Administrative Law Judge's Kellogg-memphis Decision

Transcript

JD(ATL)–25–14 Memphis, TN UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES ATLANTA BRANCH OFFICE KELLOGG COMPANY and Case 15–CA–115259 BAKERY, CONFECTIONARY, TOBACCO, WORKERS AND GRAIN MILLERS INTERNATIONAL UNION AND ITS LOCAL UNION 252-G Steven E. Carlson, Esq., for the General Counsel. David M. Buday and Keith E. Eastland, Esqs. (Miller Johnson), for the Respondent. Jeffrey R. Freund (Bredhoff & Kaiser, P.L.L.C.) and Samuel Morris (Godwin Morris Laurenzi Bloomfield, P.C.), Esqs., for the Charging Party. DECISION STATEMENT OF THE CASE IRA SANDRON, Administrative Law Judge. This case is before me on a March 27, 2014 complaint and notice of hearing; April 8, 2014 amendment to complaint; and counsel for the General Counsel’s clarification of the complaint at trial 1 (the complaint). The complaint stems from unfair labor practice charges that Bakery, Confectionary, Tobacco, Workers and Grain Millers International Union and its Local Union 253-G 2 filed against Kellogg Company (the Respondent or the Company). The allegations arise from the Company’s stance at 2013 negotiations over a successor local agreement for its Memphis, Tennessee facility (Memphis or the plant), and its subsequent lockout of more than 200 bargaining unit employees there. 3 1 GC Exh. 1 (w). 2 Hereinafter separately referred to as the International and the Local, and collectively as the Union. 3 All dates hereinafter occurred in 2013 unless otherwise indicated. JD(ATL)–25–14 2 I conducted a trial in Memphis, Tennessee, from May 5 –9, 2014, at which I afforded the parties full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. 4 On July 14, 2014, the General Counsel filed a motion to file a reply brief and in fact filed 5 one. On July 24, 2014, the Respondent filed an opposition to that motion. Section 102.42 of the Board’s Rules and Regulations, Series 8, as amended, makes no provision for the filing of reply briefs, and allowing such is a matter addressed to the administrative law judge’s discretion. Coca-Cola Bottling Works, 186 NLRB 1050, 1050 fn. 2 (1970). In other cases cited by the General Counsel or by the Respondent in support of their respective positions, the Board’s 10 decisions do not reflect that the granting or denial of a motion for leave to file a reply brief was the subject of exceptions that the Board addressed. Accordingly, those decisions are not precedent. See California Gas Transportation, Inc., 353 NLRB 246, 246 fn. 3 (2008). Nonetheless, they can provide useful guidance and, collectively, they indicate that consideration should be given to such factors as opposition or nonopposition by opposing counsel, length of 15 the reply brief, any prejudice resulting from nonacceptance, and delay in the decisionmaking process. Clearly, the party seeking to file a reply brief normally has the burden to show, in essence, some reason warranting acceptance of such. This comports with the judicial principle 20 that the parties’ right to file posthearing briefs on behalf of their clients is not unlimited, either as to time or otherwise. Without such limits, the parties could theoretically file reply briefs to reply briefs ad infinitum. As the Board aptly stated in Franks Flower Express, 219 NLRB 149, 150 (1975), enfd. mem. 529 F.2d 520 (5th Cir. 1976), “The administration of justice requires an end to litigation at some point.” I note here that the original date for the filing of briefs was June 13, 25 2014, but Associate Chief Judge William Cates granted in part the Respondent’s unopposed motion for an extension of time, to June 27, 2014. The General Counsel has not demonstrated why he could not have fully argued the facts and applicable law in his brief, or any prejudice to the General Counsel in not allowing him to file a reply brief. Accordingly, his motion is denied. 30 Issues (1) In 2013 negotiations for a successor local agreement at the plant, did the Respondent’s insistence to impasse on its proposals for the expanded use of casual employees and alternative crewing scheduling violate Section 35 8(a)(5) and (1) of the Act because those proposals constituted midterm modifications to the wage and benefit provisions of the parties’ master collective-bargaining agreement that covered Memphis and three other Ready to Eat Cereal (RTEC) facilities, and were therefore nonmandatory subjects of bargaining? 40 Or, as the Respondent contends, were those proposals properly the subject of local contract bargaining, based on language in the master agreement 4 The General Counsel’s unopposed motion to correct transcript is granted. JD(ATL)–25–14 3 and the most recent local Memphis agreement, as well as what has been negotiated locally at the three other RTECs? 5 (2) On October 16, did the Respondent unlawfully threaten to lock out bargaining unit employees at Memphis if the Local did not ratify the 5 Respondent’s last contract offer before October 22? (3) On October 22, did the Respondent unlawfully lock out those employees? Counsel for the General Counsel clarified at trial that the complaint’s 8(a)(3) allegation is based solely on the Respondent’s alleged unlawful 10 insistence to impasse. (4) Since October 10, has the Respondent unlawfully failed and refused to provide the Local with information that it requested concerning job bidding at the plant? 15 Witnesses and Credibility Most of the salient facts are undisputed, and differences in accounts between the General Counsel’s and the Respondent’s witnesses were in the nature of nuance and emphasis, not 20 substance. Accordingly, credibility resolution is not a significant factor in deciding the merits of the allegations. The General Counsel called Memphis employee and Local Vice President Earl Earley, former International Representative Anthony Johnson, and International Vice President Robert 25 Oakley. The General Counsel called Kristie Chorny, Kellogg’s senior director of labor relations (LR), as an adverse witness under Section 611(c). The Union called Trevor Bidelman, an employee at Battle Creek and business agent of Local 3-G, which represents bargaining unit employees at that facility. 30 The Respondents’ witnesses were: (1) Kristie Chorny. (2) Darin Aldrich –human resources (HR) manager, Memphis. (3) Inran Husainali – HR manager, Battle Creek; former employee relations 35 (ER) manager, Omaha. (4) Lacey Ivy – ER manager, Memphis. (5) Rachel McConnell – senior operations manager and former bargaining- unit employee, Memphis. (6) Jon McPherson – former HR manager, Battle Creek; former vice- 40 president of LR. (7) William Muth, Jr. – former LR manager, Omaha; former HR manager, Battle Creek; and former LR director for the Morning Foods Division. (8) Patricia Smith – ER manager, Lancaster. 5 At Battle Creek, Michigan (Battle Creek); Lancaster, Pennsylvania (Lancaster); and Omaha, Nebraska (Omaha). JD(ATL)–25–14 4 (9) Kenneth Stiltner – HR manager, Omaha. Facts Based on the entire record, including testimony and my observations of witness 5 demeanor, documents, and stipulations, and the thoughtful posttrial briefs that the General Counsel, the Union, and the Respondent filed, I find the following. The Bargaining Framework 10 The Respondent, a corporation headquartered in Battle Creek, Michigan, operates the plant, where it has been engaged in the processing, packing, and nonretail sale of ready-to-eat cereal products. The Respondent has admitted Board jurisdiction as the complaint alleges, and I so find. 15 Since about 1958, the Respondent has recognized the Union as the exclusive collective- bargaining representative of a unit composed of all regular hourly rate employees, including production, maintenance, warehouse, boilerhouse and all other departments at the plant, excluding salaried employees. 20 Such recognition has been embodied in a series of master and local supplemental collective-bargaining agreements, with the most recent master agreement effective from September 30, 2012 to October 3, 2015; 6 and the most recent local supplemental agreement for Memphis effective from October 22, 2010 to October 20, 2013. 7 The master agreement covers the Respondent’s four RTEC plants, in Memphis and the locations described in footnote 5. Each 25 plant has its own separate agreement negotiated at the local level. All of these supplemental agreements have provisions for a casual work force, although the terminology varies. The crux of the dispute in this case hinges on a determination of whether the Respondent’s proposals for changes in local contract language concerning casual employees and 30 alternative crew scheduling were governed by the master agreement. At the time of the lockout, the plant employed over 200 bargaining unit employees, none of whom were casuals. At all four RTEC’s, casuals have been recognized to be part of the local bargaining unit. 35 Relevant Provisions of the Master Agreement Oakley was one of the signers for the Union; Chorny, Husainali, and Stiltner were among the signers for the Company. 40 The scope of the master agreement vis-à-vis the local supplemental agreement is set out in detail in sections 1.01 and 1.02 (Jt. Exh.2). 6 Jt. Exh. 2. 7 Jt. Exh. 1. JD(ATL)–25–14 5 Section 1.01 provides as follows: (a) The Company has previously entered into separate agreements for each of its four plants with the respective Local Unions . . . [which] “Supplemental Agreements” shall continue in effect as provided in such 5 agreements except as they may be specifically amended or modified by this Agreement. (b) The collective bargaining agreement for each of the bargaining units at the Company’s plant shall be this Agreement and the Supplemental 10 Agreements . . . at each respective plant. The terms and conditions of the Supplemental Agreements shall be binding on the parties thereto regardless of the continuation or termination of this Agreement, and the terms and conditions of this Agreement shall be binding on the parties to this Agreement regardless of the continuation or termination of any 15 Supplemental Agreement. (c) This Agreement shall cover only those matters specifically included herein; and in the event that any provision of any of the Supplemental agreements is in conflict with any provision of this Agreement, the 20 provision of this Agreement shall prevail. (d) The term “employees” whenever used in this Agreement and for purposes hereof shall include all those employees included in each bargaining unit as defined in each Supplemental Agreement. 