Paperworkers (International Paper)

National Labor Relations Board - Board Decisions

Jul 14, 1989

295 N.L.R.B. 995 (N.L.R.B. 1989)

PAPERWORKERS (INTERNATIONAL PAPER) 995
United Paperworkers International Union and Inter-
national Paper Company and International
Brotherhood of Electrical Workers, Party to the
Contract. Case 15-CB-3317
July 14, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFr AND DEVANEY
On May 5, 1989, Administrative Law Judge
Robert A. Gritta issued the attached decision. The
General Counsel filed limited exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and has decided to
affirm the judge 's rulings, findings ,' and conclu-
sions as modified and to adopt the recommended
Order as modified.2
The General Counsel has filed limited exceptions
to the failure of the administrative law judge to
define the appropriate bargaining unit and to con-
clude that the Respondent and the International
Brotherhood of Electrical Workers (IBEW) were
at all material times the jointly designated exclusive
collective-bargaining representatives of that unit.
We find that the modifications requested by the
General Counsel are consistent with the judge's de-
cision , are supported by the record, and are in ac-
cordance with the complaint allegations as amend-
ed by the General Counsel and admitted by the
Respondent at the hearing. Accordingly, we make
the following findings.
1. The following employees of International
Paper Company constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees
employed at the Respondent's Moss Point,
Mississippi facility excluding:
(A) Mill Manager and Assistant , Production
Superintendent and Assistant , U.M. & E. Su-
perintendent and Assistant, Technical Director
and Assistant , Personnel Director and Assist-
ant, Salaried Technical Assistants, General
Woodyard and Woodroom Foreman and 1st
and 2nd Assistants, Head Wood Scaler, Pulp
Mill Superintendent & 1st and 2nd Assistants,
, No exceptions were filed to the judge 's finding that the Respondent
violated Sec. 8(b)(3) of the Act by failing and refusing to execute the
written contract embodying the full and complete agreement by the par-
ties with respect to terms and conditions of employment.
2 We shall modify the judge's recommended Order to include cease-
and-desist language appropriate for a union respondent . We shall also
issue a new notice to members.
Pulp Mill Tour Foreman , Bleach Plant Super-
intendent, Bleach Plant Tour Foreman, Paper
Mill Superintendent & 1st and 2nd Assistants,
Paper Mill Tour Foreman and Assistants,
Beater Room Foreman (Salary), P.E. Superin-
tendent and Assistant, P.E. Tour Foreman,
Finishing Room Superintendent and 1st and
2nd Assistants, Finishing & Shipping Tour
Foreman, Dock Foreman, Chief Chemist & 1st
and 2nd Assistants , Research and Develop-
ment Chemists and Engineers , Quality Control
Chemist (Salary), Operating Chemist (Salary),
Plant Engineer and Assistants , All Draftsmen
on salary basis , Outside Engineers, Power
Plant Superintendent & 1st and 2nd Assistants,
Power Plant Shift Engineer, Chief Electrician
& 1st and 2nd Assistants , Master Mechanic &
1st and 2nd Assistants, General Millwright
Foreman , Pulp Mill Millwright Foreman,
Paper Mill Millwright Foreman, Machine
Shop Foreman, Pipefitter Foreman, Carpenter
Foreman , Marine Way Foreman, Instrument
Foreman, Power Plant Maintenance Foreman,
General Labor Foreman and Assistant, Garage
Foreman , Boilermaker Foreman, Brickmason
Foreman, Safety Director and Assistant, Plant
Nurses, Watchmen , Students working between
school terms not to exceed approximately
three (3) months, all Construction Employees
and all other exempt salaried jobs not included
in the above list.
(B) All Main Office employees , including
Order Clerks and Staff, Storekeepers, Time-
keepers, Office Chauffeurs, Main Office Por-
ters, the Porter attached to the Manager's
Office where this office is separate from the
Main Office, and all Clerks in offices through-
out the plant who compile or have access to
confidential information , all employees of the
Woodlands Department wherever they are
working, office clerical employees, Guards and
Supervisors as defined in Section 2(11) of the
Act.
2. On or before April 1, 1985 , and at all material
times, the Respondent and the International Broth-
erhood of Electrical Workers (IBEW) have been
the jointly designated exclusive collective-bargain-
ing representatives of the unit described above.
Since that date, the Respondent and the IBEW
have been recognized as such representatives by
International Paper Company. By virtue of Section
9(a) of the Act, the Respondent and the IBEW
have been and are now the joint exclusive repre-
sentatives of the employees in the unit described
above for purposes of collective bargaining with
295 NLRB No. 109
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
respect to rates of pay, wages, hours of employ-
ment, and terms and conditions of employment.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, United Paperworkers International
Union , its officers , agents, and representatives, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
"(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Board on November 20, 1987.' The complaint alleged
that the United Paperworkers International Union (Re-
spondent or UPIU) violated Section 8(b)(3) of the Act
by failing and refusing to execute a written contract em-
bodying the previously agreed to terms and conditions of
employment of Charging Party's employees in an appro-
priate unit. Respondent's timely answer denied the com-
mission of any unfair labor practices.
The International Brotherhood of Electrical Workers
did not make an appearance at trial nor was there any
representation of the IBEW during trial.
All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses , to introduce evi-
dence, and to argue orally. Briefs were submitted by the
General Counsel, Respondent, and the Charging Party.
All briefs were duly considered.
On the entire record2 in this case and from my obser-
vation of the witnesses and their demeanor on the wit-
ness stand , and on substantive, reliable evidence consid-
ered along with the consistency and inherent probability
of testimony, I make the following
FINDINGS OF FACT
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively in
good faith with International Paper Company by
failing and refusing to execute a contract embody-
ing terms and conditions of employment for the
Employer's employees which we agreed to on
March 31, 1987.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request of International Paper
Company, execute the above contract and WE
WILL give effect to its terms until its expiration or
the expiration of any extension thereof.
