Westvaco Corp.

National Labor Relations Board - Board Decisions

Jun 22, 1988

289 N.L.R.B. 301 (N.L.R.B. 1988)

WESTVACO CORP.
Westvaco Corporation and International Brother-
hood of Electrical Workers and Local Union
1753 , International Brotherhood of Electrical
Workers , AFL-CIO. Case 11-CA-11872
June 22, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On July 29, 1986, Administrative Law Judge
Lawrence W. Cullen issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the Charging Party and the General Counsel
filed briefs in response, and the Charging Party
filed a cross-exception with a supporting brief.
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 briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended
Order.
' In sec IV of his decision the judge inadvertently stated the abbrevia-
hon for the United Paperworkers International Union as "I P I U." in-
stead of "U P I U "
2 The Respondent excepts to the judge's conclusion that it was clear
that the International president of the IBEW had the right to approve or
reject the proposed contract which the members of Local Union 1753
had ratified . This proposed contract basically copied the parties' 1982
labor contract, but with certain modifications Those modifications, how-
ever, did not make any change in the provision "Parties to Agreement,"
which states, in part. "This agreement is to become effective when signed
by the Company and the Union and approved by the International Presi-
dent of the International Brotherhood of Electrical Workers " The Re-
spondent argues that any requirement that the International approve the
contract was waived because no such approval was required in previous
years However, the evidence regarding the parties ' previous labor con-
tracts shows that the International uniformly either approved the con-
tract or in fact signed as a party to the contract The International presi-
dent rejected the proposed 1985 contract , and thus the contract, by its
own terms, never became effective
The Respondent also argues that the Union is estopped or barred by
laches from asserting that the proposed 1985 contract did not become ef-
fective The Respondent failed, however , to submit evidence sufficient to
warrant such a finding There was no evidence on the parties' past prac-
tice regarding the time between membership ratification of a proposed
contract and the International 's approval of the contract Thus we cannot
say, based on past practice, that the 2-1/2 months between membership
ratification of the proposed 1985 contract and the International 's rejection
of the contract was an unreasonable period of time . Nor can we say that
this was such a long period of time that the International must be deemed
to have unreasonably delayed its decision , regardless of the parties' past
practice Futhermore , we note that there was no evidence that the Re-
spondent made any effort to learn whether the International had ap-
proved or rejected the contract while the matter was pending before the
International Accordingly , we cannot agree that the Union is either es-
topped or barred by laches from asserting that the proposed 1985 con-
tract did not become effective In any event, we note our further agree-
ment with the judge's conclusion that the Respondent had unlawfully
bargained to impasse as of November 4, 1985, and implemented its pro-
posals on November 21 or 22, 1985, only 10 days after the proposed con-
tract was sent to the International for its approval
Finally, in adopting the findings and conclusions of the judge, we rely
on Boise Cascade Corp, 283 NLRB 462 (1987)
301
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Westvaco
Corporation, North Charleston, South Carolina, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
Ann B. Wall, Esq., for the General Counsel.
George P. Smith , Esq. (Constangy, Brooks & Smith), of
Atlanta , Georgia, for the Respondent.
Robert D. Kurnick, Esq. (Sherman , Dunn, Cohen, Leifer &
Counts), of Washington , D.C., for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was heard before me in Charleston, South
Carolina, on 28 April 1986. The original charge was filed
by International Brotherhood of Electrical Workers and
Local Union 1753, International Brotherhood of Electri-
cal Workers, AFL-CIO (the Unions or the Charging
Parties or designated separately as the International or
Local 1753) on 23 December 1985 against Respondent
Westvaco Corporation (Westvaco or the Respondent)
and the complaint was issued by the Regional Director
for Region 11 of the National Labor Relations Board
(the Board) in this case on 3 February 1986 and alleged
that Westvaco had violated Section 8(a)(5) and (1) of the
National Labor Relations Act (the Act) by, since on or
about 23 June 1985, refusing to bargain collectively with
the Union by insisting to impasse over its maintenance
and operator performance improvement plan (MOPIP)
and has further violated Section 8(a)(5) and (1) of the
Act by, since on or about 18 November 1985, unilateral-
ly without notification or consultation with Local 1753,
implementing its MOPIP. Respondent by its answer filed
on 18 February 1986 has denied the commission of any
violations of the Act.
