United Paperworkers Intl. Union, Local 1027

486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Paperworkers International Union, AFL-CIO, and Its Local Union No. 1027 and Westab -Kala- mazoo Division, Mead Corporation. Case 7-CB-28891 February 5, 1975 DECISION AND ORDER BY MEMBERS JENKINS , KENNEDY, AND PENELLO On May 24, 1974, Administrative Law Judge Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith, and to adopt his recommended Order. The Respondent is one of seven unions which bargain with Mead Corporation for seven separate units of employees located at the five plants composing Mead Corporation's Westab Division. Each of these seven unions has been separately recognized as the representative of a single unit for more than 20 years and each has had consecutive bargaining contracts with the Employer throughout those years limited to the single unit each represents. Since 1953, under a practice initiated at Westab's request, each such contract has contained provisions for: (a) pension benefits under a plan established in negotiations conducted on a multiunit basis between Westab and the seven unions acting through one agent commonly and covering all employees in the seven units, supra; and (b) other employee working conditions established by separate negotiations between Westab and each unit's recognized bargain- ing representative. The events giving rise to the complaint herein occurred in 1973, during negotiations looking to the establishment of new contract terms to replace those of the contracts expiring in the latter part of 1973. Acting in accord with the established bargaining I The following unions were also named as parties in interest and served with the complaint and notice of hearing : United Paperworkers Internation- al Union, AFL-CIO, and its Local Union No. 247; United Paperworkers International Union, AFL-CIO, and its Local Union No. 442; Local 9B, Graphic Arts International Union , AFL-CIO; and Printing Specialties and Paper Products Union, District Council No. 2, Southern California, International Printing Pressmen and Assistants' Union of North America. practices, the seven unions authorized one of their number-here the Respondent Union-to act on their behalf in proposing and negotiating changes in the pension plan at meetings to be held separately from those between Westab and each of the seven unions for the purposes of negotiating other employ- ment conditions. Westab refused to honor Respon- dent's request for multiunit negotiations on the pension plan and insisted that the proposals for any changes in the plan now be held on a separate single- unit basis. Respondent, as the agent of the seven unions involved, adamantly rejected Westab's de- mand in this respect. Both Westab and the union parties then filed charges against each other respec- tively alleging that each had failed and refused to act in accord with its respective statutory bargaining obligations. General Counsel chose to proceed on Westab's charge and issue the complaint herein against Respondent. The question posed by that complaint is whether the Respondent's insistence on bargaining about pensions in accord with a 20-year practice of bargaining on the matter between the parties was conduct violative of the duties imposed on union bargaining agents by Section 8(b)(3) of the Act. Contending that the Respondent's conduct was unlawful, as alleged, Westab and the General Counsel make no claim that anything in the Act forbade the parties from entering into the kind of bilateral bargaining arrangements here involved and then maintaining them for more than 20 years. They contend, rather, that the historical pattern of bar- gaining in this case had not extinguished the lines of the units appropriate as defined either by this Board's single-plant unit certifications issued to Respondent and other of the unions or by voluntary recognition accorded to some of the unions on the same basis.2 They contend further, in these circum- stances, that none of the several unions involved could lawfully compel Westab to bargain in any but the single-plant unit each was authorized to represent about any mandatory subject of collective bargain- ing; and that, by insisting to the point of impasse on a continued negotiation of pensions (a mandatory subject of bargaining) on the historical multiplant basis, Respondent acted in derogation of its statuto- rily defined bargaining obligation. Contrary to the position of the General Counsel and in accord with that of the Administrative Law Judge, we do not believe that the union conduct in None of these parties , however, chose to appear at the hearing. 2 The record affirmatively indicates that the Respondent Unions were certified as bargaining representatives at the Kalamazoo plant unit in 1948, but merely states that the bargaining representatives at other units were "duly recognized." The Charging Party's brief asserts, however, that the several unions hold Board certifications for the single-plant unit each represents. 