United Paperworkers Intl. Union, Local 1027

National Labor Relations Board - Board Decisions

Feb 5, 1975

216 N.L.R.B. 486 (N.L.R.B. 1975)

486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Paperworkers International Union, AFL-CIO,
and Its Local Union No. 1027 and Westab -Kala-
mazoo Division, Mead Corporation. Case
7-CB-28891
February 5, 1975
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On May 24, 1974, Administrative Law Judge
Bernard J . Seff issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs, and Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge to
the extent consistent herewith, and to adopt his
recommended Order.
The Respondent is one of seven unions which
bargain with Mead Corporation for seven separate
units of employees located at the five plants
composing Mead Corporation's Westab Division.
Each of these seven unions has been separately
recognized as the representative of a single unit for
more than 20 years and each has had consecutive
bargaining contracts with the Employer throughout
those years limited to the single unit each represents.
Since 1953, under a practice initiated at Westab's
request, each such contract has contained provisions
for: (a) pension benefits under a plan established in
negotiations conducted on a multiunit basis between
Westab and the seven unions acting through one
agent commonly and covering all employees in the
seven units , supra; and (b) other employee working
conditions established by separate negotiations
between Westab and each unit's recognized bargain-
ing representative.
The events giving rise to the complaint herein
occurred in 1973, during negotiations looking to the
establishment of new contract terms to replace those
of the contracts expiring in the latter part of 1973.
Acting in accord with the established bargaining
I The following unions were also named as parties in interest and served
with the complaint and notice of hearing : United Paperworkers Internation-
al Union , AFL-CIO, and its Local Union No . 247; United Paperworkers
International Union, AFL-CIO, and its Local Union No. 442; Local 9B,
Graphic Arts International Union , AFL-CIO; and Printing Specialties and
Paper Products Union, District Council No. 2, Southern California,
International Printing Pressmen and Assistants' Union of North America.
practices, the seven unions authorized one of their
number-here the Respondent Union-to act on
their behalf in proposing and negotiating changes in
the pension plan at meetings to be held separately
from those between Westab and each of the seven
unions for the purposes of negotiating other employ-
ment conditions. Westab refused to honor Respon-
dent's request for multiunit negotiations on the
pension plan and insisted that the proposals for any
changes in the plan now be held on a separate single-
unit basis. Respondent, as the agent of the seven
unions involved, adamantly rejected Westab's de-
mand in this respect. Both Westab and the union
parties then filed charges against each other respec-
tively alleging that each had failed and refused to act
in accord with its respective statutory bargaining
obligations. General Counsel chose to proceed on
Westab's charge and issue the complaint herein
against Respondent. The question posed by that
complaint is whether the Respondent's insistence on
bargaining about pensions in accord with a 20-year
practice of bargaining on the matter between the
parties was conduct violative of the duties imposed
on union bargaining agents by Section 8(b)(3) of the
Act.
Contending that the Respondent's conduct was
unlawful, as alleged, Westab and the General
Counsel make no claim that anything in the Act
forbade the parties from entering into the kind of
bilateral bargaining arrangements here involved and
then maintaining them for more than 20 years. They
contend, rather, that the historical pattern of bar-
gaining in this case had not extinguished the lines of
the units appropriate as defined either by this
Board's single-plant unit certifications issued to
Respondent and other of the unions or by voluntary
recognition accorded to some of the unions on the
same basis.2 They contend further, in these circum-
stances, that none of the several unions involved
could lawfully compel Westab to bargain in any but
the single-plant unit each was authorized to represent
about any mandatory subject of collective bargain-
ing; and that, by insisting to the point of impasse on
a continued negotiation of pensions (a mandatory
subject of bargaining) on the historical multiplant
basis, Respondent acted in derogation of its statuto-
rily defined bargaining obligation.
Contrary to the position of the General Counsel
and in accord with that of the Administrative Law
Judge, we do not believe that the union conduct in
None of these parties , however, chose to appear at the hearing.
2 The record affirmatively indicates that the Respondent Unions were
certified as bargaining representatives at the Kalamazoo plant unit in 1948,
but merely states that the bargaining representatives at other units were
"duly recognized ." The Charging Party's brief asserts , however, that the
several unions hold Board certifications for the single-plant unit each
represents.
