Basf-Wyandotte Corp.

National Labor Relations Board - Board Decisions

Sep 24, 1985

276 N.L.R.B. 498 (N.L.R.B. 1985)

498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BASF-Wyandotte Corporation and International
Chemical Workers Union, AFL-CIO. Case 22-
CA-12083.,
24 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 20 July 1984 Administrative Law Judge
Robert T. Snyder issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General-Counsel and the Charging Party
each filed limited exceptions and statements in"sup-
port thereof.' The Respondent additionally filed an
answering brief in opposition to. the exceptions. of
the General Counsel and the-Charging Party.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm-the judge's rulings,2 findings, and
conclusions and to adopt the recommended Order
as modified and set forth in full below.
ORDER
National Labor Relations Board orders that the
Respondent, BASF-Wyandotte Corporation, South
Brunswick, New Jersey, its officers, agents, succes-
sors, and assigns , shall .
1. Cease and desist from
(a) Withdrawing recognition during the term of
a collective-bargaining . agreement from the Interna-
tional Chemical Workers Union, AFL-CIO and its
Local 846 as' the exclusive collective-bargaining
representative of the employees in the following
appropriate unit.
All hourly Production and Maintenance em-
ployees employed by the BASF-Wyandotte
Corp. at its South Brunswick, New Jersey fa-
cility, including Shipping and Receiving De-
partment and Extruder employees, but exclud-
ing office and factory clerical employees, labo-
ratory employees, engineers and draftsmen,
salaried Research Department employees, pro-
' The Respondent also filed a motion to reopen the record to permit
inclusion of another employee petition it received on 24 August 1984 and
was thus unavailable during the 26 October 1983 hearing. The petition-
states that the employees continue to reject representation by the ICWU
and Local 846 and that they want their decision honored The General
Counsel filed a response opposing the opening of the record because the
evidence the Respondent seeks to include is irrelevant to the instant pro-
ceeding . We agree The motion to reopen the record is demed.
2 In accordance with our recent decision in Burger-Pits Inc., 273
NLRB 1001 ( 1984), we find it inappropriate to extend the remedy beyond
the expiration of the parties ' collective-bargainmg agreement on 12 May
1983.
We have further revised the make-whole remedy to require the Re-
spondent to remit to the Union all dues and initiation fees it should have
checked off and remitted pursuant to the terms of the collective -bargam-
ing agreement -
fessional employees , guards, foremen , assistant
foremen , and all other , supervisory employees
as defined in the Act. = - .
(b) Refusing to administer, until the date of expi-
ration, its collective-bargaining agreement with the
Union. - - . -
(c) Unilaterally implementing changes in terms
and conditions of employment while the collective-
bargaining agreement was still in effect; provided,
however, that nothing herein shall require the Re-
spondent to vary or abandon any. wage, hour, life
insurance benefits, health insurance and dental as-
sistance benefits, disability, sick pay, separation pay
or savings plan benefits, or other substantive- fea-
tures of its relations with its, unit employees which
the Respondent established on and after 7 Decem-
ber 1982 or prejudice the assertion by employees of
any rights they may have under any terms or con-
ditions . of employment or benefits so established
during the. period of 7 - December -1982 to 12 May
1983. - et.
(d) In any like or related manner interfering
with, restraining , or coercing its employees in the
exercise of the rights guaranteed them by Section 7
of the Act.'
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Pay to ICWU and its Local 846 all 'dues and
initiation fees which were or should have been de-
ducted from employees' 'paychecks pursuant to
valid dues-checkoff authorizations to the ICWU
and/or -Local 846, but which dues and initiation
fees were not remitted to ICWU and Local 846
after 6 December 1982. -
(b) Make whole the employees in the unit de-
scribed above, and in the manner and to the extent
set forth and prescribed in the remedy, until the
collective-bargaining agreement expired on 12 May
1983. _
(c) Preserve and, on request,. make available to
the Board or its agents for examination and copy-
ing, all payroll records, social- security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order. -
(d) Post at its South Brunswick, New Jersey fa-
cility copies of the attached notice marked "Ap-
pendix ."3 Copies of the notice, on forms provided
8 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an order of the Nation-
al Labor Relations Board "
276 NLRB No. 68
BASF-WYANDOTTE CORP 499
by the Regional Director for Region 22, after
being signed by the Respondent's authorized repre-
sentative , shall be posted by the Respondent -imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in 'writing
within 20 days from "the date of this Order what
steps the Respondent has taken to comply.
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 the National Labor Relations-Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice _
To act together' for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities. ; . .
WE WILL NOT, during the term of our collective-
bargaining agreement , withdraw recognition from
the International Chemical Workers Union, AFL-
CIO, and its Local 846, as 'the exclusive collective-
bargaining representative of the employees in the
following appropriate unit:
All hourly Production and Maintenance em-
'ployees of the Company's plant located in
South Brunswick, New Jersey, including Ship-
ping and Receiving Department and Extruder
employees, but excluding office and, factory
clerical employees, laboratory employees, en-
gineers and. draftsmen , salaried Research De-
partment employees , professional employees,
guards, foremen ,, assistant foremen , and all
other supervisory employees as defined in the
Act. '
WE WILL NOT refuse to administer; until'the date
of, its expiration , our collective-bargaining agree-
ment with the above Union.
