Merillat Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 784 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Merillat Industries, Inc. and Local 2037, United
Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Cases 7-CA-15854-1, and
7-CA-16087
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING ANt) MIMBERS
JENKINS AND PENFI. ItO
On April 8, 1980, Administrative Law Judge Ste-
phen Gross issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief, and Respondent
filed cross-exceptions and a supporting brief, and a
response to Charging Party's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
i In the absence of exceptions, we adopt, pro forma., the Administrative
Law Judge's finding that Respondent did nrot violate Sec 8(a)(5) of the
Act by barring Union Presidenlt Richard I.ong from admittance to the
industrial relations committee meeting held on Respondent's premises.
DECISION
STATEMEN OF: THE CASE
STEPH-N GROSS, Administrative Law Judge: Merillat
Industries, Inc., hereafter Merillat or the Company, man-
ufactures kitchen cabinets at a plant in Adrian, Michigan.
Merillat's production and maintenance employees are
represented by Local 2037, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, hereafter the
Union or Local 2037.
On December 11, 1978, the Union charged that: (1)
Merillat refused to permit the union president to attend a
grievance meeting between three Merillat stewards and
the Company's management; and (2) Merillat unilaterally
imposed new rules on absenteeism and tardiness without
bargaining with the Union about them.'
The charges formed the basis of a complaint issued on
January 15, 1979, by the Regional Director for Region 7.
m Hereafter the rules will be termed absentee rules or the new rules
The complaint alleged that Merillat had violated Section
8(a)(1) and (5) of the Act.
On February 20, 1979, Local 2037 filed a third charge,
claiming that two Merillat employees had been dis-
charged by reason of the unlawfully adopted absentee
rules. On March 21, 1979, the complaint was amended
and a consolidation order issued to take account of the
new charge.
Merillat's answer admitted the jurisdicational allega-
tions of the complaint. But the Company denied any
wrongdoing. I heard the case in Adrian, Michigan, on
September 27, 1979. Merillat and Local 2037 filed briefs.
The General Counsel did not.
I. MERII.I.AAT'S A)OPTION OF NE.W ABSIENIF RULES
Merillat's employees receive a "production bonus"
along with their hourly wages. The bonus, which is
based on each employee's production level per hour,
climbed to over 80 cents an hour early in 1978. But then
it dropped precipitously falling into the low 30 cents an
hour by April 1978.
Both the Union and Merillat's management were un-
derstandably concerned about the decline. And in April
the chief steward at Merillat, Robert Burns, asked to
meet with company officials about the matter.
The exact sequence of union-company meetings on the
subject is unclear. There may have been an initial meet-
ing on the subject between Burns and Robert Meyers,
Merillat's head of industrial relations. In any event, in
mid-April a contingent of six union stewards, including
Burns, met with Meyers and two other Merillat officials.
At the meeting Meyers presented the Company's view
that high absenteeism rates were at least partially respon-
sible for the drop in production and, therefore, in the
production bonus. The stewards agreed that absenteeism
was a problem and Meyers asked for any recommenda-
tions the Union might have on the subject. But no union
representative made any suggestion then. Later Burns
told at least one steward to refrain from making any rec-
ommendations on the ground that absenteeism was "the
Company's problem, not ours."
Another meeting between the stewards and Merillat
officials, or perhaps two, followed in April rehashing the
related concerns of decreases in production bonuses and
high absenteeism. Then, in middle or late May, Meyers
called Burns into his office to discuss a new absentee
policy that Meyers said the Company was thinking of
putting into effect. The Company's then existing absentee
rules, hereafter the old rules, had been adopted about 3
years earlier, were not an explicit part of the Merillat-
Union collective-bargaining agreement, and had been
only loosely enforced.2 Meyers' proposal was more rig-
orous in at least some respects than the old rules-even
if the old rules were to be fully enforced. And implemen-
tation of the proposal could, and later did, result in the
dismissal of employees who would not have been liable
for discharge under the old rules.