216 NLRB No. 80
UNITED PAPERWORKERS INTL. UNION, LOCAL 1027 487
this case was incompatible with the statutory scheme
of bargaining. As illustrated by this and many other
cases coming before the Board , once "an" appropri-
ate unit of employees establishes a union's represent-
ative status, the parties are not so imprisoned by the
unit description that they cannot lawfully mutually
and voluntarily combine, with the consent of other
unit representatives , such unit with others for the
purposes of settling some or all of the conditions of
employment of mutual interest to all the represented
employees involved. We are aware of no case in
which the Board has held that bargaining under such
consensual arrangements is in derogation of "the
appropriate unit" bargaining concepts of the Act,
even though, absent a history of bargaining under
such arrangements, the Board would not, in the face
of proper objections by a party or parties, establish
all of the employees involved as a single appropriate
unit. In the face of the history of bargaining here, it
appears plain that consenting parties have founded
an "appropriate" unit for the conduct of collective
bargaining about that part of the employment
conditions which the parties found mutually satisfac-
tory to negotiate on that basis. We therefore see no
reason to hold that insistence to impasse by either
party upon retaining such a valid consensual unit
arrangement arrived at through the voluntary proces-
ses of negotiation is precluded by the statutory
scheme of bargaining or incompatible with the
policies it seeks to serve .3
This is not to say, however, that there was anything
at odds with the statutory scheme in Westab's
proposal and its adamant insistence thereon that
bargaining on the subject of pensions now take place
in the single-plant unit rendered appropriate as a unit
for bargaining by Board certification (or, if it were
the case , through recognition voluntarily accorded
on the same unit basis). We would find that such a
proposal to bargain in a different , but also clearly
appropriate (by our usual standards), unit is a lawful
proposal also. In short, the resolution of which of
various appropriate units best suits the needs of the
parties at any given time seems to us to be a matter
3 Compare General Electric Company, 150 NLRB 192 (1964), enfd. 418
F.2d 736 (C.A. 2, 1969), and Radio Corporation of America, 135 NLRB 980
(1962), cases illustrative of situations in which , under historical arrange-
ments, parties in the bargaining relationship had agreed to negotiate on
some of the subjects of mandatory bargaining on a broad scope unit basis
but to leave other subjects for negotiations on a narrower scope unit basis.
The Board's decisions in both cases indicate that the adamant resistance of
one party to the bargaining relationship to proposed departures by the other
from established practices does not establish a violation of the statutory
duty to bargain . They further indicate that the parties ' historical practices in
defining some of the subjects of bargaining as single -plant unit issues and
others as multiplant unit issues is not incompatible with the statutory
scheme of bargaining.
In The Kroger Co , 141 NLRB 564 (1963 ), affd . 330 F .2d 210 (C.A.D C).
cert. denied 379 U .S. 929 ( 1964), and The Kroger Co., 148 NLRB 569 (1964),
the Board found equally compatible with the statutory bargaining scheme a
for discussion and negotiation by the parties and in
which this Board need not as a matter of law, and
should not as a matter of wisdom, become involved.
In agreement with the Administrative Law Judge,
we conclude accordingly that the complaint herein
should properly be dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
MEMBER KENNEDY, dissenting:
Section 8(b)(3) and 8(a)(5) of the Act imposes the
obligation on a union or an employer to bargain as to
the "terms and conditions of employment" in the
"unit appropriate for such purposes" which the
union represents .4 Accordingly, I consider Respon-
dents' refusal to bargain with the Employer in the
certified bargaining unit to be a violation of Section
8(b)(3).
As noted by my colleagues, the Employer operates
five separate plants. In these plants, the production
and maintenance employees are grouped into seven
bargaining units, only three of which are represented
by Respondent Paperworkers International and its
locals. The remaining four units are represented by
four different labor organizations. For more than 20
years, the Employer has executed consecutive collec-
tive-bargaining agreements for each of the seven
bargaining units.
Prior to 1953, all conditions of employment-in-
cluding pension benefits-were negotiated on an
individual unit basis. In that year, the Employer and
each of the labor organizations elected for the first
time to negotiate pension benefits on a joint,
multiunit basis. All other subjects of bargaining
continued to be negotiated separately for each unit.
The mechanics of the multiunit pension negotia-
tions quickly developed into a recurrent pattern.
situation where interested parties had consented to a bargaining arrange-
ment under which one of many employers composing "an" appropriate
multiemployer unit reserved the subject of pensions for separate negotia-
tions between itself and an employee union representative.
And see the recently decided Newspaper Production Company case, 205
NLRB 738 (1973), wherein we refused to find that a umon's strike in
support of its insistence to impasse upon the expansion of an appropriate
unit which had been arrived at through the voluntary processes of
negotiation to an equally appropriate unit again by the process of voluntary
negotiation was in derogation of the union 's bargaining obligations. To the
extent that Pacific Coast Association of Pulp and Paper Manufacturers, 133
NLRB 690 (1961 ), enfd . 304 F.2d 760 (CA 9, 1962), would appear to
indicate to the contrary, we would not adhere thereto.
a Allied Chemical & Alkah Workers of America Local Union No 1 v.
Pittsburgh Plate Glass Co., Chemical Division, 404 U.S. 157, 164 (1971).
