NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
California Offset
Printers, Inc. and Graphic Communications
April 12, 2007
DECISION AND ORDER
By Members Schaumber, Kirsanow, and
Walsh
On June 23, 2006,
Administrative Law Judge Lana H. Parke issued the attached decision. The
General Counsel filed partial exceptions and a supporting brief.
The National Labor
Relations Board has delegated its authority in this proceeding to a
three-member panel.
The Board
has considered the decision and the record in light of the exceptions and brief
and has decided to affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order and to adopt the
recommended Order as modified and set forth in full below.[1]
The issue before the Board
is whether the Respondent violated Section 8(a)(5) and (1) of the Act on
January 7, 2006,[2] by
unilaterally establishing a new condition of continued employment and grounds
for discipline: requiring that employees be reachable and responsive to being
called back to work on their time off, 24 hours a day, 7 days a week, and that
they have specified telephonic messaging devices in order to be reachable. The judge found that the terms of the
parties’ collective-bargaining agreement privileged the Respondent to issue the
directive without bargaining. For the reasons stated below, we reverse.
i. facts
A. Background
The Respondent and the
B. The Current Agreement[3]
The implemented Current
Agreement describes rights reserved to management (sec. 3.1) and employment
terms in part as follows:
(Management Rights) 3.1: .
. . The management of the Employer’s business and the direction of its working
force, including but not necessarily limited to the right to . . . maintain
discipline and efficiency of all employees, the right to establish and enforce
shop rules not in conflict with the specific terms of this Agreement, to
establish work schedules and to make changes therein essential to the efficient
operation of the Company, are the normal rights of the Company.
. . . .
5.1 (Temporary Workforce):
Prior to hiring or using temporary employees the Employer shall attempt to
telephonically contact employees covered by this Agreement to determine if they
are available to work
. . . a message shall be left if the
call is unanswered. The employee must return the call not more than four (4)
hours after the message is left … The first employee who accepts an assignment
shall be given the work.
. . . .
11.11: [Shift] schedules
will be posted outside of the manager’s office. The Employer may make changes
in the posted schedules on account of factors beyond its control . . . . Even
if an employee’s name is not on the posted schedule, the employee is deemed
available and may be called into work unless the employee has previously made a
request for the day off and the Employer has approved the request.
. . . .
15.2: The employee’s
seniority and employment shall be terminated in any of the following instances:
a) Justifiable discharge (shall be deemed to include, but not be limited to,
incompetence, inefficiency, absenteeism, refusal to fulfill reasonable
instructions of a supervisor, negligence, insubordination, possession, sale, or
working under the influence of drugs or alcohol, violation of this agreement
and failure to comply with the company’s work and/or safety rules, which shall
be conspicuously posted);
. . . .
g) Absence without
notification to the Company in excess of three (3) days except in proven cases
of inability to report.
. . . .
15.5: The Employer shall
have the right to discharge or discipline any employee for cause.
C. The January 7
directive
On January 7, 2-1/2 years
after implementing the Current Agreement, the Respondent posted a memo at the
facility from Production Manager Frank Leanos to “All Bindery and Mailing
Employees” regarding “Scheduled Times,” stating in pertinent part:
[A]s a contingent of your
continued employment, you are required to be reachable on your time off for
schedule changes beyond our control. You either need a message machine on your
phone, a beeper, or a cell phone. Unless you have a “Request for Time Off”
sheet approved, you are required to respond to our phone call.
I will be diligent in
enforcing these policies. Standard disciplinary action will be taken against
anyone not complying with them.
The Respondent did not
discuss the contents of the memo with the
ii. the judge’s decision
The judge, noting that the
Respondent did not deny that it changed the terms and conditions of its
scheduling procedure, assumed for the purpose of her analysis that the
Respondent changed work terms without offering to bargain with the Union. She found that, notwithstanding the contract’s
silence on how employees are to make themselves accessible for callback work or
the disciplinary consequences of noncompliance, the contract “spells out Respondent’s
general authority.” Thus, according to the judge, by reserving to the Respondent
“the right to maintain discipline and efficiency of all employees, the right to
establish and enforce shop rules not in conflict with the specific terms of
[the] Agreement, to establish work schedules and to make changes therein,” the
parties
clearly and unmistakably
contemplated that Respondent would have comprehensive discretion in those areas.
