Pacific Coast Association of Pulp and Paper Manufacturers

National Labor Relations Board - Board Decisions

Apr 4, 1967

163 N.L.R.B. 892 (N.L.R.B. 1967)

892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining agreemer* has operated to equalize the
duties, wages, and fringe benefits of machinists,
grinders, and others within and without the tooling
departments.
As appears from the recent Mallinckrodt
decision,9 a determination as to whether a craft
severance election should or should not be granted
must be based upon a weighing of all relevant factors
in the case. Considering all the facts in this case, we
do not believe that severance as requested by
Petitioner is warranted.
The employees whom Petitioner seeks to
represent in either unit possess and exercise special
skills. However, it also appears that, within the tool-
and-die maker and fixture maker classification,
tooling skills have been diluted by specialization and
by the use of numerical control machines. The lack
of any apprentice program or rigid requirement of
tooling experience as a qualification reflects this
dilution of skills. Perhaps because of the nature of
the Employer's ordinance work, there appears to be
no sharp demarcation between tooling and
production work; instead, there is sometimes an
overlapping in the work of these groups. As already
noted, the tool-and-die makers and fixture makers
actually "bump" back into production work as
necessitated by the fluctuations in employment. The
machinists, grinders, and other requested
employees also have tasks and interests
substantially identical with their counterparts in
production. Under all the circumstances, including
the 15 years of bargaining on an overall basis,10 we
do not find that either of the requested units consists
of employees who have such a separate community
of interests as would entitle them to be represented
separately. We shall therefore dismiss the petition.
ORDER
frequently because of the numerous contractions
and expansions in the Employer's working force.
The Employer does not maintain an apprenticeship
or other systematic program for the special training
of tool-and-die making employees. The foregoing
circumstances amply demonstrate that the
employees engaged in the making of tools and dies
have a strong community of interest with a
substantial number of production employees, a
community of interest which overshadows the
separate interests they enjoy by reason of the fact
that presently they are engaged in tool-and-die
making operations. In addition it appears that both
the principal unit request of the Petitioner seeking
representation on a craft basis, and the alternative
request on a composite departmental basis, have
defects for severance purposes: the craft request
because of the inclusion of tool and die inspectors,
only a very few of whom have tool-and-die work
experience; the departmental request for lack of
inclusion of the classification "inspectors precision
gauge" who, like the tool and die inspectors, are part
of department 1164.
Accordingly, I find a unit limited to employees
engaged in the tool-and-die making process at the
plant involved herein is not appropriate for purposes
of collective bargaining.
9 Mallznckrodt Chemical Works , Uranium Division, 162
NLRB 387.
10 See, e.g., Rohr Corporation , 157 NLRB 1351 ; Holmberg, Inc.,
162 NLRB 407 , in which Member Fanning dissented
Pacific Coast Association of Pulp and Paper
Manufacturers and International Brother-
hood of Pulp, Sulphite and Paper Mill
Workers, AFL-CIO, and United Paper-
makers and Paperworkers, AFL-CIO, Joint
Petitioners.1
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
Member Fanning, concurring:
I concur in my colleagues' dismissal of the
petition. I do so for the reasons set forth below:
I am satisfied that the record demonstrates that
the employees whom the Petitioner seeks to
represent do not have the separate community of
interests normally enjoyed by employees performing
tool-and-die making functions which is the
precondition for the severance of such employees
from a more inclusive unit. For example, the
Employer employs approximately 100 production
machinists whose job descriptions and
classifications are identical with, and whose skills
and wage rates are comparable to, those of the 15
machinists included in the proposed tool-and-die
maker unit. Moreover, all of the employees in the
proposed unit have bumping rights in the production
machinist jobs, which rights are exercised
Scott Paper Company and International
Brotherhood of Pulp , Sulphite and Paper
Mill Workers , AFL-CIO, and United
Papermakers and Paperworkers , AFL-CIO,
Joint Petitioners . Cases 36-RC-2232 and
19-RC-4083.
April 4,1967
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
consolidated hearing was held before Hearing
Officer E.G. Strumpf.2 The Hearing Officer's rulings
' The Joint Petitioners' names appear as amended at the
hearing
2 Association of Western Pulp and Paper Workers, herein
called AWPPW, and Association of Western Pulp and Paper
Workers, Locals 644, 183, and 196, herein called the Locals, were
each permitted to intervene at the hearing.
163 NLRB No. 129
PACIFIC COAST ASSOCIATION
made at the hearing are free from prejudicial error
and are hereby affirmed.3 Following the hearing,
these cases were transferred to the National Labor
Relations Board in Washington, D.C., pursuant to
Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended. Pacific Coast
Association of Pulp and Paper Manufacturers
(herein called the Association) and Scott Paper
Company, the Joint Petitioners, the AWPPW, and
the Locals filed briefs which have been considered
by the Board.