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Management's negotiating team would consist of
plant managers from each of the five plants plus a
representative of the Employer's actuarial company.
The 'labor negotiating team would consist of a
representative from each of the seven participating
unions . While each team selected a chief spokesman,
all team members participated in the discussions and
were authorized to cast a vote in determining the
team 's bargaining position . When a final agreement
was reached , each team member would sign it as
representative of his plant or unit.
The agreement reached by the negotiators would
then be separately drafted for each of the seven units.
The draft was then submitted to each unit for
ratification. Once ratified, the pension provisions
would be incorporated by reference into the unit's
agreement on all other terms and conditions of
employment.5 An explanatory booklet describing the
pension benefits would then be prepared for each
bargaining unit.
While the bifurcated bargaining procedure was not
without its critics,6 it was utilized through the 1969
negotiations. Shortly after those negotiations were
completed, each of the five plant managers informed
their local unions that the Employer desired to
abandon the multiunit negotiations and return to the
former practice of negotiating all subjects-including
pensions-on a single -unit basis.
The dispute giving rise to the instant proceeding
arose at the Employer's Kalamazoo, Michigan,
facility. In 1948, the Respondents were certified by
this Board to represent the Kalamazoo production
and maintenance employees. Between 1953 and
1969, collective bargaining at Kalamazoo was con-
ducted in accordance with the procedures described
above. In 1971, the nonpension terms and conditions
of employment were renegotiated. Pursuant to the
position announced 2 years earlier , management
offered a pension proposal limited to the Kalamazoo
plant. The proposal was subsequently abandoned in
the face of resistance from Respondents.
In 1973, the 1969 multiunit pension agreement
became subject to renegotiation. Respondents de-
manded that bargaining be conducted on a multiunit
basis. The Employer reiterated its view that pension
benefits should once again be negotiated separately
5 Although none of the units have ever failed to ratify a negotiated
pension agreement , an employer witness testified without contradiction
that, should such ever occur, the multiunit pension agreement would not be
applied to that unit and pension benefits would then be determined
pursuant to local negotiations.
a In 1957, for example , the Respondent International sought to exclude
each of the units represented by other labor organizations from the scope of
the multiunit negotiations . During the 1969 pension negotiations, bargain-
ing ceased for approximately I month when a plant manager submitted a
proposal which was limited to the unit at his own facility . In neither
situation was the existing procedure modified.
I
Both the Board and the courts have held that neither a union nor an
employer may insist, as a condition of reaching agreement in one unit, that
for each unit. Refusal-to-bargain charges were filed
against the Employer and the Unions. The charge
against the Employer was dismissed while the charge
against Respondents resulted in issuance of the
instant complaint. Respondents admit that their
rejection of single-unit negotiations was absolute at
all times.
My colleagues find that Respondents' refusal to
bargain in the certified unit does not violate the Act.
In their view, the bilevel pattern of bargaining
utilized in the past evidences a "consensual arrange-
ment" to negotiate pensions on a multiunit basis.
Given this arrangement, they see no reason to hold
that "insistence to impasse by either party upon
retaining such a valid consensual unit arrangement
arrived at through the voluntary processes of
negotiations is precluded by the statutory scheme of
bargaining nor incompatible with the policies it seeks
to serve."
I cannot agree. In my view, it is one thing to say
that parties may "lawfully, mutually, and voluntari-
ly" agree to combine several bargaining units for
purposes of jointly negotiating issues of common
concern. It is quite another thing to say that once
having utilized such an arrangement over a period of
time, the parties are thereafter precluded from
insisting that negotiations be resumed in the certified
units. A "consensual arrangement," after all, requires
the consent of all participants. Once that consent is
withdrawn, the arrangement is no longer mutual and
voluntary. And in the context of this case such an
arrangement operates in derogation of a Board
certification. Accordingly, Respondents' insistence
upon the continuation of such an arrangement here
does indeed constitute conduct in derogation of its
statutorily defined bargaining obligation.?
In my view, this result is compelled by the
principles recently enunciated in Shell Oil Company.8
In Shell, the parties had always negotiated fringe
benefits separately for each of its 80 bargaining units.
When the union was unsuccessful in its efforts to
secure companywide bargaining, 8(a)(5) charges
were filed. The Board adopted the Administrative
Law Judge's dismissal of the complaint. In his
Decision, the Administrative Law Judge made the
the negotiations also include other units and the other party is free to reject
such a proposal . See The Standard Oil Co. v. N. L. R. B., 322 F.2d 40, 45 (C.A.
6, 1963); Douds v. International Longshoremen 's Association [New York
Shipping Assn.], 241 F.2d 278 (C.A. 2, 1957); N L.R B v South Atlantic and
Gulf Coast District Intl. Longshoremen's Association , AFL-CIO [Lykes Bros.
