Tobey Fine Papers of Kansas City

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1393 (N.L.R.B. 1979)

TOBEY FINE PAPERS OF KANSAS CITY
Tobey Fine Papers of Kansas City, Division of Distri-
bix, Inc. and Teamsters Local No. 955, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica. Cases 17-CA-8466
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon charges duly filed by Teamsters Local No.
955, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, hereinafter referred to as the Union. the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 17, on
October 12, 1978, issued a complaint and notice of
hearing alleging that Tobey Fine Papers of Kansas
City, Division of Distribix, Inc., hereinafter referred
to as Respondent, violated Section 8(a)(5) and (1) of
the National Labor Relations Act, as amended, by its
untimely withdrawal from the multiemployer bar-
gaining unit on August 11, 1978, and by its subse-
quent refusal to honor and abide by the collective-
bargaining agreement reached on August 25, 1978,
covering all of the multiemployer unit employees.
Respondent filed an answer to the complaint deny-
ing the commission of any unfair labor practices. On
January 19, 22, and 25, 1979, Respondent, the Union,
and counsel for the General Counsel entered into a
stipulation of facts and motion to transfer the pro-
ceedings to the Board, wherein they agreed that the
charge, the complaint, the answer to the complaint,
and the stipulation of facts, including the exhibits at-
tached thereto, shall constitute the entire record
herein, and that no oral testimony is necessary or de-
sired by any of the parties. The parties further stipu-
lated that they waive a hearing before an administra-
tive law judge, the making of findings of fact and
conclusions of law by an administrative law judge,
and the issuance of an administrative law judge's de-
cision, and desire to submit this case for findings of
fact, conclusions of law, and Order directly by the
Board. The parties, however, expressly reserved the
right to object to the materiality or relevance of any
of the stipulated facts.
On March 8, 1979, the Board issued an order ap-
proving the stipulation and transferring the proceed-
ings to the Board, and set a date for the filing of
briefs. Thereafter, Respondent, the Union, and the
General Counsel filed briefs in support of their re-
spective positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire stipulated rec-
ord herein and the briefs submitted by the parties,
and hereby makes the following findings and conclu-
sions:
1. THE BUSINESS OF RESPONDENT
Respondent is a State of Delaware corporation en-
gaged in the distribution of paper products at 200
East 16th Avenue, North Kansas City, Missouri, and
at various other facilities. In the course and conduct
of its business operations, Respondent annually sells
goods and services valued in excess of $50,000 di-
rectly to customers located outside the State of Mis-
souri.
Respondent admits, and we find, that it is an em-
ployer engaged in commerce and in operations affect-
ing commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and we find, that Teamsters
Local No. 955, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
The stipulated facts show that the Union and the
Paper Industry of Kansas City, hereinafter called the
Association, have bargained on a multiemployer ba-
sis for in excess of 20 years.' Prior to the June 1,
1978,2 expiration date of the most recent collective-
bargaining agreement, the Union opened contract ne-
gotiations by letter dated March 20 to the then cur-
rently constituted Association, which was comprised
of 14 employer-members 3 and their approximately
130 employees in the multiemployer unit. Four bar-
gaining sessions were held between April 27 and May
17, at which time there were eight unresolved eco-
I Despite the absence herein of formal, written constitutional bylaws. pow-
ers of attorney, or other evidence associated with membership in multiem-
ployer associations, Respondent concedes, and we find, that it was a member
of the multiemployer bargaining unit for approximately 20 years and at the
inception of the Association's contract negotiations involved in this case.
All dates are In 1978 unless otherwise noted.
'The 14 employer-members of the Association included: Berlau Paper
Company. Bermingham & Prosser Paper Company. Butler Paper Commu-
nity. H i Cole Paper Company. Evans Paper Company. Graham Paper
Company. Midwestern Paper Company, Nationwide Papers, Paper Supply
Company. Standard Paper Company, Tobey Fine Papers, Warwick Paper
Company, Wayne Paper Company, and Weber Paper Company
245 NLRB No. 181
1393
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nomic items, including wages. During the May 17
meeting, Ellison, the Association's attorney and chief
negotiator, proposed a final economic offer consisting
of a $1.19-per-hour wage increase over a 3-year pe-
riod. Ellison further agreed to recommend a $1.20-
per-hour increase, 60 cents immediately and 60 cents
after 18 months, in return for the Union's recom-
mended acceptance of the package to its membership,
which the Union agreed to do.
