International Paper Co.

National Labor Relations Board - Board Decisions

Jan 26, 1965

150 N.L.R.B. 1252 (N.L.R.B. 1965)

1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the aforementioned or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in'or to refrain from
engaging in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
All our employees are free to become or remain , or to refrain from becoming or
remaining , members of any labor organization.
EAST TEXAS STEEL CASTING COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ^ (Title)
This notice must remain posted for 60 consecutive days from the date of posting, and
must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, Sixth Floor,
Meacham Building , 110 West Fifth Street, Fort Worth, Texas, Telephone No. Edison
5-4211, Extension 2131, if they have any question concerning this notice or com-
pliance with its provisions.
International Paper Company and Local No. 2, International
Union of Operating Engineers, AFL-CIO. Case No. 14-CA-
3300. January 26, 1965
DECISION AND ORDER
On October 28, 1964, Trial Examiner James F. Foley issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent and Intervenor, International
Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO,
filed exceptions to the Trial Examiner's Decision and supporting
briefs.'
• Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman Mc-
Culloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the briefs, and the entire
record in the 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 Board hereby adopts as its Order the Order recom-
1 Respondent and Intervenor have requested oral argument . These requests are hereby
denied because the record , exceptions , and briefs adequately present the Issues and posi-
tions of the parties.
150 NLRB No. 122.
INTERNATIONAL PAPER COMPANY 1253
mended by the Trial Examiner, and orders that Respondent Inter-
national Paper Company, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order .2
2 The Trial Examiner recommended that Respondent be required to reimburse the
boilerroom firemen for all initiation fees, dues, and other moneys exacted from them in
favor of the Intervenor. The Remedy and paragraph 2(b) of the Recommended Order
are hereby clarified to specifically exclude Jose Palacious from this reimbursement rec-
ommendation as it appears that he was a member of the Intervenor prior to Respond-
ent's conduct herein found unlawful, and there is no evidence that he was coerced into
retaining this membership.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was brought under Section 10(b) of the National Labor Relations Act, as
amended (61 Stat. 136, 73 Stat. 519), herein called the Act, on a charge filed on
February 27, 1964, and amended on May 19, 1964, against Respondent International
Paper Company (herein called Respondent), by Local No. 2, International Union of
Operating Engineers, AFL-CIO (herein called Operating Engineers). On May 26,
1964, the General Counsel of the National Labor Relations Board issued a complaint
against Respondent, alleging therein that it had violated Section 8(a)(1), (2), and
(5) of the Act. By answer filed June 8, 1964, Respondent denied these allegations.
A hearing in the case was held before Trial Examiner James F. Foley on June 22, 1964.
General Counsel, Respondent, Charging Party, and Intervenor Local 535, Interna-
tional Brotherhood of Pulp, Sulphite -and Paper Mill Workers, AFL-CIO (herein
called Paper Workers), were represented at the hearing and were afforded opportunity
to offer evidence, make oral argument, and file briefs. General Counsel and Respond-
ent filed briefs after the close of the hearing.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation with its principal office and place of business
in New York City, and with plants located in various parts of the United States,
including St. Louis and north St. Louis County, annually ships products and other
goods valued in excess of $50,000 to points in States outside the State of Missouri from
its plants in St. Louis and north St. Louis County. I find that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act, and that assumption
of jurisdiction will effectuate the purposes of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
The Operating Engineers and the Paper Workers are labor organizations within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issue
The issue here is whether Respondent by recognizing, bargaining with, and checking
off dues for, Paper Workers as collective-bargaining representative of the boilerroom
employees at its plant in north St. Louis County, Missouri, instead of recognizing and
bargaining with Operating Engineers as the collective-bargaining representative of
these employees violated Sections 8(a) (1), (2), and (5) of the Act.
B. The evidence
For a number of years Respondent operated a plant (herein called the south plant)
at 7901 Michigan Street, in the southern part of the city of St. Louis. The south plant
had from 130 to 200 employees. All of the rank-and-file employees with the excep-
tion of the three employees who ran the boilerroom were represented by the Paper
Workers. The three boilerroom employees, as an appropriate unit, were represented
by the Operating Engineers, and were members of that labor union.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first collective-bargaining contract between Respondent and Operating Engi-
neers for the three boilerroom employees in the south plant was effective in February
1955. Other collective-bargaining contracts followed. The two most recent ones
were for the periods July 1, 1962, to June 30, 1963, and July 1, 1963, to June 30, 1965.
These two contracts stated that "The employer [Respondent] recognizes the Union
[Operating Engineers] as the sole collective bargaining agency for the employees in
the plant boiler room excluding supervisors." 1
In 1961 Respondent built a new-plant (herein called the north plant) at 1285 Dunn
Road in north St. Louis County, outside the city limits. It was opened in the latter
part of 1961, and until February 1964 manufactured sheet paper only. For this kind
of operation, a corrugator was not required, and, therefore, neither was a high-pressure
boiler, which furnishes steam for a corrugator. While low-presssure boilers were
installed for heating and other purposes, the evidence does not show who operated
them. Apparently, members of Paper Workers did. In any event, members of
Operating Engineers did not.
All the employees of the north plant, with the exception of supervisory, professional,
office, clerical, and guard personnel, were represented by Paper Workers. The
collective-bargaining contract effective July 1, 1963, through June 30, 1965, between
Respondent and Paper Workers was for a multiunit of all employees of Respondent
"inside and outside" its plants in Kansas City, Kansas, Wooster, Ohio, the south plant
in St. Louis, Missouri, and the north plant in north St. Louis County, Missouri. The
above classifications of employees were excepted as were the licensed stationary
engineers who operated the boilerroom at the south plant, identified in the contract as
the "Firemen in the plant located at 7901 Michigan Avenue, St. Louis, Missouri."
