Smurfit-Stone Container Corp.

National Labor Relations Board - Board Decisions

May 16, 2005

344 N.L.R.B. 658 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 82
658
Smurfit-Stone Container Corporation, Container
Division and International Brotherhood of Elec-
trical Workers, Local No. 1924, AFL–CIO. Case
12–CA–20804
May 16, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
On September 11, 2003, Administrative Law Judge
Margaret G. Brakebusch issued the attached decision.
The Respondent filed exceptions with supporting argu-
ments. The General Counsel filed an answering brief
and limited cross-exceptions.1 The Respondent filed a
reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.
Relevant Facts and Arguments
The Respondent operates a paper mill and a container
plant at its Fernandina Beach, Florida facility. The Un-
ion, along with two other unions, has represented em-
ployees at the container plant at least since the 1970s.2
The Respondent and the Union were parties to a collec-
tive-bargaining agreement. The agreement included,
among other provisions, several provisions relating to
attendance and a management-rights clause.
In 1979, the Respondent unilaterally implemented a
new attendance control policy. The 1979 policy was a
“no fault” policy, which did not excuse medical ab-
sences. Sometime between 1979 and 1984, the Respon-
dent unilaterally modified that policy to excuse absences
that were supported by a doctor’s note.
On February 26, 2000, the Respondent notified the
Union that it would implement a new attendance control
policy, effective March 15, 2000. That new policy made
no provision for excusing medical absences. Prior to
implementation, the Respondent met with representatives
of the Unions representing the employees covered by the
new policy. On March 13, several representatives of the
Union met with the Respondent and asserted the Union’s

1 The General Counsel’s first and second exceptions seek to correct
minor factual inaccuracies in the judge’s decision. The Board finds
merit in these exceptions and therefore modifies the judge’s decision to
reflect that the Respondent’s place of business is Fernandina Beach,
Florida, and to replace reference to Union President Carroll with Union
President Chandler in the judge’s discussion of whether the IBEW
waived its right to bargain.
2 The unions, collectively, represent about 80 employees at the con-
tainer plant. Two of those employees comprise the Union’s bargaining
unit involved herein.
belief that the new policy conflicted with several sections
of the parties’ collective-bargaining agreement and con-
stituted a unilateral change about which the Union
wanted to bargain. The Respondent replied that the at-
tendance policy was a matter of company policy over
which it was not required to bargain.
The Respondent implemented the new policy on
March 15. On March 28, the Union filed a grievance,
claiming that the policy violated the collective-
bargaining agreement and past practice. On June 13, the
Respondent denied the grievance, asserting that man-
agement had an exclusive right to establish rules and
policies. On April 24, the Union filed an unfair labor
practice charge arising out of the implementation of the
new policy. Applying Collyer Insulated Wire, 192
NLRB 837 (1971), the Regional Office of the Board de-
ferred consideration of the charge until the parties arbi-
trated the dispute. On June 3, 2002, the arbitrator issued
a decision, denying the Union’s grievance, finding that
the Respondent had the right to unilaterally implement
the new attendance policy.
The judge declined to defer to the arbitration award.
She concluded that the issues considered by the arbitrator
were not parallel to the unfair labor practice issues and
that his award was clearly repugnant to the Act. She then
found that the Respondent’s implementation of its new
attendance control policy constituted an unlawful mid-
term modification of the collective-bargaining agreement
and a unilateral change in the employees’ terms and con-
ditions of employment in violation of Section 8(a)(5).
The Respondent excepts, arguing that the Board
should defer to the arbitrator’s decision. The Respondent
argues that the arbitrator’s award meets the Board’s stan-
dards for deferral because his award was based on the
management-rights clause of the parties’ agreement and
because the arbitrator considered virtually the same facts
as were presented at the unfair labor practice hearing.
For the following reasons, we find merit in the Re-
spondent’s exceptions, reverse the judge, and dismiss the
complaint.
Legal Analysis
There is a national labor policy that strongly favors de-
ferring to arbitral decisions. See Steelworkers v. Ameri-
can Mfg. Co., 363 U.S. 564 (1960); Steelworkers v. War-
rior & Gulf Co., 363 U.S. 574 (1960); Steelworkers v.
Enterprise Corp., 363 U.S. 593 (1960). That policy is
firmly founded in Congressional command. Gateway
Coal Co. v. UMW, 414 U.S. 368, 377 (1974). Further,
the Board has embraced that strong policy and has spe-
cifically found that the policies announced in the Steel-
workers’ Trilogy apply to the Board. Olin Corp., 268
SMURFIT-STONE CONTAINER CORP. 659
NLRB 573, 579 (1984). As stated in Collyer Insulated
Wire, 192 NLRB at 840:
The Act, as has repeatedly been stated, is primarily de-
signed to promote industrial peace and stability by en-
couraging the practice and procedure of collective bar-
gaining. Experience has demonstrated that collective-
bargaining agreements that provide for final and bind-
ing arbitration of grievances and disputes arising there-
under “as a substitute for industrial strife,” contribute
significantly to the attainment of this statutory objec-
tive.
Consistent with this policy, we find that deferral is war-
ranted here.
The Board will defer to an arbitration award when the
proceedings appear to have been fair and regular, all par-
ties have agreed to be bound, and the decision of the ar-
bitrator is not clearly repugnant to the purposes and poli-
cies of the Act. See Spielberg Mfg. Co., 112 NLRB 1080
(1955). Additionally, the arbitrator must have consid-
ered the unfair labor practice issue which is before the
Board. In Olin Corp., 268 NLRB 573 (1984), the Board
clarified that an arbitrator has adequately considered the
unfair labor practice issue if (1) the contractual issue is
factually parallel to the unfair labor practice issue, (2) the
arbitrator was presented generally with the facts relevant
to resolving the unfair labor practice, and (3) the decision
is susceptible to an interpretation consistent with the Act.
Id. at 574. The party seeking to have the Board reject
deferral bears the burden of proof. Id.
First, it is uncontested that the arbitral process here
was fair and regular. In addition, the parties’ agreement
makes clear that both parties agreed to be bound by the
arbitration process. Indeed, the Union sought arbitration
of its grievance.
Next, we find that the arbitrator adequately considered
the unfair labor practice issue. We agree with the Re-
spondent that this case is controlled by Dennison Na-
tional Co., 296 NLRB 169 (1989). In Dennison Na-
tional, the Board found the contractual issue factually
parallel to the unfair labor practice issue where the arbi-
trator found that the employer’s unilateral elimination of
a job classification did not violate the parties’ collective-
bargaining agreement because the agreement’s manage-
ment-rights clause gave the employer the right to act
unilaterally. The Board concluded that the issues were
parallel because “[i]n an unfair labor practice proceeding
on the merits of the statutory issue, the Board must con-
sider whether the [employer]’s action constituted a uni-
lateral change in violation of its bargaining obligation
under Section 8(a)(5) of the Act. The presence of con-
tractual authorization for the Respondent’s action is de-
terminative of the unfair labor practice allegation.” Id. at
170–171.
As in Dennison National, the arbitrator here ade-
quately addressed the statutory issue by determining the
contractual issue. The statutory issue here is whether the
Respondent’s adoption of the new absence control policy
constituted a unilateral change. The question of whether
or not the management-rights clause of the parties’ col-
lective-bargaining agreement authorized the Respon-
dent’s implementation of the new policy is determinative
of the unfair labor practice allegation here.3 Further, that
was the precise argument that the Respondent presented
to the arbitrator, i.e., that its actions were privileged un-
der article XVI, the contractual management-rights
clause. Concededly, the Respondent may have also ar-
gued, and the arbitrator may have found, the further point
that the Respondent’s actions were privileged by assert-
edly inherent management rights. However, as discussed
below, it is not clear that the arbitral result rested solely
on any such finding. Rather, contrary to the judge and
our dissenting colleague, we find a reasonable interpreta-
tion of the arbitrator’s decision is that the management-
rights clause authorized the implementation of the ab-
sence control policy, as discussed in greater detail below.
Indeed, the arbitrator concluded that that the agreement
gave the Respondent the right to make rules as long as
they did not conflict with any provision of the agreement.
He found no such conflict. Accordingly, we find that the
arbitrator adequately considered the relevant unfair labor
practice issue.
We also conclude that the parties presented the arbitra-
tor generally with the facts relevant to resolving the un-
fair labor practice issue. Indeed, the General Counsel
does not allege that the arbitrator lacked an adequate
factual basis to decide the relevant issues.
Finally, contrary to the judge and our dissenting col-
league, we find that the arbitrator’s decision is not clearly
repugnant to the purposes and policies of the Act. The
standard for determining whether an arbitral decision is
clearly repugnant is whether it is “susceptible” to an in-
terpretation consistent with the Act. Olin, 268 NLRB at
574; see Motor Convoy, 303 NLRB 135 (1991). “Sus-
ceptible to an interpretation consistent with the Act”
means precisely what it says. Even if there is one inter-
pretation that would be inconsistent with the Act, the

