Quebecor World Mt. Morris, 1 (2008)

Docket Number:33-CA-15319
 
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Quebecor World Mt. Morris II, LLC and Graphic Communications Conference/ International Brotherhood of Teamsters, Local 65-B. Case 33–CA–15319

September 8, 2008

DECISION AND ORDER

By Chairman Schaumber and Member Liebman

The issues before the Board in this case are whether the Respondent violated Section 8(a)(5) and (1) of the Act by: (1) unilaterally implementing a “Performance Improvement Plan” (PIP) procedure as part of its disciplinary system; (2) demoting employee Robert Gigous pursuant to a PIP; and (3) refusing to provide relevant information requested by the Union in the course of processing a grievance over the PIP procedure. The judge found that the Respondent committed all of these alleged unfair labor practices.[1]

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs, and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision, and to adopt the recommended Order as modified and set forth in full below.[2]

We agree with the judge that the Respondent unlawfully refused to provide requested information to the Union, and we will adopt his remedy for this violation.

However, we conclude that the judge erred in finding unlawful the unilateral implementation of the PIP procedure and its application to employee Gigous. We find, rather, that the Respondent and the Union properly extended their expiring collective-bargaining contract by oral agreement and that, under the contract’s management-rights provision, the Union clearly and unmistakably waived its right to bargain over implementation of the PIP process. Accordingly, we will reverse the judge and dismiss the complaint allegations involving the PIP process and employee Gigous.[3]

A. Factual and Procedural Background

The Respondent prints newspaper supplements and mail-order catalogs.[4] Its facility involved here is located in Mt. Morris, Illinois. Different unions represent several bargaining units at the facility. The Union long has represented employees in the finishing department.

On or about March 31, 2006,[5] the date that the parties’ most recent collective-bargaining agreement was set to expire, the chief negotiators for the Respondent and the Union orally agreed, without qualification, to extend the collective-bargaining agreement while they negotiated a successor contract.[6] It is undisputed that at all relevant times in this case, the parties understood that they were operating under the terms of the expired contract, as extended.[7]

On September 7, employee Gigous received his annual written performance review; at the same time, he received a PIP. The PIP called for an extended, close evaluation of Gigous’ performance over 90 work shifts. At the end of that period, absent improvement, he would be subject to further discipline, including discharge or demotion. No unit employee had previously received a PIP, or had otherwise been disciplined in conjunction with receipt of his or her annual performance review.

On February 26, 2007, at the conclusion of the PIP’s required 90 work shifts, Gigous was demoted to a lower-paying job in the finishing department.

Following the Union’s filing of an unfair labor practice charge, the General Counsel issued a complaint alleging, among other things, that the Respondent unlawfully changed employment conditions by implementing the PIP process unilaterally and by applying it to Gigous.[8]

The judge rejected the Respondent’s contention that implementation of the PIP process was permitted under the management-rights clause in the parties’ expired collective-bargaining agreement. He concluded that because there was no “formal,” i.e., written, extension of the agreement, it ceased to govern the parties’ relationship as of expiration. Relying on the principle that management-rights provisions do not survive contract expiration (absent evidence of the parties’ contrary intention),[9] the judge found that no waiver, contractual or otherwise, of the Union’s right to bargain about mandatory matters such as the PIP was in effect at the time the process was implemented. Having concluded that the management-rights clause was not a relevant consideration, the judge proceeded to evaluate the unilateral-change allegations, and to find that the Respondent’s conduct violated the Act.

B. Analysis

In its exceptions, the Respondent renews its contention that the management-rights clause continued in effect pursuant to the parties’ oral extension of the collective-bargaining agreement, and that this contractual provision privileged the Respondent’s unilateral implementation of the PIP process. We agree.