On the entire record, including my observations of the
demeanor of the witnesses and after due consideration of
the briefs filed by the parties, I make the following
FINDINGS OF FACT'
1. JURISDICTION
The complaint alleges, Respondent Westvaco Corpora-
tion admits , and I find that it has been at all times materi-
al a New York corporation with a facility located at
North Charleston, South Carolina, where it is engaged in
the manufacture of pulp, paper, and by-products, that
during the 12 months prior to the filing of the complaint,
which period is representative of all times material, Re-
spondent received at its North Charleston, South Caroli-
na facility goods and raw materials valued in excess of
' The findings of fact include a composite of the credited testimony of
the witnesses , stipulations entered into by the parties, and admitted exhib-
its
289 NLRB No. 45
302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
$50,000 directly from points outside the State of South
Carolina, and shipped from its North Charleston, South
Carolina facility products valued in excess of $50 ,000 di-
rectly to points outside the State of South Carolina, and
that it is now and has at all times material been an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS
The complaint alleges, Respondent admits, and I find
that the International and Local 1753 are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE BARGAINING UNIT
The complaint alleges, Respondent admits , and I find
that the following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
All electricians , power and boiler house employees,
and instrument department employees of the Em-
ployer at its Charleston, South Carolina plant, ex-
cluding electrician leadmen and shift engineers, all
other production and maintenance employees, office
clerical employees, plant clerical employees, profes-
sional employees , technical employees , guards,
watchmen , and supervisors as defined in the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
The facts in this case are essentially undisputed. The
Respondent operates a paper and pulp manufacturing
plant with the end products of various cardboard wrap-
pings and other products and also operates as part of the
same facility , a small chemical operation . The plant is ap-
proximately 50 years of age. Respondent , according to
the unrebutted testimony of its Industrial Relations Man-
ager Jack Flynn, became concerned over a period of
years of its disadvantages in competing with other newer
and more efficient plants that require fewer man-hours
per unit of product . One of the problems perceived by
management was the organization of the work force
along "strict craft lines." There are approximately 800 to
900 hourly employees and a similar number of salaried
employees . The hourly workers are represented by four
unions, including two locals of the United Paperworkers
International Union (IPIU), one of which represents em-
ployees in the pulp mill operation and the other of which
represents employees in the paper mill. The International
Association of Machinists (IAM) represents employees
generally referred to as maintenance mechanics. Local
1753 represents the electrical workers composed of em-
ployees set out in the appropriate unit , supra. Local 1753
represents approximately 125 employees including 60
electricians who install conduit, wire, and cable, and test
and maintain pole lines and fixtures, lighting circuits and
equipment, power feeders , motors, generators , alterna-
tors, and other electrical equipment and devices. Local
1753 also represents 18 instrument technicians who in-
stall, repair , and calibrate process control instruments,
and 39 powerhouse operators who operate boilers and 11
powerhouse repairmen who repair boilers and turbines.
Over a period of the prior several years, Respondent
had designated a committee of its management employ-
ees who were assigned to study operations of other pulp
and paper mills in the United States and in other coun-
tries to determine how to improve the efficiency of its
operations in order to effectively compete with other
pulp and paper mills, many of which were of relatively
recent vintage with modern equipment . One of the cen-
tral conclusions of the committee was that it would be
necessary to eliminate strict adherence to craft lines
among the hourly employees in order to facilitate work-
flow and efficiently operate the plant by permitting em-
ployees of one craft (represented by one union) to per-
form the work of other crafts (represented by other
unions) on an as-needed basis in order to avoid delays
and downtime in the large plant operation.
The collective-bargaining agreement between Local
1753 and the Respondent was effective on 1 July 1982
and continued through 30 July 1985 and contained a 60-
day notice provision for modification and also contained
a provision that it would remain in force and effect after
the expiration date until either party gave the other a
notice of its intent to terminate the agreement in not less
than 10 days beyond the date of the notice . In the fall of
1984 the Respondent made an unsuccessful attempt at
early negotiations with all the unions at the premises by
presenting a comprehensive proposal of work rule
changes that would eliminate craft line barriers to assign-
ment of work . This attempt was abandoned prior to the
close of 1984.
The contracts of all the unions on the premises were
to be negotiated in 1985 and the Respondent made a
comprehensive proposal to the unions' MOPIP, which it
introduced into its negotiations with the four unions in
1985. The plan would eliminate the contractually desig-
nated craft lines by training members of one craft repre-
sented by one union in a skill of another craft represent-
ed by another union and permit them to perform the
work previously performed by the other craft as re-
quired by management . In the case of the IBEW group,
employees who were not covered by the IBEW agree-
ment would be trained in the field of electricity and
would perform work previously performed exclusively
by the electricians. Employees in the IBEW group
would be trained to perform work previously performed
exclusively by the other crafts (i.e., welding or mainte-
nance and repair work). These changes would also re-
quire that the second paragraph of article I, Recognition,
be removed from the agreement . That paragraph stated:
The Company will not habitually assign work nor-
mally performed by employees in the established
unit to employees outside the unit as long as em-
ployees in the unit are available , either on the job
or from the overtime roster, and qualified to do the
work involved . Employees are available if they are
on the job even though they may be otherwise oc-
cupied , provided they can be released , or if they
can be called in from the overtime roster.