In December 1963 Respondent began the installation of a high-pressure steam boiler
at the north plant. It was completed in early February 1964, run for a few days in a
shakedown operation by employees of the manufacturer who installed it, and then on
February 7, 1964, taken over and operated by Respondent. Respondent had available
a corrugator to which the steam from the high-pressure boiler was furnished. The
evidence does not show whether it was installed at the same time as the high-pressure
boiler or prior to that time.2
The high-pressure steam boiler at the north plant has been operated since Febru-
ary 7, 1964, by two of the three stationary engineers at the south plant-called firemen
at the north plant-and an additional employee by the name of Jose Palacious.
Charles H. Ferrell and Charles Bryant are the employees formerly at the south plant.
They are identified along with Palacious at the north plant as "firemen" as they do not
come under the St. Louis city ordinance at that location. Respondent had employed
Ferrell approximately 5 years, and Bryant approximately 31/2 years. Ferrell finished
work at the south plant on Monday, February 3. On that day, he was told by Super-
intendent Cheatham of both the north and south plants to report at the north plant the
next morning. He complied with the-instructions.' Bryant finished work at the south
plant on Friday, February 14. He was told by Cheathem to report for work at the
north plant on Monday, February 17. He complied with these instructions. James V.
1 The parties stipulated the following facts regarding the bollerroom employees in the
south plant: The boilerroom was separate from the rest of the plant, there was a separate
bulletin board, logbook, and lockers for boilerroom employees, all located in the boilerroom ;
boilerroom employees worked only in the bollerroom, and did not work elsewhere in the
plant ; they were responsible only to Plant Superintendent Claude Cheatham ; they
operated equipment in the boilerroom consisting of one high-pressure boiler, two low-
pressure boilers, one air compressor, and a hot feeder, and also operated a handfed water
softener located just outside the door of the boilerroom ; the high-pressure boiler which
used water, first softened chemically, was necessary to the operation of the corrugator,
a piece of equipment in the South St. Louis plant, for corrugating paper ; the bollerroom
operation, like the corrugator, was a continuous operation with one man on each of the
three shifts ; boilerroom employees doubled up on vacation, and if one was sick the other
two covered his shift ; the boilerroom employees were not trained to do production work,
and had separate seniority from the rest of the plant employees ; each of the three boiler-
room employees was licensed as operating engineer as required by the licensing ordinance
of the city of St. Louis.
2 All parties and the Intervenor stipulated that since the high-pressure steam boiler
at the north plant began operating on February 7, 1964, the equipment in the boiler-
room of the north plant has been the same as the equipment of the south plant boiler-
room, except that it is newer,and a little more complicated, It was also stipulated that
the duties of the boilerroom employees at the north plant have been the same as the
duties of the bollerroom employees at the south plant.
INTERNATIONAL PAPER COMPANY 1255
Tatom, the third stationary engineer at the south plant, did not transfer to the north
plant . He had elected to stay at the south plant and assist in closing it down and
placing it on a standby basis ( discussed infra), and then seek employment elsewhere.
Palacious holds the fireman position at the north plant that Tatom would have held
had he elected to go there.
Both the high -pressure steam boiler and the corrugator were operated for a 16-hour
shift from February 7 until February 17. Shortly after Bryant started work at the'
north plant on February 17, the high-pressure steam boiler and the corrugator were
placed on a 24-hour operation . Ferrell and Bryant each worked a 12-hour shift
There were three 8-hour shifts for the corrugator. One operator came to the north
plant from the south plant when Ferrell did, and one of the other operators made the
change shortly after Bryant came to the north plant. The third corrugator job was
also filled with a new employee as the third operator at the south plant, like Tatom,
elected to find employment elsewhere . The third corrugator job was filled before
the third job on the high-pressure boiler was , as it was on three 8 -hour shifts for a
short time when the high-pressure boiler still had two 12-hour shifts. Jose Palacious,
the third fireman at the north plant, worked with Ferrell and Bryant on their shifts
and then took over an 8-hour shift . This placed the high-pressure boiler operation on
three shifts like the corrugator operation. The evidence does.not show the date Jose
Palacious began work or when he began working an 8-hour shift. The' boilerroom
duties were the same at the north plant as they were at the south plant.
The high-pressure steam boiler and the corrugator at the south plant were operated
for a few days after Bryant transferred to the north plant. Tatom operated the boiler,
while the employee operating the corrugator, who, like Tatom, did not make the
transfer to the north plant, operated the corrugator. The other employees of the south
plant began leaving about the time Ferrell began working at the north plant on Febru-
ary 7. The evidence does not show whether the other employees transferred to the
north plant, although it appears they did. They were all gone from the south plant a
few days after Bryant began working at the north plant on February 17. There
remained only Tatom, a watchman, and a third person who came in occasionally to
pick up paper and clean . About the middle of April 1964, Respondent disconnected
the corrugator and shipped it to some destination in railroad boxcars. Tatom left
the south plant and Respondent's employment on April 28, 1964, after shutting off all
the equipment in the boilerroom, and placing it in a standby position.
On February 21, 1964, Art Kahn, secretary of Paper Workers, told Ferrell he would
have to have an initiation fee and a month's dues for the Paper Workers. Ferrell gave
him a check in this amount on February 22, 1964. Three days later he signed a
checkoff authorization card and gave it to Gil Wagner, president of Paper Workers.
