Georgia Pacific Corp.

National Labor Relations Board - Board Decisions

Apr 10, 1985

275 N.L.R.B. 67 (N.L.R.B. 1985)

GEORGIA PACIFIC CORP. 67
Georgia Pacific Corporation and Oil, Chemical &
Atomic Workers International Union, AFL-
CIO. Case 17-CA-12115
10 April 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 12 September 1984 Administrative Law
Judge James L. Rose issued the attached decision.
The Respondent filed, exceptions and a supporting
brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.I
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Georgia Pacific Corporation, Blue
Rapids, Kansas, its officers, agents , successors, and
assigns , shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 2(a).
"(a) Forthwith reduce to writing and execute a
memorandum of understanding setting forth the
full agreement reached with the Union concerning
implementation of a four-shift operation in the wall
board plant."
2. Substitute the attached notice for that of the
administrative law judge.
' To remedy the Respondent's unlawful refusal to execute the agree-
ment reached between the parties concerning implementation of a four-
shift operation in the wall board plant, the judge ordered the Respondent
to sign the document provided to the Union on 20 February 1984 titled
"Wallboard Operating Schedule " This document, however, appears to
be a statement of the shift schedule itself rather than a memorandum of
understanding setting forth the full agreement of the parties. Therefore,
we shall modify the recommended Order and notice to require the Re-
spondent to reduce to writing and excute a memorandum of understand-
ing encompassing the parties' full agreement concerning the fourth shift
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Oil, Chemi-
cal & Atomic Workers, International Union, AFL-
CIO, by refusing to sign any agreements negotiated
between us and that Union involving modifications
of our collective-bargaining agreement with that
Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL forthwith reduce to writing and exe-
cute a memorandum of understanding setting forth
the full agreement reached with the Union con-
cerning implementation of a four-shift operation in
the wall board plant.
GEORGIA PACIFIC CORPORATION
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This
matter was teed before me on July 12, 1984, at Manhat-
tan, Kansas, on the General Counsel's complaint which
alleges that the Respondent violated Section 8(a)(5) of
the National Labor Relations Act by failing and refusing
to execute a memorandum agreed to between the parties
relating to the Respondent's implementation of a four-
shift operation among some bargaining unit employees.
The Respondent generally denied that it has commit-
ted any unfair labor practices and affirmatively contends
that it has a right under the collective-bargaining agree-
ment to set shift schedules. Therefore, implementation of
a fourth shift was not something about which the Re-
spondent was obligated to bargain during the term of the
agreement and it was therefore not obligated to execute
any memorandum concerning the method by which the
four shifts would operate.
On the record as a whole, including my observation of
the witnesses, briefs and arguments of counsel, I make
the following
FINDINGS OF FACTS AND CONCLUSIONS OF LAW
1. JURISDICTION
The Respondent is a corporation engaged in various
aspects of producing materials for the building industry
including the mining of gypsum and the manufacture,
distribution, and nonretail sale of drywall material at var-
ious facilities throughout the United States including one
located at Blue Rapids, Kansas. During the course and
conduct of its business within the State of Kansas, the
Respondent annually purchases goods and services
valued in excess of $50,000 directly from sources outside
the State of Kansas and annually delivers directly to
points outside the State of Kansas finished products
valued in excess of $50,000. The Respondent admits, and
I find, that it is an employer engaged in interstate com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
275 NLRB No. 17
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers International
Union , AFL-CIO (the Union) is admitted to be, and I
find is, a labor organization within the meaning of Sec-
tion 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The facts involved here are for the most part undis-
puted. In summary, for many years the Union has repre-
sented a unit of the Respondent's production and mainte-
nance employees at the Blue Rapids facility and has ne-
gotiated a series of collective-bargaining agreements with
the Respondent on behalf of them (who apparently com-
promise Local Union No. 5-571).
The 1981-1983 agreement became effective on Sep-
tember 1, 1981, and was due to expire September 1, 1983.
On August 29, 30, and 31, 1983, representatives of the
parties met to negotiate a successor agreement. At the
time of their first meeting, the Respondent was operating
three 8-hour shifts each day, generally 7 days a week.
