Combined Paper Mills, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1969

174 N.L.R.B. 483 (N.L.R.B. 1969)

COMBINED PAPER MILLS
Combined Paper Mills, Inc. and United Paper
Makers and Paper Workers, AFL -CIO, and its
Local , United Paper Makers and Paper Workers
Combined Locks Local 264, AFL-CIO and
International Brotherhood of Pulp , Sulphite and
Paper Mill Workers, AFL-CIO, and its Local,
International Brotherhood of Pulp , Sulphite and
Paper Mill Workers Combined Locks Local 144,
AFL-CIO. Case 30-CA-668
February 13, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On July 9, 1968, Trial Examiner Frederick U.
Reel issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent, the Charging Parties,
and the General Counsel filed exceptions to the
Trial Examiner's Decision and briefs in support
thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing andy finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Combined Paper
Mills, Inc., Combined Locks, Wisconsin, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: This case, heard
at Appleton, Wisconsin, on May 8, 1968, pursuant to a
charge filed the preceding October 10, and a complaint
issued March 28, presents the novel question whether
483
Respondent, herein called the Company, engaged in
unilateral action violative of Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, when it
agreed with the representative of one unit of its employees
to a change in an insurance arrangement, and thereby
raised the insurance premium for another unit without
bargaining with the latter's representative.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
counsel for each of the parties, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATIONS INVOLVED
The Company, a Delaware corporation engaged at
Combined Locks, Wisconsin, in the production of paper
products, annually ships over $50,000 worth of products to
points outside the State, and is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act. The Company wholly owns another
corporation which 'operates a paper producing plant in
Pennsylvania. The latter plant is known as the "Bare
Mill"; the Wisconsin plant is called the "Locks Mill."
The employees at the Bare Mill are represented by
United Papermakers and Paperworkers, AFL-CIO, and
by its Local No. 422. At the Locks Mill the employees
are represented by the same International and its Local
264, and by the International Brotherhood of Pulp,
Sulphite and Paper Mill Workers, AFL-CIO, and its
Local 144' The two Internationals and the three locals
just referred to are labor organizations within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background - the Insurance Plans at the Two
Plants
As noted above, the two plants comprise separate
bargaining units, and they have been operating under
different collective-bargaining contracts. Such a contract
at the Bare Mill was in effect from August 1, 1965, to
July 31, 1967. After about 2 months of negotiations at
that plant a new contract was agreed to on July 28, 1967,
and ratified July 30, 1967, to be effective from August 1,
1967, to July 31, 1968. Meanwhile, the collective
agreement at the Locks Mill which had become effective
August 1, 1965, was in effect until June 1, 1968. The
contracts at both mills provided for life insurance,
sickness and accident insurance , and hospitalization
insurance. At the Bare Mill the employer paid the entire
cost of the insurance (although this cost was, of course,
considered as one of the fringe benefits to the employees
and hence was included in determining the cost of the
"wage package" in bargaining ), and at the Locks Mill the
Company paid 60 percent of the premium, and deducted
the remaining 40 percent from each employee' s wages.
From time to time the premiums would fluctuate up or
down as various factors (such as insurance experience or
age of employees) would fluctuate. On these occasions the
Company would change the amount it deducted from
wages, raising or lowering it by 40 percent of the change
'For convenience the two Internationals and their locals are sometimes
referred to herein as the Papermakers and the Pulp and Sulphite Workers,
respectively.
174 NLRB No. 71
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the premium.' When such changes occurred, the
Company would post a notice at the Locks Mill informing
the employees of the change in deduction and of the
reason for the change.
Although the two collective-bargaining agreements were
entirely separate and distinct, the Company for some time
prior to the summer of 1967 (the period immediately
involved in this case) had made a single contract with the
Aetna Insurance Company covering the employees at both
plants, including` also the clerical employees who were not
in either bargaining unit. The employees at the Locks Mill
were aware of this fact.