WE WILL NOT unilaterally implement changes in
terms and conditions of employment while the col-
lective-bargaining agreement is in effect ; however,
,the Decision and Order of the National Labor Re-
lations Board, pursuant to which we ' are posting
this notice, does not require us to change or with-
draw any arrangement we have made with you
about such matters as wages, hours, life insurance
benefits, health insurance and dental assistance ben-
efits, disability, sick pay, separation pay or savings
plan benefits, or other conditions of employment,
or prevent you from asserting any.rights you may
have to any such terms, or conditions of employ-
ment or benefits so established during the period of
7 December `1982 to 12 May 1983.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 'of
the Act.
WE WILL pay to the ICWU and Local 846 all
dues and initiation fees which were or should have
been deducted from employees' paychecks pursu-
ant to valid dues-checkoff authorizations to the
ICWU and/or Local 846, but. which dues and initi-
ation fees were not remitted to ICWU and`Local
846 after 6 December 1982.
WE WILL make whole, with interest, the employ-
ees in the unit described above in the manner and
to the extent set forth by the Board until the col-
lective-bargaining agreement expired on 12 May
1983.
BASF-WYANDOTTE CORPORATION
Marta Figueroa, Esq., of Newark, New-' Jersey, for the
General Counsel.
Joel Spivak, Esq. '(Solotoff & Spivak), of Great Neck, New
York, for the Respondent.
Salvatore J. Falletta, Esq., of Akron, Ohio, for the Charg-
ing Party. '
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER ,.Administrative Law Judge. This
case , was heard by me on October 26 , 1983. The com-
plaint, which issued on January 31 , 1983, alleges that
BASF-Wyandotte Corporation (Respondent or BASF)
by withdrawing recognition from the International
Chemical Workers Union , AFL-CIO (the International
or IU), and its Local 846, jointly called the Union, the
joint exclusive collective-bargaining representative of
Respondent 's employees in an appropriate bargaining
unit, as described , and by disavowing its collective-bar-
gaining agreement with the Union and by changing uni-
laterally various itemized terms and conditions of :em-
ployment, engaged in and is continuing to engage in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act. In its answer , Respondent
denies that the International was a designated exclusive
representative of its employees in the unit described,-and
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
averred that on the basis of a petition signed'by a majori-
ty of unit employees and notification of disclaimer of
representation by Local 846, it validly withdrew its rec-
ognition of Local 846, disaffirmed and disavowed the
collective-bargaining agreement, and admittedly subse-
quently, unilaterally changed employee benefits in ac-
cordance with law. Each of the parties filed posthearing
briefs in support of their respective'positions.
On the entire record, 'including my observation of the
demeanor of the witnesses and after careful consideration
of the briefs filed by the General Counsel, the Charging
Party, and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a Michigan corporation, with an office
and place of business in Jamesburg, New Jersey, i s en-
gaged in the manufacture and nonretail sale and distribu-
tion of 'chemicals and related products. Annually, Re-
spondent,, in the course and conduct of its business oper-
ations, sells and ships from' its Jamesburg, New Jersey 'fa-
cility products; goods, and materials valued in. excess of
$50,000 directly to points outside the State of New
Jersey. Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
Respondent'admits, -and I fmd, that the International
is, and Local 846 until ' December 6, 1982; was, a labor
organization -within the meaning of the Act. The status
of Local 846 as a labor organization after December 6,
1982, the date Respondent received the petition disavow-
ing continued representation by the Union signed by cer-
tain of its employees, is disputed by Respondent. Ac-
cordingly, its status. will be determined in the course of
this decision.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Collective-Bargaining History ` ' -
The records of the Regional -Office of the Board'
shows that on February- 18, 1958, Local 196, Internation-
al Chemical Workers Union, AFL-CIO was certified as
exclusive collective-bargaining representative of certain
employees of United Cork Co., Unicrest Division, James-
burg, New - Jersey' (United Cork). On May 12, 1958,. an
agreement was entered between Local 196 representing
its 'production and maintenance employees and. United
Cork. On June 8, 1959, United Cork entered into an
agreement with' International Chemical Workers Union,
Local 626, the successor to Local 196.' Successive agree-
ments, 'running from June 23, 1960, to'May 12, 1963, and
from June 12, 1963, to May 12, 1966, were'also entered
by these parties. By letter' dated May 14, 1965, the Inter-
national president, Walter` L. Mitchell, informed United
Cork that, in accordance with his authority under the
International constitution, he had imposed International
supervision and receivership over - Local 626, effective
immediately. In a subsequent letter dated May 27, 1965,
directed to whom. it may concern, and received by
United Cork, Thomas- Boyle, International vice president
appointed by Mitchell to act as supervisor and receiver,
advised that the Local president and business agent had
been removed from office for cause and should not be
collaborated with, and, requested that' th_ a -regular month=
ly dues be deducted and deposited in escrow until this
matter had been properly resolved.
By certified letter dated February 21, 1966, the Inter-
national representative and deputy supervisor of Local
626 served notice on United Cork for the purpose of re-
opening the contract for negotiations. A new agreement
was subsequently entered, dated May 13, 1966, between
Badische Products -Corporation, successor' to United
Cork, and the International and its Local 626 referred to
as the "Union" on behalf of the Company's production
and maintenance employees at its Jamesburg, New
Jersey plant. For the Union the agreement was signed by
two employee members of the Local 626 Shop Commit-
tee, International Representative Robert Meade and
International President Mitchell, who approved the
agreement on September 13, 1966. "By letter dated No-
vember 23, 1966, Mitchell informed the Company that
effective November 30 he had removed International su-
pervision and--receivership over Local 626 "which holds
bargaining rights at your plant" and that full autonomy
had been restored to the Local Union.