Thereafter, at an Association meeting on May 19,
Attorney Ellison secured approval of the $1.20 wage
increase proposal, and obtained the signatures of the
employer representatives on a prepared contract. On
the following day, the Union met to consider the As-
sociation's contract proposal which was rejected by a
vote of 81 to 9, and a strike was authorized by a vote
of 80 to 10 unless a better offer was received. No
further bargaining meetings were held, and, on June
6, the employees commenced an economic strike
against all the Association members. Six of Respon-
dent's warehouse employees4 participated in the
strike.
On June 8, Association member Bermingham &
Prosser Paper Company, hereinafter referred to as B
& P, sent a letter to the Association's attorney, Elli-
son, with copies to all employer-members, advising of
its withdrawal from group negotiations and schedul-
ing of individual bargaining meetings with the Union.
On the same day, the Union consented to B & P's
withdrawal; thereafter, separate contract negotiations
were held, resulting in an agreement on June 26 cov-
ering B & P's 12 to 14 employees.
The Association and the Union met on July 18 to
resume negotiations. The Union proposed a $3-per-
hour wage increase over 3 years, plus cost-of-living
adjustments. When Ellison rejected the Union's pro-
posal, a Federal mediator in attendance inquired as
to the Association's position on a $2-per-hour in-
crease over 3 years. Ellison responded that the em-
ployers would not even consider such a proposal.
Thereupon, the meeting ended without agreement,
and no future meetings were scheduled.
Thereafter, on July 25, Nationwide Papers, herein-
after referred to as Nationwide, gave notice to Ellison
that it was withdrawing from Association bargaining.
The Union again consented, entered into contract ne-
gotiations with Nationwide, and, on or about July 31,
executed an agreement covering Nationwide's ap-
proximately 39 to 41 employees.
Respondent, on August 11, filed a representation
4The contractual multiemployer bargaining unit description is as follows:
Cutters and slitters, drivers and order fillers, checkers, receivers and
shippers, warehousemen and packers employed by the employer-mem-
bers of the Association. but excluding professional employees, office
clerical employees. guards and supervisors as defined n the Act.
petition in Case 17-RM-624, and also forwarded
copies of the following telegram to the Association
and to the Union:
Our warehousemen and truckdrivers and cut-
ters have advised us that they no longer desire to
be represented for collective bargaining purposes
by Teamsters Local 955. Accordingly, effective
immediately Tobey Fine Papers of Kansas City,
Inc. resigns its membership in the Association of
wholesale paper companies and refuses to be
bound by any action taken by the Association. 5
On the same date, Respondent sent the following ad-
ditional telegram to the Union:
. . have this day filed a petition with the Na-
tional Labor Relations Board in order to resolve
this question concerning representation through
the election procedures ... this company is de-
clining to negotiate further with Teamsters Local
955 unless and until [the Board] certifies after a
secret ballot election that Teamsters Local 955 in
fact represents an uncoerced majority of our
warehousemen, truck drivers and cutters.
In response thereto, the Union, by letter dated Au-
gust 14, advised Respondent of its refusal to consent
to Respondent's withdrawal from the Association.
At approximately the same time as Respondent's
communication of its decision to withdraw, two oth-
ers members, Butler Paper Company and Graham
Paper Company, hereinafter referred to as Butler and
Graham, also notified the Association and the Union
of their decisions to withdraw from multiemployer
bargaining. 6 Respondent, at the time of its resignation
from the Association, had knowledge of the with-
drawal by Graham Paper Company.
Thereafter, on August 14, a final bargaining meet-
ing was held between the Union and the Association.
The Association's negotiator, Engle, who was substi-
tuting for Ellison, announced that the Association no
longer represented Respondent, Graham, and Butler,
but that its prior wage proposal of May 17 was still
on the bargaining table. The Union's business agent
attempted to discuss the status of the three compa-
An exhibit containing a written statement to this effect and six employee
signatures is included in the parties' stipulation herein.