In the negotiations which culminated in the 1965-1968
contract at the Locks Mill, one of the Unions jointly
representing the employees at that plant had made some
effort to have the Company change from Aetna to another
insurance carrier. The Union's insistence on this was at
least one of the causes of a brief strike in 1965, but the
Company told the Union that the Company preferred to
put "all their insurance eggs in one basket, a bigger
group, it was cheaper . . . the impact wasn't so great."
Eventually the strike ended with the Union's agreeing to
continue the insurance program with Aetna, with certain
increased insurance benefits to be added" during the life of
the contract on August 1, 1966, and August 1, 1967.
These benefits necessitated increased premiums, of which
the Company paid 60 percent, and deducted the remainder
from the employees' paychecks, pursuant to notices posted
as described above.
B. The Bare Mill Change in Insurance and its Impact
on the Locks Mill
In the 'course of negotiations for a new contract at the
Bare Mill in the summer of 1967,2 the union
representatives at that plant, led by Robert Neff,
international representative of the United Papermakers
and Paperworkers, pointed out that the nonclerical
employees at that plant could get substantially greater
hospitalization insurance at no increase in premium if
their unit was separated from the rest of the plant for
purposes of hospitalization insurance . The primary
motivation for the demand for separate hospitalization
coverage appears to have been the Union's realization at
the Bare Mill that the inclusion of the Bare Mill clerical
employees (many of whom were elderly) in the same
insurance unit caused the production workers to "carry"
part of the cost of the clericals. However, the Locks Mill
production employees had also been benefiting from being
included in the same hospitalization policy with the Bare
Mill production employees, in that the insurance claims of
the Locks Mill group were in excess, relative to their
share of the premium, of the claims of the Bare Mill
production employees.
The Company agreed with the Union representing the
Bare Mill production employees to place their
hospitalization insurance in a separate group from the
remainder of the Company's employees, which remainder
consisted of the clerical employees at the Bare Mill and
all the employees at the Locks Mill. As the company and
union negotiators in Pennsylvania must have been aware,
the necessary result of this change, which was effective
with the new contract at the Bare Mill on August 1, 1967,
was to raise the premium for the hospitalization insurance
at the Locks Mill. At, the same time, as noted above,
T
All dates subsequently referred to are to the year 1967 unless otherwise
indicated.
certain improved benefits, necessitating a higher premium,
went into effect at the Locks Mill. On July 31 the
Company posted a notice at the Locks Mill reading in
part as follows:
Effective August 1, 1967, the following rates will be
applicable to the mill hourly employees for their share
of premium for Aetna group insurance coverage. This
change is due to increase in daily hospitalization and
other benefits.
There followed a list of rates showing the past and future
deductions for various classes of employees 3 Although the
notice recited that the increase was caused by changes in
benefits, approximately half of the increase was caused by
the elimination of the Bare Mill production employees
from the hospitalization coverage. The average amount of
the increased deduction attributable to that cause $1 29
per month per employee.
Asked to explain why the notice posted on the bulletin
board reflected only one, rather than both, of the reasons
for the increased deductions, Company Personnel
Manager Charles Ehlke testified that at the time he
posted the notice he had not received written confirmation
from the Bare Mill. I regard the "explanation" as lame
and unconvincing because if Ehlke was sufficiently certain
to include the rate based on the Bare Mill changes, he
must have been equally certain of the reason, or, to put it
in other terms, if he needed confirmation before stating
the reason, he needed the same confirmation for inclusion
of the new rate. In the light of what I regard as Ehlke's
equivocation in the matter. I credit the testimony of
Michael Courtney, president of Local 144 of the
International Brotherhood of Pulp, Sulphite and Paper
Mill Workers, that when Ehlke gave him a copy of the
notice on July 31, Ehlke did not tell him that the
withdrawal of the Bare Mill group was one of the reasons
for the increase. In thus declining to credit Ehlke's
testimony as to his alleged statement to Courtney, I also
do not credit Ehlke's testimony that on July 31 he
apprised Ervin Marquardt, then president of Local 264 of
the United Papermakers and Paperworkers, that the
change at the Bare Mill was part of the reason for the
increased deductions at the Locks Mill. Marquardt since
that-date has been promoted to a salaried position outside
the bargaining unit and did not testify, but Vice President
Schroeder of the same local testified that he did not know
of the Bare Mill withdrawal until a meeting on August 24,
when Marquardt asked Ehlke "how come the large
increase on our insurance premium . . . and it was stated
at that meeting that they at Bare had withdrawn from our
plant " Moreover, Schroeder testified that he discussed
the increase "quite thoroughly" with Marquardt between
July 31 and August 24. Also, the Papermakers
International representative testified that Marquardt in
mid-August 1967 discussed the increase in premium but
did not mention the change in coverage at the Bare Mill.
