Merrill & Ring, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1982

262 N.L.R.B. 392 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Merrill & Ring, Inc. and International Woodwork-
ers of America Local Union No. 3-90, affiliated
with International Woodworkers of America,
AFL-CIO, CLC. Case 19-CA-12762
June 23, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On October 27, 1981, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and the Charging Party, hereafter the Union, filed
exceptions and supporting briefs, and Respondent
filed a brief in support of the Administrative Law
Judge's Decision.
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,1 find-
ings, 2 and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The General Counsel and the Union have ex-
cepted to the Administrative Law Judge's dismissal
of the complaint allegations that Respondent violat-
ed Section 8(a)(5) and (1) of the Act on August 27,
1980,3 by unilaterally instituting a policy of having
day-shift employes report for work before jury
duty without affording the Union a reasonable op-
portunity to bargain. We find merit to these excep-
tions. 4
' At one point during the hearing, the Administrative Law Judge
asked Don Taylor, the Union's financial secretary-business agent, a series
of questions. When the Administrative Law. Judge asked Taylor what he
had told the Union's attorney about the unfair labor practice charge, the
Union's attorney objected claiming that the Administrative Law Judge's
question breached the attorney-client privilege. The Administrative Law
Judge overruled the objections stating that the attorney-client privilege
did not apply "at this point" and that if counsel persisted in her objection
he would craw an adverse inference.
We find merit to the Union's exception that in overruling its objection
the Administrative Law Judge abused his judicial authority and abrogat-
ed a clear application of the attomrney-client privilege. In view of our res-
olution of the case, however, the error was not prejudicial.
I The Union has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 118 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
3 Unless otherwise indicated, all dates refer to 1980.
' In finding merit to these exceptions, we find it unnecessary to consid-
er the General Counsel's and Union's alternative theory that Respondent
further violated Sec. 8(aX5) and (1) of the Act because its requirement
that day-shift employees report to work prior to reporting for jury duty
was a unilateral modification of the parties' collective-bargaining agree-
ment. Since our Order restores the status quo ante, we find that the pur-
pose of the Act will be better served by permitting the parties themselves
262 NLRB No. 39
As set forth more fully in the Administrative
Law Judge's Decision, the Union has represented
approximately 250 production and maintenance em-
ployees at Respondent's Port Angeles, Washington,
facility since 1955. Respondent and the Union have
been party to a number of collective-bargaining
agreements, and they have had a generally amica-
ble relationship. In the last two collective-bargain-
ing agreements (the current collective-bargaining
agreement effective from June 1, 1980, through
May 30, 1983, and the collective-bargaining agree-
ment covering the preceding 3 years), the clause
dealing with jury duty has remained unchanged
and reads as follows:
ARTICLE XX
JURY DUTY
A. Any regular employee who is required to
perform jury duty, including Grand Jury duty,
will be entitled to reimbursement at the
straight time hourly rate of his regular job, in-
cluding shift differential if assigned to swing or
graveyard shift for the hours necessarily lost
as a result of serving on the jury; provided,
however that such reimbursement shall not
exceed eight (8) hours per day or forty (40)
hours per week, less pay received for jury
duty. The employee will be required to furnish
a signed statement from a responsible officer
of the court as proof of jury service and jury
duty pay received.
B. Day shift mill employees will be required
to report for work if their jury service ends on
any day in time to permit at least four (4)
hours work in the balance of their regular
shift. Other shift employees will not be re-
quired to report for work on any day they
have performed jury service for more than
one-half day. Woods crew employees will re-
ceive jury pay for any day served in whole or
in part.
C. Hours paid for jury duty will be counted
as hours worked for the purpose of computing
vacation pay, health and welfare and pension
contributions and overtime.
D. The above provisions apply to employees
on days they are required to report for jury
duty, even though not selected to serve as jury
members.
There are two courts in Port Angeles, the
county superior court and the more recently cre-
ated county district court. Neither court required
to determine the meaning of their contract. Accordingly, we have ex-
pressly refused to consider or pass upon an interpretation of the parties'
collective-bargaining agreement.
392
MERRILL & RING, INC.
subpoenaed individuals to report for jury duty each
day. Instead, the courts utilized an "on call" status,
which requires the individual to report for service
on specified days. The reporting time for superior
court jurors is normally 9:15 a.m., and the report-
ing time for district court jurors is normally 10:15
a.m. Until July 1980, none of Respondent's employ-
ees had ever received a subpoena for jury duty
from the district court. However, first-shift em-
ployees have been subpoenaed for jury duty at su-
perior courts where they were expected at 9:15
a.m.
Due to the nature of their work, Respondent's
production and maintenance employees soil their
clothing. Since the first shift works from 7 a.m. to
3:30 p.m.,5 it would be necessary for a subpoenaed
employee to go home and change clothing prior to
reporting for jury duty. Accordingly, Respondent
has never required its first-shift employees to
report to work prior to reporting for jury duty.
In July 1980, first-shift employees Rondeau and
Blore received subpoenas from the district court
requiring them to serve as jurors during the up-
coming session of that court. On August 7, Ron-
deau and Blore reported for jury duty as instructed
at 10:15 a.m., and they were excused at approxi-
mately 11:30 a.m. In accordance with past practice,
neither employee worked prior to reporting for
jury duty, and pursuant to article XX(B) neither
employee reported for work following jury duty.
When Respondent discovered that the two first-
shift employees had served a little more than 1
hour of jury duty but were paid for a full 8 hours,
it sent the Union a letter on August 13, requesting
that article XX(B) of the contract be modified. Re-
spondent noted that the language of article XX(B)
had been written when the first shift worked an 8
a.m. to 4:30 p.m. schedule and that the change to a
7 a.m. to 3:30 p.m. schedule justified modifying
paragraph (B) of article XX. Respondent requested
that paragraph (B) be revised to read: "Day Shift
Mill employees will be required to report for work
if their jury service ends on any day in time to
permit at least two (2) hours work on the balance
of their regular shift."