In spite of the removal of International trusteeship, all
subsequent agreements entered with Respondent, as suc-
cessor to Badische Products Corporation, • note on the
first page of each agreement that each is between the Re-
spondent at the. Jamesburg plant and the International
and its local union (at first Local 626 and later Local 824
as its successor), referred to as the "Union" party.
The first agreement following removal of International
trusteeship was for the term May 13, 1969, to May 12,
1972, by and between BASF Corporation, as successor
Company, and the International and its Local 626. For
the Union, it was, signed by two members of the Shop
Committee, Union Representative Meade and approved
by Thomas Cox, representative for 'the International
Union. During its term, on January 3, 1970, Cox in-
formed the BASF Corporation, that the Local had
changed its designation from 626 to 846,2 President
Oliver Mitchell served a 60-day notice of "our" intention
to. negotiate a new contract. A. new agreement resulted,
for the first time identifying the contracting parties as
BASF Wyandotte Corporation, the Respondent, and suc-
cessor employer, as the "Company". and the Internation-
i The 1982 constitution of the International, in art XXI, Collective Bar-
gaining , contains a provision in sec 4 providing in pertinent part that
"No Local Union ' shall have authority to accept and execute any
collective bargaining agreement unless the terms of the contract have
been approved or ratified in writing by the International president or his
designee , or unless the president' or his designee has expressly authorized
the acceptance or execution of such contract without approval of the
terms thereof, and no such agreement shall be valid without such approv-
al or authorization ." The constitution was first adopted September 14,
1944, but was amended from time to time. It is unclear when the provi-
sion ' quoted became effective. In any event, none of the earlier' agree-
ments previously cited contained the International president 's signed ap-
proval
2 International Representative Meade testified that Local 626 had been
a composite local containing members employed in a'number of separate
bargaining units At the time of Cox's notice to the Company,'Local 846
was established as a separate local, comprised of only members employed
at Respondent 's Jamesburg , New Jersey location
BASF-WYANDOTTE CORP.
al -and its Local 846, as the "Union." It's term ran from
May 13, 1972, to May 12, 1974. This time three officers,
two stewards, and a bargaining committeeman signed for
the Local and an International representative signed for
the IU.
On March 3, 1974, Local President Mitchell advised
Respondent's, plant manager that International Chemical
Workers Local 846 would like to start negotiations as
soon as possible. The next contract again listed the par-
ties as Respondent and the International and its Local
846. The union signatories were the current officials of
the same six local offices plus an International represent-
ative, whose signature .followed the • statement, "Execu-
tion authorized by International. Chemical Workers
Union." An article appearing in the International Chemi-
cal Worker, the publication of the International, for July
1974, states, that "ICWU Representative Martin
McGough assisted [the named Local officers and repre-
sentatives in negotiating the terms of the agreement item-
ized]."
Preliminary to negotiations leading to the next agree-
ment, Local President Mitchell served a written 60-day
notice dated February 14, 1977,,on Plant Manager Roy
Peters of our desire to terminate our agreement as of
May 12, 1977, and that Local 846 and its negotiating
committee-were ready to negotiate a new contract. The
1977 agreement ran from May 12, 1977, to May 12, 1980,
and again -was signed by the incumbent officers "of the
same local offices previously listed, except for the stew-
ard and an International representative. The agreement's
execution was authorized by the IU.
The last agreement was preceded by a written notice
to Plant Manager Peters dated March 3, 1980, from
Local 846 President Richard Bowman, advising him that
International Chemical Workers Union, Local 846 de-
sires to meet with the Company for the purpose of nego-
tiating a new contract. In the letter Bowman went on to
request certain- itemized information as it related to em-
ployees' in the bargaining unit. The agreement which re-
sulted was effective from March 12, 1980, to May 12,
1983, and was to be automatically renewed from year to
year unless terminated by-written notice by either party
to the other at least 60 calendar days prior to the termi-
nation, or any subsequent anniversary date. For the
Union it was signed by five local officers and representa-
tives and by an International representative. Its execution
was authorized by the International Union. This agree-
ment was the only one whose full terms were made part
of the record. Apart from again listing the International
and its Local 846 as the union party to the agreement on
the first page, other articles specifically refer to the
International as a participant in administering or negoti-
ating terms and conditions of employment contained
therein. In article IV-Grievance Procedures, the third-
step grievance meeting was described as being between
the aggrieved employee, the steward, the grievance com-
mittee, and, if desired, an international union representa-
tive, and the. plant manager and/or his designated repre-
sentatives . In article II-Management Rights And Respon-
sibilities, when the Company established new jobs or sub-
stantially changed the job responsibility of existing jobs
and the Union objected to the newly posted rate the
501
union committee and the union International representa-
tive were to meet with the Company to discuss and re-
solve differences regarding the rate which, if still unre-
solved, might be submitted to arbitration. Article II also
placed on the International as well as the Local the duty
to refrain from causing or encouraging a strike, slow-,
down, work stoppage, or concerted action during the
term of the agreement. In article I, the Union (earlier de-
fined as including the International) was obliged to in-
demnify and save the Company harmless against any and
all claims , demands , suits , or other forms of liability that
may arise out of or by reason of action taken or not
taken by the Company for the purpose of complying
with any of the- provisions, of the union-security and
dues-checkoffa provisions set forth earlier in the article.