3 Sec. XVI of the agreement provided that “[t]he parties recognize
that the operation of the plant and the direction of the work force
therein is the sole responsibility of the Company. Such responsibility
includes, among other things, the full right to assign work, to discharge,
discipline, or suspend for just cause, and the right to hire, transfer,
promote, demote, or layoff employees because of lack of work or for
other legitimate reasons.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD660
arbitral opinion passes muster if there is another interpre-
tation that would be consistent with the Act. Further,
“consistent with the Act” does not mean that the Board
would necessarily reach the same result. It means only
that the arbitral result is within the broad parameters of
the Act. Thus, the Board’s mere disagreement with the
arbitrator’s conclusion would be an insufficient basis for
the Board to decline to defer to the arbitrator’s award.
See Anderson Sand & Gravel, 277 NLRB 1204, 1205
(1985). The Board, moreover, will not find an imper-
fectly drafted arbitral decision clearly repugnant, pro-
vided that a reasonable interpretation of the award is con-
sistent with the Act. See Yellow Freight System, 337
NLRB 568, 572 (2002) (Board deferred to arbitral award
where wording of award was somewhat ambiguous, but
could be reasonably interpreted to support a finding con-
sistent with the Act); see also Specialized Distribution
Managment, 318 NLRB 158, 163 (1995) (deferral not
repugnant to the Act even where arbitrator’s “approach
and style are at variance from the standards the General
Counsel would like to see”).
Concededly, the arbitrator’s decision here is not a
model of clarity. Further, certain statements in the
award arguably are not expressly tied to the manage-
ment-rights clause. However, “the arbitrator’s decision
must be read in its entirety to fairly determine its mean-
ing.” Doerfer Engineering, 315 NLRB 1137, 1139
(1994), enf. denied on other grounds 79 F.3d 101 (8th
Cir. 1996). Taken as a whole, we find that the arbitra-
tor’s decision satisfies the Board’s deferral standard, i.e.,
it is at least susceptible to the interpretation that it was
based on his construction of the management-rights
clause.
In his decision, the arbitrator initiated his analysis with
a discussion of the management-rights clause and quoted
the clause in its entirety. After quoting the clause, he
concluded that “it is the right of the Company to make
the rules.” Thus, an interpretation of the arbitral opinion
is that the management-rights clause gave the Respon-
dent the right to act, as distinguished from an opinion
which would say that there is an inherent right to act.4

4 The General Counsel also argues that the arbitrator’s decision is
clearly repugnant because the arbitrator did not find that the manage-
ment rights clause constituted a clear and unmistakable waiver of the
Union’s right to bargain over the absentee policy. We note that the
Respondent in its brief in support of exceptions disclaimed any argu-
ment that the Union contractually waived its right to bargain. Rather,
as discussed above, the Respondent argued, and the arbitrator found,
that a reasonable interpretation of the contract is that the management
rights-clause authorized the Respondent to promulgate the absentee
control policy. Moreover, the Board has consistently found that an
arbitral award “can be susceptible to the interpretation that the arbitra-
tor found a waiver even if the arbitral award does not speak in [terms of
clear and unmistakable waiver].” Southern California Edison, 310
Because, as discussed above, a finding that the Respon-
dent did not act unlawfully because its conduct was sanc-
tioned by the management-rights clause is consistent
with the Act, the arbitrator’s award is not clearly repug-
nant. We are supported in our conclusion that the award
is not clearly repugnant by the fact that the General
Counsel bore the burden of proving that the arbitrator did
not rely upon the management rights clause. We find
that the General Counsel failed to carry his burden.
Contrary to the judge and our dissenting colleague, we
find Columbian Chemicals Co., 307 NLRB 592 (1992),
enfd. mem. 993 F.2d 1536 (4th Cir. 1992), distinguish-
able. In Columbian Chemicals, the Board found deferral
to an arbitral award unwarranted as clearly repugnant
where the arbitrator based his decision on “a basic man-
agement prerogative.” Id. at 592 fn. 1. Indeed, the
Board there expressly found that the arbitrator did not
rely on the management-rights clause. Id. In fact, in
Columbian Chemicals, the employer did not even rely on
the management-rights clause. Id. at 594. Thus, in Co-
lumbian Chemicals, the arbitrator’s decision was so
clearly wedded to his extra-contractual theory of man-
agement prerogatives that it was not susceptible to an
interpretation consistent with the Act.
Here, although the arbitrator discussed his opinion of
the theory that management enjoys certain inherent
rights, his analysis does not compel a finding that such a
discussion was a necessary basis for his award. Unlike
in Columbian Chemicals, the Respondent here clearly
relied upon the management-rights clause in arguing to
the arbitrator and, as discussed above, the arbitrator as-
serted that the management-rights clause gave the Re-
spondent the right to make rules.5 We conclude, there-
fore, that the arbitrator’s decision is susceptible to the
interpretation that he relied upon the management-rights
clause and is not dependent on an inherent management
prerogative theory. As such, it is not clearly repugnant to
the Act.
Our dissenting colleague rests the complete weight of
her contention (that deferral to arbitration is inappropri-
ate) on the arbitrator’s discussion of the inherent man-
agement rights theory. Her narrow focus displays a dis-

NLRB 1229, 1231 (1993); see also Olin, 268 NLRB at 576 (arbitral
decision not clearly repugnant where decision was reasonable, even
though arbitrator did not apply statutory waiver standard). Finally, the
waiver test is not the only reasonable interpretation of the Act. See
NLRB v. Postal Service, 8 F.3d 832, 837–838 (D.C. Cir. 1993).
5 For these reasons, we also find the judge’s reliance on Kohler Mix
Specialties, 332 NLRB 630 (2000), misplaced. In Kohler Mix Special-
ties, the arbitrator found that the parties’ collective-bargaining agree-
ment did not prohibit the employer’s unilateral conduct. Here, in con-
trast, the arbitrator found that the parties’ management-rights clause
permitted the conduct at issue.
SMURFIT-STONE CONTAINER CORP. 661
regard for the Board’s strong policy in favor of deferral
and the consequences of that policy. As discussed
above, because the Board strongly favors deferral as a
means of promoting industrial peace and the parties’
autonomy, the Board puts the burden on the party seek-
ing to avoid deferral to prove that the arbitrator’s deci-
sion is not even susceptible to an interpretation consistent
with the Act. Thus, the dissent’s position can prevail
only if the Board were to find that the General Counsel
has proven that every reasonable interpretation of the
arbitrator’s decision is repugnant to the Act.
Our dissenting colleague makes clear that she finds the
arbitrator’s discussion of an inherent management-rights
theory repugnant to the Act. Indeed, as discussed above,
we might agree that had that been the only basis for the
arbitrator’s decision, deferral would be inappropriate.
Our dissenting colleague’s easy dismissal of every other
interpretation, however, is not compelling. She does not
dispute that (1) the Respondent argued to the arbitrator
that the management-rights clause privileged it to unilat-
erally implement the new attendance control policy; (2)
the arbitrator referred to the Respondent’s argument; (3)
the arbitrator prominently quoted the management-rights
clause; and (4) the arbitrator immediately followed his
quotation of the management-rights clause with the as-
sertion that the Respondent had the right to make rules.
We find that a reasonable interpretation of the arbitra-
tor’s decision is that he found that the management-rights
clause’s reference to the Respondent’s right to direct the
work force included the right to set an attendance control
policy. Indeed, the attendance control policy directed the
employees as to when and how often they were obligated
to attend work. Clearly, the General Counsel, who bears
the burden of establishing that the arbitral award is not
susceptible to this interpretation, has not done so.
Our dissenting colleague’s narrow focus also explains
why she fails to see how Columbian Chemicals is distin-
guishable from the instant case. She focuses only on the
discussion in both arbitral decisions of the inherent man-
agement-rights theory. She ignores, however, that, as
discussed above, in Columbian Chemicals that is the only
theory discussed, whereas the arbitral decision here is at
least susceptible to the interpretation that the arbitrator
addressed both a contractually based theory and the in-
herent rights theory.
The dissent’s narrow focus similarly leads to her erro-
neous conclusion that Dennison National is distinguish-
able in a meaningful way. Although in Dennison Na-
tional the arbitrator did not discuss an inherent rights
theory, in both cases the arbitrators relied, at least in part,
on an interpretation of a broadly worded management-
rights clause to find permissible the employer’s unilateral
action.6 If the Board’s precedent required that every in-
terpretation of the arbitrator’s decision be consistent with
the Act, the dissent’s distinction would make a differ-
ence. Because, however, deferral is required as long as
the arbitral decision is susceptible to an interpretation
consistent with the Act, the dissent’s distinction is irrele-
vant.
Accordingly, we find that the General Counsel has not
shown that the statutory and contractual issues are factu-
ally dissimilar or that facts generally relevant to the un-
fair labor issue were withheld from the arbitrator. Addi-
tionally, the General Counsel failed to show that the arbi-
trator’s award is clearly repugnant to the Act. Thus, we
shall defer to the grievance arbitration award and dismiss
the complaint in its entirety.7
ORDER
The National Labor Relations Board reverses the rec-
ommended Order of the administrative law judge and
dismisses the complaint in its entirety.
MEMBER LIEBMAN, dissenting.
The majority strains to find an excuse to defer to the
arbitrator’s decision here, which it concedes is “not a
model of clarity.” In fact, that decision is not susceptible
to an interpretation consistent with the Act. The arbitra-
tor invoked a theory of inherent management rights, un-
der which the Respondent was privileged to unilaterally
impose a new attendance policy on employees (a manda-
tory subject of bargaining under the Act), unless the col-
lective-bargaining agreement affirmatively required bar-
gaining with the Union. This approach is the exact op-
posite of what Section 8(a)(5) of the Act requires. Not
surprisingly, the Board refuses to defer to arbitration
decisions predicated on such theories. But even if the
arbitrator’s decision could fairly be regarded as an inter-
pretation of the agreement’s management-rights clause,
deferral would still be unwarranted. And deferral aside,
the statutory violation in this case was established.