Upon receipt of the letter, the Union phoned Re-
spondent Administrative Manager Remedios and
discussed Respondent's proposed contract change.
Respondent, however, did not mention changing its
past practice of not requiring first-shift employees
to report for work prior to reporting for jury duty,
and the parties did not discuss this issue. Thereaf-
ter, on August 15, the Union responded by letter to
Respondent and indicated that the short duration
' In May 1978, Respondent changed its work schedule for first-shift
employees from 8 a.m. to 4:30 p.m. to 7 a.m. to 3:30 p.m.
of jury duty on August 7 was a fluke and was un-
likely to happen again. In addition, the Union indi-
cated that it would not agree to Respondent's pro-
posed midterm modification of the contract. At no
point did either of the parties mention the possibil-
ity of Respondent changing its past practice of not
requiring first-shift employees to report for work
prior to reporting for jury service.
As found by the Administrative Law Judge,
however, sometime between August 15 and 27, Re-
spondent unilaterally changed its past practice and
decided that first-shift employees who were sub-
poenaed for jury duty would be expected to work
for a reasonable period of time before reporting for
jury duty, provided that this would allow them suf-
ficient time to return home from work to clean up
before going to court. Shortly before August 27,
Remedios spoke with Rondeau and Blore, in the
presence of a union steward, about the feasibility of
them working before reporting to jury duty. After
determining to his own satisfaction that they could
report for work and still have time to clean up
before reporting for jury duty, Remedios informed
Rondeau and Blore that effective immediately they
would be expected to work from 7 to 9 a.m. on
days that they were not expected to report for jury
duty until 10:15 a.m. As found by the Administra-
tive Law Judge, Respondent did not discuss its
new jury duty policy with the Union prior to im-
plementing it.6
August 27, and on a number of occasions in Sep-
tember, Rondeau and Blore reported to the district
court for jury duty at 10:15 a.m. Pursuant to Re-
spondent's instructions, they worked from 7 to 9
a.m., prior to reporting for jury duty. On August
27, Rondeau and Blore filed grievances with the
Union contending that Respondent had abrogated
the collective-bargaining agreement by changing its
past practice and requiring them to work prior to
jury duty.7 On September 3, Respondent and the
Union discussed the grievance but were unable to
reach accord. The Union contended that Respond-
ent's actions were prohibited by the collective-bar-
gaining agreement, and Respondent contended that
the contract did not restrict the imposition of its
new policy. The Union informed Respondent that,
if it did not retract its unilaterally imposed jury
duty policy, the Union would file unfair labor
6 We agree with the Administrative Law Judge that Remedios' casual
mention to the union shop committee on August 12 that Respondent
might have problems with individuals not reporting to work prior to jury
duty does not bear the indicia of definiteness, clarity, and specificity suffi-
cient to support a finding of notice to the Union. See cases cited in fn. 9
of the Administrative Law Judge's Decision.
I The collective-bargaining agreement contains a grievance procedure
which does not end in binding arbitration. Instead, its permits the Union
to take economic actions if the parties are unable to settle the grievance.
393
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice charges with the Board. In response, Re-
spondent indicated that the matter would be turned
over to its attorney and the Union would be noti-
fied the next day about management's decision. On
the next day, Respondent informed the Union that
there would be no change in its position.
On September 9, after consulting with its attor-
ney, the Union filed an unfair labor practice charge
alleging that Respondent's unilateral change requir-
ing employees to work before jury duty violated
Section 8(a)(5) and (1) of the Act. Subsequently, at
a grievance meeting on September 16, Respondent
informed the Union that it objected to the filing of
the charge by the Union and that it would like to
handle the matter through the grievance process.
The Union responded that it did not intend to
withdraw the charge and that, since the matter had
been referred to the Board, it was not inclined to
discuss the issue any further.
Section 8(d) of the Act requires that the parties
bargain "in good faith with respect to wages,
hours, and other terms and conditions of employ-
ment .... " As noted by the Supreme Court:
A refusal to negotiate in fact as to any subject
which is within § 8(d) and which the union
seeks to negotiate, violates § 8(a)(5) though the
employer has every desire to reach agreement
with the union upon an over-all collective
agreement and earnestly and in all good faith
bargains to that end.8
Since jury duty rights are mandatory subjects of
bargaining and comprise terms and conditions of
employment covered by Section 8(d) of the Act,9
Respondent's "refusal to negotiate in fact" regard-
ing changes in its jury duty policy constitutes a
clear violation of Section 8(a)(5) of the Act. The
Administrative Law Judge, however, found that
Respondent's unilateral conduct did not violate
Section 8(a)(5) and (1) of the Act because the par-
ties have an amicable collective-bargaining relation-
ship, Respondent was not trying to undermine the
Union, Respondent was not motivated by union
animus, and the unilateral change was in fact based
on economic considerations. Although these factors
may have a bearing on Respondent's motivation
and would be relevant in a bad-faith bargaining
context, they are irrelevant to the determination in
the instant case as to whether Respondent acted
unilaterally in modifying the employees' terms and
conditions of employment without affording the
Union an opportunity to bargain about such
changes. As pointed out by the Surpreme Court:
$ N.LR.B. v. Benne Katz, etc. d/b/a Williamsburg Steel Products Co.,
369 U.S. 736, 743 (1962).
* Newspaper Printing Corporation, 232 NLRB 291 (1977).