The first deduction was in April 1964. Ferrell, who was shop steward for Operating
Engineers at the south plant, has paid dues and other fees to Paper Workers since that
time , and Respondent has checked off his dues since April 1964. On February 22,
1964, Art Kahn made the same demand on Bryant. Bryant gave him the money on
Monday, February 23, 1964. Kahn told him he would have to sign a checkoff
authorization but he refused as Ferrell had told him not to sign it. However, he signed
the authorization on the evening of Tuesday, February 24. when he found Ferrell was
signing one . Bryant has paid dues and fees to Paper Workers since that time.
Respondent began deducting his Paper Workers dues in the first week of April 1964.
In December 1963 Ferrell had a conversation with Superintendent Cheatham
regarding his employment at the north plant.3 He asked Ferrell if he would work at
the north plant if it could be worked out. He said there would be an argument over
the labor contract, but he hoped he would go, and that the question whether the
Operating Engineers or the Paper Workers would represent the firemen would be
settled before then. Ferrell told Cheatham he would work at the north plant When
Cheatham told Ferrell on February 3, 1964, to report the next day to the north plant
he said he would have to go there under the Paper Workers contract until the matter
was settled. When Cheatham talked to Ferrell in December 1963, he also said to him
that wages, hours, and working conditions at the north plant would be the same as
they were at the south plant.
Shortly before Ferrell went to the north plant on February 4, 1964, Cheatham
telephoned Bryant at his home. He had a lengthy conversation with him about a
transfer to the north plant . Bryant's recollection at the hearing was that Cheatham
3 Claude Cheatham was superintendent of the south plant, and remained in that position
after the north plant was opened When the north plant was first opened, it had another
superintendent Shortly before the south plant was closed, Cheatham became super-
intendent of both plants After the south plant was closed, Cheatham remained as
superintendent of the north plant.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said experienced operators were needed to place the north plant in operation ; that there
was a discussion about the question of whether the Operating Engineers or the Paper
Workers would represent the firemen; and that Cheatham said that it looked to him
like the Paper Workers had a legitimate contract, but that he would go to the north
plant under the same working conditions until the labor dispute was settled. He did
not recall whether Cheatham told him what labor union would represent him.
Cheatham asked Bryant if it made any difference what labor union represented him,
and Bryant replied that it did make a difference, that he preferred Operating Engi-
neers. He told Cheatham he would work at the north plant until the matter was
settled. Bryant testified that at the time of the transfer it was his understanding that
both the Operating Engineers and the Paper Workers claimed the right to represent the
firemen at the north plant, and that they would work there until the matter was worked
out. When Cheatham talked to Bryant on February 14 about the north plant, he
merely instructed him to report there for work on February 17.
When Ferrell and Bryant moved to the north plant from the south plant they were
not required to sign any forms and were not told they had to sign any forms. They
punched timeclocks at both plants. Ferrell's clock number is the same at the north
plant as it was at the south plant . Bryant's number was changed about a month be-
fore he moved to the north plant . He has retained the new number at the north plant.
Ferrell's home is 7 miles from the south plant and 14 miles from the north plant. He .
drives to the south plant in 15 minutes and drives to the north plant in 34 minutes.
Bryant 's home is 6 miles from the south plant and 18 miles for the north plant. He
drove to the south plant in 15 minutes and drives to the north plant in 45 minutes.
General Counsel offered the evidence that the Respondent as the payer on wage
checks for work at the north plant has the same identification that it had on checks as
payer for work at the south plant, that the gross amount of a check that Bryant
received while working at the north plant included an adjustment for work at the south
plant, and that the vacation check he received at the north plant was based in part on
seniority he gained at the south plant .4
When the construction of the north plant was announced in 1961, Vergil D. Belfi,
business representative of Operating Engineers, had a conversation regarding the
representation of the boilerroom employees with an official of the south plant who was
either a gentleman by the name of Sterns, Bullock, or Claude Cheatham.5 He was
informed that he would not be interested in representing the boilerroom employees
to be employed there as the plant was intended to make sheet paper only.6 The north
plant was placed in operation in July 1961. After operations began, Belfi talked by
telephone to Respondent 's Division Representative Holland, in the industrial rela-
tions department, who was located at Respondent's office in Whippany, New Jersey.
He told him that he was interested in having engineers in the boilerroom at the north
plant regardless of pressure . Holland assured Belfi that the heating process at the
north plant was for making sheet paper only, and he would not be interested. In the
contract proposals Belfi sent to Respondent preparatory to negotiation of a contract in
the fall of 1961, he included a proposal that the contract for the south plant be
extended to cover the north plant. He was assured by Kittle, chief of the industrial
relations department , and Holland , who represented Respondent in the negotiations
which began on October 27, 1961, that the north plant was a sheet plant only, and
that the corrugation operation would be retained at the south plant Belfi thereupon
signed the contract that was executed on December 7, 1961, for the period July 1,
1961, to June 30, 1962. It was limited to the boilerroom employees at the south plant.
Contract negotiations were again conducted in July 1962. Belli included in the con-
tract proposals he submitted to Respondent a proposal that any contract negotiated
provide that it would apply to the north plant if the south plant boilerroom operation
was moved to the north plant. On July 3, 1962, Superintendent Bullock and General
4 Respondent contends , however , that Ferrell and Bryant were new employees when
they moved to the north plant , and that it merely made a policy decision to recognize
the seniority they gained at the south plant in determining the amount of fringe benefits
they would receive.
5 Bullock was superintendent of the south plant at the time Claude Cheatham was
general foreman of the south plant. He later became superintendent of the south plant
O According to Belfi, a sheet paper plant obtains the corrugated paper from another
plant, cuts it up, and makes boxes from it In this type of plant, only space heaters,
unit heaters, or low-pressure boilers are required , and it would be economically unsound
to employ engineers to operate this equipment. The making of corrugated paper requires
a high -pressure boiler to furnish steam to the corrugator , air compressors , and special
pumps , and more experienced personnel to operate them. The south plant was a com-
plete operation. It made the corrugated paper and the sheet paper.