216 NLRB No. 80 UNITED PAPERWORKERS INTL. UNION, LOCAL 1027 487 this case was incompatible with the statutory scheme of bargaining. As illustrated by this and many other cases coming before the Board, once "an" appropri- ate unit of employees establishes a union's represent- ative status, the parties are not so imprisoned by the unit description that they cannot lawfully mutually and voluntarily combine, with the consent of other unit representatives , such unit with others for the purposes of settling some or all of the conditions of employment of mutual interest to all the represented employees involved. We are aware of no case in which the Board has held that bargaining under such consensual arrangements is in derogation of "the appropriate unit" bargaining concepts of the Act, even though, absent a history of bargaining under such arrangements, the Board would not, in the face of proper objections by a party or parties, establish all of the employees involved as a single appropriate unit. In the face of the history of bargaining here, it appears plain that consenting parties have founded an "appropriate" unit for the conduct of collective bargaining about that part of the employment conditions which the parties found mutually satisfac- tory to negotiate on that basis. We therefore see no reason to hold that insistence to impasse by either party upon retaining such a valid consensual unit arrangement arrived at through the voluntary proces- ses of negotiation is precluded by the statutory scheme of bargaining or incompatible with the policies it seeks to serve .3 This is not to say, however, that there was anything at odds with the statutory scheme in Westab's proposal and its adamant insistence thereon that bargaining on the subject of pensions now take place in the single-plant unit rendered appropriate as a unit for bargaining by Board certification (or, if it were the case, through recognition voluntarily accorded on the same unit basis). We would find that such a proposal to bargain in a different, but also clearly appropriate (by our usual standards), unit is a lawful proposal also. In short, the resolution of which of various appropriate units best suits the needs of the parties at any given time seems to us to be a matter 3 Compare General Electric Company, 150 NLRB 192 (1964), enfd. 418 F.2d 736 (C.A. 2, 1969), and Radio Corporation of America, 135 NLRB 980 (1962), cases illustrative of situations in which , under historical arrange- ments, parties in the bargaining relationship had agreed to negotiate on some of the subjects of mandatory bargaining on a broad scope unit basis but to leave other subjects for negotiations on a narrower scope unit basis. The Board's decisions in both cases indicate that the adamant resistance of one party to the bargaining relationship to proposed departures by the other from established practices does not establish a violation of the statutory duty to bargain . They further indicate that the parties ' historical practices in defining some of the subjects of bargaining as single-plant unit issues and others as multiplant unit issues is not incompatible with the statutory scheme of bargaining. In The Kroger Co , 141 NLRB 564 (1963), affd. 330 F.2d 210 (C.A.D C). cert. denied 379 U .S. 929 ( 1964), and The Kroger Co., 148 NLRB 569 (1964), the Board found equally compatible with the statutory bargaining scheme a for discussion and negotiation by the parties and in which this Board need not as a matter of law, and should not as a matter of wisdom, become involved. In agreement with the Administrative Law Judge, we conclude accordingly that the complaint herein should properly be dismissed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER KENNEDY, dissenting: Section 8(b)(3) and 8(a)(5) of the Act imposes the obligation on a union or an employer to bargain as to the "terms and conditions of employment" in the "unit appropriate for such purposes" which the union represents .4 Accordingly, I consider Respon- dents' refusal to bargain with the Employer in the certified bargaining unit to be a violation of Section 8(b)(3). As noted by my colleagues, the Employer operates five separate plants. In these plants, the production and maintenance employees are grouped into seven bargaining units, only three of which are represented by Respondent Paperworkers International and its locals. The remaining four units are represented by four different labor organizations. For more than 20 years, the Employer has executed consecutive collec- tive-bargaining agreements for each of the seven bargaining units. Prior to 1953, all conditions of employment-in- cluding pension benefits-were negotiated on an individual unit basis. In that year, the Employer and each of the labor organizations elected for the first time to negotiate pension benefits on a joint, multiunit basis. All other subjects of bargaining continued to be negotiated separately for each unit. The mechanics of the multiunit pension negotia- tions quickly developed into a recurrent pattern. situation where interested parties had consented to a bargaining arrange- ment under which one of many employers composing "an" appropriate multiemployer unit reserved the subject of pensions for separate negotia- tions between itself and an employee union representative. And see the recently decided Newspaper Production Company case, 205 NLRB 738 (1973), wherein we refused to find that a umon's strike in support of its insistence to impasse upon the expansion of an appropriate unit which had been arrived at through the voluntary processes of negotiation to an equally appropriate unit again by the process of voluntary negotiation was in derogation of the union's bargaining obligations. To the extent that Pacific Coast Association of Pulp and Paper Manufacturers, 133 NLRB 690 (1961 ), enfd. 304 F.2d 760 (CA 9, 1962), would appear to indicate to the contrary, we would not adhere thereto. a Allied Chemical & Alkah Workers of America Local Union No 1 v. Pittsburgh Plate Glass Co., Chemical Division, 404 U.S. 157, 164 (1971). 