It follows that Respondent’s requirement that employees arrange some means of
consistently receiving call-backs under threat of discipline is not an unwarranted
extension of its contractually mandated discretion.
Thus, under either the
Board’s “clear and unmistakable waiver” analysis or a “contract coverage”
analysis, the judge concluded that the parties’ Current Agreement privileged
the Respondent’s January 7 directive.
iii. discussion
A. Applicable Legal
Principles
Through its January 7
directive, without offering the Union notice and opportunity to bargain, the Respondent
concededly established a new condition of continued employment and new grounds
for discipline. The question before us is whether the judge correctly found
that the parties’ Current Agreement privileges that new condition.
It is well established that
rules governing the imposition of employee discipline
are mandatory subjects of bargaining.[4] “It is equally well settled that ‘work rules, especially
those involving the imposition of discipline, constitute a mandatory subject of
bargaining.’”[5]
Thus, establishment of a new condition of continued employment and new grounds
for discipline are mandatory bargaining subjects. Under long-settled law, an employer
may make unilateral changes to such mandatory bargaining subjects only if the
union clearly and unmistakably waives its right to negotiate over the
changes. See Metropolitan
Edison Co. v. NLRB, 460
Furthermore, as the Supreme Court
stated in Metropolitan Edison, “we
will not infer from a general contractual provision that the parties intended
to waive a statutorily protected right unless the undertaking is ‘explicitly
stated.’ More succinctly, the waiver must be clear and unmistakable.”
B. Analysis
As the judge
found, the Current Agreement is silent on the subject of the directive—namely, how employees are to make themselves accessible for
callback work and the disciplinary consequences of being unreachable or unresponsive
when called back on their days off.[7]
The contract is also silent on the Respondent’s right to establish new
conditions of continued employment or new grounds for discipline. Nor is there any evidence that these matters
were consciously explored in bargaining.
The Respondent offered no evidence that the parties ever discussed the
subject of its memo and
that the
Specifically, as explained
below, we find no language in the Current Agreement supporting a finding that
the
Section 11.11, which
concerns scheduling, establishes that an employee is “deemed available” and
subject to being called back to work unless he or she has arranged for time off
in advance. This language, simply stating that employees are deemed available,
does not indicate that management has the authority to discharge or discipline
employees who are not reachable or responsive 24 hours a day, 7 days a week,
during their time off, or that employees must use specified telephonic
messaging devices to comply. Moreover,
there is no evidence that the parties have previously interpreted this
provision as providing for discipline. Furthermore, the contract establishes
the employer’s discharge rights for absences at section 15.2(g), which provides
for discharge for “[a]bsence without notification to the Company in excess of
three (3) days except in proven cases of inability to report.” The January 7
directive would lower that bar to provide for discipline or discharge for such
things as the mere failure to return a phone call on a day off, failing to use
one’s answering machine, or being out of cell-phone range. The directive signals
a significant change in the way the Respondent would handle scheduling and discipline.
Nothing in the above provisions indicates that the
Our dissenting colleague
observes that section 15.2(a) of the Current Agreement, establishing grounds
for justifiable discharge, is not limited to the reasons enumerated. He would
therefore find that the parties have reserved to the Respondent discharge
rights that include the right to discharge an employee for not being available
or responsive during time off. We
disagree.