INTERNATIONAL PAPER COMPANY 1257
Foreman Cheatham assured Belfi that such a transfer was not contemplated. A con-
tract was executed on December 26, 1962, for the period July 1, 1962, to June 30,
1963. It applied to the boilerroom operation at the south plant only.
On May 8, 1963, Belfi sent proposals to be discussed at the 1963 negotiations to
Industrial Relations Department Representative Holland in Whippany, New Jersey.
They were referred to Bradley H. Benham who had taken over. Holland's position.
Item No. 9 provided for extension of the contract to the north plant in the event of the
transfer of the south plant boilerroom operation to the north plant. About June 7,
1963, Belfi informed Cheatham, who was then superintendent at the south plant, he
had heard that the high-pressure boiler operation was to be moved to the north plant,
and that he wanted to hear from New York by the following Monday what Respond-
ent intended to do. Benham telephoned him on Tuesday, June 11, 1963, from Glen
Falls, New York, where he was on a business trip, and told him that he would let him
know later. Sometime later in the month of June, Benham told Belfi through
Cheatham that members of Operating Engineers would be used at the north plant if
the high-pressure boiler operation was moved there from the south plant. Belfi told
officials of Respondent he would not send engineers to the north plant to become
members of another labor organization. The contract effective for the period July 1, -
1963, through June 30, 1965, was negotiated in St. Louis around September 1, 1963,
between Belfi and Benham. It was executed in December 1963. Like the prior con-
tracts it applied to the south plant only.
I credit Belfi's testimony that during the negotiations of the Operating Engineers
contract in September 1963, he did- not know a definite decision had been reached
to install high-pressure boilers at the north plant or that they were being installed,
or were to be installed there, and that he endeavored to have Benham accept item 9
of his contract proposals that provided,, for recognition of Operating Engineers as
representative of boilerroom employees if the south plant boilerroom operation was
moved to the north plant. I also credit Belfi's testimony that while he did not see
the 1963-65 contract which had been negotiated between Respondent and Paper
Workers, he knew it was identical with the prior contracts between Respondent and
the Paper Workers in that it excluded_ firemen or stationary engineers at the south
plant, but had no exclusion provision relating to firemen or engineers at the north
plant. I credit his testimony, contrary to Benham's that the latter did not state that
Respondent refused to recognize Operating Engineers as representative of boilerroom
employees to be employed at the north plant because of the then recently executed
contract between Paper Workers and Respondent, or that if the engineers or firemen
went from the south plant to the north plant they would be under the Paper Workers
contract at the latter plant. I also credit Belfi's testimony, contrary to Benham's, that
.the latter did not read to him the provisions of the Paper Workers contract which
Respondent claimed bound it to recognize Paper Workers as the bargaining repre-
sentative of any firemen that would be employed at the north plant. Benham did not
change the impression he had given Belfi earlier through Cheatham that members
of Operating Engineers would be used at the north plant as firemen if a high-pressure
boiler operation was installed.
In early August 1963, Benham, on behalf of Respondent, and representatives of
Paper Workers had negotiated the multiunit agreement for the period July 1, 1963,
to June 30, 1965, that applied to Respondent's plants in Kansas City, Kansas, Wooster,
Ohio, and the north and south plants in north St. Louis County and St. Louis, respec-
tively. The contract was executed sometime in August 1963. Like the prior con-
tracts between Respondent and Paper Workers, it applied to workers inside and
outside the plant excluding office clerical, professional; supervisory, and guard
personnel, and firemen or stationary engineers at the south plant. As stated supra, as
in the case of the prior contracts between. Respondent and Paper Workers, firemen at
the north plant were not excluded?
The omission of this exclusion, even with the provision in the contract that the con-
tract covered all employees inside and outside the plant, did not appear to be significant
at the time of its negotiation and execution, or at the time the 1963-65 contract of
Operating Engineers was negotiated and executed, since there were neither a high-
pressure boiler system nor firemen at the north plant. However, Respondent has relied on
it to justify the operation on and after February 7, 1964, of the newly installed high-
pressure boiler system at the north plant, with firemen under the Paper Workers' con-
tract and as members of Paper Workers, who had operated the high-pressure system at
the south plant, until shortly before it was closed, under the Operating Engineers contract,
and as members of Operating Engineers..
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In January 1964 a memorandum of agreement was negotiated at Toledo, Ohio,
between Benham for Respondent and representatives of Paper Workers, providing
job classifications and rates of pay for head fireman and fireman at the north plant.
A rate of $3.11 per hour was established for head fireman to be effective February 3,
1964, and a rate of $3.21 per hour was established for the same classification to be
effective July 1, 1964. A rate of $2.91 per hour was established for fireman to be
effective February 3, 1964, and a rate of $3 per hour was established for the same
classification to be effective July 1, 1964. The $3.11 and $3.21 rates are identical
with the $3.11 and $3.21 rates, effective July 1, 1963, and July 1, 1964, respectively,
for- "Engineer Leaderman-1st shift," contained in the 1963-65 contract Respondent
executed with Operating Engineers for the south plant. The $2.91 and $3 rates are
identical with the $2.91 and $3 rates, effective July 1, 1963, and July 1, 1964, for
"Engineer Leaderman-1st shift [and] 2nd shift," also contained in the 1963-65
Operating Engineers contract for the south plant.