On the entire record, therefore, I credit Courtney and
Schroeder, and I find, contrary to Ehlke's testimony, that
he did not tell Courtney or Marquardt on July 31, 1967,
that the Bare Mill action had occurred or how it affected
the Locks Mill premises.'
'These new rates were first reflected in paychecks distributed August 10,
but counsel for the Company somewhat overstates the matter when in his
brief he uses the latter date as that on which the rate raise "was actually
put into effect."
'1 appreciate that technically Ehlke's version of his conversation with
Marquardt is undented But see N L R.B v Howell Chevrolet Co, 204
F.2d 79, 86 (C.A 9), affd 346 U S. 482 Marquardt , as noted, was not
called as a witness
COMBINED PAPER MILLS 485
C. The Discussions Between the Locks Mill Unions
and the Company Concerning the Insurance Change
As just noted, the Company when it announced the
increased deductions concealed the fact that the change at
the Bare Mill was in part responsible for the increase.
According to Ehlke, at a meeting on August 8 with
representatives of Local 144 of the Pulp and Sulphite
Workers, Courtney asked why the increase was so high,
and Ehlke replied that the increased hospitalization and
other changes plus "the fact that` the Bare union had
negotiated out of its own group" accounted for the
increase. According to Ehlke, several other subjects were
discussed at this meeting. Courtney did not recall the
meeting and testified that he did not know at any time
during the month of August of any reason for the increase
in premium other than the reason stated in the Company's
notice of July 31. Courtney's version derives some support
from the testimony of Cluberton, the International
representative serving Courtney's local, for Cluberton
testified to a conversation with Courtney in mid-August at
which time the latter stated that the rate increase seemed
excessive but could give no explanation save "bad
experience and improved benefits " Cluberton's lack of
knowledge at that time is in turn confirmed by the
testimony of Windorff, International representative of the
Papermakers servicing the Locks Mill, who testified to a
conversation with Cluberton between mid-August and
August 24, at which time neither he not Cluberton knew
that the Bare Mill group had left the insurance plan.
Under all the circumstances, I find that Courtney did not
learn from Ehlke on August 8 that part of the reason for
the rate increase was the change at the Bare Mill. It may
be that Ehlke adverted to the matter and that Courtney
did not understand the impact of Ehlke's remarks. In any
event, even assuming that Ehlke did state the facts on that
occasion, this was, of course, after the effectuation of the
increased premium, and Ehlke did not purport to be
"bargaining" about the matter.
On August 24 Ehlke met with representatives of Local
264 of the Papermakers on a grievance unrelated to the
insurance situation, but at that meeting the Union raised
the insurance matter and Ehlke stated that the withdrawal
of the Bare Mill group was a factor in the increase.
On September 12 the Company and committees
representing the two Unions were guests of the Aetna
Insurance Company at a dinner in Little Chute,
Wisconsin. At this dinner the Aetna representative, one
Chaney, was the principal speaker, and Ehike, who was
also present, had little to say. Chaney explained to his
assembled guests that the insurance experience at the
Locks Mill was very bad compared to that at the Bare
Mill, and that for this reason the Bare Mill Union had
bargained for withdrawal from the overall group.
Cluberton testified that some of the men at the meeting
protested loudly and vigorously, "accusing the Company
of a sellout" and of acting illegally, although Cluberton
himself stated at the meeting that the Company had been
under a duty to bargain with the Bare Mill unit over
insurance. The meeting broke up in what Cluberton
described, with Windorff s concurrence, as a "rowdy"
fashion.