6 Contrary to our dissenting colleague, we do not find the arbitrator’s
interpretation of the management-rights clause to be outside the pa-
rameters of the Act, so as to render deferral inappropriate. It has long
been Board policy to “defer[] to arbitration decisions which find that
language in a general management-rights clause authorizes unilateral
changes in terms and conditions of employment by an employer.”
Southern California Edison Co., 310 NLRB 1229, 1231 (1993).
Our colleague concedes that an arbitral award is not made repugnant
by the fact that the arbitrator has chosen not to apply the “clear and
unmistakable waiver” standard.
7 In light of our deferral to the arbitration award, it is unnecessary for
us to reach the General Counsel’s contention that the judge erred in
finding that the Respondent violated Sec. 8(a)(5) without also finding
that the Respondent violated Sec. 8(d).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD662
I.
The majority’s opinion sets out the relevant factual and
procedural background: Over the Union’s objections, the
Respondent unilaterally implemented a new attendance
control policy. The Union filed a grievance, which the
Respondent denied, asserting that the “establishment of
reasonable rules and policies rest exclusively with man-
agement.” The arbitrator upheld the Respondent’s ac-
tion, but the Board’s administrative law judge declined to
defer to the arbitration award and found that the Respon-
dent had violated its duty to bargain in good faith under
Section 8(a)(5) of the Act.
As I will explain, the judge was correct, starting with
her refusal to defer. This case turns on how the arbitrator
explained his ruling, and so the operative portion of his
decision, which follows a quotation of the collective-
bargaining agreement’s management-rights clause,1 is
worth quoting at length:
Simplistically stated, it is the right of the Com-
pany to make the rules, and it is the right of the Un-
ion to grieve those rules if, in its view, it conflicts
with any provision of the Collective Bargaining
Agreement. As Mr. Lawrimore [an official of the
Respondent] properly stated at the hearing, “With-
out rules we cannot do any of those things (set forth
in Article XVI), and it is obviously always a Man-
agement’s inherent right to make the rules.”
What this case really comes down to is whether
or not, going back as far as 1979, the Company ne-
gotiated the Absentee Attendance Policy with the
Union or did the Company, in fact, simply promul-
gate an absentee policy, not negotiated with the Un-
ion but, of course, asked for and received Union in-
put. Quite clearly, over all of the years, . . . the Ab-
sentee Policy was never the subject of negotiations.
It was only when the “new” Management team . . .
sought to make changes in the policy that the Union
grieved, and that the instant proceeding then ensued.
Arbitrator Goldstein, who had a similar question
put before him ... opined that “The promulgation of
an attendance policy, designed as it is to control ab-
senteeism, is viewed as a fundamental management
right which is to be presumed to be inherent in the
management role absent specific agreement other-

1 Art. XVI, the contract’s management-rights clause, provided:
The operation of the plant and the direction of the work
force therein is the sole responsibility of the company. Such
responsibility includes, among other things, the full right to
assign work, to discharge, discipline, or suspend for just
cause, and the right to hire, transfer, promote, demote, or
layoff employees because of lack of work or for other le-
gitimate reasons.
wise.” I wholeheartedly agree with that statement.
Indeed, it is really incumbent upon Management to
have such policies since it is a means of ensuring
that employees come to work regularly and on time.
To be sure, however, Unions may grieve specific
applications of policies that they deem to be oner-
ous, unfair, lacking in specificity or the like. Man-
agements act and Unions react. Could a company
negotiate an absentee policy with a Union? The an-
swer to that query is, of course, in the affirmative.
However, in my understanding, there is no require-
ment that it do so, absent some contractual require-
ment not present in the instant case. Simply put
then, I find that there has been no contractual breach,
so that the grievance must be denied. [Emphasis
added in part; some emphasis in original omitted].
II.
There is no dispute about the correct legal standard to
apply. Under Olin Corp., 268 NLRB 573 (1984), the
Board defers to an arbitrator’s decision where the arbitra-
tor has adequately considered the unfair labor practice at
issue and his decision is not clearly repugnant to the Act,
i.e., not “palpably wrong” or not “susceptible to an inter-
pretation consistent with the Act.” It is well established,
in turn, that the Board will not defer to an arbitration
decision that is based on the premise of an unrestricted
“inherent” or “basic” management right to act unilater-
ally.2 Similarly, the Board has refused to defer to arbitra-
tion awards premised on the theory that an employer’s
unilateral change in a term of employment is permissible
unless the change is specifically prohibited by the par-
ties’ contract (rather than being affirmatively author-
ized).3 Deferral thus is improper in this case, despite the
majority’s efforts to salvage it by insisting that the arbi-
trator relied on the contract’s management-rights clause
and interpreted that clause in a permissible way.
Any fair reading of the arbitrator’s decision (already
quoted extensively) demonstrates that his analysis was
based on a theory of inherent management rights, which
privileges the employer to act unilaterally, unless a col-
lective-bargaining agreement restricts those rights. Thus
the arbitrator:
(1) observed that “it is the right of the Company
to make the rules;”

2 Columbian Chemicals Co., 307 NLRB 592, 592 fn.1 (1992), enfd.
mem. 993 F.3d 1536 (4th Cir. 1992); Motor Convoy, 303 NLRB 135,
fn. 6 (1991). See also Ciba-Geigy Pharmaceuticals, 264 NLRB 1013,
1016 (1982), enfd. 722 F.2d 1120 (3d Cir. 1983).
3 See Kohler Mix Specialties, 332 NLRB 630, 631 (2000); Haddon
Craftsmen, 300 NLRB 789, 790 fn. 5 (1990), enfd. mem. 937 F.2d 597
(3d Cir. 1991); Armour & Co., 280 NLRB 824, 824 fn. 2 (1986).
SMURFIT-STONE CONTAINER CORP. 663
(2) quoted with approval the testimony of a com-
pany witness that “it is obviously always a Manage-
ment’s inherent right to make the rules;”
(3) stated that he “wholeheartedly agree[d]” with
an earlier arbitrator’s statement that “[t]he promulga-
tion of an attendance policy . . . is viewed as a fun-
damental management right which is presumed to be
inherent in the management role absent specific
agreement otherwise;”
(4) expressed the view that “there is no require-
ment” that an employer bargain over imposition of
an attendance policy “absent some contractual re-
quirement;” and finally
(5) found “no contractual breach,” in the absence
of a contractual requirement to bargain with the Un-
ion.
To say, as the majority does, that “certain statements in the
award arguably are not expressly tied to the management
rights clause” is something of an understatement. Without
reference to a theory of inherent management rights, the
arbitrator’s decision would have no rationale at all.
The Board’s decision in Columbian Chemicals Co.,
supra fn. 2, is directly on point. In that case, the Board
affirmed the decision of an administrative law judge re-
fusing to defer to an arbitration award and finding that
the employer’s unilateral change in its attendance policy
violated Section 8(a)(5). As the Columbian Chemicals
Board explained, the arbitrator there
found that there was a “basic management prerogative”
to take the action. He then found nothing in the con-
tract to take away that prerogative. In these circum-
stances, it is clear that the arbitrator did not rely on the
management-rights clause to find the managerial pre-
rogative.
307 NLRB at 592 fn. 1 (emphasis in original). The Board
accordingly adopted the judge’s decision describing the
arbitrator’s approach as “wholly at odds . . . with the Na-
tional Labor Relations Act, which prohibits unilateral em-
ployer action unless the employer has secured from the un-
ion a waiver of its right to bargain about such matters.” Id.
at 595 (emphasis in original).
I see no way to distinguish Columbian Chemicals.
Contrary to the majority’s view, the arbitrator here did
not, in any real sense, interpret the management-rights
clause, as the Board’s case law requires. Merely quoting
the clause is not enough. And certainly the arbitrator did
not interpret the clause independent of the inherent man-
agement-rights theory that permeates his decision. In-
deed, the arbitrator’s reliance on that theory explains why
he made no attempt to explain how the language of man-
agement-rights clause could be read to affirmatively au-
thorize unilateral employer action (as the Board’s law
demands).
This case is easily distinguishable, then, from the deci-
sion on which the majority relies, Dennison National
Co., 296 NLRB 169 (1989).4 There, the arbitrator undis-
putedly interpreted the parties’ collective-bargaining
agreement, concluding that its management-rights clause
granted the employer the right to act unilaterally with
respect to the elimination of a job classification. Nota-
bly, the Dennison National Board itself distinguished
Armour & Co., 280 NLRB 824 (1986), where deferral
was rejected because the arbitrator (like the arbitrator
here) “merely determined that ‘nothing in the contract’
prohibited the respondent from taking the unilateral ac-
tion in question.” 296 NLRB at 170 fn. 6.
III.
Even if the arbitrator’s invocation of the inherent man-
agement-rights theory could be cordoned off as dicta (as
the majority would do), and his decision viewed as
purely an interpretation of the agreement’s management-
rights clause, deferral would still be unwarranted. The
majority asserts—three times—that my focus is “nar-
row.” Triple emphasis does not make it so.
I agree, of course, with the majority’s observation that
“‘consistent with the Act’ does not mean that the Board
would necessarily reach the same result,” but rather
“only that the arbitral result is within the broad parame-
ters of the Act.” Here, however, the arbitral decision,
treated as interpretation of the management-rights clause,
falls outside the “broad parameters of the Act.”
Under well-established Board law, that clause may not
even arguably be interpreted as waiving the Union’s right
to bargain over a change in the attendance policy. See
generally Johnson-Bateman Co., 295 NLRB 180, 184–
185 (1989). The clause makes no reference to attendance
or to the employer’s right to establish rules or policies of
any sort, nor does the clause assert that management re-
tains the authority to act unilaterally except as limited by
the parties’ agreement. Compare, Dennison National
Co., supra, 296 NLRB at 170 fn. 5 (deferring to arbitra-
tion where management-rights clause authorized unilat-
eral action “except as subject to the provisions of this
contract”). Although the Board has not demanded that
arbitrators apply its own “clear and unmistakable waiver”
standard, the Board nevertheless “will determine whether
a particular award is ‘clearly repugnant to the Act’ by