Article XVI, section 4 provides that no local union
shall be disbanded or withdrawn by its own motion, no
matter where taken or how taken, if 10 or more of its
members evidence their desire to continue the 'local
union either by the continued payment of dues, notice to
the International president or his representatives, • orally
or in writing, or in any other manner acceptable to the
.International president.
The 1980-1983 agreement also described the bargain-
ing unit , in which Respondent recognized the Union as
the sole and exclusive bargaining agent , as hourly em-
ployees, at its South Brunswick (Jamesburg), New Jersey
plant. The term "employees" was further defined as in-
cluding all hourly production and maintenance employ-
ees of the Company's plant located in South Brunswick,
New Jersey, including shipping and receiving depart-
ment and extruder employees, but excluding office and
factory clerical employees, laboratory employees, engi-
neers and draftsmen , salaried Research Department em-
ployees, professional employees, guards, foremen, assist-
ant foremen, and all other supervisory employees as de-
fined in the National Labor Relations Act, as amended.
This is the unit alleged in the complaint as constituting a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act. Although
Respondent denied this allegation in its answer, it has not
adduced any evidence or argued in its brief to support a
claim that the unit is not one appropriate for the pur-
poses of collective bargaining under the Act. The Re-
gional Office record of Local 196's certification does not
describe the unit, but it is highly likely that the initial
and all later extracts of the agreements up to the last one
made part of the record describing the unit in the recog-
nition clause, as including all production - and mainte-
nance employees, follows the unit description generally
in which Local 196 was certified, and that the 1980-1983
agreement accurately describes that - unit in detail. Such a
long-established bargaining relationship evidenced by
successive contracts will not be disturbed by the Board
unless repugnant to the Act's policies, Fraser & Johnston,
8 The "Authorization For Check Off," incorporated an App. A to this
and earlier agreements , provided for assignment from any wages earned
by the individual employee signatory of membership dues , initiation, or
reinstatement fee, to Local Umon No 846 , International Chemical Work-
ers Union, which the employee authorized and directed the employer to
deduct from his pay and remit to the Union.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
189 NLRB 142, 151 fn. 50 (1971). I find that the unit al-
leged is one appropriate for the purposes of collective
bargaining within the meaning ' of Section- 9(b) of the
Act. • ,
The General',.Counsel produced three witnesses who
served as International, representatives servicing Local
846 and its membership among other area local unions at
various times during the period from Janaury 1980 to
November 1982. Each of them maintained weekly re-
ports of their activities which they filed with. the IU.
The entries show that, among other duties, the Interna-
tional representatives assigned attended third-step griev-
ance meetings with Respondent where they acted as
spokespersons for the Union; consulted with and advised
local officers on'handling outstanding grievances-at other
than third-step ^ levels, matters of local administration,
preparing agendas for membership meetings, and com-
.municating. with the membership ; handled arbitrations
under, the contract by participating in selecting the' arbi-
trator from panels submitted by the Federal Mediation
and Conciliation Service, presented the grievances to the
arbitrator, and researched and made written submissions;
participated in regularly- scheduled labor-management
-meetings held between the parties to minimize anticipat-
ed problems and to air gripes; which did not rise to the
level of formal- grievances;' and met also on a regular
basis with Respondent 's management to discuss general
matters affecting the local membership 'such as safety,
vacation scheduling , layoffs, and the like.4
The International representatives also filed and' aided
in processing unfair labor practice charges on behalf of
unit members with the Regional Office of the Board.
With respect to collective-bargaining negotiations, they
drafted letters for the Local requesting negotiations for
successor contracts, ' assisted the local negotiating com-
mittee in -devising and preparing contract proposals, led
the union team during negotiations acting as chief
spokesman, presented the agreed terms to the,member-
ship for its approval, and signed the completed agree-
ment on behalf of the-International. At local membership
meetings, representatives also reported on the activities
of the International and sister locals.
Respondent witness Roy Peters , works manager since
1978, testified that during the negotiations which led to
the 1977 collective-bargaining agreement, , Martin
McGough, since deceased, identified himself as the Inter-
national representative servicing Local 846, indicated he
was there in the capacity as their representative and he
would be serving as spokesperson during the negotiations
and that Oliver; Mitchell, the local president, would be
the only-one authorized to make an.agreenient.5
• One of the exhibits' detailing International representative activities
servicing Local 846 was inadvertently not received in evidence I order
G.C Exh 4 for identification received in evidence , as well as the post-
hearing all-party stipulation amending the transcript , which I have
marked as Jt Exh 1 '
5 In light of the separate evidence showing membership ratification of
past agreements , this statement, even if true , must relate to Local negoti-
ating'committees or the Local president's tentative approval of terms of a
new contract - '
Respondent also produced as exhibits for inclusion in
the record a complaint and notice of hearing issued in
Case 22-CA-11794 on September 30, 1982 , BASF-Wy-
andotte Corporation , Respondent and Local 846, the
Charging Party, which alleged, inter alia, that Local 846
by virtue of Section 9(a) of the Act, has been, and is, the
exclusive representative of the employees in the same
bargaining unit alleged as appropriate in the' instant pro-
ceeding. The complaint alleges a= violation of Section
8(a)(1) and (5).of the Act resulting from Respondent's al-
leged unilateral reduction of its firewatch detail from
two men to one man about June 46; 1982. The complaint
was ultimately withdrawn and the underlying charge dis-
missed by order of the Regional Director for Region 22
of the Board issued March 22, 1983 . Because - the'Interna-
tional imposed -a receivership over the affairs of Local
846 effective December 9, 1982, to be discussed, infra,
and failed to timely advise the Regional Director of its
intentions following a grant of its request for a postpone-
ment of hearing , the Regional Director assumed- the
International no longer -wished to proceed.