Because this heavy workloau was adversely affecting
employee morale and was causing absenteeism , the Re-
spondent wanted a four-shift operation which would
guarantee each employee some days off each month.
Thus in its August 11 submission of an agenda to the
Union, the Respondent proposed: "4. Resolve agreement
language to allow a four shift wallboard machine oper-
ation."
At the August 29 bargaining session this matter of four
shifts was discussed. However, the Union contended that
it had insufficient time to consider the various aspects in-
volved and did not want to have such included in the
new contract. Thus, on August 30, Jack Rauch, the plant
manager , gave the Union the following:
LETTER OF INTENT
August 30, 1983
Subject: Four Shift Operation
In consideration of a four shift operation at the
Blue Rapids plant, it is the intent of the Company
to meet with the Union Committee and work out
the administrative details for implementing four
shifts.
It is understood that the Union Committee will
cooperate to the extent necessary to resolve prob-
lems of a four shift operation.
It is also understood that four shifts will only be
implemented if the majority of the people affected
wish to do so.
The parties then met again on August 31 and conclud-
ed a new collective-bargaining agreement which became
effective on September 1, 1983, until September 1, 1985.
In early September the Respondent did in fact imple-
ment a fourth shift for its supervisors and some time
thereafter Lawrence Bach, the Union's local president,
canvassed employees in the wallboard department. They
agreed by a vote of 21 to 3 to pursue such for them-
selves.
On November 3 union representatives and the Compa-
ny met to discuss a four-shift operation. The Company
presented a proposal as to how this would work to
which the Union objected on grounds that such would
have the effect of reducing the amount of overtime pay.
Finally, the Company proposed a plan the effect of
which each employee works 7 days and then has 2 days
off. Each 7-day grouping is assigned one of the three
normal shifts. The cycle is completed in 4 weeks, during
which each employee gets 3 time-and-a-half days and 3
double time days and 6 days off. (Under the contract
time-and-a-half is paid for the sixth consecutive day of a
"regular scheduled work week" and double time for the
seventh.)
At a union meeting on November 8, the employees
agreed to this proposal and on November 9, Bach so in-
formed Plant Manager Rauch. Then, and on at least two
occasions thereafter, Bach contends that Rauch told him
that he would get the schedule written as a memoran-
dum agreement to be signed by the parties. While Rauch
denies stating that he would draw such an agreement,
there is no doubt that effective January 23, 1984, the
Company did in fact implement the four-shift schedule.
And on February 20, the Company did submit to the
Union, along with three other documents which were to
be signed as memoranda of agreement, the "Wallboard
Operating Schedule" which the parties had previously
discussed and which had been implemented.
On February 20 Bach asked Rauch to make the sched-
ule a memorandum of agreement to be executed. Rauch
refused to do so on grounds that he had the management
right to set shift schedules and would not therefore agree
to execute a memorandum concerning this matter. There
were subsequent discussions between representatives of
the Union and representatives both of local management
and individuals from the Company's headquarters in At-
lanta . The Union contended there had been an agreement
concerning the four-shift operating schedule which the
Company was bound to execute as an agreement. The
Respondent has steadfastly refused to do so because, it
contends, it has the right to set shift schedules and there-
fore going to a four-shift operation was neither some-
thing over which it had a duty to bargain with the
Union nor otherwise violative of the Act.
B. Analysis and Concluding Findings
The General Counsel argues, in brief, that implement-
ing a four-shift operation is a mandatory subject of bar-
gaining which was proposed by the Respondent during
the 1983 negotiations but passed when the Union felt it
did not have sufficient time to analyze the proposal. Sub-
sequently, the parties did negotiate concerning imple-
mentation of four shifts and reached an agreement which
was implemented on January 23. However, the Respond-
ent has refused the Union's demand to reduce the four-
shift schedule to an executed agreement.
The Respondent contends that under the management-
rights clause of existing (and previous) collective-bar-
gaining agreements it may set work schedules. Therefore
discussion of various four-shift plans with union repre-
sentatives was mere courtesy based in the parties amica-
GEORGIA PACIFIC CORP 69
ble bargaining relationship The Respondent argues it
was not required to negotiate with the Union nor did it
do so.