The duty "to bargain collectively" enjoined by
§ 8(a)(5) is defined by § 8(d) as the duty "to
meet . . . and confer in good faith with re-
spect to wages, hours, and other terms and
conditions of employment." Clearly, the duty
thus defined may be violated without a general
failure of subjective good faith; for there is no
occasion to consider the issue of good faith if a
party had refused even to negotiate in fact-
"to meet . . . and confer"-about any of the
mandatory subjects. '
The Administrative Law Judge also based his
dismissal of the complaint allegations on the find-
ing that the Union's bargaining position as ex-
pressed in its September 3 and 16 meetings with
Respondent indicated that it would have been futile
for Respondent to have given the Union an oppor-
tunity to bargain before it acted unilaterallly. The
Administrative Law Judge further found that there
was no evidence that Respondent's unilateral con-
duct was irreversible, nor that the unilateral con-
duct had a substantial impact on unit employees.
Finally, he concluded that it was the Union on
September 3 and 16 that had refused to bargain.
We disagree.
Good-faith bargaining requires that the parties
meet and negotiate prior to any modification of
working conditions. In the instant case, Respond-
ent's unilateral change, on August 27, of its em-
ployees' working conditions presented the Union
with afait accompli, rather than a good-faith invita-
tion to begin collective-bargaining negotiations.
When the parties met on September 3 to discuss
the Union's grievance, Respondent refused to re-
store the status quo ante and on September 4 Re-
spondent reiterated that there would be no change
in its position. Similarly, at the meeting on Septem-
ber 16, Respondent indicated that it had no inten-
tion of retracting its unlawfully imposed change in
working conditions. Instead of unequivocably in-
forming the Union that it would cease its unfair
labor practices, restore the status quo ante, and
enter into good-faith bargaining on changes in the
jury duty policy, Respondent on September 16 in-
dicated that it was unhappy that the Union had
filed unfair labor practice charges and that it pre-
ferred to treat the dispute as a grievance. We fail
to see how such conduct evidenced a stated intent
to bargain in good faith. On the contrary, we find
that it was Respondent's refusal to cease its unlaw-
ful unilateral conduct and restore the status quo
ante that indicated bargaining would be futile, not
the Union's insistence that Respondent cease its un-
lawful conduct.
10 N.L.R.B. v. Katz, supra at 742-743
394
MERRILL & RING, INC.
We further find that Respondent's refusal to
cease its unlawful conduct provided evidence that
its unilateral change in working conditions was ir-
revocable." Finally, we disagree with the Admin-
istrative Law Judge's finding that the impact of
Respondent's unfair labor practices was not materi-
al, substantial, or significant. As we have stated
elsewhere:
Respondent's unilateral changes in working
conditions without consultation with the bar-
gaining agent are violations which strike at the
heart of the Union's ability to effectively rep-
resent the unit employees. There is no clearer
or more effective way to erode the ability of
the Union to bargain for the employees than
for Respondent to make such changes without
consultation with the Union.' 2
Accordingly, we find that Respondent's unilateral
change in its employees' jury duty rights, a manda-
tory subject of bargaining, was not immaterial, in-
substantial, or insignificant' 3 and that Respondent
violated Section 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom and
take certain affirmative action designed to effectu-
ate the policies of the Act. Thus, we shall order
Respondent to restore the status quo ante by re-
scinding its unlawful unilaterally imposed require-
ment that certain first-shift employees must work a
reasonable period of time before reporting for jury
duty. We shall further order that Respondent bar-
gain in good faith with the Union before making
any change with respect to employee wages, hours,
and other terms and conditions of employment.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Merrill & Ring, Inc., Port Angeles, Washington, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
I Respondent's statement that it preferred to treat the dispute as a
grievance rather than as an unfair labor practice hardly qualifies as an
unequivocable statement that it would cease its unfair labor practices or
that its unlawful change in working conditions was not irrevocable.
"I The Little Rock Downtowner, Inc., 168 NLRB 107, 108 (1967), enfd.
414 F.2d 1084 (8th Cir. 1969).
iS Compare Rust Craft Broadcasting of New York. Inc., 225 NLRB 327
(1976), where an employer's unilateral replacement of a manual attend-
ance recording system with a mechanical timeclock system was found to
be an immaterial, insubstantial, and insignificant change from prior prac-
tice.
(a) Refusing to bargain collectively concerning
its past practice of not requiring first-shift employ-
ees to work prior to reporting for jury duty.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Rescind its unlawful unilaterally imposed re-
quirement that certain first-shift employees must
report for work before reporting for jury duty and
bargain in good faith with the Union before
making any change with respect to employee
wages, hours, and other terms and conditions of
employment.
(b) Post at its Port Angeles facility copies of the
attached notice marked "Appendix."' 4 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 19, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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. Rea-
sonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 19,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
S. In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT refuse to bargain collectively
concerning our past practice of not requiring
certain first-shift employees to work prior to
reporting for jury duty.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed
by Section 7 of the Act.
WE WILL rescind our unlawful unilaterally
imposed requirement that first-shift employees
must report for work before reporting for jury
duty.
WE WILL bargain in good faith with the
Union before making any change with respect
to employee wages, hours, and other terms
and conditions of employment.
MERRILL & RING, INC.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case held on May 20, 1981, is based on an
unfair labor practice charge filed by International Wood-
workers of America Local Union No. 3-90, affiliated
with International Woodworkers of America, AFL-CIO,
CLC, herein called the Union, on September 9, 1980,
and a complaint issued on October 22, 1980, amended at
the hearing herein, on behalf of the General Counsel of
the National Labor Relations Board, herein called the
Board, by the Regional Director for Region 19, alleging
that Merrill & Ring, Inc., herein called the Respondent,
has engaged in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the National Labor Rela-
tions Act, herein called the Act. The complaint alleges
that Respondent violated Section 8(aX5) and (1) of the
Act when it instituted a rule requiring day-shift employ-
ees who perform jury duty to work 2 hours before re-
porting for jury duty because said rule modified article
XX of the Union's contract with Respondent without the
consent of the Union. In the alternative the complaint as
amended alleges Respondent violated Section 8(a)(5) and
(1) because it instituted the rule unilaterally without af-
fording the Union a reasonable oportunity to bargain.