4 I take no position on whether Dennison National was correctly de-
cided. As commentators have pointed out, the Board’s decisions in-
volving deferral to arbitration in refusal-to-bargain cases seem “less
than consistent.” See Robert A. Gorman & Matthew W. Finkin, Basic
Text on Labor Law §31.5 at 1039 (2d ed. 2004).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD664
reviewing all the circumstances, including the contractual
language . . . .” Southern California Edison Co., 310
NLRB 1229, 1231 (1993) (deferring to arbitrator’s deci-
sion that contract clause authorizing promulgation of
safety rules authorized unilateral implementation of
drug-testing requirement).
IV.
With no basis for deferring to the arbitration decision,
the Board should reach the merits and find a violation of
Section 8(a)(5), essentially for the reasons the judge did.
Instead, the majority’s decision permits a violation of the
Act to go unremedied, based on an arbitrator’s decision
with a premise antithetical to the Act. If there is a nar-
row focus in this case, it is the majority’s eagerness to
defer, rather than enforce the statutory duty to bargain.
The result represents exactly the abdication of responsi-
bility that the Board had resolved to avoid, even while
adopting a liberal policy of deferral. See United Tech-
nologies Corp., 268 NLRB 557, 560 (1984). Accord-
ingly, I dissent.
Jermaine A. Walker, Esq., for the General Counsel.
Thomas M. Hanna, Esq., for the Respondent.
David Carroll, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge. The
International Brotherhood of Electrical Workers, Local No.
1924, AFL–CIO (the IBEW) filed the original charge on April
24, 2000,1 and an amended charge on January 15, 2003. On
January 27, 2003, the Regional Director for Region 12 of the
National Labor Relations Board (the Board) issued a complaint
and notice of hearing. Based upon the allegations contained in
the charge and amended charge, the complaint alleges that
Smurfit-Stone Container Corporation, Container Division (Re-
spondent) failed to continue in effect all the terms and condi-
tions of the collective-bargaining agreement between the IBEW
and Respondent and implemented a new absentee policy pro-
gram without bargaining with the IBEW.
I heard this case in Jacksonville, Florida, on July 23 2003.
the General Counsel and the Respondent submitted posthearing
briefs, which I have considered. On the entire record, including
my observation of the demeanor of the witnesses, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation, is engaged in the non-
retail business of manufacturing containers at its facility in
Fernandina Beach, Florida, where it annually sells and ships
goods valued in excess of $50,000 directly to points outside the
State of Florida. Respondent admits and I find that it is an

1 All dates are 2000, unless otherwise indicated.
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the IBEW is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. General Background
In its business operation, Respondent converts paper re-
ceived from various paper mills into corrugated boxes. Re-
spondent’s Fernandina Beach property contains both the con-
tainer or box plant as well as a mill plant. While the mill plant
and the container plant are physically located on the same
property and are adjoining buildings, they are in separate divi-
sions and are controlled by totally separate management. Op-
erations Manager Russell Lawrimore testified that while he has
maintained an office at the Fernandina Beach location since
1999, he has never physically been inside the mill plant.
During all relevant time periods, three separate unions have
represented the employees at Respondent’s container plant. As
of July 2003, Respondent employed approximately 78 hourly
employees at the Fernandina container plant. Seventy of the
employees are represented by the International Union of Pa-
perworkers or PACE. The International Association of Ma-
chinists and Aerospace Workers, AFL–CIO (the IAM) repre-
sents 6 of the 78 employees. The remaining two hourly em-
ployees are represented by the IBEW. In March 2000, the
IBEW unit consisted of employees Kyle Trigg and Shawn
Kirby, with Trigg serving as the unit’s shop steward. During
this same time period, Chris Chandler was the president of the
IBEW local and Wayne Teaster was the vice president. James
Gill served as the recording secretary. In December 2000,
David Carroll succeeded Chandler as president of the Union.
For the period of time from February to October 2002 and from
January until mid-June 2003, there was only one employee in
the bargaining unit represented by the IBEW.
B. Respondent’s Attendance Policy
In 1986, Respondent acquired Container Corporation of
America, which maintained a facility in Fernandina Beach,
Florida. Robert Hardie, who serves as Respondent’s director of
human resources for the Container Division, has been em-
ployed by either Respondent or its predecessor for 37 years. In
the early 1970s, Container Corporation of America (CCA),
experienced an EEOC charge at its Greensboro carton plant that
was subsequently lost as a result of the attendance program at
that particular plant. Hardie testified that CCA’s labor relations
department analyzed the case and determined that a standard-
ized absentee program was needed throughout CCA’s manufac-
turing facilities. As CCA’s regional employee relations man-
ager at that time, Hardie was responsible for implementing the
new attendance policy. Hardie testified that after presenting the
new policy to the Fernandina Beach management team, he and
the management team met with the representatives of the three
unions that represented the employees at that time. Hardie
asserted that while he informed the representatives that the plan
would go into effect in 1979, he neither offered to negotiate nor
did he negotiate the plan with the IBEW. To his recollection,
no grievances or unfair labor practices were filed by the IBEW
with respect to this new attendance policy. Hardie testified that
SMURFIT-STONE CONTAINER CORP. 665
the original attendance policy was virtually a “no fault pro-
gram” that did not allow an absence to be excused with a doc-
tor’s statement.
C. 1984 Collective Bargaining
In 1984, Hardie participated in bargaining with the three Un-
ions at the Fernandina Beach plant. He testified that the atten-
dance policy was never brought up during the 1984 negotia-
tions. Carol Floyd Chapin (Floyd), who served as Respon-
dent’s assistant to the general manager, worked at the Fernan-
dina Beach plant from 1976 until her retirement in 2002. In
1984, her responsibilities were expanded to include personnel
and human resources. She identified Respondent’s 1979 atten-
dance policy as the policy in effect when she assumed the addi-
tional human resource duties in 1984. Respondent admits how-
ever, that sometime between its initial promulgation in 1979
and 1984, there was a change to the policy in which absences
resulting from illness or accident, supported by a doctor’s
statement, would not be counted as an absence under the pol-
icy. Neither Respondent nor the IBEW presented evidence as
to how this change in the policy came about.
Floyd participated in the 1984 collective-bargaining negotia-
tions by taking notes for Respondent during the bargaining
sessions. She testified that upon review of the 1984 bargaining
notes, she found that the IBEW made no demands to change the
existing attendance policy. She confirmed that prior to the
beginning of the 1984 negotiations, PACE sought the elimina-
tion of the attendance policy. PACE however, eventually
dropped this demand prior to the completion of the negotia-
tions. Floyd also confirmed that she attended negotiations be-
tween 1984 and 2002 as a member of Respondent’s negotiating
team and that she was responsible for making and keeping
notes of the sessions. She recalled that during this time period,
no union attempted to negotiate with Respondent concerning
the attendance policy. Floyd further testified that following
1984, Respondent made revisions to certain plant and safety
rules and that such revisions were unilaterally promulgated by
Respondent and were not the subject of negotiations with any
union.
D. The March 2000 Change in the Attendance Policy
Lawrimore testified that by letter dated February 26, 2000,
he notified IBEW President Chris Chandler, as well as the
presidents of the other two Unions, that Respondent was going
to implement a new absentee policy program effective March
15, 2000. Larwrimore's letter further added: “We will meet to
discuss any concerns that you may have.” The letter contained
an attachment with the anticipated changes in the attendance
policy. The new policy set out a system for assigning points for
employees’ absences or tardiness. All absences or tardys were
assigned points with the exception of preapproved vacation
time, jury duty, mandatory military duty, funeral leave,
worker’s comptime off, court appearances under a subpoena for
civic responsibility, and absences under the Family Medical
Leave Act. The new policy also set forth the discipline to be
administered as based upon the employee’s accumulated points.
Lawrimore recalled that after sending the letters, he neither
received responses nor requests to bargain from any of the Un-
ions. After receiving no response, Lawrimore contacted Pace’s
President and the shop stewards for the IAM and the IBEW and
scheduled a meeting to discuss the changes in the attendance
policy. The meeting was held on March 7 and attended by
PACE’s president and another Pace representative, IAM’s shop
steward, as well as Respondent’s general manager, Dennis
Weir, Floyd, and Lawrimore. No representative from the
IBEW attended the meeting. Trigg recalled that when asked to
attend the meeting, he told Lawrimore that he had no authority
to discuss changes to the attendance policy and that Lawrimore
would have to speak with Union President Chandler. Lawri-
more acknowledged that he did not attempt to contact Union
President Chandler or to invite him to the March 7 meeting.2
Lawrimore submitted his notes from the meeting with IAM and
PACE and he recalled that PACE President Brown inquired
what would happen under the new policy if employees were
required to work 60 or 70 consecutive days without a scheduled
day off. Lawrimore explained that while he had never experi-
enced this occurring in the past, he understood Brown’s ques-
tion. Lawrimore testified that following this meeting; Respon-
dent changed the policy to add a two-point credit for employees
who work a calendar month without a day off. Additionally,
item 4 in the” notification” section was eliminated and “disci-
plinary layoff” was added as another item under the “No Points
will be assessed” section. While he had no notes for confirma-
tion, he testified that it was his belief that these additional
changes were at the request of the unions.
Union Steward Trigg testified that the first time that he saw a
copy of the new attendance policy was on March 8. Trigg re-
called that Lawrimore gave him a copy to give to IBEW Presi-
dent Chris Chandler. After receiving the copy of the policy,
Trigg met with Chandler the next day and they discussed the
various differences between the new policy and the existing
collective bargaining agreement. Trigg explained that while
doctor’s notes were accepted under the “justifiable cause” sec-
tion of the existing collective-bargaining agreement, the new
attendance policy eliminated the application of the doctor’s
note. The new attendance policy allowed excused absences
only for preapproved vacation time, jury duty, mandatory mili-
tary duty, funeral leave, workers’ comptime off, FMLA, court
appearances under a subpoena for civic responsibility, and dis-
ciplinary layoff. Article IX of the collective-bargaining agree-
ment however, provides that an employee “shall be considered
absent for justifiable cause” if he is so sick that he is unable to
report for work and is able to prove such sickness or if the sick-
ness or death of some member of his family makes his atten-
dance impossible, and he is able to prove such sickness or
death. Article IV, section 8 of the agreement also provides that
an employee absent on one of his regularly scheduled workdays
during the week shall not receive Sunday overtime pay unless
the absence was for “justifiable cause” as defined in article IX.
Article VII, section 2 further provides that “If an employee is
scheduled to work on any such holidays [as listed in sec. 1] and
fails to report without justifiable cause, as defined in Article IX,