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Management's negotiating team would consist of plant managers from each of the five plants plus a representative of the Employer's actuarial company. The 'labor negotiating team would consist of a representative from each of the seven participating unions. While each team selected a chief spokesman, all team members participated in the discussions and were authorized to cast a vote in determining the team's bargaining position . When a final agreement was reached, each team member would sign it as representative of his plant or unit. The agreement reached by the negotiators would then be separately drafted for each of the seven units. The draft was then submitted to each unit for ratification. Once ratified, the pension provisions would be incorporated by reference into the unit's agreement on all other terms and conditions of employment.5 An explanatory booklet describing the pension benefits would then be prepared for each bargaining unit. While the bifurcated bargaining procedure was not without its critics,6 it was utilized through the 1969 negotiations. Shortly after those negotiations were completed, each of the five plant managers informed their local unions that the Employer desired to abandon the multiunit negotiations and return to the former practice of negotiating all subjects-including pensions-on a single-unit basis. The dispute giving rise to the instant proceeding arose at the Employer's Kalamazoo, Michigan, facility. In 1948, the Respondents were certified by this Board to represent the Kalamazoo production and maintenance employees. Between 1953 and 1969, collective bargaining at Kalamazoo was con- ducted in accordance with the procedures described above. In 1971, the nonpension terms and conditions of employment were renegotiated. Pursuant to the position announced 2 years earlier , management offered a pension proposal limited to the Kalamazoo plant. The proposal was subsequently abandoned in the face of resistance from Respondents. In 1973, the 1969 multiunit pension agreement became subject to renegotiation. Respondents de- manded that bargaining be conducted on a multiunit basis. The Employer reiterated its view that pension benefits should once again be negotiated separately 5 Although none of the units have ever failed to ratify a negotiated pension agreement, an employer witness testified without contradiction that, should such ever occur, the multiunit pension agreement would not be applied to that unit and pension benefits would then be determined pursuant to local negotiations. a In 1957, for example, the Respondent International sought to exclude each of the units represented by other labor organizations from the scope of the multiunit negotiations. During the 1969 pension negotiations, bargain- ing ceased for approximately I month when a plant manager submitted a proposal which was limited to the unit at his own facility . In neither situation was the existing procedure modified. I Both the Board and the courts have held that neither a union nor an employer may insist, as a condition of reaching agreement in one unit, that for each unit. Refusal-to-bargain charges were filed against the Employer and the Unions. The charge against the Employer was dismissed while the charge against Respondents resulted in issuance of the instant complaint. Respondents admit that their rejection of single-unit negotiations was absolute at all times. My colleagues find that Respondents' refusal to bargain in the certified unit does not violate the Act. In their view, the bilevel pattern of bargaining utilized in the past evidences a "consensual arrange- ment" to negotiate pensions on a multiunit basis. Given this arrangement, they see no reason to hold that "insistence to impasse by either party upon retaining such a valid consensual unit arrangement arrived at through the voluntary processes of negotiations is precluded by the statutory scheme of bargaining nor incompatible with the policies it seeks to serve." I cannot agree. In my view, it is one thing to say that parties may "lawfully, mutually, and voluntari- ly" agree to combine several bargaining units for purposes of jointly negotiating issues of common concern. It is quite another thing to say that once having utilized such an arrangement over a period of time, the parties are thereafter precluded from insisting that negotiations be resumed in the certified units. A "consensual arrangement," after all, requires the consent of all participants. Once that consent is withdrawn, the arrangement is no longer mutual and voluntary. And in the context of this case such an arrangement operates in derogation of a Board certification. Accordingly, Respondents' insistence upon the continuation of such an arrangement here does indeed constitute conduct in derogation of its statutorily defined bargaining obligation.? In my view, this result is compelled by the principles recently enunciated in Shell Oil Company.8 In Shell, the parties had always negotiated fringe benefits separately for each of its 80 bargaining units. When the union was unsuccessful in its efforts to secure companywide bargaining, 8(a)(5) charges were filed. The Board adopted the Administrative Law Judge's dismissal of the complaint. In his Decision, the Administrative Law Judge made the the negotiations also include other units and the other party is free to reject such a proposal. See The Standard Oil Co. v. N. L. R. B., 322 F.2d 40, 45 (C.A. 6, 1963); Douds v. International Longshoremen 's Association [New York Shipping Assn.], 241 F.2d 278 (C.A. 2, 1957); N L.R B v South Atlantic and Gulf Coast District Intl. Longshoremen's Association, AFL-CIO [Lykes Bros. Steamship Co.], 443 F.2d 218 (C.A. 5, 1971); N.L R B. v. International Brotherhood of Electrical Workers [Texhte, Inc.], 266 F.2d 349 (C A 5, 1959), enfg. 119 NLRB 1792, 1795-98 (1958). See also United Mine Workers of America v. Pennington, 381 U.S. 657, 666-667 (1965); N L.R B v. George P. Pilling & Son Co., 119 F.2d 32, 38 (C.A. 3, 1941). Cf United State Pipe and Foundry Company v. N L.R.B., 298 F.2d 873, 877-888 (C.A. 5, 1962), cert. denied 370 U.S. 919 (1962). 