Upon the entire record in these cases, the Board
finds:
1. The Employers are engaged in commerce
within the meaning of the Act, and it will effectuate
the policies of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to
represent certain employees of the Employers.
3. Questions affecting commerce exist concern-
ing the representation of certain employees of the
Employers within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. The parties are in dispute as to the scope of the
multiemployer unit .4 The Joint Petitioners ask for
separate elections in: (1) a multiemployer unit of 42
mills operated by 16 employer-members of the
Association, excluding two mills of Scott Paper
Company at Anacortes and Everett, Washington,
two plants of Georgia-Pacific Corporation at
Bellingham, Washington (Puget Sound Division),
and Toledo, Oregon, and one mill of R-W Paper
Company at Longview, Washington; and (2) a unit of
employees at Scott's Anacortes mill. Petitioners are
also willing to participate in elections in any unit or
units the Board finds appropriate.
The Intervenors contend that elections should be
held in: (1) a 45-plant, 17-employer unit, excluding
both Scott plants; and (2) a single unit of the two
Scott mills. They will, however, also participate in
elections in any unit or units which the Board deems
appropriate.
The Association, representing 18 employer-
members who operate 47 plants within the
multiemployer unit, and Scott Paper Company
contend that the only appropriate unit is one of all 47
plants.
Organization in west coast primary pulp and paper
plants (those plants manufacturing pulp from wood
chips and those plants converting the pulp into raw,
' The Joint Petitioners have excepted to the Hearing Officer's
ruling that the AWPPW had complied with certain subpenas
issued at the request of the Joint Petitioners and the Employers
In substance, these subpenas directed the AWPPW to produce
minutes, correspondence, and memorandums having to do with
attempts by constituent local unions to withdraw from the
multiemployer unit The AWPPW produced resolutions of its
executive board dealing with the withdrawal of certain locals, but
refused to show the minutes , correspondence , and memorandums
to the parties We find that the entire record, including the
893
rolled paper) began in 1916 or 1917. By 1933 most of
these plants had been organized by two unions,
International Brotherhood of Pulp, Sulphite and
Paper Mill Workers, AFL-CIO, and United
Papermakers and Paperworkers, AFL-CIO, herein
Joint Petitioners. Early in 1934, the Unions
requested recognition and collective bargaining. In
the same year 10 companies, operating 14 mills
manufacturing primary pulp and paper formed, and
delegated collective-bargaining authority to, the
Association, which immediately negotiated a
Uniform Labor Agreement (herein called ULA) in a
multiemployer unit with the two Unions as joint
collective-bargaining agents.
The Association and the two Unions negotiated
successive collective-bargaining contracts for the
multiemployer unit until 1964. In that year there was
a change in bargaining representative. The Joint
Petitioners were supplanted as collective-bargaining
agent, pursuant to a Board election and certification
in the multiemployer unit, by the AWPPW.
Thereafter, the AWPPW conducted a strike
against the companies in the multiemployer unit.
Upon settlement of the strike, the AWPPW, in 1964,
entered into a collective-bargaining contract with the
Association covering the multiemployer unit. The
most recent 1-year ULA between the Association
and the AWPPW expired on March 14, 1967. This
agreement, covering 18 companies and 47 plants,
and previous contracts provide for the joint
administration of job analysis, safety, health and
welfare, and mechanics' training programs on a
multiemployer basis. Although a uniform pension
plan is also provided for in the ULA, each company
funds and administers its plan separately, and
pension rights are not transferrable among the
various companies covered by the ULA.
Member companies of the Association have from
time to time freely withdrawn from, and returned to,
the multiemployer unit. Thus, Georgia-Pacific
Corporation withdrew two plants in the mid-1940's
but later returned to the multiemployer unit. Los
Angeles Container Corporation also withdrew and
has remained out of the unit. In 1966 Western Kraft
Corporation timely removed its two plants from the
Association unit and established separate bargaining
with the AWPPW in a single two-plant unit. In none
of these instances of withdrawal, however, does it
appear that the multiemployer unit was dissolved or
AWPPW executive board resolutions, has furnished us with an
adequate picture of the withdrawal effort and of the AWPPW's
position with respect to such withdrawal . Accordingly, we affirm
the Hearing Officer's ruling that the AWPPW had complied with
the subpenas
4 The parties stipulated that the inclusions and exclusions of
certain unit classifications as listed in section 2 of the 1966
Uniform Labor Agreement between the Association and the
A W PP W were correct
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that multiemployer bargaining for the remaining
companies was substantially disrupted.