The following day, but pursuant to arrangements made
between the Company and the Locks Mill Unions before
the dinner meeting of September 12, the Company met
jointly with representatives of both Unions to discuss the
situation. At this meeting Cluberton asked Ehlke "What
do you intend to do about this insurance problem?" Ehlke
thought a minute and then replied: "Nothing." The
meeting did, however, result in the Unions receiving, for
the first time, accurate information as to the amount of
the increased premium attributable to the separation of
the Bare Mill group. As noted above, the amount
averaged $1.29 per month per man. The Unions advised
the Company of their intention to file an unfair labor
practice charge; the charge was filed October 10.
After filing the charge, the Unions also invoked the
grievance procedure under the existing contract, which
provided for several stages of discussion, culminating in
arbitration. On November 10, the parties met for the
fourth step in the grievance procedure (the first step to
involve International representatives), and Cluberton
asked Company President Vogt, "Now, have you changed
your mind on this insurance problem." Vogt said, "No,"
and Cluberton was ready to adjourn, but Windorff
prolonged the meeting and (to quote Cluberton) they
"proceeded to talk out the problem once again." During
the discussion Vogt said the matter was out of his hands,
and rested with the board of directors in Chicago.
Cluberton a few days later telephoned one Fisher, the
chairman of the board, in Chicago, and asked if the union
representatives could talk to him about the insurance
problem. To quote Cluberton's account of his effort:
"Well," he says, "I think you should have thought
about this before you filed the charge with the Board."
He says, "No, we'll let this thing take its course." He
says, "If this thing wasn't laying on the table," he says,
"maybe we could talk about it." I didn't pursue what
he meant or anything. I says, "All right. Well, thank
you, Mr. Fisher," and that closed the conversation.
The grievance was not pursued beyond the fourth step and
was never taken to arbitration
D. Concluding Findings
The simple proposition urged in support of the
complaint is that the Company without notice to or
bargaining with the Locks Mill employees,' 'statutory
representative changed the "base" upon" which their
insurance premium was computed, thereby increasing the
amount deducted from their wages, and thus prima facie
is guilty of unilateral action violative of "Section 8(a)(5)
and (1) of the Act. Cf. N.L.R.B. v. Scam Instrument
Corp , 394 F.2d 884 (C.A. 7). To this' contention the
Company interposes several defenses too which we now
turn.
1. The Company contends that the matter could have
been handled by the arbitration machinery set up in the
contract, and that the Board should" as a matter of
discretion stay its hand and leave the parties to their
contractual machinery. The Board, of course, is not
required to defer to arbitration but sometimes chooses to
do so. The instant case possesses sdme of the features
which might lead the Board to defer, in that the issue lies
in narrow compass, carries little if any implication to
national labor policy, and arises between parties
apparently enjoying a reasonably harmonious relationship.
On the other hand, the critical facts are not in dispute and
the issue is solely whether a legal obligation exists under
the statute which the Board administers. The contract
between the Company and the Locks Mill Unions recites
that the function of the arbitration - board provided for
thereunder "shall be to interpret and apply this
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Agreement However, this Board shall have no power to
add to or subtract from or modify and extend any of the
terms of this Agreement...." The right here asserted by
General Counsel and the Locks Mill Unions grows out of
the statute, not the contract. I see no more reason for the
Board to defer to potential arbitration in this case than in
any other case in which during the life of a contract an
employer engages in allegedly unilateral action. If the
employer's action contravenes statutory rights, any
arbitration decision exculpating him would be in the teeth
of the statute. If the case turned on factual disputes, the
Board might be warranted in deferring to arbitration, but
on the instant record I see no compelling reason for the
Board to do so. See Unit Drop Forge Division Eaton Yale
& Towne, Inc., 171 NLRB No. 73; Scam. supra.s
2. The Company contends that it satisfied any
obligation it had under the statute by its discussions with
union representatives in August, September, and
'thereafter concerning the reasons for the change in
premium The unilateral action was taken and announced
before the Company apprised the Unions of the basis for
its action, and the lack of any bargaining over the matter
is :only emphasized by the posting of a deliberately false
and misleading notice Subsequent discussions would not
cure the taint if the original action violated the duty to
bargain. Cf. Stark Ceramics, Inc. v. N.L.R.B., 375 F.2d
262^ 205, 206 (C.A. 6), enfg. 155 NLRB 1258, 1265,
balling that a Company's "after-the-fact offer to explain
its inilateral action does not cure the violation."