9 194 NLRB 988 (1972), enfd 486 F.2d 1266 (C.A.D.C., 1973). UNITED PAPERWORKERS INTL. UNION, LOCAL 1027 489 following observations regarding the sanctity of certified or recognized bargaining units: It is well settled that the parties to a collective- bargaining relationship may voluntarily agree- subject to any later determination of appropriate- ness under Section 9(b) of the Act-to the enlargement or alteration of an existing unit, or to the merger of separate units, theretofore recog- nized by the parties or found by the Board to be appropriate for the purposes of collective bargain- ing. But, in the absence of an agreement, neither party may attempt to force upon the other an enlargement, alteration or merger of an estab- lished unit or units. Stated differently, an employ- er (or a union) may lawfully insist on confining bargaining within established unit borders, and- what is but the opposite side of the same coin-a union's (or employer's) attempt by coercive means, or by insistence in bargaining to the point of impasse, to require the crossing of such borders will be regarded as a unilateral attack on the integrity of the established bargaining unit, violative of the Act. The stated principle rests on the rationale that, once an appropriate unit has been established, and particularly where this has been done by a finding of the Board, the statutory interest in maintaining stability and certainty in bargaining obligations requires adherence to that unit in bargaining. [194 NLRB 995.]9 The Circuit Court for the District of Columbia denied the Union's petition for review of the Board's Order in Shelly and articulated the applicable law as follows: While it has been held that the parties may agree to consolidate units for purposes of collective bargaining, respect for the stability of industrial relations imparted by the Board's determinations has led to the rule that a party may not be forced to bargain on other than a unit basis. [486 F.2d at 1268.] Unlike my colleagues, I do not think that these principles are altered by the fact that the "consensual arrangement" providing for multiunit bargaining on pensions existed for several years. At what point does a "temporary" consensual arrangement become transformed into a "permanent" one? Five years? Ten years? Fifteen? The fact of the matter is that, since the arrangement is predicated upon voluntary and mutual participation, it is subject to termination at any time. I also am of the opinion that the conclusion of my colleagues is directly contrary to the principle applied by this Board in Pacific Coast Association of Pulp and Paper Manufacturers, 133 NLRB 690 (1961), enfd. 304 F.2d 760 (C.A. 9, 1962). In the Pacific Coast case, the parties had bargained for 25 years on a multiemployer basis. During that 25 years, the union and employer association had not bargained for pensions on a multiemployer basis. Rather, pensions had been negotiated on a single-employer basis. The union became dissatisfied with the 25-year practice of single-employer pension negotiations and requested bargaining on pensions in the same multiemployer unit that all other terms and condi- tions of employment were negotiated. The Board held that the employer's insistence that the parties adhere to the 25-year practice of negotiating pen- sions on a single-employer basis violated Section 8(a)(5) of the Act. In so finding, the Board stated: Of course, a mandatory subject of bargaining may, by agreement of the parties, be negotiated on an individual employer basis by the employer- members of the unit. See, e.g., Rice Lakes Creamery Co., 131 NLRB 1270. However, such an agreement is equivalent of a waiver during negotiations and is effective for the duration of the contract which is concluded as a result of the bargaining. See Speidel Corporation, 120 NLRB 733. And a refusal by the employees and/or their agent to discuss or bargain on the multiemployer basis concerning the matter, upon demand at a proper time, is contrary to the duty to bargain imposed by the Act. . . . Here, the parties had previously agreed that pensions should be bar- gained for at the local level, but the Union sought to bargain on the association level at a proper time, i.e., during renegotiation of the contract. While an employer is not obligated to make any concession, it is required to discuss issues and make a reasonable effort to reach an agreement. [133 NLRB at 691, fn. 2.] Courts have admonished the Board that we must apply the statute evenhandedly.11 There is no logical distinction between the instant case and the Pacific Coast case. Disregard of the Pacific Coast principle cannot be justified simply on the ground that we here have Union Respondents. Finally, it is important to emphasize that this case is not like Chase Brass & Copper Co., Incorporated.12 in which the history of multiunit bargaining resulted in a voluntary merger of the individual units into a 9 See also Douds v. International Longshoremen's Association, 241 F.2d N.LR.B., 486 F.2d 1266 (C.A.D.C., 1973). 278 (C.A. 2, 1957). 11 Wilkinson Manufacturing Company, 456 F.2d 298 (C.A. 8, 1972). 10 Oil, Chemical and Atomic Workers, International Union, AFL-CIO v. 12 123 NLRB 1032 (1959). 