Section 15.2(a) introduces
specific causes for justifiable discharge, stating that just cause shall “include,
but not be limited to” those specifically enumerated causes.[9] As stated above, we do not find waiver unless
it is clear and unmistakable. Metropolitan
Our colleague seeks to
avoid the application of the foregoing canons of construction by relying on the
provision of section 15.2(a) that makes “violation of this agreement” a
justifiable cause for discharge. In his
view, because section 11.11 of the Current Agreement provides that off-duty
employees are “deemed available and may be called into work,” an employee who
fails to be reachable by message machine, beeper, or cell phone has made him-
or herself unavailable and thus violated the agreement. There is no indication, however, that the
parties to the Current Agreement intended the meaning our colleague gives to section
11.11. There is no evidence that
employees have ever been disciplined, let alone discharged, for being
unreachable on their days off. In addition,
the Current Agreement appears to assume that off-duty employees who have not
received prior approval to be off may nonetheless be unavailable to work. Clearly, there would be no reason for the
Respondent to telephone employees it had already approved to be off duty. In relevant part, however, section 5.1
states: “Prior to hiring or using
temporary employees the Employer shall attempt to telephonically contact
employees covered by this Agreement to determine
if they are available to work” (emphasis added). Thus, reading section 11.11 in light of section
5.1, we disagree with our colleague’s suggestion that unavailability constitutes
a violation of the Current Agreement. At minimum, section 5.1 renders the “deemed
available” language in section 11.11 ambiguous; and that ambiguity must be construed
against the Respondent as the drafter of the Current Agreement.[10]
In sum, the requirement set
forth in the January 7 directive, establishing that an employee must respond to
employer calls during time off or face discipline, imposes a significant new
burden on the work force. We find no evidence that the
C. The Status of
Unilaterally Implemented Management-Rights Clauses
In excepting to the judge’s
decision, the General Counsel argued that the judge improperly relied on the
management-rights clause to find privilege. Specifically, the General Counsel
argued, for the first time, that the Current Agreement was implemented after
the parties reached impasse in bargaining, and that under Board law an employer
may not act on a management-rights clause that has been unilaterally
implemented rather than achieved through bargaining.[11]
Although an employer may
unilaterally implement the terms of its final offer once the parties have
reached a lawful impasse over that offer in negotiations, the Board has
established an exception for broad management-rights clauses that would allow
an employer to make future unilateral changes in wages and other key terms and
conditions of employment. See, e.g., McClatchy
Newspapers, 321 NLRB 1386 (1996), enfd. 131 F.3d 1026 (D.C. Cir. 1997),
cert. denied 524 U.S. 937 (1998). The General Counsel argues that, as a waiver
of statutory rights must be clear and unmistakable, “impasse is no substitute
for consent.”[12] The status of the management-rights clause,
however, does not affect our result in this case. Whether bargained for or
unilaterally implemented, the clause does not privilege the content of the
Respondent’s directive. [13]
ORDER
The National Labor
Relations Board adopts the recommended Order of the administrative law judge as
modified and set forth in full below and orders that the Respondent, California
Offset Printers, Inc.,
1. Cease and desist from
(a) Refusing to provide
Graphics Communications Union, Local 404 M, International Brotherhood of Teamsters
(the Union), with requested information relevant and necessary to its
responsibilities as exclusive collective-bargaining representative of a unit of
the Respondent’s mailing, shipping, and offset operations employees (as
described in “Section 1–Recognition” of the 2003–2008 agreement implemented by
the Respondent), i.e., reinstatement agreements or any documents Linda Ponds
and Rebecca Chavira were asked to sign as a requirement of returning to work.
(b) Establishing, as a
condition of employment or a ground for discipline, the requirements that
employees be reachable and responsive to being called back to work on their
time off, and that they have telephonic messaging devices in order to be
reachable (e.g., a telephonic message machine, a beeper, or a cell phone),
without providing the Union notice and opportunity to bargain.
(c) In any like or related
manner interfering with, restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following
affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the
date of this Order, provide the Union with the information the
(b) Rescind the
requirements set forth in the memo dated January 7, 2006, and directed to “All
Bindery and Mailing Employees.”
(c) Before implementing any
changes in wages, hours, or other terms and conditions of employment of unit employees,
notify and, on request, bargain with the Union as the exclusive
collective-bargaining representative of employees in the appropriate unit
described above.
(d) Reimburse all unit
employees for costs associated with their attempts to comply with the memo
dated January 7, 2006.
(e) Within 14 days after
service by the Region, post at its facility in
(f)
Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated,
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Peter N. Kirsanow, |
Member |
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Dennis P. Walsh, |
Member |
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(Seal) National Labor Relations Board
Member
Schaumber, dissenting.