Under MOPIP the employees ' job classifications
would also be changed with electricians and instrument
WESTVACO CORP.
technicians becoming I/E mechanics , powerhouse repair-
men becoming general mechanics . Several other classifi-
cations of other unions would also be designated as gen-
eral mechanics. The powerhouse operators would be des-
ignated as operators. Under MOPIP each union would
continue to represent the same percentage of general me-
chanics as they had prior to its implementation, and
newly hired employees would be assigned to one of the
bargaining units as required to maintain appropriate per-
centages of employees.
The negotiations to replace the collective -bargaining
agreement commenced on 7 May. Local 1753 was repre-
sented by IBEW International Representative E. H.
Massey Jr., who served as chief spokesman, Local 1753
President Allen Wall, and other members of the Local's
bargaining committee . Respondent was represented by
Industrial Relations Manager Jack Flynn, Supervisor
Julius Guerard, and others. Massey testified as follows:
At the 7 May meeting, the parties exchanged proposals
but MOPIP, although included as a proposal, was not
discussed because a joint meeting had been set for 17
June to enable Respondent to address all four unions
concerning MOPIP and to answer their questions.
Massey testified that although the parties met on 3 and 4
June, there was little progress as Respondent held off on
discussions of most areas contending they would be dis-
cussed or resolved by MOPIP. Respondent met with all
four unions on 17-20 June and explained the MOPIP
program. The meeting was commenced by Respondent's
industrial relations manager, Flynn, who told the Unions'
representatives that Respondent expected to have an
agreement by 30 June , that they would make a presenta-
tion of MOPIP, listen to the Unions' concerns, and ad-
dress what areas they could, and then give the Unions
their final positions as to what MOPIP would entail. On
the second day Respondent's representatives responded
to questions and told Local 1753 representatives that it
was important to it that the employees of other bargain-
ing units perform work on energized lines , and that they
would not change their position on this although each of
the Unions indicated opposition to crossing the energized
lines . The Respondent responded "that they had to have
that issue," according to the unrebutted testimony of
Massey. During the joint meeting the Respondent com-
mitted that members of Local 1753 would continue to
have responsibility for voltages of above 440.2 Massey
testified further that on 17 June Flynn informed the rep-
resentatives of the four unions that responses would be
made to the matters raised by the Unions on 18 June and
that these responses would be encompassed into a single
package as part of the 17 June offer and this would be
the Respondent's offer. The Respondent's proposal re-
mained the same on 20 June as on 17 June with minor
modifications according to the testimony of Massey. No
agreement was reached on MOPIP at this series of meet-
ings. Local 1753 informed the Respondent it was willing
to cross lines between its own instrument technicians and
2 Ninety percent of the electrical work performed by Local 1753 bar-
gaming unit members involved voltages of 440 or below according to the
subsequent testimony at the hearing of Local 1753 Business Manager
Allen Wall
303
electricians, but was unwilling to cross the craft lines of
other unions to perform other crafts' work or to have
them perform its work. After the Respondent's final
offer following the 20 June meeting, Massey wrote
Flynn on 25 June and indicated those areas of MOPIP
Local 1753 would and could not accept. After the 20
June meeting, Respondent entered into negotiations with
the Paperworkers local unions and Local 1753 was
unable to set up another meeting until at the request of
Local 1753 the Federal Mediation and Conciliation Serv-
ice mediator was able to set up a meeting for 19 July. At
that meeting Respondent maintained that MOPIP had to
be settled or Local 1753 must accept it in order to obtain
an agreement. The Respondent caucused at this meeting
and then presented another proposal through the media-
tor dated 25 June, which was essentially the same pro-
posal as that presented previously by Respondent during
the 17-20 June meetings. The Local 1753 committee cau-
cused and reviewed this offer and did not accept it.
Massey advised Flynn of this by letter and also requested
a meeting on 4 September to resume negotiations. Flynn
responded to this letter and stated in his letter response
that MOPIP must be resolved to reach an agreement and
agreed to the 4 September meeting date. The parties met
on 4 and 5 September and Local 1753 withdrew a
number of its bargaining demands but according to
Massey, Respondent remained firm on most items and
made it clear that MOPIP would remain on the table.