25 . . . . (f) Those matters which have been covered by provisions in this Agreement shall not, unless the parties thereto agree, be subject to negotiation 30 between the Company and any of the respective Local Unions in an effort to secure changes in or to secure a new Supplemental Agreement. Those matters covered by provisions in a Supplemental Agreement shall not, unless the parties thereto agree, be subject to negotiation between the Company and the International Union in an effort to secure changes in or a 35 new version of this Agreement. Section 1.02 provides: The Company will continue to negotiate and enter into Supplemental Agreements 40 [with the four local unions]. Such Supplemental Agreements shall continue those matters which the parties have agreed are to be negotiated separately by the Company and each Local Union. 45 JD(ATL)–25–14 6 Section 1.03(d)(3) provides that a regular employee who is displaced as a result of the elimination of his or her permanent job shall have the option of terminating employment and receiving severance pay or continuing employment and being placed in accordance with the applicable supplemental agreement. 5 Section 1.05 provides for deduction of initiation fees and dues for “regular employees and employees designated as seasonal employees who have completed the defined trial period at each plant.” Section 5.01 states that all matters pertaining to hourly wages are contained in the Wage 10 Appendix. The Wage Appendix has provisions for a folded-in floating cost of living allowance (COLA). It contains a new hire progression schedule for regular employees (with the exception of skilled mechanics): 70 percent of job rate and 70 percent of COLA for the first year of service; 80 percent and 80 percent for the second year; 90 percent and 90 percent for the third and fourth years; and full job rate and COLA after completion of the fourth year. 15 The Wage Appendix 8 also sets out rates for “seasonal employees” (a classification in the Omaha supplemental agreement), based on when they started service. Those who began seasonal eligibility prior to October 2, 2005 receive 70 percent of job rate and 100 percent of COLA; those who became eligible after that date receive 70 percent of job rate and 70 percent of 20 COLA. The appendix has a detail table of COLAs, based on the consumer price index. The Wage Appendix further provides that a rate of $6 less than (regular) job rate is established for all work performed by nonregular employees, such as temporary and casual employees. Exceptions are set out for Lancaster casual employees as of September 29, 1996, 25 who retain their wage rate and progression scheduled as previously established in the Lancaster supplemental agreement; and for Battle Creek casual employees as established on September 25, 1999. However, the Appendix does not contain any classifications or set out any hourly pay 30 rates for them. Rather, the classifications and their wage rates are negotiated exclusively at the local level. Similarly, the wage rate for any new classification added in the master agreement is negotiated locally. Pertinent to the Respondent’s alternative crew scheduling proposals, Section 5.04 35 addresses overtime. Subparagraph (a) provides for time-and-a-half pay for all hours worked in excess of the normal workday and for all hours worked on Saturday, except that an employee in a department which normally operates 7 days per week will be paid such rate for hours worked on a regular shift on what would otherwise be their first scheduled day of rest in that workweek. Subparagraph (b) provides for double time for all hours worked on Sunday. Subparagraph (d) 40 provides that all other matters pertaining to overtime pay not specifically included in the agreement are excluded from the agreement and specifically reserved to negotiation for and inclusion in the respective Supplement Agreements. 8 Jt. Exh. 2 at 66, et. seq. JD(ATL)–25–14 7 Various memoranda of agreement (MOAs) are incorporated into in the master agreement. One (Jt. Exh. 2 at 81) provides for monthly meetings of local plant management and local representatives to discuss outside contracting, outsourcing, effectively utilizing the work force, and ways to cost effectively perform work with bargaining unit employees (UAC meetings). 5 An MOA of September 29, 2002 (id. at 96) provides an explanation of supplemental work injury benefits for seasonal and temporary employees as negotiated in September 1975, with the term “seasonal and temporary employees” referring to “those employees who are so designated in any of the supplemental agreements.” 10 An MOA of October 2, 2005 (id. at 100) addresses outside contracting and provides, in part, that management decisions thereon be discussed with the Local Union. The master agreement does not guarantee regulars any minimum hours of work, overtime, or particular schedules; or limit the number of hours casuals can be used or the scope 15 of their duties. Negotiations for the 2005, 2009, and 2012 Master Agreements In all of these negotiations, representatives of both the International and the four local 20 unions participated on behalf of the Union; headquarters and local management on behalf of the Company. The versions of company and union representatives regarding what was said therein were very similar and any consistencies immaterial. The parties never had an agreement, oral or in writing, that use of casual employees or alternative crew scheduling were or were not topics exclusively for master negotiations, as opposed to local contract bargaining. Oakley was the 25 chief spokesperson for the Union in all of these negotiations; the Company’s chief spokesperson was Joe Misner in 2005, Muth in 2009, and McPherson (who attended all three) in 2012. 2005 Master Agreement 30 Misner stated that the Company wanted to make changes to reduce its costs and become more competitive. The Company’s proposal 7 was to add new language that regular employees hired after October 2, 2005 would receive a compensation package with reduced progression and COLA and other benefits. 9 The Union responded that in order to justify its agreement to such a change, the Company would have to give something back in relation to job security for the 35 bargaining unit. The parties had further discussions on the subject, but the Company later withdrew the proposal. Proposal 11, establishment of a qualified casual work force MOA, was tied in with proposal 7 and dealt with in the same fashion. 2009 Master Agreement 40 At a prenegotiations meeting that the Company had requested, Muth said that the Company had talked earlier about casuals and alternative crew schedule and wanted to explore that again in the upcoming negotiations. He reiterated orally what the Company had proposed in writing in 2005 negotiations. McPherson stated that the 2005 agreement was not going to be a 45 9 GC Exh. 3 at 2. JD(ATL)–25–14 8 sustainable model and hoped that the Union’s expectations would be more realistic. He floated ideas about health care, retiree health care, and COLA concessions. Oakley again responded that the Union might be willing to make concessions in some areas but had to have certain things in return in the area of job security. 5 The Company’s initial proposals contained an alternative crewing proposal (proposal 5): double time would be paid on Sunday only if it was the scheduled day of rest (if it was an employee’s schedule day of work, pay would be at time-and-a-half). 10 The Union’s initial proposals included a proposal (proposal 1) that the term “employees” whenever used in the master agreement would include all employees (permanent, casual, temporary) included in each 10 bargaining unit as defined in each supplemental agreement. 11 Muth responded that the supplemental contracts already recognized that those classifications were covered. At the next session, Muth stated that the Company was not interested in proposal 1, and in the third or fourth session, the Union withdrew it. 15 2012 Master Agreement At a prenegotiations meeting, McPherson raised the subjects of casual employees and alternative crew schedules, asking if there was any possibility that the parties could discuss and make changes in those areas. Oakley replied that they were going in circles but that if the 20 Company was willing to address the Union’s issues, the Union was willing to look at theirs. McPherson responded that the Company was not going to pursue those subjects. The Company’s initial proposals, presented August 8, 2012, included a new provision that an employee in a department which normally operates 7 days a week (continuous crewing) 25 would not automatically receive Sunday premium pay. 12 McPherson stated that the Company had the right to implement alternative crewing but that it did not make economic sense in view of language in the master requiring Kellogg to pay double time on Sunday. The parties discussed the proposal but could not reach agreement, and the Company withdrew it. McPherson asked if the Union would be willing to discuss it at a UAC meeting, and Oakley agreed. However, 30 neither party raised the matter at the subsequent UAC meeting held in the spring of 2013. Neither party proposed any changes in the wage provisions (Article 5) from the preceding master agreement. 