Independent Stave Co.

National Labor Relations Board - Board Decisions

Dec 13, 1977

233 N.L.R.B. 1202 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Independent Stave Company, Diversified Industries
Division and Coopers' International Union of
North America, AFL-CIO and its Local Union No.
7. Case 17-CA-7512
December 13, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On September 28, 1977, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, Respondent and Charging
Party filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Independent
Stave Company, Diversified Industries Division,
Lebanon, Missouri, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order except that the attached notice
is substituted for that of the Administrative Law
Judge.2
Both Respondent and Charging Party have excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an Administrative Law Judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Standard
Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3,
1951). We have carefully examined the record and find no basis for
reversing his findings.
2 The Administrative Law Judge failed to conform his notice to his
recommended Order. Therefore we will substitute the attached notice to
remedy that inadvertent omission.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unilaterally modify during its
effective term any collective-bargaining contract
233 NLRB No. 179
entered into between us and the representative of
our employees, nor will we refuse to abide by the
terms or conditions of the contract.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed by
Section 7 of the Act.
WE WILL bargain collectively, on request, with
Coopers' International Union of North America,
AFL-CIO and its Local Union No. 7, as the
exclusive representative of all our employees in
the appropriate unit described below, with respect
to wages, hours, and other terms or conditions of
employment, and embody in a signed agreement
any understanding reached. The appropriate unit
is:
All production, maintenance and machinists
employees at the Lebanon, Missouri, plant,
including quality control inspectors and
shipping department employees, but exclud-
ing office clerical employees, retail store
employees, and professional employees,
guards and supervisors as defined in the Act.
WE WILL withdraw our insistence as a condi-
tion precedent to processing of grievances that
Local Union No. 7 or the International attest,
aver, or otherwise confirm that Local Union No.
7 received no assistance whatsoever from the
International in the processing or handling of
grievances.
INDEPENDENT STAVE
COMPANY, DIVERSIFIED
INDUSTRIES DIVISION
DECISION
STATEMENT OF THE CASE
BERNARD NESS, Administrative Law Judge: Upon a
charge filed by Coopers' International Union of North
America, AFL-CIO and its Local Union No. 7, hereinafter
referred to as the International and Local 7, respectively,
and jointly as the Charging Party, on February 14, 1977,
and amended on April 11, 1977, a complaint dated April
12, 1977, was issued against Independent Stave Company,
Diversified Industries Division, hereinafter referred to as
Respondent. The complaint alleged that Respondent
violated Section 8(a)(i) of the Act by threatening employ-
ees with plant closure and discriminatory recall and that
Respondent violated Section 8(a)(1) and (5) by repudiating
the collective-bargaining agreement by refusing to arbitrate
any grievance until an affidavit was given. In its answer,
Respondent denied the commission of any unfair labor
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INDEPENDENT STAVE COMPANY
practices. Hearing was held before me on June 24, 1977, at
Kansas City, Kansas. Upon the entire record,' including
my observation of the witnesses, and after due consider-
ation of the briefs filed by the General Counsel, Charging
Party, and Respondent, I make the following: 2
FINDINGS OF FACT
I. JURISDICTION
Respondent, Independent Stave Company, Diversified
Industries Division, is a corporation engaged in the
manufacture and wholesale distribution of barrels, with its
principal offices in Lebanon, Missouri. In the course and
conduct of its business operations, Respondent annually
sells products valued in excess of $50,000 directly to
customers outside the State of Missouri. Based on the
foregoing, and as agreed to by the parties, I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Coopers' International Union of North America, AFL-
CIO, and its Local Union No. 7 are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Refusal To Bargain
The International was certified in 1967 as the collective-
bargaining representative of the employees at Respon-
dent's Lebanon, Missouri, plant, in the unit described as
follows:
All production, maintenance and machinists employees
of Respondent, including quality control inspectors and
shipping department employees, but excluding office
clerical employees, retail store employees, and profes-
sional employees, guards and supervisors, as defined in
the Act.3
Three collective-bargaining contracts have been consum-
mated since the Board certification. Each has been of 3
years' duration and each has included Local 7 as a party to
the contract, as well as the International. The current
contract is effective from November 4, 1974, through
November 3, 1977.
