Minnesota Mining & Manufacturing Co.

MINNESOTA MINING & MFG. CO 275 Minnesota Mining & Manufacturing Company and Oil, Chemical and Atomic Workers International Union, AFL-CIO and its Locals 6-75 and 6-418 . Case 18-CA-2443 October 23, 1968 DECISION AND ORDER On November 16, 1967, Trial Examiner Frederick U. Reel issued his Decision 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 Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief.' The National Labor Relations 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 Trial Examiner's Decision, the excep- tions, brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' August 10, presents the question whether an employer, normally under a duty to bargain with a union as the representative of employees in a certain unit, may lawfully refuse to meet in bargaining negotiations if that union insists on including among its representatives persons who also represent other unions recognized by the employer as the representative of other employees in other bargaining units The day following the issuance of the complaint, counsel for the Regional Director instituted proceedings in the United States District Court for the District of Minnesota, seeking an injunction against Respondent pursuant to Section 10(j) of the Act The injunction proceeding was heard before Judge Neville of that court on August 22 and 23, 1967 Judge Neville rendered his decision granting the injunction on September 5, and the Respondent promptly took an appeal to the United States Court of Appeals for the Eighth Circuit, which on November 2 reversed the decision of the District Court but without passing on the substantive issue recited above 2 Meanwhile, on September 12, the parties stipulated that they would waive a further hearing, and that the instant case could be decided by a Trial Examiner upon the charge and pleadings filed in this case and upon the testimony, exhibits, and material from depositions received in evidence before Judge Neville Having been duly designated as the Trial Examiner herein, and upon my consideration of the pleadings, and of the record before Judge Neville, and of the briefs filed with me by General Counsel and counsel for Respondent, I make the following ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Minnesota Mining & Manufacturing Company, St. Paul, Minnesota, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. MEMBER J ENKINS , dissenting- For the reasons set forth in my dissenting opinion in General Electric Company, 173 NLRB No. 46, I would dismiss the complaint herein. 1 The Respondent 's request for oral argument is denied, as the record, including the exceptions and supporting brief, adequately presents the issues and the positions of the parties. 2In the absence of any evidence that the bargaining was not confined at all times to the OCAW units located at St Paul and Hastings , we need not reach the issue of coalition bargaining raised by the Respondent. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U REEL, Trial Examiner: This case , initiated by a charge filed July 10, 1967,' and a complaint issued 173 NLRB No. 47 FINDINGS OF FACT3 I THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATIONS INVOLVED Respondent, herein called the Company or 3M, is a Delaware corporation with plants at St. Paul and at Hastings, Minnesota, and at various other places throughout the United States, where it is engaged in the manufacture and interstate distribution of tape, abrasives, and various other products The Company annually ships from its St. Paul and also from its Hastings plants in excess of $50,000 worth of products to points outside the State, and is admittedly an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charging Party, herein called OCAW or the Union, is an international labor organization and two of its locals, of which one (Local 6-75) is the statutory bargaining representative of the Company's production and maintenance employees at its St Paul plant, and the other (Local 6-418) occupies a similar role at the Hastings plant. ' Unless otherwise noted, all dates herein refer to the year 1967. 2 The Court of Appeals stated, "We intimate no opinion as to the ultimate merits of this controversy ," but also observed that "In vacating the district court's temporary injunction we do not quarrel with its determination that there is `reasonable cause' to believe that [Respon- dent] has violated Section 8 (a)(1) and (5)." 3 The facts are not in dispute. In these findings, therefore, I draw heavily upon those formulated by Judge Neville, and to a large extent copy his verbatim In minor respects I have modified his language to accommodate certain objections noted by Respondent in its brief to me. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THE UNFAIR LABOR PRACTICE A The Rupture of Negotiations in July 1 Background The Company has approximately 70 plants or business locations throughout the United States It has collective- bargaining agreements or labor contracts with some 55 local unions which are variously affiliated with 20 to 25 different International unions The OCAW represents employees at eight of 3M's plants. Included in this number is the plant at St. Paul, Minnesota, employing approximately 2,450 employees, and the plant at Hastings, Minnesota, referred to as the Chemolite plant, employing approximately 850 employees. In the past, the labor contracts for these two plants have to some extent, and particularly as to certain major cost items, been negotiated jointly, though each plant has a separate written collective-bargaining agreement with the appropriate local. Both of these agreements expired on August 27, 1967. None of the other labor contracts at other 3M plants expire simultaneously, nor are any now open for bargaining or extension 2 The correspondence between the parties In June 1967, the locals here involved concluded to open negotiations for their contracts in the manner and as provided by the contract terms. There followed a letter dated June 23, 1967, from one of the locals to 3M advising that the present contract was terminated "for the purpose of Negotiation