Graham Paper Company

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1388 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Graham Paper Company, Division of Jim Walter Pa-
per, Inc., and Teamsters Local No. 955, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case 17-CA-8465
September 28, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon charges duly filed by Teamsters Local No.
955, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, hereinafter referred to as the Union, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 17, on
October 12, 1978, issued a complaint and notice of
hearing alleging that Graham Paper Company, Divi-
sion of Jim Walter Paper, Inc., hereinafter referred to
as Respondent, violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, by its un-
timely withdrawal from the multiemployer bargain-
ing unit on August 11, 1978, and by its subsequent
refusal to honor and abide by the collective-bargain-
ing agreement reached on August 25, 1978, covering
all of the multiemployer unit employees.
Respondent filed an answer to the complaint deny-
ing the commission of any unfair labor practices. On
January 18, 22, and 25, 1979, Respondent, the Union,
and counsel for the General Counsel entered into a
stipulation of facts and motion to transfer the pro-
ceedings to the Board, wherein they agreed that the
charge, the complaint, the answer to the complaint,
and the stipulation of facts, including the exhibits at-
tached thereto, shall constitute the entire record
herein, and that no oral testimony is necessary or de-
sired by any of the parties. The parties further stipu-
lated that they waive a hearing before an administra-
tive law judge, the making of findings of fact and
conclusions of law by an administrative law judge,
and the issuance of an administrative law judge's de-
cision, and desire to submit this case for findings of
fact, conclusions of law, and Order directly by the
Board. The parties, however, expressly reserved the
right to object to the materiality or relevance of any
of the stipulated facts.
On March 20, 1979, the Board issued an order ap-
proving the stipulation and transferring the proceed-
ings to the Board, and set a date for the filing of
briefs. Thereafter, Respondent, the Union, and the
General Counsel filed briefs in support of their re-
spective positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire stipulated rec-
ord herein and the briefs submitted by the parties,
and hereby makes the following findings and conclu-
sions:
I. THE BUSINESS OF RESPONDENT
Respondent is a State of Missouri corporation en-
gaged in the distribution of paper products at 100
East 14th Avenue, North Kansas City, Missouri, and
at various other facilities. In the course and conduct
of its business operations, Respondent annually sells
goods and services valued in excess of $50,000 di-
rectly to customers located outside the State of Mis-
souri.
Respondent admits, and we find, that it is an em-
ployer engaged in commerce and in operations affect-
ing commerce within the meaning of Section 2(6) and
(7) of the Act.
II1. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and we find, that Teamsters
Local No. 955, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
The stipulated facts show that the Union and the
Paper Industry of Kansas City, hereinafter called the
Association, have bargained on a multiemployer ba-
sis for in excess of 20 years.' Prior to the June 1,
1978,2 expiration date of the most recent collective-
bargaining agreement, the Union opened contract ne-
gotiations by letter dated March 20 to the then cur-
rently constituted Association, which was comprised
of 14 employer-members3 and their approximately
130 employees in the multiemployer unit. Four bar-
gaining sessions were held between April 27 and May
17, at which time there were eight unresolved eco-
I Despite the absence herein of formal, written constitutional bylaws, pow-
ers of attorney, or other evidence associated with membership in multiem-
ployer associations, Respondent concedes, and we find, that it was a member
of the multiemployer bargaining unit for approximately 20 years and at the
inception of the Association's contract negotiations involved in this case.
2 All dates are in 1978 unless otherwise noted.
The 14 employer-members of the Association included: Berlau Paper
Company. Bermingham & Prosser Paper Company. Butler Paper Company,
H. J. Cole Paper Company, Evans Paper Company, Graham Paper Com-
pany, Midwestern Paper Company, Nationwide Papers, Paper Supply Com-
pany, Standard Paper Company. Tobey Fine Papers, Warwick Paper Com-
pany, Wayne Paper Company, and Weber Paper Company.
245 NLRB No. 180
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GRAHAM PAPER COMPANY
nomic items, including wages. During the May 17
meeting, Ellison, the Association's attorney and chief
negotiator, proposed a final economic offer consisting
of a $1.19-per-hour wage increase over a 3-year pe-
riod. Ellison further agreed to recommend a $1.20-
per-hour increase, 60 cents immediately and 60 cents
after 18 months, in return for the Union's recom-
mended acceptance of the package to its membership,
which the Union agreed to do.