35 Relevant provisions of the 2010 Memphis Supplemental Agreement Section 104 expands on the language of Section 103(d) of the master agreement in addressing offers of severance pay and bid rights to employees in the event of job discontinuance. 40 Section 106 deals with student employees, a classification not mentioned in the master agreement. It describes the criteria they must meet for employment and specifically states that 10 R. Exh. 47 at 1. 11 R. Exh. 48 at 1. 12 R. Exh. 34 at 2–3 (proposal 3). JD(ATL)–25–14 9 they are not regular hourly employee and receive limited benefits contained in the master or supplement agreement. They may work extra relief and vacation replacement only during May 1 through the Saturday on or following September 15, and the second Monday of December through the Saturday on or following January 15. They may not be utilized when regular employees are on layoff unless the work is refused by the latter. In addition, regular employees 5 are offered overtime opportunities before students outside the vacation replacement periods. They are eligible to voluntarily join the Union at the beginning of employment and pay union dues if they work 1 day on the month. Section 107 is the casual program, modified from the previous supplemental contract. It 10 states: The purpose of this program is to provide regular employees with relief from extended work schedules through the use of Casual employees. Casual employees will not be utilized when regular employees are on [involuntary] layoff 15 . . . Casual employees will be limited to 30% of the total number of regular employees . . . . On any given day, the total number of scheduled regular production employees and Casual employees cannot exceed the total number of regular employees on 20 the Master Seniority List except when mutually agreed upon by the parties. A. The terms and conditions of the Supplemental and Master Agreements will not apply to Casual employees. Only the following fringe benefits will be granted to Casual employees, and they will not accumulate 25 seniority:  Uniforms; shoe subsidy MOA applies  Lunch and breaks  Shift differential 30  Wage Appendix of the Master Agreement-COLA B. The wage rate is 70% of the qualified rate for the first year and 80% of the qualified rate starting the second year. 80% of a given qualification rate is the maximum wage rate for his program. Casuals are eligible for overtime 35 after forty (40) hours worked in a workweek. Shift premium rates will apply. No call-in pay will be authorized and individuals will be paid only for hours worked at straight time. This wage rate in this provision, on its face, conflicted with the $6 less an hour provision 40 in the master agreement, and Chorny testified that it indeed did so. 13 13 Tr. 298; see also Tr. 420. At the time that the 2010 local agreement went into effect, the master agreement, effective from September 27, 2009 to September 30, 2012 (R. Exh. 18), provided for the $6 an hour less, as did the 2012 master agreement. JD(ATL)–25–14 10 C. Former regular employees will be considered for selection into the Casual Employment Program based on satisfactory attendance, work record, job performance assessment, and interview. D. The casual employee can be used only after overtime has been offered to 5 regular employees as defined by Extra Work Rules, including any employees on layoff [with five exceptions]. E. There will be no maintenance or equalization of hours worked. Individuals failing to accept three consecutive assignments may be 10 terminated from the program . . . . . . . . G. The Company may discontinue employment without such action being 15 subject to the grievance procedure. H. Casual employees will be considered for regular employment along with all other applicants. 20 Section 401, layoff, provides that no new employees will be hired until all regular employees temporarily laid off have been offered an opportunity to return to work if they have the skill and ability for the opportunity that is available. Section 404, job bidding, provides, inter alia, that only regular hourly employees who 25 have completed their probationary period may bid for a job. Section 501, workweek, provides that the workweek will begin with the first shift on Monday and that the normal shift schedules will be 7 a.m. to 3 p.m., 3 to 11 p.m., and 11 p.m. to 7 a.m., with the recognition that the Company needs some leeway in the application of 30 these provisions. Section 502 provides for double time pay for all hours worked on Sunday; section 503 for, inter alia, equalization of extra work opportunities to all employees within a qualified group based on hours; and section 701, for 4 hours pay for reporting and being sent home without 35 working. Section 801, et seq., addresses wages. The new-hire progression schedule is that set out in the 2005 master agreement that was in effect at the time the supplemental agreement was negotiated. A night premium application is described, followed by hourly rates per job effective 40 October 1, 2009, including a $1.89 COLA fold-in as of that date as per the terms of the master agreement. JD(ATL)–25–14 11 As with the master agreement, the supplemental agreement incorporates a number of MOAs. One (Jt. Exh. 1 at 59), from December 19, 2007, the date the predecessor local contract 14 went into effect, provides that the labor relations committee will meet at least once quarterly to discuss the employment and staffing status of the plant for the purpose of discussing the root cause of staffing and forcing issues. 5 An MOA (id. at 73) from the same date provides that the Company can use contracted labor for “downtime cleanup” 15 in order to provide regular hourly employees with relief and time off from downtime cleanup assignments. However, contracted labor will not be used when regular hourly rate employees are on layoff, unless they refuse the work. 10 2010 Supplemental Agreement Negotiations Business Agent William Magee was the chief spokesperson for the Union; LR Manager Eric Weber for the Company. 15 The Company repeatedly stated that the casual employee concept created a labor cost advantage for the Company by having work done by employees who were paid less and received few or no benefits, thereby making a plant more competitive. It therefore proposed a new provision establishing a casual employees program, pointing to the temporary casuals language 20 in the master agreement as enabling language. The parties negotiated such, including the 30 percent cap, melding casual employee program language already contained in two other supplemental agreements. They had no discussion concerning how wage and benefits provisions in the supplemental agreement would bear on the existing master agreement. 25 I credit Muth’s uncontroverted testimony that in early to mid-bargaining, he and International Representative Johnson conversed in the hallway. Johnson asked if there was any issue about negotiation of the casual concept at the local level given the existence of the master agreement. Muth replied that he did not believe so because the Battle Creek local agreement already contained a casual employee program, and nothing in the master agreement prohibited it. 30 The Local did not raise the issue in subsequent negotiations. 2013 Supplemental Agreement Negotiations At the outset, I note that the General Counsel has not alleged that the Respondent 35 engaged in surface or otherwise illegal bargaining and that the Respondent never filed unfair labor practice charges alleging that the Union did so. Indeed, the Respondent withdrew or modified some of its initial proposals, the Union made certain concessions, and the parties on October 1 reached tentative agreement on several items. 16 Accordingly, I need not go into great individual detail about each of the 12 bargaining sessions, held from September 17 to October 40 15. Joint Exhibit 3 is comprised of the bargaining notes that Shannan Zenters typed 14 R. Exh. 51. 15 A 48-hour period approximately every 28 days when the plant shuts down production for thorough cleaning. 16 See Jt. Exh. 7; see also Jt. Exh. 4, which represents the Company’s initial proposals and their modifications during the course of negotiations. JD(ATL)–25–14 12 contemporaneously for the Company during negotiations (except for her notes of the September 18 session, which were inadvertently erased). The parties stipulated that the notes are a generally true and accurate record of who said what during bargaining, although not to be considered necessarily verbatim. 17 As contemporaneous recordings, they are presumed to be generally more reliable than witness testimony given months after the meetings occurred. In any 5 event, the testimony of those who attended differed little or not all from the contents of the notes. Shelton was the chief spokesperson for the Union; Chorny for the Company. From a reading of the notes of negotiations, as well as testimony, it is evident that the first bargaining session, on September 17 (see Jt. Exh. 3, Tab A), set the tone for what became the parties’ 10 irresolvable disagreement over the Company’s proposals on expanded use of casual employees and alternative crewing. The Company’s key objective from the outset was modifications to these provisions in the 2010 agreement. 18 At that first session, the company representatives, Chorny and Bob Solt, in particular, 15 expressly said that the thrust of Kellogg’s proposals was to reduce labor costs and increase the plant’s profitability. Solt gave a slide presentation 19 and discussed the decline in RTEC business in general, saying that “Memphis is at risk. It is not a sustainable model . . . . We must significantly improve our cost structure . . . . We must be competitive and take back pounds [and increase productivity].” 