2 Lawrimore testified that when he schedules monthly la-
bor/management meetings, he usually asks PACE’s president and the
union stewards from the two trade unions to the meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD666
he shall not receive such holiday pay.” Trigg also pointed out
that the new attendance policy provides that an employee who
cannot be present for the regularly scheduled work period is
required to notify Respondent at least 4 hours in advance by
calling the main gate security office. Article XVII of the col-
lective-bargaining agreement requires the employee to give
notification of his inability to report for duty at least 4 hours
before his tour, except where circumstances beyond the em-
ployee’s control prevents him from giving such notice. In those
instances, the employee is required to give notice to his fore-
man as soon as possible.
Union President Christopher Chandler testified that prior to
the implementation of the new attendance policy on March 15,
he requested that Lawrimore meet with him to discuss the pol-
icy.3 Chandler further testified that he told Lawrimore that he
would be willing to sit down and negotiate an attendance policy
with him at any time and Lawrimore refused. Chandler did not
identify the date or the circumstances in which this request was
made to Lawrimore. He further recalled that while he was out
of town, he received a telephone call from Vice President
Wayne Teaster, advising him that Respondent desired to meet
with the Union. Chandler advised Teaster to meet with Re-
spondent.
Teaster recalled that Gill, Trigg, and he met with manage-
ment representatives Lawrimore, Dwayne Lott, and Dennis
Weir on March 13. Teaster could not recall if Respondent or
the IBEW initiated meeting. He only recalled that Chandler
had been out of town and had asked him to fill in for him in the
meeting. During the meeting, Trigg pointed out that the new
attendance policy conflicted with the collective-bargaining
agreement. Teaster also recalled that he told Lawrimore that
the new attendance policy was a unilateral change and a matter
of bargaining and that the IBEW wanted to bargain about the
policy. Teaster testified that Lawrimore stated that the policy
was a matter of company policy and Respondent did not have
to bargain concerning the policy. Trigg recalled Weir’s stating
that the policy was a standard absentee policy and Respondent
was going to implement the policy on March 15. Trigg testi-
fied that while Respondent would not agree to his tape-
recording the meeting, he took written notes. The notes reflect
that Trigg brought up the various portions of the policy that the
IBEW asserted to be in conflict with the existing bargaining
agreement. Trigg noted that Weir told the union representa-
tives that while Respondent would not bargain about the policy,
Respondent would consider any points that the Union might
have.
Lawrimore recalled that during the meeting with the IBEW,
he asked Teaster if there was anything in specific about the
policy that he didn’t like and which could be worked through as
they had done with the other unions. Lawrimore testified that
Teaster did not discuss any specific problems with the policy
but stated that he was not in a position to negotiate or bargain
about the attendance policy and that Respondent could not im-

3 Although Chandler testified that he requested bargaining concern-
ing the new attendance policy, he never acknowledged when he first
learned of the proposed changes. He neither confirmed nor denied that
he received Lawrimore’s February 26, 2000 letter.
plement the policy without bargaining with the Union. Lawri-
more admitted that during the meeting, he told Teaster that
Respondent was not going to negotiate the policy.
On March 15, the new attendance policy was implemented.
All of the employees’ attendance records were wiped clean and
employees were placed at zero points. On March 28, the IBEW
filed a grievance, asserting that the attendance policy was in
conflict with the existing agreement and past practice.4 On
May 5, Trigg received a verbal warning under the new atten-
dance policy and the IBEW filed a grievance on May 11.5 On
June 13, Regional Employee Relations Manager Michael Wil-
liams sent letters to the local presidents of both IAM and
IBEW, denying the respective grievances. Williams referenced
a discussion with both presidents on June 5. The letters are
identical and Williams included the following as a part of his
letter:
As we discussed, it is the Company’s view that establishment
of reasonable rules and policies rest exclusively with man-
agement. The attendance policy, in our opinion, meets such
criteria. This policy change reinforces the needs to have em-
ployees report when scheduled on a regular basis. Further, it
is our belief that Article IX, Justifiable Cause, only relates to
an employee’s absence in relation to Holiday Pay. It does not
excuse an absence under the previous or present attendance
policy.
No grievance was filed by PACE. Lawrimore testified without
contradiction that the IAM pursued the grievance only to the
third step.
E. 2001 Changes to the Attendance Policy
Lawrimore testified that at some point during 2001, some of
the PACE representatives told him that they had issues with the
attendance policy that they wanted to discuss. Lawrimore
scheduled a meeting and invited PACE representatives as well
as the IBEW and IAM shop stewards. Lawrimore explained
that the PACE local is unique to the container plant as its offi-
cers are physically in the plant. There is a separate PACE local
for the employees in the mill plant. In contrast, the IAM and
the IBEW locals represent employees in both the container
plant and the mill plant. Lawrimore testified that he had not
invited the IBEW’s president or vice president because it was
customary to invite the shop stewards for IAM and the IBEW
when they were talking about changes that only affected the
container plant. Lawrimore testified that prior to the meeting he
talked with Shop Steward Trigg and told him that the meeting
was to review the attendance policy. Lawrimore maintained
that Trigg responded by stating that there was a grievance
pending and he was not in a position to negotiate. PACE Presi-
dent Brown and the IAM union steward attended the meeting.
Neither Trigg nor any other IBEW representative attended the
meeting. The PACE and IAM representatives brought up four

4 On March 22, IAM filed a grievance based upon Respondent’s
failure to negotiate the attendance policy. The grievance was later
abandoned.
5 Trigg was terminated for the second time under the new attendance
policy on December 5 and the IBEW filed a grievance regarding his
termination.
SMURFIT-STONE CONTAINER CORP. 667
specific concerns with respect to the program. Lawrimore re-
called that PACE suggested that the “calendar month” assess-
ment period should be changed to a “thirty day” period. Addi-
tionally, the PACE representative wanted to add “Union Busi-
ness” as an absence for which no points would be assessed and
wanted changes in the “court appearance” language portion of
the policy. The IAM representative proposed the inclusion of
an incentive program to reward those employees who report
timely to work. Lawrimore testified that on September 25,
2001, the attendance policy was amended. In response to the
unions’ suggestions, the assessment period was changed to a 5-
week revolving period and “Prearranged Union Business” was
added as an absence for which no points would be assessed.
No changes were made in the court appearance language.
On October 4, 2001, IBEW President Carroll sent an e-mail
message to Respondent concerning the September 25, 2001
changes. Carroll explained that the IBEW had heard that Re-
spondent had changed the attendance policy again, however the
Union had not been involved in either attendance policy
change. Carroll reminded Respondent that there was an out-
standing grievance concerning the first attendance policy
changes and stated that the IBEW strongly contends that it must
be involved beforehand in any changes that affect employment.
F. The Arbitration
After filing its March 28, 2000 grievance concerning the
change in the attendance policy, the IBEW also filed the under-
lying unfair labor practice charge in this matter on April 24,
2000. The charge was subsequently deferred to the griev-
ance/arbitration procedure under the Board’s deferral policy.6
In his June 3, 2002 award, the arbitrator stated that the IBEW
identified the issue as “Did the Company violated the Collec-
tive Bargaining Agreement when they unilaterally changed the
Attendance Policy effect March 15, 2000.” The arbitrator also
explained that issues sought to be resolved by Respondent dealt
with whether the contract restricted the right to establish rea-
sonable rules of conduct, whether the contract required Re-
spondent to negotiate with the IBEW before implementing the
changes, and whether the IBEW waived any right to negotiate.
Despite the issues articulated by the parties, the arbitrator
framed the issue before him as “what shall be the disposition of
the grievance.”
G. 2002 Collective Bargaining
The 1998 collective-bargaining agreement between the
IBEW and Respondent provided that the agreement would
remain in effect until July 15, 2003, and was self-renewing for
yearly periods thereafter unless either party provided written
notice of intent to modify the agreement. In 2002, Respondent
proposed to each Union an extension of the existing collective-
bargaining agreements to 2008. Regional Employee Relations
Manager William Lavin recalled that he prepared a memoran-
dum of agreement that provided for an extension of the agree-
ments primarily with respect to economic items. Lavin met
first with PACE and then with the IAM and the IBEW. Re-
spondent provided bargaining notes from its meetings with the