Respondent's personnel typed the final draft of the agreement. Benham signed it
in New York City on February 3, 1964, and sent it.to Paper Workers. It was signed
by Paper Workers' representatives as of February 3, 1964. During the negotiations
in January, Benham asked the Paper Workers' representatives if they would be per-
mitted to employ Ferrell and Bryant at the north plant because of their employment
at the south plant, and their fulfillment of eligibility requirements for group insur-
ance, vacations, and other fringe benefits. The Paper Workers gave Benham the
permission requested.
On February 3, 1964, the newly installed high-pressure boiler system at the north
plant was being run by representatives of the manufacturer. As previously stated,
Ferrell from the south plant began operating -it on February 7, 1964, on a 16-hour
shift, and he and Bryant, also from the south plant, began operating it on two 12-hour
shifts on February 18, 1964. They were joined a short time later by employee Jose
Palacious, who eventually worked an 8-hour shift, and thereby permitted Ferrell and
Bryant to reduce their hours from 12 to 8.
Belli learned in late December 1963 or early January 1964 that a high-pressure
boiler system was being installed at the north plant. In early February 1964, he went
to the north plant and had a conversation with Superintendent Cheatham. Cheatham
asked him if he would permit engineers to man the boilerroom at the north plant.
Belfi said he would, and asked Cheatham who of his members were "going out there,
when and how," and Cheatham answered that he did not know. On February 24,
1964, Belfi again visited the north plant and had a conversation with Cheatham.
Ferrell and Bryant, the engineers at the south plant, were then working at the north
plant. He asked Cheatham, "Where do I stand with my contract in the employment
of my people?" Cheatham replied that Respondent was going to recognize its con-
tract with the Paper Workers, and work under it. Cheatham also said that they
hoped the relationship between Respondent and Operating Engineers would continue
on a nice plane as it had been, and that he would let the engineers who had been at
the south plant come out there. -He also said to Belfi that he had no control over these
men. Belfi testified that his reply to these statements of Cheatham was not printable.
At a later date, about the time Jose Palacious was engaged as the third fireman, Belfi
had a telephone conversation with Cheatham, in which he asked him about the filling
of the third fireman job. Cheatham said they were going to break in a man they had
on the premises.
C. Analysis and concluding findings
From the above evidentiary findings, I make the following findings and conclusions.
The boilerroom operation at the north plant which was started on February 4, 1964,
in which three firemen are employed by Respondent, is the same boilerroom opera-
tion that was at the south plant prior to its closing, and prior to the transfer of boiler-
room employees Ferrell and Bryant from the south plant to the north plant. Respond-
ent merely moved the operation for making corrugated paper, of which the high-
pressure system is a part, from the north plant to the south plant. Both plants are
located in the same metropolitan area.
Ferrell, Bryant, and Tatom, the other stationary engineers employed in the boiler-
room at the south plant, were an appropriate unit for the purposes of collective bar-
gaining.8 It is undisputed that Operating Engineers was the recognized collective-
bargaining representative for this unit under the collective-bargaining contract between
Operating Engineers and Respondent effective for the period July 1, 1963, through
8 Victor Manufacturing & Gasket Company, 133 NLRB 1283, 1285.
INTERNATIONAL PAPER COMPANY 1259
June 30, 1965. When Ferrell and Bryant, members of Operating Engineers, and a
majority of the employees in the unit, were transferred to the north plant, and the
south plant was closed, the bargaining unit was also transferred to the north plant.
It remains an appropriate unit for purposes of collective bargaining, and Respondent
is obligated to continue bargaining with Operating Engineers under the contract it
has with it on behalf of the employees in the unit .9 The new equipment at the north
plant does not change the unit any more than new equipment replacing the equipment
at the south plant would have changed it. No special circumstances were shown by
the Respondent that would warrant a holding that the boilerroom employees when
transferred to the north plant became a part of the multiplant unit of employees cov-
ered by the Paper Workers contract. Certainly Operating Engineers' unsuccessful
efforts during negotiations with Respondent in 1961, 1962, and 1963 to have its con-
tract with Respondent extended to cover firemen or engineers that might be employed
at the north plant, and the renewal of the contracts with coverage limited to the south
plant, do not, as Respondent contends, estop the Operating Engineers from asserting
a right to represent the unit of firemen in the north plant.10
Respondent's preference for Paper Workers as bargaining representative of the
boilerroom firemen at the north plant, in spite of their wishes to be represented by
Operating Engineers, and its support of Paper Workers in its efforts to become the
bargaining representative, is clear from the secrecy by which it concealed the installa-
tion of the highpressure boiler system at the north plant; the evasiveness and subtlety
it employed in dealing with Belfi of Operating Engineers regarding the employment
of firemen at the north plant from the time the construction of the north plant began
in 1961; its failure to give Operating Engineers notice of the installation of the high-
pressure boiler system-at the north plant and the closing of the south plant, and to
negotiate with Operating Engineers regarding these changes in operations; its readi-
ness in January 1963 to negotiate, unknown to Operating Engineers, an agreement
with Paper Workers establishing wage classifications and wage rates for north plant
boilerroom employees, and to execute the agreement on February 3, 1964; Superin-
tendent Cheatham's original statement to employee Ferrell that there was a dispute
as to whether the Operating Engineers or the Paper Workers would represent the
boilerroom firemen at the north plant, when Respondent had a contract with Oper-
ating Engineers for Ferrell and the other boilerroom employees; his instruction to
Ferrell on February 3, 1964, that he would begin work the next day at the north plant
under the Paper Workers' contract, and his statement to Bryant in late January or
early February 1964, that he thought Paper Workers had a legitimate contract to
represent the firemen; Respondent's checkoff of dues for Paper Workers from the
wages of the boilerroom employees starting in April 1964, in spite of the obvious
forcing of these employees by Paper Workers to sign checkoff authorizations; Respond-
ent's use of the pretext that the broad language relating to coverage in the Paper
Workers contract with a union-security provision therein required it to recognize
Paper Workers as the bargaining representative; and its election to recognize Paper
Workers as the bargaining representative, and to be governed in this bargaining by
the Paper Workers contract.