Respondent filed an answer, amended at the hearing,
denying the commission of the alleged unfair labor prac-
tices. '
Respondent admits that the Union is a labor organization within the
meaning of Sec. 2(5) of the Act, and that Respondent meets the Board's
applicable discretionary jurisdictional standard and is an employer en-
gaged in commerce within the meaning of Sec. 2(6) and (7) of the Act.
Upon the entire record, 2 from my observation of the
demeanor of the witnesses, and having considered the
post-hearing briefs submitted by the parties, I make the
following:
FINDINGS OF FACT
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
Respondent operates a facility in Port Angeles, Wash-
ington, where it manufactures timber products. It is a
member of the Timber Operator's Council, Inc., herein
called TOC, an association of employers in the wood
products industry, which negotiates collective-bargaining
agreements on its members' behalf with the Union. These
contracts are negotiated in the manner which collective-
bargaining agreements are usually negotiated in the Pa-
cific Northwest's Wood Products Industry: The so-called
"broad issues" such as wages and fringe benefits are first
negotiated between the Union's parent organization, the
Western States Regional Council No. III, herein called
the Regional Council, and the large lumber manufactur-
ers. These agreements are used as patterns for negotia-
tions between the several local unions affiliated with the
Regional Council and the smaller lumber manufacturing
companies, including those smaller companies such as
Respondent who designate the TOC as their representa-
tive for purposes of collective bargaining. In addition,
certain "local issues" which are unique to the several
employers are separately negotiated between the local
unions and the individual employers.
The Union has represented Respondent's production
and maintenance employees since approximately 1955.
The current contract between Respondent and the Union
is effective from June 1, 1980, through May 30, 1983.
The predecessor contract was effective from June 1,
1977, through May 30, 1980. Each of these contracts
contains an identical clause, article XX, dealing with jury
duty, which reads as follows:
ARTICLE XX
JURY DUTY
A. Any regular employee who is required to per-
form jury duty, including Grand Jury duty, will be
entitled to reimbursement at the straight time
hourly rate of his regular job, including shift differ-
ential if assigned to swing or graveyard shift for the
hours necessarily lost as a result of serving on the
jury; provided, however that such reimbursement
shall not exceed eight (8) hours per day or forty
(40) hours per week, less pay received for jury
duty. The employee will be required to furnish a
signed statement from a responsible officer of the
court as proof of jury service and jury duty pay re-
ceived.
B. Day shift mill employees will be required to
report for work if their jury service ends on any
a The Charging Party's motion to correct transcript is granted.
396
MERRILL & RING, INC.
day in time so permit at least four (4) hours work in
the balance of their regular shift. Other shift em-
ployees will not be required to report for work on
any day they have performed jury service for more
than one-half day. Wood crew employees will re-
ceive jury pay for any day served in whole or in
part.
C. Hours paid for jury duty will be counted as
hours worked for the purpose of computing vaca-
tion pay, health and welfare and pension contribu-
tions and overtime.
D. The above provisions apply to employees on
days they are required to report for jury duty, even
though not selected to serve as jury members.
The aforesaid jury duty clause is standard throughout
the Pacific Northwest Timber Products Industry and is
apparently one of the so-called "broad issue" clauses
which Respondent and the Union have incorporated into
their collective-bargaining contract as the result of the
bargaining between the larger employers in the industry
and the Union's parent organization. The sole evidence
in the record pertaining to the negotiation of this provi-
sion is that when the Union in 1980 notified Respondent
of its intent to reopen the 1977-80 contract for revision
and amendment, the Union set out 25 proposed revisions
and amendments, I of which included the jury duty pro-
vision. This proposed amendment, as proposed by the
Union in its reopening letter to Respondent, read as fol-
lows: "Jury Duty-To include in all contracts; eliminate
exceptions; broaden article .... " No evidence was in-
troduced about what, if anything, was said about this
proposal during contract negotiations. As noted supra,
the Union and Respondent in entering into their current
contract carried over the identical jury duty provision
from the preceding contract.
There are two courts in Port Angeles, Washington,
where Respondent's place of business is located. The
county superior court and the more recently created
county district court. The State of Washington does not
require that persons subpoenaed for jury duty report
each date for possible service, but instead places those
subpoenaed "on call" to report on specific days during
the court's term. The reporting time for the superior
court's jurors is normally 9:15 a.m. whereas the district
court does not require jurors to report until 10:15 a.m.
and sometimes later.
Since May 8, 1978, the work schedule for Respond-
ent's day shift has been 7 a.m. to 3:30 p.m. Prior to the
events of August 1980 Respondent's day-shift employees
subpoenaed for jury duty were apparently subpoenaed
for superior court juries and were normally expected to
report to the court at 9:15 a.m. Respondent had never re-
quired them to report for work before jury duty.
In July 19803 day-shift employees Charles Rondeau
and Jim Blore received subpoenas from the district court
to serve as jurors during the upcoming 3-month session
of that court. Rondeau reported for jury duty on July 10
at 1:15 p.m. He worked from 7 to 11 that morning, not
because anyone from management told him he was sup-
a All dates hereinafter, unless otherwise specified, will refer to the year
1980.
posed to work a 4-hour shift in the morning if he were
not scheduled to report for jury duty until the afternoon.