Steamship Co.], 443 F.2d 218 (C.A. 5, 1971); N.L R B. v. International
Brotherhood of Electrical Workers [Texhte, Inc.], 266 F.2d 349 (C A 5,
1959), enfg . 119 NLRB 1792, 1795-98 (1958). See also United Mine Workers
of America v. Pennington, 381 U.S . 657, 666-667 (1965); N L.R B v. George
P. Pilling & Son Co., 119 F.2d 32, 38 (C.A. 3, 1941). Cf United State Pipe and
Foundry Company v. N L.R.B., 298 F.2d 873, 877-888 (C.A. 5, 1962), cert.
denied 370 U.S. 919 (1962).
9 194 NLRB 988 (1972 ), enfd 486 F .2d 1266 (C.A.D.C., 1973).
UNITED PAPERWORKERS INTL. UNION, LOCAL 1027 489
following observations regarding the sanctity of
certified or recognized bargaining units:
It is well settled that the parties to a collective-
bargaining relationship may voluntarily agree-
subject to any later determination of appropriate-
ness under Section 9(b) of the Act-to the
enlargement or alteration of an existing unit, or to
the merger of separate units, theretofore recog-
nized by the parties or found by the Board to be
appropriate for the purposes of collective bargain-
ing. But, in the absence of an agreement, neither
party may attempt to force upon the other an
enlargement, alteration or merger of an estab-
lished unit or units. Stated differently, an employ-
er (or a union) may lawfully insist on confining
bargaining within established unit borders, and-
what is but the opposite side of the same coin-a
union's (or employer's) attempt by coercive
means, or by insistence in bargaining to the point
of impasse, to require the crossing of such borders
will be regarded as a unilateral attack on the
integrity of the established bargaining unit,
violative of the Act. The stated principle rests on
the rationale that, once an appropriate unit has
been established, and particularly where this has
been done by a finding of the Board, the statutory
interest in maintaining stability and certainty in
bargaining obligations requires adherence to that
unit in bargaining. [194 NLRB 995.]9
The Circuit Court for the District of Columbia
denied the Union's petition for review of the Board's
Order in Shelly and articulated the applicable law as
follows:
While it has been held that the parties may agree
to consolidate units for purposes of collective
bargaining, respect for the stability of industrial
relations imparted by the Board's determinations
has led to the rule that a party may not be forced
to bargain on other than a unit basis. [486 F.2d at
1268.]
Unlike my colleagues, I do not think that these
principles are altered by the fact that the "consensual
arrangement" providing for multiunit bargaining on
pensions existed for several years. At what point does
a "temporary" consensual arrangement become
transformed into a "permanent" one? Five years?
Ten years? Fifteen? The fact of the matter is that,
since the arrangement is predicated upon voluntary
and mutual participation, it is subject to termination
at any time.
I also am of the opinion that the conclusion of my
colleagues is directly contrary to the principle
applied by this Board in Pacific Coast Association of
Pulp and Paper Manufacturers, 133 NLRB 690 (1961),
enfd. 304 F.2d 760 (C.A. 9, 1962). In the Pacific
Coast case, the parties had bargained for 25 years on
a multiemployer basis. During that 25 years, the
union and employer association had not bargained
for pensions on a multiemployer basis. Rather,
pensions had been negotiated on a single-employer
basis. The union became dissatisfied with the 25-year
practice of single-employer pension negotiations and
requested bargaining on pensions in the same
multiemployer unit that all other terms and condi-
tions of employment were negotiated. The Board
held that the employer's insistence that the parties
adhere to the 25-year practice of negotiating pen-
sions on a single-employer basis violated Section
8(a)(5) of the Act. In so finding, the Board stated:
Of course, a mandatory subject of bargaining
may, by agreement of the parties, be negotiated
on an individual employer basis by the employer-
members of the unit. See, e.g., Rice Lakes
Creamery Co., 131 NLRB 1270. However, such an
agreement is equivalent of a waiver during
negotiations and is effective for the duration of
the contract which is concluded as a result of the
bargaining. See Speidel Corporation, 120 NLRB
733. And a refusal by the employees and/or their
agent to discuss or bargain on the multiemployer
basis concerning the matter, upon demand at a
proper time, is contrary to the duty to bargain
imposed by the Act. . . . Here, the parties had
previously agreed that pensions should be bar-
gained for at the local level, but the Union sought
to bargain on the association level at a proper
time, i.e., during renegotiation of the contract.
While an employer is not obligated to make any
concession, it is required to discuss issues and
make a reasonable effort to reach an agreement.
[133 NLRB at 691, fn. 2.]
Courts have admonished the Board that we must
apply the statute evenhandedly.11 There is no logical
distinction between the instant case and the Pacific
Coast case. Disregard of the Pacific Coast principle
cannot be justified simply on the ground that we here
have Union Respondents.