3. The Company relies heavily on the fact that the
change at Bare Mill was initiated by an International
representative of the Papermakers, that the same
Interinational and its Local Union at Locks Mill are
chargeable with knowledge of the change and of its
necessary impact on the premiums at Locks Mill, and that
the failure to request bargaining there constitutes a waiver
of the right to bargain. The parties have stipulated and the
testimony establishes that in point of fact none of the
union rep,(esentatives serving the Locks Mill, including the
International representative of the Papermakers, knew of
the proposals at the Bare Mill (Ehlke, the company
representative, knew of them, for he participated in the
Bare Mill negotiations), but the Company argues that
constructive notice is sufficient, and that it could
reasonably assume that the proposal by one International
representative', of the Papermakers was acquiesced in by
another in a ,different geographic area So far as the
notice to the other Union at Locks Mill is concerned, the
Company argues that the two Unions cooperated in
administering the contract, and that knowledge imputable
to one is equally imputable to the other. (A question from
the Trial Examiner elicited the answer that the two
Unions in Wisconsin do cooperate and freely exchange
data of common'poncern.)
The issue appears to be novel, and able counsel have
not unearthed authorities controlling on the point. So far
as the "joint bargaining" feature is concerned, it would
seem to me that notice to one of the joint representatives
was legally sufficient notice to all When two unions act as
a joint bargaining representative they constitute a single
"labor organization" for purposes of the Act. See
NL.R.B. v. National Truck Rental Co., 239 F.2d 422,
425 (C.A.D.C ). The realities of industrial life, however,
militate against the Company's contention that knowledge
of one international representative of the Papermakers in
Pennsylvania constitutes notice to another representative
or to the entity in Wisconsin. Certainly the Company
would not concede that an unlawful threat uttered to such
a representative in Pennsylvania warranted remedial relief
at the Wisconsin plant on the theory that the employees
there would be sure to learn of it. The very fact that the
Company in its July 31 notice to the Locks Mill
employees concealed the fact that the Bare Mill
withdrawal was a major cause of the change in the
premium deduction itself suggests that the Company
believed the employees to be ignorant of the Bare Mill
change and hoped to keep them so. If a duty to bargain
existed at all (a matter discussed below), it encompassed
the duty to give notice and opportunity for bargaining.
Such a statutory obligation should not be administered or
applied in a grudging manner, for it arises out of a belief
that the exchange of information can help avoid industrial
strife. I therefore reject the technical contention that,
assuming the Company was under a duty to give notice to
the Locks Mill Unions, it complied with that duty or was
absolved therefrom because of the knowledge of the
Papermakers International in Pennsylvania that the
change in insurance carriers it requested would have an
adverse affect on the premiums charged in Wisconsin.'
4. Finally, the Company contends that the change in
premiums at the Locks Mill was no different from other
changes in premiums effected there from time to time as
the insurance benefits changed or the insurance
"experience" factor resulted in an increase or decrease of
rates, and that just as these changes were passed on to the
employees, with the Company paying 60 percent and the
employees the balance, so the change in rate on August 1,
1967, could be passed on without prior notice or
bargaining. General Counsel concedes that the normal
changes in premiums, which resulted from factors beyond
the Company's control, could be passed on to the
employees without further bargaining . He argues for a
contrary conclusion here because the change in premium
is directly attributable to the Company's action in
agreeing with the Bare Mill employees to take them out
of the insurance group.