UNITED PAPERWORKERS INTERNA-
TIONAL UNION
Clem Kennington, Esq., for the General Counsel.
Lynn Agee, Esq. (Gerber, Gerber & Agee), of Nashville,
Tennessee, for the Respondent.
Roger H. Briton, Esq. (Seham, Klein & Zelman), of New
York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GRATA, Administrative Law Judge. This
case was tried before me on February 10 and 11, 1988, in
Pascagoula, Mississippi, based on a charge filed by Inter-
national Paper Company (Charging Party or IP) on
April 20, 1987, and a complaint issued by the Regional
Director for Region 15 of the National Labor Relations
I. JURISDICTION AND STATUS OF LABOR
ORGANIZATIONS-PRELIMINARY CONCLUSIONS
OF LAW
The complaint alleges, Respondent admits, and I find
that International Paper Company is a New York corpo-
ration engaged in the manufacture, sale, and distribution
bf paper-related products in Moss Point, Mississippi. Ju-
risdiction is not in issue . International Paper Company, in
the past 12 months, in the course and conduct of its busi-
ness operations, purchased and received at its Moss Point
facility goods and materials valued in excess of $50,000
directly from points located outside the State of Missis-
sippi. During the same representative period, Internation-
al Paper Company sold and shipped products valued in
excess of $50,000 directly to points located outside the
State of Mississippi. I conclude and find that Internation-
al Paper Company is an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I find,
that Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
The complaint alleges, Respondent admits, and I con-
clude and find that the International Brotherhood of
Electrical Workers (IBEW) is a labor organization
within the meaning of Section 2(5) of the Act.
II. BACKGROUNDS
Prior to 1953, the International Paperworkers and the
International Electrical Workers were recognized as
' All dates are in 1987 unless otherwise specified.
' Page 80 of the transcript is missing from all copies The reporting
service has advised that the page is not contained on the diskette and is
therefore irretrievable.
8 These facts are based on the admitted pleadings and uncontroverted
testimony of witnesses
PAPERWORKERS (INTERNATIONAL PAPER)
joint exclusive representatives of the Moss Point mill em-
ployees. The Paperworkers had three local unions, Local
203, Local 384, and Local 1379, at the Moss Point mill.
The Electrical Workers had one local union , Local 1816.
Successive collective-bargaining agreements were execut-
ed by the three parties on a multimill basis with the latest
dated June 1, 1983, to May 31, 1986. Subsequent to the
execution of the 1983 multimill contract, the parties
agreed to bargain on an individual mill basis and execut-
ed a collective-bargaining agreement for the Moss Point
mill dated April 1, 1985, to March 31, 1987. The negotia-
tions for a successive contract for the Moss Point mill
alone raised the instant issues.
The Company made its final offer on March 25, 1987,
in writing . The offer included changes in language of the
existing contract clauses and provided for ratification bo-
nuses to be paid to employees according to their classifi-
cations and conditioned on ratification by midnight of
March 31. The bonuses were to be effective during both
the first and second year of the contract. Each of the
local unions ratified the contract offer with individual
elections held for that purpose on March 31. The Com-
pany's final offer was signed by the presidents of each of
the three Paperworkers local unions , by the president of
the Electrical Workers local union , and by the mill man-
ager on varying dates before April 9.
On April 9, the International Paperworkers Union
filed an unfair labor practice charge against the Compa-
ny and declared in a letter dated April 13 that the bar-
gaining agreement would not be signed by the Interna-
tional . Mill Manager Brabston responded to the Interna-
tional denying the allegations of the charge and notifying
the International that their refusal to sign the contract
was unlawful since a binding labor agreement existed.
The following month the Company filed a refusal-to-bar-
gain charge against the International. In early June, the
International filed an additional charge against the Com-
pany. Both union charges and the company charge were
investigated by the Board 's Regional Office and were
found to be nonmeritorious . The International Union ap-
pealed the Region 's decision on each charge but the ap-
peals were denied on October 16. The Company also ap-
pealed the Region 's decision on its charge and the appeal
was sustained on November 5. A complaint issued on
November 20 resulting in the instant litigation.
The International Brotherhood of Electrical Workers,
although a joint representative of International Paper's
employees and a joint negotiator with Respondent for
collective-bargaining agreements , does not deny the ex-
istence of an agreement as of the March 31 ratification
vote by its local union members.
III. ISSUES
A. Whether a full and complete agreement with re-
spect to terms and conditions of employment of the Moss
Point mill employees was reached by the parties on
March 31.
B. Whether the International Paperworkers Union's
failure and refusal to execute a written contract embody-
ing the agreement of March 31 is an unlawful refusal to
bargain.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
997
Delmar James testified he was employed at the Moss
Point mill for 16 years and for the last 30 years has been
an International representative with contract responsibil-
ity for the Moss Point mill and other mills. He was
spokesman for the International Paperworkers Union and
the local unions during the current negotiations with the
Company . John Coleman was the International repre-
sentative and spokesman for the International Electrical
Workers Union and the local union during the current
negotiations with the Company . Dowey Lewis, president
of Paperworkers Local Union No. 1379, was chairman of
the local union 's bargaining committee during negotia-
tions with the Company . The International and Locals
met previously to elect the spokesman and finalize the
agenda to be presented to the Company . The spokesmen
and agenda procedure was the same for all prior negotia-
tions with the Company.
James met with R . P. Schneider , company spokesman,
prior to the first negotiation and established that they
would be the only spokesman for the Papermakers and
the Company respectively , unless other committee mem-
bers were expressly asked to speak for a party. James
testified that he does not have authority during negotia-
tions to sign anything until he has counseled with his su-
pervisors but his lack of authority to approve a negotiat-
ed agreement was never discussed during negotiations.
