Bemis Brothers Bag Co.

National Labor Relations Board - Board Decisions

Aug 9, 1963

143 N.L.R.B. 1311 (N.L.R.B. 1963)

BEMIS BROTHERS BAG COMPANY 1311
Bemis Brothers Bag Company and Textile Workers Union of
America, AFL-CIO, Local #32. Case No. 17-CA-2083. August
9, 1963
DECISION AND ORDER
On April 23, 1963, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief. The Respondent filed a brief in support of
the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, as explained more fully herein.
We affirm the Trial Examiner's recommended dismissal of the com-
plaint without deciding whether, in other circumstances, the Respond-
ent's conduct in failing to post the job classification of offset press
leadman and its related conduct complained about herein would have
been violative of Section 8(a) (5) of the Act.
As found by the Trial Examiner, the Union's representatives did
not protest the selection of Traffis when informed of it, nor did they
protest the Respondent's proposed announcement thereof or any other
conduct of the Respondent. When the Union thereafter decided to
raise an objection and filed a grievance on December 4, 1962, the Re-
spondent in a letter dated January 11, 1963-nearly 2 weeks prior to
the issuance of the complaint-offered to settle most aspects of the
instant controversy, all of which were raised in the processing of the
grievance. As set forth in the Intermediate Report, the Respondent
provided the Union's counsel with the information requested, assured
him that the various clauses of the contract invoked were valid con-
tractual commitments, and that the Respondent would comply with
them in all future instances.
It appears that the principal remaining objection of the Union was
to the Respondent's failure to post the specific job in question, even
though it had no particular quarrel with the Respondent's selection
of Traffis. Though the Respondent did offer to post all job openings
143 NLRB No. 120.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the future, it did not offer to post the subject job, maintaining that
it had not violated the contract by its failure to do so. As already
indicated, the Union filed a grievance in this connection and negotia-
tions took place for the resolution of the grievance under the contract's
grievance procedure. On December 11, 1962, the Union notified the
Respondent that it wished the grievance to be submitted to arbitration
as provided for in their contract. However, the Union changed its
mind and proceeded to process a charge alleging that the Respondent
had violated Section 8 (a) (5) by its conduct in regard to this matter.
In these circumstances, including the long history of bargaining be-
tween these parties, as well as the fact that there is no showing that
the Respondent acted in bad faith, it is our view that it would not
effectuate the policies of the Act to find that the Respondent has
refused to bargain within the meaning of Section 8(a) (5).1 Accord-
ingly, in agreement with the Trial Examiner's recommendation, we
shall order that the complaint herein be dismissed.
[The Board dismissed the complaint.]
'See United Telephone Company of the West and United Utilities, Incorporated, 112
NLRB 779; Consolidated Aircraft Corporation , 47 NLRB 694, 706.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On December 6, 1962 , the above-named labor organization filed its charge in
this proceeding . On January 22, 1963, a complaint was issued by the General
Counsel of the National Labor Relations Board , alleging that the above-named Re-
spondent had engaged in unfair labor practices in violation of Section 8(a) (1) and
(5) of the National Labor Relations Act, as amended . The Respondent filed its
answer , dated January 29, 1963 , denying the commission of the unfair labor prac-
tices alleged . Pursuant to notice , a hearing was held in Kansas City , Missouri, on
March 21, 1963 , before Trial Examiner C. W. Whittemore.
At the hearing all parties were represented and were afforded full opportunity to
present evidence pertinent to the issues, to argue orally, and to file briefs . Briefs
have been received from General Counsel and the Respondent.
Disposition of the Respondent 's motion to dismiss the complaint , upon which
ruling was reserved at the hearing, is made by the following findings, conclusions,
and recommendations.
Upon the record thus made , and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Bemis Brothers Bag Company is engaged in the manufacture and distribution of
flexible packaging . In addition to other facilities , it operates a branch in Kansas
City, Missouri , the only plant here involved.
It annually receives at this plant products , goods, and materials originating out-
side the State of Missouri valued at more than $ 50,000.
The complaint alleges, the answer admits, and it is here found , that the Respondent
is engaged in commerce within the meaning of the Act.
