Weyerhaeuser Co.

National Labor Relations Board - Board Decisions

Jun 29, 1967

166 N.L.R.B. 299 (N.L.R.B. 1967)

WEYERHAEUSER COMPANY
Weyerhaeuser Company; Crown Zellerbach Cor-
poration ; Rayonier Incorporated ; International
Paper Company; and Association and Western
States Regional Counsel No. 3, International
Woodworkers of America, AFL-CIO and
Western Council of Lumber and Sawmill Work-
ers, AFL-CIO. Cases 36-CA-1261 and 19-
CA-2652
June 29, 1967
SUPPLEMENTAL DECISION AND ORDER
On November 16, 1965, the National Labor
Relations Board issued its Decision and Order in
the above-entitled proceedings, finding that the
Respondents had not engaged in the unfair labor
practices alleged in the complaint, and dismissing
the complaint in its entirety.' Subsequently, on a
petition to review the Board's Order, the United
States Court of Appeals for the District of Colum-
bia Circuit remanded the case to the Board for
further proceedings.2
On August 31, 1966, the Board afforded all
parties to the case an opportunity to file additional
briefs. Thereafter, briefs were filed by the Charging
Parties, the Respondents, and the General Counsel;
the Respondents filed a brief in reply to the briefs
of the Charging Parties and the General Counsel;
the Charging Parties filed an answering brief to the
brief of Respondents; and the Respondents filed a
motion to strike a supplement submitted with the
brief of the Charging Parties.3
Pursuant to the court's remand, the Board has
reconsidered its Decision and Order. In doing so,
the Board has considered the Trial Examiner's
Decision, the exceptions and briefs filed prior to the
Board's Decision and Order, the briefs filed follow-
ing the court's remand, the answering and reply
briefs, and the entire record in the case.' Based on
the evidence in the record as a whole and for the
reasons hereinafter set forth, the Board finds that
the lockout by the four Respondent members of the
Association, following the Unions' strike against
the other two members of the Association, was law-
ful, whether the lockout is judged under the princi-
ples announced by the United States Supreme
Court in American Ship Building Company v.
N.L.R.B.,, 380 U.S. 300, and N.L.R.B. v. Brown,
380 U.S. 278, as the action of individual employers
' 155 NLRB 921
2 365 F.2d 934.
a In view of the Board 's disposition of this case, Respondents' motion
to strike is hereby denied.
4 The request of the Respondents and the Charging Parties for oral ar-
gument is denied, as the record herein , including the exceptions and briefs,
adequately presents the issues and positions of the parties
5 Buffalo Linen Supply Company, 109 NLRB 447, affd. sub nom.
N.L.R.B. v. Truck Drivers Local Union No. 449, 353 U.S. 87. In its
299
bargaining together in an informal structure, or is
judged under Buffalo Linen standards' in the con-
text of a multiemployer bargaining unit, as was done
by the Trial Examiner. In the light of the court's re-
mand, we shall examine the Respondents' conduct
under both tests.
The Trial Examiner found, and we agree, that the
six Employers comprising the Association had ef-
fectively established a multiemployer bargaining
unit within the meaning of prior Board precedents,
and that both Unions accepted that unit in the
course of bargaining. The test to be applied in as-
sessing the status of the Association as a multiem-
ployer unit is well established: it is whether the
members of the group have indicated from the out-
set an unequivocal intention to be bound in collec-
tive bargaining by group rather than individual ac-
tion, and whether the union representing their em-
ployees has been notified of the formation of the
group and the delegation of bargaining authority to
it, and has assented and entered upon negotiations
with the group's representative.6 It is clear from the
record herein that the six Employers who formed
the Association possessed the requisite intention to
be governed by group action. Thus, all of the Em-
ployers recognized from the outset that the As-
sociation was to function as a fully bound group. In-
deed, prior to the final formation of the Association,
two prospective members, Simpson Timber and
Scott Paper, refused to join the new organization
specifically because they did not wish to participate
on a fully bound basis. Moreover, Wyatt, the
spokesman for the Association and its members
during negotiations, advised both Unions at the
start of the negotiations with each that all Em-
ployers would be bound by any agreement reached
between the Union and the Association. Finally,
following agreement between the parties, a settle-
ment agreement with the Unions was, in fact,
signed by Wyatt for the Association on behalf of all
its members.
