Boise Cascade Corporation, Specialty Paperboard Division

National Labor Relations Board - Board Decisions

Aug 17, 1982

263 N.L.R.B. 480 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boise Cascade Corporation, Specialty Paperboard
Division and United Paperworkers International
Union, AFL-CIO and its Local 926. Case 3-
CA-9633
August 17, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS ZIMMERMAN AND HUNTER
On September 30, 1981, Administrative Law
Judge David L. Evans issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief. The Re-
spondent filed cross-exceptions and a brief in sup-
port of cross-exceptions and in reply to the Gener-
al Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative L aw
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge: This
case was heard before me at Watertown, New York, on
May 28, 1981. The charge was filed by United Paper-
workers International Union, AFL-CIO and its Local
926, herein called the Union, on March 4, 1980.1 The
complaint was issued against Boise Cascade Corporation,
Specialty Paperboard Division, hereinafter referred to as
Respondent, alleging violations of Section 8(a)(5) and (1)
of the National Laoor Relations Act, herein called the
Act, by certain admitted unilateral actions taken on Feb-
ruary 26. Respondent filed an answer denying violating
the Act and moves to dismiss the instant matter on the
grounds that the subject complaint has been disposed of
by an arbitration decision which issued on August 13.
The General Counsel and the Charging Party2 reply that
I Unless otherwise specified, all dates herein are in 1980.
· The positions of the General Counsel and the Charging Party are
identical on all issues; for the sake of brevity I shall refer to the propo-
nents of the complaint as the General Counsel.
263 NLRB No. 67
the Board should not defer to the arbitration decision be-
cause the result is repugnant to the Act and does not
therefore meet one of the criteria for deferral announced
by the Board in its Spielberg decision.3
Upon the entire record, and after due consideration of
the briefs filed by the General Counsel, the Charging
Party, and Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a division of Boise Cascade Corporation,
is and has been at all times material herein a corporation
duly organized under, and existing by virtue of, the laws
of the State of Delaware. At all times material herein,
Respondent has maintained a facility at Beaver Falls, in
New York, herein called the Beaver Falls plant, where it
is engaged in the manufacture, sale, and distribution of
specialty paperboard. Annually Respondent, in the
course and conduct of its business operations, purchases,
transfers, and delivers to its Beaver Falls location goods
and materials valued in excess of $50,000 which goods
and materials are transported to said plants directly from
States of the United States other than the State of New
York. The complaint alleges, Respondent admits, and I
find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Union is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent (or its predecessors at the Beaver Falls
plant) had recognized the Union as the collective-bar-
gaining representative of its production and maintenance
employees since 1959. The parties stipulated that, on
February 26, Respondent, without prior notice to or bar-
gaining with the Union: (a) abolished 12 jobs by eliminat-
ing three job classifications; namely, the fourth hand on
the cylinder machine, saturator, and fourdrinier, and laid
off one beater helper on each of its three shifts; (b) com-
bined the duties of the abolished jobs and the laid-off
beater helpers with those of existing job classifications;
(c) set a new wage rate for the created job classifica-
tions; and (d) created a new job classification of utility
helper and set the wage rate and working conditions for
that classification. The parties further stipulated that
these unilateral actions were done for economic reasons
and not antiunion purposes.
On February 26, the Union filed a grievance challeng-
ing these actions and on August 13 arbitrator William
Babiskin issued his award. The award was that Respond-
ent violated the collective-bargaining agreement when it
did not bargain with the Union as to the conditions of
I Spielberg Manufacturing Company, 112 NLRB 1080 (1955).
480
BOISE CASCADE CORPORATION
employment for the newly created utility person classifi-
cation, but the balance of the grievance was denied.
Revelant sections of the contract in existence at the
time of the unilateral actions are:
SECTION XXIV.--SCHEDULE OF WAGES
The wage schedule shown on Exhibit "B" as at-
tached and made a part of this Agreement shall
become effective July 1, 1979, and prevail during
the remainder of the term of this agreement.
All wages are determined by job evaluation. The
job evaluation plan in effect establishes labor grades
and each job is included in one of these labor
grades. When a new classification is established or
an existing classification undergoes a significant
change in duties, the Company will establish a fair
and equitable rate in accordance with the present
job evaluation plan.
All questions concerning new rates are subject to
the grievance procedure as set forth in Section
XXXI.
SECTION XXVIII-SENIORITY
D.5 In the event a job or department is abolished,
the displaced employee may exert his plant-wide se-
niority and replace any less senior employee in any
department.
SECTION XXIX-TRANSFER, PROMOTIONS
AND DEMOTIONS
A. The Company may at its discretion transfer em-
ployees between jobs or shifts within a department.
In case of a partial job abolishment, such as in the
case where a significant part of the duties are abol-
ished, and the main duties are combined with other
new duties, a new rate will be established in accord-
ance with the existing job evaluation plan. All ques-
tions concerning new races are subject to the griev-
ance procedure as put forth in Section XXXI.
EXHIBIT C-LINES OF PROGRESSION
Lines of progression are included in this contract
for the sole purpose of indicating the promotional
steps within a department. These exhibits in no way
guarantee that the various classifications within any
line of promotion will automatically be filled or that
there will always be a definite number of employees
in any given classification.
* * * * *
SUPPLEMENT IV-JOB EVALUATION PLAN
It is hereupon agreed that: The present job evalua-
tion plan is recognized as the only plan that will be
used to classify all jobs performed by employees in
the bargaining unit into pay classifications. A com-
mittee shall be appointed by the Company which