Massey testified further that the parties met again on 7
October and at that meeting Respondent advised Local
1753 that the Paperworkers locals had ratified their labor
agreements and that Respondent was willing to go
through all outstanding items and give the Union its final
position, but that there were no changes in the Respond-
ent's proposal on MOPIP. The next day Flynn presented
Respondent's typed offer, which still contained the
MOPIP proposal. The Union's committee was not satis-
fied with the proposal and did not present it to the mem-
bership. On 31 October the Respondent gave the Union
a 10-day notice as provided in the agreement to termi-
nate the agreement effective 9 November and forwarded
a copy to Massey and also sent a letter to the employees.
Massey was contacted by the Federal mediator to meet
on 31 October with the Union. At that meeting the par-
ties examined various outstanding items such as the mill
provision, vacation sellbacks, refusals of temporary or
permanent promotions, and MOPIP. Respondent was not
agreeable to any of the Union's proposals except the re-
fusal-to-promote proposal . At the 31 October meeting
the Union offered to leave the existing meal allowance as
it was and permit employees to sign meal tickets at the
cafeteria to eliminate Respondent's cash-flow problem.
On vacation sellback, the Union proposed that an em-
ployee could sell back only 2 weeks of his vacation. The
Union accepted the Respondent's proposal on freezing of
promotions. The Respondent offered a $750 lump-sum
payment in the second year of the contract, and the
Union proposed a 3-percent general wage increase. The
Union asked the Company to agree to the Union's letter
proposal of 25 June, and the Respondent rejected this
offer and restated its 8 October offer to be effective the
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
first Monday following ratification. At no point in the
negotiations did Respondent make changes in its written
proposals with respect to what voltages of electricity
employees could be assigned to work on, but maintained
that any voltages 440 or under could be worked on by
any employee at the supervisor's discretion. It did
commit that voltages over 440 would continue to be
worked on only by I/Es and other crafts would not be
assigned this work. At this meeting Respondent also
stated that article XXII3 of the existing labor agreement
must be eliminated to comply with MOPIP.
On 4 November the parties met again and Massey pre-
sented a longhand proposal to Respondent to resolve all
issues except MOPIP and to put MOPIP on hold to let
the Board decide whether it was a nonmandatory subject
of bargaining as the Union had filed a charge with the
Board alleging that Respondent was insisting to impasse
on a nonmandatory subject of bargaining and was await-
ing the answer of the Board. This was one of several
similar charges filed by the Union against the Respond-
ent during the course of negotiations. The Respondent
rejected the offer of the Union and negotiations were
concluded on that date. The union negotiation committee
decided to submit the Company's proposal to the mem-
bership in view of the termination date of 9 November
pursuant to the 10-day notice sent to the Union by the
Respondent. The members voted on 8 November to
accept the Respondent's proposal. Wall informed the Re-
spondent of the result. Subsequently the Region in-
formed Massey that he should withdraw the charge as
the Respondent had not implemented the proposal as yet.
Massey withdrew the charge on 20 or 21 November. On
25 November Massey was informed by Wall that
MOPIP was being implemented and filed the charge on
29 November, which is the basis for this complaint. This
labor agreement provides as have others in the past that
it is subject to approval by the International. Massey was
informed on 23 January 1986 by the International's vice
president that the International would not approve the
agreement and this was confirmed in writing by the In-
ternational's letter of 27 January 1986. Massey called
Guerard in Flynn's absence on 24 January 1986 and in-
formed him of the International's decision to refuse to
approve the agreement and that "it looked like we
needed to get back to the table." Flynn called Massey
the following Tuesday and told Massey to submit any
further communications in writing to the Respondent.
Massey testified further that the Union objected to
MOPIP as it was certified to represent electricians, in-
strument, powerhouse operators, and instrument repair-
men, and the unit would lose its identity under MOPIP.
Additionally, under the Respondent's proposal the
Union's members designated as general mechanics were
not assured of any proportional number of their members
being retained to perform work that could be performed
by members of other crafts in the bargaining units under
MOPIP. Safety was a concern as the members were con-
8 This article sets out requirements for two electricians or one journey-
man electrician and one apprentice electrician to work on jobs involving
440 and above voltages It also provides that the Union 's work will not
be habitually assigned to other than bargaining unit members
cerned about inadequately trained personnel handling en-
ergized electrical equipment. Money was also a factor in
the Union's reluctance to agree to MOPIP. The members
also objected to doing other crafts' work.