James stated that the union negotiating committee tenta-
tively agrees to contract language . The final agreement
rests with the membership of the various locals. The ne-
gotiating committee gets the best contract they can, then
they carry it back to the membership for approval or
not. James did not tell the Company that no contract
would exist unless or until the International officers ap-
proved and executed it albeit the International constitu-
tion contains a provision interpreted by the International
as meaning just that. In past negotiations , an Internation-
al vice president was usually present during negotiations
but did not supervise , leaving the actual negotiations to
the local officers and the International representative.
The International vice president did communicate fre-
quently with the International representative left in
charge of the negotiations . On completion of negotiations
and then ratification by the local unions the vice presi-
dent would execute the negotiated contract or would tell
James to sign the contract . Whether the International
president actually considered the contract or not was un-
known to James . In 1984, the parties ceased multiple mill
bargaining and began single mill bargaining . Since that
time James has been the only International representative
attending negotiations for the Moss Point mill, excepting
the nonparticipating 1-day appearance of International
Vice President Cliff King on March 19.
The parties met for the first negotiating session on
March 13 . After several sessions were held, the Compa-
ny presented its final offer on March 25. At no time
during negotiations did James recess the negotiations to
receive input from the International officers. He and the
other committee members considered each company pro-
posal and accepted or rejected them as they were made.
James was, however, in daily phone contact with the
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
International offices. At one point in negotiations, James
expressed concern that the Company's negotiating team
did not have authority to propose or accept agreements
outside the basic written proposal presented to the Union
as the Company's agenda . James highlighted his criticism
of the Company 's team by telling them that the union ne-
gotiations were left up to him and the International presi-
dent or vice president did not get involved unless he
asked for their input.
The Company 's final offer included a bonus for bar-
gaining unit employees if the contract was ratified by
March 31. James had, prior to March 25, told Schneider
that the Union thought the Company's offer should not
contain a time limit . However, the Union 's negotiating
committee knew it was the Company 's intent to pay the
bonuses immediately following ratification . A ratification
bonus was common among the parties . All local unions
joined in meetings on March 30 at 8 a .m. and 4 p.m. for
presentation of the Company's final offer . The final offer
was presented to each membership by their respective
officers. James was present at both meetings and ad-
dressed each meeting giving his opinion of the Compa-
ny's offer. James and the other negotiating committee
members recommended to the membership that they
reject the Company's final offer . Neither James nor any
committeeman told the membership that the Internation-
al may not approve a contract in spite of a ratification by
the membership . The following day all locals set up
voting schedules for the ratification vote . Although
James was present part of the day at the voting site, he
did not take part in the voting . James did record the
tally of ballots for each local as he was given the results.
When all locals' votes were recorded, James, while sit-
ting on the table with a leg hanging off the table, told
the members assembled that the local unions had accept-
ed the Company's offer . James denied that he told the
assembled members they had a contract.
James went home around 6 p.m. and his wife informed
him that Schneider had phoned earlier asking to speak
with him. Before acting on the message , James received
a call from Dowey Lewis. Lewis told James that Schnei-
der was asking for the results of the ratification vote.
Lewis asked if he could give the vote results to Schnei-
der. James told Lewis to give Schneider the overall re-
sults without telling him how each local union voted. In
the past, James and Schneider would converse after the
ratification vote and James would tell him that the con-
tract had been ratified . Albeit, James knew Schneider's
purpose in calling Lewis, he denied knowing that
Schneider 's call to him was seeking official notice of the
contracts ' ratification . James also denied that he expected
the bonuses to be paid shortly after ratification. James
stated that in past years when relaying to Schneider the
results of the ratification vote he would tell Schneider
that the Company and the Union had a contract because
he would have prior approval of the International. James
testified , "In the past I notified Schneider , 'we have an
agreement .' If he asked me what the vote was and if it
has been accepted , I say, `the majority of the local or
locals have accepted it. We do have agreement." How-
ever, James explained that he did only asked Lewis for
the outcome of the local unions ' vote . James did not tell
anyone, at any time, that the Union 's constitution re-
quires the International to approve all agreements , ratifi-
cation notwithstanding , before they become effective.
With regard to Schneider 's knowledge of the Interna-
tional 's approval before a contract is effective, James
presumed Schneider was aware of the constitutional pro-
vision . James, however , did not have any reason to be-
lieve, nor did he believe that a contract did not exist
after the local unions voted to ratify.
James was in town April 1, 2, and 4. He was out of
town April 3 and left for Jacksonville, Florida, on April
5. James learned from Vice President King on April 1, 2,
or 3 that the International would not sign the contract
until the interference allegations were investigated. James
did not make any effort to contact Schneider with the
International 's position . James explained that he was
leaving that up to Vice President King . James stated that
he did not know the Company had paid the bonuses be-
cause he was out of town and he did not have any con-
cern that the bonuses might be paid when he knew that
the International was not intending to sign the agree-
ment.
James' trip to Jacksonville on April 5 was in the com-
pany of Vice President King . The trip was not a sched-
uled trip for James and did not involve any of the locals
that James serviced as an International representative.
King simply made the trip available to James. He and
James discussed the alleged interference at Moss Point
while in Jacksonville . King told James on April 9 or 10
that he would send a letter to the Company explaining
the International 's position . King did post a letter to the
Company on April 13.
James first contact with Schneider after the March 25
negotiation was on April 11. Schneider called and asked
James to come by the mill and sign the agreement. James
demurred saying he had prior commitments . Schneider
then suggested that he bring the contract to James' resi-
dence for his signature . James said , "No," and for the
first time told Schneider that the International had no in-
tention of signing the agreement because of the alleged
interference by the Company in the ratification process.
James told Schneider that unfair labor practice charges
had been filed against the Company. The alleged inter-
ference by the Company was discussed during bargaining
by the parties from March 19 through 25. King, James,
and the local officers discussed the alleged interference
with employees as late as the local union meetings of
March 30.