There can be little doubt that the matter of shifts is a
mandatory subject of bargaining. As the Supreme Court
said in Meat Cutters Local Union 189 v. Jewell Tea Co.,
381 U.S. 676, 691 (1965):
[W]e think that the particular hours of the day and
the particular days of the week during which em-
ployees shall be required to work are subjects well
within the realm of "wages, hours, and other terms
and conditions of employment" about which em-
ployers and unions must bargain. National Labor
Relations Act, § 8(d) .. . .
The Respondent does not seriously contend that shifts
are not a mandatory subject of bargaining but argues,
rather, that the Union has waived its right to bargain
over changes in shifts by agreeing to the management-
rights clause in the collective-bargaining agreement. I
disagree.
First, the Board will not find such a waiver absent
"clear and unmistakable" language. Or, as the Board said
in Hearst Corp., 151 NLRB 834 (1964), it "will not find
that contract terms of themselves confer on the employer
a management nght to take unilateral action on a manda-
tory subject of bargaining unless the contract expressly
or by necessary implication confers such a right."
The Respondent relies on S-B Mfg. Co., 270 NLRB
485 (1984), where the management-rights clause specifi-
cally reserved to the company the right to "determine
the number of employees, the number of hours, and the
schedules of employment." However, here the manage-
ment-rights clause is not so specific, reading in its entire-
ty*
The Company has and will retain the unquestion-
able and exclusive right and power to manage the
plant and direct the working forces, including the
right to hire, suspend, discharge, promote, or trans-
fer its employees, providing that such power vested
in the Company shall not be used in violation of the
terms of this agreement.
Under this management-rights clause, in its broadest
construction, the Company has the right to set work
schedules and shifts where such does not conflict with
other specific provisions of the agreement. Thus, for in-
stance, the Respondent probably could change the 7 a.m.
to 3 p.m. shift to start at 8 a.m.
However the four-shift operation as implemented in-
volves a more fundamental change. The four-shift sched-
ule clearly conflicts at least with the workweek provi-
sions of article XI and potentially conflicts with the
overtime provisions as well. And in any event, it is a
change from the past practice.
Article XI states, inter alia, that "[t]he normal work
week for each employee shall consist of five (5) days of
eight (8) hours each. This shall not be construed to re-
strict the number of days a week or the number of hours
a day that the Company may operate at the plant. The
work week shall begin on Monday at 7:00 a.m. for ac-
counting purposes."
The four-shift schedule changes the workweek for two
of the three crews each week. Thus if crew three begins
on Monday, crew two begins on Wednesday, and crew
one on Friday.
A possible construction of the seniority clause (art. IV)
along with subparagraph (d) of article XI(2) is that the
Company may not schedule overtime for employees
junior to those who are off. By scheduling the crews in
four shifts, the 6 and 7 days are overtime days and some
employees would be working those overtime hours at a
time when senior employees would not be scheduled to
work.
At the time of the hearing, while the Company was
still operating under the four-shift schedule, inasmuch as
business had dropped off substantially, the plant was not
running 7 days a week every week. Indeed, some weeks
it would operate only 5 days while other weeks it would
operate 6. The effect of this was that some employees
were receiving more hours and thus more overtime than
other employees. As Rauch testified, "[T]he schedule
was designed for us to be oversold, and we are now un-
dersold " Thus, the four-shift schedule resulted in some
employees having more days off than others and poten-
tially, at least, junior employees were getting overtime
that senior employees would be entitled to under the col-
lective-bargaining agreement (assuming the Union's not
unreasonable interpretation is correct that overtime must
be allocated according to seniority).
In any event, creation of a four-shift schedule was
more than simply adding a shift or changing hours. The
four-shift operation was a fundamental change in the
workweek for all employees in the wallboard depart-
ment. Traditionally the Company had operated three
shifts a day, 7 days a week. Creation of a four-shift
schedule changed this, to the benefit of both the Compa-
ny and the employees. The Company gets more stability
and improved morale (or so it was hoped) and the em-
ployees get days off without sacrificing all premium
days.
And the Company must necessarily have understood
that working three crews in four shifts would run afoul
of some provisions of the collective-bargaining agree-
ment because in the agenda it submitted to the Union on
August 11 it specifically proposed to "[r]esolve agree-
ment language to allow four shift wallboard machine op-
erations."
