N.L.R.B. v. Merrill & Ring, Inc., 82-7712

Citation731 F.2d 605
Decision Date17 April 1984
Docket NumberNo. 82-7712,82-7712
Parties116 L.R.R.M. (BNA) 2221, 100 Lab.Cas. P 10,971 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MERRILL & RING, INC., Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Scott Meza, N.L.R.B., Washington, D.C., for petitioner.

Lester V. Smith, Jr., Portland, Or., for respondent.

On Application for Enforcement of an Order of the National Labor Relations Board.

Before ANDERSON and FLETCHER, Circuit Judges, and THOMPSON, * District Judge.

BRUCE R. THOMPSON, Senior District Judge:

The National Labor Relations Board (NLRB) petitions for enforcement of its order directed to Merrill & Ring, Inc. (Employer). This court has jurisdiction under Section 10(e) of the National Labor Relations Act (NLRA or Act), 29 U.S.C. Sec. 160(e) (1976). The alleged unfair labor practice occurred in Port Angeles, Washington. The basis for the NLRB's order was its finding that the Employer had unilaterally instituted a change in its jury duty policy without affording the International Woodworkers of America, Local 3-90 (Union) a reasonable opportunity to bargain on the matter.

The Employer is a manufacturer of timber products in Port Angeles, Washington and is a party to a collective bargaining agreement with the Union. Article XX of the agreement is concerned with compensation for time lost as a result of jury service. 1 Until May of 1978, the Employer's day shift employees commenced work at 8:00 a.m. and finished at 4:30 p.m. At that time the schedule for day shift employees was changed to one starting at 7:00 a.m. and finishing at 3:30 p.m. This change was accomplished by agreement between the Employer and the Union. Until about 1980, employees were subpoenaed for jury service in the Clallam County Superior Court to appear at 9:15 a.m. In 1980, employees began to receive subpoenae for appearance for jury duty in the Clallam The complaint filed by the Regional Director alleged that on or about August 15, 1980, the Employer instituted a rule requiring day shift mill employees performing jury duty to work between 7:00 a.m. and 9:00 a.m. and did so without prior notice to the Union and without affording the Union an opportunity to negotiate and bargain. On the day the hearing commenced the complaint was amended by stating two charges: (1) that the Employer's acts and conduct modified Article XX of the contract without the consent of the Union, and (2) "alternatively" that the Employer's acts and conduct were without prior notice to the Union and without affording the Union an opportunity to negotiate and bargain.

County District Court at later times, usually 10:15 a.m. or 1:15 p.m. In August, 1980, the Employer directed two employees who had been subpoenaed for jury duty in the district court at 10:15 a.m. to report for work at 7:00 a.m. and work until 9:00 a.m. It had never been the practice before this to require employees to report for work in the morning on days when they had been summoned for jury duty. It is uncontradicted that the Employer intended this new policy to apply in the future to employees summoned for jury service at 10:15 a.m. or later. The two affected employees reported for work as ordered and filed grievances under a provision of the collective bargaining agreement for nonbinding arbitration. Grievance sessions were held but were unsuccessful in resolving the dispute. During the pendency of the grievance proceedings the Union filed an unfair labor practice charge with the NLRB.

The ALJ found specifically that "Article XX, the jury duty provision, is silent about the obligation of day shift employees to report for work prior to their having to report for jury duty" and that it "on its face does not preclude Respondent [Employer] from requiring the day shift employees to report for work prior to reporting for jury duty." Thus the ALJ concluded that the contract was not controlling and had not been unilaterally modified. On the second issue of the alleged unilateral change in company policy without an opportunity for collective bargaining on an issue suitable for collective bargaining, the ALJ found that the unilateral direction to two employees to report for work before jury service was insignificant in the light of the Employer's continued willingness to discuss and, in effect, bargain during the ensuing grievance proceedings, and there was no violation of Section 8(a)(5), 29 U.S.C. Sec. 158(a)(5) (1976).

Both the Union and the General Counsel filed exceptions to the findings and decision of the ALJ. The decision of the NLRB reversed the ALJ on the issue that the Employer had violated Section 8(a)(5) and (1) of the Act by unilaterally instituting a policy of having day shift employees report for work before jury duty without affording the Union a reasonable opportunity to bargain. The Board declined to pass on the issue of contract modification. Its explanatory footnote states:

4 In finding merit to these exceptions, we find it unnecessary to consider the General Counsel's and Union's alternative theory that Respondent further violated Sec. 8(a)(5) and (1) of the Act because its requirement that day-shift employees report to work prior to reporting for jury duty was a unilateral modification of the parties' collective-bargaining agreement. Since our Order restores the status quo ante, we find that the purpose of the Act will be better served by permitting the parties themselves to determine the meaning of their contract. Accordingly, we have expressly refused to consider or pass upon an interpretation of the parties' collective-bargaining agreement.

On the petition for enforcement the Employer filed the opening brief pursuant to Rule 24 of the Rules of the United States Court of Appeals for the Ninth Circuit, and stated the issue for review as follows:

The issue presented for review is whether substantial evidence supports the finding of the National Labor Relations Board ("Board") that the Respondent Merrill & Ring, by instructing two The opening brief then argues (1) the Union never requested bargaining about the new jury policy after it was notified, (2) the Employer's duty to bargain was fulfilled by the grievance procedure meetings, (3) a failure to bargain over the jury duty policy was not unlawful because the change effected was not material or substantial. In support of the third contention, the Employer called attention to the language of Article XX of the collective bargaining agreement (footnote 1) that employees would be paid "for the hours necessarily lost as a result of serving on the jury." (Emphasis added.) The board responded to these contentions, and the Employer in its reply brief for the first time contended that:

employees to report for two hours of work before reporting for jury duty, unlawfully unilaterally altered its employees' terms and conditions of employment without affording the Union an opportunity to bargain.

What this case really comes down to is a question of contract interpretation: were the hours from 7:00 a.m. to 9:00 a.m. "necessarily lost" within the meaning of Article XX? ...

....

... The real question, therefore, is whether the Company's interpretation of the contract was correct. The Administrative Law Judge below found that it was. Although the Board declined to address the question, it is the critical issue in this case. For if the Company's actions were within the scope of its previously negotiated agreement with the Union, then the Company had no duty to engage in any further bargaining on the subject. 29 U.S.C. Sec. 158(d); ....

Thus, although the question of contract interpretation has been in the case from its beginning, the Employer's initial argument that requiring work before jury service was not precluded by the contract has now been expanded to an assertion that the new jury duty rule is affirmatively permitted by the contract. So, it is asserted that the Board erred by declining to interpret the contract. We do not agree.

The complaint as amended stated two separate and independent charges. The second charge was based...

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