Burns discussed various aspects of Meyers' proposal
with Meyers and another company officer present at the
2 See Resp. Exhs. 3 and 4.
252 NLRB No. 114
784
MERILLAT INDUSTRIES, INC.
meeting. Then, either at that meeting or at another later
in May, Burns focused on the extent to which the new
absentee rules would be retroactive. If they were fully
retroactive, an employee not subject to discharge under
the old rules could become eligible for discharge because
of excessive absenteeism or tardiness the moment the
new rules were put into effect. Burns suggested a modifi-
cation in this respect. Burns did not otherwise object or
demand bargaining on the subject. About June 5 the
Company told Burns that it had accepted Burns' pro-
posed modification.
The last discussion of the new absentee-rules took
place on June 13. Meyers and two other company offi-
cers met with all seven stewards. Meyers gave the stew-
ards copies of an absentee policy that was wholly, or at
least largely, a reflection of the proposed policy that
Meyers had previously discussed with Burns, including
the modification proposed by Burns.' Meyers said that
the Company was going to put it into effect on June 20.
The Company did not suggest that the new rules were
subject to negotiation and the "Dear Employee" letter
that was one of the documents given to the stewards
suggested that the Company considered the matter one
for determination solely by the Company. 4 and I credit
Burns' recollection that a Merillat representative said
that the Company had the right to impose the new rules
unilaterally under the management rights provision of
the collective-bargaining agreement.5 The stewards, on
their part, did not object, did not suggest any changes,
and did not propose bargaining.
The Company did put the new absentee policy into
effect on June 20, 1978.6 The rules' implementation did
not trigger any response from the Union for at least 4
months. And while Burns' testimony on the subject is
somewhat ambiguous, it does not appear that his failure
to file any grievance about the matter in that time
stemmed from the Company's claim that the manage-
ment rights clause of the contract gave the Company the
right to implement the rules unilaterally.7
Then, in November and December, two employees
were fired for absenteeism. At that point the rules
become the subject of grievances by the Union. The
Company held fast to its adoption of the new rules and,
rather than arbitrate the matter, the Union filed the
charges that led to this proceeding.8
Analysis
Absentee rules affecting employment tenure are a man-
datory subject of bargaining: e.g., Southern Florida Hotel
& Motel Association, 245 NLRB No. 49 (1979). Merillat's
new rules did affect employment tenure. And, as the
Company agrees, the rules accordingly could not proper-
a See G.C Exhs. 5 and 6.
4 See G.C Exh 6.
' I do not credit Burns' statement that the Company said that the rules
were not negotiable The management rights clause is par 50 of the col-
lective-hargaining agreement (G C Eh 2: see fn 8. infru)
' The new rules as implemented were identical to the rules given to
the stewards on June 13.
i See transcript p 61-62 compare transcript p 60
The employee fired in November would have been subject to dis-
charge under the old policy (had that policN been riglorously enforced).
The employee fired in December sould nlt hase been
ly be unilaterally implemented absent waiver by the
Union of its right to bargain about them.
A. The Company Did Not Bargain
The Company never asked Local 2037 to bargain
about the new rules. Merillat's communications about the
rules, before and after recommendations on what to do
about the problem, was fully advised in advance of the
nature of the proposed rules, did make one suggested
change that was accepted by the Company, and was
given advance copies of the rules. But none of that was
equivalent to the Company telling the Union that it
wished to implement new absentee rules and that it was
ready to bargain about the matter.
B. The Management Rights Clause
The Act does not preclude unions from contractually
waiving their rights to bargain about matters such as ab-
sentee policies: e.g., Southern Florida Hotel & Motel Asso-
ciation, supra. The Company argues that the Union did
so in agreeing to the management rights clause in the
then effective collective-bargaining agreement.9
But there must have been a "clear relinquishment" by
the Union of its right to bargain about a new set of ab-
sentee rules affecting employee tenure for the Board to
find that the Union contractually waived that right: Rose
Arbor Manor, 242 NLRB 795 (1979); Southern Florida
Hotel & Motel Association, supra. And here neither the
wording of the clause itself, nor any other evidence, sug-
gests that by agreeing to the management rights clause of
the contract the Union waived its right to bargain about
new absentee rules.