Unlike my colleagues, I
would adopt the judge’s finding that the Current Agreement privileged the Respondent
to issue its January 7 directive. In my view, the Respondent has fulfilled its
obligation to bargain over the subject of its directive and should not be
required to bargain over the matter again. While I would find privilege under
both the waiver and the contract coverage analysis, as did the judge, I would
adopt the contract coverage analysis as applied in the D.C. Circuit and the
Seventh Circuit Courts of Appeals.1
Under a contract coverage
analysis, if the subject at issue is “covered by” or “contained in” the collective-bargaining
agreement, through a substantive provision or the reservation of authority to the
employer in a management-rights clause, then a party has exercised its
statutory right to bargain over the subject, and the question to be answered is
simply one of contract interpretation. Here, I would find that the Current Agreement
clearly covers the subject of the Respondent’s January 7 memo, and that several
provisions, taken together, privilege the directive.
The Current Agreement gives
the Respondent broad authority to establish and make changes in work schedules.
Section 11.11 states: “Even if an
employee’s name is not on the posted schedule, the employee is deemed available
and may be called into work” unless he or she has previously been approved for
time off. Section 15.2(a) of the agreement gives the Respondent discharge
rights for justifiable cause without limiting language, including the right to
discharge an employee for refusing to follow “reasonable instructions of a
supervisor.” Additionally, the management-rights clause (sec. 3.1) reserves to
the Respondent the right to maintain discipline and efficiency and to “establish
and enforce shop rules not in conflict with the specific terms of the agreement.”
In light of the scheduling
provision of section 11.11 noted above, as well as other provisions that
provide how employees called and put to work shall be paid, the judge found it “reasonable
to infer that the parties anticipated employees would generally be accessible
when called back to work.” Accessibility is necessary if the scheduling and
callback requirement described in section 11.11 is to have any effect; an
employee obviously cannot be available and inaccessible at the same time. Similarly, the contract here specifically
grants the Respondent the right to call employees in to work, and that right
would be meaningless if employees have the simultaneous and contradictory right
to fail to respond to such a call or to otherwise undermine the Respondent’s
callback rights by avoiding calls. Thus, an employee who makes himself or
herself unavailable by not responding to calls violates the terms of the agreement,
and, under section 15.2(a), violation of the agreement is a specifically
enumerated ground for discharge. Clearly, then, the agreement privileges the
directive’s statement that, as “a contingent of your continued employment,”
employees are to be reachable on their time off and must respond to the employer’s
phone calls.2 Even
under a waiver analysis, I would find that section 11.11 clearly contemplates
that employees must be reachable and responsive to employer callbacks during
their time off; hence, the
In addition, the
management-rights clause of the agreement specifically privileges the Respondent
to maintain discipline and to establish and enforce “shop rules.” The majority
would essentially limit the term “shop rules” to rules pertaining to
production-related matters within the shop. I disagree for two reasons. First,
I would find that the term encompasses rules designed to ensure adequate
staffing, which is fundamental to production and the basic functioning of the
shop. Secondly, I would find that the term encompasses rules designed to ensure
that employees comply with their existing
obligations under the agreement, which is all that the directive does
here. As to having telephonic messaging
devices, the requirement that employees be available on days off is a de facto
requirement that they receive and return telephone messages. I would not find
that this requirement, as articulated in the directive, changes employment
terms such that the Respondent must bargain over it.
As to disciplinary
authority, section 15.5 of the agreement permits discipline and/or discharge
for justifiable cause without other limiting language. Notwithstanding the
majority’s attempt to confine the definition of justifiable cause, the
provision specifically permits discharge for violation of the agreement.3
As noted above, an employee’s failure to be available for callback work
is a violation of the agreement. Thus, I would find that the
In sum, the Current
Agreement requires employees to be reachable and responsive on days off and
specifically permits the Respondent to discharge employees for noncompliance
with the agreement. In this respect, even under the extant waiver analysis, I
would find that the
Like the judge, I rely, in
part, on the Current Agreement’s management-rights clause in finding the Respondent’s
conduct privileged. As my colleagues
note, the General Counsel contends for the first time before us that the
Current Agreement was unilaterally implemented at impasse, and therefore cannot
privilege unilateral action under the Board’s decision in McClatchy Newspapers.4 I disagree.