Procedures for company withdrawal are
specifically provided in the 1966 ULA in
section 36E, which contains the following:
Nothing herein shall be construed to prevent
termination of membership of any members of
the Pacific Coast Association of Pulp and Paper
Manufacturers. . . . Written notice from said
Association or any of its Member Mills to the
Signatory Union ... shall establish the fact that
the termination of the membership of a member
has occurred and thereupon the Association
shall cease to be the bargaining agent for the
former member....
The 1966 ULA does not outline a specific procedure
for withdrawal by one or more union locals from the
multiemployer unit. However, section 36A, B, and C
provides:
This Agreement shall be ... automatically
renewed ... from year to year unless notice to
terminate is given by either party as hereinafter
provided.
A. All notices given under the provisions of
this Section on behalf of the Signatory Union
shall be given by its president or vice-president
to the managing director of the Pacific Coast
Association of Pulp and Paper Manufacturers.
B. This Agreement may be modified as
follows: Either party desiring any modification
shall mail to the other party notice in writing by
registered mail sixty (60) days prior to March 15,
1967....
C. If notice of desire for modification has
been given, the parties shall, as soon as
agreeable to the parties following such notice,
meet for collective bargaining,. . . the Signatory
Union being represented by a bargaining
committee selected by said Union. Any
agreement or modification arrived at in such
negotiations and approved by a majority of the
membership of the Signatory Union in the
member mills of the Pacific Coast Association of
Pulp and Paper Manufacturers who vote in the
referendum which shall be conducted for that
purpose, shall be binding upon the parties to
this Agreement. The said referendum shall be
conducted upon the basis of a written summary
of conclusions prepared by a joint drafting
committee appointed at said negotiations.
[Emphasis supplied.]
In 1964, during negotiations for a new collective-
bargaining contract, the AWPPW proposed the
following "Right of Withdrawal" clause: "Any
member mill or all local unions in a mill by
unanimous action may withdraw from this multi-
employer unit only by giving written notice by
registered mail to the Association and the Union 90
days prior to June 1, 1967, or any subsequent June
1st...." This clause was not included in the 1964 or
1966 ULA.
Scott Paper Company, a member of the
Association, operates two plants, at Anacortes and
Everett, Washington, covered by the ULA. The
employees at the Anacortes plant are members of
Intervenor Local 196, and those at the Everett plant
of Intervenors Locals 644 and 183. In 1961, these
three Locals began to explore ways of withdrawing
from the multiemployer unit, then represented by
the Joint Petitioners, and of bargaining separately.
In April 1966, all three Locals voted by large
majorities to withdraw from the ULA.S That same
month, the AWPPW executive board passed a
resolution, reaffirmed in January 1967, that "it is not
the intention of the executive board to stand in the
way of Locals 183, 196 and 644 bargaining separately
with Scott Paper Company. The Executive Board
can agree there is no prohibition in the Constitution
of the AWPPW to prevent Locals 183, 196 and 644
from withdrawing from the U.L.A."
On November 30, 1966, the AWPPW sent a letter
to Scott Paper Company notifying Scott that the
AWPPW "as the certified bargaining agent" would
"bargain, meet and confer with you separately for
the purpose of negotiating a new collective
bargaining contract." The letter added that it was
written pursuant to section 36B of the ULA and was
intended as the required 60-day notice that a
modification of the ULA was desired, and that the
letter was meant also as an offer to meet to negotiate
changes in the terms of the ULA "as contemplated
by Section 35, Paragraph C.... 116
On behalf of Scott, the Association replied on
December 22, 1966, that the withdrawal request was
"improper and unacceptable" and that bargaining
on a multiemployer basis was "the only basis
consistent with your contractual commitments and
the provisions of your certification...."
In contending that the only appropriate unit is one
of all 47 plants, the Association and Scott point to
the long and peaceful bargaining history that has
resulted in the adoption of many beneficial programs
administered on an associationwide basis. They
contend that to "fractionate" the bargaining unit by
permitting the withdrawal of the Scott plants would
be to permit a minority of employees to "destroy"
the multiemployer unit . The Locals, on the other
hand, assert that they have special problems
involving plant "ground rules" and job evaluation
that have not been given proper attention in the
multiemployer unit . The Joint Petitioners argue that,
as the Board has permitted individual employers to
withdraw from a multiemployer unit , there should be
' At all relevant times, Scott opposed such withdrawal and " This was undoubtedly a typographical error, from the context
made its position known to the Locals involved it is clear the AWPPW meant section 36C, not section 35C
PACIFIC COAST ASSOCIATION 895
"a correlative union right" to withdraw with respect
to certain employers.
We find merit in the Joint Petitioners' argument.