6 Charges were filed in Cases 17-CA-8447 and 17-CA 8465 against Butler
Paper Company and Graham Paper Company, respectively, based on their
similar withdrawals from the association on August 9 and II, respectively.
As in the instant case, each filed a representation petition (Cases 17-RM 623
and 17 RM-625) in reliance upon letters received from their respective em-
ployees, dated July 31 and August II1, respectively. in which they expressed
their desire not to be represented by the Union. Stipulations were entered
into by the respective parties, and these cases were considered. concurrently
by the Board, and the Decisions are being issued this date in Butler Paper
Company, Division of Great Northern Nekoosa Corporation, 245 NLRB No.
182 (1979); and Graham Paper Company, Division ofJim Walter Paper, Inc..
245 NLRB No 180(1979).
1394
TOBEY FINE PAPERS OF KANSAS CITY
nies, but Engle declined. Finally, at the suggestion of
the Federal mediator, the Union agreed to send a
letter to the approximately 75 remaining unit employ-
ees of the 12 employer-members, including Respon-
dent, Graham, and Butler, requesting them to vote by
mail ballot regarding acceptance or rejection of the
Association's May 17 wage proposal On August 25,
the returned ballots were tallied and showed em-
ployee acceptance of the wage offer by a vote of 19 to
12. Thereupon, the Union and the Association en-
tered into a collective-bargaining agreement, effective
from September 1, 1978, to June 1, 1981. The terms of
the aforesaid multiemployer agreement differ from
those in the individual contracts executed by B & P
and Nationwide with the Union.
It is admitted that Respondent, since August 14,
1978, has refused to recognize or bargain with the
Union as the bargaining representative of its employ-
ees, and, since August 25, 1978, has also refused to
execute or abide by the Association's collective-bar-
gaining agreement.
Discussion and Conclusion
The General Counsel contends that Respondent's
resignation from multiemployer bargaining was un-
timely and ineffective, and that its proffered reason
for withdrawing, i.e., the Union's lack of majority
support among its own employees, was therefore ir-
relevant. Further, he asks us to reject Respondent's
belated assertions that its withdrawal was warranted
by the impasse in contract negotiations, the strike ac-
tion, and the defection by two former Association
members, noting that the aforesaid occurrences nei-
ther corresponded closely in time to Respondent's
August 11 withdrawal notice, nor did they constitute
"unusual circumstances" which could justify an oth-
erwise untimely withdrawal.
The Union contends that it consents to withdraw-
als by B & P and Nationwide did not excuse Respon-
dent's action since the multiemployer unit was not
left fragmented or weakened thereby, as evidenced by
the fact that the association succeeded in thereafter
winning approval of its same wage proposal which
was earlier rejected by the Union and which in turn
created the original impasse in bargaining. The
Union also points to its own subsequent role in meet-
ing with the Association and in agreeing to resubmit
the wage offer to the unit employees as evidence that
it was not seeking to destroy the viability of the mul-
tiemployer bargaining unit.
Respondent, on the other hand, takes the position
that the combination of circumstances here, including
the Union's consent to withdrawals by two former
Association members and it execution of final, sepa-
rate agreements with them, demonstrates the Union's
own rejection of multiemployer bargaining, and it
should not therefore be permitted in this proceeding
to require reestablishment of the original 14-employer
bargaining unit. It argues that the instant case is
analogous to Connell Typesetting ? wherein the Board
found that consensual employer withdrawals and
separate bargaining had so depleted a multiemployer
bargaining unit that it would be "unfair and harmful
to the collective-bargaining process" not to permit
one or more of the remaining employer-members to
withdraw.8
We find Respondent's contentions lacking in merit,
and that its withdrawal from multiemployer bargain-
ing herein was untimely and ineffective for the follow-
ing reasons.
In our recent Bonanno decision,9 we reexamined
the impact of a bargaining impasse upon multiem-
ployer negotiations in light of its potential as an affir-
mative device to aid in achieving agreement, and we
reemphasized that parties have great leeway during
impasse, absent proof of unlawful motivation, to
exert concurrent economic pressure upon each other.
