Unpublished Disposition, 889 F.2d 1095 (9th Cir. 1986)

MEMORANDUM^* 

The NLRB petitions this court for enforcement of its order that Kal Kan Foods cease and desist from operating its Los Angeles plant on a continuous plant production schedule implemented on November 2, 1986. The Board affirmed an Administrative Law Judge's (ALJ) finding that the implementation of this 24-hour plant production schedule constituted a mid-term unilateral modification of the collective bargaining agreement, and it was therefore an unfair labor practice in violation of 29 U.S.C. § 158(a) (5), (a) (1).

Where the Board's interpretation of a collective bargaining agreement is reasonable and consistent with the policies of the National Labor Relations Act, this court will defer to the Board's interpretation. Peabody Coal Co. v. NLRB, 709 F.2d 567, 569 (9th Cir. 1983); NLRB v. Southern California Edison Co., 646 F.2d 1352, 1362 (9th Cir. 1981).

The ALJ found that the collective bargaining agreement between Kal Kan and the union prescribed a system under which employees worked in one of three eight-hour shifts. The ALJ based this interpretation of the contract for the most part upon Article VIII.B.2 of the agreement.¹ 

Kal Kan argues that Article VIII.B.2 does not set forth a scheme of three eight-hour shifts, and thus that the continuous operations system, which includes five twelve-hour shifts, is not a modification of the agreement. Although the section is specifically directed at setting out the differential in pay between shifts, it does incorporate and describe a three shift system. The ALJ found that the change to a five-shift system could not have been instituted without reading this portion of the section out of the agreement. This conclusion was reasonable.

Kal Kan also argues that Article V of the agreement reserved to the company the right to change the starting times of any or all of the employees, and thus shows that the company was not precluded under the agreement from instituting the continuous operations system. Article V provides:

HOURS OF WORK

Morale, and therefore responsibility and productivity, cannot be achieved unless associates have a regular schedule and reasonable notice of any change in that schedule. On the other hand, the necessary amount of flexibility cannot be maintained if adjustment of any single associate's starting time within a shift could result in rearrangement of a significant number of other associates' schedules.

To achieve mutuality of benefits, therefore, the Company may exercise its right to change an associate's starting time within a shift upon giving adequate notice to the associate and appropriate consideration to existing premium-pay policies and to the impact such a change may have on his or her personal and family life.

(Emphasis added).

The provision speaks of the company's "right to change an associate's starting time within a shift." (Emphasis added). The ALJ found the limitation "within a shift" to indicate that only a change within a particular shift system was contemplated and not a complete reorganization of all shifts. Moreover, the provision addresses itself only to starting times for employees within the shift, and not to the length of the shifts themselves. The ALJ's conclusion that Article V does not allow Kal Kan to institute the continuous operations system was reasonable.

The union also argues persuasively that the employer's imposition of mandatory 12-hour shifts violates the provisions of Article VI of the contract which provides that overtime shall be on a voluntary basis.²  The employer's response is that overtime within the meaning of the contract need not necessarily be hours worked in excess of eight during the course of the day, but hours worked in excess of whatever the employer establishes as the regular schedule. In view of Article VIII.B.2 providing for eight-hour shifts and the customary meaning of overtime as including hours worked in excess of eight hours a day, (see Fair Labor Standards Act, 29 U.S.C. § 207(d) (5), (7)) we do not believe Kal Kan's construction of overtime is reasonable. Accordingly, this contention ignores the word "voluntarily" in Article VI.B, transmutting the moral "responsibility" requested of employees to a mandatory requirement of overtime as a condition of continued employment. Nothing in the contract or in the bargaining history proffered by the employer suggests that this was the intent of the parties.

Kal Kan also contends that the ALJ erroneously excluded extrinsic evidence of the parties' intent which would have shown that the parties always understood that such changes were within the company's rights under the labor agreement. Kal Kan made an offer of proof to the ALJ that related to various aspects of prior bargaining history. In affirming the decision of the ALJ the Board found, however, after viewing this evidence in its most favorable light, it would not show that the parties understood the contract as authorizing anything other than the three eight-hour shifts. The evidence showed only that the company had raised the issue of continuous operations generally with the Union during negotiations in 1986. The company did not put forward a specific proposal until September 1986, several months after the labor agreement was ratified. The fact that the Union agreed to listen to the company's proposal on the issue does not indicate that the Union acquiesced in the company's interpretation of the contract.

The order of the Board is ENFORCED.