20 And, near the end of the meeting, Chorny stated that the parties had an 20 opportunity to “fix the labor costs and how we can function in Memphis to build a sustainable cost model.” 21 The Company was proposing a new kind of casual employee, not in existence in the other RTECs, and told this to the Union. 22 The Company also told the Union that it considered its current bargaining unit employees to be “legacy employees” and wanted to make casual employees “the employee of the future.” 23 25 The Company presented the Union with 24 proposals to change provisions in the existing supplemental agreement (Jt. Exh. 4A). As the summary page reflects, most of the substantive proposals related to casual employees, whereas others reduced employee remuneration by cutting work guarantee pay from 4 hours to 1 hour, and by eliminating emergency guarantee pay, call 30 backpay, delayed notice to report pay, early call in pay, paid lunch period, and the Company’s provision of uniforms. With respect to student employees (sec. 106), company proposal 2 eliminated that classification, replacing it with the term “temporary employees,” whom the Company would 35 have the right to hire to cover casual absenteeism, vacations, spikes in business, or emergencies. Student employees could be hired as temporary employees. 17 Jt. Exh. 3 at 156. 18 Tr. 154–155 (Chorny). 19 See R. Exh. 31, a summary slide that Solt prepared and presented at the Union’s request. 20 Jt. Exh. 3, Tab A at 4. 21 Id. at 27. 22 Tr. 172 (Chorny). 23 Tr. 177 (Chorny). See also Tr. 218. JD(ATL)–25–14 13 As to casual employees, the Respondent proposed very significant changes both in the Company’s right to hire and utilize them and in the benefits that they would receive. Thus, company proposal 3 greatly expanded Kellogg’s right to hire casual employees, eliminated the 30-percent cap, and expanded casual employees’ benefits: 5 Casual employees include any employee hired by Kellogg to perform production or any other bargaining unit work covered by this Supplemental Agreement and under this provision. Casual employee shall not be limited in the scope of their work, duties, tasks, hours, or in any other terms or conditions of employment except as expressly agreed to by the parties in this Supplemental Agreement or an 10 applicable Master Agreement. Casuals may be employed on an indefinite basis, and there shall be no restrictions on Kellogg’s rights to hire, use manger, or direct casual employees except as specifically set forth in this Agreement or in any specific provisions of an applicable Master Agreement. 15 Casual employees are part of the bargaining unit and will have rights and benefits as set forth below in this Agreement and in any specific provisions of the Master Agreement governing casual employees. 24 Additionally, the proposal provided for a flat wage rate of $6 an hour less than the job 20 rate for regular employees (to conform to the master agreement), provided that casual employees would accumulate seniority, and eliminated language that causal employees would only be used after overtime has been offered to regular employees. Other proposals reflected the Company’s proposed new section on casual employees: 25 Proposal 1 added casual employees to the probationary period provision in Section 102. Proposal 5 gave them the same grievance rights as regular employees in 30 Section 201. Proposal 7 changed the language in section 401 that no new employee be hired until all regular employees laid off have been offered an opportunity, by adding “This provision does not restrict Kellogg’s right to hire new casual, temporary or student employees consistent with the 35 terms of this Agreement.” Proposal 7 also changed section 404 (job bidding) to give casual employees full job bidding rights. It replaced the language that at the time of signing a job bid, an employee must be eligible to bid, with language that eligibility would be based on a number of guidelines, 40 including that there had been no formal discipline issued to the employee unless management, in writing, indicated otherwise. Additionally, the language that employees may be awarded up to three jobs in a calendar year was changed to one job in a 24-month period. In terms of the job 24 Casuals would continue to be excluded from health and other insurance under master agreement Section 6.01. JD(ATL)–25–14 14 bidding process, the proposal added (to skill and ability), satisfactory attendance, work record, job performance assessment and, unless waived by management, an interview. Proposal 10 extended the application of equalization of work in section 503 to casual employees. 5 Proposal 17 extended job assignment provisions in section 708 to casual employees. The proposal further added a provision entitled “flexibility,” providing that there would be no jurisdictional restrictions between any jobs and that any regular or casual employee could be assigned to perform any work for which qualified. 10 Proposals 19 (physical disability transfers) and 21 (night premium application) changed “employees” to “regular or casual” employees. In sum, adoption of the Company’s proposals would have removed any distinctions 15 between regular and casual employees except as to pay and benefits. 25 Chorny explained that, going forward, any employee hired to do bargaining unit work would be hired as a casual employee but that the Company was not precluding the later hiring of regular employees if needed because of their skills. However, under the proposal, it would not 20 be under any obligation to do so. The Company would be able to hire new casual employees while regular employees were on temporary layoff, but employees on permanent layoff or job discontinuance would first be offered positions that came up—as casual employees—before such positions would be offered to new applicants. 25 The expiring agreement had no alternative crewing provision, and no such scheduling was in effect at Memphis during these negotiations. With regard to workweek hours (sec. 501), proposal 8 provided that the Company would have the right to establish an alternative crewing schedule and to determine as necessary the definition of a normal workday and normal workweek. The proposal stated that no premium pay would be applicable to the alternative 30 crewing schedule except that regular employees would receive such as per the master agreement. Preference would be given to casual employees to crew lines for alternative crewing. Chorny told the Union that its proposals would not impact the pay or benefits of existing regular employees, but she did concede that alternative crewing would reduce the amount of 35 their overtime pay. The Union’s reaction to these proposals was negative, to say the least. Shelton questioned whether the master agreement addressed the alternative crew proposal, to which Chorny responded that scheduling was always bargained at the local level. 40 The issues of expanded use of casual employees and of having alternative crewing schedules remained unresolved throughout subsequent negotiations. At various times, each side accused the other of failing to bargain in good-faith on those subjects. The Union raised 25 See testimony of Chorny at Tr. 388–389. JD(ATL)–25–14 15 objections to various aspects of these proposals, including removal of the 30-percent cap, but never provided any formal counterproposals. At the last meeting, on October 15 (Jt. Exh. 3, Tab L), Shelton started by stating his view that the two issues left were casual employees and alternative crewing schedule. After Chorny 5 agreed, the following conversation took place (id. at 1): Shelton: “[O]ur position is since that is [sic] the only 2 issues we have left to discuss and you tried to get those in the Master and you did not get them, I have filed a board charge against you this morning for you 10 trying to get them in the Supplemental since you did not get them in the Master . . . . We are done negotiating, we are done.” Chorny: Just to be clear, we did not go after that in the Master. You are seriously walking out on us? Shelton: We are through we are done, done forever. 15 Chorny: We plan on being here are we are not done bargaining . . . . Just to be clear, none of those are master issues, so if you are walking out on us, that is not bargaining in good faith. The meeting ended almost immediately thereafter. Later that day, Chorny sent Shelton 20 an email, with attachments. 26 Therein, she responded to his oral information requests of October 10 (to be discussed subsequently), and, as Shelton had also requested, provided a “comprehensive document” showing outstanding proposals, proposals that the Company had withdrawn, proposals to which the parties had tentatively agreed, and their discussions on the length of the agreement. She stated that the Company’s casual employee concept and 25 alternative crewing schedule proposals in no way contravened the master agreement and that the fact that the parties might have discussed any issue during master negotiations did not preclude bargaining over such topic at the local level. Within a couple of hours, Shelton sent Chorny an email in which he emphasized that the casual employee concept and alternative crewing were master contract matters on which the Union would not negotiate but that the Union remained 30 available for further bargaining on proper supplemental issues. 27 The next morning, October 16, Chorny responded by email, in which she reiterated her position that the proposals in question were not meant to modify or alter the master agreement. 28 On October 16, Chorny emailed Shelton Kellogg’s last best offer. 29 That same day, Plant 35 Director Chris Rook sent a letter to bargaining unit employees, advising them that the Company had communicated to the Union that day that if Kellogg’s last offer was not ratified by October 22 at 7 a.m., the Company would lock them out. 30 26 Jt. Exh. 8. 