B. The Events Relating to Respondent 's Withdrawal of
Recognition, Disavowal of the- Contract, and Changes,
in Employee Benefits
On December 6, 1982 , Respondent received at the
Jamesburg plant a , single page , , document - .entitled
"FREEDOM 1 " containing the signatures-of 50 bargain-
ing unit employees below a paragraph which read as fol-
lows:
We the'employees signed below NO longer want to
be represented by Local 846 or the I.C.W.U. and
ORDER the executive Board to give up representa-
tion rights with the Company. - -
At the time this petition was prepared and signed there
were 72 employees employed in the bargaining unit of
production and maintenance employees., The Respondent
also employed approximately ,135 other, nonunit employ-
ees at the Jamesburg, New Jersey facility.
On the same date, the Respondent also received at the
Jamesburg plant a separate document reading as follows:
A majority of the employees no longer wishing to
be represented by. Local 846, ICWU, we notify you
we hereby disclaim the bargaining rights. We no-
longer represent or claim to-represent your employ-
ees.
This was followed by an indented statement authorized
by the executive committee and a separate heading, ,`.`Ex-
ecutive Committee" followed by the signatures of six
members of the committee. According to the -1982 Uni-
form Local Union Constitution and bylaws, which by
virtue of article XVI Local Unions of the International
Constitution then in effect was . binding on each local
union, including Local 846,6 and in accordance with arti-
6 6 of art . XVI provided, as follows.
Continued
BASF-WYANDOTTE CORP.
cle XVI, section 8 of the International constitution,. the
officers of Local 846 included a president; vice president;
recording-corresponding secretary; financial secretary;
treasurer; guide; sergeant-at-arms; and 3 trustees, 10 in all
who, together, with any other necessary additional offi-
cers as created by amendment to the local union consti-
tution shall constitute the executive board. The office of
financial secretary and treasurer may be combined if the
local union so desires. The February 17, 1970 letter from
the International representative to BASF Corporation
advising BASF about the election of local officers fol-
lowing the establishment of Local 846 as a separate local,
to which references have earlier been made, supports the
conclusion that Local 846 did combine the two financial
officers, so that on December 6, 1982, six of the nine
members of the executive board signed the bargaining
disclaimer.- The record does not disclose the identity of
the office of the six -executive board signatories except
that neither the names of Paul Johnson, the Local 846
president, nor Paul Maliszewski, financial secretary, were
among them.
On December 7, 1982, by memorandum, Kyrus E.
McNeil, head of employee relations for Respondent, ad-
vised the executive board, Local 846, that in response to
its notice disclaiming rights to represent and bargain, and
in response to the petition they had presented signed by
over 70 percent of the employees, the Company had
withdrawn recognition of the Union and noted, further,
their contract was accordingly no longer effective.
By memorandum also dated December 7, 1982 (and
noting its release at 10 a.m.), R. A. Peters, Respondent's
works manager, informed the production, maintenance,
warehouse, and utility employees that, in view of the pe-
tition and notification from the Union's executive com-
mittee, the Company had accepted the petition and the
Union's voluntary abandonment of bargaining rights and,
therefore, withdrew recognition of the Union. In the
memorandum, Peters went on to note that all employees
of Respondent who were not represented in a bargaining
unit were considered to be salaried employees. Peters
continued: "I am pleased to notify you that in-response
to the wishes of the majority, as of December 7, 1982,
you have been placed -in salary status." The memoran-
dum next listed and described, briefly, some of the many
benefits That go with salaried status for the employee and
family. These l included basic life insurance; optional life
insurance available effective January 1, 1983;- salaried
health and major medical insurance; long-term disability;
salary continuation policy (sick pay) effective immediate-
ly, but' which may be subject- to verification require-
- ments; separation pay; thrift savings plan effective Janu-
ary 1, 1983, for those with 1 year or more of service; and
dental assistance program, effective January 1, 1983.
- The memorandum also announced the issuance of an
employee handbook within a week to 10 days and the
Each local union shall be bound by and shall adopt as its Constitu-
tion and By-laws the Uniform Local Union Constitution and By-laws
adopted by the International Convention in 1947 and as amended,
thereafter, but may adopt other By-laws and amendments to the said
Uniform Constitution not in conflict with the International Constitu-
tion , provided that the said amendments shall have no effect until
and unless approved by the International President
503
scheduling of sessions with the corporate benefits direc-
tor on Friday to explain the employees' new benefits
package. The memorandum closed with an expression of
pleasure in the employees' trust in the Company by the
major step they had taken and welcomed them as sala-
ried employees. '
By mailgram dated December 9, 1982, Frank D. Mar-
tino, the International president, advised 'Respondent that
pursuant to the request and recommendation of Interna-
tional Vice President George McDevitt and with good
cause shown, and in accordance with authority vested in
him by article VI, section 5 of the International constitu-
tion and other applicable laws, he had imposed supervi-
sion and authorized receivership over Local 846, effec-
tive December 9, 1982. He further advised he had ap-
pointed two International representatives as supervisor
and deputy supervisor; respectively.