Assuming the General Counsel’s argument is properly before us, and
assuming the validity of the McClatchy
decision,5 I find that case distinguishable. The management-rights clause at issue in McClatchy reserved to the respondent
sole unfettered discretion to make “recurring, unilateral decisions” to change
wages. McClatchy, supra at 1388.6 In
contrast, the Respondent’s application of the management-rights clause here
does not involve unfettered discretion to make recurrent changes to contractual
wages or benefits. Rather, the Respondent’s January 7 directive adhered to the
Current Agreement by seeking to effectuate existing provisions and protect
rights already reserved to the Respondent. Where the Board in McClatchy considered a management-rights
clause that appeared to grant the respondent unfettered discretion, the only
discretion at issue here is the right to implement a callback procedure that is
consistent with specific provisions of the Current Agreement. Hence, McClatchy is not controlling, and the General
Counsel’s belated assertions to the contrary lack merit.
Dated,
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Peter C. Schaumber, |
Member |
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National Labor Relations Board
APPENDIX
Notice
To Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor
Relations Board has found that we violated Federal labor law and has ordered us
to post and obey this notice.
federal law gives you
the right to
Form, join, or assist a
union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We will not refuse to
provide your Union, Graphics Communications Union, Local 404 M, International
Brotherhood of Teamsters, with requested information relevant and necessary to
its responsibilities as exclusive collective-bargaining representative of a
unit of our mailing, shipping, and offset operations employees (as described in
“Section 1—Recognition” of the 2003–2008 agreement implemented by us), i.e.,
reinstatement agreements or any documents employees were asked to sign as a
requirement of returning to work.
We will not establish, as
a condition of employment or a ground for discipline, the requirement that you
be reachable and responsive to being called back to work on your time off, or
the requirement that you have telephonic messaging devices in order to be
reachable (e.g., a telephonic message machine, a beeper, or a cell phone),
without providing the Union notice and opportunity to bargain.
We will not in any like or
related manner interfere with, restrain, or coerce you in the exercise of the
rights set forth above.
We will, within 14
days from the date of this Order, provide the Union with the information the
We will rescind
the memo dated January 7, 2006, and directed to “All Bindery and Mailing
Employees,” and the requirements set forth therein.
We will, before
implementing any changes in wages, hours, or other terms and conditions of
employment of unit employees, notify and, on request, bargain with the Union as
the exclusive collective-bargaining representative of employees in the
appropriate unit described above.
We will reimburse
all unit employees for costs associated with your attempts to comply with the
memo dated January 7, 2006.
California Offset Printers, Inc.
Katherine Mankin, Esq., for the General Counsel.
Andrew B. Kaplan, Esq. (Silver & Freedman),
of
Jeffrey Boxer, Esq. (Levy, Stern & Ford),
of
DECISION
i. statement
of the case
Lana H. Parke, Administrative Law Judge. This matter was tried in Los Angeles, California, on May 8, 2006, upon a consolidated complaint and notice of hearing (the complaint) issued March 29, 2006,1 by the Regional Director of Region 31 of the National Labor Relations Board (the Board) based on charges filed by Graphic Communications Union, Local 404 M, International Brotherhood of Teamsters (the Union or the Charging Party). The complaint alleges that California Offset Printers, Inc. (Respondent) violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). Respondent essentially denied all allegations of unlawful conduct.
ii. issues
1. Whether Respondent violated Section 8(a)(5) and (1) of the Act on and following December 22, January 12 and 18, by failing and refusing to furnish the Union with the following requested information: reinstatement agreements or any documents that employees Linda Ponds and Rebecca Chavira had been asked to sign or submit as a prerequisite to their reinstatement to employment with Respondent.