6 Collyer Insulated Wire, 192 NLRB 837 (1971).
union beginning on July 30, 2002. Lavin testified that when he
spoke with the Unions, he told them that Respondent was pro-
posing a 5-year extension that was primarily economic in na-
ture. He recalled that he told the Unions that if they had any
“burning issues” and they wanted to talk about some language
item or “whatever,” Respondent would be glad to listen. Lavin
recalled that on August 8 2002, he and the management team
initially met individually with the three Unions and then later
collectively with the representatives of all three Unions to de-
termine if there were any additional questions. Lavin testified
that Respondent’s proposed agreement extension was accepted
by the IBEW. None of the Unions requested any language
changes in the existing agreement. The only language change
was proposed by Respondent and dealt with the transfer clause.
An agreement was reached with the IAM and the IBEW and the
terms of that agreement were included in a separate letter of
agreement rather than included in the full collective-bargaining
agreement. Lavin testified that there was no discussion of the
attendance policy during the August 2002 negotiations.
Floyd testified that she also took notes during the 2002 nego-
tiations with the Unions. Floyd’s notes reflect that during the
first bargaining session, the PACE representative raised the
issue of the attendance policy and inquired as to whether there
would be additional changes. Respondent’s representative
responded that the policy was a management prerogative and
while no additional changes were foreseen, Respondent re-
served the right to change if there was a business necessity.
Respondent’s bargaining notes from the August 8 meeting with
the IBEW reflect no discussion concerning the attendance pol-
icy.
III. FACTUAL AND LEGAL CONCLUSIONS
A. Whether Respondent Unilaterally Modified the Collective-
Bargaining Agreement
Respondent does not dispute that it implemented the change
in the attendance policy without bargaining with the IBEW.
Respondent contends however, that it was authorized to do so
by virtue of the management-rights clause and further argues
that the IBEW has waived its right to bargain over the changes
made in the attendance policy.
Generally, an employer whose employees are represented by
a union may not unilaterally change the represented employees’
terms and conditions of employment without first giving the
union notice and an opportunity to bargain over the proposed
changes. NLRB v. Katz, 369 U.S. 736 (1962). While an em-
ployer may propose midterm modifications of a collective-
bargaining agreement, a union is not obligated to agree to the
changes or even to bargain about them during the contract term.
Mohawk Liqueur Co., 300 NLRB 1075, 1083 (1990). Further,
when an employer repudiates a collective-bargaining agreement
by modifying terms which involve a subject of mandatory bar-
gaining, it is within the Board’s authority to deem such modifi-
cation a violation of Section 8(a)(1) and (5). Oak Cliff-Golman
Baking Co., 207 NLRB 1063 (1973), enfd. 505 F.2d 1302 (5th
Cir. 1974), cert. denied 423 U.S. 826 (1975).
There is no dispute that while the 1979 attendance policy
may have been based upon a “no fault” criteria, providing that
all absences and tardys were considered for evaluation despite
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD668
the reason for the absence, the policy was modified over time.
Respondent does not dispute that sometime between 1979 and
2000, the policy was modified to recognize doctor’s statements
as justification for some employee absences. The parties’ col-
lective-bargaining agreement that was in effect on March 15,
2000 provides in article IX that an employee shall be consid-
ered absent for justifiable cause if he is “so sick that he is un-
able to report for work and is able to prove such sickness” or
“of the sickness or death of some member of his family makes
his attendance impossible, and he is able to prove such sickness
or death.” Respondent’s March 15, 2000 attendance policy
essentially eliminated sections (b) and (c) of article IX by im-
posing the rule that despite the availability of a doctor’s state-
ment, an employee’s absence will nevertheless trigger absence
or tardy points under the policy.
The General Counsel also asserts that Respondent’s March
15, 2000 policy invalidated section 1 of contract article XVII,
which deals with the notification time Respondent requires an
employee to provide when reporting his or her absence from
work. Section 1 provides that if unavoidably prevented from
reporting, an employee must give notice to his foreman, or at
the office at least 4 hours before his tour goes on duty, unless
circumstances beyond the employee’s control prevents him
from giving such notice. General Counsel submits that the new
attendance policy eliminated an employee’s option to provide
less than 4 hours notice when reporting his or her absence, in
cases where circumstances beyond the employee’s control pre-
vented him or her from providing such notice. Under the new
policy, an employee who failed to follow the notification re-
quirements is assessed as “ABSENCE WITH NO CALL IN” and
would be subject to the assignment of 4 attendance points.
Clearly, Respondent’s March 15, 2000 changes to the atten-
dance policy were modifications of the parties’ collective-
bargaining agreement and changes in employees’ terms and
conditions of employment. Respondent does not deny that it
took such action without bargaining with the IBEW.
B. Whether the IBEW Waived Its Right to Bargain
A recognized exception to this rule is that a unilateral change
by an employer may be permissible if the union has “clearly
and unmistakably” waived its statutory right to bargain over the
particular subject matter. Metropolitan Edison Co. v. NLRB,
460 U.S. 693, 708 (1983), Resorts International Hotel Casino
v. NLRB, 996 F.2d 1553, 1559 (3d Cir. 1993). A union’s
waiver of its statutory right to bargain over a particular matter
can occur by the express language in the collective-bargaining
agreement, or it may be implied from the parties’ bargaining
history, past practice, or a combination of both. See KIRO,
Inc., 317 NLRB 1325, 1327 (1995). The Board has consis-
tently found that management rights clauses that are couched in
general terms and make no reference to any particular subject
area will not be construed as waivers of statutory bargaining
rights. The waiver must be clear and unmistakable. Michigan
Bell Telephone Co., 306 NLRB 281 (1992); Johnson-Bateman
Co., 295 NLRB 180, 185 (1989). The test is not whether the
collective-bargaining agreement can be reasonably construed to
affect such a waiver, but rather whether, the undertaking is
“explicitly stated” and thus the bargaining is clearly and unmis-
takably waived. AK Steel Corp., 324 NLRB 173 (1997). In
order to determine whether this test has been met, the Board
has looked to the precise wording of the provision of the
agreement that is in question.
Article XVI of the collective-bargaining agreement provides
in section 1:
The parties recognize that the operation of the plant and the
direction of the work force therein is the sole responsibility of
the company. Such responsibility includes, among other
things, the full right to assign work, to discharge, discipline, or
suspend for just cause, and the right to hire, transfer, promote,
demote, or layoff employees because of lack of work or for
other legitimate reasons.
In reaching its decision in Johnson-Bateman Co., the Board
considered its prior decisions where the management-rights
clauses were not found to be waivers of the union’s right to
bargain about changes in medical benefits or the transfer policy
when the management-rights clauses contained no specific
reference to medical benefits or transfer.7 Even though the
management rights clause in Johnson-Bateman Co. permitted
the employer to unilaterally issue, enforce, and change com-
pany rules, there was no specific reference to the subject matter
involving the unilateral change.
The Board has found that the broad general phrase “manage
the business and direct the working force,” in the absence of
any evidence of bargaining history, fails to demonstrate the
requisite “clear and unmistakable waiver.” See Cypress Lawn
Cemetery Assn. 300 NLRB 609, 615 (1990). Similarly, the
management rights clause provision granting the employer the
‘right to hire, transfer, promote, lay off, and discharge for
proper cause” does not grant the employer the right to unilater-
ally change any and all existing terms and conditions of em-
ployment. Suffolk Child Development Center, 277 NLRB
1345, 1350 (1985).
Respondent would also argue that the IBEW waived its right
to bargain about the change in the attendance policy, contend-
ing that notice was given and there was no timely request to
bargain. I do not find this to be the case. Trigg testified that he
first learned of the proposed change in the attendance policy on
March 8. Although President Carroll testified that he requested
that Respondent bargain with the IBEW about the changes in
the policy, he does not acknowledge when he first received
notice of the proposed change. Lawrimore’s testimony that he
sent Carroll a copy of the February 26 letter is unrebutted.
Accordingly, based upon Lawrimore’s unrebutted testimony, I
find that initial notice of the proposed change was provided to
the IBEW in Lawrimore’s February 26 letter. The Board has
long held that a reasonable time between notifying the union of
a proposed change and its implementation is required under an
employer’s obligation to bargain in good faith. As the Board
specifically stated in Giba-Geigy Pharmaceuticals Division,
264 NLRB 1013, 1017 (1982), enfd. 722 F.2d 1120 (3d Cir.
1983):