In The Evening News7 case, where a union had
attempted completely to withdraw from a
multiemployer unit, the Board said: "If, as is
apparent, the basis of a multiemployer bargaining
unit is both original and continuing consent by both
parties, the Board cannot logically deny the
bargaining representative the same opportunity it
allows employers of withdrawing from the
multiemployer unit by withdrawing its consent to
such unit." The Board continued:
. [W ] e believe that the rules for withdrawal
from multiemployer bargaining units should be
the same for unions as for employers because
... we perceive no material difference in the
impact on the employing entity and on the union
flowing from an employer's withdrawal from a
multiemployer unit, on the one hand, and the
union's withdrawal, on the other hand. In either
case, the withdrawing party forces the other to
forego bargaining in the established
multiemployer unit... .
The Board added that "the freedom of the parties
involved to form and dissolve, to modify and adopt,
multiemployer units" should be left intact.
Accordingly, it found that the union in Evening News
had effectively withdrawn from the multiemployer
unit.
Later, in Hearst Consolidated Publications, Inc.,"
involving facts similar to those in Evening News, the
Board followed the Evening News rule and again
found that a union could effectively withdraw from a
multiemployer unlit if it gave timely and unequivocal
notice. Enforcing the Board's Order in Hearst, the
Court of Appeals for the Second Circuit concluded
that:
... [T]he Board was correct in determining
that the Congress did not intend to instruct it to
require an unwilling union to continue in the
consensual relationship if it unequivocally
withdrew its consent. Denial of the right to
withdraw might well discourage formation of
multiemployer bargaining units for fear of being
locked into a unit that might later prove
antagonistic to the interests of the consenting
party.
We have in the past accorded to one or more
employers the right to withdraw from a
multiemployer bargaining unit for any reason,
subject only to the conditions that the withdrawal be
unequivocal and timely.9 In these cases, we have not
inquired into the employer's motive for withdrawal.
Nor have we found it necessary to consider whether
these withdrawals would upset the stability of the
multiemployer bargaining unit or whether a
"fragmentation" of the existing unit was desirable in
the particular circumstances.
Here, if Scott Paper Company had attempted to
withdraw its two plants we would have permitted it
to do so, requiring only that its withdrawal be timely
and unequivocal. Under our Evening News rule,
which has been approved by two circuit courts of
appeals, we can accord to the AWPPW no less a
right to withdraw than we would to Scott.
We do not see a necessary dissolution of
multiemployer bargaining or a loss of stability in
industrial relations as the result of a rule which
permits the Union to withdraw with respect to
certain, but not all, of the employers in the
multiemployer unit. The history of the
multiemployer unit in this case proves that such
withdrawal likely will have little impact upon
multiemployer bargaining or upon beneficial
programs established as a result of such bargaining.
The original multiemployer unit in this case had only
10 companies operating 14 mills-not the 18
companies and 47 mills of today-yet it apparently
was able to function effectively. During the years
since its formation, the multiemployer unit has been
the focal point for initiation and development of
highly successful job evaluation, safety, health and
welfare, and mechanics' training programs. Yet,
during some of these same years, Georgia-Pacific
Corporation, Los Angeles Container Corporation,
and Western Kraft Corporation withdrew from the
unit. The record does not show that these employer
withdrawals disrupted bargaining in the
multiemployer unit. Likewise, we might well expect
upon the basis of this past experience that similar
union witdrawals with respect to one or a few
employers would be equally innocuous.
A rule permitting the union to withdraw with
respect to certain employers may actually benefit
multiemployer bargaining. For, as the Court of
Appeals for the Second Circuit recognized, not only
will it ameliorate the union's "fear of being locked
into a unit" and provide what might be characterized
as a "safety valve" against forcing a union to the
choice of complete disintegration of the multiple
unit, but it will also afford the employees in the
plants that have been withdrawn a better
opportunity to solve their local problems quickly and
effectively and then, perhaps, return to the
multiemployer unit. Such a return is not without
precedent here: two plants of Georgia-Pacific
returned to the multiemployer unit after being out
for a period of time in the 1940's.