Massey testified further that on several occasions
during the course of negotiations Respondent through its
spokesman Flynn stated it had made its final offer on
MOPIP. Initially at the 19 or 20 June meeting, Flynn in-
formed the union representatives, "We've gone through
it all, we've answered all your questions and we're ready
to put together our final offer on MOPIP. "In every pro-
posal made by Respondent, MOPIP was a part.
Throughout the course of negotiations Respondent insist-
ed that MOPIP was essential to reaching an agreement.
Massey testified there were no meetings between the
Union and the Respondent between 7 and 31 October as
the Union was awaiting a decision from the Board on its
charge filed against the Respondent concerning MOPIP.
Massey acknowledged that the International had been
apprised by him that the local committee disapproved of
MOPIP and that the International acted to disapprove
the contract at the request of the local committee. On 31
October four items in addition to MOPIP were still unre-
solved. They were vacation sellbacks, freezing of promo-
tions, wages, and meal allowances.
Local 1753 Union President Allen Wall testified that
on 29 October the Union's bargaining committee was
called into a meeting with Dr. Thomas, Respondent's
president, and Flynn, and given the 10-day notice. Wall
testified that the Union was not striking and were con-
cerned about a possible lockout by Respondent. The par-
ties met again on 31 October and the meeting broke up
with Respondent giving the Union its final offer in writ-
ing. The parties met again on 1 November and the Re-
spondent told the Union that the recognition clause must
be eliminated as a result of MOPIP. He asked Flynn
whether it was true if the Respondent locked out the em-
ployees, no employee could cross the line, and Flynn
told him this was correct. Wall testified further that on 8
October when the Respondent had given the Union until
18 October to finalize the agreement, Massey had in-
quired whether there was any significance to the 10-day
notice and Flynn replied, "No, I'm not locking you out.
I'm giving you a 10 day notice." At the 29 October
meeting with Dr. Thomas, Wall told Flynn, "I was
under the impression you weren't going to give us a 10
day notice with the intentions of . . . putting pressure on
us to lock us out," and that Flynn responded, "That was
on that offer." The membership ratified the agreement
on 8 November and Wall notified Massey and Flynn of
this. The agreement was signed on 11 November and a
copy was provided to Massey for the International for
approval. Shortly after the International disapproved the
agreement, Wall was to meet with Julius Guerard con-
cerning some grievances, and Guerard told him he
(Guerard) understood that the International had disap-
proved the agreement, and Wall told Guerard he could
not respond as he had not seen anything in wasting on it.
Subsequently, a month before the instant hearing he met
informally with Guerard on a few matters and told
Guerard that Respondent should save its money and not
WESTVACO CORP.
print up the agreement since the International had disap-
proved it, but Guerard said the Respondent was going to
go ahead and get it ready. MOPIP was implemented on
21 or 22 November when Respondent assigned power-
house repairmen to welding classes and on 6 January the
employees received wage adjustments for unrestricted
flexibility. On 7 January, Respondent commenced train-
ing the I/E group of employees. Since that time mem-
bers of the bargaining unit have been assigned to work
with members of other bargaining units such as pipefit-
ters and outside machinists and to perform the work tra-
ditionally performed by the other crafts.
On 1 November Wall had a second meeting with
Flynn who had called him to his office to tell him that
Respondent was firm on MOPIP and the 10-day notice
and to give him a copy of the letter sent to the member-
ship, which urged the membership to vote for the labor
agreement including MOPIP and which stated in part:
Lastly, and this is very important, the action taken
in giving the Union a 10-day notice is of the utmost
seriousness . The Company's intent is to bring the
parties together and focus on settlement before 8:00
a.m., November 9, 1985. That remains our intent
but you must recognize that if this does not occur,
the contract terminates at that time. In that event
there are three possibilities:
1 The Company extends the ten-day notice
2 Local 1753, IBEW strikes
3 The Company locks out employees repre-
sented by Local 1753, IBEW.
Wall testified that Flynn told him at this meeting that
Respondent would not let the Union stand in the way of
MOPIP and that they did not want to lock the Union
out but said, "If you think this is going to be a three-
week hunting and fishing trip like 1982 . . . you're sadly
mistaken." Wall told Flynn that the Union wanted a con-
tinuing working agreement and was not going to strike.
Wall testified that the proposal was submitted to the
membership because the committee felt a lockout would
occur if no agreement was reached, and he was aware of
the posting of security guards around the mill as a result
of a notice on the bulletin board. He had also seen secu-
rity guards at two locations around the plant.