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD single larger unit. Unlike Chase Brass & Copper, the separate unit concept was fully preserved here-each plant was afforded equal representation and voting privileges on the negotiating teams; individual pension agreements were drafted for each unit; and the employees in each unit were required to ratify the agreement prior to implementation. In this respect, General Electric Company 13 and Radio Corporation of America.14 relied on by my colleagues, are more analogous to Chase Brass & Copper than to the instant case. In each of those cases the employer historically dealt with the International labor organi- zation on behalf of its constituent locals with regard to national issues . The Board concluded that the International organizations had, in effect, become the de facto accredited bargaining representative of all the represented employees in a single overall bargaining unit. Accordingly, any attempt by the employer to disturb this relationship through direct bargaining with an affiliated local would violate Section 8(a)(5). Such, of course, is not the case here where each Union retained its separate identity throughout the negotiating process and reserved the right to reject the negotiated agreement.15 In my judgment, the inevitable result of my colleagues' decision will be to discourage parties from experimenting with multiunit bargaining. For, once they feel that any departure from bargaining in the certified unit is or may become irreversible, uncertainty as to the precise consequences of such a departure will effectively preclude them from ever doing so. Accordingly, I would find Respondents' refusal to bargain in the certified unit to be a violation of Section 8(b)(3). 13 150 NLRB 192 (1964), enfd. 418 F.2d 736 (C.A. 2,1%9). 14 135 NLRB 980 (1962). 15 Nor do I believe my colleagues can derive support for their position through citation to Newspaper Production Company, 205 NLRB 738 (1973). In that case the union was found to have lawfully bargained to impasse over an expansion of the historical bargaining unit. However, the unit there had always been established through the process of collective bargaining. The Board had never issued a certification and had never made a determination as to the appropriateness of any bargaining unit. Accordingly, the right of a party to insist upon bargaining in a unit not established through the negotiating process was never raised in that case. DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Administrative Law Judge: I heard this case in Kalamazoo, Michigan, on January 15, 1974, based on a complaint issued by the Regional Director for Region 7 on November 30, 1973, which in turn was based on a charge filed on August 20, 1973, by Westab- Kalamazoo Division, Mead Corporation (hereinafter known as Westab K or the Company). Briefly stated the complaint alleged that since about August 28, 1973, the Union, United Paperworkers International Union, et al. (hereinafter known as the Union or UPIU), refused to bargain with Westab K about pensions on the basis of single plant negotiations contrary to a 16-year practice of dealing by the Union and the Company on a multiplant basis regarding pensions, thus allegedly violating Section 8(b)(3) of the Act. The Union in its answer denied the commission of any unfair labor practices but admitted that it is a labor organization within the meaning of the Act and that the Company is engaged in commerce. The Union and the Company filed helpful briefs which have been carefully considered. The General Counsel did not file a brief. Upon the entire record in the case, including my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATIONS INVOLVED Westab K, an Ohio corporation, has its principal office and place of business in the city of Kalamazoo, Michigan, where it is engaged in the manufacture, sale, and distribution of school supplies, stationary, envelopes, and related products. During the past year, it sold and delivered goods directly to customers outside the State of Michigan valued in excess of $50,000, and received supplies and materials valued in excess of $50,000 from outside the State of Michigan. I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent and the other labor organizations involved in this proceeding are labor organizations within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background In 1948 the predecessor of the UPIU the United Papermakers and Paperworkers and its Local No. 1027 was certified as the exclusive representative for collective bargaining in a unit including "all employees of the Kalamazoo plant" but excluding, "office and clerical employees, plant protection employees, professional em- ployees and supervisory employees as defined in the Act." In addition to its Kalamazoo operation, through the years the Company has added to its corporate family by mergers and other means the following plants: St. Joseph, Mis- souri; Garden Grove, California; Salem, Oregon; and Alexandria, Pennsylvania. Three separate units for collec- tive bargaining exist at the St. Joseph plant. At all the other plants of the Company the employees are represented in single plant units consisting basically of production and maintenance employees with the usual statutory exclu- sions. Thus, including Kalamazoo, the Company bargains with respect to seven separate bargaining units . In three of these units, separate Locals of the UPIU represent the employees as their exclusive representative . In the remain- ing units a number of different other unions represent