The initial reaction to this problem, it seems to me, is
to view the matter as simply a rate change which the
employer can pass on to the employees as he did other
changes in premiums. Further reflection suggests that this
easy answer springs in part from the relatively minor
impact of this particular change in the premium. If, for
example, the defection of the Pennsylvania group had
caused an increase in the rate so great as to be
prohibitive, the initial reaction might well be that the
employer before agreeing to a change which so affected
the Wisconsin group should afford their representative
actual notice and an opportunity to be heard. The source
of the difficulty lies in the hybrid character of the
contracts and units: what are ostensibly two separate
bargaining units were, for the limited purpose of insurance
coverage, a single multiplant unit . Moreover, this
'Over half of the Company's able brier is devoted to this issue, and it
would be a pity if so admirable a discussion of the conflicting authorities
should reach no larger audience . Hopefully, counsel will find time to
fashion it into a law review article or a piece for a labor law publication.
So far as I am concerned ,; however, it is only proper to note that among
the most persuasive statements in the brief are quotations from two
recently overruled trial examiners and a dissenting Board member
'It should also be noted in support of this conclusion that so far as the
Pennsylvania representative of the Papermakers was aware , the Company
might have been absorbing the premiums in Wisconsin as it did in
Pennsylvania Also the Pennsylvania representative was not chargeable
with knowledge that the Company was not advising the Wisconsin
representative of the matter
COMBINED PAPER MILLS 487
single-unit aspect of the insurance coverage had been
insisted on by the employer at the time the Locks Mill
contract was renewed in 1965. To be sure the Company
was under a duty to bargain with the Bare Mill Union
concerning the continued coverage of the Pennsylvania
employees under the single insurance carrier. But by the
same token namely that the nature of the insurance
carrier was a mandatory subject of bargaining - a change
in the carrier or in the nature of the unit served by the
carrier was equally a mandatory subject of bargaining for
the Locks Mill. I conclude, therefore, that the employer
before reaching agreement with the Bare Mill Union
should have given notice and opportunity for bargaining
to the Locks Mill representative
This is not to say, of course, that the Company had to
secure the consent of the Locks Mill unit before making
the change at the other mill. The Company's obligation
was to notify the Locks Mill representatives and to hear
in good faith whatever views they may have chosen to
express. Certainly, the situation was rife with possibilities
for adjustment. The Locks Mill representative might have
urged the Company to adhere to the existing situation
until the following summer when the contracts at both
mills would be up for renegotiation. The Locks Mill
people could also have taken the position that if the Bare
Mill production employees were to be under separate
coverage, the Locks Mill production unit should also be
severed rather than having to bear the share of the
premium attributable to the salaried clerical employees at
both the mills without whom (so the record suggests) the
premiums would have been lower. This is not intended to
exhaust the possibilities of adjustment but only to point
out that the duty to notify and afford opportunity for
bargaining is far from empty and is more than a pro
forma requirement.
The Company errs in equating the situation to a
premium adjustment imposed by the insurance carrier
because of factors beyond the Company's control. The
Company although it did not initiate the change in
coverage so far as the Bare Mill employees were
concerned did initiate it with the insurance carrier. But for
the Company's agreeing with the Bare Mill Union, the
change would not have occurred at the Locks Mill. The
situation is no different from one in which one union at a
plant requests a change in working hours, and the
company by acceding thereto necessarily affects the hours
of other employees represented by another union. Its duty
to bargain with the first union in that case does not
override or mitigate its duty to bargain with the second.
Undoubtedly the result here reached can lead to
difficulties in hard cases. If, for example, the Company
had shut down the Bare Mill, this would also have led to
a premium increase at the Locks Mill. It may seem
absurd to say that in such a case bargaining at the Locks
Mill is required before the Company acts. Conversely,
opening of a new mill and extending insurance coverage to
the employees there could affect the premiums at the
preexisting mills But these examples serve merely to
illustrate that where the employer's motivation in taking
certain action is so compelling the probability is that he
will adhere to his resolve after notice and opportunity for
bargaining The important element is that the bargaining
representative of the affected employees must not be
ignored or by-passed. No harm is done, and much good
may be accomplished, by the collective bargaining, and
even if the net result be unchanged, the act of extending
the opportunity for good-faith bargaining contributes to
stable labor relations and industrial peace. Contrast the
situation here, where the ignoring of the representative
and the posting of a false and misleading notice led to a
"rowdy" meeting, to bitter accusations against the
Company, and to this litigation
CONCLUSIONS OF LAW
By taking action with respect to its Bare Mill
employees which directly affected the insurance premiums
of its Locks Mill employees without giving the statutory
representative of the latter notice or opportunity for
bargaining, the Company engaged in an unfair labor
practice affecting commerce within the meaning of
Sections 8(a)(1) and (5) and 2(6) and (7) of the Act.