The current contract includes in the grievance and
arbitration provision (art. XX) the following sentence:
"The processing of grievances and arbitrations shall be
solely handled by the Local Union" (sec. 3). This particular
sentence was not included in the prior contracts and has
given rise to the instant proceeding. Respondent has
Errors in the transcript have been noted and corrected.
2 Respondent filed a posthearing motion for an order dismissing the
complaint or alternatively for an order requiring copies of exhibits to be
provided by the General Counsel. That motion is hereby denied. There is no
showing by Respondent that it has been hampered or prejudiced in any
material manner in the preparation of its bnef because of not having been
furnished copies of the exhibits. Further, the General Counsel was under no
obligation to provide the exhibits requested, said exhibits having been
refused to agree to arbitrate grievances until it first receives
an affidavit from Local 7 giving assurances in the manner
more fully described below that the International has not
assisted the Local in the grievances involved.
In 1975, eight grievances were filed to which Respon-
dent's president, J.E. Boswell, responded there was no basis
for the grievances nor was there anything basic to arbitrate.
The Charging Party thereafter filed an action in the U.S.
District Court of Missouri, Southern Division, to compel
arbitration of the grievances. The parties thereafter reached
an agreement whereby, inter alia, five of the grievances
were to go to arbitration. One was processed through
arbitration.4 Local 7's president, Jean Lundblade, thereaf-
ter continued to press Boswell for selection of an arbitrator
on two of the other grievances.5 By letter dated September
23, 1976, Boswell stated, "The matter is in litigation for the
court to decide." Thereafter, the Charging Party, on
January 4, 1977, again amended its complaint in the
district court, renewing its request to arbitrate the two
grievances and for enforcement of the arbitrator's award in
the one grievance which had been arbitrated. On August
27, 1976, Respondent filed a petition for a declaratory
judgment in the Laclede County, Missouri, Circuit Court,
regarding the question whether the International could
furnish aid and assistance to Local 7 under the contract. In
February, 1977, the Respondent filed an action in the U.S.
District Court, Western District of Kentucky at Louisville,
seeking an injunction against the International from
participating in processing of grievances in violation of the
contract.
In the latter part of 1976, two additional grievances were
filed concerning employees Riley and Gladden. In late
December, Lundblade met with Plant Manager Dillard
and Assistant Production Manager Kirby Hertel to discuss
the grievances. They were not resolved. By letter dated
January 12, 1977, Boswell informed Lundblade he denied
the Gladden grievance and said he was ready to go to
arbitration if she desired. By letter dated January 15,
Lundblade informed Boswell she was ready to meet with
him to select arbitrators for the Riley and Gladden
grievances. They met on February 3 and Raymond
Roberts was selected as the arbitrator. On this same date
Boswell wrote to Roberts. The letter contained the demand
which formed the basis for the unfair labor practice alleged
in this proceeding. In pertinent part, the letter reads:
Background for this letter is as follows: A few years
back, Diversified Industries Division suffered severe
financial losses, which were primarily attributable to
lack of employee discipline brought about by layer
upon layer of petty grievances aggravated and financed
by the Coopers' International Union with whom Local
7 is affiliated. Hoping the cause would be corrected, a
condition of the company signing the current contract
introduced at the heanng by Respondent and/or the Charging Party. The
July 13, 1977, letter from Respondent's counsel to the General Counsel was
in the nature of a request and not a demand for the exhibits. Finally, the
General Counsel has now provided Respondent with the exhibits.
3 Case 17-RC-5443.
4 Arbitrator Vickery ordered backpay to three employees.
5 The remaining two were dropped by Local 7.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was the matter of grievances and arbitrations be solely
handled by the local union. This is stated in the last
sentence of Section 3, Page 15, which states, "The
processing of grievances and arbitrations shall be solely
handled by the Local Union." We have proof that both
the Local 7 and the Coopers' International Union have
violated that part of the current contract by using the
law firm of Gruenberg and Souders in St. Louis. Suits
are pending against Local 7 and the Coopers' Interna-
tional Union seeking relief and damages caused by
their violating of that part of the contract.
We want the arbitration you will conduct to be strictly
to the letter of the contract. To insure the arbitration is
solely handled and financed by Local 7, I do not feel it
is out of order to request those representing Local 7 and
the officers of Local 7 to sign an affidavit stating the
Coopers' International Union has not instructed,
conferred, employed, paid or guaranteed payment, or
in any direct or indirect way entered into the pursuit of
this grievance. Also, that all the work and expenses
occurring from the grievance and arbitration is born
[sic] solely by Local 7.