Finally, it is important to emphasize that this case
is not like Chase Brass & Copper Co., Incorporated.12
in which the history of multiunit bargaining resulted
in a voluntary merger of the individual units into a
9 See also Douds v. International Longshoremen 's Association, 241 F.2d N.LR.B., 486 F.2d 1266 (C.A.D.C., 1973).
278 (C.A. 2, 1957). 11 Wilkinson Manufacturing Company, 456 F.2d 298 (C.A. 8, 1972).
10 Oil, Chemical and Atomic Workers, International Union, AFL-CIO v. 12 123 NLRB 1032 (1959).
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
single larger unit. Unlike Chase Brass & Copper, the
separate unit concept was fully preserved here-each
plant was afforded equal representation and voting
privileges on the negotiating teams; individual
pension agreements were drafted for each unit; and
the employees in each unit were required to ratify the
agreement prior to implementation. In this respect,
General Electric Company 13 and Radio Corporation of
America.14 relied on by my colleagues, are more
analogous to Chase Brass & Copper than to the
instant case. In each of those cases the employer
historically dealt with the International labor organi-
zation on behalf of its constituent locals with regard
to national issues . The Board concluded that the
International organizations had, in effect, become
the de facto accredited bargaining representative of
all the represented employees in a single overall
bargaining unit. Accordingly, any attempt by the
employer to disturb this relationship through direct
bargaining with an affiliated local would violate
Section 8(a)(5). Such, of course, is not the case here
where each Union retained its separate identity
throughout the negotiating process and reserved the
right to reject the negotiated agreement.15
In my judgment, the inevitable result of my
colleagues' decision will be to discourage parties
from experimenting with multiunit bargaining. For,
once they feel that any departure from bargaining in
the certified unit is or may become irreversible,
uncertainty as to the precise consequences of such a
departure will effectively preclude them from ever
doing so. Accordingly, I would find Respondents'
refusal to bargain in the certified unit to be a
violation of Section 8(b)(3).
13 150 NLRB 192 (1964), enfd. 418 F.2d 736 (C.A. 2,1%9).
14 135 NLRB 980 (1962).
15 Nor do I believe my colleagues can derive support for their position
through citation to Newspaper Production Company, 205 NLRB 738 (1973).
In that case the union was found to have lawfully bargained to impasse over
an expansion of the historical bargaining unit. However, the unit there had
always been established through the process of collective bargaining. The
Board had never issued a certification and had never made a determination
as to the appropriateness of any bargaining unit. Accordingly, the right of a
party to insist upon bargaining in a unit not established through the
negotiating process was never raised in that case.
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: I heard
this case in Kalamazoo, Michigan, on January 15, 1974,
based on a complaint issued by the Regional Director for
Region 7 on November 30, 1973, which in turn was based
on a charge filed on August 20, 1973, by Westab-
Kalamazoo Division, Mead Corporation (hereinafter
known as Westab K or the Company). Briefly stated the
complaint alleged that since about August 28, 1973, the
Union, United Paperworkers International Union, et al.
(hereinafter known as the Union or UPIU), refused to
bargain with Westab K about pensions on the basis of
single plant negotiations contrary to a 16-year practice of
dealing by the Union and the Company on a multiplant
basis regarding pensions, thus allegedly violating Section
8(b)(3) of the Act. The Union in its answer denied the
commission of any unfair labor practices but admitted that
it is a labor organization within the meaning of the Act and
that the Company is engaged in commerce.
The Union and the Company filed helpful briefs which
have been carefully considered. The General Counsel did
not file a brief.
Upon the entire record in the case, including my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATIONS INVOLVED
Westab K, an Ohio corporation, has its principal office
and place of business in the city of Kalamazoo, Michigan,
where it is engaged in the manufacture, sale, and
distribution of school supplies, stationary, envelopes, and
related products. During the past year, it sold and
delivered goods directly to customers outside the State of
Michigan valued in excess of $50,000, and received
supplies and materials valued in excess of $50,000 from
outside the State of Michigan. I find that the Company is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. Respondent and the other
labor organizations involved in this proceeding are labor
organizations within the meaning of Section 2(5) of the
Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
In 1948 the predecessor of the UPIU the United
Papermakers and Paperworkers and its Local No. 1027 was
certified as the exclusive representative for collective
bargaining in a unit including "all employees of the
Kalamazoo plant" but excluding, "office and clerical
employees , plant protection employees, professional em-
ployees and supervisory employees as defined in the Act."