7 Suffolk Child Development Center, 277 NLRB 1345, 1350 (1985),
Kansas National Education Assn., 275 NLRB 638, 639 (1985).
SMURFIT-STONE CONTAINER CORP. 669
To be timely, the notice must be given sufficiently in advance
of actual implementation of the change to allow a reasonable
opportunity to bargain. However, if the notice is too short a
time before implementation or because the employer has no
intention of changing its mind, then the notice is nothing more
than informing the union of a fait accompli.
The record evidence in this case reflects that Respondent’s
memorandum to Chandler on February 26 merely provided the
Union with notice of a fait accompli regarding the attendance
policy changes that were to be implemented on March 15.
While Lawrimore included a statement that he would meet to
discuss concerns, his doing so did not afford the union with a
meaningful opportunity to bargain. See Midwest Power Sys-
tems, 323 NLRB 404, 407 (1997). Although Respondent con-
tends that it made some changes in the proposed policy after
talking with PACE and IAM on March 7, Respondent does not
deny that it did not waiver in its position with the IBEW or any
of the Unions that it had no obligation to bargain concerning
the changes in the policy. Respondent contends that it set up
the March 7 meeting with the Unions to discuss their concerns
and contends that it made some changes in response to their
concerns. I do not find that in doing so Respondent satisfied its
requisite duty to bargain. The Board has found that an em-
ployer does not satisfy its duty to bargain when it meets to dis-
cuss the announced changes, yet manifests its belief that it is
not obligated to bargain over the changes. Ciba-Geigy Phar-
maceuticals Division, supra at 1017. Further, an employer does
not satisfy its bargaining obligation even though it may indicate
that it is willing to discuss the decision that it has made, and yet
refuses to delay implementation of its decision. Mercy Hospi-
tal, 311 NLRB 869, 873 (1993). Accordingly, the union does
not waive its right to bargain when the change has essentially
been made irrevocable prior to the notice or has otherwise been
announced as a matter on which the employer will not bargain.
Id at 873.
The Union presented no evidence that it made any written
request to bargain about the proposed changed in the attendance
policy prior to the March 15 implementation. The only written
documentation of any request to bargain is Kyle Trigg’s notes
from the IBEW’s meeting with management representatives on
March 13.8 While it may have been more prudent for the
IBEW to make a specific written request to bargain immedi-
ately upon receiving the February 26 notice, I do not find that
the Union has waived its right to bargain by its failure to do so.
The absence of clear evidence that the Union requested bar-
gaining on the matter in issue is not dispositive, as the Board
does not require a union to request bargaining when confronted
with a fait accompli. Migali Industries, 285 NLRB 820, 821

8 Lawrimore testified that during the March 13 meeting, Teaster did
not discuss any specific problems with the policy and only stated that
he was not in a position to negotiate or bargain about the attendance
policy. I do not credit Lawrimore’s recall of this meeting. I find it
incredible that the IBEW specifically met with Respondent to discuss
its concerns about the attendance policy scheduled for implementation
in two days and yet provided no specifics as to why the union wanted to
bargain about the policy. I credit Teaster and Trigg in their description
of what occurred during the March 13 meeting.
(1987), Insulating Fabricators, 144 NLRB 1325, 1331–1332
(1963).
C. Bargaining History and Past Practice
Respondent asserts that the original attendance policy was
implemented in the late 1970s without objection by the IBEW.
Respondent argues that no reference was made to the atten-
dance policy during the 1984 negotiations and further argues
that by its silence the IBEW waived its right to bargain con-
cerning any further changes in the attendance policy. The
Board has declined to find that a party to a contract has waived
its rights to bargain concerning mandatory subjects of bargain-
ing simply because it failed to mention the subject; instead the
Board requires “a conscious relinquishment by the union,
clearly intended and expressed.” See Elizabethtown Water Co.,
234 NLRB 318, 320 (1978), Perkins Machine Co., 141 NLRB
98, 102 (1963). The matter must be “fully discussed” and
“consciously explored.” Bunker Hill Co., 208 NLRB 27, 33
(1973), New York Mirror, 151 NLRB 834, 840 (1965). Admit-
tedly, inasmuch as there was no mention, much less discussion
of the attendance rules, I must conclude that there was no dis-
cussion or agreement that the management rights clause permit-
ted unilateral changes in the existing attendance policy. Thus, I
don’t find that the absence of discussion of the attendance pol-
icy in the 1984 negotiations constituted the Union’s waiver of
its right to bargain about that subject. Johnson-Bateman Co.,
supra at 187.
Respondent also asserts that over time changes were made to
the attendance policy without bargaining with the Union. As
noted by the Board in Owens-Corning Fiberglas, 282 NLRB
609 (1987), the fact that an employer previously changed the
terms of a particular program or policy without bargaining does
not preclude a union from demanding to bargain over the most
recent change. Specifically, I note that the Board in Murphy
Diesel Co., 184 NLRB 757, 763 (1970), enfd. 454 F.2d 303
(7th Cir. 1971) held that the union’s past acquiescence in the
employer’s unilateral promulgation of work rules concerning
lateness and absenteeism did not constitute a waiver of the
union’s right to bargain about the employer’s subsequent
promulgation of stricter rules concerning lateness and absentee-
ism. As the Board further noted in Exxon Research & Engi-
neering Co., 317 NLRB 675 at 685–686 (1995),9 “union acqui-
escence in past changes to a bargainable subject does not beto-
ken a surrender of the right to bargain at the next time the em-
ployer might wish to make yet further changes, not even when
such further changes arguable are similar to those in which the
union may have acquiesced in the past.” Thus, I do not find
that the IBEW’s acquiescence by failing to demand previous
bargaining concerning the attendance policy sufficient to con-
stitute a waiver of its right to bargain over the 2000 changes in
the attendance policy. See Guard Publishing Co., 339 NLRB
353, 357 (2003). Likewise, I do not find the IBEW’s failure to
request bargaining about the attendance policy during the 2002
negotiations to constitute a waiver of its bargaining rights. At

9 The Fifth Circuit Court of Appeals denied enforcement because the
court determined that ERISA trustees rather than the employer ordered
unilateral changes to the employees’ ERISA benefit plan. Exxon Re-
search & Engineering Co. v. NLRB, 89 F.3d 228 (5th Cir. 1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD670
the time of the contract renewal negotiations in 2002, the IBEW
had already filed an unfair labor practice charge with the Board
on April 24, 2000, as well as a grievance through the grievance-
arbitration provision of the collective-bargaining agreement.
The arbitrator had issued his decision approximately 5 months
earlier. While complaint did not issue in this matter until Janu-
ary 27, 2003, there is no evidence that the IBEW withdrew its
charge or abandoned its position despite the arbitrator’s Febru-
ary 2002 ruling. President Carroll acknowledged that there was
no discussion during the 2002 contract negotiations concerning
the 2000 changes to the attendance policy. Carroll testified that
the Union had already filed a charge with the Board as well as
the grievance and he was certainly aware of Respondent’s posi-
tion on the attendance policy. Carroll explained that he felt that
the attendance was a separate issue that was already being ad-
dressed in the unfair labor practice as well as in the grievance.
The very fact that as of the 2002 negotiations, the IBEW had
not withdrawn either its grievance or its unfair labor practice
charge would evidence its position on the change in the atten-
dance policy. The failure to again raise the issue during the
2002 negotiations does not constitute a waiver of its right to
bargain concerning this unilateral change.
D. Whether Deferral to the Arbitrator’s Award is Appropriate
On February 20, 2002, the IBEW’s March 28, 2000 griev-
ance was arbitrated before a mutually chosen arbitrator. In his
decision of June 3, 2002, the arbitrator referenced the contract’s
management-rights clause giving the Respondent the sole re-
sponsibility to operate the plant and direct the work force.
Relying upon the decision of an arbitrator in another case, the
arbitrator stated: “the promulgation of an attendance policy,
designed as it is to control absenteeism, is a fundamental man-
agement right which is presumed to be inherent in the man-
agement role absent specific agreement otherwise.” In an ab-
breviated explanation of his rationale, the arbitrator further
stated: “Indeed, it is really incumbent upon Management to
have such policies since it is a means of ensuring that employ-
ees come to work regularly and on time.” The arbitrator found
that there is no requirement that an employer negotiate an ab-
sentee policy with a union in the absence of some contractual
requirement. Finding there to be no contractual breach, the
grievance was denied.
Both Respondent and the General Counsel agree that the
Board’s practice is to defer to an arbitrator’s decision if the
arbitration proceedings were fair and regular, all parties agreed
to be bound, the decision of the arbitrator is clearly not repug-
nant to the purpose and policies of the Act, and the arbitrator
adequately considered the unfair labor practice issues that the
Board is called upon to decide. Spielberg Mfg. Co., 112 NLRB
1080, 1082 (1955), Olin Corp., 268 NLRB 573 (1984). In its
decision in Olin, id at 574, the Board further confirmed that it
would find that an arbitrator had adequately considered the
unfair labor practice issue if (1) the contractual issue is factu-
ally parallel to the unfair labor practice issue and (2) the arbitra-
tor was presented generally with the facts relevant to resolving
the unfair labor practice. The Board has further determined that
deferral is inappropriate under the clearly repugnant standard
only when the arbitrator’s award is not susceptible to an inter-
pretation consistent with the Act. Motor Convoy, 303 NLRB
135 (1991).
While Respondent argues that deferral to the arbitration
award is appropriate, General Counsel argues that the issue
analyzed by the arbitrator was not parallel to the unfair labor
practice issues and the arbitrator’s opinion and award is repug-
nant to the Act and insusceptible to an interpretation consistent
with the Act.
The Board reiterated its position in NCR Corp., 271 NLRB
1212, 1213 (1984), that when “an employer has a sound argu-
able basis for ascribing a particular meaning to his contract and
his action is in accordance with the terms of the contract as he
construes it,” the Board will not enter the dispute to serve the
function of arbitrator in determining which party’s interpreta-
tion is correct.10
When the language is clear and unambiguous however, the
interpretative skills of an arbitrator are unnecessary, and the
Board is thereby not required to defer the issue to arbitration.
Grane Health Care, Inc., 337 NLRB 432, 436 (2002). In the
present case, there is no contractual provision specifically ad-
dressing the subject matter of Respondent’s changes nor sus-
ceptible of two equally plausible interpretations. Further, I note
that Respondent does not cite a clause or clauses in the contract
that are susceptible to more than one plausible interpretation
and Respondent simply relies upon a broad management-rights
clause as a basis for its unilateral change in the attendance pol-
icy. Thus, the issue does not appear to be based solely upon
contract interpretation.
In his brief, counsel for Respondent cites Dennison National
Co., 296 NLRB 169, 170 (1989), arguing that the Board has
deferred to an arbitrator’s award based upon a general man-
agement rights clause, despite the fact that the contract did not
expressly waive the right to bargain over the subject of the
grievance. Respondent argues that in the instant matter, the
arbitrator found that Respondent “had to have the right to make
rules in order to implement its contractual rights ‘to discharge,
to discipline, or suspend for just cause.’” Respondent is correct
that in Dennison National Co., the arbitrator expressly found
that under the management-rights clause of the contract, the
employer had the right to act unilaterally. While the arbitrator
specifically found that the right to unilaterally eliminate a clas-
sification was a right reserved to it by the management rights
clause, the Board also noted “an employer can violate its statu-
tory obligation to bargain without also violating its collective-
bargaining agreement.”11
In Columbian Chemicals Co., 307 NLRB 592 (1992), how-
ever, the Board declined deferral to the arbitrator’s decision. In
doing so, the Board noted that the arbitrator did not find the
management-rights clause as the authority for the employer’s
unilateral action. Rather than relying upon the management
rights-clause, the arbitrator relied upon a “basic management
prerogative” as the authority to change the rules in issue. Cer-
tainly, in this matter, the arbitrator’s determination that the
promulgation of the attendance policy was a “fundamental