Souders, as counsel for Local 7, advised the arbitrator and
Respondent that Local 7 was prepared to meet Respon-
dent's "defense" to the grievance as part of the arbitration
hearing. The arbitrator proposed to the parties a two-stage
hearing, the first step being the issue of arbitrability,
including the issue of any conditions precedent for the
grievance to be heard on the merits. Respondent rejected
the arbitrator's proposal and continued to demand the
affidavit before it would agree to arbitrate the grievance.
Discussion
The General Counsel contends Respondent has repudi-
ated the contract in violation of Section 8(a)(5) of the Act
by requiring that Local 7 submit an affidavit as a condition
precedent to arbitration. He argues that the condition set
by Respondent constitutes a unilateral mid-term modifica-
tion of the contract. The Charging Party contends that the
record establishes that Local 7 indeed has complied with
the section of the contract in dispute and that the
processing of grievances has been handled solely by Local
7. He argues further that Respondent cannot unilaterally
add conditions precedent to processing arbitrations. Re-
spondent contends that because it has in good faith
believed the International was violating the clause, it had a
right to seek to enforce the limitation clause of the
agreement. He argues that a question is involved of
contract interpretation or enforcement and that it is for the
courts to deal with such issues. Respondent further
contends that, even if the Board were to interpret the
clause in question, the evidence establishes that the
International and Local 7 have breached this clause and
sought to coerce Respondent to arbitrate cases in a manner
other than as expressly agreed upon under the limitation
clause referred to.
The record shows that Respondent may have believed
the International was involved in the processing or
handling of grievances because a member of Souders' law
firm represented Local 7 in one of the earlier arbitration
cases. Souders is general counsel for the International. But,
as he testified, his firm also represents several locals of this
same International.6 In any event, the record shows that
when the firm represents a local the legal fees are paid from
what is termed the "defense fund." The revenues for this
fund are derived from moneys paid into it by amalgamated
locals. 7 The fund is separately maintained by the Interna-
tional for the use of the locals involved and for specific
expenses, e.g., legal fees, arbitration costs, strike benefits.
When a local incurs an expense payable from the fund, the
bill is sent to the International and checks are then signed
by the International covering the expense incurred. Such
checks are drawn from the fund. It is thus clear that the
International is not bearing the expense of legal or
arbitration fees in the handling or processing of grievances.
Souders, himself, testified that the law firm was paid from
the defense fund for representing Local 7 in the Vickery
arbitration case.
To repeat, the contractual provision in the contract reads
as follows: "The processing of grievances and arbitrations
shall be solely handled by the Local Union." In my view
the language is clear and unambiguous. I am also
convinced that, when Respondent demanded the assuranc-
es in an affidavit from Local 7 as a condition precedent to
arbitration, it modified the contractual grievance proce-
dure of the contract and effectively blocked Local 7 from
utilizing the grievance procedure unless and until it waived
its rights as a bargaining representative. Indeed, the
International as well would be relinquishing its rights and
obligations as a bargaining representative were it fore-
closed as Respondent demanded. The International and
Local 7 were both parties to the contract as the bargaining
representative of the bargaining unit employees. Without a
doubt, Local 7 was free to consult or to confer with the
International on the advisability of filing a grievance or
how best to process a grievance, despite the language of the
contractual provision. This would be equally true even if
the International were not a party to the contract, which it
was. To insist as a condition precedent to processing
grievances that Local 7 submit an affidavit that it is not
doing what it is permitted to do under the contract and
under the statute is a unilateral and significant change in
the grievance procedure provisions of the contract.
I find that by insisting upon the affidavit from Local 7 as
set forth in its February 3, 1977, letter, Respondent
unilaterally created a condition to the future processing of
grievances which effectively amounted to a unilateral
modification of the contract in mid-term in violation of
Sections 8(d) and 8(a)(5) of the Act.
Contrary to Respondent's contention that Respondent's
conduct may have at best constituted a breach of contract,
the law is settled that, where conduct is of a kind
condemned by the Act, it is not ruled out as an unfair labor
practice simply because it also happens to be a breach of
contract. The Board has the power to proscribe conduct
7 Local 7, a participant, has about 44 members.
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s Such practice is not uncommon.