On July 24 both Rondeau and Blore reported for jury
duty at approximately 9:15 a.m. and were both excused
approximately a half hour later. Neither of them worked
that day prior to reporting for jury duty, but reported to
work after they were excused and worked for the re-
mainder of the shift. On August 7 both Rondeau and
Blore reported for jury duty at approximately 10:15 a.m.
and were excused at approximately 11:30 a.m. Neither
one worked that day either prior to the start of or fol-
lowing their jury duty.
As I have indicated, supra, prior to August 7 employ-
ees subpoenaed for jury service were usually expected by
the court to report for jury service no later than 9:15
a.m. Respondent's administrative manager, Edward Re-
medios, testified that during this period Respondent did
not require these employees to report for work on the
day shift prior to going to court because Respondent did
not feel this would give the employees, whose shift
began at 7 a.m., sufficient time to return home and clean
up so as to arrive at court by 9:15 a.m. But when Re-
spondent in August 1980 learned that Rondeau and
Blore, as well as other employees who would be subpoe-
naed as jurors by the district court, would not normally
be expected to be at court until 10:15 a.m., Remedios tes-
tified, Respondent changed its policy and decided that
day-shift employees who were subpoenaed for jury duty
would be expected to report for work and work for a
reasonable period of time before going to court, pro-
vided this would allow them sufficient time to return
home from work to clean up before going to court. 4 As
described infra, this policy was implemented for the first
time sometime between August 15 and 27 when Reme-
dios informed employees Rondeau and Blore that they
would be expected to work from 7 to 9 a.m. on the days
they were not expected to report for jury duty until
10:15 a.m.
On August 12 at a regular meeting of the Company's
representatives and the Union's shop committee, the
Company's administrative manager, Remedios, men-
tioned to the Union's shop committee that the Company
"may have a problem with individuals not coming in to
work prior to jury duty, and not reporting for work after
jury duty." The Union's chief steward indicated he
would bring up this subject at the next general member-
ship meeting. It is plain that Remedios, at this meeting,
only casually mentioned the subject of jury duty, as de-
scribed above, inasmuch as nothing else was said about
it. As a matter of fact, Remedios' prehearing affidavit
which was submitted to the Board in this case, failed to
include the above-described August 12 statement be-
cause, in the light of the casual nature of the statement,
Remedios had apparently forgotten about it.5
4 The record establishes that Respondent's employees dirty their
clothes due to the nature of their work, thus it is necessary for them to
go home and change clothes prior to going to court.
a In the affidavit he submitted to the Board Remedios stated "[wle did
not discuss this requirement Ireferring the requirement of day-shift em-
ployees working prior to jury dutyl with the Union before we told the
employee to come to work at 7 a.m." Remedios testified that the reason
he failed to mention his August 12 statement was he had forgotten about
it.
397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 13 Remedios sent the following letter to
Union Representative Taylor:
A situation has arisen whereby we feel justified in
requesting a revision of Article XX of our current
contract.
Paragraph B states that "mill employees will be
required to report to work if their jury service ends
on any day in time to permit at least four (4) hours
work in the balance of the regular shift." My under-
standing is that this language was written when the
plant was on an 8:00 A.M. to 4:30 P.M. schedule.
Since our day shift runs from 7:00 A.M. to 3:30
P.M. the following has occurred. Two individuals
at the Planing Mill are presently on Jury Duty. On
August 7th, both reported for duty at 10:15 A.M.
and were subsequently dismissed at 11:25 A.M.
Under the terms of our contract neither individual
was required to return to work. Therefore, the
company was required to pay both individuals for a
full eight (8) hours for doing nothing more than
serving on Jury Duty for one hour and ten minutes
(see attached). Further, the company incurs addi-
tional costs minutes (see attached). Further, the
company incurs additional costs by having to re-
place employees on Jury Duty.
We request that Paragraph B be revised to read:
"Day Shift mill ends on any day in time to permit
at least two (2) hours work on the balance of their
regular shift."
Please let me know if you have any questions.
Upon receipt of the letter, Taylor phoned Remedios and
discussed Remedios' proposal that day-shift employees be
required to report for work if their jury service ended in
time to permit them to work at least 2 hours. There was
no mention by Remedios during this conversation about
day-shift employees reporting for work prior to report-
ing for jury service. Thereafter, on August 15 Taylor
sent Remedios the following letter:
In regard to your letter on the subject of Jury
Duty, Article XX of our contract, I did bring this
up to the membership of M & R on their August
14th sub-local meeting.
It is their thinking that what has taken place with
two employees now on Jury duty will never happen
again and feel it would not be wise to penalize the
balance of the employees for this fluke situation.
As I stated to you in person, this has never hap-
pened to any operations of this Local, to the best of
my knowledge, and they also have early starting
times.
Therefore, I was told by the membership to re-
spond to you in letter form that they did not wish
to discuss any change at this time.
Sometime between August 15 and 27, employee Blore
heard a rumor that on the days he and Rondeau were
scheduled to report for jury duty Respondent intended
to require them to come to work before they went to the
courthouse. Blore immediately informed Union Repre-
sentative Taylor about the rumor. Taylor told Blore that
such a requirement would be a "direct violation of the
contract," but that Blore and Rondeau should obey such
an instruction, if given, and file a contractual grievance
against Respondent.
Shortly before August 27, Remedios, in the presence
of a union steward, met with employees Blore and Ron-
deau. He told them that Respondent's collective-bargain-
ing contract with the Union did not say employees did
not have to report to work before jury duty. After ques-
tioning Blore and Rondeau to determine whether it was
feasible for them to come to work before their jury duty
and work a reasonable period of time before reporting to
the court, Remedios told them that effective immediately
they would be required to work from 7 to 9 a.m. on the
days they were scheduled to report for jury duty. Blore
stated he had been informed by the Union that this was a
violation of the collective-bargaining agreement.