We find unpersuasive the various factors relied
upon by the Charging Parties and the General
Counsel in an attempt to demonstrate that the Em-
ployers were not committed to be bound by the ac-
tion of the Association in bargaining. The facts enu-
merated above, demonstrating the required commit-
ment to group action, easily outweigh the use of the
word "voluntary" in the organic agreement and in
letters to the Unions advising of the formation of
the Association. In context, the use of "voluntary"
original Decision and Order herein, the Board held that the lockout was
lawful under the broad holdings in American Ship and Brown, regardless
of the precise legal status of the Association. It found it unnecessary,
therefore, to pass upon the Trial Examiner's findings that the Association
was established and accepted by the Unions as a formal multiemployer
bargaining unit, and that the lockout was thus lawful under Buffalo Linen.
Member Brown , agreeing with the Board 's result, would have affirmed the
findings acd conclusions of the Trial Examiner.
6 The Kroger Co., 148 NLRB 569; Van Eerden Company, etc., 154
NLRB 496.
166 NLRB No. 7
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is most reasonably interpreted as a descriptive term
referring to the status of the Association, like that
of any multiemployer association, as one founded
on "consensual relationship " among its members.
Publishers Association of New York City, et al, v.
N.L.R.B., 364 F.2d 293, 295 (C.A. 2). Nor do we
consider the fully bound nature of the Association
to be impaired by the provision in the organic agree-
ment that issues were to be resolved by a 75-per-
cent vote. That provision was reasonably explained
by Weyerhaeuser's size vis-a-vis that of its fellow
members and the fact that each Company had only
one vote, regardless of size. And, although certain
of the testimony leaves it unclear as to the number
of negative votes necessary to "veto" a proposal, it
is quite clear that at least two negative votes were
required.7 Nor does the exclusion of certain specific
issues from group bargaining by the members of the
Association dictate a different conclusion, for the
Unions were aware from the outset of bargaining of
the subjects to be negotiated on an individual basis,
and both Unions agreed to the exclusions during the
course of bargaining. Moreover, the issues thus ex-
cluded from group bargaining were those which
traditionally had been reserved for bargaining at the
local plant level.8 Finally, as set forth below, we
find that Charging Party, Lumber and Sawmill Wor-
kers (LSW), agreed during negotiations to the ex-
clusion of certain specified plants from group bar-
gaining.
For the reasons stated above and by the Trial Ex-
aminer, and based on the evidence in the record as
a whole, we find that the Companies comprising the
Association sufficiently indicated from the com-
mencement of bargaining with the Unions the
necessary intention to be governed by joint action.
Indeed, the Board has found a multiemployer unit
"even though the employers had never formalized
themselves into an employer association, a require-
ment the Board has never demanded. Substance
rather than legalistic form is all the Board has ever
required in multiemployer bargaining."9
We also agree with the Trial Examiner that both
Unions, after their favorable responses in a series
' For this reason , it is unnecessary to pass upon the legal effect of a
provision, in a like context , under which one member of a multiemployer
association could preclude acceptance of a bargaining proposal.
8 See in this regard The Kroger Company, supra; The Kroger Com-
pany, 141 NLRB 564, affd sub nom. Retail Clerks v N.L.R.B., 330 F.2d
210 (C.A D.C).
H Town & Country Dairy, 136 NLRB 517,523
10 Prusia's notes covering the portion of the May 9 negotiations im-
mediately following the caucus referred to above, read as follows.
Johnston : The Western Council Negotiating Committee is
representing all of the Local Unions and we will be speaking for all of
our Locals and you will be speaking for all , but three plants We will
agree to recognize you as an association for collective bargaining on
wages and not only on your issues , but also our issues that we have or
will present to you
Wyatt I understand your position , but I want it understood that this
of discussions with Lowry Wyatt, who represented
Weyerhaeuser and subsequently became chairman
of the Association's bargaining committee, to
feelers about the prospective formation of the As-
sociation, and after formal notification of the As-
sociation's actual creation and the delegation of bar-
gaining authority to it by each of the six Employer
members, accepted the new multiemployer unit by
their participation in the negotiations. Thus, both
treated with the Association qua Association, by
submitting their proposals to the Association as
such and by responding to its offers as group offers.