The Association and Scott contend that if we
accord to the AWPPW the same right of withdrawal
that we would to any of the employers in the
The Evening News Association, Owner and Publisher of "The
Detroit News," 154 NLRB 1494, enfd 372 F 2d 569 (C A 6)
8 Hearst Consolidated Publications, Inc, 156 NLRB 210, enfd
364 F 2d 293 (C A 2), cert denied 385 U S 971
9 International Restaurant Associates , 133 NLRB 1088, Seattle
Automotive Wholesalers Association, 140 NLRB 1393, Cooks,
Waiters and Waitresses Union, Local 327, et al (Greater Peoria
Restaurant Association), 131 NLRB 198, Atlas Sheet Metal
Works, Inc , 148 NLRB 27
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association, we will be "permitting a small group to
here dictate the appropriate unit...." We find this
argument unpersuasive. First, as we recognized in
Evening News, a multiemployer unit depends for its
existence upon the continuing consent of both
parties, and not upon any congressional direction to
the Board favoring such a unit. If either party timely
and unequivocally withdraws its consent and
indicates its preference for bargaining in a single
employer unit-a unit which has been specifically
sanctioned by Congress in Section 9 of the Act as an
appropriate unit-then the Board gives effect to
such a preference. Second, insofar as a union can
"dictate" or remake the multiemployer unit under
the rule we lay down here, so, too, can individual
employers reform the multiemployer unit by
withdrawing from it. In fact, that is just what
Georgia-Pacific, Los Angeles Container, and
Western Kraft did when they withdrew from the
multiemployer unit . Third, if any or all of the
employers believe that the employer with respect to
whom the union has withdrawn is so vital to the
multiemployer unit that multiemployer bargaining is
no longer desirable, they may themselves withdraw
from the multiple unit . (Here, the employers have
not indicated they would withhold their consent from
something less than a 47-plant unit.)
For the foregoing reasons, we hold that a union
may withdraw from a multiemployer unit with
respect to one or more employers while continuing
multiemployer bargaining with those employers
remaining in the multiple unit . Accordingly, we find
that the AWPPW could withdraw with respect to the
two Scott plants.
The Association and Scott contend, however, that,
assuming that the AWPPW could withdraw with
respect to Scott alone, its withdrawal here was not
an effective one. The Association and Scott rely,
inter alia, on section 36C of the ULA providing for a
referendum for all employees in all the member mills
of any proposed amendments to the ULA, and argue
that the withdrawal of the two Scott plants is an
amendment to the ULA and hence subject to the
referendum provision.10 As there was no such
referendum on the withdrawal of the Anacortes and
Everett plants, the Association and Scott contend
that the AWPPW has not effectively withdrawn with
respect to the Scott plants.
We do not agree. We note, first, that it is not at all
clear that section 36C was intended to cover union
withdrawals or, even if it was so designed, whether
the Union is required to follow the referendum route.
But, assuming, arguendo, that section 36C is
applicable and that its provisions must be followed if
there is to be an effective withdrawal, we find that
the Association and Scott have foreclosed any
reliance on this section by their own acts. Thus, in
its letter to Scott of November 30, 1966, requesting
withdrawal of the two Scott mills, the AWPPW
specifically mentioned the language of section 36C
and offered to take the first step-to
negotiate-which was a prerequisite to holding a
referendum under section 36C. The Association
refused, thereby suspending the operation of this
section.
As the AWPPW's withdrawal with respect to the
Scott mills was timely and unequivocal,'[ we shall
exclude the Scott mills from the multiemployer unit.
In addition to the two Scott mills, the Joint
Petitioners contend that the AWPPW has
effectively withdrawn two Georgia-Pacific mills, the
Puget Sound Division at Bellingham, Washington,
and the Toledo Division at Toledo, Oregon, and the
one R-W Paper Company plant at Longview,
Washington, and that, therefore, these three plants
should be excluded from the multiemployer unit.
In addition to the above two plants, Georgia-
Pacific Corporation operates two other plants
covered by the ULA, the Tissue Products Division at
Bellingham, Washington, and the Santa Clara
Division at Santa Clara, California. R-W Paper
Company operates only the one plant at Longview,
Washington, covered by the ULA. Sometime during
1966 the AWPPW was informed that locals at the
Puget Sound and Toledo plants of Georgia-Pacific
and at the Longview plant of R-W Paper desired to
withdraw from the multiemployer unit. Accordingly,
the AWPPW sent a letter to these Employers
identical to that sent to Scott. The Association's
letter of December 22, 1966,' rejecting the
AWPPW's withdrawal, discussed above in
connection with the Scott plants, also covered the
Bellingham, Toledo, and Longview requests. The
petitions herein were filed on January 9 and 11,
1967. On January 25 and February 1, the AWPPW
wrote the Association that it had received letters
from locals at the above three plants stating that
they had reconsidered their previous requests to
withdraw and were prepared to bargain within the
ULA framework. The Association replied on
February 8 that it understood the AWPPW letters to
have the "effect of rescinding" earlier AWPPW
letters requesting separate bargaining at Georgia-
Pacific's Puget Sound and Toledo plants and at
R-W Paper's Longview plant.
With respect to the withdrawal of the Georgia-
Pacific plants, we note that they are only a part of
the Georgia-Pacific operation covered by the ULA,
and that the Tissue Products and Santa Clara
Divisions were not sought to be withdrawn from the
11 The Association points to the failure in 1964 of the AWPPW
to obtain the union withdrawal clause and concludes that the
AWPPW is therefore obliged to follow the route prescribed in
section 36C
11 In his dissent , Member Brown suggests that the AWPPW
withdrawal was "a begrudging action to oblige some of its
constituent locals." It is clear , however, that, whatever the
feelings of its individual executive board members, the
AWPPW's only communication to Scott and the Association
showed no reluctance or reservation, but explicitly stated that the
AWPPW was giving notification of its desire for separate
bargaining with respect to the Scott plants
PACIFIC COAST ASSOCIATION
multiemployer unit. We note further that the Tissue
Products Division is in the same geographic area,
Bellingham, Washington, as the Puget Sound
Division, which is sought to be withdrawn. Under
ordinary circumstances, the Board does not permit
an employer to withdraw only a part of his operation
from a multiemployer unit while leaving the
remainder in the multiemployer unit.12 As indicated
in Evening News, we believe that the rules governing
employer withdrawals should be equally applicable
to union withdrawal from the multiemployer unit. As
the AWPPW sought to withdraw only with respect to
two of the four Georgia-Pacific operations covered
by the ULA, while leaving in the multiemployer unit
two others, including one plant in the same
geographic area, we find that the withdrawal with
respect to the two was not an effective one.
Accordingly, we shall include the Puget Sound and
Toledo Division plants of Georgia-Pacific in the
mulitemployer unit.
The R-W Paper Company plant at Longview,
Washington, on the other hand, is the only plant of
that Company covered by the ULA. We have
previously found the withdrawal of the two Scott
plants to be an effective one. As the withdrawal of
the R-W Paper Longview plant was similar in kind
to that of the Scott plants, we find it was an effective
withdrawal.
The parties to the -ULA agreed, however, to the
return of the R-W Paper plant to the multiemployer
unit. The Joint Petitioners contend that this return
was untimely as it was made after the filing of the
petition for a multiemployer unit excluding R-W
Paper Company. We find merit in the position of the
Joint Petitioners.
The ULA expired on March 14, 1967. The petition
for the multiemployer unit was filed on January 11,
1967, at the end of the open period under the ULA
and a little over 2 months before the ULA expiration
date. The parties to the ULA thus had an
opportunity prior to the filing of the petition to
decide on R-W Paper's inclusion in the unit.
Instead, they did not finally agree on the status of
R-W Paper's Longview plant until February 8,
during the insulated period under the contract,
almost 1 month after the petition was filed, and only
8 days before the hearing in these cases.
In these circumstances, we do not believe it would
be equitable to include R-W Paper Company in the
multiemployer unit. The Joint Petitioners
undoubtedly relied in their organizing efforts on the
effective withdrawal of R-W Paper Company and
filed their petition on the reasonable assumption that
R-W Paper was no longer a part of the
multiemployer unit. In the circumstances here
involved, we hold that the filing of the petition
12 Coca-Cola Bottling Works Co., 91 NLRB 351, Pioneer, Inc.,
90 NLRB 1848
Is Pulp produced at Anacortes contains a short fibre while that
produced at Everett has a long fibre . Both fibres are needed to
give a sheet of paper the proper degree of softness
897
precluded any further attempt while the petition was
pending to add additional employers to the
multiemployer unit and that the appropriate unit is
composed of the multiemployer grouping as it
existed at the time the petition was filed. To rule
otherwise would be to permit an incumbent union,
with the employer's agreement, to reform the unit
after it had determined where a rival petitioner's
strength lay. Such gerrymandering powers may not,
in fairness, be permitted to the contracting union to
the serious detriment of a rival petitioner.
As the withdrawal of R-W Paper Company was
timely and unequivocal and, therefore, effective, and
as the attempted return of R-W Paper Company to
the multiemployer unit was untimely, we shall
exclude it from the multiemployer unit.
The Joint Petitioners have filed a petition for the
Scott Anacortes plant, contending that it alone
constitutes an appropriate unit . They do not seek to
represent the Everett employees. The AWPPW and
the Locals argue that only a two-plant unit of the
Scott Anacortes and Everett plants is appropriate.
However, no petition has been filed for such a unit.
The Anacortes plant, employing about 100
workers, produces pulp. Fifty miles from Anacortes
is the Everett plant, which has, in addition to a
pulpmill and a papermill, a converting operation
which converts the raw paper rolls into various
finished products, and a shipping department.
Everett has a total employee complement of about
1,500.
The pulp production at Anacortes is 140 tons per
day, 130 of which are used at Everett. The Everett
plant produces 850 tons of pulp a day, by a
somewhat different process from that used at
Anacortes,13 about half of which is consumed at
Everett, with most of the remainder going to about
eight other Scott plants in various parts of the
country. 14
Each plant has its own manager, its own
production schedule, separate accounting reports,
and separate profit-and-loss statements. Hiring and
firing of employees is done separately for each plant.