27 Jt. Exh. 9. 28 Ibid. 29 Jt. Exh. 10. 30 Jt. Exh. 11. As per Sec. 8.02 of the master agreement, Chorny on October 20 provided Shelton with formal notice of the Company’s intention to lock out unit employees on October 22 if the Union did not agree to its final offer before then. Jt. Exh. 12. JD(ATL)–25–14 16 On October 22, the Respondent locked out bargaining unit employees, and they have remained locked out to date. Since the initial charge was filed within 6 months of the Company’s last best offer, the letter to employees, and the lockout, I find no merit to the Respondent’s argument that the charge 5 was untimely under Section 10(b) because the Local in 2010 agreed to the concept of casual employees who would receive less compensation than regular employees. Use of Casuals, Memphis 10 About 20 casuals were hired at Memphis under the 2010 agreement; 17 of them signed up for union initiation and dues checkoff. By the time of the 2013 negotiations, no casuals were employed at the plant. Respondent’s Exhibit 43 contains the time records of casuals, from September 12, 2011 to May 20, 2012. In two or three labor relations meetings in late 2011 and early or mid 2012, the Union expressed concerns about casual employees losing hours as a result 15 of subcontracting. As per the master contract MOA, the Company has contracted out a number of jobs, such as general maintenance, boiler work, plumbing, and electrical work. The casuals performed a variety of jobs that were also performed by regular employees. They wore the same uniforms, performed the same duties, received the same training, and had 20 the same supervisors as regular employees. Their hours were unrestricted, although they did have scheduling restrictions as per the local agreement (described earlier)—regular employees had to be offered premium paydays or overtime before them, except in five special situations (e.g., funeral leave or jury duty). Unlike regular employees, they had no probationary period before they became permanent employees, but their evaluations were on the same forms. 25 Other RTECs None of the parties have contended that the Memphis plant should be treated any differently from its sister RTECs as far as applicability of the master agreement vis-à-vis local 30 agreements. According, their local contracts are relevant to determining the issues before me. I credit the unrebutted testimony of management representatives Husainali and McPherson as to Battle Creek, and Muth and Stiltner as to Omaha. For reasons to be stated, I credit Smith only in part as to Lancaster. 35 Prior to 1999, Battle Creek used casual employees, but the scope of what they could do was substantially expanded in 1999 as a result of the Company closing one of its two Battle Creek facilities. The Company proposed a qualified casual concept, to which the Union agreed in exchange for the Company’s agreement to enhanced severance pay and other benefits to 40 employees in the closed plant. Implementation of the new casual concept began in 2000, pursuant to which qualified casuals could perform any job in the facility except skilled trades (aka maintenance). JD(ATL)–25–14 17 At Lancaster, the casual concept was first negotiated in the 1981–1983 local agreement. 31 As opposed to the current agreement, it provided that students be given preference to work in the program and contained no cap on the use of casuals. The first local agreement to have a cap was that of 1987–1989, which limited the number of casuals to 30 percent of the total number of regular employees. 32 The cap was raised to 40 percent in the 1998–2001 agreement. 33 5 At Omaha, the current local agreement, described below, is the first local contract to contain a casual employee concept. The most recent Battle Creek supplemental agreement, effective April 3, 2011 to April 5, 10 2015, contains an MOA regarding utilization of casual employees. 34 The current Lancaster local agreement, effective from October 9, 2011 to October 10, 2014, also has an MOA providing guidelines for utilization of casual employees. 35 The most recent Omaha supplemental agreement, effective from May 16, 2010 to May 18, 2014 does not contain the term “casual employee;” rather, section 103 provides for two classifications of “seasonal employees.” 36 15 At Omaha, after mid-term bargaining in March and April 2013, local management and the local union negotiated an MOA, executed on April 4, 2013, concerning seasonal B employees. 37 The MOA modified certain provisions in the supplemental agreement, including giving seasonal B employees a 60-day grace period to work in a training capacity, giving them 20 more flexibility in vacation scheduling, and allowing a regular employee to replace a seasonal employee forced to work. It also added a new provision regarding seasonal B employees transitioning to regular employee status; in sum, 40 percent of candidates entering the seasonal B program would be able to apply for regular status on a special track, whereas the remaining 60 percent would have to be hired through the standard hiring process. 25 The stated purpose of all three of the above provisions is to provide scheduling relief to regular employees. The caps or limits on their use vary: at Battle Creek, 30 percent of the total number of regular nonmaintenance employees; at Lancaster, 40 percent of the total number of regular employees; and at Omaha, not exceeding 20 percent above the bargaining unit work 30 force, excluding maintenance. None of the plants provide casuals with bidding or seniority rights, and their terminations are not subject to the grievance procedure. All of the work performed by casuals is also work performed by regular employees, with whom they work side- by-side and under the same supervisors. There are no restrictions on the number of hours they can work. At Battle Creek and Lancaster, there are no restrictions on how long they can work; at 35 Omaha, however, those who are not also in the seasonal A program can work a maximum of 5 years. 31 R. Exh. 27 at14–15 (MOA). 32 R. Exh. 25 at 14. 33 R. Exh. 23 at 22. 34 R. Exh. 19 at internally paginated 84–86. 35 R. Exh. 22 at 32–34. 36 R. Exh. 29 at 8–10. The seasonal B employees, who can work year-round, are akin to casual employees at the other plants. I will hereinafter in this section refer to them also as casuals. The seasonal A employees are more in the nature of summer hires. 37 R. Exh. 37; Tr. 547, et. seq. JD(ATL)–25–14 18 As to pay, casuals at Lancaster are paid $6 an hour less than the operator rate for all work performed, with the exception of employees on the payroll as of September 29, 1996, who retained their wage rate and progression as per a previous local MOA incorporated by reference to the terms of the master agreement. At Omaha, the pay rate for casuals is not specifically set 5 out in section 103 but presumably is $6 less an hour as per the master agreement. However, the Battle Creek local agreement provides that the casuals’ wage rate is “$6.00 less than the job rate for work performed. Once a job qualification is obtained by the casual employee, the employee is eligible for $3.00 less than the job rate for all work performed.” 10 Thus, casuals who are qualified to perform a job receive $3 less than the job rate for regular employees. 38 Since it has to be assumed that a casual employee would not be assigned to perform a job for which he or she is not qualified, this appears to effectively supersede the $6 an hour less an 15 hour contained in the master agreement. The language that nonqualified casuals will receive $6 an hour less an hour appears to be a merely perfunctory acknowledgment of the master’s provision. Even assuming a distinction is made in practice, at least some casuals have been paid at a locally-negotiated rate that is different from the amount in the master. 20 The fringe benefits that casuals receive is not identical at the three plants. At Battle Creek and Lancaster, they do not receive group insurance, vacation pay, or show-up pay. However, at Omaha, show-up pay is not mentioned as an exclusion. At Battle Creek, casuals perform any production work for which they are qualified but do 25 not perform skilled trade work (mechanical and electrical). Thus, they work in various positions in the packing, processing, and warehouse departments but not in the mechanical department. Smith gave confusing and contradictory testimony concerning the nature of the casuals’ work at Lancaster, undermining her credibility on that matter. When asked on direct 30 examination what jobs they perform, she replied wastefeed, industrial cleaning, and packaging cereal. On cross-examination by the General Counsel, she testified that their primary function is wastefeed because that is the only function for which they can be trained under the contract but that they no longer perform packaging because those functions have been automated. Then, on cross-examination by Freund, she testified that there currently are no casual employees doing 35 wastefeed and that that none have been trained to do such in the last 5 years. Based on her final testimony, I find that their primary function is general work not requiring specialized training and that they do not perform any of the other jobs listed on page 57 of the agreement. 40 At Omaha, seasonal employees perform various functions outside of those defined under maintenance, i.e., in the packing, processing, quality control, and sanitation departments. 