Moreover, the Unions agreed to the establishment
of several joint Association-Union committees to
study and make future recommendations on several
subjects of negotiation. Additionally, in the case of
LSW, the notes taken by its recording secretary,
Ted Prusia, at the initial bargaining session with the
Association on May 9, rebut that Union' s conten-
tion that no agreement on the new unit was reached
because of the Association's insistence on exclud-
ing three plants located east of the Cascade Moun-
tains. Those notes show that, prior to a union cau-
cus at 2 p.m., no agreement had been reached
because of the issue of plants sought to be excluded
by the Association. Following that caucus, how-
ever, the notes reveal clearly the Union's conces-
sion on that point and its recognition of the Associa-
tion prior to the commencement of bargaining on
economic issues.'0
It was not until some time after the lockout
started that the Union, while continuing to bargain
with the Association, sought for the first time to
deny the existence of a multiemployer bargaining
unit. But that belated denial, which was inconsistent
with the Unions' contemporaneous dealings, cannot
be held to have destroyed the previously accepted
bargaining framework. The Association refused to
agree to any such interpretation and consistently
maintained its original representative authority and
status.- The fact that the settlement agreement
finally concluded was entered into by the Unions
with the Association serves to confirm the validity
of the finding we make that a multiemployer unit
was created and maintained.
association can not speak for the plants excluded And, in agreeing
with your points, it does not mean that we are in agreement on all is-
sues at this time
Roberts : (For St. Regis) We will be speaking only for the plants
listed [west of the mountains ] and we will be willing to meet at
Khckitat and Libby on the issues at those plans.
Hartley then presented to the Association Committee the letter
stating wage demand and also on master agreement approach. Em-
ployers took time off to read the letter
" Had the Unions ' action at that time been construed as an attempted
withdrawal , a position they did not take for obvious reasons , it would of
course have been untimely and ineffective . Ice Cream, Frozen Custard
Industry Employees, etc., 145 NLRB 865, Universal Insulation v
N.L.R.B., 361 F.2d 406 (C.A 6), N.L R.B. v Sheridan Creations, Inc.,
357 F.2d 245 (C A. 2), cert denied 385 U S. 1005.
WEYERHAEUSER COMPANY
In the circumstances of this case, we agree with
the Trial Examiner that the individual units of each
of the employer-members of the Association were
effectively merged into a multiemployer unit by vir-
tue of the joint bargaining engaged in between the
Association and the Unions.12 Therefore, following
the Unions' selective strike against two members of
the Association, the remaining members were enti-
tled to preserve the integrity of the multiemployer
unit by the lockout employed herein.13
For the reasons stated above and by the Trial Ex-
aminer, the Board adopts the Trial Examiner's con-
clusions that the Employers formed a valid mul-
tiemployer unit, that the Unions accepted such unit,
and that the lockout on the part of the four Re-
spondent Employers was lawful under Buffalo
Linen. Assuming, arguendo, however, that a formal
multiemployer unit either had not been formed or
had not been accepted by the Unions, the Board re-
affirms its original holding that the lockout was law-
ful under the principles announced by the Supreme
Court in its interrelated opinions in American Ship
and Brown, supra, to govern lockouts generally.
In its original Decision, the Board concluded that
those principles control in the instant situation
where, "two or more employers bargain jointly with
a union, an impasse in negotiations is reached over
a mandatory subject of bargaining, and the union
strikes only some of the employers engaged in such
joint bargaining."14 On review, the court of appeals
questioned certain aspects of the Board's treatment
of the case and remanded it to the Board for further
consideration. The court first noted that the case
had been tried before the Trial Examiner under a
Buffalo Linen theory, but that the Board had
rested its Decision on a different basis. Because of
this, said the court, the Board in effect judged the
Respondents' conduct in the light of the motivation
upon which they "might" have acted, rather than
that upon which they did act.
With all due respect for the court, we view the
matter differently. The essence of our original hold-
ing was that, examined in the light most favorable
to the General Counsel, the Respondents' con-
duct- as established at the hearing- did not vio-
late the Act under the recent holdings of the
Supreme Court. Thus, it is apparent from the record
that the Respondent Employers locked out their
employees to protect the unity of the bargaining
position taken jointly by all members of the As-
sociation, pursuant to the agreement establishing
the Association. Moreover, the lockout provisions
12 Safeway Stores, Inc., 148 NLRB 660; Town & Country Dairy,
supra. The case of The Great Atlantic and Pacific Tea Company, 145
NLRB 361, enfd. in relevant part, 340 F.2d 690 (C.A. 2), relied upon by
the General Counsel, is factually distinguishable. The union and ern-
ployers there bargained- both prior to and following the strike and
lockout - primarily about the existence of a multiemployer unit, rather
than economic issues In the instant case, the parties bargained extensive-
ly over economic issues, both during the approximately 12 bargaining ses-
sions prior to the lockout and those subsequent thereto. And, as discussed
301
of the agreement were by their express terms opera-
tive only "with respect to subjects of bargaining
delegated to the Association." Contrary to the as-
sertions of the Charging Parties, the lockout provi-
sion of that agreement cannot be viewed in isolation
from the provisions delegating to the Association
the authority to represent its members in presenting
to the Unions a bargaining position common to all,
as discussed more fully below. It is true, of course,
that prior to American Ship and Brown, the
lockouts probably would have been found unlawful
on this record if no formal multiemployer unit ex-
isted or had been recognized by the Unions. But
with the issuance of those decisions, the state of the
law on lockouts, and the standards to be applied
thereunder, underwent a change of controlling sig-
nificance to our determination. Therefore, accept-
ing the Respondents' purpose- "to protect the in-
terests of our group against this selective strike," -
as announced at the time of the lockout, the Board
held that, under the tests of American Ship and
Brown, the Respondents had not violated the Act
even if they were incorrect in believing that the
unity of their bargaining position was founded on
the legal existence of a formal multiemployer unit.
