Weyerhaeuser Co.

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.