In a responsive mailgram dated December 13, 1982,
Henry Kramer, for Respondent, advised Martino that his
mailgram had been received on December 10, and that
the alleged receivership of Local 846 -was an internal
matter and did not concern BASF. The mailgram contin-
ued, stating that BASF no longer had any relationship
with the Union, reciting that, following receipt - of the
employee petition, and executive board disclaimer on De-
cember 6, Respondent's notification to the Union on De-
cember 7 accepting the disclaimer, petition, and with-
drawal of recognition, the contract became ineffective
December 7, 1982 (including, but not limited to union-
security and checkoff provisions). The mailgram con-
cluded that, since no relationship had existed between
Union and Company at South Brunswick [Jamesburg fa-
cility] since December 7, 1982, predating the alleged re-
ceivership by 2 days, further communication between
them regarding Local 846 or the ICWU with regard to
South Brunswick was inappropriate.
By certified letter dated December 1, 1982, directed to
Respondent, International President 'Martino recounted
the establishment of the Local 846 supervision and re-
ceivership and noted he had instructed the supervisor
and ,deputy supervisor to take charge of all assets of the
Local Union and to negotiate and/or police the terms of
the - bargaining agreement between the company and
Local 846. The letter further noted the supervisors were
authorized to remove and appoint replacements for offi-
cers and other representatives of the local union who fail
or refuse to cooperate with them in the performance of
their duties. Respondent was further officially notified
that the two named International representatives were, in
fact, supervisor and receiver and deputy supervisor and
receiver over Local 846 and the proper persons to re-
ceive checkoff 'payments, to negotiate and police the
contract in person or'through their designated agents,
and to do all other things necessary to carry out the lan-
guage, spirit, and intent, of. the bargaining , agreement.
The letter closed with a request for cooperation and as-
sistance to the supervisors in carrying out their functions.
There is no record of any Respondent reply to this
letter. -
On December 21, 1982, David M. Paul, the Interna-
tional supervisor and receiver, went to the Jamesburg
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant He informed the guard at a gate house who knew
who he was from previous meetings when he was Inter
national representative servicing Local 846 that he was
there to see either Paul Johnson or John Mallszewski
local president and financial secretary respectively Paul
also identified hinmself to the guard After checking by
telephone for a longer time than was usual the guard in
formed Paul that he would have to leave the premises
immediately he was not authorized to be on the prem
ises and had no business there and that he had been on
the phone with Kyrus McNeil
Paul left the entrance went down the road and tried
to reach McNeil by telephone He was told McNeil was
unavailable After consulting International counsel he at
tempted, without success to reach McNeil repeatedly
that day by phone and McNeil never returned his calls
The membership records of Local 846 shows a roster
of members as of December 31 1982 maintained by the
International containing the register numbers and names
of 52 employees and showing the dates they became
members of Local and the International 7 the type of
membership and their home addresses These lists are
prepared on a monthly basis and updated quarterly or
monthly All subsequent rosters prepared by the Interna
tional are identical to the one dated December 31 1982
No dues have been paid since December 6 1982 by any
members employed by Respondent in December 1982
The Local has conducted no meetings and has engaged
in no activities since December 6 1982 although the
International supervisors have engaged in certain acts in
furtherance of their activities as supervisors of the
Local s affairs and receivers of the Local s assets
Analysis and Conclusions
The central issue in this case is whether the disavowal
of continued representation and disclaimer of bargaining
status of 70 percent of the Local 846 members in the bar
gaining unit and by six of the nine members of the
Locals executive board8 excused Respondents with
drawal of continued recognition of the Union and termi
nation of the collective bargaining agreement Concern
ing the termination of the contract 6 months before its
term expired the general rule is that for the life of the
agreement the union enjoys an irrebuttable presumption
of majority status Precision Striping 245 NLRB 169
(1979) Hexton Furniture Co 111 NLRB 342 (1955) It is
clear that the Local was a statutory bargaining agent for
the employees in the unit American Seating Co 106
NLRB 250 (1953) The presentation of evidence of deser
tion of that representative by a majority of the employ
ees even as here absent evidence of employer coercion
r The record includes the form application for membership in effect at
all relevant times which is uniformly signed by all applicants The printed
language preceding the applicant s signature reads in pertinent part De
siring to become a member of the International Chemical Workers Union
I hereby apply for membership in that organization I agree to be bound
by the obligation of membership and the laws of the organization both
Local and International I also understand that this my application is
subject to acceptance by the International Union I also authorize the
union to represent me in all matters of collective bargaining
8 Respondents assertion at page 9 of its brief that the executive corn
mittee comprised seven members is clearly in error See Local constitu
tion art v sec l (G C Exh 5(b))
does not relieve the Respondent of the obligation to bar
gain at least for the remaining life of the agreement
The Board has established a set of rules for displacing
an incumbent bargaining representative in the face of an
outstanding collective bargaining agreement-the so
called contract bar rules-and the standards they
embody must be applied to determine the legitimacy of
Respondents conduct Under those standards a contract
is a bar to a rival representation or decertification peti
tion unless filed between 60 and 90 days prior to the con
tract s terminal date if it has a 3 year term or prior to
the expiration of 3 years if it has a longer term See
Deluxe Metal Furniture Co 121 NLRB 995 (1958) Leon
and Wholesale Meats Co 136 NLRB 1000 (1962) General
Cable Corp 139 NLRB 1123 (1962) Respondents duty
therefore was to continue to recognize administer and
enforce the 1980-1983 contract for its duration or until a
timely petition for decertification could have been filed
As the Board itself has recently noted in East Mfg Corp
242 NLRB 5 at 7 (1979)
[T]o permit a viable contracting representative
to disavow its lawful contractual commitments
during the term of an enforceable contract even if
the disavowal stems from an awareness of employee
dissatisfaction with their representative impugns the
integrity of the collective bargaining process and
encourages circumvention of our contract bar doc
trine
Although Respondent argues the Local 846 was de
funct and ceased to exist as a viable labor organization
after December 5 1982 the facts do not support such a
conclusion Thirty percent of the membership did not
support the petition Three members of the Local s exec
utive board including the president and financial secre
tary did not disclaim bargaining rights 9 The Local had
assets including bank accounts the preservation of
which was one of the responsibilities of the supervisors
and receivers appointed under the IU imposed receiver
ship of December 9 1982 In Hershey Chocolate Corp
121 NLRB 901 (1958) the Board found a representative
is defunct and its contract is not a bar if it is unable or
unwilling to represent the employees That is not the
case here Furthermore even if it were the Board noted
that actions by an international union or intermediate
body evidencing its willingness and ability to assume the
representative function of a local which is no longer ca
pable of performing such functions will be deemed rele
vant to the issue of defunctness only if such international
union or intermediate body is a party signatory to the
contract Id at 911-912 As the facts make clear the
International has been a party signatory to the successive
agreements including the 1980-1983 one since 1969
Also under the IU constitution Local 846 still exists as a
functioning and viable entity insofar as (a) more than 10
9 See Automated Business Systems 189 NLRB 124 ( 1971) where all
unit members voted to withdraw from the local revoked their checkoff
authorizations and specifically requested cancellation of the contract and
the employer was never notified that the International had underwritten
the contract
BASF-WYANDOTTE CORP.