James stated that Vice President King usually told him
orally to sign contracts for the International . This au-
thority to sign for the International did not always pre-
cede implementation of the contract . The Company and
the Union had a practice of implementing the contracts
as soon as the membership voted for ratification.
This is the first contract between the International Pa-
perworkers and International Paper Company that has
not been executed following a ratification vote of the
membership.
Clarence Parker testified he has been employed at the
Moss Point mill for 20 years. He is an instrument electri-
cian and a 4-year member of IBEW, Local 1816. Previ-
PAPERWORKERS (INTERNATIONAL PAPER) 999
ously he was a member of United Paperworkers Interna-
tional Union, Local 1379 and past president , vice presi-
dent, and executive board member . On March 31, he at-
tended the ratification vote at the Craftsman 's Council
Hall, the union hall for all Moss Point mill local unions.
Parker voted at 3:35 p.m. following his day shift and
stayed for the vote count at 6 p .m. After the count,
Delmar James called all the members to order and told
us, "We now have a ratified contract."
Parker as president of Paperworkers Local Union 1379
knew the International was a party to the contract but
he did not think the International controlled the exist-
ence of a contract . The local unions make up the Inter-
national Union and local union officers sign all contracts.
Parker is not aware that once the members approve a
contract by a ratification vote , the International can say,
"Well, No you don't have a contract."
James Rigby testified he is employed at the Moss
Point mill as a maintenance mechanic . He has been a
member of Local 384 for the 15 years he has worked at
the mill . Rigby voted on the Company's final offer on
March 31 at 8 a.m. He was not working that day and
made several trips to the union hall during the day. He
was present when the polls closed and the count was an-
nounced . After the local officers tallied the votes, the
members gathered around the table . Delmar James was
seated astraddle the table . James said, "Gentlemen, you
have a contract ." Rigby heard one of the officers an-
nounce the vote totals and he jotted the figures down on
a piece of paper and left the hall.
Richard P. (Mike) Schneider testified that he was
human resources manager at the Moss Point mill for 4
years and 9 months starting in May 1983 . He has been in
personnel with the Company since 1974. During negotia-
tions with the Moss Point mill in the 1985 and 1987 ne-
gotiations, he was spokesman for the Company. Prior to
1985, he attended the multiple mill negotiations as an ob-
server for the Company.
The 1985 negotiations were precipitated by a disillu-
sion agreement executed to change the termination date
of the prior collective-bargaining agreement from May
31, 1986, to March 31, 1985 . Negotiations for a new col-
lective-bargaining agreement began on March 15, 1985.
The Company gave its best and final offer to the Unions
on March 22 and the membership voted to ratify the
agreement on March 27, 1985 . On March 28, James
called Schneider and told him, "You've got a ratified
contract" and the two gave a joint press release for the
March 29 papers . The contract by its terms implemented
the new wage rates on June 1, 1985 . The contract was
not fully executed by all parties until September 1985.
For the 1987 negotiations, Schneider and James estab-
lished the ground rule that each would be the spokesman
for their respective party. Dowey Lewis was selected as
the chairman of the local unions involved in the negotia-
tions . John Coleman was spokesman for the electrical
workers . The parties met 10 separate days and on March
24 or 25; the Company and Union were in caucus when
the Union called on the phone. Mike Jenkins, the usual
phone person for the Union, asked when the Company
intended to pay the ratification bonuses. Schneider re-
plied if the contract were ratified , the bonuses would be
paid within 3 or 4 days. Later in negotiations the Com-
pany made it clear to the Union that ratification had to
be before midnight March 31. The union people were
upset by the deadline calling it an ultimatum . The Com-
pany said it was nothing more than a tie to the end of
the current contract . The Union claimed they did not
have enough time to take it back to their membership for
a vote . By the end of the session on March 25, the Com-
pany gave the Union its final offer with the bonuses con-
ditioned on ratification of the offer by midnight March
31. James told Schneider that he and the committee of
local union chairmen were opposed to the offer and
would recommend against ratification.
In the following days, employees at the mill were
asking when the bonuses would be paid . The Company's
daily newspaper on March 30 and 31 carried a notice to
employees that if the contract was ratified in time the
bonuses would be paid Friday, April 3, as a separate
check. The paper is posted and copies are available at
the pay windows and in the departments within the mill.
On March 31 at approximately 5:45 p.m., Schneider
received a phone call from Dennis Kendrick, a local
union chairman , and he said the contract had been rati-
fied. Schneider asked if the call was official notification
and Kendrick said , "No, the official word would have to
come from James or Lewis." Schneider then called Jim
Gilliland, director of employee relations , at the Mobile
mill and told him the contract had been ratified . Gilli-
land asked if Schneider had gotten official notification
from Delmar James. When Schneider said he had not,
Gilliland told him he had to have ratification confirmed
by James . Schneider then placed a call to James' resi-
dence but there was no answer . He then called Dowey
Lewis and asked if the contract was ratified. Lewis said
the contract was ratified but when asked if that was offi-
cial notification, Lewis said , "No, he would have to get
in touch with James." Schneider asked that Lewis get in
touch with James and call him back . About a half hour
later, Lewis called Schneider and said he had been in
touch with James and this is official notification that the
contract has been ratified. James did not at any time
during the negotiations say that any conditions were im-
posed on approval of a new contract by the International
Union.
The next day, April 1, the Company implemented the
terms of the new contract and on April 2 began paying
the bonuses . The remainder of the bonuses were paid
April 3. The total outlay of bonuses were $850,000 and
in separate checks . That week the regular paydays were
April 1, 2, and 3.
On April 8 or 9, Schneider directed his subordinate to
secure the signatures of the local union chairman and the
mill manager, so the signature page of the contract could
be sent to James and Coleman for their signatures. On
April 10, Schneider learned that his manager was unable
to get in touch with James . Schneider took the signature
pages for the contract electing to get in touch with
James himself. On Saturday , April 11, Schneider called
James and asked him to come by the mill and sign the
contract signature pages the next week . James said he
would be out of town and could not do it. Schneider
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
then asked if he could bring them by James' house for
his signature . James said , "Well, I guess I'd better tell
you, that's , it's not my idea, but the International Union
is going to file charges against the Company for foremen
harassing employees during the ratification vote and I'm
not going to sign the contract until those charges are re-
solved."