On August 27 Rondeau and Blore reported to the
court for jury duty at or about 10:15 a.m., but, pursuant
to Remedios' instruction, worked from 7 to 9 a.m. before
reporting for jury duty. In September, on three occa-
sions, Rondeau reported for jury duty at approximately
10:15 a.m., he was required to work on each of these oc-
casions from 7 to 9 a.m. and once, when he did not
report for jury duty until 1:15 p.m., worked from 7 to 11
a.m. Likewise, Blore, in September twice reported for
jury duty at approximately 10:15 a.m. and on each of
these occasions was required to work from 7 to 9 a.m.
prior to reporting for jury duty.
On August 27 Rondeau and Blore filed grievances
with the Union against Respondent pursuant to the con-
tractual grievance procedure s alleging in substance that
by requiring them to work prior to jury duty Respond-
ent was violating the jury duty provision of the collec-
tive-bargaining agreements.
On September 3 the grievances of Rondeau and Blore
were discussed by representatives of Respondent and the
Union. Respondent's rpresentatives stated that there was
no language in the jury duty provision of the collective-
bargaining contract which stated that employees did not
have to report to work before reporting for jury duty,
that as long as employees had sufficient time to prepare
themselves for jury duty and get to court on time that
the employees should report to work prior to reporting
for jury duty, and that I hour and 15 minutes was suffi-
cient time for Rondeau and Blore to get cleaned up and
transport themselves to court. The Union's representa-
tives stated that the jury duty provision contained in the
contract prohibited Respondent from requiring the em-
ployees to report for work prior to reporting for jury
duty, that Respondent's action in this respect was unilat-
eral conduct in violation of the contract, and that if the
Company did not reverse its position the Union would
file unfair labor practice charges with the NLRB. Re-
spondent's representatives informed the Union's repre-
sentatives that since the parties disagreed about the inter-
pretation of the jury duty provision of the contract that
* The parties' collective-bargaining contract contains a grievance pro-
cedure which does not end in binding impartial arbitration, but instead
provides that if the parties deadlock over a greivance the Union has a
right to take economic action, including a work stoppage or strike.
398
MERRILL & RING, INC.
the matter would be turned over to Respondent's lawyer
and the Union would be notified the next day about
management's decision.
The next day, September 4, Production Manager Gil
Oldenkamp informed Union Representative Taylor that
"the Company remains firm on their stand. There is to
be no change." Union Representative Taylor reacted by
consulting the Union's attorney about the matter and, on
September 9, the Union, through its attorney, filed the
charge herein alleging that Respondent in violation of
the Act "has unilaterally modified Article XX of its col-
lective-bargaining agreement with the [Union]."
On September 16 at a grievance meeting between rep-
resentatives of Respondent and Union, Company Presi-
dent Dale Woodside objected to the Union having filed
an unfair labor practice charge against Respondent for
having instituted the policy of day-shift employees on
jury duty working prior to reporting for jury duty.
Woodside told the union representatives that the Compa-
ny would like to continue to treat this matter as a griev-
ance under the contractual grievance procedure inas-
much as it involved an interpretation of the parties' con-
tract. Union Representative Taylor acknowledged that
the Union had referred the matter to the NLRB by filing
an unfair labor practice charge. He stated that the Union
did not intend to withdraw that charge and advised
Woodside that since the grievance had been referred to
the NLRB union was not inclined to discuss it any fur-
ther with Respondent. Woodside replied that he felt that
the Union's grievance should be handled locally through
the grievance machinery and that by refusing to do so
the Union was not bargaining in good faith.7
B. Discussion and Analysis
The law is settled that an employer acts in derogation
of its bargaining obligation under Section 8(d) of the
Act, and thereby violates Section 8(aX5) and (1) of the
Act, when, during the effective period of a contract and
without the content of the Union which represents em-
ployees, it modifies contractually determined benefits or
other employment conditions which are mandatory sub-
jects of bargaining. Allied Chemical & Alkali Workers of
America, Local Union No. I v. Pittsburgh Plate Glass Co.,
Chemical Division, et al., 404 U.S. 157, 183-188 (1971);
N.LR.B. v. C d C Plywood Corporation, 385 U.S 421,
425 (1967).
Article XX of the governing collective-bargaining
contract provides in pertinent part that employees shall
be reimbursed by the Company for the hours of work
lost as a result of having to report for jury duty even
though they were not selectedifor jury duty and further
states that "day shift mill employees will be required to
report for work if their jury service ends on any day in
time to permit at least four (4) hours work in the balance
of their regular shift." The General Counsel and the
Charging Party argue that, when Respondent, in August
1980, changed its policy and decided that day-shift em-
I Insofar as Taylor's testimony can be construed as denying that he in-
formed Woodside at this meeting that the Union was not inclined to dis-
cuss its jury duty grievance any further with the Company, I credit Re-
medios' testimony to the contrary. In terms of demeanor Remedios im-
pressed me as the more credible and reliable witness.
ployees subpoenaed for jury before going to court, this
constituted a modification of the aforesaid contractual
jury duty provision.8 In support of this contention they
rely on the terms of the contractual jury duty provision
and Respondent's past practice. I am not persuaded by
these arguments.