John Flynn, Respondent's industrial relations manager,
testified as follows: The I/E group was not incorporated
into the proportional representation portion of MOPIP
as it was contemplated that the I/E group would stay
the same or increase in number as a result of the plant's
becoming high tech and more computerized, which
would require greater sophistication and skill and that
the I/E group would not be subject to the reductions as
much as the mechanics and service portions of the main-
tenance group. Respondent thus anticipated that the
IBEW Union would benefit by increases in numbers as a
result of these factors, but was not adverse to according
proportional representation to the IBEW group if they
had raised this as an issue. To eliminate safety concerns,
the Respondent agreed that the operators, including the
two UPIU groups and the powerhouse operators, would
not work on energized equipment and mechanical crafts-
305
men would only work on energized equipment alone
after they were trained for 8 hours and had worked with
I/E mechanics for 2 years and they would not work on
starters or switch gears unless accompanied by an I/E
mechanic . Over the years the approval of the Interna-
tional has not been crucial to the implementation of the
agreement and on at least one occasion was not forth-
coming.
Flynn conceded on cross-examination that nothing in
the MOPIP agreement guarantees there will be any new
apprentices once the current group completes its training
or that would prevent a reduction in the I/E mechanics
in the future or that would prevent the assignment of
I/E work to other crafts when it is 440 or less in voltage
with the exception of requiring other craftsmen to work
with IBEW I/E mechanics on switch gears and some
other equipment. He does not recall that Wall told him
that the Union was pursuing its unfair labor practice
charge on the night when he called to tell him the Union
had ratified the agreement . He acknowledged that at the
3 October meeting the statement was made by the Re-
spondent that "the company was ready and willing to
negotiate an agreement ; but if there was no movement,
continued discussions would be useless."
Wall testified on rebuttal that he had informed Flynn
that the Union "had ratified the agreement but that the
charges remained active."
V. CONTENTIONS OF THE PARTIES
The General Counsel and Charging Party contend that
MOPIP is a nonmandatory subject of bargaining and
would blur the craft lines between the unions and thus
effect changes in their certifications by allowing the Re-
spondent to change the unit description and to allow the
Respondent unfettered control in assigning work on jobs
to employees at its whim with the power to decimate the
bargaining unit and that it would thereby remove the
employees' rights to representation of their own choos-
ing as encompassed in Section 9(a) of the Act. They con-
tend further that Respondent insisted to impasse on 4
November 1985 (and on several prior dates according to
the Charging Party's view) up to the time of the accept-
ance of the agreement under the threat of lockout by Re-
spondent and that this impasse was reached regarding
this subject as the principal subject of disagreement be-
tween the parties. They thus contend that Respondent
violated Section 8(a)(5) and (1) of the Act by its insist-
ence to impasse on MOPIP, a nonmandatory subject of
bargaining, as a requisite for reaching agreement on the
other mandatory subjects of bargaining and that it also
violated Section 8(a)(5) and (1) of the Act by its imple-
mentation of MOPIP following the ratification of it by
its members and by subsequently refusing to return to
the bargaining table to negotiate following the disap-
proval of the International of the agreement in January
1986 and the verbal request of Massey to negotiate.
The Respondent contends that MOPIP related to
work jurisdiction and task and work assignments rather
than to the Union's certification and thus did not involve
a representational matter, that it was necessary to effect
efficiencies and improvements in its operations in order
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to enable it to compete , and that the Union 's concern
was with not having to perform maintenance work
rather than with matters of safety as professed by the
Union . It further contends that assuming arguendo
MOPIP was found to be a nonmandatory subject of bar-
gaining , it did not insist to impasse on MOPIP but rather
MOPIP was only one of several clearly economic items
on the table up to and at the time of its submission of its
final offer to the Union relying on Taft Broadcasting Co.,
274 NLRB 260 (1985 ). It also contends that the parties
reached no impasse as the agreement was signed. It fur-
ther contends that the Union did not act in good faith by
the refusal of the International to approve the agreement,
and that the agreement is binding.
VI. ANALYSIS AND CONCLUSIONS
In reviewing all the above, I find that MOPIP was a
nonmandatory subject of bargaining as it would have
given Respondent the unfettered right to remove work
from the bargaining unit at its whim, thus affecting the
composition of the unit and the certification itself. This
was not the right to assign a mere specific task out of the
bargaining unit . Rather it was the right to redesignate
employee classifications and transfer entire work groups
out of the unit by totally eliminating their work and al-
tering the scope of the unit and the certification of the
Union to represent the employees. The Board has con-
sistently held that such proposals are nonmandatory sub-
jects of bargaining. Newspaper Printing Corp., 250 NLRB
1144 (1980), enf. denied 692 F.2d 615 (6th Cir. 1982);
Newspaper Printing Corp., 232 NLRB 291 (1977), enfd.