2. Whether Respondent violated Section 8(a)(5) and (1) of the Act on January 7, by unilaterally imposing as a condition of employment the requirements that employees be reachable and responsive 24 hours a day, 7 days a week, and that they have the necessary telecommunications equipment to be reachable.
iii.
jurisdiction
At all relevant times, Respondent, a
iii. findings
of fact
A.
Respondent and the
Relationship
The
B. The
On October 10, Respondent discharged Linda Ponds (Ponds)
and Rebecca Chavira (Chavira), both of whom had been employed in the unit. On October 19, the
Sometime in late November, William Rittwage, Respondent’s
CEO, told Lisa Quintanilla (Quintanilla), his assistant and human resources
manager, that Ponds and Chavira had contacted him and requested
reinstatement. Thereafter, Respondent
asked its attorney to prepare reinstatement agreements for the two employees
(respectively, the Ponds Release and the Chavira Release, described later in pertinent
part). Respondent then scheduled
separate meetings with the employees for November 30. Ponds and Chavira asked Douglas Brown
(Brown), the
Thereafter, the following sequence of events occurred in resolution of the discharges:
December 6: Ms. Ponds signed the following declaration in the presence of Ms. Quintanilla:
I Linda Ponds call Lisa for a meeting for 12–6–05 to
get my job back. I can start 12–7–05 to
same position my same seniority, C.P.
Add this letter to my file.
Receive pension cont. [sic]. I am
not asking for back paid.
December 9: Respondent and Ms. Ponds, sans union presence
or representation, entered into an agreement whereby Respondent agreed to
reinstate Ms. Chavira. Respondent and
Ms. Ponds executed a written “RELEASE/
RETURN TO WORK AGREEMENT.” In pertinent
part, the agreement stated that Ms. Ponds directly contacted Respondent and
negotiated the agreement. The agreement
also provided that its terms were to be kept “strictly confidential,” excepting
disclosure to family members, accountants, and attorneys, who were to be
informed they could not disclose the terms to anyone else and that its terms
would not be admissible in any proceeding including arbitration (the Ponds
Release).
December 15: Ms. Chavira signed the following declaration in the presence of Ms. Quintanilla:
I Rebecca Chavira would like my job back with my seniority
and pay and pension cont. I am not
asking for back pay for time off of work.
I called [Respondent] on my own asking for my job back.
Respondent and Ms. Chavira, sans union presence or
representation, entered into an agreement whereby Respondent reinstated Ms.
Chavira. Respondent and Ms. Chavira
executed a written “RELEASE/RETURN TO WORK AGREE-MENT,” (the Chavira Release),
containing the same terms as the Ponds Release.
According to Quintanilla, at the time Ponds and Chavira
executed the releases, “both ladies [said they] did not want the union
involved.”6 Following their respective executions of the
Ponds and Chavira releases, Respondent reinstated Ponds and Chavira to their
former jobs. Thereafter, neither Ponds
nor Chavira was willing to give the Union information about their
reinstatements. By e-mail dated December
22, and by letters dated January 12 and 18, respectively, the Union requested
that Respondent furnish the
C. Alleged Unilateral Imposition of Conditions of Employment
The Current Agreement contains the following description of the rights reserved to management at “Section 3–Management Rights,” in pertinent part:
3.1 It is understood that the management of the Employer’s business and the direction of its working force, including but not necessarily limited to the right to . . . maintain discipline and efficiency of all employees, the right to establish and enforce shop rules not in conflict with the specific terms of the Agreement, to establish work schedules and to make changes therein essential to the efficient operation of the Company, are the normal rights of the Company.
The Current Agreement also refers to calling unscheduled employees into work (referred to as callbacks) at “Section 5–Temporary Workforce.” Pertinent provisions read as follows:
5.1 Prior to hiring or using temporary employees the Employer shall attempt to telephonically contact employees covered by this Agreement to determine if they are available to work . . . a message shall be left if the call is unanswered. The employee must return the call not more than four (4) hours after the message is left. . . . If the employee is called . . . less than twelve (12) hours before he is required to report to work, no message need be left. The first employee who accepts an assignment shall be given the work.