In addition to its Kalamazoo operation, through the years
the Company has added to its corporate family by mergers
and other means the following plants: St. Joseph, Mis-
souri ; Garden Grove, California; Salem, Oregon; and
Alexandria, Pennsylvania. Three separate units for collec-
tive bargaining exist at the St. Joseph plant. At all the other
plants of the Company the employees are represented in
single plant units consisting basically of production and
maintenance employees with the usual statutory exclu-
sions . Thus, including Kalamazoo , the Company bargains
with respect to seven separate bargaining units . In three of
these units, separate Locals of the UPIU represent the
employees as their exclusive representative . In the remain-
ing units a number of different other unions represent the
Company's employees . All of the employees who are
represented by labor unions bargain on a single plant unit
basis as to wages, hours, and working conditions with a
UNITED PAPERWORKERS INTL. UNION, LOCAL 1027 491
special exception with respect to the subject of pensions.
Pensions are bargained on a multiplant basis.
B. The Facts
In 1953, for the first time, the Company installed a
multiplant pension plan . In this connection it should be
specially noted that Westab K initiated the suggestion that
pensions be bargained on a multiplant basis . The several
different unions agreed and pension bargaining continued
on this basis at 4-year intervals from 1953 until 1969. In
1957 United Papermakers and Paperworkers , the predeces-
sor to the UPIU, attempted to limit pension bargaining to
only the three plants where UPIU locals were the
bargaining representatives . It sought to leave the plants
represented by the other International unions to negotiate
separately for pensions . The record shows that the then
vice president of the UPP, Mr. Charles Bridgewater,
received a letter from the chairman of the board of the
Western Tablet and Stationary Company, the former name
of the Charging Party, dated August 30, 1957, which
appears in the record as Respondent 's Exhibit 2. This letter
states, inter alia:
... As you know, the pension plan of this Company
provides for the employees in the various bargaining
units in all of our Divisions . You have requested a joint
conference on behalf of Locals 442, 696 and 1027 of
United Papermakers and Paperworkers . Your request
does not cover employees in any Division who are not
members of your union. We have no objection to a
joint conference regarding the pension plan but we do
feel that any such conference should include represent-
atives of all of the employees in all of our Divisions.
[Emphasis supplied.]
Despite the Union 's efforts to limit pension bargaining to
only the three plants represented by it the Company
resisted this attempt and bargaining continued to take
place on a multiplant and multiunion basis . Thus it can be
seen that from the outset of the installation of the pension
plan in the Company's plants the subject of pensions was
intended by the Company to be bargained and took place
on a multiplant basis and not separately.
Thereafter it was not until September 10 and 11, 1969,
that a deadlock occurred on several items involving
changes in the pension plan that the Company, for the first
time , gave oral notification of its desire to bargain on a
separate plant basis regarding pensions . The Union
resisted this effort, the demand was withdrawn and
bargaining resumed on October 15, 1969. A new memoran-
dum of agreement covering all five plants was agreed upon
which contained a paragraph 14 which states as follows:
14. Subject to the limitations of Item 13 , above, the
pension plans shall not be subject to any changes or
modifications prior to September 1, 1973. As of such
date and as of any subsequent September 1, the
divisions or the unions, on not less than 60 days prior
notice , may request negotiations with respect to
modification thereof. (G.C. Exh. 3).
From this quotation, agreed to by all parties, the Union
concludes that "this language clearly contemplated a
continuation of multiplant bargaining on pensions in the
future."
The Employer wrote a letter dated December 2, 1969, to
the UPP representative at Kalamazoo confirming "the
Company's verbal notice given during our recent pension
negotiations to the effect that the Company no longer
agrees to meeting in joint negotiations when the pension
agreement expires." (G.C. Exh. 1 - Exh. A to the
complaint.) To this letter Nicholas Vrataric, vice president
and principal union spokesman at the pension negotia-
tions, replied by letter dated December 19, 1969 (Resp.
Exh. 4). Vrataric noted the Company's withdrawal at the
October 15 meeting of its demand for separate bargaining
and reiterated the Union's position to be that the Company
could not legally and unilaterally terminate joint bargain-
ing.
Despite this exchange of correspondence no effort was
made by the Company to bargain separately until
September 1, 1973, which was less than 60 days prior to the
expiration of the 1969 pension agreement - September 1,
1973. Vrataric had written the Company on June 15, 1973,
sending copies to all participating unions, his typical letter
to commence multiplant bargaining concerning pensions.
It was not until July 13, 1973 (Exh. "B" to the complaint,
G.C. Exh. 1), that the Company replied and in this letter,
for the first time in writing, it asserted that "we do not
desire to participate in joint negotiations with other
bargaining units."