the Company's employees. All of the employees who are represented by labor unions bargain on a single plant unit basis as to wages, hours, and working conditions with a UNITED PAPERWORKERS INTL. UNION, LOCAL 1027 491 special exception with respect to the subject of pensions. Pensions are bargained on a multiplant basis. B. The Facts In 1953, for the first time, the Company installed a multiplant pension plan. In this connection it should be specially noted that Westab K initiated the suggestion that pensions be bargained on a multiplant basis . The several different unions agreed and pension bargaining continued on this basis at 4-year intervals from 1953 until 1969. In 1957 United Papermakers and Paperworkers , the predeces- sor to the UPIU, attempted to limit pension bargaining to only the three plants where UPIU locals were the bargaining representatives . It sought to leave the plants represented by the other International unions to negotiate separately for pensions . The record shows that the then vice president of the UPP, Mr. Charles Bridgewater, received a letter from the chairman of the board of the Western Tablet and Stationary Company, the former name of the Charging Party, dated August 30, 1957, which appears in the record as Respondent's Exhibit 2. This letter states, inter alia: ... As you know, the pension plan of this Company provides for the employees in the various bargaining units in all of our Divisions. You have requested a joint conference on behalf of Locals 442, 696 and 1027 of United Papermakers and Paperworkers . Your request does not cover employees in any Division who are not members of your union. We have no objection to a joint conference regarding the pension plan but we do feel that any such conference should include represent- atives of all of the employees in all of our Divisions. [Emphasis supplied.] Despite the Union's efforts to limit pension bargaining to only the three plants represented by it the Company resisted this attempt and bargaining continued to take place on a multiplant and multiunion basis . Thus it can be seen that from the outset of the installation of the pension plan in the Company's plants the subject of pensions was intended by the Company to be bargained and took place on a multiplant basis and not separately. Thereafter it was not until September 10 and 11, 1969, that a deadlock occurred on several items involving changes in the pension plan that the Company, for the first time, gave oral notification of its desire to bargain on a separate plant basis regarding pensions . The Union resisted this effort, the demand was withdrawn and bargaining resumed on October 15, 1969. A new memoran- dum of agreement covering all five plants was agreed upon which contained a paragraph 14 which states as follows: 14. Subject to the limitations of Item 13 , above, the pension plans shall not be subject to any changes or modifications prior to September 1, 1973. As of such date and as of any subsequent September 1, the divisions or the unions, on not less than 60 days prior notice, may request negotiations with respect to modification thereof. (G.C. Exh. 3). From this quotation, agreed to by all parties, the Union concludes that "this language clearly contemplated a continuation of multiplant bargaining on pensions in the future." The Employer wrote a letter dated December 2, 1969, to the UPP representative at Kalamazoo confirming "the Company's verbal notice given during our recent pension negotiations to the effect that the Company no longer agrees to meeting in joint negotiations when the pension agreement expires." (G.C. Exh. 1 - Exh. A to the complaint.) To this letter Nicholas Vrataric, vice president and principal union spokesman at the pension negotia- tions, replied by letter dated December 19, 1969 (Resp. Exh. 4). Vrataric noted the Company's withdrawal at the October 15 meeting of its demand for separate bargaining and reiterated the Union's position to be that the Company could not legally and unilaterally terminate joint bargain- ing. Despite this exchange of correspondence no effort was made by the Company to bargain separately until September 1, 1973, which was less than 60 days prior to the expiration of the 1969 pension agreement - September 1, 1973. Vrataric had written the Company on June 15, 1973, sending copies to all participating unions, his typical letter to commence multiplant bargaining concerning pensions. It was not until July 13, 1973 (Exh. "B" to the complaint, G.C. Exh. 1), that the Company replied and in this letter, for the first time in writing, it asserted that "we do not desire to participate in joint negotiations with other bargaining units." On August 28 the Company and Union met in Kalamazoo where they exchanged proposals for changing the pension plan. Vrataric testified that by this time both the Company and the Union had filed charges that the other party was refusing to bargain in violation of Section 8(a)(5) and 8(b)(3), respectively. At this point Respondent's brief states "we agreed to break off negotiations pending some finding by the Board as to charges that were filed and, at the same time, we told the Company we would take their proposals to the membership for approval or rejection at which we did in September and it was rejected." The Regional Director refused to issue complaint on the Union's 8(a)(5) charge but did issue complaint in the instant case on the Company's 8(b)(3) charge. After the Regional Director had refused to issue a complaint on the Union's charge, another meeting was arranged to take place on December 7. This came about because the Company had notified the local union officers that it was willing to meet on a local union basis because it had certain improvements to offer. Consequently, at this meeting modified company and union proposals were exchanged and a new meeting was set up for January 7, 1974. Further proposals and counterproposals were exchanged at the January 7 meeting on a single-plant basis. At this time the Union modified its demands which had previously included the right to strike on the issue of pensions, a common expiration date for all Westab pension agree- ments, and a most favored nations clause and withdrew all but the favored nations clause. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Issue In a case involving a single employer with five plants can there be both a multiplant appropriate bargaining unit limited as to the subject of pensions and coexisting single- plant appropriate bargaining units as to wages, hours, and other conditions of employment? D. Discussion At the outset it appears that no cases which I have read are directly analagous on their facts to the case at bar. Under the numerous adjudicated cases both in the posture of complaint and representation matters both the Respon- dent and the Company cited cases which they urge support their respective positions. It is a matter of record that originally the Board found the appropriate units to be single-plant units. When in 1953 the Company initially installed a pension plan it was the Company that instituted bargaining on a multiplant basis for the very practical reason that it made sense to bargain on an overall basis since the pension plan was identical in all its plants and could be bargained at one time at the same time and place. Otherwise it would be necessary to bargain five times at separate times over the same subject matter. The Company calls attention to the fact that after the 1969 negotiations it confirmed in writing to the Union that it "no longer agrees to meet in joint pension negotiations when the current pension agreement expires." Written notices to this effect were sent on December 2, 1969, and again on July 13 and 18 and August 10, 1973. Further the Company's brief states: Approximately five months after the Union's initial refusal to bargain in July 1973, limited bargaining did occur on the local level on August 28, December 7, 1973 and on January 7, 1974 after the complaint issued in this case on November 30, 1973. In this "local level bargaining" however, the Union had representatives from St. Joseph and Alexandria, present as a commit- tee, and demanded provisions amounting to multiple negotiations, including a "most favored nations clause" to insure that any pension plan changes negotiated would be identical for all bargaining units. The Union took the position that any local pension agreement would be "subject of course to a final decision in this matter . . . subject to being voided" if the Board should rule in the Union's favor. The Union for its part calls attention to the provisions of item 14 in the overall memorandum of agreement concerning pensions which require that notice of a desire to change the pension agreement must comply with item 14 and must be sent 60 days prior to any September 1. The first written notice received from the Company was dated July 13 and the Union contends the Company's notice was therefore neither timely nor unequivocal.[ i In view of my decision in this case it becomes unnecessary for me to pass on this point 2 184 NLRB 976 (1970) The Company cites the case of AFL-CIO Joint Negotiat- ing Committee2 where it was held that where separate bargaining units have been certified, as in the case with the Kalamazoo unit, a union violates Section 8(b)(3) of the Act by insisting that an employer engage in companywide bargaining beyond the scope of the bargaining unit. The Company further cites International Longshoremen's Associ- ation [N. Y. Shipping Association] v. N.L.R.B.,3 and Douds v. International Longshoremen's Association [New York Shipping Assn.]4 for the proposition that a union violates Section 8(b)(3) when it insists, over the objections of the employer, that negotiations cover a unit of employees more extensive than the original units found appropriate by the Board. The General Counsel places particular reliance on the Shell Oil Company cases In this case the Board held that where an individual certification exists, the employer could restrict bargaining to a unit no more extensive than that certified even though the discussions involved pensions and the employer uniformly applied the same pension agreements to employees in multiple bargaining units. But note in this connection the Union points out a major difference in the facts of this case and Shell in that there is no long bargaining history consensually agreed to on a multiplant basis in Shell whereas there is a 16-year multiplant collective-bargaining history on a consensual basis in the instant case. Thus in the Shell case the Board could not order the parties to initiate such a process as is the case in the instant matter. The Company in its brief makes a comment that ".. . such discussions were purely consensual and either party retained the right to return to bargaining on the basis of the bargaining unit irrespective of a bargaining history on pensions." This appears to do violence to the dictionary definition of consensual which is "existing or made by mutual consent." Once multiplant bargaining began on the basis of mutual consent and continued for 16 years it can be changed only by mutual consent. Shell further states: It is well settled