After several letters were exchanged between the par-
ties' additional negotiating meetings were held on June
12 and 15 with a Federal mediator present . On June 12,
Schneider reviewed with James the sequence of events
beginning with the phone calls to Lewis and James.
Schneider stated to James that the phone call from
Lewis was official notification of contract ratification
and the contract terms were implemented on April 1
with the bonuses paid April 2 and 3, all in good faith.
Schneider made this statement at both meetings in June.
At one meeting, James responded , "You never called
me." At the other meeting , James made no response to
Schneider. Schneider also told James that the Company
paid the ratification bonuses in good faith . James re-
sponded , "I know you paid the ratification bonuses in
good faith."
Schneider was asked when he first saw a copy of the
International Union 's constitution. He replied , "yester-
day." Schneider admitted that the International Union
never put in writing or told him that ratification by the
local unions was equal to acceptance of the contract by
the International.
James W. Gilliland testified that he is director of em-
ployee relations and is responsible for all labor relations
in all facilities without regard to employee union organi-
zation . He no longer gets involved in contract negotia-
tions but is advised as to the progress of all negotiations.
In past negotiations , all notification to the Company of a
contract's ratification by the employees was given ver-
bally by the person handling negotiations for the Union.
Having received notification of ratification, the Company
would implement the contract terms.
On March 31 about 6 p.m., Gilliland received a phone
call from Schneider. Schneider said the contract had
been ratified . Gilliland asked if Delmar James made any
comment . Schneider said he had not talked to James.
Gilliland told Schneider to call James and get word from
him that the contract had been ratified. Within 30 to 40
minutes, Schneider called again stating that he had re-
ceived word from James through Dowey Lewis that the
contract had been ratified and we had a contract. Gilli-
land congratulated Schneider and ended the conversa-
tion.
In the past, whenever a collective -bargaining agree-
ment was negotiated and taken back to the membership
for a ratification vote, there was a contract if the mem-
bership voted to accept it. Whether the bargaining com-
mittee recommended approval or rejection was of no
consequence . It was the membership vote that counted.
The practice has been to implement new contracts as
soon as they are approved . How long the process takes
is determined by the substance of the changes or new
provisions . Implementation has never waited for signa-
tures to the contract . There are many signatures needed
and several of those needed must await the persons get-
ting back in town from other duties or responsibilities.
There have been occasions when signatures were not ob-
tained until several months after the ratification had oc-
curred . Ratification bonuses have never been paid absent
ratification of the contract, however, ratification bonuses
have been paid several times before the contract signing
took place.
The first indication that the International was not
going to sign the 1987 contract was in a phone call from
Schneider roughly 10 days after the ratification. Schnei-
der told Gilliland that the International had filed unfair
labor practice charges alleging supervisory influence in
the ratification vote . Schneider said James informed him
the International would not sign the agreement . Prior to
this situation , Gilliland was not aware that approval of
collective-bargaining agreements was required by the
International president . Gilliland also was not aware of
any union constitutional provision that required the
International president 's approval of collective-bargain-
ing agreements.
Dowey Lewis testified that on March 31 Schneider
called him about the results of the ratification vote.
Lewis told Schneider that he had not had a chance to
talk to James so he would call him back. Lewis called
James and told him Schneider had called waiting to
know how the vote turned out. Lewis asked James if it
was all right for him to give the voting results to Schnei-
der. James said , "yes, you can give him the total vote."
Lewis called Schneider and told him the locals had
voted to accept the Company's proposal by a unanimous
vote. Schneider asked if that was official. Lewis told
Schneider, "that's the official vote." Schneider asked
whether the vote margin was large and Lewis told him
to talk to James if he wanted to know the actual num-
bers . Lewis was a new local president and did not know
the procedure other than he needed to contact his Inter-
national representative, James, for guidance.
V. ANALYSIS AND CONCLUSIONS
The General Counsel contends that the contracting
parties reached full agreement on March 31, and Re-
spondent's refusal to execute the agreement , once re-
duced to writing , is a violation of Section 8(b)(3) of the
Act.
Respondent argues that failure of International Repre-
sentative James to advise the Company that the collec-
tive-bargaining agreement had been accepted relieves the
International Union of any legal obligation to sign a rati-
fied but not accepted contract. Respondent further
argues that the International constitution clearly requires
acceptance by the International president before collec-
tive-bargaining agreements are effective . A subordinate
contention is advanced on the lack of evidence to show
that memberships of local unions can by vote bind the
International Union to a collective -bargaining agreement.
A resolution of the issues here requires a determination
of the intent of the parties . Any determination of that
intent must be established by declarations of the parties
(written or oral), conduct of the parties and past prac-
tices of the parties in similar circumstances, as evidenced
by record testimony and objective exhibits . In a proper
PAPERWORKERS (INTERNATIONAL PAPER) 1001
setting and circumstances, omissions of party declarations
or party conduct may also be probative of a party's
intent.
A significant portion of the evidence adduced at the
trial was undisputed . The most salient facts are : the ne-
gotiating procedures used by the parties are the same as
used in all prior negotiations ; prior to the actual start of
negotiations , Schneider and James agreed that each
would be the only spokesman for their respective party;
James stated to Schneider during negotiations that the
UPIU president or vice president only get involved in
negotiations if James invited either or both to attend.