II. THE CHARGING UNION
Textile Workers Union of America, AFL-CIO, Local #32, is a labor organization
within the meaning of the Act.
BEMIS BROTHERS BAG COMPANY
III. THE ALLEGED UNFAIR LABOR PRACTICES
1313
A. Setting and issues
The issues posed by the complaint stem from management 's failure in the latter
part of 1962 to consult with the Union before putting into effect its decision to
"reactivate" a certain job and to assign a certain employee to it.
The job is that of a leadman in the "small paper bag" department. The employee
concerned is Frank O. Traffis, who has been with this Company for more than 40
years.
It is the General Counsel 's contention , opposed by the Respondent , that manage-
ment failed to bargain in good faith by: (1) Bargaining with Traffis concerning this
job without notifying the Union (conceded to be the bargaining representative of
employees in an appropriate unit); (2) unilaterally reactivating the leadman's job
classification and assigning Traffis to it without posting the job as required by an
existing contract ; and (3 ) declining to provide certain union representatives with
information, upon demand, concerning the duties and wages of the leadman's job.
B. The facts
Except as may be indicated in pertinent footnotes , the following facts are based
upon uncontroverted testimony or documents exchanged by the parties and in
evidence:
(1) For more than a quarter century the Respondent at this plant and the
Union have been parties to succeeding collective-bargaining contracts.
(2) Because of certain departmental production problems, in the late fall of
1962 Plant Manager Cox and Plant Superintendent Carlson discussed the possibility
of reactivating the leadman's position in that department-a position which had
apparently been vacant for some time.
(3) As a factor in reaching determination Cox told Traffis, the senior offset
pressman in the department concerned , of management's problem , said that it
needed someone "to see that the presses were working properly and the jobs were
lined up," and indicated that he would like to try him out and "see how you come
out on the job up there taking care of that department." Traffis replied that he
would "gladly take a swing at it." 1
(4) Two or three weeks later Carlson called Traffis to his office and gave him a
slip of paper on which were described a leadman's duties in the department. Traffis
asked him about wages for the job. Carlson said he did not know precisely, he
would have to go over past years' records. He assured the pressman, however, that
he would lose no money, and might gain.
(5) During the last week of November, following a meeting on another matter
with the union president, Kenneth Morrell, and its chief steward, James Vaughan,
Superintendent Carlson told them that "Traffis had been selected as leadman" for the
"small bag offset printing." It does not appear that either union official protested
against either the selection or the announcement?
(6) On Saturday, December 1, Carlson called Vaughan to the office and showed
him the following notice which he had typed the previous day:
Small Paper Bag
Mr. Frank Traffis has been selected to be leadman in the printing area in the
Small Paper Bag department and is directly responsible to Mr. Tom Dewey.
Mr. Traffis will assist in scheduling of the small paper bag printing.
Carlson told Vaughan that this was the job and selection he had previously discussed
with him and Morrell.
(7) According to Vaughan's own testimony he told Carlson that he "didn't think"
there would be any problem in putting Traffis "on the job" at once, or because the
selection had not been previously posted.
(8) On Monday, the next working day, the notice was posted. The same day
Carlson gave formal notification to Vaughan in the following letter:
'The quotations are from Traffis' testimony.
2 The quotations are from, and the finding based upon, the credible testimony of the
superintendent. Although both Vaughan and Morrell had previously testified that they
first learned of Traffis' selection on December 1 or thereafter, neither was recalled In re-
buttal to deny Carlson's testimony on this specific point. And, as noted later, according
to his own testimony, Vaughan made no protest against the selection when he admits
having been notified of the selection on December 1.
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Small Paper Bag Department-Changes
Confirming our discussion of last week, this is to report the selection of Frank
Traffis as Printing Leadman in this department.
This letter is in lieu of "posting" because Frank has the qualifications and
seniority beyond any other possible candidate. This recognizes the spirit of
our Labor Agreement in combining qualifications with seniority in getting the
most qualified person for the job. Accordingly, it seemed unnecessary and
wasteful to go through the motions of routine job "posting" while abiding by
the intentions of our contract.
Frank wants the job, understands its conditions, and is our selection for it.
(9) A few days later Traffis assumed his new job, being paid the same average
wage he had received as offset pressmen.