We also concluded that the negotiation of individual
"interim" agreements during impasse may prevent,
rather than cause, significant multiemployer unit
fragmentation. Respondent herein in essence con-
tends that the Union's negotiation of final, separate
agreements establishes its unlawful motivation and
per se created new withdrawal rights in Respondent,
and in Butler and Graham. In our view, it does not
follow ipsofacto that execution of individual separate
final contracts with former Association members ei-
ther proves an intention to destroy, or necessarily
causes the fragmentation of, a multiemployer unit.
Rather, the facts of each case must be assessed in
order to ascertain the impact of the parties' conduct
upon the continued viability of multiemployer bar-
gaining.
In this case, as the undisputed facts disclose, B & P
withdrew its 12 to 14 employees from the multiem-
ployer unit, with union consent and without objection
from the Association or its members,' 2 days after
the June 6 strike action by the Union. B & P's with-
drawal reduced the Association membership by I I
percent and the employee complement by 7 percent.
The lack of any discernible impact upon the Union
and Association following B & P's withdrawal and
7 Connell Typesetting Company, et al., 212 NLRB 918 (1974).
s212 NLRB at 921. There, the unit retained only 13 of 36 employer-
members and 36 of the original 209 employees.
9 Charles D. Bonanno Linen Service, Inc., 243 NLRB No. 140 (1979)
' A multiemployer association or its members has the right to object to
the defection by an employer-member by filing a refusal-to-bargain charge
with the Board. See Teamsters Union Local No. 378. affiliated with Inlerna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Capitol Chevrolet Co), 243 NLRB No. 138 (11979).
1395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
execution of an individual, final contract with the
Union on June 26 is demonstrable by the fact of the
subsequent association-Union negotiating session on
July 18. One week later, Nationwide, the largest em-
ployer with 39 to 41 employees, gave notice of its
withdrawal, again with union consent and no Associ-
ation objection. Nationwide also entered into a sepa-
rate, final agreement with the Union on July 31. The
combined actions of B & P and Nationwide had the
effect of diminishing employer and employee involve-
ment in the multiemployer unit by 14 percent and 42
percent, respectively. Thereafter, on August 9 and 11,
representation petitions were filed, and notices of
withdrawal given by Respondent, Butler, and Gra-
ham; nevertheless, on August 14 there was a subse-
quent and final bargaining session which led to a col-
lective-bargaining agreement between the Union and
the remaining Association members.
We are unable, in these circumstances, to accept
Respondent's assertion that its withdrawal, and that
of Butler and Graham, was justified by union conduct
which it asserts was inimical to group bargaining and
substantially weakened and fragmented the Associ-
ation bargaining unit. Rather, we view the Union's
and Association's continued bargaining efforts and
successful conclusion as a forceful rebuttal to Re-
spondent's charge that the Union's earlier conduct
manifested a rejection of multiemployer bargaining
and had a fatal impact upon it. Moreover, we note
that the concurrent withdrawals and filings of repre-
sentation petitions were, in each case, expressly tied
to an expression of doubt as to the Union's majority
support among the respective employees rather than
predicated upon the impasse, strike, objectionable
union conduct, or any deficiency in the Association or
its viability."
We therefore conclude the Respondent's untimely
withdrawal from the multiemployer bargaining unit
was unwarranted, and that by that conduct and its
subsequent refusal to execute or abide by the Associ-
ation-wide collective-bargaining agreement, Respon-
dent has violated Section 8(a)(5) and (1) of the Act.l2
" We find the instant case distinguishable from Typrographic Service Co.;
et al., 238 NLRB 1565 (1978), in which the Board majority found (Chairman
Fanning dissenting), on the facts, that the union bypassed the association,
inter alia, by offering to cease its strike activities against 7 of the 17 em-
ployer-members in return for their abandonment of the association's con-
tract proposals, which thereby effectively dissolved the viability of the mul-
tiemployer bargaining unit. Nor do we agree with Respondent that the
situation herein closely parallels or is controlled by Connell Typesetting Com-
pany, et al., supra. See Birkenwald, Inc. d/b/a Birkenwald Distributing Com-
pany, 243 NLRB No. 155 (1979).