C. Implications of the Union's Response
In sum, the new absentee rules were a mandatory sub-
ject of bargaining, the Company did not offer to bargain
about them and, in fact, suggested to union representa-
tives that it did not have to, and the Union did not con-
tractually waive its right to bargain about them. But
under the circumstances present here, that does not mean
that the Company violated the Act when it implemented
the new rules.
The Company advised the stewards long in advance
that it was concerned about absenteeism, wanted to do
something about the problem, and was eager for recom-
mendations. Burns, the chief steward and a participant in
past bargaining with the Company, deliberately opted to
let Merillat figure out a method of dealing with absentees
without Union input. Subsequently, and still several
weeks prior to the Company's adoption of the new rules,
Burns was advised of their nature and then proposed a
change that was accepted by the Company. Finally, 1
week prior to the rules' implementation all of the stew-
ards were given copies of the rules. At no time prior to
the rules' implementation did the Union request bargain-
ing, dispute the Company's claim that the Company
, Ihe clause provides that: "The Union recognizes that the Company
has the exclusive right to hire and fire and to direct the affairs of the
Company and to, determine its business operations and policies in accord-
anlce ith Ihe terms of this Agreemenl G C txh 2. par. 50
785
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could unilaterally adopt the rules, or object to the rules'
adoption. And even after the rules' implementation, the
Union did not file any grievance on the subject until
over 4 months had passed.' ° By failing to take any such
action in timely fashion the Union lost its right to object
to Merillat's actions. As the Board has stated:
Established Board precedent requires a union that
has notice of an employer's change in a term or
condition of employment to timely request bargain-
ing in order to preserve its right to bargain on that
subject. City Hospital of East Liverpool, 234 NLRB
58, 59 (1978).]"
D. The Zipper Clause
Paragraph 52 of the collective-bargaining agreement
reads:
The Company and the Union agree that both sides
have been free to bring up all demands and no ne-
gotiations shall be requested on any matters wheth-
er covered in this Agreement or not, during the
term of this Agreement.
Arguably that clause makes it improper for the Company
to make any change during the term of the contract in
any matter that is a mandatory subject of bargaining
absent acquiescence by the Union. In any case, it clearly
does not permit Merillat to avoid bargaining over the im-
plementation of new absentee rules that it seeks to adopt.
(See N.L.R.B. v. C & C Plywood Corp., 385 U.S. 421
(1967).) But the Union did not refer to this clause in dis-
cussing the new rules with Merillat and, as discussed ear-
lier, did not object in any manner to the implementation
of the new rules until over four months after their adop-
tion. Accordingly, the contract's zipper clause would not
appear to strengthen the Union's position here. 12
II. ATTENDANCE OF THE PRESIDENT OF LOCAL 2037
AT A MERILIAT INDUSTRIAL RELATIONS COMMITTEE
MEETING
A. The Facts
Sections 29 and 30 of the Merillat-Local 2037 collec-
tive-bargaining agreement provide that grievances shall
be considered by an industrial relations committee,
herein the committee, made up of three members of man-
agement, on the one hand, and, on the other, "the Chief
Steward and two. .... Regular Stewards."
The stewards asked the president of Local 2037, Rich-
ard Long, to sit in on a committee meeting scheduled for
July 26, 1978, in order to "advise and Counsel" them.
Long was not a Merillat steward, never had been, and in
fact was not a Merillat employee. On the day of the
'0 There can be no doubt that the Union had notice of the change:
stewards are union officers (see, e.g., Midwest Precision Castings, 244
NLRB (1979)); the collective-bargaining agreement does not provide for
any specific form of notice to the Union; and Burns testified that he
talked "to the Local about the policy that was handed out."
" Accord: Citizens National Bank of Willmar. 245 NLRB No. 47
(1979); Austin-Berryhill, Inc., 246 NLRB No. 160 (1979).