members chose not to disaffiliate and, (b) the IU presi-
dent imposed supervision over its` affairs. See IU consti-
tution, article XVI, sec. 4 (G.C. Exh. 5(a)).
Neither was there a schism, as contended by Respond-
ent in its brief, which would also serve to remove the
contract as a bar. The reason for the local membership
disaffiliation is unclear on this record, but it surely did
not involve a "basic intra-union conflict," i.e., "any con-
flict over policy at the highest level of an international
union ." Hershey Chocolate Corp., supra, fn. 14 at 907;
Swift & Co., 145 NLRB 756, 762 (1963), the'Board's cur-
rent requirements for a schism.
Apart from the foregoing, the conclusion is warranted
that inasmuch as the International was not only a party
signatory but an'active coparty with, the Local, having
more than a nominal status in the bargaining relationship
with Respondent, Respondent had no legal right to rely
on the disclaimer only of the majority of the local mem-
bership and local executive board in immediately dis-
avowing both its bargaining relationship and contract ob-
ligations.
As the facts • show, not only was the International a
party with the Local to all labor agreements entered
with Respondent since 1969,10 but its president, under-its
constitution, authorized the, Local's execution of the
agreements; Hiney, Printing Co., 262 NLRB 157 (1982),
the International' representative assigned to assist the
Local acted as chief negotiator, participated in third-step
grievance and regularly scheduled labor management
and related meetings held with Respondent, handled ar-
bitrations pursued under the terms of the successive
agreements , and filed and processed unfair labor practice
charges alleging violations of the Act against bargaining
unit employees. Furthermore, the 1980-1983 contract
itself describes the International's responsibilities and
duties in the areas of grievance administration, resolving
problems arising on union objections to new job rates,
and with respect to strikes, and union-securi ty and dues-
checkoff obligations. The International representative
was also an active participant in Local affairs , reporting
periodically to the membership on International and
other local concerns. Thus, both North American Philips
Co., 78 NLRB 666, 668 ,fn. 5 (1948), where the Interna-
tional had no contractual obligations and was defined as
coparty with the local, and Standard Oil Co., 92 NLRB
227, 236 (1950), relied on by the Respondent at 21-22 of
its brief, where the facts do not show International inclu-
sion in contract language , are distinguishable. In Stand-
ard Oil, supra, as well, the contracting local had been the
only organization certified by Board, while here Local
846 had not been certified. Finally, Standard Oil, supra,
appears to be an isolated case, not since relied on by the
Board. A more current, persuasive and thoughtful pres-
entation of the issue appears in Yates Industries, 264
NLRB 1237 (1982). In an extended discussion, Adminis-
trative Law Judge Earldean V. S. Robbins concluded,
inter alia, with Board affirmance, that the Respondent
'o Respondent's conclusions in its brief that the International remained
a party after 1969 solely because of its earlier imposition of a receivership
over the Local is pure speculation and not a proper inference which may
be drawn from all of the facts discussed here
505
employer's withdrawal 'of recognition during the life of
the agreement from an International and a local union
which had sought, to -disaffiliate from the International,
and its recognition, instead, of another local union not af-
filiated with the certified International whom - the em-
ployees attempted to designate as their exclusive collec-
tive-bargaining representative. This constituted a viola-
tion-of the 'bargaining obligation under the 'Act. Al-
though the International had not,, signed the current
agreement, the judge concluded that the International
union was in a position to 'enforce the contract since, as
certified and joint representative of'the employees par-
ticipating in the negotiations which culminated in the
contract, it was a party to, and bound by, the contract.
In signing , the affiliated local acted both in its capacity
as principal and as agent for the International. As the af-
filiated local continued as a viable entity under the Inter-
national constitution the International could provide rep-
resentation on both the-International and local level just
as it had done in. the past and the effectiveness of em-
ployer participation need not have been diluted.