(10) On December 4 the union representatives handed management a written
grievance, stating, in essential part, that while the Union was "not concerned with
who the Company finally decides on, but the fact and contract clause, that spe-
cifically gives each employee, at least the right to bid on jobs," and citing certain
sections of the existing contract as having been violated by the action .3
(11) Formal reply by Carlson was recorded on the grievance document and
returned to the union officials the next day, December 5. The reply states:
Please see my confirming letter of Dec. 3rd to Mr. James Vaughan, Chief
Shop Steward. It explains the background of earlier conversations. The Union
representatives approved our action as acceptable and good faith procedure.
Accordingly, we consider this grievance out of order.
(12) On December 6 Morrell, for the Union, filed charges with the Board. The
charge contains only the broad claim that since November 15, 1962, the Employer
had "refused to bargain collectively in good faith" with the Union.
(13) A number of meetings were held between union and management officials
during the period following December 3.
(14) There is sharp dispute between the two union representatives and Carlson
as to whether or not at some meeting before December 7 the superintendent told
them orally what the job duties of Traffis would be, or informed them that his wages
would be the same. The Trial Examiner believes Carlson's testimony to the effect
that he did provide such information before December 7. The charge, filed on
December 6, shows on its face that it was drawn up by counsel for the Charging
Union. It is reasonable to believe that had management actually refused to provide
such information up to that date, an experienced labor attorney would have so stated
in his charge. It is common knowledge in the labor-management field that refusal
to provide information necessary for collective bargaining is substantial grounds
for the finding of bad-faith bargaining and a violation of the Act.
(15) On December 7 the two union officials sent a written demand, in reply
to Carlson's above-quoted comment of December 5 regarding the grievance, outlining
their proposals as to how the grievance could be settled. In summary, they proposed
that the Employer post the leadman position, agree not to discuss with employees
proposed "changes, rates, hours, working conditions" unless a union representative
was present, and provide a written job description of Traffis' job as leadman.
(16) The record reveals no written reply from management to the Union's letter
of December 7.
(17) It does appear that, upon being served with charges of having violated the
Act, Cox turned further correspondence over to the Respondent's attorney.
8 The portions of the contract claimed in this document to have been violated are:
Section I Recognition of the Union -The Union is recognized as the exclusive col-
lective bargaining agency for all production and maintenance employees, but excluding
supervisory and office employees.
* s e • a e s
Section VIII Seniority (paragraph 7).-When vacancies occur or new jobs are cre-
ated in the bargaining unit the Company will post a notice of such vacancies on the
bulletin board in the department involved for a period of 11/2 days so that the em-
ployees may have an opportunity to apply for them. Applications for such positions
shall be in accordance with Paragraph 3, Section VIII, of this agreement. If at the
end of the 1', -day period, there have been no applications in the department involved,
the notice will be posited plant-wide for a period of two days with plant seniority in-
stead of departmental seniority applying . . . .
BEMIS BROTHERS BAG COMPANY 1315,
(18) On December 11 the Union notified management that it was invoking the
arbitration procedure provided for by the contract . If further steps were thereafter
taken in this direction , the record is without evidence on the point.
(19) There were meetings of the parties, however , on December 14 and 17, at
which managemnt offered its counterproposal terms of a settlement of the grievance.
These the Union rejected.
(20) The Union 's attorney and the Respondent 's counsel thereafter conferred
and exchanged correspondence.
(21) On January 11 counsel for the Respondent provided the Union 's counsel,
in writing , with the information requested , assured him that the various clauses of
the contract invoked were valid contractual commitments and that his client would
comply with them.
(22) It thus appears that nearly 2 weeks before the complaint was issued most
of the matters raised by the Union and capable of being remedied had been taken
care of-except that of turning back the calendar of events and posting a notice
before putting Traffis on the new job.
C. Conclusions
In their briefs opposing counsel are in agreement as to the factual matters involved.
The Respondent 's summary is here quoted , since it is limited to the facts and not
characterization of them:
In essence , the conduct complained of is that certain of the Respondent 's officers
and agents , upon reactivating the job of offset press leadman at its Kansas City
plant : ( 1) discuss the job with employee Frank Traffis to determine if he would
accept if he were selected for the position ; (2) assigned Traffis to the job without
posting it for bid ; and (3 ) did not, prior to assigning Traffis to the job, furnish
the Union with a written copy of the job description.