that the parties to a collective bargaining relationship may voluntarily agree . . . to the enlargement or alteration of an existing unit... . But in the absence of an agreement, neither party may attempt to force upon the other an enlargement, alteration or merger of an established unit ... . In the instant case the Company initially established a multiplant unit for the purpose of bargaining on pensions. In 1957, when the Union attempted to change the scope of the unit by shrinking it down to cover only the three plants where it was the certified bargaining agent, the Company refused to go along with this change. In the face of the Company's opposition the Union relinquished its attempt and thus bargaining on pensions continued on a multiplant basis uninterruptedly for 16 years. In the face of this bargaining history I am persuaded that the Company, by so late in its relationship with the Union unilaterally attacking the multiplant history of bargaining, was itself 3 277 F.2d 681 (C A D.C., 1960) 4 241 F.2d 278 (C.A 2, 1957). S 194 NLRB 988, enforcement denied 486 F 2d 1266 (C A.D.C., 1973) UNITED PAPERWORKERS INTL. UNION, LOCAL 1027 seeking to attack the integrity of the bargaining unit consensually agreed to on a multiplant basis. The Company also cites the Univac Division, Sperry Rand Corporation, cases where it is stated that ". . . the record shows no manifestation on the part of the employer and the union to merge these separate units into one overall unit. The employer's position has always been that it was bargaining for separate units." The facts in Univac are clearly distinguishable from the facts in the instant case. Among other cases cited by the Union the Chase Brass & Copper Co.7 seems to be closer on its facts to the case at bar than the cases relied on by the Company. In that case, which arose as a representation matter, the facts briefly are as follows: The company and union initially recognized three separate units covering three of the company 's plants which were certified by the NLRB. Thereafter, for a period of 15 years, the parties bargained a single master contract covering all the employees in the bargaining unit. The employer unilaterally decided to return to single plant bargaining. The Board held: These actions by the parties, consistently engaged in over such an extended period of time, are clearly indicative of their mutual intent to establish a multi-plant unit covering employees of all the employer's plants and to extin- guish the right of the employees in each of the original plant units to bargain as separate groups . The employ- er's belated unilateral effort to alter the bargaining pattern is not a valid basis for ignoring the persuasive evidence of the bargaining history. Accordingly we find the multi-plant unit is now appropriate and that three separate single plant units are no longer appropriate for purposes of collective bargaining. The Company argues that under its practice any agreement arrived at by multiplant bargaining must thereafter be ratified by the union locals on a local-unit basis. This fact, according to Westab K, proves that the identity of the local units has thereby been preserved. Companies with numerous plants frequently negotiate a master contract leaving local issues to be separately bargained for on a local basis . This common practice does not change the appropriate unit from a multiplant basis where such arrangement exists to the status of separate local bargaining units. 6 158 NLRB 997, 1000 (1966). 7 123 NLRB 1032 (1959). 6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, 493 Pensions by their very nature are usually predicated on an overall multiplant basis for actuarial reasons and depend for efficient operation on centralized control. The broader the base the better the coverage and benefits that can be obtained. It would seem to be a rare occurrence for a multiplant company to negotiate numerous different pension agreements for each separate plant. If such an arrangement does exist it must turn into an administrative nightmare. CONCLUSION One of the cardinal objectives underlying the National Labor Relations Act is the stabilizing of labor relations. Having operated successfully and peacefully for 16 years on a multiplant basis concerning pensions it appears to me that to change this practice at this late date would be unsettling and would be contrary to the purposes of the Act. The Union argues in its brief that there is "... nothing in Section 1 of the Act . . . or in Section 9(b) which requires the disapproval of having two coexisting bargain- ing units for different purposes : one a single-plant series of units for bargaining on everything except pensions and the other a multiplant unit for bargaining on pensions. Indeed if a basic purpose of the Act is to achieve or restore equality of bargaining power between employers and employees and to promote effective bargaining which will avoid industrial strife or unrest it would appear wholly within the Board's power to approve the existence of the two-unit concept ...." I concur. It seems logical and reasonable to apply the emphasis given by the Board to the collective-bargaining history in determining that a consolidation of units by consent creates a new multiplant unit which cannot be unilaterally altered by either party. Under the circumstances of the instant case I recom- mend that the complaint be dismissed in its entirety. Therefore pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The complaint herein be, and the same is, dismissed in its entirety. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.