No employee interchange has occurred between the
two plants, although there have been a few
permanent transfers over the years. Separate
seniority lists and grievance machinery are
maintained for each plant.
There is no collective-bargaining history on a one-
or two-plant basis.
In view of the above, and particularly the
substantial geographic separation , the separate
management , the lack of employee interchange, and
the absence of a bargaining history in a two-plant
unit , we find that the Anacortes plant alone may
constitute an appropriate unit .15 We note that no
14 Collective bargaining at these other plants is on a single-
plant basis
15 See, Dixie Belle Mills, Inc, 139 NLRB 629.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition has been filed for the Everett employees and
that, accordingly, no question concerning
representation exists with respect to these
employees. We shall, therefore, direct an election in
the unit petitioned for by the Joint Petitioners of the
employees at the Anacortes plant of Scott Paper
Company.
We find that the following employees constitute
units appropriate for collective bargaining within the
meaning of Section 9(b) of the Act.
1. All employees of the member mills of the
Pacific Coast Association of Pulp and Paper
Manufacturers covered by the Uniform Labor
Agreement effective March 15, 1966, excluding
employees engaged in: administration, actual
supervision, watchman duties, sales, engineer-
ing and drafting, research and technical opera-
tions requiring professional training, account-
ing, clerical, stenographic and other office
work, and guards, supervisors, and professional
employees as defined in the Act, and all
employees at the two mills of Scott Paper
Company at Everett and Anacortes,
Washington, and the mill of R-W Paper
Company, Longview, Washington.
2. All employees employed by Scott Paper
Company at its Anacortes, Washington, mill,
excluding employees engaged in: administra-
tion, actual supervision, watchman duties,
sales, engineering and drafting, research and
technical operations requiring professional
training, accounting, clerical, stenographic and
other office work, and guards, supervisors, and
professional employees as defined in the Act.
[Text of Direction of Elections's omitted from
publication.]
MEMBER JENKINS, concurring and dissenting:
Multiemployer units are, as the Board said in
Evening News, based on the consent of both the
union and the employer involved. Under this
rationale, it would be appropriate for the union to
refuse to bargain in a multiemployer unit if it did so
at an appropriate time, as it has done in the case of
the Scott and R-W plants. The corollary of this is
that once the multiemployer unit has been so
changed by the action of the union , the remaining
employers are then free to refuse to bargain in any
remaining portion of the multiemployer unit and may
revert to individual bargaining if they choose. 17
However, I do not understand the majority to
accept this corollary; rather, their view appears to be
that after the Scott and R-W plants have been
separated from the unit , an election can be directed
in the remaining 44 plants of the former unit, and
that thereafter the employers are required by the Act
to bargain in such unit regardless of their desires to
bargain in a different unit , and would violate Section
8(a)(5) if they refused to bargain in the 44-plant unit.
To this I cannot subscribe. Mutual consent is the
proper and only basis for multiemployer units, both
in their establishment and in their continuation in
any modified form. If a union at an appropriate time
declines to bargain in the existing unit , the option
passes to the employers to withhold their consent
from multiemployer bargaining entirely, or to
consent only to whatever different multiemployer
unit they may then choose. To hold otherwise, as I
believe my colleagues do, is to permit the union
unilaterally to determine the scope of the
multiemployer unit, for which I find no authority in
the Act. If the Board is to impose this kind of
compulsion in respect to multiemployer units, then
the rationale of Evening News and the freedom of
both employers and union to withdraw from such
units must be reconsidered.
MEMBER BROWN, dissenting:
I have elsewhere stated my views" on what I
consider indiscriminate and mechanical sanctioning
of erosion of multiemployer bargaining units. Similar
action is particularly unwarranted and regrettable in
the present case.
The multiemployer- multimill bargaining unit
involved here has a 33-year history of 30 successive
agreements, supplemented by a continuously
functioning structure of multimill administration and
interim bargaining. This jointly administered
structure included permanent unitwide programs for
job analysis and evaluation, safety, health and
welfare, mechanics' training and promotion,
grievance review, and arbitration. The parties have
achieved the highest benefits paid in the pulp and
paper industry, and with but one strike in the 33
years of multimill bargaining.