Respondent has refused to bargain with Operating Engineers in violation of Section
8(a) (5) of the Act since February 4, 1964. Respondent, in the person of Cheatham,
was blunt in its refusal to recognize Operating Engineers as the collective-bargaining
representative of the boilerroom firemen at the north plant, when on February 24,
1964, he stated to Belfi of Operating Engineers, in response to Belfi's request for
recognition, that Respondent recognized the Paper Workers as the representative of
these employees.11 It also refused to bargain in violation of Section 8(a) (5), when
it failed to notify Operating Engineers of the closing of the south plant, and the
manufacture of corrugated paper at the north plant with the attendant high-pressure
O Jack Lewis et at. , d/b/a California Footwear Company, 114 NLRB 765, enfd. 246
F. 2d 886 (C.A. 9), as modified in other respects ; Heaton Furniture Company, 111 NLRB
342; Brown Truck and Trailer Manufacturing Company, 106 NLRB 999; Yale Rubber
Manufacturing Company, 85 NLRB 131, 134.
10 Timken Roller Bearing Company, 138 NLRB 15; The Press Company, Incorporated,
121 NLRB 976.
"Jack Lewis et at ., d/b/a California Footwear Company, supra; Heaton Furniture
Company, supra; Brown Truck and Trailer Manufacturing Company, supra; James V.
DeGeorge, d/b/a DeGeorge Transfer & Storage Co., 143 NLRB 83.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
boiler system operation, and toy negotiate with Operating Engineers regarding the
change in Respondent's operations at both plants, including the transfer of boilerroom
engineers or firemen from the south plant to the north plant 12
Respondent violated Section 8(a) (2) of the Act by the assistance furnished to
Paper Workers described supra, in disregard of the rights and wishes of a majority
of its boilerroom employees to be represented by Operating Engineers, and the right
of the Operating Engineers to represent these employees.13
Respondent, in violation of Section 8 (a) (1) of the Act, interfered with, restrained,
and coerced employees with respect to their rights to a free and uninhibited selection
of a collective-bargaining representative, by Cheatham's statements to Ferrell and
Bryant regarding their representation by Paper Workers; the receptiveness it extended
to Paper Workers' efforts to be the representative of Ferrell, Bryant, and the other
firemen in derogation of the right of Operating Engineers to represent them; the
checkoff for Paper Workers; the use of the pretext that it was required under the
Paper Workers contract to recognize it as representative of the firemen, and its adop-
tion of the contract as the agreement governing its bargaining in regard to these
employees. This conduct caused Ferrell and Bryant, especially in view of the union-
security clause in the contract, to become members of Paper Workers, submit to
representations by Paper Workers, and permit Respondent to check off for Paper
Workers.14 Palacious, who was previously employed in another job at the north
plant, apparently was already a member of Paper Workers, and under its contract.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in the unfair labor practices alleged
in the complaint, I shall recommend that it be required to cease and desist therefrom
and take affirmative action designed to effectuate the policies of the Act. Since the
Operating Engineers has been the bargaining representative of the boilerroom fire-
men at the north plant since February 4, 1964, and at all times thereafter, during
which the high-pressure boiler system has been in operations at the north plant, I
shall recommend that Respondent be required to withdraw recognition of Paper
Workers as the bargaining representative of these employees, and withhold such recog-
nition until Paper Workers is certified as the representative of these employees in
accordance with the Act, and recognize, and on request bargain with, the Operating
Engineers as the representative of the boilerroom firemen, pursuant to the contract
between Respondent and Operating Engineers, effective for the period July 1, 1963,
through June 30, 1965. I shall also recommend that Respondent be required to set
aside the memorandum of agreement establishing wage classifications and wage rates
for boilerroom firemen, executed as of February 3, 1964, between it and Paper Work-
ers, and to cease applying to the wages, hours, and other working conditions or bar-
gainable matters relating to these employees, the contract between it and Paper
Workers effective for the period July 1, 1963, through June 30, 1965. However,
nothing in this recommendation shall require Respondent to vary or abandon any
wage, hour, or other benefit which has been accorded to the boilerroom firemen under
either agreement, or prejudice the assertion by these employees of any rights they
may have thereunder. I shall further recommend that Respondent be required to
cease giving effect to any checkoff authorizations executed by boilerroom firemen in
favor of Paper Workers, and be required to reimburse the boilerroom firemen for all
12 Royal Plating and Polishing Co, Inc., 148 NLRB 545 ; East Bay Union of Machinists,
Local 1304 U.S.W. (Fibreboard Paper Products Corp.) v. N.L.R.B., 332 F. 2d 411
(C.A.D.C.), enfg. 138 NLRB 550.
laFiredoor Corporation of America, 127 NLRB 1123, enfd. 291 F. 2d 328 (C.A. 2) ;
BeGeorge Transfer cE Storage Co., supra; and Salmirs Oil Company, 139 NLRB 25.
l4 Deaeorge Transfer h Storage Co., supra; Firedoor Corporation of America , supra;
and Salmirs Oal Co, supra.
INTERNATIONAL PAPER COMPANY -1261
initiation fees, dues , and other moneys exacted from them in favor of Paper Workers,
including interest thereon at 6 percent per annum , as provided in Isis Plumbing &
Heating Co., 138 NLRB 716; Seafarers International Union of North America, etc.,
138 NLRB 1142 , and Salmirs Oil Company, 139 NLRB 25. Finally, I shall recom-
mend that Respondent be required to post appropriate notices, and preserve and make
available to Board representatives for examination and copying , records pertinent
and relevant to the computation of the reimbursement recommended.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act, and the Operating Engineers and Paper Workers are labor organizations
within the meaning of Section 2(5) of the Act.