When the Union claimed it did not have sufficient time
to analyze the Company's plan Rauch gave the Union a
letter of intent in which he stated that "it is the intent of
the Company to meet with the Union Committee and
work out the administrative details for implementing four
shifts." Again the Company must necessarily have under-
stood that it would have to reach some kind of an agree-
ment with the Union amending provisions of the collec-
tive-bargaining agreement if a four-shift operation was to
be implemented.
Indeed, representatives of the Company and the Union
met and worked out the particular four-shift plan now in
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
place and this was favorably voted on by a majority of
the employees affected. Then the plan was implemented.
From these facts I cannot conclude a "clear and un-
mistakable" waiver by the Union to bargain about the
matter or that the Company could implement such a
change unilaterally. To the contrary, part consideration,
at least, for the Union's agreement to the contract, and
the management-rights clause, was the Company's letter
of intent. The parties would agree to the administrative
details prior to implementation of the four-shift plan; and
in no case would the four-shift operation go into effect
without the agreement of "the majority of the people af-
fected."
Without resolving, the conflict between Bach and
Rauch concerning whether Rauch actually stated that
the Company would execute a memorandum of agree-
ment concerning the four-shift operation, it is clear from
the Company's acts that it intended to negotiate imple-
mentation of a four-shift operation. In fact the record es-
tablishes that the Company and the Union negotiated
concerning the four-shift operation (one proposed four-
shift schedule was rejected by the Union on grounds that
it did not provide for enough overtime) and the schedule
finally adopted by the Company was agreed to by the
Union and ratified by a majority of the employees before
it was put in place.
It is settled that where the parties have reached agree-
ment on a mandatory subject of bargaining, Section 8(d)
requires "the execution of a written contract incorporat-
ing any agreement reached if requested by either party "
Further, there is no question that on numerous occasions
the Union did in fact request the Company to execute as
a memorandum of agreement the four-shift schedule.
The fact that the Company and the Union have in the
past occasionally agreed to make ad hoc changes in the
collective-bargaining agreement (for instance changing
the Good Friday holiday to Easter Sunday) does not
make lawful the Company's refusal to execute the agree-
ment in this case. In effect the Respondent argues the
Union has waived by past practice its right to have an
executed contract of its agreement with the Company.
Without concerning whether such a fundamental right
under the Act can be waived by the Union, suffice it that
for a waiver to exist, it must be "clear and unmistakable"
and there is no evidence brought forth by the Company
that the Union waived its right to have the four-shift
agreement executed. I therefore conclude that the Re-
spondent breached its duty under Section 8(a)(5) of the
Act in failing and refusing to execute the memorandum
submitted by the Company to the Union on February 20,
1984, concerning the wallboard operating schedule. I
will recommend an appropriate remedy including execu-
tion by the Company of the wallboard operating sched-
ule.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The unfair labor practice found above occurring in
connection with Respondent's operations has a close, in-
timate, and substantial relationship to trade, traffic, and
commerce among the several States and tends to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof within the meaning of Section 2(6)
and (7) of the Act.
V. THE REMEDY
Having found that the Respondent has engaged in the
unfair labor practice, I shall recommend that it cease and
desist therefrom and take certain affirmative action nec-
essary to effectuate the policies of the Act The Re-
spondent will be ordered immediately to sign the agree-
ment reached with the Union concerning the four-shift
operation it implemented on January 23, 1984.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Georgia Pacific Corporation, Blue
Rapids, Kansas, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing or refusing to sign and give full effect to
any agreements negotiated between it and the Union
concerning midterm modifications of the existing collec-
tive-bargaining agreement between the parties, including
the operation of four shifts in the wallboard plant.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Forthwith sign and continue to give effect to the
agreement between the parties implemented on January
23 and reduced to writing on February 20, 1984, con-
cerning implementation of the four-shift operation in the
wallboard plant.
(b) Post at its place of business in Blue Rapids, Kansas,
copies of the attached notice marked "Appendix."2
Copies of the notice, on forms provided by the Regional
Director for Region 17, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
I 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.
2 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "