Pactiv Corp.

National Labor Relations Board - Board Decisions

Apr 9, 2001

333 N.L.R.B. 890 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 890
Pactiv Corporation and Paper, Allied-Industrial,
Chemical and Energy Workers International
Union, AFL–CIO–CLC. Cases 9–CA–37226 and
9–CA–37663
April 9, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND WALSH
On January 18, 2001, Pactiv Corporation (the Respon-
dent), Paper, Allied-Industrial, Chemical and Energy
Workers International Union, AFL–CIO–CLC (the Charg-
ing Party or the Union), and the Acting General Counsel
of the National Labor Relations Board entered into a set-
tlement stipulation, subject to the Board’s approval, pro-
viding for the entry of a consent order by the Board and a
consent judgment by any appropriate United States court
of appeals. The parties waived all further and other pro-
ceedings before the Board to which they may be entitled
under the National Labor Relations Act, and the Board’s
Rules and Regulations,1 and the Respondent waived its
right to contest the entry of a consent judgment or to re-
ceive further notice of the application therefor.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The settlement stipulation is approved and made a part
of the record, and the proceeding is transferred to and
continued before the Board in Washington, D. C., for the
entry of a Decision and Order pursuant to the provisions
of the settlement stipulation.2

1 However, the stipulation does not waive Respondent’s right to
compliance proceedings and related appeals therefrom.
2 Contrary to our dissenting colleague, we find it appropriate to ap-
prove the settlement without modification. All parties have agreed to
it. Further, the settlement properly includes a provision requiring the
Respondent to cease and desist from failing to bargain concerning
changes in the light duty policy. Although the settlement does not also
contain an affirmative provision requiring bargaining before making
such changes, and thus does not mirror the standard remedial order that
the Board would issue if the Acting General Counsel won the case, we
do not find this a sufficient basis to modify or reject the settlement. In
this regard, we find K & W Electric, 327 NLRB 70 fn. 2 (1998), cited
by our dissenting colleague, to be distinguishable. In that case the
Board deleted certain language from the stipulated order. However, at
the time of the Board’s decision, there was a prospect that the language
would be declared unlawful on its face. See Marquez v. Screen Actors
Guild, 525 U.S. 33 (1998). By contrast, our colleague seeks to add
language, and there is no suggestion that the order is unlawful without
the language. Finally, if, as the dissent suggests, the parties have sim-
ply made an “inadvertent error” by failing to conform the stipulated
order to the notice (which does include the relevant affirmative lan-
guage), the parties can ask the Board to correct this error.
Member Walsh notes that there appears to be an inadvertent error in
the stipulated Order because, unlike the notice, it fails to provide that
the Respondent will notify and, upon request, bargain with the Union
before making changes in the light duty policy. In Member Walsh’s
view, such a bargaining provision is necessary to remedy the specific
8(a)(5) violation alleged. See Alexander Linn Hospital Assn., 244
NLRB 387 fn. 3 (1979), enfd. 624 F.2d 1090 (3d Cir. 1980). Member
Walsh would modify the Order so that it conforms to the notice and,
consistent with the approach used in K & W Electric, supra, give the
parties an opportunity to opt out of the settlement in the event that there
is an objection to the modification.
On the basis of the settlement stipulation and the entire
record, the Board makes the following
FINDINGS OF FACT
1. The Respondent’s business
The Respondent is a corporation which maintains an
office and place of business in Wurtland, Kentucky, the
facility herein involved, where it is engaged in the manu-
facture of foam packaging materials. The Respondent, in
the conduct of its business operations at its Wurtland,
Kentucky facility during the 1-year period ending July
31, 2000, purchased and received goods valued in excess
of $50,000 directly from points outside the Common-
wealth of Kentucky.
The Respondent admits, and we find, that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The labor organization involved
At all material times the Union has been a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. The appropriate unit
All full-time and regular part-time production and main-
tenance employees employed by Respondent at its 300
Harris Road, Wurtland, Kentucky facility, but excluding
all leased employees, office clerical employees, manage-
rial employees and all professional employees, guards and
supervisors, as defined in the Act (the unit), constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
On December 18, 1998, a majority of the employees in
the unit described above designated and selected the Un-
ion as their representative for the purposes of collective
bargaining with the Respondent. At all times since that
date the Union has been the representative of a majority
of the employees in the above-mentioned unit and, by
virtue of Section 9(a) of the Act, it has been and is now
the exclusive representative for the purposes of collective
bargaining of all employees in the unit.
ORDER
On the basis of the above findings of fact, the settle-
ment stipulation and the entire record, and pursuant to
Section 10(c) of the National Labor Relations Act, the
National Labor Relations Board orders that the Respon-

333 NLRB No. 103
PACTIV CORP. 891
dent, Pactiv Corporation, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing to provide the information requested in the
Union’s April 26 and May 15, 2000 letters to Respon-
dent, excluding item #5 in the April 26 letter.
(b) Failing to bargain collectively with the Union as
the exclusive representative of the unit concerning
changes in the light duty policy.
2. Taking the following affirmative action which the
National Labor Relations Board finds will effectuate the
policies of the National Labor Relations Act.
(a) Provide the information requested in the Union’s
April 26 and May 15, 2000 letters to Respondent, ex-
cluding item #5 in the April 26 letter.
(b) Restore its light duty policy to permit injured em-
ployees to work available light duty assignments.
(c) Make whole unit employees for any loss of pay
they may have suffered by reason of not being given
light duty work, the precise amounts to be determined via
compliance proceedings.
(d) Post at its Wurtland, Kentucky facility copies of
the attached notice marked “Appendix A.” Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by Respondent’s authorized
representative, shall be posted by Respondent immedi-
ately upon receipt and maintained for 60 consecutive
days in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT fail or refuse to bargain with the Un-
ion concerning changes in our light duty policy affecting
employees in the following bargaining unit.

All full-time and regular part-time production and
maintenance employees employed by us at our 300
Harris Road, Wurtland, Kentucky facility, but exclud-
ing all leased employees, office clerical employees,
managerial employees, and all professional employees,
guards and supervisors as defined in the Act.

WE WILL NOT fail or refuse to provide the informa-
tion requested by the Union in its April 26 and May 15,
2000 letters to the Employer, excluding item #5 in the
April 26 letter.
WE WILL restore the light duty policy to permit in-
jured employees to work available light duty assignments
and WE WILL notify and, on request, bargain with the
Union before making changes in the light duty policy.
WE WILL make whole unit employees for any loss of
pay they may have suffered by reason of not being given
light duty work, the precise amounts to be determined via
compliance proceedings.
WE WILL provide the information requested in the
Union’s April 26 and May 15, 2000 letters, excluding
item #5 in the April 26 letter.

PACTIV CORPORATION