1. The oral extension of the parties’ agreement

The judge’s view that continued operation of the management-rights clause required a written extension of the collective-bargaining agreement is erroneous. It is established law that a collective-bargaining agreement need not be in writing to be enforceable. See, e.g., Merk v. Jewel Food Stores, 945 F.2d 889, 895 (7th Cir. 1991); NLRB v. Haberman Construction Co., 641 F.2d 351, 355-356 (5th Cir. 1981); Certified Corp. v. Hawaii Teamsters & Allied Worker, Local 996, 597 F.2d 1269, 1272 (9th Cir. 1979). It is also well established that an expiring written collective-bargaining agreement may be orally extended, at least in the absence of a contractual prohibition on oral modifications. See, e.g., Certified Corp. v. Hawaii Teamsters, supra, 597 F.2d at 1271.[10] The collective-bargaining agreement in the present case does not prohibit oral modifications.

Board precedent also sheds light on the effect of an oral extension on waiver provisions which normally do not survive contract expiration. In Granite Construction Corp., 330 NLRB 205, 207–208 (1999), the Board dismissed 8(a)(3) allegations involving the discharge of strikers, finding that a contractual no-strike clause continued in effect after the employer and the union orally agreed to extend their expiring contract. Accord: Kroger Co., 177 NLRB 769, 776 (1969), affirmed sub nom. Silbaugh v. NLRB, 429 F.2d 761 (D.C. Cir. 1970) (striking employees were lawfully discharged where a no-strike provision remained in effect after the parties orally agreed to extend their expiring contract).

No-strike clauses, like management-rights provisions, do not routinely survive contract expiration.[11] But, as the cases above establish, a no-strike clause will continue in effect when the parties orally agree to extend an expiring contract. Board decisions involving management-rights clauses are not to the contrary. See University of Pittsburgh Medical Center, 325 NLRB 443, 443 fn. 2 (1998) (interpreting Lustrelon, Inc., 289 NLRB 378 (1988), as holding that provision in expired agreement authorized unilateral action by employer, where parties had reached oral understanding to abide by agreement until new contract was reached). In light of this Board precedent, we hold that a management-rights clause, like a no-strike clause, remains in effect when the contracting parties orally agree to extend their agreement.

There is no significant dispute in this case that the Union and the Respondent orally agreed to extend their collective-bargaining agreement in its entirety on March 31, and that it continued to govern unit employees’ employment conditions at all relevant times. Accordingly, the contract’s management-rights provision was in effect when the Respondent implemented the PIP process.[12]

2. The management-rights clause and the Union’s waiver

Because the management-rights clause was operative, we must determine whether relevant language in the clause constituted a “clear and unmistakable” waiver of the Union’s right to bargain about implementation of the PIP process. Provena St. Joseph Medical Center, 350 808, 811–812 (2007) (“The clear-and-unmistakable waiver standard, then, requires bargaining partners to unequivocally and specifically express their mutual intention to permit unilateral employer action with respect to a particular employment term, notwithstanding the statutory duty to bargain that would otherwise apply.”). The Board in Provena reversed the judge’s finding that the employer’s unilateral implementation of a new disciplinary policy concerning attendance and tardiness violated Section 8(a)(5). The Board concluded that “several provisions of the management-rights clause, taken together” clearly and unmistakably constituted a waiver of the union’s right to bargain over the policy. The relevant “combination of provisions” was the right to “‘change reporting practices and procedures and/or to introduce new or improved ones,’ ‘to make and enforce rules of conduct,’ and ‘to suspend, discipline, and discharge employees.’” Id., at 816.

In its entirety, article IV “Management Rights” of the parties’ extended contract states as follows:

Except as limited by the express provisions of this Agreement, the Company shall have the exclusive right to manage the plant and to direct the working forces including, but not limited to, the right to direct, plan and control plant operations; to assign employees; to establish and change work schedules; to hire, recall, transfer, promote, demote, suspend, discipline or discharge for cause; to lay off employees because of lack of work or other legitimate reasons; to establish and apply reasonable standards of performance and rules of conduct; to determine quality standards and production schedules; to determine whether to contract out or subcontract work or services; to determine the number and location of its plants; and to decide products to be manufactured; all of...

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