The Current Agreement contains further provisions relating to hours of employment and scheduling at “Section 11–Hours.” Pertinent provisions read as follows:
11.2 The Employer shall make reasonable efforts to schedule employees for consecutive shifts. However, subject to factors beyond its control, including but not limited to customer demands, vendor delays, equipment malfunctions, and employee absences, the Employer may require employees to work non-consecutive shifts. Employer scheduling shall not be subject to the grievance and arbitration provisions of this Agreement.
11.4 through 11.6 [provide various categories of payment for employees who are “called and put to work”].
11.8 Any employee who is “called back [to work]” sooner than twenty (20) hours from the actual starting time of the previous shift worked, shall be paid the overtime rate until such time as such twenty (20 hours has elapsed).
11.11 . . . [Shift] schedules will be posted outside of the manager’s office. The Employer may make changes in the posted schedules on account of factors beyond its control, including but not limited to customer demands, vendor delays, equipment malfunctions, and employee absences. The Employer need not repost a changed schedule. . . . Even if an employee’s name is not on the posted schedule, the employee is deemed available and may be called in to work unless the employee has previously made a request for the day off and the Employer has approved the request.
On January 7, without prior discussion with any representative
of the
[A]s a contingent of your continued employment, you are required to be reachable on your time off for schedule changes beyond our control. You either need a message machine on your phone, a beeper, or a cell phone. Unless you have a “Request for Time Off” sheet approved, you are required to respond to our phone call.
I will be diligent in enforcing these policies. Standard disciplinary action will be taken against anyone not complying with them.
iv. discussion
A.
The
No party disputes the existence of a “general obligation
of an employer to provide information that is needed by the bargaining
representative for the proper performance of its duties.” NLRB v.
Acme Industrial Co., 385
In its posthearing brief, Respondent asserts that the
Respondent also asserts that it declined to comply with
the Union’s request for information because Ponds and Chavira “expressly” told
Quintanilla that they did not want the
Respondent apparently bases its confidentiality defense on
Ponds and Chavira’s declination of union involvement in their reinstatement
meetings. As noted earlier, however, the
evidence fails to show the motivation or scope of the employees’ pronouncements
or even whether they or someone else proposed union exclusion. Ponds and Chavira’s statements that “they did
not want the union involved” cannot, therefore, provide Respondent with a
legitimate and substantial confidentiality basis for refusing to provide the
information. Respondent may also base
its defense on the declination language in the Ponds and Chavira Releases that
provided the terms were to be kept “strictly confidential.” In balancing the
D. Alleged Unilateral Imposition of Conditions of Employment
Respondent does not dispute its duty to bargain with the
In applying the above principles to this case, it should
initially be determined whether any genuine changes in terms and conditions of
employment have occurred. A tightening,
fine tuning, or explication of an already existing term does not necessarily
constitute a change, material or otherwise.
See Bath Iron Works Corp, 302
NLRB 898 at 901 (1991), wherein the Board cited with approval the finding of Trading Port, Inc., 224 NLRB 980 (1976),
that where the standards [of productivity/efficiency] and sanctions remained
the same, the related “tightening of the application of existing disciplinary
sanctions did not require bargaining with the union.” Respondent has not, however, argued that it
did not change the terms and conditions of its scheduling procedure by its
January 7 directive that unit employees make themselves accessible for callback
work under penalty of discipline, and I will assume for purposes of this
analysis that Respondent did change work terms and did so without offering to
bargain with the Union. The General Counsel
establishes a prima facie violation of Section 8(a)(5) by showing that
Respondent made a material and substantial change in a term of employment
without negotiating with the union. The
burden is then on Respondent to show that the unilateral change was in some way
privileged.
The changes at issue here concern employees’ obligation to report to work when called back for otherwise unscheduled hours with disciplinary consequences attendant on noncompliance. As the changes relate to hours of employment and potential discipline, they are clearly mandatory subjects of bargaining. The changes are also material and substantial, requiring employees to be readily accessible for callback work and to equip themselves with such electronic devices (telephonic message machine, beeper, or cell phone) as will ensure their response, or face disciplinary penalties. Accordingly, the January 7 directive constituted changes in employment terms and conditions relating to hours of work and discipline, and the changes were material and substantial. See Flambeau Airmold Corp., 334 NLRB 165, 166 (2001) (threat of discipline sufficient to show significance of a new rule). Consequently, the General Counsel has established a prima facie violation of Section 8(a)(5), and Respondent must show that the unilateral changes were in some way privileged.