INDEPENDENT STAVE COMPANY
which is an unfair labor practice even though it is also a
breach of contract remediable as such by arbitration and in
the courts.8
B. The Alleged Threat of Plant Closure and
Discriminatory Recall
The complaint alleged that Respondent, through Connie
Dillard, its production manager and admitted supervisor,
threatened employees on February 18, 1977, with plant
closure and discriminatory recall because of their union
sympathies.
Carolyn Eaton, a sander for the past 5 years, was called
as a witness for the General Counsel in support of this
allegation. She testified that Respondent has been having
difficulties with production and on February 18 Dillard
told her she could not understand why Eaton was having
trouble with her production and that Gladys Bailey, who
worked nearby also as a sander, did not seem to experience
any problems in meeting production requirements. Eaton
responded she was having headaches and had a nosebleed.
According to Eaton, Dillard then said that if union
members did not quit griping and complaining she would
close the plant down and would then rehire only nonunion
employees, that all union members did was gripe and
complain and cause trouble in the working area.
Dillard had been production manager since March 1975,
and at one time had been Local 7's president. She recalled
having a conversation with Eaton about production. Her
version of the conversation is substantially different. She
testified that Eaton constantly complained about the
quality of the bowls she had to sand. She told Eaton the
bowls were not that bad and that Bailey managed to meet
her quota and Eaton should be able to do the same. Dillard
further told her that if Respondent could not produce its
goal of bowls it might as well shut down. She denied even
mentioning the word "union" or getting rid of members.
I credit Dillard's account of the conversation. Gladys
Bailey was, at the time of the hearing, Local 7's vice
president and, according to the testimony, was present
during the conversation between Dillard and Eaton. She
was not called as a witness to corroborate Eaton's
testimony. It is hardly likely that Dillard would make the
statement attributed to her in the presence of Bailey.
Moreover, it is improbable that Dillard would speak well of
Bailey's production and in the next breath speak of getting
rid of all the union members because they were affecting
production with their gripes. This would have included
Bailey as well as all the other union members. It should be
noted, too, that the contract contained a union-security
clause whereby all the employees would have been
members. I find that the credited testimony does not
support this allegation of the complaint and is accordingly
dismissed.
s N. L R.B. v. Joseph T. Strong, d/b/a Strong Roofing and Insulating Co.,
393 U.S. 357 (1969); N.L. R.B. v. C & C Plywood Corporation 385 U.S. 421
(1967).
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
CONCLUSIONS OF LAW
I. All production, maintenance, and machinists em-
ployees of Respondent at its Lebanon, Missouri, plant,
including quality control inspectors and shipping depart-
ment employees, but excluding office clerical employees,
retail store employees, and professional employees, guards
and supervisors, as defined in the Act, constitute a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
2. At all times material herein, Coopers' International
Union of North America, AFL-CIO and its Local Union
No. 7, have been, and are now, the exclusive representative
of the employees in the aforesaid unit for the purpose of
collective bargaining within the meaning of Section 9(a) of
the Act.
3. By refusing to bargain by unilaterally modifying the
collective-bargaining agreement in derogation of its bar-
gaining obligation under Section 8(d) of the Act, as above
found, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(aX5)
and (I) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
5. Except for the foregoing, Respondent has committed
no other unfair labor practices under the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 9
The Respondent, Independent Stave Company, Diversi-
fied Industries Division, Lebanon, Missouri, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with Coopers'
International Union of North America, AFL-CIO and its
Local Union No. 7, as the exclusive bargaining representa-
tive of the employees in the aforesaid appropriate unit, by
unilaterally modifying the terms of any collective-bargain-
ing agreement entered into with the bargaining representa-
tive of its employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Bargain in good faith, upon request, with Coopers'
International Union of North America, AFL-CIO and its
Local Union No. 7, as the exclusive representative of the
employees in the aforesaid appropriate unit, concerning
wages, hours, and other terms or conditions of employ-
ment, and embody in a signed agreement any understand-
ing reached.
(b) Withdraw its insistence as a condition precedent to
the processing of grievances that Local 7 or the Interna-
tional attest, aver, or otherwise confirm that Local 7 has
received no assistance whatsoever from the International in
the processing or handling of grievances.
(c) Post at its place of business in Lebanon, Missouri,
copies of the attached notice marked "Appendix." 0
10 In the event that the Board's 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
Copies of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and shall 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
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) 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.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
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