International Paper

National Labor Relations Board - Board Decisions

Apr 30, 1998

325 N.L.R.B. 689 (N.L.R.B. 1998)

689
325 NLRB No. 127
INTERNATIONAL PAPER
1 In agreeing with the judge that the Respondent did not violate
Sec. 8(a)(5) of the Act by refusing to execute a separate collective-
bargaining agreement with the Charging Party covering only the
powerhouse employees, we rely solely on his primary rationale that
the Charging Party and three locals of the United Paperworkers
International Union (UPIU) are a joint representative of a mill-wide
bargaining unit. We find it unnecessary to pass on his alternative ra-
tionale that even if the Charging Party and the UPIU locals are not
a joint representative, the four Unions were engaged in joint bargain-
ing, and the Charging Party’s attempt to withdraw from such bar-
gaining was untimely.
1 Also referred to as the powerhouse or power department.
International Paper and Local Union 106, Firemen
& Oilers Conference, SEIU, AFL–CIO. Case 3–
CA–20001
April 30, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
On October 24, 1997, Administrative Law Judge
Steven Davis issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to adopt the judge’s rulings, findings,1 and con-
clusions, and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Alfred Norek, Esq., for the General Counsel.
Andrew Zelman, Esq. (Klein, Zelman, Rothermel & Dichter,
L.L.P.), of New York, New York, for the Respondent.
Ronald Stone, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge filed on April 8, 1996, by Local Union 106, Firemen
& Oilers Conference, SEIU, AFL–CIO (Local 106), a com-
plaint was issued against International Paper (Respondent) on
August 28,1996.
The complaint alleges essentially that (a) Local 106 was
the exclusive, recognized collective-bargaining representative
of a unit of employees employed in the powerhouse, (b)
Local 106 and Respondent reached complete agreement on
terms and conditions of employment of the unit to be incor-
porated in a collective-bargaining agreement, and (c) Re-
spondent refused the request of Local 106 that it execute the
agreement.
Respondent’s answer denied all of the above allegations,
and set forth certain affirmative defenses. On March 24 and
25, 1997, a hearing was held before me in Albany, New
York.
On the evidence presented in this proceeding, and my ob-
servation of the demeanor of the witnesses, and after consid-
eration of the briefs filed by the General Counsel and Re-
spondent and oral argument made by Local 106, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, having facilities lo-
cated in various States of the United States, including a facil-
ity located in Corinth, New York, has been engaged in the
manufacture, sale, and distribution of paper and related prod-
ucts. During the past year, Respondent sold and shipped
goods and materials valued in excess of $50,000 from its
Corinth facility directly to points located outside New York
State. Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. Respondent also admits and I find
that Local 106 has been a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The mill and the power plant
Respondent operates a papermill called the Hudson River
Mill or Palmer Falls Mill, which is located on the Hudson
River. The facility, which employs about 500 hourly paid
employees, consists of several separate buildings in which
different operations occur, transforming logs into coated
paper.
One of the buildings, the power plant,1 is situated 50 to
100 yards from the paper-making building. The power plant
houses a 1000-pound pressure boiler which makes steam
which is supplied to a turbine generator, which in turn gen-
erates electricity for use throughout the mill.
About 32 employees work in the power plant itself. Of
those, three are mechanics who work in the power plant, but
also spend much of their time in other areas of the mill, re-
pairing steam leaks. Ten others, who are considered members
of the power plant, work in other buildings in the mill, for
example four are turbine operators who operate a turbine
which drives the paper machine, and six others work on
paper machines, or are mechanics. Also considered part of
the power department are employees who operate power sta-
tions outside the power plant. They are called hydro opera-
tors, and spend most of their time at those stations. The com-
plaint alleges that the Union has been the recognized, exclu-
sive collective-bargaining representative of the following ap-
propriate collective-bargaining unit:
All hourly paid employees employed in the power-
house, including assistant foremen, operator-power
plant, control room operator, assistant power plant oper-
ator, hydro operator, turbine operator, utility, clerk/-
checker, senior maintenance man and maintenance man;
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690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 As of April 1996, five employees were members of Local 106
who no longer worked in the power plant, and had been permanently
assigned to other departments. Also, one employee who worked in
the power plant was a member of UPIU Local 4.
3 All dates hereafter are in 1995, unless otherwise stated.
4 In the 1991 negotiations an International representative of the
Firemen & Oilers was present.
excluding all other employees, guards, and supervisors
as defined in the Act.