On August 28 the Company and Union met in
Kalamazoo where they exchanged proposals for changing
the pension plan. Vrataric testified that by this time both
the Company and the Union had filed charges that the
other party was refusing to bargain in violation of Section
8(a)(5) and 8(b)(3), respectively. At this point Respondent's
brief states "we agreed to break off negotiations pending
some finding by the Board as to charges that were filed
and, at the same time, we told the Company we would take
their proposals to the membership for approval or rejection
at which we did in September and it was rejected." The
Regional Director refused to issue complaint on the
Union's 8(a)(5) charge but did issue complaint in the
instant case on the Company's 8(b)(3) charge.
After the Regional Director had refused to issue a
complaint on the Union's charge, another meeting was
arranged to take place on December 7. This came about
because the Company had notified the local union officers
that it was willing to meet on a local union basis because it
had certain improvements to offer. Consequently, at this
meeting modified company and union proposals were
exchanged and a new meeting was set up for January 7,
1974.
Further proposals and counterproposals were exchanged
at the January 7 meeting on a single-plant basis . At this
time the Union modified its demands which had previously
included the right to strike on the issue of pensions, a
common expiration date for all Westab pension agree-
ments, and a most favored nations clause and withdrew all
but the favored nations clause.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Issue
In a case involving a single employer with five plants can
there be both a multiplant appropriate bargaining unit
limited as to the subject of pensions and coexisting single-
plant appropriate bargaining units as to wages, hours, and
other conditions of employment?
D. Discussion
At the outset it appears that no cases which I have read
are directly analagous on their facts to the case at bar.
Under the numerous adjudicated cases both in the posture
of complaint and representation matters both the Respon-
dent and the Company cited cases which they urge support
their respective positions.
It is a matter of record that originally the Board found
the appropriate units to be single-plant units. When in 1953
the Company initially installed a pension plan it was the
Company that instituted bargaining on a multiplant basis
for the very practical reason that it made sense to bargain
on an overall basis since the pension plan was identical in
all its plants and could be bargained at one time at the
same time and place. Otherwise it would be necessary to
bargain five times at separate times over the same subject
matter.
The Company calls attention to the fact that after the
1969 negotiations it confirmed in writing to the Union that
it "no longer agrees to meet in joint pension negotiations
when the current pension agreement expires." Written
notices to this effect were sent on December 2, 1969, and
again on July 13 and 18 and August 10, 1973. Further the
Company's brief states:
Approximately five months after the Union's initial
refusal to bargain in July 1973, limited bargaining did
occur on the local level on August 28, December 7,
1973 and on January 7, 1974 after the complaint issued
in this case on November 30, 1973. In this "local level
bargaining" however, the Union had representatives
from St. Joseph and Alexandria, present as a commit-
tee, and demanded provisions amounting to multiple
negotiations, including a "most favored nations clause"
to insure that any pension plan changes negotiated
would be identical for all bargaining units. The Union
took the position that any local pension agreement
would be "subject of course to a final decision in this
matter . . . subject to being voided" if the Board
should rule in the Union's favor.
The Union for its part calls attention to the provisions of
item 14 in the overall memorandum of agreement
concerning pensions which require that notice of a desire
to change the pension agreement must comply with item 14
and must be sent 60 days prior to any September 1. The
first written notice received from the Company was dated
July 13 and the Union contends the Company's notice was
therefore neither timely nor unequivocal.[
i In view of my decision in this case it becomes unnecessary for me to
pass on this point
2 184 NLRB 976 (1970)
The Company cites the case of AFL-CIO Joint Negotiat-
ing Committee2 where it was held that where separate
bargaining units have been certified, as in the case with the
Kalamazoo unit, a union violates Section 8(b)(3) of the Act
by insisting that an employer engage in companywide
bargaining beyond the scope of the bargaining unit. The
Company further cites International Longshoremen's Associ-
ation [N. Y. Shipping Association] v. N.L.R.B.,3 and Douds
v. International Longshoremen's Association [New York
Shipping Assn.]4 for the proposition that a union violates
Section 8(b)(3) when it insists, over the objections of the
employer, that negotiations cover a unit of employees more
extensive than the original units found appropriate by the
Board.
The General Counsel places particular reliance on the
Shell Oil Company cases In this case the Board held that
where an individual certification exists, the employer could
restrict bargaining to a unit no more extensive than that
certified even though the discussions involved pensions
and the employer uniformly applied the same pension
agreements to employees in multiple bargaining units.
But note in this connection the Union points out a major
difference in the facts of this case and Shell in that there is
no long bargaining history consensually agreed to on a
multiplant basis in Shell whereas there is a 16-year
multiplant collective-bargaining history on a consensual
basis in the instant case. Thus in the Shell case the Board
could not order the parties to initiate such a process as is
the case in the instant matter.