Here, the International acted to conserve the Local
846 assets and to supervise Fits collective ' bargaining and
other responsibilities just as soon as it became aware of
the actions of the majority of its members. The Interna-
tional was thus fully capable, both in its capacity as inde-
pendent signatory and joint collective-bargaining repre-
sentative and in its,capacity as supervisor of the affairs of
Local 846, to make effective the continued representa-
tion of the unit employees-under the current agreement.
Respondent's failure to continue to recognize the Inter-
national and the supervised Local 846 and to continue
the contract in force" i constitutes a violation of Section
8(a)(5) and (1) of the Act. Furthermore, Respondent's
unilateral changes in benefits granted to the unit employ-
- ees constitutes an. 'independent violation of Section
8(a)(5) and (1) of the Act. See, e.g., 'Robert A. Barnes,
Inc.,'268 NLRB 343 (1983).
Respondent, in defense, relies in part on the prior com-
plaint issued by Region 22 describing -Local 846 as the
exclusive bargaining representative of the unit employees
(not the "sole" and-ezclusive representative as asserted at
16 of its brief). That pleading is not determinative of the
issue .herein, being only. an allegation which was ulti-
mately withdrawn. The description in Respondent's brief
of the IU trusteeship reports also contains a misstatement
of fact, the brief describing the local union in the report
as "the" bargaining representative rather than as "a" bar-
gaining representative. The Conkle Funeral Home deci-
sion, 266 NLRB 295 (1983), relied on by Respondent in
its brief, is inapposite since there was no collective-bar-
gaining agreement in effect, the disclaimer was based on
a loss of virtually all support from unit employees, and
the International union was neither a party signatory nor
11 It is interesting to note that although the disaffiliation petition re-
cites that the signatories no longer wish representation by either Local
846 or the IU, Respondent did not seek to determine before withdrawing
recognition whether the IU agreed with this statement The wording of
the petition also shows that the employees were aware that the IU had
standing as their point representative in bargaining with Respondent or at
least that their bargaining rights were based on their membership in the
IU
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
joint representative of the unit employees , all factors
present on the instant record
CONCLUSIONS OF LAW
1 Respondent BASF is an employer engaged in corn
merce within the meaning of Section 2(2) (6) and (7) of
the Act
2 International Chemical Workers Union, AFL-CIO
and its Local 846 each are labor organizations12 within
the meaning of Section 2(5) of the Act
3 About March 12, 1980, Respondent BASF entered
into the most recent of a series of collective bargaining
agreements with the IU and its Local 846 effective from
March 12 1980 to May 12, 1983 covering the employ
ees of Respondent BASF in the appropriate unit de
scribed below
4 Since at least about May 13 1972 and at all times
material IU Local 846 has been recognized along with
the IU as the exclusive collective bargaining represents
tive of all employees in the following unit appropriate
for the purposes of collective bargaining with respect to
rates of pay wages hours of employment and other
terms and conditions of employment
All hourly Production and Maintenance employees
of the Company s plant located in South Brunswick,
New Jersey including Shipping and Receiving De
partment and Extruder Employees but excluding
office and factory clerical employees laboratory
employees engineers and draftsmen salaried Re
search Department employees, professional employ
ees guards foremen assistant foremen and all
other supervisory employees as defined in the Act
5 By withdrawing recognition from and refusing to
bargain collectively with, the IU and its Local 846
during the period when Respondent BASF and the IU
and its Local 846 were parties to a collective bargaining
agreement by refusing to continue to recognize the IU
and its Local 846 as parties to said agreement, by dis
avowing the agreement and refusing to continue to
honor and enforce all terms and conditions of the agree
ment and by unilaterally without notice or opportunity
12 This conclusion of law regarding the continuing labor organization
status of Local 846 resolves the issue left unresolved earlier see sec I
supra, on the basis of the foregoing analysis
to bargain with respect thereto granting to all unit em
ployees changes in various terms and conditions of em
ployment Respondent BASF has engaged in and is en
gaging in unfair labor practices in violation of Section
8(a)(5) and (1) of the Act
6 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I will recommend that it cease and
desist therefrom and take certain affirmative action de
signed to effectuate the policies of the Act
I shall recommend that Respondent BASF give effect
to the 1980-1983 collective bargaining agreement with
the IU and its Local 84613 and to further make whole
unit employees as appropriate for failure to do so in the
manner described by the Board in F W Woolworth Co
90 NLRB 289 (1950) and with interest thereon comput
ed in the manner prescribed in Florida Steel Corp 231
NLRB 651 (1977) See generally Isis Plumbing Co 138
NLRB 716 (1962) and pay to IU Local 846 all dues and
initiation fees which were deducted from employees pay
checks pursuant to valid dues-checkoff authorizations to
the IU and/or the IU Local 846 but which were not re
miffed to IU Local 846 after December 6 1982
I shall also recommend that Respondent BASF cease
the unilateral changes in terms and conditions of employ
ment of unit employees it made on and after December
7 1982 provided however that nothing herein shall re
quire Respondent BASF to vary or abandon any wage
hour life insurance benefits health insurance and dental
assistance benefits disability, sick pay separation pay or
savings plan benefits or other substantive features of its
relations with its unit employees which Respondent
BASF established on or after December 7 1982 or to
prejudice the assertion by such employees of any rights
they may have thereunder during the period these bene
fits remain in effect
[Recommended Order omitted from publication
i s Because Respondents unlawful actions have made it impossible to
determine what action it might have legitunately taken at the expiration
of the 1980-1983 agreement , and it thus must be denied the fruits of its
illegal conduct, I will not l mit the remedy as requested by Respondent at
the footnote at p 22 of its brief