recommended1
ORDER
The complaint is dismissed in its entirety.

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.