625 F.2d 956 (10th Cir. 1980), cert. denied 450 U.S. 911
(1981); Columbia Tribune Publishing Co., 201 NLRB 538,
551 (1973).
I further find that the Respondent insisted to impasse
on the Union's acceptance of its MOPIP proposal as a
requisite for its agreement to other mandatory subjects of
bargaining. Throughout the course of the bargaining up
to and including the final offer prior to the ratification of
the agreement by the employees, the Respondent set out
its MOPIP agreement as an absolute it must have in
order to reach agreement . Although there were some
modifications of the proposal made by Respondent
during the current negotiations, the MOPIP proposal
stood out as the single significant impediment to reaching
an agreement as asserted by Respondent's representative
Jack Flynn on several occasions and as set out by Re-
spondent in its 10-day notice of termination of the agree-
ment and in the letter to the employees. The Board in
Douds v. Longshoremen ILA, 241 F.2d 278 (2d Cir. 1957),
has held it immaterial that impasse may have been
reached on mandatory subjects of bargaining as well as
nonmandatory subjects of bargaining in finding a viola-
tion of Section 8(a)(5) and (1) of the Act had occurred
by the Employer's insistence on a nonmandatory subject
of bargaining to impasse. It is rare indeed for all items to
be resolved save a single nonmandatory subject of bar-
gaining . In the more common situation there may be sev-
eral unresolved issues. In the Taft Broadcasting Co.,
supra, cited by the Respondent, the Board did not reject
the premise that an employer may unlawfully insist to
impasse on a nonmandatory subject of bargaining al-
though there may be several other mandatory subjects of
bargaining as yet unresolved that may also be contribut-
ing to the impasse . Rather the Board in Taft Broadcast-
ing, supra at 261 stated:
The existence of several unresolved items at the
point impasse is reached, however, does not neces-
sarily mean that each of the unresolved items
caused the impasse . Thus, in evaluating whether
parties have insisted to impasse on a particular non-
mandatory subject of bargaining , the Board and the
courts have looked to whether agreement on the
mandatory subjects of bargaining are conditioned
on agreement on the nonmandatory subjects of bar-
gaining.
Applying this test to the facts in this case, I find that the
Respondent's MOPIP proposal was the central focus of
disagreement between the parties throughout the course
of the negotiations. See Bozzuto's, Inc., 277 NLRB 977
(1985). The evidence was virtually undisputed that the
Respondent had throughout negotiations informed the
union representatives that MOPIP was critical to reach-
ing an agreement . I find that the Respondent insisted to
impasse on the acceptance of MOPIP by the Union at
the final substantive meeting when it rejected the
Union's proposal to resolve all issues but MOPIP and
that it thereby violated Section 8(a)(5) and (1) of the Act
by its insistence to impasse on a nonmandatory subject of
bargaining as a condition for reaching agreement on
mandatory subjects of bargaining. Although wages and
other mandatory subjects of bargaining had not been re-
solved, the evidence demonstrates that these were not
the cause of the impasse. I find the evidence is insuffi-
cient to demonstrate that impasse was reached prior to
this during the course of bargaining from June to Octo-
ber as there appears to have been ongoing efforts at ne-
gotiations by both parties that were interrupted by other
matters including ongoing negotiations by Respondent
with the three other unions at the plant. I further find
that Respondent violated Section 8(a)(5) and (1) of the
Act by its implementation of MOPIP in November and
by its continuation of its implementation of MOPIP in
January after it had been advised of the International's
refusal to approve the agreement and by its failure to
return to the bargaining table as requested by Wall. It is
clear that the International had the right to approve or
reject the agreement that the union membership had rati-
fied in the face of a threatened lockout. Following the
rejection of the agreement by the International , the Re-
spondent had the obligation to return to the bargaining
table as requested by Wall.
VII. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unfair labor practices of Respondent as found in
section VI, above, in connection with the business of Re-
spondent as found in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes obstructing the free flow of commerce.
WESTVACO CORP.
CONCLUSIONS OF LAW
1. Respondent, Westvaco Corporation, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Brotherhood of Electrical Workers
and Local 1753, International Brotherhood of Electrical
Workers, AFL-CIO are labor organizations within the
meaning of Section 2 (5) of the Act.