Unless that mistaken belief (assuming the absence
of such a unit) can be transformed into the unlawful
motivation now required by the Supreme Court, it
is difficult to find a basis for holding that the lockout
violated Section 8(a)(3) and (1).
In judging the critical issue of motivation, the
burden is, of course, on the General Counsel to
prove unlawful motivation, rather than upon the
Respondents to prove a lawful motive. Whether the
General Counsel has satisfied that burden, apart
from the multiemployer issue discussed above, de-
pends upon the resolution of several subsidiary is-
sues.
First, the Board found in its initial Decision
that, as of June 5, "all six Employers had reached
an impasse with the Unions over certain of the
economic items being negotiated." 15 The record
is replete with evidence supporting this finding.
Thus, at the June 4 negotiations between the As-
sociation and International Woodworkers of Amer-
ica (IWA), Union Spokesman Nelson announced
that the parties were at an impasse and that IWA
was discontinuing negotiations. Similarly, at the
June 3 negotiations between the Association and
LSW, the latter's representative, Hartley, ob-
served that the parties were deadlocked. More-
over, in a letter addressed to locals of LSW on
in more detail, infra, the breakdown in negotiations which occurred in
early June resulted from the failure to reach agreement on economic is-
sues, principally wages. Therefore, also unlike A & P, it cannot be said
here that the lockout was utilized to compel the Unions to'accept a mul-
tiemployer unit.
13 Buffalo Linen Supply Company, supra.
14 Weyerhaeuser Company, supra, at 923.
15 Weyerhaeuser Company, supra, at 922.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 5, Hartley stated that the negotiations had
"reached an impasse." Even tangible evidence
of the existence of an impasse was provided by
the Unions on June 5 in the form of their strike
against St. Regis and U.S. Plywood.
It is equally clear that the impasse was reached
on economic items, principally wages. Nelson, for
example, indicated to the Association on April 29
that the Association's wage offer was so low as to
make it apparent that the Employers were "intend-
ing to negotiate to a strike situation." Further, in a
meeting with Wyatt on June 5, he stated that the
Employers would have to do better concerning a
general wage increase, loggers' travel time, and
overtime, and abandon their "hours of labor"
proposal. Wyatt listed the same items as the prin-
cipal differences at the May 27 bargaining session,
and stated that, at the June 4 meeting, the parties
were still 15 cents apart on wages. Similarly, John-
ston testified that, as of June 3, the amount of the
wage increase was the principal issue in dispute,
and LSW advised Wyatt that the Employers would
have to raise their wage offer in order to avoid a
strike. Later, on June 18, Hartley again stated that
the wage offer was the key to the dispute.
The next matter to be considered is the nature of
the bargaining in which the Association and the
Unions were engaged. We agree with the court of
appeals' characterization of our prior decision as
holding "that there can be joint bargaining which
falls short of a full-scale multiemployer unit but
which still serves to bring a concerted multiple em-
ployer lockout within the protection of American
Ship." 16 In view of the court's request for further
explication of our view of joint bargaining, particu-
larly in the present context, we turn now to the es-
sential components of the bargaining conducted in
the instant case. All six members of the Association
advanced a common bargaining position through a
single designated representative, a fact recognized
by the Unions. The Unions in turn made common
demands through the Association, which we here
treat as their (the Employers') joint agent, upon all
six Employers. Further, as noted above, each of the
]s 365 F.2d at 937. Indeed, were it otherwise, only those lockouts oo-
cumng in single employer or formal multiemployer unit situations could
be found lawful, thus banning lockouts in all other forms of joint, or group,
bargaining; a notion totally at odds with the letter and the spirit of the
recent Supreme Court decisions.