James was in constant contact with his International su-
periors disclosing the progress of negotiations; negotia-
tions between these parties were not conditioned on lan-
guage of the International constitution , particularly arti-
cle XV, section 2 ; as early as March 19, during negotia-
tions, the parties discussed IP's continuous conduct of
advising employees of the progress of negotiations and
explaining the Company's position on certain individual
items . This conduct prompted the unfair labor practice
charges by the UPIU following the membership's ratifi-
cation of the Company's final offer; the UPIU negotiat-
ing team has authority to get the best contract it can and
decides when to give the contract offer to the local
union membership for a vote of ratification; IP's final
offer of March 25 was contingent on ratification by the
local unions ' membership on or before March 31 for the
proposed bonuses to be effective; the UPIU negotiating
team knew , during negotiations , it was IP's intent to pay
the bonuses almost immediately after ratification; the
membership of the IBEW and UPIU local unions ratified
IP's final offer on March 31; James announced to the as-
sembled union members after the vote was tallied, "We
have a ratified contract" or "We have a contract"; notice
to IP of the local unions' memberships acceptance or re-
jection of the negotiated contract is given by the Interna-
tional representative on the negotiating team ; IP received
notice of the official ratification vote on March 31 from
International Representative James through the local
union's chairman , Dowey Lewis; the semblable substance
of past notices to IP following ratification acceptance
has been as diverse as , you have a contract , the contract
has been ratified , the employees have voted for the pro-
posal ; International Representative James on March 31
was of the opinion that the parties had negotiated a con-
tract; following the ratification vote James made no at-
tempt to contact Schneider ; in the past IP has imple-
mented contract terms, including payment of bonuses,
following ratification and before official execution of the
contract by all parties ; although the stated parties to all
contracts have been IP and UPIU , the president of each
local union has been signatory to the written agreement;
the instant contract was signed by all local union presi-
dents on or before April 9 ; International Representative
James was prepared to sign the contract until he was no-
tified by International Vice President King "not to sign";
James' first contact with Schneider after March 31 was
initiated bt Schneider on April 11 and during which
James told Schneider the International would not sign
the agreement until the unfair labor practice charge
(April 9) was decided ; April 13, International Vice Presi-
dent King wrote IP that UPIU filed a charge alleging in-
terference in the Union's internal affairs and therefore
the International will not sign the collective-bargaining
agreement until it has received a determination of the
charge ; the UPIU charge was dismissed by the Board's
General Counsel and UPIU's appeal of the dismissal was
denied by the Board 's Appeal division on October 16;
the UPIU has not refused to execute a collective-bar-
gaining contract with IP after ratification by the local
unions' membership except for the Mobile, Alabama
plant . BagPak Division , 254 NLRB 1332 (1981), which re-
sulted in an order requiring the UPIU to sign the agree-
ment ; UPIU's defense , based on the International's con-
stitutional provision giving the International president
authority to supervise negotiations , was first raised in a
May 19 correspondence between the UPIU and IP.
UPIU advances several arguments to support the re-
fusal of the International to sign the written agreement.
The arguments rest on the language of the International
constitution and a contended lack of evidence that offi-
cial notification was given to IP that the contract was
accepted . UPIU would equate an unaccepted agreement
with an agreement not totally negotiated or an agree-
ment only ratified by its local union's membership.
Albeit the various defenses and arguments of UPIU
are substantially interrelated , I will discuss them sepa-
rately for my personal clarity.
A. Constitutional Defense
UPIU argues a distinction between a ratified and ac-
cepted agreement , defining an accepted agreement as one
approved by the International president according to ar-
ticle XV, section 2, of the International constitution.
There is no evidence that the constitutional language of
article XV was discussed between the parties before or
during negotiations or that the parties established ulti-
mate approval by the International president , without
regard for a ratification vote of its local union 's member-
ships, as the controlling factor. UPIU suggest that IP is
bound by the mere existence of the constitutional provi-
sion. While it is not improper to reserve to an Interna-
tional the right to approve a contract before it becomes
effective , such a right could not be achieved without the
Company's actual knowledge of such provision prior to
negotiation of a contract . Moreover , right of approval
must be based on clear and unmistakable language in the
constitution if that is the reference . In my view, UPIU
raises a sterile defense of constitutionally mandated ap-
proval by its president at a time and in a circumstance
completely unrelated to the contract negotiations be-
tween the parties' representatives . Therefore, no right of
approval vest in UPIU's president based on notification.
Additionally, the defense is too narrowed in that section
1 of article XV is ignored . Article XV, sections 1 and 2
state:
ARTICLE XV
COLLECTIVE BARGAINING AGREEMENTS
Section 1. A collective bargaining agreement
must be ratified and approved by a majority of the
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
members covered by said agreement present and
voting on the question by secret ballot before the
same shall be executed on behalf of the union;
except in the case of multi-plant or multi-employer
agreements , where the local union has authorized
designated delegates to ratify a collective-bargaining
agreement, in which case the agreement shall be ex-
ecuted upon the ratification of the agreement by a
majority of the delegates of all attending local
unions present and voting by secret ballot. Should a
vote for ratification of a contract fail to yield a ma-
jority vote as required for acceptance by this Con-
stitution and then fail to yield the two-thirds (2/3)
majority vote necessary for strike sanction , the local
or multiple so affected shall be considered to have
accepted the labor agreement.
Section 2. Negotiations for collective bargaining
agreements shall be subject to supervision by, and
their terms , conditions and termination shall be sub-
ject to the approval of the International President.
Clearly, section 1 gives ratification and approval au-
thority of collective-bargaining agreements to the mem-
bers covered by the agreement . It adds that following
ratification and approval by the members, same shall be
executed on behalf of the union . Also, in the case where
designated delegates are authorized to ratify a collective-
bargaining agreement in behalf of the members covered
by such agreement , the agreement shall be executed. The
section ends with a defined presumption that a failed
ratification vote does not satisfy acceptance by the consti-
tution, however, if the voting members fail also to vote a
two-third majority for strike sanction the agreement be-
comes accepted by the membership and the constitution.
Approval or acceptance by the International president is
not mentioned or implied.