will evaluate every job in the bargaining unit ac-
cording to this plan. Present pay classifications shall
prevail until said committee has completed its eval-
uations. At that time the evaluations and classifica-
tions recommended by the committee shall become
effective immediately. Wage adjustments as deter-
mined by this committee shall become effective
upon date of recommendation by the committee and
shall not be considered for retroactive payment.
Upon completion of evaluation by the committee,
any job classification may be considered for re-eval-
uation according to the following procedure:
A formal request for re-evaluation shall be sub-
mitted by the employee to the Job Evaluation
Administrator who shall be appointed by the
Company.... The Job Evaluation Committee
shall meet not less that [sic] once each month to
review re-evaluation requests and render its deci-
sions. Wage adjustments resulting from re-evalua-
tion requests shall be retroactive to the date the
request was submitted and received by the Job
Evaluation Administrator. Such retroactivity
shall not exceed thirty (30) calendar days.
There is no specific "management rights" clause in the
contract.
In drawing the issues, the arbitrator first stated that
the Union contends that Respondent's actions were a
violation of the contract and noted:
On or about February 29, 1980, the Union filed
8(aX 5) charges with the National Labor Relations
Board. By letter of March 26, 1980, the Board de-
clined to issue complaint, electing instead to defer
to arbitration under Collyer [Insulated] Wire, 192
NLRB 837; Spielberg Manufacturing, 112 NLRB
1080 and their progeny.
In this case, the unilateral change/refusal to bar-
gain issue is the heart and soul of the grievance.
The Union contends that the company's action was
a flagrant violation of its duty to bargain.
Citing several labor arbitration cases, the arbitrator
found that "[I]t is well settled that in the absence of an
agreement to the contrary, the employer retains all of its
traditional managerial rights .... This is true even
where, as here, there is no specific management right
clause." The arbitrator further found that on the basis of
prior arbitration authority Respondent has the inherent
right to create new job classifications, to eliminate other
job classifications, and to distribute residual duties to
other employees in the bargaining unit "[a]s long as such
actions are not arbitrary, capricious or discriminatory
.... " The arbitrator framed the issues before him as:
481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Whether the employer's actions were prohibited
by the agreement and (2) whether said actions were
arbitrary, capricious, discriminatory, or made in bad
faith.
The arbitrator found, as General Counsel admits, there is
no expressed prohibition in the contract of Respondent's
actions; he further found that the action was not arbitrar-
ily capricious or discriminatory. The arbitrator went on
to say however:
Sections XXVIII(D)(5) and XXIX(A) clearly indi-
cate that the company has the unilateral right to
abolish jobs and did not surrender that right at the
bargaining table. These sections define the rights of
employees and the procedures to be followed "in
the event" or "in case" jobs are abolished.
Since he found that Respondent was not improperly mo-
tivated, he held that the Company's determination to
abolish the fourth hand and beater helper classifications
did not violate the collective-bargaining agreement. The
arbitrator went on to hold that the establishment of
duties for new classifications is reviewable by the indica-
tion of the grievance procedure in which the employee
can seek reevaluation of his job and pay his pay rate.
The arbitrator found that while the Employer was not
required to bargain over the new wage rates for the util-
ity person job because of the mechanisms provided for
review of the rates, Respondent did violate the contract
because there was "no bargaining whatsoever concerning
seniority, bumping rights, lines or promotion and regres-
sion, etc. of the new job." The arbitrator ordered the
Company to bargain over the working conditions of the
utility person classification.
The General Counsel contends that the Board should
not defer to the decision of the arbitrator because the ar-
bitrator used improper motive of analysis in appraising
Respondent's actions. Citing Alfred M. Lewis, Inc., 229
NLRB 757 (1977), the General Counsel argues in his
brief, p. 6:
The arbitrator found there was nothing in the con-
tract which prohibited the Respondent's action and
therefore he found no violation of the contract (Jt.
Exh. 3, p. 9). This framework for analyzing the
issues was directly opposite to the framework that
should have been applied in accordance with Board
law. Thus to analyze the unfair labor practice issue,
the question was not whether there was anything in
the contract which prohibited Respondent's action
but whether there was a specific provision in the
contract which permitted or allowed Respondent to
take such action. The arbitrator failed to consider
this issue ....
The General Counsel's citation of Alfred M. Lewis is
correct. Arbitrators are required to decide if the unilater-
al action is permitted by the contract; if not, the unilater-
al action is a violation of Section 8(a)(5) of the Act.
However, the General Counsel's statement that the arbi-
trator failed to consider this issue is incorrect. The arbi-
trator first and primarily looked to traditional arbitrator
guidelines for the decision that there was no violation of
the contract because there was nothing in the contract to
prohibit Respondent's conduct; however, he also held
that the language of the cited sections providing "in the
event" or "in case" jobs are abolished provide the Com-
pany with the "unilateral right to abolish jobs."
Thus, the aribtrator specifically stated that he was con-
sidering the statutory issue; he did consider the statutory,
albeit secondarily. It is not for the Board to substitute its
judgment for interpretation of the contractual provisions
for that of the arbitrator 4 even if the Board would have
reached a different result if it had been considering the
matter in the first instance.
Based on the above, and the record as a whole, I find
that it will effectuate the policies of the Act to give con-
clusive effect to the grievance award, and, on that basis,
and pursuant to Section 10(c) of the Act, I shall issue the
following recommended:
ORDER 5
The complaint is dismissed in its entirety.
4 Bay Shipbuilding Corporation, 251 NLRB 809 (1980), and cases cited
therein.
5 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
482