38 Tr. 606 (Husainali). JD(ATL)–25–14 19 At all three plants, the casuals/seasonals (Omaha) cannot be offered overtime until after all regular employees have been offered work, although Omaha has exceptions in which casuals or seasonal A employees can be scheduled before offering overtime or extra work to regular employees. The Battle Creek and Lancaster agreements also provide that regular employees on involuntary layoff also first must be offered overtime, but Omaha does not, at least in section 103 5 of its local agreement. Respondent’s Exhibit 40 is a summary of the usage of casual employees at Battle Creek from 2000 until approximately May 1, 2014. 39 The yearly total number of casual employees used has varied from 29 in 2001 to 97 in 2008. In roughly the first 4 months of 2014, the 10 number was 45. They worked an average of about 413 hours, or approximately 24 hours a week. Husainali testified without controversion that there are currently 38 or 39 casual employees. Respondent’s Exhibit 35 shows the usage of casual employees at Lancaster from 2007 to approximately May 1, 2014. 40 The yearly number has remained fairly consistent, ranging from 15 101 in 2007 to 121 in 2009. On the other hand, in 2014, YTD, 118 casuals worked an average of a little over 3 hours per week, considerably less than in any of the prior years. Respondent’s Exhibit 38 shows the utilization of seasonal employees at Omaha from 2007 to approximately May 1, 2014. 41 Since the seasonal B program did not come into effect 20 until 2010, all of the seasonal employees in the preceding years were seasonal A. Prior to 2014, the number ranged from 46 in 2009 to 101 in 2013. In 2014, the number was 16 (all seasonal B’s). They averaged about 67 hours a week. Alternative crew scheduling is currently in effect for powerhouse employees at Battle 25 Creek and for the boiler generators at Omaha. Request for Information, October 10 Bargaining Session As reflected in Jt. Exh. 3, Tab K, the Union orally requested information in connection 30 with proposal 7, which gave the Company the unrestricted right to hire nonregular employees, including casuals, and afforded casuals bid rights. Shelton requested the following: 35 (1) Total number of bargaining unit employees to be involved in the casual concept. (2) Total number of hours the casuals worked in the last 3 years. (3) Average hours worked for all casuals in the last 3 years on a weekly basis. (4) Average days worked for casuals in the last 3 years on a weekly basis. 40 (5) Total number of overtime hours casuals worked in the last 3 years on a weekly basis. 39 Based on testimony regarding similar summaries for Lancaster and Omaha. The underlying data is contained in R. Exh. 41. 40 The underlying supporting data is contained in R. Exh. 36. 41 The underlying supporting data is contained in R. Exh. 39. JD(ATL)–25–14 20 (6) Total number of jobs bid in the previous 3 years. (7) Total number of employees who were awarded a job in the last 12 months and a copy of the bids (8) Total number of employees awarded more than one new job bid in the last 3 years and a copy of it. 5 (9) A list of what the Company would consider formal discipline that could get someone removed from bidding consideration. (10) A list of what would not disqualify them from bidding on a job. (11) What the Company would consider satisfactory attendance, including how many attendance points and what part of the work record the Company 10 would use. (12) Would the Union be part of the bid eligibility process? (13) Who would do the job assessment and what guidelines would be used? (14) Who would conduct the interview and what kinds of questions and guidelines would be used? 15 (15) A copy of all questions and answers that would be asked during the interview. (16) Who would make the final decision on who is awarded the job bid, since it would no longer be seniority? (17) Would FMLA be considered as an attendance factor? 20 (18) A list of criteria that the Company would use for waiving an interview. After a management caucus, Chorny told the Union that the Company was withdrawing the proposed provision that an employee who had been issued informal discipline was ineligible to bid; the addition of added criteria (satisfactory attendance, etc.) for awarding bids, including 25 an interview; and the change to awarding three jobs in a calendar year. With those changes, she indicated, the Company’s only remaining proposed change to bidding procedures was the inclusion of casuals. During another caucus, the Company prepared a proposals update 42 which, inter alia, 30 confirmed this. Later, after the Union had reviewed it, the following exchange ensued: 43 Chorny: [W]e are working on our information request. With our proposal changes to the #7 do you still want all that?” Shelton: Shit yes, you made me read all of it. 35 Chorny: Are you serious? Shelton: No. I want the part that is relevant and still on the table. The parties had no discussion on the information requests at the following (and last) bargaining session held on October 15. That afternoon, Chorny emailed Bradshaw and the Local 40 a response to the Local’s oral information requests of October 9 and 10. 44 Therein, she attached Plant Manager Rook’s responses to the following questions: 42 Jt. Exh. 4(h). 43 Jt. Exh. 3, Tab K at 13. 44 Jt. Exh. 8. She referenced oral requests of October 9 and 10, but only the latter are before me. JD(ATL)–25–14 21 (1) The total number of bargaining unit employees to be involved in the casual concept. (2) When the Company would start hiring new casuals if the Company’s proposals thereon were implemented. (3) Average hours the casuals worked in the last 3 years on a weekly basis. 5 (4) Average days the casuals worked in the last 3 years on a weekly basis. (5) Total number of overtime hours casuals worked in the last 3 years on a weekly basis. The General Counsel does not contend any deficiencies in the Company’s responses to 10 those requests. As stated in the complaint, and as conceded by the Respondent, the Company did not provide the following information: (6) The total number of jobs bid in the plant in the previous 3 years. (7) The total number of employees who were awarded a job in the past 12 15 months and a copy of the bids. (8) The total number of employees awarded more than one new job bid in the last 3 years and a copy of the bids. (16) Who would make the final decision on who is awarded the job bid. 20 The Local voiced no dissatisfaction with what Rock provided and did not renew its request for the above information that remained unfurnished. The Company has never provided such information or raised any reasons to the Local for not doing so. At trial, company witnesses contended that on October 15 Shelton withdrew all information requests related to bidding, but none of them questioned the accuracy of what the bargaining notes reflect he said: “I want the 25 part that is relevant and still on the table.” Indeed, Chorny confirmed that he made that statement, and she conceded that the bidding proposal remained on the table inasmuch as the Company continued to seek to confer bidding rights on casuals. 45 ANALYSIS AND CONCLUSIONS 30 The Respondent’s Declaration of Impasse and Lockout of Employees The Respondent made it abundantly clear, from the outset of negotiations, that the primary purpose of its casual employee and alternative crew scheduling proposals was to reduce 35 labor costs, including overtime pay, and the Union had legitimate concerns about the impact that such proposals would have on the bargaining unit, particularly on the regular work force. Indeed, the Respondent’s witnesses conceded that, if adopted, its casual employee proposal could theoretically result in all new hires in the future being casuals, with a concomitant erosion of the number of the regular employees, who eventually could be entirely replaced by casuals. 40 However, my role is not to judge the merits of the Company’s proposals or the reasonableness of the Union’s response. The issue before me is whether the proposals were proposed modifications to the master agreement, and therefore midterm modifications over which the Union had no obligation to bargain, or were proposals going to the renegotiation of the 45 45 Tr. 188. JD(ATL)–25–14 22 local agreement and therefore mandatory subjects of bargaining. The answer determines the legality of the Company’s declaration of impasse, letter to employees, and subsequent lockout. For the following reasons, I conclude that the Respondent's proposals on the casual employee program and alternative crew scheduling were matters that did not contravene the 5 terms of the master agreement and which have been the subjects of local RTEC plant agreements. That the proposals impacted on regular employees' remuneration in terms of reduced overtime hours does not equate to their conflicting with the master agreement, which neither sets out priorities for offering overtime nor guarantees it to regular employees. Indeed, the master agreement recognizes the concept of continuous crewing, which it leaves to local 10 bargaining. Granted, the Union had an understandable fear that the proposals, taken together, would cause a reduction in the regular work force—even its potential future elimination as a result of ongoing hiring only of casual employees. However, this does not change the fact that the proposals concerned subjects that were properly the subjects of local bargaining; proposals over which the Union could have sought to negotiate terms more favorable to regular employees 15 but did not. I. Legal Framework An employer and the representative of its employees are obliged to bargain in good faith 20 on mandatory subjects of bargaining but are not required to do so on nonmandatory subjects. NLRB v. Wooster Division, 356 U.S. 342, 349 (1958). If an employer proposes nonmandatory subjects, it cannot insist upon them as a condition of any agreement. Ibid; Smurfit-Stone Container Enterprises, 357 NLRB No. 144, slip op. at 1 (2011). Nor can it insist to a point of impasse on inclusion of such subjects in a contract. Id.; ServiceNet, Inc., 340 NLRB 1245, 1245 25 (2003). Under Section 8(d) of the Act, 29 U.S.C.