Article XX, the jury duty provision, is silent about the
obligation of day-shift employees to report for work
prior to their having to report for jury duty, if there is
sufficient time to permit them to work. Article XX only
addresses the subject of the employees' obligation to
report for work after having been excused from jury
duty before the end of the workday. This circumstance,
plus the fact that the purpose of article XX as set forth
by its terms is to compensate employees for the hours of
work lost due to having been subpoenaed for jury duty,
persuades me that article XX, on its face, does not pre-
clude Respondent from requiring the day-shift employees
to report for work prior to reporting for jury duty. In so
concluding I have considered the Board's decision in C
& S Industries. Inc., 158 NLRB 454, 459 (1966), where
the Board found an 8(a)(5) violation in the employer's
unilateral implementation of a wage incentive program,
although "wage incentives" were not contained in the
contract. That case is distinguishable in significant re-
spects from the instant situation. Essential to the Board's
decision in C & S Industries, Inc., was its finding that,
"[ajlthough the contract makes no specific mention of
wage incentives, such incentives are inseparably bound
up with and are thus plainly an aspect of the payment of
wages, a subject expressly covered by the Contract," and
its further finding that the governing contract also con-
tained a provision "which expressly prohibits any change
in the method of payment without the written consent of
the parties." In the instant case the requirement that the
day-shift employees report for work for a reasonable
period of time before reporting for jury duty was not in-
separably bound up or plainly an aspect of the contrac-
tual provision which restricts Respondent's ability to re-
quire the employees to report for work after having been
excused from jury duty for the day. Nor is there any
other provision in the contract which reveals that it was
the intent of the parties in negotiating the contract to
preclude the Employer from requiring employees to
report for work for a reasonable period before serving
on jury duty.
Nor does Respondent's past practice of not requiring
day-shift employees to report for work before reporting
for jury duty warrant an inference that the intent of the
parties in negotiating the language of Article XX was to
preclude Respondent from requiring employees to report
for work before reporting for jury duty. This past prac-
tice, as Administrative Manager Remedios testified, was
not based on a contractual obligation which Respondent
felt it owed the employees, but on the fact that employ-
ees were usually required to report for jury duty no later
than 9:15 a.m. which meant if they reported to work for
a reasonable period of time before reporting to the court-
a The jury duty provision included in the contract herein is a manda-
tory subject of bargaining. Newspaper Prnning Corporation, 232 NLRB
291 (1977).
399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
house that they would not have sufficient time to return
home to clean up and change their clothes. Respondent
changed its policy of not requiring employees to report
for work prior to reporting for jury duty only after it
learned that employees who were subpoenaed for jury
duty by the District Court were not usually required to
report for jury service until 10:15 a.m., rather than 9:15
a.m. In other words, Respondent's past practice of not
requiring day-shift employees to report for work prior to
the time they were scheduled to report for jury duty was
not based on the terms of the contract but was based on
Respondent's belief that, under the circumstances which
existed at the time, the employees would not have ample
time to clean up before going to the courthouse.
Based on the foregoing, I find that the evidence is in-
sufficient to establish that Respondent, by requiring day-
shift employees to report for work prior to reporting for
jury duty, modified its current contract with the Union.
The complaint, as amended at the hearing, alleges that
even if Respondent's requirement that day shift employ-
ees on jury duty must work a reasonable period of time
before reporting for jury duty does not constitute an im-
permissible modification of the governing collective-bar-
gaining contract in violation of Section 8(a)(5) of the
Act. Respondent still violated Section 8(a)(5) by unilater-
ally instituting this requirement without affording the
Union a reasonable opportunity to bargain about it.
As described in detail supra, it is undisputed that Re-
spondent for at least 3 years did not require day-shift em-
ployees to report for work prior to reporting for jury
duty. This practice was changed in August 1980 when
Respondent, without notifying the Union, instituted a
policy whereby the day-shift employees subpoenaed for
jury duty were required to report for work and work a
reasonable period of time before reporting for jury
duty.9
This new policy was instituted for the first time on
August 27, when day-shift employees Rondeau and Blore
were required to report for work and work from 7 to 9
a.m. before reporting to the courthouse at 10:15 a.m. for
jury duty. The employees suffered no loss of pay and
there is no evidence or contention that they did not have
Administrative Manager Remedios' August 12 statement to the
Union's shop committee that the Company "may have a problem with
individuals coming into work prior to jury duty" does not bear the indi-
cia of definiteness, clarity, and specificity sufficient to support a finding
of notice to the Union. This is especially true because Remedios' August
13 letter to Union Representative Taylor which specifically discussed the
problems Respondent was having with the employees' jury duty signifi-
cantly failed to mention the problem of employees on the day-shift failing
to come to work prior to reporting for jury duty. In addition, when
Taylor spoke to Remedios about this letter, Remedios failed to mention
the problem of the day-shift employees not reporting for work prior to
jury duty. Nor does the fact that there was a rumor among the employ-
ees that Respondent intended to require them to report for work before
jury duty constitute notice to the Union. This rumor was insufficient to
relieve Respondent of its obligation to notify the Union, because without
some clear, definite, and specific further indication of Respondent's inten-
tion to require employees to report for work before jury duty, the em-
ployees' concerns remait speculative. The failure of the Union to act in
the face of such speculation does not wave a union's statutory right to
bargain. See, International Ladies' Garment Workers Union, AFL-CIO
[McLoughlin Manufacturing Corporatiun] v. .VL.R.B., 463 F.2d 907, 918
(D.C. Cir. 1972); N.L.R.B. v. Royal Plating and Polishing Co.. Inc., 350
F.2d 191, 194-195 (3d Cir. 1965); N.L.R.B. v. Rapid Bindery, Inc., and
Frontier Bindery Corporation, 293 F.2d 170, 176 (2d Cir. 1961).
ample time to return to their homes to clean up before
going to court.