10 Citing language from its previous decision in Vickers, Inc., 153
NLRB 451, 570 (1965).
11 Dennison National Co., id at 170 fn. 6.
SMURFIT-STONE CONTAINER CORP. 671
management right” is clearly analogous to the arbitrator’s ra-
tionale in Columbian Chemicals Co. In his June 2002 decision,
the arbitrator cited the management-rights clause as simply
giving Respondent the right to make rules. In the arbitration in
issue here, the arbitrator went on to state:
Managements act and Unions react. Could a company nego-
tiate an absentee policy with a Union? The answer to that
query is, of course, in the affirmative. However, in my under-
standing, there is no requirement that it do so, absent some
contractual requirement, not present in the instant case. Sim-
ply put then, I find that there has been no contractual breach,
so that the grievance must be denied.
In Armour & Co., 280 NLRB 824 fn. 2 (1986), the arbitrator
found that the parties’ contract did not prohibit a challenged
unilateral change by the employer, but the arbitrator did not
consider whether the respondent employer had fulfilled, or the
union had agreed to waive, any statutory duty to bargain. In
declining to defer, the Board noted that the absence of a “con-
tract prohibition” of the employer’s action was neither conclu-
sive of the statutory issue nor inconsistent with a finding that
the respondent employer had breached its statutory duty to
bargain.
I find the circumstances of this case similar to those involved
in a recent Board decision where the Board found that the arbi-
trator did not adequately consider the unfair labor practice is-
sue. In Kohler Mix Specialties, 332 NLRB 630, 632 (2000), the
Board opined that the issue before the Board was whether the
respondent, by failing and refusing to bargain with the union
about its decision to unilaterally subcontract its over-the-road
delivery operation, violated respondent’s statutory obligation to
bargain under Section 8(d) and 8(a)(5) of the Act. The Board
noted that in order to make such a determination, it was neces-
sary to determine whether the decision was a mandatory subject
of bargaining, whether the union waived its right to bargain
over the decision or effects, and whether the employer satisfied
its statutory obligation to bargain. The arbitrator however,
limited his analysis to whether any provision of the parties’
contract prohibited the employer’s unilateral decision to sub-
contract the over-the-road delivery operation.
Based upon the entire record, I do not find that deferral to the
arbitrator’s decision is appropriate. The arbitrator made no
finding as to whether the unilateral change in the attendance
policy was a mandatory subject of bargaining or whether the
attendance policy changes unilaterally changed the terms of the
collective-bargaining agreement. Additionally while the arbi-
trator concluded that over the years the absentee policy was
never the subject of negotiations, the arbitrator did not address
whether the union waived its right to bargain in negotiations or
otherwise.
In summary, I do not find that the issues analyzed by the ar-
bitrator were parallel to the unfair labor practice issues and the
arbitrator’s award is clearly repugnant to the Act and insuscep-
tible to an interpretation consistent with the Act.12 Accord-

12 Kohler Mix Specialties, supra at 2, Haddon Craftsmen, Inc., 300
NLRB 789, 790 fn. 5 (1990).
ingly, I do not find deferral to the arbitrator’s award appropri-
ate.
E. Whether the Unit Size Excuses Respondent’s Bargaining
Obligation
Complaint paragraph 5 sets forth the bargaining unit descrip-
tion for those employees for whom the IBEW has been the
recognized and designated exclusive representative at all mate-
rial times. In its answer, Respondent denies the appropriateness
of the bargaining unit. The record contains testimony and
documentary evidence reflecting that between February 4, until
October 2002 and from January 2003 until June 2003, there
was only one employee in the IBEW unit. Respondent has
presented no evidence to show that there was only one em-
ployee in the bargaining unit at the time of its unilateral imple-
mentation of its attendance policy in March 2000. Despite
Respondent’s position on the appropriateness of the unit, the
Board has long held that when an employer employs more than
one unit employee on a permanent basis, such employer is not
privileged to unilaterally change terms and conditions of em-
ployment without affording the union an opportunity to bar-
gain. Copier Care Plus, 324 NLRB 785 fn. 3 (1997). Crispo
Cake Cone Co., 190 NLRB 352 (1971). It is Respondent’s
burden to establish the existence of a stable single-employee
unit and that the reduction in unit size is a permanent reduction
and not merely a temporary happenstance resulting from per-
sonnel shifts. Ray Black & Sons Co., 335 NLRB 457 (2001);
Goodman Investment Co., 292 NLRB 340, 348 (1989).
Respondent has not met its burden of establishing that any
reductions in the unit were permanent. The record reflects that
there has been more than one unit employee for significant
periods of time, including the time in which Respondent unlaw-
fully implemented its March 15, 2000 attendance policy and at
the present. Accordingly, the size of the bargaining unit neither
excuses Respondent’s bargaining obligation nor invalidates the
appropriateness of the unit.
F. Conclusions
The foregoing leads me to find that the March 15, 2000 at-
tendance policy constitutes material, substantial, and significant
alterations of the preexisting attendance policy as well as a
unilateral modification of the terms of the parties’ collective-
bargaining agreement and that Respondent unilaterally imple-
mented these changes without affording the IBEW a meaning-
ful opportunity to bargain about the changes or the effect of the
changes on the bargaining unit employees. I conclude there-
fore, that in doing so, Respondent has violated and continues to
violate Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent, Smurfit-Stone Container Corporation, Con-
tainer Division, is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, the International Brotherhood of Electrical
Workers, Local No. 1924, AFL–CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. The bargaining unit as described in Paragraph 5 of the
complaint constitutes an appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(a) of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD672
Act, and at all times material, the IBEW has been the exclusive
bargaining representative of the employees in the aforesaid
unit.
4. By unilaterally implementing the March 15, 2000 atten-
dance policy, the Respondent has violated Section 8(a)(5) and
(1) of the Act.
5. The unfair labor practices committed by Respondent are
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Specifically, Respondent must cease and desist from the con-
tinued implementation of the March 15, 2000 attendance pol-
icy, rescind the unilaterally implemented attendance policy, and
cease disciplining employees pursuant to this policy. I shall
recommend that Respondent fully restore the status quo ante
that existed at the time of its unlawful actions by rescinding the
disciplinary actions against bargaining unit employees resulting
from the unilaterally instituted attendance policy. I shall fur-
ther recommend that Respondent offer all bargaining unit em-
ployees discharged, suspended, or otherwise denied work op-
portunities as a result of this unilaterally implemented atten-
dance policy, immediate and full reinstatement and make the
employees whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest, as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Respondent shall also be required to remove from its files
any and all references to the unlawful discharges, suspensions,
and discipline and to notify all employees so affected in writing
that this has been done.
[Recommended Order omitted from publication.]