Section 2 , in my view , is just as clear . The Internation-
al president shall supervise negotiations for collective-bar-
gaining agreements and the negotiated terms shall be sub-
ject to his approval. Here, as in the past, an International
presence was on the negotiating committee reporting
daily the substance of negotiations to the UPIU office.
This International presence obviously was to satisfy the
statutory requirement that parties meet at reasonable
times and confer . . . or negotiate an agreement . . . and
the execution of a written contract incorporating any
agreement reached . The negotiating committee has the
authority to decide whether or not to take a company
proposal back to the full membership for a ratification
vote . The International president 's supervision of negoti-
ations is accomplished by the daily contacts with the ne-
gotiating committee and his approval or disapproval of
negotiated terms, conditions, and termination is chan-
neled through the sitting International representative on
the committee . The president 's determination is manifest-
ed in the negotiating committee's recommendation to the
full membership prior to the ratification vote . Were it
otherwise, the committee 's action would not conform to
the NLRA or the UPIU constitution . UPIU's constitu-
tional defense, if applied as argued, would limit Interna-
tional Representative James' ability to negotiate a sub-
stantive agreement with the Company and would result
in little substance to be referred to the full membership
for ratification.
In these negotiations , James voiced the International's
recommendation against ratification but the full member-
ship voted to accept the Company's proposal. As James
testified, he thought the parties had a contract when the
votes were tallied . I consider it instructive, that notwith-
standing UPIU's opposition to IP's final offer of March
25, the proposal was submitted to the local unions' mem-
bership for acceptance or rejection. UPIU's initial objec-
tion to IP's action vis-a-vis the local members before the
ratification vote acknowledges the efficacy of the ratifi-
cation process.
Since logic would dictate that any authority of the
International president to approve or disapprove negotia-
tions or indeed the ultimate acceptance of a collective-
bargaining agreement would have been exercised prior to
any ratification vote of the membership required by the
UPIU constitution , I can only conclude under the undis-
puted facts of this case that such authority was exercised
prior to March 31.
Accordingly, I conclude and find that the language of
article XV of the UPIU's constitution was not an explic-
it, known, and necessary predicate to negotiating a col-
lective-bargaining agreement with IP. Therefore, UPIU's
constitution cannot relieve the International of its obliga-
tion to execute a written contract embodying terms and
conditions previously negotiated . Further, I conclude
and find that the language of article XV of the UPIU
constitution , if properly made a condition on negotiating
a contract , does not vest ultimate approval of a negotiat-
ed collective-bargaining agreement in the UPIU presi-
dent for the negotiated agreement to become effective.
Under the language of the article as a whole, the Inter-
national 's refusal to execute an agreement negotiated by
a duly authorized committee and ratified by the members
of the local unions covered by the agreement fails to
conform.
B. Notification of Contract
UPIU contends that IP never received official notice
that the International accepted the contract ratified by its
local union 's membership . A supporting contention is
that the ratification of a contract by the local union's
membership is not tantamount to acceptance of the con-
tract by the International . Admittedly , and as past prac-
tice shows, the final announcement of whether a negoti-
ated contract is accepted or rejected is given by UPIU
through the International representative designated as
the spokesman. The spokesman (James) notifies the Com-
pany shortly after the membership vote is tallied and,
based on the vote tally, whether the contract has been
accepted or rejected . The notice is not formalized and
one phrase is no more magical than another. It is undis-
puted that James, in the instance , did not personally give
notice to the Company. The dispute lies in who gave
notice and what notice was given . UPIU argues not the
substance of the notice but, rather , who alone can give
such notice and thereby bind the International to the
contract . Although the source of a notice must be con-
sidered the substance of the notice is just as important.
PAPERWORKERS (INTERNATIONAL PAPER) 1003
Parties in a collective -bargaining posture frequently rely
on notices from each other to formulate conduct and
action to be taken.
The past practices of these parties clearly show the
controlling factor of a negotiated contract to be the
membership 's ratification . The parties have consistently
negotiated subject to the membership ratification require-
ment and notice of acceptance by the UPIU has always
followed ratification . Whether or not UPIU must also in-
dependently accept for a negotiated contract to become
effective has never been made a requirement. IP has
simply waited for the membership vote and the resultant
notice of an accepted contract . In the instant case, IP so-
licited the notice from the negotiating committee. When
Schneider could not reach James, he called Lewis, the
number two man on the Paperworkers committee. Al-
though there is a factual dispute between Schneider,
James, and Lewis, based on phraseology of the several
telephone conversations , there is no dispute of what
Schneider was seeking when he initiated the calls. IP's
final offer, however limited in time, was conditioned on
membership ratification no later than March 31. The
Union vote was set for March 31. No logomachy be-
tween attorneys can change the obvious, single, un-
known factor between these parties on March 31. James'
testimony that he did not know Schneider was seeking
official notice of the ratification vote when he placed a
call to James after the polls closed is not credited.
Spokesman to spokesman in this setting is so patently ob-
vious that any attempt to utter a denial is contrary to all
reason, particularly from a representative with James'
credentials . James' tongue in his cheek was clearly visi-
ble as he testified. UPIU's supporting factual arguments
that Lewis did not say it was official notice, or that no
person with agency status gave the notice , or that James
only had authority to sign the contract when specifically
authorized by an International officer, in my view, do
not need a resolution . The record evidence does not sup-
port such a formalized or stilted procedure between
these parties in the past . There is no evidence in the
record that suggest the instant negotiations were to be
different than those before. It could very well be true
that James can only sign a contract when specifically au-
thorized but that fact does not impact on the obligation
of the International to execute any particular contract.