of Additional Benefits pertaining to Wages, Hours, Working Conditions, and Conditions of Employment " The letter contained the following paragraph We also wish to inform you that our Negotiating Committee for the forthcoming Negotiations will at times include certain Members or Officers of other Labor Organizations. These individuals, when they participate in our Negotia- tions, will be part of our Bargaining Committee, and will be Negotiating only for our Bargaining Unit We have been advised that we have the Legal Right to include such persons on our Negotiating Committee. If you have any objections to their participation, please let me know immediately so that we can attempt to come to some understanding about this matter before the Negotiations commence In earlier years, the two locals had directed a request to 3M for additional union persons at the bargaining conferences but such had been refused 4 In 1962 three or four representatives of other unions were present in the hotel which housed the negotiation meetings, but conferred only at recess or overnight with the locals' bargaining committee, and did not actually sit in the room while bargaining and negotiations were taking place Following the union letter of June 23, the Director of 4 In prior years , each of the two local unions had been represented by a negotiating committee of nine composed of four officers and five persons elected from the membership plus a representative or represen- tatives from the OCAW International At times a member of the Industrial Union Department of the AFL-CIO (I.U.D ), Mr. Stephen J. Harris, also has sat and met with the negotiating committees, particu- larly in discussions with 3M concerning pensions. 3M has not raised, and does not now raise, any objections to such persons joining the local Industrial Relations for 3M replied to the Union by letter on July 10, 1967, and stated in part as follows In accordance with our recent telephone conversations, we are prepared to meet under the same conditions as in the past at any time which is mutually convenient to work out a new agreement for St Paul and Chemolite In the interim, on June 27 and again on July 7, the Director of Industrial Relations orally informed union representatives that 3M would not negotiate or bargain with a committee which included officers or members of other unions Accordingly on July 10, the Union filed the charge initiating this proceeding. 3. The meeting of July 14, 1967 Matters culminated on July 14 when, at an arranged meeting, the two locals (contrary to what 3M understood to be a prior committment), brought into the negotiating meeting after it had progressed for some little time two men from other 3M plants, specifically a member of the Allied Industrial Workers employed at 3M's American Lava Plant, Chattanooga, Tennessee, and a member of the United Glass and Ceramic Workers, with whom 3M has a contract at its Bristol, Pennsylvania, plant. Plans apparently were for the attendance of a third man, a member of the Federation of Grain Millers, the Union representing the employees at Bedford Park, Illinois, but due to circumstances which are the subject of a separate controversy, he was not present Almost immediately upon this occurrence, 3M negotiators, headed by the Director of Industrial Relations, left the meeting. B The Conflicting Contentions as to the Unions Purpose Union Representative Bristow testified that these represent- atives, members or officers of other labor unions, were to have no vote on the question of acceptance or rejection of 3M proposals and would be present in an advisory capacity and solely to negotiate for the two local unions involved. He further stated that the Company frequently compared current contract suggestions with what the 3M labor contracts and conditions were at other plants in the United States, in some instances presenting prepared charts to illustrate situations existing in other of its plants. Bristow stated that the union negotiating committee wanted some persons present from one or some of the other plants to verify any such statements and generally to consult and advise based on familiarity with their own contracts and situations.5 Similarly, in a deposition received in evidence, Frank Mazurkiewicz, president of the OCAW local at the St Paul plant, testified with respect to the representatives of other labor organizations- Q And were they to be a part of the OCAW negotiating committee? A. No They wouldn't be a part of the negotiating comittee; they would just be there to observe They would not have any voice or vote. They would be there just for assistance on the basis that they have been in other Minnesota Mining negotiations If there was things to be unions' negotiation committee. Counsel for 3M also stated in open court that it had no objection to experts in any particular field sitting in at negotiations, to discuss such subjects as safety conditions, incentive plans, pensions, insurance, etc. It does strenuously object, however, to the presence of union officers or members from union locals with which it has contracts at other of its plants. 5I reject the Company's challenge to Judge Neville's findings, paraphrased or copied in this paragraph. MINNESOTA MINING & MFG. CO 277 said to us that were not accurate as far as they could remember at their negotiations they would more or less relate this information to us. Q When you say they are not a part of the bargaining committee, by that do you mean they wouldn't have the right to control the settlement by voting on it? A. That's right They have no voice whatsoever Q Are they here to assist anyone other than the St. Paul and Hastings locals? A. No Q Are they here to bargain for anyone other than the St. Paul and Hastings locals? A No 6 Similarly, Dale Eggars, vice president of the OCAW local of the Hastings plant, testified in a deposition Q I want to make sure the record is clear as to just what the status of these representatives from other unions would be Would they have any direct vote on whether to accept or reject a company proposal? A No Q Has your union made any commitment or agreement to these