Upon the advice of Union Representative Taylor, on
August 28 employees Rondeau and Blore filed identical
contractual grievances with the Union alleging in sub-
stance that Respondent had violated article XX of the
contract, the jury duty provision, by requiring them to
work prior to reporting for jury duty. On September 3
representatives of Respondent and the Union discussed
these grievances. Respondent's representatives stated
there was no language in article XX which dealt with
the matter of whether or not employees were required to
report for work before reporting for jury duty, if the
time permitted, and that Respondent, due to the necessi-
ties of business, was requiring the day-shift employees to
report for work prior to reporting for jury duty as long
as they had ample time to clean up and get to the court-
house and that Respondent felt that I hour and 15 min-
utes was ample time for Rondeau and Blore to do this.
The representatives of the Union replied that article XX
precluded Respondent from requiring day-shift employ-
ees from reporting to work prior to reporting for jury
duty, and that Respondent's conduct in this respect vio-
lated that provision and warned that if Respondent did
not rescind its action the Union would file unfair labor
practice charges with the NLRB. When Respondent, the
next day, informed the Union it refused to accede to the
Union's request, the Union filed the instant unfair labor
practice charge alleging that Respondent, by its actions,
had violated the Act by unilaterally modifying article
XX of the collective-bargaining contract. Shortly there-
after Respondent's president, Woodside, informed Union
Representative Taylor that Respondent objected to the
Union having filed the unfair labor practice charge and
that Respondent should rather discuss the disputed
matter as a grievance since it involved a dispute over the
interpretation of the parties' contract and indicated that
Respondent was prepared to discuss the matter with the
Union. Taylor answered that the Union had referred its
grievance to the NLRB and was not inclined to discuss
the matter with Respondent, but instead would let the
NLRB handle the matter. Woodside replied that the
Union, by this conduct, was not bargaining in good faith.
I do not believe, as alleged in the complaint as amend-
ed at the hearing, that Respondent violated Section
8(a)(5) and (1) of the Act by unilateraly instituting a re-
quirement that the day-shift employees report for work
prior to reporting for jury duty, without affording the
Union a reasonable opportunity to bargain. This conclu-
sion is predicated on the following considerations.
The dispute arises in the confined of an established and
what appears to be an amicable collective-bargaining re-
lationship, nor is there evidence that work before report-
ing for jury duty it was motivated by union animus. To
the contrary, it is undisputed that Respondent was moti-
vated by legitimate economic considerations.
When the representatives of the Union and Respond-
ent met on September 3 to discuss Respondent's new
policy of having day-shift workers report for work
before jury duty, the Union's representatives, in effect,
informed Respondent's representatives that the subject
400
MERRILL & RING, INC.
was not one for discussion because the jury duty provi-
sion of the parties' contract prohibited the Employer
from instituting such a requirement. The Union, at all
times thereafter, maintained this position and, on Septem-
ber 16, expressly refused Respondent's invitation to sit
down and discuss the disputed subject. But instead Union
Representative Taylor, in effect, informed Respondent's
president, Woodside, that the Union was not obliged to
even discuss the question of day-shift employees working
before jury duty because any requirement that they do
so violated the National Labor Relations Act.
The Union refused Respondent's invitation to sit down
at the bargaining table to discuss Respondent's newly in-
stituted policy of having day-shift employees report for
work before jury duty, even though there was no evi-
dence that Respondent's decision was of an irrevocable
nature. Since no third party interest had intervened, Re-
spondent at any time could have rescinded this new
policy in its entirety or reached a compromise with the
Union acceptable to both parties.10
When the Union refused to sit down with Respondent
and discuss Respondent's newly instituted policy of day-
shift workers reporting for work prior to jury duty, the
impact of the policy upon the unit employees was nei-
ther material, substantial, nor significant. Quite the oppo-
site, the effect upon the unit employees was insubstantial.
Only 2 employees out of a unit of approximately 250 had
been affected. Together, the two employees had been re-
quired to work a total of 8 hours before reporting for
jury duty. They had not suffered a loss of pay or other
financial detriment other than the de minimis amount of
money spent for gas to drive from the plant back to their
homes to clean up for jury duty. Nor is there evidence
'o Respondent's September 16 invitation to the Union to sit down and
discuss the recently instituted policy of day-shift employees reporting for
work prior to reporting for jury duty was calculated to alert the Union
to the fact that Respondent's decision to institute this policy was a bar-
gainable matter. The fact that Respondent previously refused the Union's
request to rescind the policy does not detract from this conclusion be-
cause Respondent's refusal was expressed in the context of the Union's
incorrect demand that Respondent was obligated to rescind its policy be-
cause it violated the parties' collective-bargaining contract.
that they were inconvenienced in reporting for jury duty
by having to work 2 hours prior to reporting. I realize
that the Company's new policy inconvenienced the em-
ployees insofar as it prevented them from sleeping later
or engaging in personal business at the Company's ex-
pense prior to reporting for jury duty. However, as indi-
cated by the express terms of the jury duty provision of
the parties' contract, it was not the intent of the parties
to permit employees to be reimbursed for sleeping or for
engaging in personal business, rather it was their intent
that the employees only be paid for the time lost from
work because of their jury duty.
The aforesaid circumstances, particularly the evidence
which indicates that it would have been futile for Re-
spondent to have given the Union an opportunity to bar-
gain before implementing its decision to have day-shift
employees report for work prior to jury duty and the
Union's refusal to bargain about this matter when invited
to do so by Respondent even though the decision was
not irreversible and its impact upon the unit employees
was insubstantial, persuade me that Respondent's deci-
sion to have the day-shift employees report for work
prior to jury duty did not constitute a refusal to bargain
within the meaning of Section 8(a)(5) of the Act, even
though Respondent failed to afford the Union an oppor-
tunity to bargain prior to the implementation of the deci-
sion.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER l '
The complaint is dismissed in its entirety.
11 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 herein 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.
401