Thereafter, at an association meeting on May 19,
Attorney Ellison secured approval of the $1.20 wage
increase proposal, and obtained the signatures of the
employer representatives on a prepared contract. On
the following day, the Union met to consider the As-
sociation's contract proposal which was rejected by a
vote of 81 to 9, and a strike was authorized by a vote
of 80 to 10 unless a better offer was received. No
further bargaining meetings were held, and, on June
6, the employees commenced an economic strike
against all the Association members. Six of Respon-
dent's warehouse employees4 participated in the
strike.
On June 8, Association member Bermingham &
Prosser Paper Company, hereinafter referred to as B
& P, sent a letter to the Association's attorney, Elli-
son, with copies to all employer-members, advising of
its withdrawal from group negotiations and schedul-
ing of individual bargaining meetings with the Union.
On the same day, the Union consented to B & P's
withdrawal; thereafter, separate contract negotiations
were held, resulting in an agreement on June 26 cov-
ering B & P's 12 to 14 employees.
The Association and the Union met on July 18 to
resume negotiations. The Union proposed a $3-per-
hour wage increase over 3 years, plus cost-of-living
adjustments. When Ellison rejected the Union's pro-
posal, a Federal mediator in attendance inquired as
to the Association's position on a $2-per-hour in-
crease over 3 years. Ellison responded that the em-
ployers would not even consider such a proposal.
Thereupon, the meeting ended without agreement,
and no future meetings were scheduled.
Thereafter, on July 25, Nationwide Papers, herein-
after referred to as Nationwide, gave notice to Ellison
that it was withdrawing from Association bargaining.
The Union again gave its consent, and, following con-
tract negotiations, the Union and Nationwide, on or
about July 31, entered into an agreement covering
Nationwide's approximately 39 to 41 employees.
On August I 11, Respondent notified the Union and
4 The contractual multiemployer bargaining unit description is as follows:
Cutters and slitters, drivers and order fillers. checkers, receivers and
shippers, warehousemen and packers employed by the employer-mem-
bers of the Association, but excluding professional employees. office
clerical employees, guards, and supervisors as defined in the Act.
the Association by two telegrams that it was with-
drawing from the Association, as follows:
[Graham Paper] hereby revokes any power or
authority which the [Association] may have or
claim to have to negotiate and bargain collec-
tively on behalf of Graham .... This revocation
shall be effective immediately.
The second telegram of August 11 reads:
The employees of Graham Paper Co. have
signed and presented to the Company a petition
stating their desire not to join or be represented
by Teamsters Local 955. Because of this employ-
ees' petition, the Company has begun proceed-
ings at the National Labor Relations Board. Un-
der these circumstances, the Company believes
that it cannot and declares that it will not con-
tinue to negotiate with [Teamsters 955] .... 5
On the same day, Respondent filed a representa-
tion petition with the Board in Case 17-RM 625. By
letter dated August 14, the Union refused to consent
to the withdrawal by Respondent.
At approximately the same time as Respondent's
communication of its decisions to withdraw, two
other members, Butler Paper Company and Tobey
Fine Papers, hereinafter referred to as Butler and
Tobey, also notified the Association and the Union of
their decisions to withdraw from multiemployer bar-
gaining. 6 Respondent, at the time of its resignation
from the Association, had knowledge of the with-
drawal by Tobey Fine Papers.
Thereafter, on August 14, a final bargaining meet-
ing was held between the Union and the Association.
The Association's negotiator, Engle, who was substi-
tuting for Ellison, announced that the Association no
longer represented Respondent, Tobey, and Butler,
but that its prior wage proposal of May 17 was still
on the bargaining table. The Union's business agent
attempted to discuss the status of the three compa-
nies, but Engle declined. Finally, at the suggestion of
the Federal mediator, the Union agreed to send a
letter to the approximately 75 remaining unit employ-
ees of the 12 employer-members, including Respon-
An exhibit containing a written statement to this effect and five (out of
eight) employee signatures is included in the parties' stipulation herein.