3. By its insistence to impasse on and by its implemen-
tation of its maintenance and operator productivity im-
provement plan (MOPIP), a nonmandatory subject of
bargaining, and by its refusal to return to the bargaining
table, Respondent violated Section 8(a)(5) and (1) of the
Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
violations of Section 8(a)(5) and (1) of the Act, it will be
ordered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the purposes and
policies of the Act, and post the appropriate notice. The
Board does not require that employees suffer losses of in-
creases in wages and benefits under circumstances such
as have occurred in this case in order to effectuate the
policies of the Act, and I do not recommend that the in-
creases in wages and benefits implemented by Respond-
ent be rescinded. Kendall College, 228 NLRB 1083
(1977); Dura-Vent Corp., 257 NLRB 430 (1981); and Pace
Oldsmobile, 256 NLRB 1001 (1981). I do, however, rec-
ommend that all other terms and conditions of the col-
lective-bargaining agreement be reinstated to the status
quo ante prior to 9 November 1985 when the agreement
was ratified by the membership under threat of a lockout
by the Respondent in support of its insistence to impasse
on the nonmandatory subject of bargaining until Re-
spondent fulfills its obligation by bargaining, on request,
with Local 1753 as the collective-bargaining representa-
tive of its employees in the appropriate unit, and exe-
cutes a written agreement with Local 1753 or until a
valid impasse occurs, and that Respondent make its em-
ployees whole for any losses of earnings or benefits they
may have sustained by the implementation of Respond-
ent's proposal. Interest on the losses of earnings or bene-
fits shall be applied in accordance with the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977).4
In the absence of any special circumstances asserted or
argued in this case, I do not recommend the inclusion of
a visitatorial clause as requested by the General Counsel
to allow the Board to engage in discovery under the
Federal Rules of civil procedure in order to monitor
compliance. See O. L. Willis, Inc., 278 NLRB 203
(1986); United Cloth Co., 278 NLRB 583 (1986). Com-
pare Hilton Inn North, 279 NLRB 45 (1986).
4 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
307
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed5
ORDER
The Respondent, Westvaco Corporation, North
Charleston, South Carolina, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Bargaining to impasse over its MOPIP proposal, a
nonmandatory subject of bargaining.
(b) Instituting unilateral changes in the employees'
terms and conditions of employment by implementing its
proposal on its MOPIP until such time as it has bar-
gained the agreement by Local 1753.
(c) Refusing to bargain in good faith with Local 1753,
International Brotherhood of Electrical Workers, AFL-
CIO.
(d) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act.
(a) On request, bargain in good faith with Local 1753,
International Brotherhood of Electrical Workers, AFL-
CIO.
(b) Make whole its employees for any losses they may
have sustained as a result of Respondent's implementa-
tion of the aforesaid unilateral changes contained in its
contract proposal.
(c) Reinstitute the existing terms of the labor agree-
ment to the status quo ante prior to 9 November 1985
until such time as the parties have bargained in good
faith and have executed a new agreement or, in the alter-
native, have reached an impasse.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Charleston, South Carolina facility
copies of the attached notice marked "Appendix."6
Copies of the notice, on forms provided by the Regional
Director for Region 11, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
5 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
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 "
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT refuse to bargain in good faith with
Local Union 1753, International Brotherhood of Electri-
cal Workers, AFL-CIO as the exclusive representative
of the employees in the following appropriate unit:
All electricians, power and boiler house employ-
ees, and instrument department employees of the
Employer at its Charleston, South Carolina plant,
excluding electrician leadmen and shift engineers,
all other production and maintenance employees,
office clerical employees, plant clerical employees,
professional employees , technical employees,
guards , watchmen, and supervisors as defined in the
Act.
WE WILL NOT insist to impasse on our maintenance
and operator productivity improvement plan (MOPIP)
proposal, a nonmandatory subject of bargaining.
WE WILL NOT institute unilateral changes in the terms
of the 1982-1985 collective-bargaining agreement by the
implementation of our MOPIP proposal or otherwise
unilaterally institute changes in existing terms and condi-
tions of employment of our employees in the bargaining
unit without notifying Local 1753 and bargaining collec-
tively in good faith concerning such proposed changes,
provided that nothing here shall require us to rescind
any increases in wages or benefits that we have previous-
ly granted.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the MOPIP put into effect in No-
vember 1985 and will return to the status quo ante prior
to 9 November 1985.
WE WILL, on request, bargain collectively with Inter-
national Brotherhood of Electrical Workers, Local 1753,
as the exclusive representative of employees in the ap-
propriate bargaining unit described above with respect to
rates of pay, wages, hours , and other terms and condi-
tions of employment and, if an understanding is reached,
embody such understanding in a signed agreement.
WE WILL make whole the employees of Respondent in
the above-described bargaining unit for any losses they
may have sustained by the implementation of unilateral
changes contained in our contract proposal with interest.
WESTVACO CORPORATION