2. The boilerroom firemen employed by Respondent at its north plant in St. Louis
County, Missouri, constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of. Section 9(b) of the Act.
3. The collective-bargaining representative of these - boilerroom firemen is Oper-
ating Engineers, and Respondent has been obligated to recognize, and bargain with,
Operating Engineers as their collective-bargaining representative since February 4,
1964, pursuant to a contract effective for the period July 1, 1963, through June 30,
1965, Respondent has with this labor organization.
4. Respondent, in violation of Section 8(a)(1) of the Act, has interfered with,
coerced, and restrained the boilerroom firemen with respect to their rights to be
members of, and be represented by, Operating Engineers, and by forcing them to
become members of, and be represented by, Paper Workers.
5. Respondent, in violation of Section 8(a)(2) and (1) of the, Act, has furnished
illegal support and assistance to Paper Workers in its efforts to become the bargaining
representative of the boilerroom firemen, by conduct disclosing its preference for
Paper Workers as bargaining representative instead of Operating Engineers, aiding
the efforts of Paper Workers, and defeating the efforts of Operating Engineers, with
respect to the representation of the boilerroom firemen, and the illegal recognition
of Paper Workers as the collective-bargaining representative of the boilerroom
firemen.
6. Respondent has refused to bargain in violation of Section 8(a)(5) and (1) of
the Act, by refusing to recognize or bargain with Operating Engineers, the legal
collective-bargaining representative of the boilerroom firemen at the north plant, on
behalf of these employees, and by recognizing and bargaining with Paper Workers
as the bargaining representative of these employees, and by its failure to notify and
bargain with Operating Engineers regarding the closing of the south plant, and the
operation of a high pressure boiler system operation at the north plant in connection
with the manufacture of corrugated paper at that plant, including the transfer of
boilerroom firemen or engineers from the south plant to the north plant.
7. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and-pursuant to Sec-
tion 10(c) of the Act, I recommend that Respondent International Paper Company,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from,
(a) Recognizing Local 535, International Brotherhood of Pulp, Sulphite and Paper
Mill Workers, AFL-CIO, herein called Paper Workers, as the representative of the
boilerroom firemen or engineers it employs at its north plant at 1285 Highway 66,
St. Louis County, Missouri, herein called the north plant, for the purpose. of dealing
with it concerning grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other terms and conditions of employment with respect to the boilerroom
firemen or engineers , or giving the Paper Workers any other assistance or support,
with respect to these employees.
(b) Giving effect, with respect to the boilerroom firemen or engineers at the north
plant, to the collective-bargaining contract it has with Paper Workers for the period
July 1, 1963, through June 30 , 1965, or its memorandum of agreement of February 3,
1964, with Paper Workers relating to wage classifications and wage rates for boiler-
room firemen, or any modifications, extensions, renewals, or supplements thereto,
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provided, however, that nothing in this Decision and Order shall require the Respond-
ent to vary or abandon any wage, hour, seniority, or other substantive benefit accorded
by Respondent to the boilerroom firemen 'or engineers under these agreements, or
prejudice the assertion by the boilerroom firemen or engineers of any rights they may
have thereunder.
(c) Giving effect to the checkoff authorizations executed by the boilerroom firemen
or engineers in favor of Paper Workers.
(d) Refusing to recognize and bargain collectively with Local No. 2, International
Union of Operating Engineers, AFL-CIO, herein called Operating Engineers, as the
exclusive representative of the appropriate unit of boilerroom firemen or engineers
Respondent employs at its north plant.
(e) Interfering with, restraining, or coercing employees with respect to their rights
to retain Operating Engineers as their collective-bargaining representative.
(f) Engaging in any like or related conduct interfering with employees in the
exercise of their rights to self-organization, to join or assist Operating Engineers, or
any other labor organization, to bargain collectively through representative of their
own choosing, or to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following action which I find will effectuate the purposes of the Act:
(a) Withdraw and withhold all recognition from Paper Workers as collective-
bargaining representative of the boilerroom firemen or engineers it employs at its
north plant for the purpose of dealing with it concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other terms or conditions of employ-
ment with respect to these employees, unless and until the Board shall certify Paper
Workers as their collective-bargaining repreesntative.
(b) Reimburse each of its present and former boilerroom firemen or engineers
employed at the north plant since February 4, 1964, for all initiation fees, dues, and
other moneys they have been required to pay Paper Workers by reason of Respond-
ent's application to these employees of its contract with Paper Workers for the period
July 1, 1963, through June 30, 1965, or the checkoff authorization executed by these
employees in favor of Paper Workers, including interest, as provided in the section
entitled "The Remedy."
(c) Upon request, bargain collectively with Operating Engineers as the exclusive
representative of the appropriate unit of boilerroom firemen or engineers employed
at its north plant, with respect to grievances, labor disputes, wages, rates of pay, hours
of employment, or other terms or conditions of employment for the employees in this
unit pursuant to the collective-bargaining contract between it and Operating Engineers
for the period July 1, 1963, through June 30, 1965.
(d) Post at its north plant copies of the attached notice marked "Appendix." 15
Copies of said notice, to be furnished by the Regional Director for Region 14, shall,
after being duly signed by Respondent's representative, be posted by the Respondent
immediately upon receipt thereof, and be maintained by it for a period of 60 consecu-
tive days from the date of posting, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notice is not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 14, in writing, within 20 days from
the receipt of this Trial Examiner's Decision and Recommended Order, what steps
Respondent has taken to comply therewith.16
It is further recommended that, unless on or before 20 days from the date of receipt
of this Trial Examiner's Decision and Order, the Respondent notifies the said Regional
Director, in writing, that it will comply with the foregoing recommendations, the
National Labor Relations Board' issue an order requiring the Respondent to take the
action aforesaid.
ze If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board's Order be enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order".