I Charges were filed in Cases 17-CA-8447 and 17-CA-8466 against Butler
Paper Company and Tobey Fine Papers, respectively, based on their sirmlar
withdrawals from the Association on August 9 and I . respectively. As in the
instant case, each filed a representation petition (Cases 17-RM-623 and 17-
RM-624) in reliance upon letters received from their respective employees.
dated July 31 and August II. respectively, in which they expressed their
desire not to be represented by the Union. Stipulations were entered into by
the respective parties, and these cases were considered concurrently by the
Board, and the Decisions are being issued this date in Butler Paper Corpany.
Division of Great Northern Nekoosa Corporation, 245 NLRB No. 182 (1979);
and Tobey Fine Papers of Kansas City. Division of Distribi.x, Inc.. 245 NLRB
No. 181 (1979).
1389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent, Tobey, and Butler, requesting them to vote by
mail ballot regarding acceptance or rejection of the
Association's 17 wage proposal. On August 25, the
returned ballots were tallied and showed employee
acceptance of the wage offer by a vote of 19 to 12.
Thereupon, the Union and the Association entered
into a collective-bargaining agreement, effective from
September 1, 1978, to June 1, 1981. The terms of the
aforesaid multiemployer agreement differ from those
in the individual contracts executed by B & P and
Nationwide with the Union.
It is admitted that Respondent, since August 14,
1978, has refused to recognize or bargain with the
Union as the bargaining representative of its employ-
ees and, since August 25, 1978, has also refused to
execute or abide by the Association's collective-bar-
gaining agreement.
Discussion and Conclusion
The General Counsel contends that Respondent's
resignation from multiemployer bargaining was un-
timely and ineffective, and that its proffered reason
for withdrawing, i.e., the Union's lack of majority
support among its own employees, was therefore ir-
relevant. Further, he asks us to reject Respondent's
belated assertions that its withdrawal was warranted
by the impasse in contract negotiations, the strike ac-
tion, and the defection by two former Association
members, noting that the aforesaid occurrences nei-
ther corresponded closely in time to Respondent's
August 11 withdrawal notice, nor did they constitute
"unusual circumstances" which could justify an oth-
erwise untimely withdrawal.
The Union contends that its consent to withdraw-
als by B & P and Nationwide did not excuse Respon-
dent's action since the multiemployer unit was not
left fragmented or weakened thereby, as evidenced by
the fact that the Association succeeded in thereafter
winning approval of its same wage proposal which
was earlier rejected by the Union and which in turn
created the original impasse in bargaining. The
Union also points to its own subsequent role in meet-
ing with the Association and in agreeing to resubmit
the wage offer to the unit employees as evidence that
it was not seeking to destroy the viability of the mul-
tiemployer bargaining unit.
Respondent, on the other hand, takes the position
that the combination of circumstances here, including
the Union's consent to withdrawals by two former
Association members and its execution of final, sepa-
rate agreements with them, demonstrates the Union's
own rejection of multiemployer bargaining, and it
should not therefore be permitted in this proceeding
to require reestablishment of the original 14-employer
bargaining unit. It argues that the instant case is
analogous to Connell Typesetting7 wherein the Board
found that consensual employer withdrawals and
separate bargaining had so depleted a multiemployer
bargaining unit that it would be "unfair and harmful
to the collective-bargaining process" not to permit
one or more of the remaining employer-members to
withdraw.8
We find, for the reasons set forth in our decision in
a companion case issued this date, Tobey Fine Papers
of Kansas City, supra, that Respondent's contentions
are lacking in merit, and that its withdrawal from
multiemployer bargaining was untimely and ineffec-
tive. Accordingly, we find that Respondent, by with-
drawing from the Association and by its refusal to
execute or abide by the Association-wide collective-
agreement, has violated Section 8(a)(5) and (1) of the
Act. 9
THE REMEDY
Having found that Respondent has engaged in cer-
tain unfair labor practices, we shall order that it cease
and desist therefrom and take certain affirmative ac-
tion designed to effectuate the purposes of the Act. In
this connection, we shall order that Respondent im-
mediately sign and implement the agreement reached
between the Union and the Paper Industry of Kansas
City, and give retroactive effect thereto as of Septem-
ber , 1978 (The Carvel Company and C and D Plumb-
ing and Heating Company, 226 NLRB 111 (1976)),
and make its employees whole for any loss of earn-
ings suffered since then as a result of its failure to
apply the said agreement. Backpay is to be computed
in accordance with Ogle Protection Service, Inc., 183
NLRB 682 (1970), with interest thereon as prescribed
in Florida Steel Corporation, 231 NLRB 651 (1977).' 0
Nothing herein is to be construed as requiring Re-
spondent to recoup wages or benefits already received
by its employees. Respondent will also be directed to
make payments into the various funds on behalf of
those employees in the unit for whom such contribu-
tions would have been made had Respondent not un-
lawfully repudiated the collective-bargaining agree-
ment. Vin James Plastering Company, 226 NLRB 125
(1976).