However, section 3 of the collective-bargaining agreement
states that ‘‘employees who come under this Agreement and
are entitled to representation by their respective Union in-
clude all those employed inside and outside the plant except
[managerial employees].’’
2. Collective-bargaining history
From 1979 to the present, Respondent has executed suc-
cessive, single collective-bargaining agreements with the
United Paperworkers International Union (UPIU) and the
International Brotherhood of Firemen and Oilers (IBFO). All
such agreements contain the following recognition clause:
The International Paper Company agrees to recog-
nize the United Paperworkers International Union and
the International Brotherhood of Firemen and Oilers as
the agencies representing their membership in the Hud-
son River Mill for the purpose of collective bargaining.
The collective-bargaining agreement has been administered
by four local unions—for the UPIU, Locals 4, 6, and 7 and
for the Firemen & Oilers, Local 106. Generally, each local
union represents separate employees working in different de-
partments. Thus, Local 106 represents the power plant em-
ployees, and the UPIU locals represent employees working
in various paper-making operations or maintenance mechan-
ics.
New hires are employed in a labor pool, and are sent to
work in various departments as needed. Pursuant to the
union-security clause, employees are required to join the
local union which represents employees in the department in
which they are working on their 30th day of employment.
Vacancies in permanent positions are posted, and employees
in the labor pool may bid for such positions, which are
entry-level jobs.
On receiving a permanent position, the employee generally
joins the local union which represents the employees in that
department, but he is not required to do so. Thus, an em-
ployee who is a member of one of the UPIU locals as a re-
sult of being in a department represented by that local on his
30th day, may receive a permanent position in the power
plant. Such an employee would usually join Local 106, but
may instead continue to remain a member of UPIU Local 4.2
On becoming a permanent employee in an entry-level po-
sition in a department, the employee may move into higher
positions in the department, through seniority and on passing
certain certification tests. Each department has its own super-
visors.
3. The administration of the unions
Each of the four locals involved here represent only em-
ployees employed at the Hudson River Mill. Local 106 has
represented power plant employees at the Hudson River Mill
since 1939. The UPIU locals or their predecessors have rep-
resented the paperworkers at the Mill since 1937.
Local 106 and the three UPIU locals each have their own
separate constitution and bylaws, elect their own officers,
and have regular membership meetings. Local 106 maintains
its own bank account, and has its own bulletin board in the
plant. Each local has its own grievance procedure and proc-
esses its grievances itself for those employees it represents.
Local 106 has no input into the administration, affairs, or
operations of any of the UPIU locals, and similarly those
three locals have no involvement in the business of Local
106.
4. The 1995 collective-bargaining negotiations
The collective-bargaining agreement entered into in 1991
was due to expire on October 31, 1995.3 The terms of that
agreement are applicable to all employees regardless of the
position held or which union represents them. However, the
contract contains certain wage rates specifically applicable to
positions identified by department.
In August 1995, Local 106 sent a notice to Respondent of
its intent to reopen the contract for negotiations for a succes-
sor agreement. The notice was sent ‘‘on behalf of all the sig-
natory unions to the agreement.’’ The signatory page of the
expiring contract states that the Respondent’s offer was
‘‘ratified by a majority of union members . . . [and] con-
stitutes the parties’ Labor Agreement.’’ It is signed by the
presidents of Local 106 and the four UPIU locals.
In the 1995 negotiations, each local union met separately
with Respondent to discuss ‘‘local issues’’—those issues
which concerned their separate work areas, such as the in-
stallation of a bathroom, and improved ventilation of certain
work areas. Those local issues were resolved prior to the be-
ginning of the substantive collective-bargaining negotiations.
For the ‘‘general’’ negotiations, the four locals prepared
and submitted one joint agenda. Respondent submitted one
agenda to the Unions. The Unions had one bargaining com-
mittee comprised of representatives from each of the four
locals, and an International representative of the UPIU.4 In
1995, UPIU International Representative Robert Beard was
the chief spokesman for the four locals.
Following negotiations, on October 16, Respondent pre-
sented its ‘‘best offer,’’ which consisted of a single offer to
the four locals. Under the terms of the offer, increases in
wages and benefits would become effective on November 1.
The offer provided, however, that if it was not ratified or ex-
ecuted on a timely basis, all improvements would become ef-
fective only on ratification and execution of a new contract,
and that subsequent improvements would be effective on the
anniversary date of execution.
On October 25, a ratification vote was held by all four
locals at the Emergency Squad Building in Corinth. As em-
ployees came into the building to vote, they met with offi-
cials of their respective unions, discussed the offer, and then
voted. Each local had its own, separate ballot box, and mem-
bers of each local cast a ballot which was placed in the bal-
lot box for that local. At the end of the balloting, each local
tallied the ballots contained in its box.
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691INTERNATIONAL PAPER
5 Although in that case the joint representative was certified by the
Board as such, the same reasoning should apply where, as here, Re-
spondent recognized and bargained with the joint representative for
many years.
The results of the balloting were that members of Local
106 voted to ratify the contract, but that the UPIU locals
voted to reject Respondent’s offer. The ballots of all four
locals were then combined and the result of the pooled bal-
lots were that the offer was rejected. Respondent was noti-
fied that the proposed contract was rejected.
Within days following the balloting, the four locals then
arranged another negotiation session with Respondent to see
if it would improve its offer. Respondent refused to revise
its offer, and advised the unions that ratification of a new
agreement would be deemed timely if it occurred on or be-
fore November 10.
On November 10, another ratification vote took place, re-
sulting in the same outcome. Local 106 again voted to ratify
the contract, and the three UPIU locals voted to reject it.
Similarly, the votes of all four locals were combined to de-
termine whether the contract had been ratified. It was not,
and Respondent was notified that its offer was again rejected.
About 20 minutes after the notification to Respondent, of-
ficials of Local 106 went to Respondent’s office, and re-
quested that Respondent execute a separate agreement with
Local 106 because that local had ratified Respondent’s offer.
Mill Manager Phil Leider refused to do so, saying that there
was one contract and one bargaining unit at the facility.
Local 106 filed a grievance over Respondent’s refusal to
sign a separate contact with it. Respondent denied the griev-
ance on the ground that a new contract had not been ratified
and executed, and inasmuch as the contract was between the
UPIU and IBFO as ‘‘joint representatives,’’ until the joint
representatives ratify and execute the contract, there was no
new agreement.
Thereafter, on May 20, 1996, the parties entered into a
new collective-bargaining agreement, with Respondent agree-
ing that by signing such agreement, Local 106 does not
waive its position in the instant case that it is ‘‘already party
to a separate contract with [Respondent] covering the power-
house.’’
As set forth above, the complaint alleges that on Novem-
ber 1, Local 106 and the Respondent reached complete
agreement on the terms and conditions of employment of the
25 unit, and that on November 10, Respondent refused the
request of Local 106 to execute the contract.
III. ANALYSIS AND DISCUSSION
1. The contentions of the parties
The General Counsel argues that the power plant con-
stitutes a separate bargaining unit, and that Local 106 and the
UPIU locals engaged in coordinated bargaining, and not
multiunion bargaining.
Local 106 argues that the effect of Respondent’s refusal to
sign the agreement on November 10 following its ratification
of the contract was that the new agreement delayed for more
than 6 months, to May 20, 1996, the raises that employees
represented by Local 106 would have obtained on November
1, 1995.
Respondent argues that the UPIU locals and Local 106
were joint representatives, and that no new contract was ef-
fective until it was ratified by the joint representative. Re-
spondent alternatively contends that the request of Local 106
that Respondent sign the agreement, constituted an improper
premature withdrawal from joint bargaining.
2. Local 106 and the UPIU Locals are
joint representatives
The evidence establishes that Local 106 and the three
UPIU locals acted as joint collective-bargaining representa-
tives for the single unit involved here.
Thus, the collective-bargaining agreement has historically
set forth that it is by and between the Respondent and the
UPIU and IBFO, and that Respondent recognizes both the
UPIU and IBFO as the ‘‘agencies representing their member-
ship’’ in the Mill. Accordingly, there has been one collec-
tive-bargaining contract covering all employees represented
by both organizations.
The Board has found that the same Unions involved here
at Respondent’s facility, which at that time was part of a
larger geographic unit which included other mills, were joint
representatives. International Paper Co., 97 NLRB 764, 766
(1951). The procedure used here in collective bargaining—
the formulation by all the Unions of one agenda, negotiations
between the joint representative and the employer, the prepa-
ration of a single contract which was signed by all the
unions, and the application of the terms and conditions of the
contract to all the employees—is the same as utilized in that
case.
A joint representative is the ‘‘single exclusive representa-
tive for all the employees in the bargaining unit’’ in which
the only two parties are the employer and the joint represent-
ative. Pharmaseal Laboratories, 199 NLRB 324, 325
(1972).5
The General Counsel argues that the UPIU and IBFO are
not joint representatives because they each represent employ-
ees who work in distinct and discrete areas of the Mill, and
who perform different functions. I do not agree. As set forth
above, certain employees represented by the IBFO work in
areas of the plant covered by the UPIU locals, and one indi-
vidual who is represented by a UPIU local works in the
power plant. In addition, the fact that those employees who
worked in jobs represented by the UPIU cast their ballots in
the Local 106 ballot box supports a finding of single unit and
joint representative status.
Further, the bargaining process supports such a finding.
Thus, the general negotiations in behalf of the Unions were
conducted through a single, joint bargaining committee
chaired by a chief spokesman who represented all four local
unions. The committee submitted one proposal, to which the
Respondent offered one proposal. The Unions resolved any
differences of opinion by majority vote among themselves,
and all four locals pooled their ratification votes to determine
whether Respondent’s offer had been ratified. In the past,
one collective-bargaining agreement was signed by all four
locals.
Moreover, the Board has found joint representative status
where, as here, the locals have different constitutions and by-
laws; different officials who are selected by members of each
local; different wage rates; different policies concerning
grievances; and each local represents different jurisdictions.
Mead Foods, Inc., 146 NLRB 1515, 1517 (1964); Swiff &
Co., 115 NLRB 752, 754 (1956). ‘‘Even if there is to be an
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692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
administrative division of employees among the Petitioners
for the purposes of servicing the employees under a contract
negotiated with the Employer, such an arrangement is not
necessarily inconsistent with the concept of joint representa-
tion.’’ Utility Services, 158 NLRB 592, 593 (1966). In Yafes
Industries, 264 NLRB 1237, 1250 (1982), the Board found
violative an employer’s recognition of a union which had
disaffiliated with one of the joint representatives it had bar-
gained with. The Board noted that the joint representatives
had represented the employees involved for years, and it was
‘‘willing and able’’ to represent the employees.
As set forth above, a millwide unit is expressly recognized
in the collective-bargaining agreement. Thus, the employees
covered by the single contract are all the employees who are
employed inside and outside the plant.
I reject the General Counsel’s argument that the locals in-
volved here did not intend to bargain as a single merged unit
inasmuch as the unions maintained separate offices and ad-
ministrative facilities, had their own stewards who serviced
the employees they represented, had their own grievance ma-
chinery, and had separate wage schedules. Consolidated Pa-
pers, 220 NLRB 1281 (1975). In view of the above evi-
dence, including the membership in Local 106 of employees
performing jobs covered by the UPIU locals, it cannot be
maintained that Local 106 has continuously maintained a
separate and identifiable unit. Historically, and in the 1995
negotiations, there was a clear intent by Local 106 to bargain
jointly, and it has over many years, done so as a joint rep-
resentative with the UPIU locals. This is a situation in which
Local 106 improperly sought to sever a group of employees
from an established plantwide unit. Teamsters Local 705
(Roper Corp.), 244 NLRB 522, 525 (1979).
I further find that Local 106 was not justified in attempt-
ing to withdraw from joint bargaining. Such attempted with-
drawal was untimely as it did not occur prior to the 20 com-
mencement of bargaining. Plumbers Local 525, 171 NLRB
1607, 1642 (1968). In fact, Local 106 attempted to withdraw
only after it ratified the Respondent’s offer a second time.
Moreover, there was no evidence that the decision to with-
draw contemplated a ‘‘sincere abandonment, with relative
permanency, of the . . . unit and the embracement of a dif-
ferent course of bargaining on an individual . . . basis.’’
Wood, Wire & Metal Lathers Local 260 (Associated Plaster-
ing), 228 NLRB 1347, 1351 (1977).
I accordingly find and conclude that Respondent did not
violate the Act by refusing to execute the collective-bargain-
ing agreement as demanded by Local 106.
CONCLUSIONS OF LAW
1. International Paper is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Local Union 106, Fireman & Oilers Conference, SEIU,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The collective-bargaining unit set forth above limited to
the powerhouse department is not an appropriate collective-
bargaining unit.
4. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act in
any manner, as alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The complaint is dismissed.
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