2 Chairman Fanning would not find that Respondent violated Sec. 8(aX5)
and (I) as of the time of its withdrawal, adhering to his position in Ringside
Liquors, Inc. d/b/a Dino's Lounge and Cassell d Friedman, Inc., dbla Kind
of Clubs, 237 NLRB 30, fn. 2 (1978); Independent Association of Steel Fabri-
cators, Inc., et al., 231 NLRB 264, fn. 2 (1977); and Preston H. Haskell
Company, 238 NLRB 943 fn. 1 (1978).
THE REMEDY
Having found that Respondent has engaged in cer-
tain unfair labor practices, we shall order that it cease
and desist therefrom and take certain affirmative ac-
tion designed to effectuate the purposes of the Act. In
this connection, we shall order that Respondent im-
mediately sign and implement the agreement reached
between the Union and the Paper Industry of Kansas
City, and give retroactive effect thereto as of Septem-
ber 1, 1978 (The Carvel Company and C and D Plumb-
ing and Heating Company, 226 NLRB 111 (1976)),
and make its employees whole for any loss of earn-
ings suffered since then as a result of its failure to
apply the said agreement. Backpay is to be computed
in accordance with Ogle Protection Service, Inc., 183
NLRB 682 (1970), with interest thereon as prescribed
in Florida Steel Corporation, 231 NLRB 651 (1977).'
Nothing herein is to be construed as requiring Re-
spondent to recoup wages or benefits already received
by its employees. Respondent will also be directed to
make payments into the various funds on behalf of
those employees in the unit for whom such contribu-
tions would have been made had Respondent not un-
lawfully repudiated the collective-bargaining agree-
ment. Vin James Plastering Company, 226 NLRB 125
(1976).
CONCLUSIONS OF LAW
1. Tobey Fine Papers of Kansas City, Division of
Distribix, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Teamsters Local No. 955, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. Teamsters Local No. 955, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is, and has
been at all material times herein, the exclusive bar-
gaining representative of the employees of Respon-
dent in the following appropriate unit:
Cutters and slitters, drivers and order fillers,
checkers, receivers and shippers, warehousemen
and packers employed by the employer-members
of the Association, but excluding professional
employees, office clerical employees, guards, and
supervisors as defined in the Act.
4. By its untimely unilateral withdrawal from the
multiemployer unit, and by its subsequent refusal to
sign and implement the collective-bargaining agree-
ment reached between the Union and the Paper In-
'13 See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).
1396
TOBEY FINE PAPERS OF KANSAS CITY
dustry of Kansas City on August 25, 1978, effective
September 1, 1978, Respondent has engaged in, and
is engaging in, unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent,
Tobey Fine Papers of Kansas City, Division of Distri-
bix, Inc., Kansas City, Missouri, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with Teamsters
Local No. 955, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining rep-
resentative of its employees in the appropriate mul-
tiemployer bargaining unit.
(b) Refusing to sign and implement the 1978-81
collective-bargaining agreement reached between the
above-named Union and the Paper Industry of Kan-
sas City with respect to the employees in the appro-
priate unit.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Na-
tional Labor Relations Act, as amended.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Forthwith sign and implement the above-de-
scribed agreement and give retroactive effect thereto
from September 1, 1978.
(b) Make whole its employees in the appropriate
bargaining unit for any loss of pay or other employ-
ment benefits which they may have suffered by rea-
son of its refusal to sign and implement the aforesaid
agreement in the manner set forth in "The Remedy"
section of this Decision.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its Kansas City, Missouri, facility copies
of the attached notice marked "Appendix."' 4 Copies
' In the event that this Order is enforced by a Judgment of a United
of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Teamsters Local No. 955, affiliated with In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
as the exclusive bargaining representative of em-
ployees in the appropriate multiemployer bar-
gaining unit, by refusing to sign and implement
the 1978-81 contract between the Union and the
member-employers of the Paper Industry of
Kansas City.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act,
as amended.
WE WILL forthwith sign and implement the
above-mentioned contract and give retroactive
effect thereto from September 1, 1978.
WE WILL make whole our employees in the
appropriate bargaining unit for any loss of pay
or other employment benefits they may have suf-
fered by reason of our refusal to sign and to im-
plement the aforesaid collective-bargaining
agreement, with interest.
TOBEY FINE PAPERS OF KANSAS CITY, DIVI-
SION OF DISTRIBIX, INC.
1397