12 The issue was not litigated Respondent's brief refers to the zipper
clause, but as support for the Company's position. The Union's brief does
not touch on the issue.
meeting, Long showed up at the Company's office. That
was the first time in at least 19 years that the Union
sought to have present at a committee meeting anyone
but the three stewards.
Merillat's industrial relations officer, Robert Meyers,
refused to permit Long to attend the meeting and
claimed that by seekinq to be present Long was "not
abiding by the contract." Meyers did agree to talk to
Long about the grievance at issue, but not during the
committee meeting. And Meyers later advised the Union
that he had no objection to Long remaining on the Com-
pany's premises during committee meetings so that the
stewards could consult with him from time to time as
long as he was not in the meeting room. (See G.C. Exh.
9.) Long told Meyers that he recognized that he could
not act as a member of the committee but that he was
entitled to serve as an advisor to the stewards at the
committee meeting. Meyers, however, insisted that Long
was not entitled to attend the meeting and prevented him
from doing so.
B. Analysis
A union has the right to determine who its representa-
tives are to be at a grievance meeting with an employer.
But a union may contract away its freedom to choose its
representatives by specifying, in a collective-bargaining
agreement, who they are to be: see Native Textiles, 246
NLRB No. 38 (1979). Local 2037 did that. Long was not
one of the persons designated in the agreement as a com-
mittee member and, accordingly, it is clear that Merillat
could properly insist that Long not act as a representa-
tive of the Union at the committee meetings.
But Long did not seek to act as a union representative
at a committee meeting. Rather, he sought to attend one
only in order to advise the persons who were the
Union's representatives. The Merillat-Local 2037 con-
tract is silent about whether the committee representa-
tives of either the Company or the Union may have ad-
visors present at grievance meetings. And neither party
has pointed to any controlling case law.' 3
The issue is a narrow one, particularly since there is
little doubt that parties to collective-bargaining agree-
ments may by specific contractual language determine
for themselves whether they want to allow representa-
tives to management-labor meetings to be able to bring
advisors. Nonetheless if it were clear which ruling, one
favoring the Company's position, or, one favoring the
Union's, would best promote the policies of the Act, that
position ought to be adopted here. But that is not at all
clear. And under the circumstances it seems best to focus
on the parties' past practices, since those past practices
represent the closest approximation of evidence of how
Merillat and Local 2037 would have intended the issue
here to be resolved had they thought about it during ne-
gotiations leading to their collective-bargaining agree-
ment. In that respect there is no dispute that for as long
I3 The Company points to a number of cases it considers pertinent.
But all such cases involve union officers who sought to participate direct-
ly in bargaining or grievance negotiations with the employer, rather than,
as here, attempted merely to act as an advisor to designated representa-
tlives.
786
MERILLAT INDUSTRIES, INC.
as anyone can remember-at least 14 years-the only
persons who have attended Merillat-Local 2037 industri-
al relations committee meetings have been the six per-
sons specified by the collective-bargaining agreement.
That being the case, my recommendation is that the
Board dismiss the complaint's allegation that Merillat
violated the Act when it refused to permit Long to
attend a meeting of the industrial relations committee.
CONCI USIONS OF LAW
1. Merillat did not violate the Act when it implement-
ed a new absentee policy since the Union had notice of
the proposed adoption of the new rules, had an opportu-
nity to discuss them in advance of their implementation,
proposed a change that Merillat adopted, and failed to
object in timely fashion to the rules' implementation or
request bargaining about them.
2. Merillat did not violate the Act when it refused to
permit Local 2037's president to attend, as an advisor to
the union representatives, a grievance meeting of the
Company's industrial relations committee, in view of the
collective-bargaining agreement's silence on the matter
and the long history of committee meetings being attend-
ed only by the persons specified in that agreement.
On the basis of the foregoing findings of fact. conclu-
sions of law, and upon the entire record in this case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 4
The complaint is dismissed in its entirety.
s In the event no exceptions are filed as provided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
787