Respondent argues that the management-rights provision of the Current Agreement privileges its January 7 directive. The Current Agreement reserves to Respondent the right to manage its business and direct its work force, to maintain discipline and efficiency, to establish and enforce shop rules not in conflict with the specific terms of the agreement, and to establish work schedules and make changes therein essential to operating efficiency. Further, the Current Agreement gives Respondent significant latitude in scheduling work hours, authorizes Respondent to alter work schedules as operational needs dictate, and states that employees are subject to being “called in to work” unless previous time off requests have been approved. While nothing in the Current Agreement specifies that employees must be reachable and responsive to schedule-change notifications, it is reasonable to infer that the parties anticipated employees would generally be accessible when called back to work.10 Applying either the Board’s “clear and unmistakable” waiver standard11 or a “contract coverage” analysis,12 I find that the management-rights clause of the Current Agreement privileged Respondent’s directive, at least to the extent that employees be required to be reachable on their time off for schedule changes beyond Respondent’s control.
The conclusion that Respondent was privileged to require
its unit employees to be reachable on their time off for schedule changes does
not end the matter, however. Nothing in
the Current Agreement addresses any employee obligation to possess an
electronic device (e.g., a telephonic message machine, a beeper, or a cell
phone) to ensure accessibility, and nothing
addresses whether discipline may follow inaccessibility or nonresponse to
callbacks. The question remains,
therefore, whether those portions of the January 7 directive constituted
unlawful, unilateral changes.13
Notwithstanding the Current Agreement’s silence on how
employees are to make themselves accessible for callback work or the
disciplinary consequences of noncompliance, the Current Agreement spells out
Respondent’s general authority. By reserving
to Respondent “the right to maintain discipline and efficiency of all
employees, the right to establish and enforce shop rules not in conflict with
the specific terms of [the] agreement, to establish work schedules and to make
changes therein,” the parties to the Current Agreement clearly and unmistakably
contemplated that Respondent would have comprehensive discretion in those
areas. It follows that Respondent’s
requirement that employees arrange some means of consistently receiving callbacks
under threat of discipline is not an unwarranted extension of its contractually
mandated discretion. See Metropolitan Edison Co. v. NLRB, supra
(application of the Board’s “clear and unmistakable” waiver analysis);
The General Counsel argues that Respondent’s January 7 directive
unlawfully imposes “a work schedule that restricts bargaining unit employees’
autonomy during scheduled time off.”
However, long before Respondent issued its directive, the Current
Agreement authorized Respondent to call employees back to work as needed. The callback procedure itself was not a
change in employment terms and conditions at all, and the fact that the callback
system may sometimes work a hardship on some employees is irrelevant. The question is not whether Respondent is
authorized to have a callback system but whether Respondent may devise rules
for and regulate its callback system without first bargaining with the
The General Counsel also argues that even if the Current
Agreement initially established Respondent’s right to make the rules enunciated
in its January 7 directive, the right lapsed due to nonenforcement during the 2-1/2
years since implementation of the Current Agreement, citing Vanguard Fire & Supply Co., 345 NLRB
No. 77, slip op. 3 (2005), as authority for that proposition. Vanguard,
however, is inapposite to the instant issues, as it involves unilateral changes
effected in the absence of a bargaining agreement. The General Counsel cites no authority for
the proposition that a contractual term may lapse through disuse during the
life of the contract. Moreover, no
evidence was adduced as to frequency or circumstance of call-backs that would
permit any finding as to whether Respondent had or had not regularly deployed
its callback procedure. Accordingly,
having found that Respondent was privileged by the language of the Current
Agreement to issue its January 7 directive, I shall dismiss this allegation of
the complaint.
Conclusions of Law
1. Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act.
2. The