other unions that you will not agree to any particular terms without their approval? A Absolutely not The Company asserts that the purpose of the OCAW is to engage in "coordinated bargaining," a step toward ultimate nationwide, or multiplant bargaining, looking toward the time when one union committee can sit down at one table with 3M and draw one contract covering the workers at all of its plants In support of this contention, 3M introduced in evidence some excerpts from a publication known as the Collective Bargaining Newsletter, a publication of the Industrial Union Department AFL-CIO, dated as indicated below and reading in part as follows Issue of December 1965 A second move in this area took place late in 1961 when eight international unions having bargaining rights with Minnesota Mining and Manufacturing Co met under IUD sponsorship to decide on techniques for approaching the company on a national pension plan. The union with the largest membership was the Oil, Chemical and Atomic Workers The unions met with the company, which agreed to work out a pattern settlement for the workers at its OCAW plants at St. Paul and Hastings, Minn. Representatives of other unions involved served on a steering committee which advised the negotiators and concurred in the final settle- ment. The negotiated pattern was then offered to the other unions as their contracts expired In 1964 this was extended to new insurance patterns, including long-term disability insurance. The objective at 3M is uniformity of expiration dates on contracts, and complete coordinated bargaining by 1967. In some of the coordinated bargaining committees, a steering committee made up of representatives of coordinat- ing locals is established to participate in local negotiations The representatives of other unions, at times, have been able to correct or contradict statements made by company representatives concerning practices in their home plants The ultimate goal of coordinated bargaining is to force companies to negotiate major economic items on a national level. Issue of February 1965, under the headings of "Coordi- nated Bargaining Helps Meet A Growing Problem," "Some Examples of Success," and "Similar Benefits in Other Firms" At Minnesota Mining and Manufacturing the company agreed to negotiate changes in its national pension plan (a plan which had never previously been negotiated with any union) for two plants of the OCAW. With the cooperation of the IUD and with representatives of 10 other interna- tional unions consulting with the negotiators, changes were successfully negotiated. The changes were approved by the other union representatives before they were accepted by the OCAW In two cases, the IUD has been successful because of its committees in securing national bargaining with large companies. Issue of January 1967 The year 1967 promises to be one of considerable collective bargaining activity throughout the nation. Expec- tations also are that coordinated collective bargaining techniques will gain increased attention during the year. At Minnesota Mining & Manufacturing, representatives of all plants are expected to join in negotiations on a pension plan for which the first negotiated improvements were won four and a half years ago. Several major collective bargaining agreements covering 3M employee groups also will come up for negotiations during the first part of the year Further, it appears from a charge filed with the Board's Chicago office that one Anthony Lattanzio of Bedford Park, Illinois, had intended to attend negotiations in St Paul to participate in "coordinated bargaining, especially concerning companywide pension program." Further light as to the Umon's long-range objectives is found in the deposition of Stephen J. Harris, assistant director of collective-bargaining services section, Industrial Union De- partment, AFL-CIO We realized that our long term goal, because, you know, our hope is to get the law changed to permit us to have national bargaining on national issues with companies like GE and Westinghouse and others which have a single pension and single insurance. Until the law is changed we know, unless the company agrees to these things, we can't do it. The law is specific. Even in the Standard Oil-I mean the American Standard 6 At another point in his deposition Mazurkiewicz gave the following testimony somewhat inconsistent with that quoted above Q. These representatives or their unions also have collective bargaining agreements with 3M at other plants, isn't that true9 A. True Q. And they would have an interest in the 3M negotiations because of the fact that they also have contracts , isn't that true? A True. Q So that when they appear during the course of the 3M negotiations they are actually representing their own local unions rather than the oil , chemical and atomic workers, right9 A Right 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision it says the General Counsel admits that the Company could not be forced into international bargaining All right. That's the law Our hope is to get the law changed some day. Q. Referring to a statement which appears on page 12 of Deposition Exhibit No. 2, reading as follows, "The ultimate goal of coordinated bargaining is to force companies to negotiate major economic items on a national level " Does that statement correctly set forth the position of the IUD relating to the goal of coordinated bargaining? A Well, except for the word "force " I would say that the ultimate goal of coordinated bargaining is to get national bargaining with corporations that are national corporations on the issues which are determined nationally by the corporation itself either by getting an agreement as we did with American Home Products, to do it that way, or by getting the law-by convincing congress that the law ought to be changed. C Discussion Under settled authority a labor organization may not insist on bargaining for employees outside the certified unit (Douds v. International Longshoremen's Association 241 F 2d 278 (C A 2)), but so long as it confines negotiations to terms and conditions of employment within the bargaining