The Company in its brief makes a comment that ".. .
such discussions were purely consensual and either party
retained the right to return to bargaining on the basis of
the bargaining unit irrespective of a bargaining history on
pensions." This appears to do violence to the dictionary
definition of consensual which is "existing or made by
mutual consent." Once multiplant bargaining began on the
basis of mutual consent and continued for 16 years it can
be changed only by mutual consent. Shell further states:
It is well settled that the parties to a collective
bargaining relationship may voluntarily agree . . . to
the enlargement or alteration of an existing unit... .
But in the absence of an agreement, neither party may
attempt to force upon the other an enlargement,
alteration or merger of an established unit ... .
In the instant case the Company initially established a
multiplant unit for the purpose of bargaining on pensions.
In 1957, when the Union attempted to change the scope of
the unit by shrinking it down to cover only the three plants
where it was the certified bargaining agent, the Company
refused to go along with this change. In the face of the
Company's opposition the Union relinquished its attempt
and thus bargaining on pensions continued on a multiplant
basis uninterruptedly for 16 years. In the face of this
bargaining history I am persuaded that the Company, by
so late in its relationship with the Union unilaterally
attacking the multiplant history of bargaining, was itself
3 277 F.2d 681 (C A D.C ., 1960)
4 241 F.2d 278 (C.A 2, 1957).
S 194 NLRB 988 , enforcement denied 486 F 2d 1266 (C A.D.C., 1973)
UNITED PAPERWORKERS INTL. UNION, LOCAL 1027
seeking to attack the integrity of the bargaining unit
consensually agreed to on a multiplant basis.
The Company also cites the Univac Division, Sperry Rand
Corporation, cases where it is stated that ". . . the record
shows no manifestation on the part of the employer and
the union to merge these separate units into one overall
unit . The employer's position has always been that it was
bargaining for separate units ." The facts in Univac are
clearly distinguishable from the facts in the instant case.
Among other cases cited by the Union the Chase Brass &
Copper Co.7 seems to be closer on its facts to the case at bar
than the cases relied on by the Company. In that case,
which arose as a representation matter, the facts briefly are
as follows:
The company and union initially recognized three
separate units covering three of the company 's plants
which were certified by the NLRB. Thereafter, for a
period of 15 years , the parties bargained a single master
contract covering all the employees in the bargaining
unit. The employer unilaterally decided to return to
single plant bargaining . The Board held: These actions
by the parties , consistently engaged in over such an
extended period of time, are clearly indicative of their
mutual intent to establish a multi -plant unit covering
employees of all the employer's plants and to extin-
guish the right of the employees in each of the original
plant units to bargain as separate groups . The employ-
er's belated unilateral effort to alter the bargaining
pattern is not a valid basis for ignoring the persuasive
evidence of the bargaining history. Accordingly we find
the multi-plant unit is now appropriate and that three
separate single plant units are no longer appropriate for
purposes of collective bargaining.
The Company argues that under its practice any
agreement arrived at by multiplant bargaining must
thereafter be ratified by the union locals on a local-unit
basis . This fact, according to Westab K, proves that the
identity of the local units has thereby been preserved.
Companies with numerous plants frequently negotiate a
master contract leaving local issues to be separately
bargained for on a local basis . This common practice does
not change the appropriate unit from a multiplant basis
where such arrangement exists to the status of separate
local bargaining units.
6 158 NLRB 997, 1000 (1966).
7 123 NLRB 1032 (1959).
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
493
Pensions by their very nature are usually predicated on
an overall multiplant basis for actuarial reasons and
depend for efficient operation on centralized control. The
broader the base the better the coverage and benefits that
can be obtained. It would seem to be a rare occurrence for
a multiplant company to negotiate numerous different
pension agreements for each separate plant. If such an
arrangement does exist it must turn into an administrative
nightmare.
CONCLUSION
One of the cardinal objectives underlying the National
Labor Relations Act is the stabilizing of labor relations.
Having operated successfully and peacefully for 16 years
on a multiplant basis concerning pensions it appears to me
that to change this practice at this late date would be
unsettling and would be contrary to the purposes of the
Act.
The Union argues in its brief that there is "... nothing
in Section 1 of the Act . . . or in Section 9(b) which
requires the disapproval of having two coexisting bargain-
ing units for different purposes : one a single-plant series of
units for bargaining on everything except pensions and the
other a multiplant unit for bargaining on pensions. Indeed
if a basic purpose of the Act is to achieve or restore
equality of bargaining power between employers and
employees and to promote effective bargaining which will
avoid industrial strife or unrest it would appear wholly
within the Board's power to approve the existence of the
two-unit concept ...." I concur.
It seems logical and reasonable to apply the emphasis
given by the Board to the collective-bargaining history in
determining that a consolidation of units by consent
creates a new multiplant unit which cannot be unilaterally
altered by either party.
Under the circumstances of the instant case I recom-
mend that the complaint be dismissed in its entirety.
Therefore pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDERS
The complaint herein be, and the same is, dismissed in its
entirety.
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes.