Int'l Brotherhood of Pulp, Etc., Local 61

INT'L BROTHERHOOD OF PULP, ETC., LOCAL 61 939 to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. Respondent Local 7, International Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By causing Waghorne-Brown Company, a company engaged in commerce, to discriminate in regard to the hire or tenure or terms or condition of employment of John C. Lydon and John P. Cradock, thereby encouraging membership in a labor organization, Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 3. By such action as described above Respondent interfered with, restrained, and coerced the employees of Waghorne-Brown Company in the exercise of the rights guaranteed them by the Act, in violation of Section 8(b) (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended order omitted from publication.] International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, Local No. 61 and Groveton Papers Com- pany. Case No. 1-CB-827. September 30, 1963 DECISION AND ORDER On June 24, 1963, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and, take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Charging Party filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent consistent with our decision herein. As set forth in the Intermediate Report, the Respondent Union and a local of the United Papermakers and Paperworkers, each represent- ing a separate unit, bargained jointly with the Company for many years, and joint contracts were executed. The most recent contract i In view of our holding in this case, we find it unnecessary to pass on the Respondent's exceptions to the Trial Examiner 's exclusion of evidence which it sought to adduce. 144 NLRB No. 88. 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expired September 1, 1962,2 after notice of desire to modify had been given. By agreement of the parties the tripartite negotiations then under way terminated on August 23, from which time the Respondent Union and the Company met separately to continue discussions look- ing toward a separate labor agreement. Representatives of the parties at the August 28 meeting believed agreement had then been reached, and the modifications were presented to the employees 3 and ratified by them at a union meeting on August 31. The Company was informed that acceptance had been obtained and beginning August 31 the Com- pany applied the terms of the agreement as it understood them. On October 18, 1962, the Company submitted a written contract 4 to the Union for signature, which the union president, Currier, re- fused to sign. The record reveals no further communications between the parties during October and November. On December 10, at the written request of the Respondent, the Company provided the Union with a single copy of the draft contract. Thereafter, the Respondent questioned the draft, and between January 15 and 22, 1963, the Com- pany met with Respondent on six different occasions and engaged in discussions concerning the October document. On February 18, 1963, the Company presented to the Union a revised draft.' This February document is the October draft with changes agreed upon during January. The Company contends that this now embodies the com- plete understanding of the parties. Two days after this latest sub- mission to the Union and before any response was received from the Union, the Company filed the instant unfair labor practice charge. Thereafter, the Respondent declined to sign this agreement. The Trial Examiner found that the Respondent violated Section 8(b) (3) of the Act since October 18, 1962, in that it refused to sign a contract containing terms which had been agreed upon between the parties. He therefore recommended that the Respondent be ordered to sign an agreement with the Company, upon the Company's request, incorporating the terms of the agreement tendered to it on February 18, 1963. The Respondent excepts, contending that the General Counsel has not established that either document submitted to it for signature in fact contained terms agreed upon. We find merit in these exceptions. Although the unfair labor practice alleged herein was claimed to have occurred "since on or about October 18, 1962," it is undenied that the document submitted to the Union on that date was not in fact an 2 Unless otherwise indicated dates are 1962. s These changes in the contract were summarized by the Union and were presented to the employees as follows : "1. Two Year Contract. 2. 7 Day Operation. 3. 40 Hour Work Week 4 16¢ per hour Transitional Increase when a Department actually goes to a 40 Hour Work Schedule. 5. Increase Hospitalization Insurance From $12 00 to $17 00 per day. 6. 2% General Increase effective September 2, 1962. 7. 2% General Increase effective September 1, 1963. S. Increase Shift Differential from 0 -5-10 to 0-6-11 effec- tive September 1, 1963." 4 Hereinafter referred to as the October document. 5 Hereinafter referred to as the February document. INT'L BROTHERHOOD OF PULP, ETC., LOCAL 61 941 accurate draft (the extent of the inaccuracy being in dispute). Ac- cordingly, no unfair labor practice finding can be predicated on the Union's refusal to execute the October document. It is further un- denied, although not mentioned by the Trial Examiner, that the parties met six times during January 1963 to correct the errors in the -October draft, following which the February modified draft was submitted. All the parties assert that as of August 28, 1962, the Company and the Respondent Union had reached agreement on the terms of a new ,contract, subject to employee ratification. They disagree, however, on whether the Company's February 1963 version, which the Respondent Union refused to sign when it was submitted, embodied the agreed- upon terms. It is the Union's refusal to execute that draft which is alleged as the only unfair labor practice. Accordingly, it must be shown by the General Counsel not only that a contract was reached, but that the document which the Respondent refused to execute ac- curately reflected that contract. The Trial Examiner rejected the Respondent Union's position that the Company's February version did not accurately set forth the terms of the contract as reached because he found an inconsistency between Union President Currier's affidavit stating that agreement was reached in August and the Union's contention that the February draft sub- mitted was not a complete transcript of the agreement. However, it does not follow from the fact of agreement that the Company's version of what was agreed on is necessarily accurate. Accordingly, Ave can- not concur with the Trial Examiner that Union President Currier's affidavit corroborates the Company's contentions Nor do we find any other basis in the record for any presumption or inference that the Company's version reflects the agreement of the parties. Contrary to the view set forth in the Company's brief, the summary which the Union circulated to the employees in August, quoted in footnote 3, above, does not substantiate the Company's position. Even a brief reference to that summary reveals that, insofar as is relevant herein, it consisted of nothing more than a list of topics and in no way defined the nature of the agreement concerning those topics. And the Com- pany's institution of changes in wages, etc., in September 1962, serves only as evidence of the Company's understanding of the terms agreed upon, not the accuracy of its understanding. Finally, it is the Union's 'contention that after the six meetings in January 1963, additional mat- ters remained to be discussed, and it appears clear that the Union did at least seek to discuss other issues. 9 Like the Trial Examiner, we have treated the affidavit of Union President Currier as substantive evidence for purposes of this decision . However, we note that it was ad- mitted only for purposes of impeaching his oral testimony . It may not also be used as substantive testimony or affirmative evidence to provide a factual basis for a decision by the Board . Jos. Schlitz Brewing Company, 139 NLRB 1466, 1475. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In sum, we are faced with testimony by the Company's personnel director, Sanborn, that the February draft is the contract reached by the parties and the contrary testimony of Respondent Union's presi- dent, Currier, that it is not the complete contract. There is no evidence or inference which supports Sanborn's testimony, but the parties stipulated that other union witnesses would corroborate Currier's testimony. The burden rests on the General Counsel to establish af- firmatively that the document submitted contains the terms agreed upon. In view of the'above, it is clear that he has not done so. We find, therefore, that the General Counsel has not proven the allegations of the complaint by a preponderance of the evidence and shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On February 20, 1963, Groveton Papers Company filed its charge in the above- entitled case. On March 29, 1963, the General Counsel of the National Labor Relations Board issued his complaint and notice of hearing thereon. The Respond- ent Union thereafter filed its answer, dated April 8, 1963. The complaint alleges and the answer denies that since on or about October 18, 1962, the Respondent Union has engaged in unfair labor practices in violation of Section 8(b)(3) of the National Labor Relations Act, as amended. Pursuant to notice a hearing was held in Lancaster, New Hampshire, on May 2, 1963, before Trial Examiner C. W. Whittemore. At the hearing all parties were represented by counsel, and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. A brief has been received from each of the parties. Disposition of the Respondent's motion to dismiss the complaint, upon which ruling was reserved at the conclusion of the hearing, is made by the following findings, conclusions, and recommendations. Upon the record thus made and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE CHARGING COMPANY Groveton Papers Company is a Maine corporation, with its principal office and place of business in Groveton, New Hampshire, where it is engaged in the manu- facture, sale, and distribution of paper and pulp products. It receives materials having an annual value of more than $50,000, at its Groveton plant, from points outside the State of New Hampshire. It ships products having an annual value of more than $50,000 from its plant to points outside the State of New Hampshire. The Respondent is engaged in commerce within the meaning of the Act.' II. THE RESPONDENT UNION International Brotherhood of Pulp , Sulphite and Paper Mill Workers, AFL-CIO, Local No. 61 , is a labor organization admitting to membership employees of the Charging Employer. 'The above commerce findings are based upon the allegations of the complaint, un- challenged at the hearing. The answer denies knowledge of the facts , except as to the nature and place of business. The Trial Examiner notes that the parent organization of the Respondent Local, Itself, urged that the Company Is engaged In Interstate commerce within the meaning of the Act In a complaint filed by It in March 1963, In civil action 712, United States District Court for the Southern District of New York. INT'L BROTHERHOOD OF PULP, ETC., LOCAL 61 943 III. THE UNFAIR LABOR PRACTICES A. Setting and issues The controversy here involved, so far as the record shows, appears to be the first serious dispute which has arisen during some two generations of collective bargaining between the parties. The sole issue of fact submitted for determination is whether the Respondent Union, in the fall of 1962, refused to sign a collective-bargaining agreement embody- ing a full understanding reached during its preceding negotiations with the Charging Company. The one issue of law is whether, if such refusal has occurred, it con- stituted refusal to bargain within the meaning of the Act. B. Relevant facts There is no dispute concerning the majority representative status of the Respond- ent Union in an appropriate unit of the Respondent's employees. It appears that for an undetermined number of past years the Respondent Union, representing one unit of employees, and a local of the United Papermakers and Paperworkers representing another unit, have bargained jointly with the Employer and joint contracts have been executed. The latest such contract expired Sep- tember 1, 1962. In the preceding June, both Unions notified the Company of their wish to make changes in contract provisions and negotiations looking toward a new contract which began in August. The tri-partite negotiations were discontinued on August 28, when only repre- sentatives of the Respondent Union and the Company met to continue discussions. From the beginning of negotiations, the two parties had agreed that the 1960-62 agreement would remain in force and effect except as modified as a result of negotiations. Final modifications were agreed to by the negotiating representatives of both parties at the meeting of August 28. These modifications, summarized in eight specific points, were typed by the union president himself, Richard Currier, mimeo- graphed, and distributed by him to employees in the unit. It was agreed that he was to submit these final modifications to a union meeting on August 31 for membership ratification. It is undisputed that at this union meeting of August 31 employee members ratified the modifications. Late that night, following the meeting, Currier telephoned to the company spokesman, Personnel Director C. D. Sanborn, and informed him that the Union had ratified the modifications with two provisions: (1) in the event that the other local, which apparently was still negotiating for a contract, received a larger wage increase, the same increase would apply to Local 61's contract, and (2) if the mill ran full time, the maintenance crews would get a 40-hour week. Sanborn pointed out to Currier that these items had already been covered during negotiations, and that the Company had already agreed to them. Upon such notification and Currier's request, the Employer promptly put into effect the benefits provided for in the modifications of the agreement; and before the 1960-62 contract had been written up to incorporate the changes agreed upon. The wage increase became effective immediately, as well as increased hospitalization in- surance. Later in September, when the other local won a greater wage increase, it was made promptly applicable to employees covered by Local 61. In October the Company began the transition to the 40-hour workweek, as had been provided for in the final agreement. As counsel for the Charging Company points out in his brief, the evidence is clear and undisputed that for many years it has been the custom for the employer, immediately after full agreement has been reached, promptly to implement such agreement before the written document has been prepared and formally executed. It is clear that the same customary procedure was followed by the parties in the fall of 1962. For various reasons, including the absence of Currier for some weeks, the revised contract was not drawn up until late in September. It is undisputed that on Octo- ber 18, at a meeting with the union committee, including Currier, Sanborn told them that a draft of the written document was ready and available for examination., He offered a copy to Currier for his perusal. Currier replied that "here was no need to go over it because they didn't intend to sign it." 2 On December 10 Currier, in writing, asked for a copy of the agreement and it was sent to him the next day. According to Currier's own testimony, he never submitted to the Company any language changes in the contract as received by him. 2 The quotations are from Sanborn's credible testimony. 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sanborn, however, in reviewing the document submitted, discovered a number of clerical errors occasioned by the fact that the 1960-62 contract, which was to be amended by the modifications agreed upon, had been a joint contract with the other union. He thereupon corrected these errors , and at a meeting with the union repre- sentatives on February 18, submitted several revised copies signed by the company representative. He asked Currier to sign it. Currier asked if it contained any modi- fication which had been discussed after August 31. Sanborn answered that it con- tained only certain clerical corrections. Currier then picked up a copy and left, without examining or signing it. Since February 18 the Respondent Union has declined to sign any agreement, nor has it submitted any document for the Company's examination or approval. C. Conclusions According to Currier, he declined to sign the contract as submitted because it did not represent the complete agreement reached and because there were some un- resolved issues. Since the Trial Examiner can place no reliance upon Currier's testimony, it appears unnecessary to review in detail the points he claims as being absent or still in dispute on August 31. The Trial Examiner cannot rely upon Currier's testimony because it is in direct conflict with his sworn affidavit of March 9, 1963, which was submitted to the U.S. District Court for the Southern District of New York, in the above-cited civil action. In that affidavit, Currier said, in part: As of about August 31, 1962, negotiations between the Union, Local #61, and the (company) having proceeded speedily and amicably, the parties had arrived at complete agreement upon the modifications to be made in the 1960- 1962 agreement. These modifications included an extension of the term of the 1960-1962 agreement through September 1, 1964. A list of the modifica- tions . was presented to the membership of Local #61 at a Union meeting held on August 31, 1962. On August 31, 1962, the membership of Local #61 ratified these modifica- tions, and immediately thereafter the (company) placed in effect the agreed' upon wage increases and the increased hospitalization benefits. As of August 31, 1962, the new agreement between the Union, its Local #61 and the (company), as ratified by the membership of Local #61, consisted of the 1960-1962 agreement, together with the modifications agreed upon ... . His affidavit, not his testimony before the Trial Examiner, corroborates the credible testimony of Sanborn. In short, the Trial Examiner concludes and finds that on October 18, 1962, and at all times since then the Respondent Union has refused to sign an agreement em- bodying the understanding reached and ratified on August 31, 1962. The Trial Examiner further concludes and finds, upon the governing authority of H. J. Heinz Company v. N.L.R.B., 311 U.S. 514, and Maremont Automotive Prod- ucts, Inc., 134 NLRB 1337, that by refusal of Currier, or any other union repre- sentative , to sign the agreement reached on August 31 the Respondent has engaged in and is engaging in refusal to bargain in good faith. Finally, it is concluded and found that the appropriate unit here involved consists of: All employees of the Employer employed in the yard, woodroom, sulphite- mill, bleach plant, filterroom, steampower room, machine shop and stock- room, pipe shop, electrician department, construction department, print shop, converting department, and garage department, excluding all supervisors having authority in the interest of the Employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or- responsibly to direct them, or to adjust their grievances or effectively to recom- mend such action, if in connection with the foregoing the exercise of suchi authority is not of a merely routine or clerical nature, but requires the use of independent judgment. and that at all times material herein the Respondent Union has been the exclusive bargaining representative of such employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above , occurring in connection with the operations of the Charging Company, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce LONGHORN TRANSFER SERVICE, INC. 945 among the several States, and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent, as representative of all employees in an appropriate unit, engaged in bargaining with the Charging Company and agreed upon terms of a contract governing wages, hours, and conditions of employment, and thereafter refused to execute the formal document incorporating these terms, and having found that the Respondent Union has thereby engaged in certain unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It will therefore be recommended that the Respondent Union, upon request, execute and sign, as the representative of the Charging Company's employees in the foresaid unit, the labor agreement tendered to them on or about February 18, 1963, if the Company so desires; and upon the Company's request, at an appropriate time, bargain with it for a new agreement, and, if an understanding is reached, embody such agreement in a signed contract. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, Local No. 61, is a labor organization within the meaning of Section 2(5) of the Act. 2. Groveton Papers Company is an employer within the meaning of Section 2(2) of the Act. 3. An appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act consists of: all employees of the Charging Company em- ployed in the yard, woodroom, sulphite mill, bleach plant, filterroom, steampower, machine shop and stockroom, pipe shop, electrician department, construction depart- ment, print shop, converting department, and garage department, but excluding all supervisors as defined by the Act. 4. By virtue of Section 9(a) of the Act the above-named labor organization has been since August 31, 1962, and now is, the exclusive representative of all employees in the said appropriate unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment and other terms and conditions of employment. 5. By refusing, since on or about October 18, 1962, to bargain collectively in good faith with the said Charging Company, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(3) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended order omitted from publication.] Longhorn Transfer Service, Inc. and General Drivers, Ware- housemen and Helpers Local Union No. 968 affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case No. 23-CA-1523. October 2,.1963 DECISION AND ORDER On June 11, 1963, Trial Examiner George L. Powell issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and 144 NLRB No. 91.