Upon review of all the evidence , including the exchange of documents , the Trial
Examiner finds merit in the conclusion of counsel for the Respondent that "General
Counsel 's evidence establishes, at most , a possible violation of the applicable col-
lective bargaining agreement."
The Trial Examiner discerns nothing in the record to indicate or support the con-
clusion sought by General Counsel that management , at any point in the controversy,
sought "derogation of the recognized exclusive bargaining representative " or that
it bargained "in bad faith."
Nor does the record or General Counsel's brief cite any instance wherein the
Board has found either party to have engaged in "bad faith" bargaining during their
contractual relationship of more than a quarter of a century.
It may well be that an arbitrator would decide that management was not justified
in considering as a waiver Vaughan 's admitted statement that he could see no reason
why posting should be necessary . He might also find that management should more
promptly have provided , in writing , the job description . An error in interpretation
of the contract's provisions , however, without more , does not become automatically
a violation of a public law.
The contract between the parties sets up an agreed-upon procedure for the settle-
ment of grievances . It includes arbitration . It does not appear that any basic rights
guaranteed by Section 7 of the Act are involved. In the opinion of the Trial Exam-
iner the arbitration arena, and not the Board forum, is the proper place for this
dispute.
In short , it is concluded and found that in this case , as in a recent proceeding
before the same Trial Examiner ,4 Board policy set out in Crown Zellerbach Cor-
poration, 95 NLRB 753, should govern . In the Board's decision ( at page 754) it
said:
In view of this background of a peaceful and what appears to be a wholly
salutary employer-employee relationship , we are reluctant to issue a remedial col-
lective bargaining order as a result of the Respondent 's isolated unilateral action.
Particularly is this so since the parties have failed to utilize the contractual
procedures established for bargaining concerning the interpretation and admin-
istration of their contract, and where there is apparently no serious obstacle to
an amicable settlement of the issue through bargaining within the framework
provided in that contract. Indeed, the Board has frequently stated that the
stability of labor relations which the statute seeks to accomplish through the
4 Cloverleaf Division of Adams Dairy Co ., IR-155-63, Issued April 1, 1963.
717-672-64-vol. 143-84
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
encouragement of the collective bargaining process ultimately depends upon
the channelization of the collective bargaining relationship within the procedures
of a collective-bargaining agreement. By encouraging the utilization of such
procedures in this case, we believe that statutory policy will best be effectuated.
Affirmative Board action would on the other hand put the Board in the position
of policing collective-bargaining agreements, a role we are unwilling to assume.
Accordingly, we shall dismiss the complaint without determining whether the
Respondent 's conduct would, under other circumstances , warrant the issuance
of a remedial order.
,RECOMMENDATIONS
Upon the foregoing findings of fact , and upon the entire record in the case, and
in accordance with Board policy quoted above, the Trial Examiner recommends
that the complaint be dismissed in its entirety.
West Penn Power Company and Utility Workers Union of
America, System Local 102 , AFL-CIO. Case No. 6-CA-2644.
August 12, 1963
DECISION AND ORDER
On April 23, 1963, Trial Examiner Sydney S. Asher, Jr., issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent and the Charging Party filed
exceptions to the Intermediate Report with supporting briefs, The
General Counsel filed a memorandum in the nature of exceptions with
a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's and the Charging Party's excep-
tions and briefs, the General Counsel's memorandum in the nature of
exceptions, and supporting brief and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the following modifications.'
' The General Counsel and the Charging Party except to the Trial Examiner 's failure
specifically to include in the unit description as set forth in the conclusions of law, the
Recommended Order and the Appendix "all transmission and distribution supervisors," in
accordance with the Board 's clarification Order of November 7, 1962 . We find merit in
the exception and accordingly will modify the unit description as requested.
The record shows that on September 1, 1960, the Respondent , as part of certain opera-
tional changes, created a new operating center in each of its divisions , abolished the classi-
fication of Charleroi second load dispatchers and Springdale load dispatchers , created in
their stead the classification of "transmission and distribution supervisors ," and discon-
143 NLRB No. 122.