Connell Tvpesetting Company, et al., 212 NLRB 918 (1974).
9212 NLRB at 921. There, the unit retained only 13 of 36 employer-
members and 36 of the original 209 employees.
Chairman Fanning would not find that Respondent violated Sec. 8(a)(5)
and (I) as of the time of its withdrawal, adhering to his position in Ringside
Liquors, Inc. d/b/a Dino's Lounge and Cassell & Fnedman, Inc. d/b/a
King of Clubs, 237 NLRB 30, fn. 2 (1978): Independent Association of Steel
Fabricators, Inc., et a., 231 NLRB 264, fn. 2 (1977): and Preston H. Haskell
Company, 238 NLRB 943, fn. 1 (1978).
'°See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
1390
GRAHAM PAPER COMPANY
CONCLUSIONS OF LAW
1. Graham Paper Company, Division of Jim Wal-
ter Paper, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Teamsters Local No. 955, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. Teamsters Local No. 955, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America is, and has
been at all material times herein, the exclusive bar-
gaining representative of the employees of Respon-
dent in the following appropriate unit:
Cutters and slitters, drivers and order fillers,
checkers, receivers and shippers, warehousemen
and packers employed by the employer-members
of the Association, but excluding professional
employees, office clerical employees, guards, and
supervisors as defined in the Act.
4. By its untimely unilateral withdrawal from the
multiemployer unit, and by its subsequent refusal to
sign and implement the collective-bargaining agree-
ment reached between the Union and the Paper In-
dustry of Kansas City on August 25, 1978, effective
September 1, 1978, Respondent has engaged in, and
is engaging in, unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Gra-
ham Paper Company, Division of Jim Walter Paper,
Inc., Kansas City, Missouri, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Teamsters
Local No. 955, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining rep-
resentative of its employees in the appropriate mul-
tiemployer bargaining unit.
(b) Refusing to sign and implement the 1978-81
collective-bargaining agreement reached between the
above-named Union and the Paper Industry of Kan-
sas City with respect to the employees in the appro-
priate unit.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Na-
tional Labor Relations Act, as amended.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Forthwith sign and implement the above-de-
scribed agreement and give retroactive effect thereto
from September 1, 1978.
(b) Make whole its employees in the appropriate
bargaining unit for any loss of pay or other employ-
ment benefits which they may have suffered by rea-
son of its refusal to sign and implement the aforesaid
agreement in the manner set forth in "The Remedy"
section of this Decision.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
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 Kansas City, Missouri, facility copies
of the attached notice marked "Appendix."" Copies
of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order.
what steps Respondent has taken to comply herewith.
1 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board"
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Teamsters Local No. 955, affiliated with In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
as the exclusive bargaining representative of em-
ployees in the appropriate multiemployer bar-
gaining unit, by refusing to sign and implement
the 1978-81 contract between the Union and the
1391
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member-employers of the Paper Industry of
Kansas City.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act,
as amended.
WE WILL forthwith sign and implement the
above-mentioned contract and give retroactive
effect thereto from SeiStember 1, 1978.
WE WILL make whole our employees in the
appropriate bargaining unit for any loss of pay
or other employment benefits they may have suf-
fered by reason of our refusal to sign and to im-
plement the aforesaid collective-bargaining
agreement, with interest.
GRAHAM PAPER COMPANY, DIVISION OF JIM
WALTER PAPER, INC.
1392