Likewise, the UPIU's emphasis , in argument , that only
James can bind the International to a contract by person-
ally giving notice to IP that the contract is acceptable
confuses practice with presumption . Additionally, such
an argument leads to the absurd conclusion that absent a
notice, and without regard for the local union 's ratifica-
tion, no contract would exist between the parties. More-
over, James' own testimony supports the contrary argu-
ment . James thought a contract existed following the
ratification vote and told the assembled members as
much . Although there is no logical reason (beyond fin-
ishing his supper) for James to withhold giving notice to
the Company when in his mind a contract existed, there
is an inferential explanation. James was intent and satis-
fied to have Lewis pass the message to Schneider that
the contract was accepted by the membership over
James' known personal recommendation against ratifica-
tion . If James was of another mind or feared any misun-
derstanding , he need only have limited the message
through Lewis so the Company would understand that
James himself would later say, "We have a contract."
The record evidence clearly shows , and I conclude, that,
however distasteful to him , James knew that IP was
intent on implementing the bonus payments and other
contract terms as soon after ratification as possible.
James also knew that the several regular paydays oc-
curred that same week and the bonus check would be in-
corporated with the paydays . Any of James' testimony
to the contrary I do not credit as it runs counter to plau-
sibility and undisputed communications known to all
local union members. Particularly , I discredit his testimo-
ny of lack of concern whether bonuses were paid by the
Company at a time when the International was not pre-
pared to accept the contract . I do not believe that James,
an experienced professional , would approach the latest
bargaining with an attitude so contrasted to past years.
Further, if the International thought the vote of the
membership on the Company's proposal was insufficient
to spark the bonus payments , James, as the International
presence on the negotiating committee, was obligated to
inform the Company when the final offer conditioned on
early ratification was proposed.
Accordingly , I conclude and find that the parties ex-
changed the same communications in these negotiations
as they had in the past and the notice given by Lewis to
Schneider was sufficient to constitute acceptance of the
negotiated contract by UPIU. Therefore, UPIU was
bound to execute the contract defined by IP's final offer.
C. Other Arguments
UPIU argues in brief that no circumstances exist of a
changed position by UPIU with regard to execution of
the contract . The argument has no support in the record
since it is undisputed that UPIU's initial objection to exe-
cution of the contract was founded on an alleged inter-
ference in the ratification process by IP's supervision in
the plant . As stated above, UPIU's demurrer was not
based on concealed conduct, for the parties discussed the
Company's complained of actions as early as March 19.
The complaints were congealed in the unfair labor prac-
tice charged filed on April 9, and first communicated to
the Company on April 11. A followup correspondence
from the International to the Company on April 13 so-
lidified the substance of the complaint . As clearly stated,
UPIU would not execute the negotiated contract until
the unfair labor practice charge was negotiated and a de-
termination was made.
UPIU's initial demurrer to execution of the contract
based on an alleged unfair labor practice of company in-
terference in the Union's internal function of ratification
may be lawful . More particularly , since the negotiations
were specifically conditioned on ratification by the local
union 's membership . However, I do not have the deter-
mination of that interference before me and therefore I
am not deciding the validity or efficacy of the UPIU's
conduct based on that alleged interference . I highlight
the proffered defense only because it is within the factual
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
framework of the case and is instructive of subsequent
UPIU defenses.
The International's unfair labor practice defense to re-
fusal to execute if viable at all was only viable until the
Board made a determination of the charge . That Board
determination was final on October 16 and was adverse
to UPIU. With that finality UPIU could not longer
refuse to execute the contract if a full and complete
agreement with respect to terms and conditions of em-
ployment had been reached by the parties. The record
evidence clearly shows that the parties negotiated a full
and complete agreement as of March 25. That full and
complete agreement was ratified by the local union's
membership and the written contract was executed by all
local union presidents. As discussed above the UPIU was
bound to execute the written contract embodying the
prior agreement and refusal to do so violates Section
8(b)(3).
The constitutional argument , discussed above, was in
fact a changed position by the International . Until the
defense was offered on May 19, the Union had not taken
any position that was contrary to a fully negotiated con-
tract as of March 25 . The belated attempt to augment its
defenses is nothing more than substitution for its failed
effort with the unfair labor practice charge.
UPIU's additional argument based on premature im-
plementation of the contract terms is not supported by
record evidence. The record evinces conclusively that
implementation of contract terms, especially economic
items, did not await the formal execution of a written
contract . Indeed , weeks and sometimes months have
passed before the UPIU executed past contracts. Late
executions were understandably never a problem since
the bargaining unit was already enjoying any new bene-
fits and working under whatever modifications had been
negotiated.
CONCLUSIONS OF LAW
1. The parties reached full and complete agreement
with respect to terms and conditions of employment on
March 25.
2. The local union 's membership of the UPIU voted to
accept the full and complete agreement on March 31.
3. The UPIU was obligated to execute the written
contract embodying the full and complete agreement of
the parties and its refusal to do so constitutes a violation
of Section 8(b)(3) of the Act.
4. The above-described unfair labor practice affects
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I find that it must be ordered to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. The UPIU
shall execute the written contract, and any extensions
thereof, and abide by its terms for the life of said con-
tract.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, United Paperworkers International
Union, its officers , agents, successors, and assigns, shall:
1. Cease and desist from
(a) Refusing to bargain collectively with the employer
and failing and refusing to execute the written contract
embodying the full and complete agreement with respect
to terms and conditions of employment reached by the
parties on March 25.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Acts
(a) On request of the Employer, sign a contract em-
bodying the terms and conditions of employment for the
Employer's employees agreed to on March 31 by the
employees ' ratification vote.
(b) Give full effect to and honor the terms of the con-
tract until its expiration or the expiration of any exten-
sion.
(c) Post at its offices in Moss Point, Mississippi , copies
of the attached notice marked "Appendix."e Copies of
the notice, on forms provided by the Regional Director
for Region 15, after being signed by Respondent's au-
thorized representative , shall be posted by Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced , or covered by any
other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
* If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall , as provided in Sec . 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
5 General Counsel's reference to posttrial discovery as a motion for a
visitatorial clause in the Order is denied . The facts of the case simply do
not warrant such an order.
6 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."