Reason would suggest that, absent compelling
circumstances, the best interests of the employees,
the industry, and the public are served by
maintaining the established pattern of association
bargaining. However, principally because of a
situation resulting from organizational and strategic
efforts of two rival union forces, the Board majority
now is officiating at the fragmentation of the
multimill unit . They take this action in the face of
unparalleled labor relations stability in that unit and
` Election eligibility lists , containing the names and addresses
of all the eligible voters, must be filed by the Employers with the
Regional Director for Region 19 within 7 days after the date of this
Decision and Direction of Elections The Regional Director shall
make the lists available to all parties to the elections No
extension of time to file the lists shall be granted by the Regional
Director , except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside
the elections whenever proper objections are filed Excelsior
Underwear Inc, 156 NLRB 1236
17 They may also, of course , bargain in any smaller
multiemployer unit to which the union consents
'd The Evening News Association, 154 NLRB 1482, 1487, and
154 NLRB 1494, 1501, Hearst Consolidated Publications, Inc ,
156 NLRB 201.212
LOC. 87, INTL. ASSN. OF HEAT & FROST INSULATORS 899
also despite the fact that neither the Employers
Association nor the certified bargaining
representative for all Association unit employees has
itself desired such "fractionation."19
I recognize that the Courts of Appeals for the
Sixth and Second Circuits respectively affirmed the
majority in the Evening News20 and Hearst
Consolidated21 cases, supra. However, the Sixth
Circuit observed, while considering the Board
majority's principal argument concerning "equality
of withdrawal rights" in Evening News, that such a
factor was "only half of the issue at stake" in
multiemployer situations. "Board policies," the
court stated, "should be framed substantively to
bolster the multiemployer unit as an instrument of
national policy." "It would seem to us," suggested
the court, "that the Board could with propriety
inquire into the good faith of withdrawals and
whether they are harmful to either party,
particularly where, as here, the unit has been in
existence and has operated satisfactorily for so many
years. In so doing, the Board would exercise the
same authority which it has in imposing a condition
that withdrawals must be timely and unequivocal.
But this is an area which Congress has confided to
the discretion and expertise of the Board...."
My colleagues of the majority have not heeded the
court's articulation of pertinent lines of inquiry.
Finding no cogent basis for diluting the historical 47-
mill unit in this case, and indeed finding most
persuasive reasons for not doing so, I must disagree
with the majority's decision to direct an election in
any lesser unit.
10 The most to be said for the Western Association resolution of
April 30, 1966, was that it was a begrudging action to oblige some
of its constituent locpls Indeed, President Perrin of the Western
Association, who in effect notified the Pacific Coast Association
of the resolution, testified that "the multiple unit bargaining will,
in the long run, do the greatest good for the membership of the
AWPPW " In context, Perrin was undoubtedly referring to the all
inclusive 47-mill unit
20 Detroit Newspaper Publishers v N L R B , 372 F 2d 569
(C.A 6)
21 Publishers' Association of New York City v N L R B , 364
F 2d 293 (C A 2), cert denied 385 U S 971
Local 87, International Association of Heat
and Frost Insulators and Asbestos Workers,
AFL-CIO and Sam P. Wallace Company,
Inc. Case 23-CD-120.
April 5, 1967
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS , AND ZAGORIA
a charge filed by Sam P . Wallace Company, Inc.,
alleging that Local 87, International Association of
Heat and Frost Insulators and Asbestos Workers,
AFL-CIO, had violated Section 8(b)(4)(D) of the Act
by engaging in certain proscribed activity with an
object of forcing or requiring the assignment of
certain work involved in the installation of
"Gilsonite " to individuals who are members of the
Asbestos Workers rather than to unrepresented
laborers who are employed by the Company. A
hearing was held before Hearing Officer Clayton
Corley on October 19 and 20, 1966 . The Charging
Party and the Respondent Union appeared at the
hearing and were afforded full opportunity to be
heard , to examine and cross -examine witnesses, and
to adduce evidence bearing upon the issues. The
rulings of the hearing officer made at the hearing are
free from prejudicial error and are hereby affirmed.
A brief was filed by the Charging Party and a motion
to quash the notice of hearing was filed by the
Respondent Union and they have been duly
considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
- Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE COMPANY
Sam P. Wallace Company, Inc., a Texas
corporation with its principal office located in
Dallas, Texas, is known in the construction industry
as a mechanical contractor and, as such, is engaged
in the installation of fixtures and equipment
necessary for heating and cooling systems. The
Company operates both as a prime contractor and as
a subcontractor throughout the United States and
abroad. Whatever insulation work is required in
connection with its operations is generally
subcontracted to firms which specialize in this type
of work.
The parties stipulated that during the 12-month
period immediately preceding the hearing in this
case, which is a representative period, the Company
received in excess of $50,000 from the performance
of services outside the State of Texas. It was
further stipulated that during this same period the
Company purchased goods valued at more than
$50,000 from points outside the State of Texas,
which goods were shipped directly to the Company's
construction sites in Texas. Accordingly, we find
that the Company is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
The parties stipulated, and we find, that Local 87,
International Association of Heat and Frost
163 NLRB No. 120
295-269 0-69-58