unit, it has free rein (with certain exceptions plainly not pertinent here),7 in its choice of negotiators The Standard Oil Co v NL.R.B., 322 F 2d 40 (C A. 6); American Radiator & Standard Sanitary Corporation, 155 NLRB 736, enforcement denied on other grounds 381 F 2d 632 (C.A 6). See also McLeod v. General Electric Co., 257 F Supp 690 (S D N Y.), reversed on other grounds 366 F 2d 847, cert granted on other grounds and cause remanded 385 U S 533 The fact that the negotiators may take into consideration the terms of other union agreements does not disqualify them or in any way taint the negotiations See U.S. Pipe & Foundry Co. v NL.R B., 289 F 2d 873 (C A 5), cert denied 370 U.S 919, where the insistence of several unions, otherwise bargaining separately, on identical contract termination dates, was held not to violate the Act Compare N.L R.B v Landis Tool Company, 193 F 2d 279 (C A. 3), where an employer was held not to have violated his bargaining obligation by insisting on deferring wage negotiations with a small unit until it had reached agreement with another union covering a large unit The Company contends that the Union's ultimate aim is "coordinated bargaining," that is, bargaining which will em- brace more than the single unit the Union represents, and which will settle terms for other units and at other plants The record does establish that this an ultimate objective of the Union, and the presence of representatives of other labor organizations in the St. Paul and Hastings negotiations may well be an opening wedge in this hoped-for development The Company perhaps should not be blamed for trying to keep the union camel from sticking its nose under the tent. But whatever may be the Company's fears, and howsoever accurate its prognostication and its discernment of the Union's ultimate 7 E.g. NLRB. v. Kentucky Utilities Company, 182 F.2d 810, 812-814(C A 6). 8 The Company argues that the Union had violated a commitment by bringing the additional negotiators into the July 19 meeting. aims, the Company here and now is under a duty to bargain with the Union, and this encompasses a duty to bargain with whatever representatives the Union chooses to send The mere possibility of future abuse (which indeed the Union disclaims), is no justification for an anticipatory refusal to bargain In short, the Company's position here suffers from the same fatal defect described in General Electric, supra, 257 F.Supp at 706-707 On this record the General Counsel established that the Union's negotiators, including those who normally repre- sented other labor organizations, were to engage solely in bargaining on behalf of the St Paul and Hastings units The Company could not, therefore, lawfully refuse to negotiate with them.' CONCLUSION OF LAW By refusing to engage in bargaining negotiations covering the St Paul and Hastings plants if the Union included among its negotiators' representatives who were members of, and normally represented, other labor organizations, the Company engaged in an unfair labor practice affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act THE REMEDY I shall recommend that the Company cease and desist from its unfair labor practice, that it bargain with the Union upon the latter's request notwithstanding the Union's inclusion among its negotiators of representatives of other labor organiza- tions, and that it post appropriate notices Accordingly, upon the foregoing findings and conclusions, and upon the entire record in this case, I recommend, pursuant to Section 10(c) of the Act, issuance of the following ORDER Minnesota Mining & Manufacturing Company, its officers, agents, successors, and assigns, shall 1. Cease and desist from: (a) Refusing to bargain with the 011, Chemical and Atomic Workers International Union, AFL-CIO (or with its appropriate local), by declining to meet with the selected negotiating committee of that Union because of the presence of any representatives of other unions whom that Union has invited to attend the negotiations for the purpose of participating in the discussion and advising and con- sulting with the Union. (b) In any like or related manner interfering with the efforts of the above-named Union or its locals to bargain collectively on behalf of the employees in the units they represent. 2. 'fake the following affirmative action necessary to effectuate the policies of the Act: (a) Meet and bargam upon the request of the above Union (or its appropriate local), with the selected bargain- ing committee of the Union, including any representatives of other unions whom it has invited to attend the Assuming , arguendo, that such a commitment had been made , the issue before me is not what transpired at that meeting, but whether the Company's continued and present insistence that such negotiators be excluded from future meetings violates the Act MINNESOTA MINING & MFG CO negotiations for the purpose of participating in the discus- sion and advising and consulting with the Union. (b) Post at its plants in St. Paul and Hastings, Minnesota, copies of the attached notice marked "Appendix."9 Copies of such notice on forms provided by the Regional Director for Region 18, after being duly signed by an authorized representative of the Respondent, shall be posted immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 18, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith. 10 9 In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order " shall be substituted for the words "a Decision and Order." 10 In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " 279 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effec- tuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that WE WILL meet and bargain upon request of the Oil, Chemical and Atomic Workers International Union, AFL- CIO, with the selected bargaining committee of that Union, including any representatives of other unions whom it has invited to attend the negotiations for the purpose of partici- pating in the discussion and advising and consulting with it. MINNESOTA MINING & MANUFACTURING COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Telephone 334-2618