THE REMEDY
I shall recommend an order directing that the Company
cease and desist from its unfair labor practice, and I note
that at the time of the hearing the two mills were still
subject to the same insurance carrier on all insurance
except hospitalization, so that such an order may have,
some practical significance. I shall not recommend that
the Company reimburse the employees for the increase in
premium attributable to the defection of the Bare Mill
unit As noted, the average cost was $1.29 per man per
month commencing August 1, 1967. As the Locks Mill
contract expired June 1, 1968, the entire situation as it
then stood was subject to collective bargaining. I would
therefore not compute the liability at the most as
extending for more than 10 months, or an average of
$12.90 per employee. The brief filed on behalf of the
Charging Parties claims only this limited amount. This
may not be de minimis, but it certainly approaches if it
does not reach that somewhat elusive mark. Moreover,
the reasonable probability is that good-faith bargaining
would not have prevented the Company from agreeing to
the severance of the Bare Mill group, and it is also
probable that at least some of the increased cost would
have been carried by the Locks Mill employees. I have
previously expressed my criticism of the Company for its
posting of a false notice, but I must add that all parties
are to be censured for invoking the 1ponderous,
time-consuming, machinery of the Board and perhaps of
the Federal appellate judiciary to resolve so essentially
small a matter as this, particularly at a time when a new
contract was being negotiated I do not believe it will
effectuate the policies of the Act to require monetary
payments here, and I note that the Company itself derived
no financial benefit from its transgression.
I also believe it would not be in the interest of
industrial peace to require a conventional notice posting in
this case. Cf. Curtiss-Wright Corp., '145 NLRB 152,
157-158, enfd. 347 F.2d 61 (C.A 3). As noted, the parties
have enjoyed contractual relations and the instant
problem, in my judgment, should have been resolved in
negotiations for the contract to become effective June 1,
1968 If no exceptions are filed to this decision, this will
itself indicate that harmonious relations continue. If, on
the other hand, exceptions are filed, the instant
controversy will be stale long before an order of the
Board, to say nothing of a court decree, would eventuate
in the posting of a notice. In lieu of"a notice, therefore, I
shall recommend that the Company write letters to the
Charging Parties reciting that it will not henceforward
engage in the conduct here found violative of the Act. The
Unions receiving this letter may, if they are so advised,
post it on their bulletin boards or otherwise circulate it
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among their members.
Accordingly, upon the foregoing finding, and
conclusions and upon the entire record , I recommend,
pursuant to Section 10(c) of the Act, issuance of the
following:
ORDER
Respondent Combined Paper Mills, Inc., its officers,
agents, successors, and assigns, shall.
1. Cease and desist from changing the unit of
employees covered by its insurance contract with its
insurance carrier if such change affects the premium
employees pay for the insurance provided for in its
contract with the statutory bargaining representative of its
production employees at the Locks Mill without giving
said statutory bargaining representative notice and an
opportunity to bargain over any such comtemplated
change.
2 Take the following action necessary to effectuate the
policies of the Act.
(a) Write to each of the labor organizations which
jointly represent its Locks Mill production employees the
following letter to be signed by a responsible officer or
supervisor of the Company:
"Pursuant to the provisions of the National Labor
Relations Act, as amended, we hereby advise you that we
will not in the future change the unit of employees covered
by our contract with our insurance carrier, if such change
affects the premiums to be paid for insurance provided
under our contract with your labor organization without
giving your labor organization notice and an opportunity
to bargain over such change."
(b) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.'
'In the event that this Order is adopted by the Board , this provision shall
be modified to read, "Notify said Regional Director , in writing, within 10
days from the date of this Order, what steps the Respondent has taken to
comply herewith."