19 In the event that this Recommended Order is adopted by the Board , paragraph 2(e)
shall be modified to read: "Notify said Regional Director , in writing , within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith."
INTERNATIONAL PAPER COMPANY 1263
APPENDIX,
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT recognize Local 535, International Brotherhood of Pulp, Sul-
phite and Paper Mill Workers, AFL-CIO, herein called Paper Workers, as the
representative of the boilerroom firemen or engineers we employ at our north
plant at_1285 Highway 66, St. Louis County, Missouri, for the purpose of deal-
ing with-us concerning grievances, labor disputes, wages, rates-of pay, hours of
employment, or other terms and conditions of employment of these employees,
or give the Paper Workers any other assistance or support with respect to these
employees.
WE WILL withdraw and withhold all recognition from Paper Workers as col-
lective-bargaining representative of the boilerroom firemen or engineers employed
at our north plant for the purpose of dealing with us concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other terms or
conditions of employment of these employees, unless and until the Board shall
certify Paper Workers as their collective-bargaining. representative.
WE WILL NOT give effect, with respect to the boilerroom firemen or engineers
at the north plant, to the collective-bargaining contract we have with Paper
Workers for the period July 1, 1963, through June 30, 1965, or our memorandum
of agreement of February 3, 1964, with Paper Workers relating to wage classi-
fications and wage rates for boilerroom firemen, or any modifications, extensions,
renewals, or supplements thereto. We are not required to vary or. abandon any
wage, hour, seniority, or other substantive benefit accorded to the boilerroom
firemen or engineers under these agreements, or. prejudice the assertion by the
boilerroom firemen or engineers of any rights they may have thereunder.
WE WILL NOT give effect to the checkoff authorizations executed by the boiler-
room firemen or engineers in favor of Paper Workers. ,
WE WILL NOT refuse to recognize and bargain collectively with Local No. 2,
International Union of Operating Engineers, AFL-CIO, herein called Operat-
ing Engineers, as the exclusive representative of the boilerroom firement or engi-
neers employed at our north plant.
WE WILL NOT interfere with, restrain, or coerce boilerroom firemen or engi-
neers with respect to their rights to retain Operating Engineers as their collective-
bargaining representative.
WE WILL NOT engage in any like or related conduct interfering with employees
in the exercise of their rights to self-organization, to join or assist Operating
Engineers, or any other labor organizations, to bargain collectively through rep-
resentatives of their own choosing, or to engage in other concerted'activities for
the purpose of collective bargaining or other mutual aid or protection, as guar-
anteed in Section 7 of the Act.
WE WILL reimburse each of our present and former boilerroom firemen or
engineers employed at the north plant since February 4, 1964, for all initiation
fees, dues, and other moneys they have been required to pay Paper Workers by
reason of our application to these employees of our contract with Paper Workers
for the period July 1, 1963, through June 30, 1965, or the checkoff authorizations
executed by these employees in favor of Paper Workers, including interest.
WE WILL, upon request, bargain collectively with Operating Engineers, as the
exclusive representative of the boilerroom firemen or engineers employed at our
north plant, with respect to grievances, labor disputes, wages, rates of pay, hours
of employment, or other terms or conditions of employment for these employees,
pursuant to the collective-bargaining contract between us and Operating Engi-
neers for the period July 1, 1963, through June 30, 1965.
INTERNATIONAL PAPER COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) , (Title)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
775-692-05-vol. 150-81
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board's Regional Office, 4459 Fed-
eral Building, 1520 Market Street, St. Louis, Missouri, Telephone No. Main 2-4142,
if they have any questions concerning this notice or compliance with its provisions.
Anthony O. Grimaldi , d/b/a Superior Rambler and Gerald
Czapiewski , Leaun Harrelson , Robert Weiss, John E. Burke,
Jr., and Local 376, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America. Cases
Nos. 7-CA-4440-1, 7-CA-4440-2, 7-CA-4440-3, 7-CA-4440-4,
and 7-CA-4440-5. January 26, 1965
DECISION AND ORDER
On June 18, 1964, Trial Examiner William Seagle issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the consoli-
dated complaint, and recommending that the consolidated complaint
be dismissed in its entirety, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a supporting brief, and the
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.'
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the General Counsel's exceptions and
brief, and the entire record in this proceeding, and finds merit in
certain of the General Counsel's exceptions. Accordingly, we adopt
the findings and conclusions of the Trial Examiner only insofar as
they are consistent with our Decision herein.
1. The Trial Examiner found that Sales Manager Lenzen was "at
most a very minor supervisory employee," and that his remarks 2 to
employees Harrelson and Weiss were mere predictions of what he
(Lenzen) thought Grimaldi might do upon learning about the
'The General Counsel in his exceptions alleges that the Trial Examiner committed
error in receiving evidence relative . to offers of reinstatement made to the discriminatees
by the Respondent . We do not agree. Inasmuch as this evidence has a bearing on the
remedy, and in no way prejudices the General Counsel's case, the Trial Examiner prop-
erly received it, and we so find.
a Lenzen, when informed by Harrelson and Weiss that the salesmen had signed union
authorization cards, stated : "You fellows are nuts for trying to do this . Grimaldi
won't stand for it, he'll never join the union . Once you fellows get this union smell on
you, you'll never get a job selling cars anywhere else again."
150 NLRB No. 119.