11 Union recognition of this fact is evidenced, inter aka, by an IWA
letter to its local unions, dated June 5, in which the locals were advised
that certain of the members of the Association were being struck, and that
this device would be "the most effective method to obtain an industry-
wide settlement .. "
is In Evening News Association, 166 NLRB 219, issued this date, a
majority of the Board dismisses the complaint in the circumstances of that
case, even though the two employers bargained separately with the union
involved, and had not entered into a binding commitment at the outset of
the negotiations, as did the members of the Association herein
is In view of the varying forms of group bargaining, and mindful of the
admonition of the court of appeals to eschew broad characterizations in
judging specific conduct alleged to be unlawful, we deem it both unneces-
six Employers had committed itself from the outset
of bargaining to be fully bound by any agreement
reached on its behalf by the Association, and each
of the Unions was so advised at the commencement
of the respective negotiations." Whatever the ef-
fect in another context of the lack of a commitment
to be fully bound on the part of employers, or the
lack of knowledge of such a commitment by the
union, those factors are present herein."' And, in
our opinion, the factors enumerated above are
ample to justify labeling as "joint" the bargaining
conducted herein.19 Finally, as found above, an im-
passe had been reached between both Unions and
each, as well as all, of the Employers over the sub-
stance of the economic position being advanced for
each by the Association, its designated agent.
In legal effect, then, each member of the Associa-
tion at that time stood in the position of the em-
ployer American Ship, and was entitled to lock out
its employees in order "to affect the outcome of the
particular negotiations in which it was engaged."2°
While that action had the conceded effect of sup-
porting the bargaining position of the other Associa-
tion members, the record herein compels a finding
that that action was intended to, and did, support
the individual (and common) position of each of the
Employers engaging in the lockout. In these cir-
cumstances, we are unable to conclude that the
General Counsel has met his burden of proving by
a preponderance of the evidence either the presence
of an unlawful motivation to discourage union mem-
bership or otherwise discriminate against union
members as such, or the absence of a legitimate
business interest on the part of the Respondents in
locking out their employees. Nor has he proved that
the Respondents' lockout was so inherently prejudi-
cial to statutorily protected rights as to warrant a
finding of unlawful interference, restraint, or coer-
cion in violation of Section 8(a)(1). The issue comes
down to this: Does the fact that a lockout supports,
and is designed to support, the bargaining position
of other employers jointly ranged in bargaining
alongside the locking-out employers, who thus seek
after impasse to strengthen their own bargaining
sary and undesirable to attempt to establish herein the precise limits of
"joint bargaining" as a generally controlling legal concept.
But whatever label is attached, the determination of the six Employers
to bargain together for common terms, and the attempt of the Unions to
secure common terms from all of the Employers in the negotiations with
the Association and by means of their selective strike against two of the
six, clearly reveal in the circumstances of this case that each of the
Respondents had a legitimate business interest of its own to protect when
it acted to support "the interests of the group," i e., the common bargain-
ing position they had taken in their joint dealings with the Unions
20 American Ship, supra, at 313. Indeed, under the Supreme Court's
decision, it seems clear that the Employers herein, even in the absence of
a strike of any kind, could have locked out their employees in support of
the commonly held bargaining position following an impasse with the
Unions It would be anomalous, then, to hold that the right to take such
action evaporated because the Unions initiated the economic combat by
engaging in what they termed selective strikes against some members of
the Association in order to obtain an "industry-wide settlement" from all
six Employers.
WEYERHAEUSER COMPANY 303
positions against union whipsaw action taken to win
common bargaining demands from all, necessarily
make the lockout unlawful? We conclude after care-
ful review that it does not.
Therefore , and for the reasons set forth in our ini-
tial Decision in this case , we reaffirm our conclu-
sion that the lockout by the Respondent Employers
herein was lawful under the principles set forth by
the Supreme Court in American Ship and Brown,
supra, even if the Association be viewed as
something less than a formal multiemployer unit.
On both of the bases set forth above , we shall
dismiss the complaint herein.21
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the complaint
herein be , and it hereby is, dismissed in its entirety.
21 In joining in the dismissal of the complaint , Member Brown relies
solely on the grounds stated by him in the original Decision and Order,
namely, the Association had been established and recognized as a mul-
tiemployer unit and the Respondent Employers ' lockout action was ac-
cordingly lawful under Buffalo Linen , supra.