§158(d), when a collective-bargaining agreement is in effect, a party is under no obligation to consent, or even to discuss, the other party’s proposed midterm modification of a contractual term, unless the agreement contains a 30 reopener provision, i.e., a provision that a party can open up such subject for bargaining prior to the agreement’s expiration. Smurfit-Stone, id. slip op. at 2; Boeing Co., 337 NLRB 758, 762– 763 (2002). In the absence of a reopener provision, such a proposal is deemed a nonmandatory subject of bargaining. Smurfit-Stone, id.; New Seasons, Inc., 346 NLRB 610, 617–618 (2006). 35 There is no question that if the master agreement covered the subjects that the Respondent’s proposals sought to change—use of casual employees and alternative crew scheduling—then those proposals sought midterm modifications, for which the Union was not required to bargain, and over which the Respondent could not declare an impasse when the parties failed to reach agreement thereon. If the declaration of impasse was unlawful, ergo the 40 resulting lockout was also unlawful. Relying on Provena Hospitals, 350 NLRB 808 (2007), the Respondent contends that the topics of casual employees and alternative crew scheduling were mandatory subjects of bargaining at local level negotiations because, at the master negotiations level, the Respondent 45 never clearly and unmistakably waived the right to bargain over them locally. I agree with the JD(ATL)–25–14 23 General Counsel that the Respondent’s reliance on the clear and unmistakable waiver standard is misplaced. In Provena, the Board found nothing in the express provisions of the agreement or in the bargaining history to establish that the labor organization waived the right to bargain over incentive pay and that the employer’s unilateral change therein therefore violated Section 8(a)(5) and (1). Thus, the union had a right to bargain unless such right had been waived. Here, in 5 contrast, the issue is whether the Respondent’s proposals sought midterm modifications of the master agreement. If so, then the Respondent had no right to insist to impasse on them and thus no waiveable “right” existed. II. Master Contract Provisions 10 Sections 1.01 and 1.02 essentially set out a dual-bargaining system, pursuant to which a master agreement covers all four RTEC’s, each of which has its own local agreement. Section 101(c) provides that the master agreement covers only those matters specifically included therein but that the provisions of the master agreement will prevail in the event of any conflicting 15 provision in a local agreement. Section 101(a) leaves the definition of “employees” to each local agreement, and section 1.02 provides that local agreements shall continue those matters that the parties have are agreed to be negotiated separately at the local level. By the very terminology of sections 1.01 and 1.02, a determination must be made of 20 whether the Respondent’s casual employee and alternative crew proposals amounted to proposed midterm changes to the master agreement, or were mandatory subjects of bargaining for the successor Memphis local contract. Section 101(f) provides: 25 Those matters which have been covered by provisions in this Agreement shall not, unless the parties thereto agree, be subject to negotiation between the Company and any of the respective Local Unions in an effort to secure changes in or to secure a new Supplemental Agreement. Those matters covered by 30 provisions in a Supplemental Agreement shall not, unless the parties thereto agree, be subject to negotiation between the Company and the International Union in an effort to secure changes in or a new version of this Agreement. As the Board stated in Michigan Bell Telephone Co., 306 NLRB 281, 282 (1992): 35 In general, a zipper clause is an agreement by the parties to preclude further bargaining during the term of the contract . . . .[T]he result will be that neither party can force the other party to bargain, during the term of the contract, about matters encompassed by the clause. 40 There is no one standard version for a zipper clause, and the parties can decide its scope. When determining whether a contractual provision constitutes a waiver of bargaining rights, the test is that set out by the Supreme Court in Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 709 (1993): 45 JD(ATL)–25–14 24 [W]e will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the understanding is “explicitly stated.” More succinctly, the waiver must be clear and unmistakable. 460 U.S. 693, 709 (1983). 5 This clear and unmistakable waiver test applies equally to alleged waivers contained in zipper clauses as it does to those contained in other contractual provisions. Michigan Bell Telephone, ibid. If the language of the clause is ambiguous, i.e., subject to an interpretation that it does not preclude bargaining over the subject at issue, waiver will not be found. Ibid; c.f. Mead Corp., 318 NLRB 201, 202 (1995). 10 The General Counsel contends that section 1.01(f) of the master contract is a zipper clause that operated to privilege the Local not to bargain over the Respondent’s proposals concerning expanded use of casuals and alternative crew scheduling, since they proposed midterm reductions in employee wages and other compensation. On the other hand, the 15 Respondent argues that, whether or not section 1.01(f) is characterized as a zipper clause, it did not constitute a clear and unmistakable waiver of the right to bargain over expanded use of casuals and alternative crew scheduling in Memphis local negotiations. Because section 1.01(f) distinguishes between matters covered by provisions in the 20 master agreement and matters covered in a supplemental agreement, we go back to the fundamental question of whether the proposals on expanded use of casual employees and alternative crew scheduling related to subjects encompassed by the master agreement or to matters governed by the local agreements. 25 III. Casual Employees In the master agreement, section 5.01 and the Wage Appendix provide for a folded-in COLA; a new hire progression schedule for regular employees; wage rates for seasonal employees (Omaha); and, with certain specified exceptions, a pay rate of $6 less an hour for non- 30 regular employees, such as temporary and casual employees. However, the Wage Appendix does not contain any hourly pay rates for any classifications, which are negotiated at the local level, as are wage rates for new classifications added in the master agreement. The Respondent brought up expansion of the casual employee program and alternative 35 crewing at master negotiations in 2005, 2009, and 2012, but the Union would not agree to them, and the Respondent withdrew them. However, at no time was there any agreement or understanding that local negotiations on those subjects was precluded by the master agreement. Turning to the local agreements, section 106 of the 2010 Memphis supplemental 40 agreement deals with student employees, a classification not mentioned in the master agreement. Inter alia, it describes the criteria they must meet for employment, specifically states that they are not regular hourly employee and receive limited benefits, and limits when they can be used. Thus, this classification and its parameters was the creation of local negotiations. 45 JD(ATL)–25–14 25 Section 107 is the casual program. It provides, inter alia, that they are limited to 30 percent of the total number of regular employees, and receive only enumerated limited fringe benefits. Most significantly, paragraph F provides that their wage rate is 70 percent of the qualified rate for the first year and 80 percent of the qualified rate starting the second year. This wage rate conflicts with the $6-less-an-hour provision in the master agreement, on its face and as 5 Chorny testified. The result is that local negotiations on this matter effectively superseded the master agreement’s terms. In the other RTEC plants, the terminology for non-regular employees varies: Battle Creek references casuals, temporary replacement employees, and seasonal employees; Lancaster has 10 casuals and seasonals; and Omaha has two classifications of seasonal employees but no employees termed casual. The cap on casual employees also varies by plant: 30 percent at Battle Creek, 40 percent at Lancaster, and 20 percent (for seasonal B) at Omaha. At Lancaster, there originally was no 15 cap when the casual program was first instituted under the 1981–1983 agreement. The first local agreement to have a cap was that of 1987–1989, which limited the number of casuals to 30 percent of the total number of regular employees. The cap was raised to 40 percent in the 1998– 2001 agreement. Therefore, the degree to which the Company can use casual employees vis-à- vis regular employees has been a matter solely for local negotiations. 20 The wage rates for casuals are $6 less an hour, as per the master agreement, at Lancaster (with the exception of certain grandfathered employees), and the same apparently holds true for seasonals at Omaha. However, at Battle Creek, at least some of the casuals are paid $3 less an hour, as the language of the local contract and Husainali’s testimony reflect. Thus, as with 25 Memphis, local negotiations have overridden the pay provision for casuals contained in the master agreement. The plants also differ on how casuals are scheduled vis-à-vis regular employees and the degree to which they have been utilized, both annually and in total hours. Thus, in the first few 30 months of 2014, Battle Creek had 38 or 39 casuals, averaging approximately 24 hours of work a week; Lancaster 118 casuals, averaging about 3 hours a week; and Omaha 16 casuals, averaging 67 hours a week. Summary 35 As far as casual employees, the master agreement contains little, other than the provision that they be paid $6 less an hour than the hourly rate of regular employees. Significantly, both at Memphis and Battle Creek, local representatives negotiated and implemented different pay rates for casuals, thereby not complying with the section 101.1(c) provision that in the events of 40 conflicts in provisions between the master agreement and a local agreement, the former would prevail. Clearly, local negotiators through the years have determined the scope and operation of the casual employee program at their respective plants, including their hiring, training, and assigned duties. Thus, varying caps have been negotiated locally, and the use of casuals has varied greatly among the plants and fluctuated from year to year. In sum, use of casual 45 JD(ATL)–25–14 26 employees, and their terms and conditions of employment, has been primarily a matter for local negotiations throughout the years, as well reflected by the April 4, 2013 MOA at Battle Creek. IV. Alternative Crewing 5 The master agreement nowhere mentions the term “alternative crewing.” The only pertinent provision is section 5.04, which addresses overtime for hours worked in excess of the normal workday and on Saturday and Sunday, and sets out an exception for an employee working in a department that normally operates 7 days per week. Subparagraph (d) specifically provides that all other matters pertaining to overtime pay are excluded from the agreement and 10 specifically reserved to negotiation in local agreements. The master agreement does not guarantee regular employees any particular schedule or a minimum amount of overtime. Two of the RTEC’s have locally negotiated continuous crewing for boiler operators, and overtime policies are not identical among the four plants. 15 Summary The master agreement recognizes the concept of continuous weekly operation and that the implementation of overtime practices is primarily a matter for local negotiations, and local negotiations at two plants have resulted in the implementation of continuous operation 20 scheduling for boiler operators. Thus, alternative crew scheduling has been tacitly recognized as a subject for local bargaining, even though it may overlap with provisions in the master relating to overtime. V. Conclusions 25 Based on the above factors, and the record as a whole, I conclude that the Respondent’s proposals for an expanded casual employees program and for alternative crewing were topics that came under the local agreement, and not proposals for midterm modifications of the master agreement. Therefore, they were mandatory subjects of bargaining in the 2013 Memphis local 30 negotiations. Impasse occurs “after good faith negotiations have exhausted the prospects of concluding an agreement.” Sacramento Union, 291 NLRB 552, 554 (1988); Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. sub nom Television Artists AFTRA v. NLRB, 395 F.2d 35 622 (D.C. Cir. 1968). Whether impasse exists is a matter of judgment, and considers factors such as the bargaining history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, and the contemporaneous understanding of the parties as to the state of negotiations. Ibid. Only when there has been a complete breakdown in the entire negotiations, is the employer free to 40 implement its last, best, and final offer. Sacramento Union, above at 554. On October 15, after numerous bargaining sessions, the Union unequivocally expressed its unwillingness to negotiate over the two proposals, the parties agreed that they were at an impasse over them, and the Union walked out of the meeting. 45 JD(ATL)–25–14 27 Based on the above, I conclude that there was a bona fide impasse reached due to the Union’s refusal to negotiate proposals that were mandatory subjects of bargaining. I therefore further conclude that the Respondent properly declared impasse, timely notified the Union of its demands so that the Union could evaluate whether to accept them and prevent a lockout, 46 properly notified employees of a pending lockout if no agreement was reached, and then legally 5 locked them out. See American Ship Building Co. v. NLRB, 380 U.S. 300, 310-313 (1965); Boehringer Ingelheim Vetmedica, above. The Information Requests 10 An employer is obliged to supply information requested by a collective-bargaining representative that is necessary and relevant to the latter’s performance of its responsibilities to the employees it represents. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). Generally, an employer has to either supply the information or explain its reasons for noncompliance. Columbia University, 298 NLRB 941, 945 (1990), citing 15 Ellsworth Sheet Metal, 232 NLRB 109 (1977). The Respondent here did neither, relying on what it contends was the Local’s withdrawal of information requests pertaining to the Company’s proposals to change bidding procedures. On October 10, after Shelton’s oral requests for information, Chorny advised the Local 20 that the Company was withdrawing all proposed changes to the agreement’s bidding provisions except for conferral of bidding rights on casual employees, which it was continuing to pursue. That obviously could have a great negative impact on regular employees. Chorny then stated that the Company was working on the Local’s information request, 25 and asked, “With our proposal changes to the #7 do you still want all that?” Shelton replied, “No. I want the part that is relevant and still on the table.” Chorny’s question was somewhat ambiguous, as was Shelton’s answer. Since the Company was continuing to propose a major change in the bidding process by including casual employees, the information requests pertaining to bidding would reasonably be considered “relevant and still on the table.” In any event, if the 30 Company was not clear whether the Local still desired that information, it was the Company’s obligation to either comply or request clarification. See National Steel Corp., 335 NLRB 747, 748 (2001); Keahou Beach Hotel, 298 NLRB 702 (1990), enfd. 324 F.2d 928 (7th Cir. 2003). The Respondent failed to do so. 35 Accordingly, I conclude that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to provide the Local Union with information on job bidding that it orally requested on October 10. CONCLUSIONS OF LAW 40 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 46 See Dayton Newspapers, 339 NLRB 650, 656 (2003), enfd. in relevant part 402 F.3d 651 (6th Cir. 2005); Boehringer Ingelheim Vetmedica, 350 NLRB 678, 679 (2007). JD(ATL)–25–14 28 3. By the following conduct, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act and violated Section 8(5) and (1) of the Act: failed and refused to provide the Local Union with information on job bidding that it requested on October 10. 5 REMEDY Because I have found that the Respondent has engaged in certain unfair labor practices, I will order it to cease and desist and to take certain affirmative action designed to effectuate the 10 Act’s policies. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended 47 15 ORDER The Respondent, Kellogg Company, Memphis, Tennessee, its officers, agents, successors, and assigns, shall 20 1. Cease and desist from (a) Failing and refusing to provide the Local Union with information that it requests that is necessary and relevant to the performance of its role as the collective-bargaining representative of employees. 25 (b) 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 30 Act. (a) Timely furnish the Local Union with the information that it requested about job bidding. 35 (b) Within 14 days after service by the Region, post at its facility in Memphis, Tennessee, copies of the attached notice marked “Appendix.” 48 Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily 40 47 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 48 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” JD(ATL)–25–14 29 posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet set, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. The Respondent shall also mail a copy of the signed 5 notice to each of the locked out employees at his or her last known address. 49 In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since October 10, 2013. The employee shall also mail a copy 10 (c) 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. 15 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C. August 7, 2014 20 ______________________________ Ira Sandron 25 Administrative Law Judge 49 See Allbritton Communications, Inc., 271 NLRB 201 (1984), enfd. 766 F.2d 812 (3d Cir. 1985), cert. denied 474 U.S. 1081 (1986). JD(ATL)–15–14 APPENDIX NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Government 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 recognize Bakery, Confectionary, Tobacco, Workers and Grain Millers International Union and its Local 252-G (the Union) as the bargaining representative of employees described in our 2010–2013 collective-bargaining agreement. WE WILL NOT fail and refuse to provide the Union with information that it requests that is necessary and relevant to the performance of its role as the collective-bargaining representative of employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights under Section 7 of the Act, as set forth at the top of this notice. WE WILL provide to the Union information that it requested about job bidding during negotiations on October 10, 2013 for a new collective-bargaining agreement. KELLOGG COMPANY (Employer) Dated: ____________________ By: _________________________________________ (Representative) (Title) The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. 600 South Maestri Place, 7th Floor, New Orleans, LA 70130-3413 (504) 589-6361, Hours: 8 a.m. to 4:30 p.m. JD(ATL)–25–14 The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/15-CA-115259 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (504) 589-6389.