Paper Manufacturers Co.

PAPER MFRS CO Paper Manufacturers Company and Graphic Com- munications International Union, Local 14, AFL-CIO-CLC Warehouse Employees Local 169 a/w International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America and Graphic Communications International Union, Local 14, AFL-CIO-CLC. Cases 4-CA-13616 and 4- CB-4613 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 14 March 1984 Administrative Law Judge Arline Pacht issued the attached decision. The Re- spondent Employer and the Respondent Union filed exceptions and supporting briefs,' and the Charging Party and the General Counsel filed briefs in response to the Respondents' exceptions. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions3 and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that Respond- ent Paper Manufacturers Company, Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, and Respondent Warehouse Employees Local 169 a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for the second sen- tence in paragraph B,2(a). "(a) Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent Union's authorized rep- resentative, shall be posted by the Respondent Union immediately upon receipt and maintained for 60 consecutive days in conspicuous places includ- i The Respondent Employer has requested oral argument This request is denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties 2 In affirming the judge's 8(a)(5) finding and bargaining order remedy, we correct her inadvertent failure to provide that the Respondent Em- ployer's bargaining obligation shall continue for a period of at least l year from the date when actual bargaining commences See Mar-Jac Poultry Co, 136 NLRB 785, 787 (1962) 3 Member Hunter agrees with his colleagues that no accretion oc- curred here, and finds that the principles of Brooks v NLRB, 348 U S 96 (1954), compel the result in this case 491 ing all places where notices to members are cus- tomarily posted." DECISION STATEMENT OF THE CASE ARLINE PACHT, Administrative Law Judge. This case was heard in Philadelphia , Pennsylvania, on September 19 and 20, 1983 , pursuant to charges filed on March 31, 1983, against Paper Manufacturers Company (Respond- ent Employer or PMC) and Warehouse Employees Local 169 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Re- spondent Union or Local 169). A consolidated complaint and notice of hearing issued on May 27, 1983.1 Respond- ents filed their answers to the complaint on June 8 and 15, 1983, respectively. On these pleadings the principal questions presented by the complaint are whether the Respondent Employer (1) violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by refusing to bargain collective- ly with Local 14 of the Graphic Communications Inter- national Union, AFL-CIO-CLC (Charging Party or Local 14) certified by the National Labor Relations Board (the Board) on February 8, 1983, as the exclusive bargaining representative of a unit composed of produc- tion employees at its Southampton , Pennsylvania facility and (2) violated Section 8(a)(2) and ( 1) by recognizing and supporting Local 169 without it representing a ma- jority of the employees in the above -described unit, and whether Respondent Union violated 8(b)(1)(A) of the Act by claiming to represent employees without their majority support thereby restraining and coercing them in the exercise of rights guaranteed by Section 7 of the Act. 2 On the entire record, including my observation of the demeanor of the witnesses and after due consideration of the briefs filed by the General Counsel , and the Re- spondents, and the Charging Party, I hereby make the following FINDINGS OF FACT I JURISDICTION Respondent Employer, a Pennsylvania corporation, is engaged in the coating of paper and tyvek, a bonded ma- terial , and their conversion into products for the business and medical communities During the past 12 months, a representative period , in the course and conduct of its business operations , Respondent Employer has purchased and caused to be transferred and delivered to its Phila- delphia facility goods and materials valued in excess of i On September 19, 1983, the consolidated complaint was amended to reflect Respondent Employer's correct name and par 5b was amended to read October 5, 1982, rather than October 5, 1983 2 Par 8 of the consolidated complaint alleged that on March 17, 1983, Respondent Employer granted a wage increase retroactive to February 1, 1983, to the unit employees represented by Local 14 without affording the Local an opportunity to bargain However, at the hearing it was re- vealed that Local 14 waived its right to bargain Accordingly, the Gener- al Counsel withdrew the allegation 274 NLRB No. 70 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $50,000 which were transported directly from States other than the Commonwealth of Pennsylvania. Based on the foregoing admitted facts, I find that Respondent is now, and has been at all material times herein, an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. The Respondent Union, Teamsters Local 169, and the Charging Party, Graphic Communications Local 14, are labor organizations within the meaning of Section 2(5) of the Act. ject to a job classification system unique to its division and no reassignment of workers occurred between plants. Finally, Southampton and Philadelphia had sepa- rate plant managers; employees received daily supervi- sion from different foremen at their respective plants. In Philadelphia, three foremen supervised coating oper- ations while two others directed gumming and finishing In Southampton, two supervisors were responsible for the pouching processes and another two for printing 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Since its formation in 1940, Paper Manufacturers Com- pany has evolved into an enterprise with facilities in Philadelphia, Indianapolis, Santa Ana, and Newark, Cali- fornia. The corporation has two major production divi- sions. Medical packaging, currently located in Philadel- phia, and paper products which is further subdivided into an identification and packaging unit also located in Philadelphia and a business products operation in Indian- apolis PMC originally was engaged in coating paper products with various substances. Then, in approximately 1970, it began a process of coating tyvek, a bonded mate- rial whose porosity and impermeability to bacteria par- ticularly suited the needs of the medical community After coating, the rolls of paper and tyvek either were shipped whole to customers or slit into sheets for resale. This process is Respondent's primary operation. In 1971, Respondent's Philadelphia workers chose to be represented by Teamsters Local 169 in a plantwide unit. Identification and packaging and business products were located in Philadelphia at that time and all employ- ees were engaged in the primary operations of coating paper and tyvek or in processing products such as gum paper, heat-seal food, and pharmaceutical labels. Between 1970 and 1975, Respondent purchased a Pea- body, Massachusetts corporation and began secondary operations there to convert the coated tyvek processed in Philadelphia into pouches and to print directly onto the coated tyvek. In 1978, Respondent transferred the pouching and printing equipment from Peabody to a leased facility 7 miles from its Philadelphia plant in Southhampton, Pennsylvania, where Respondent previ- ously had located its research and development, market- ing and sales offices in 1975. Rolled coated tyvek was transported daily from Phila- delphia to Southampton for secondary conversion into pouches used for packaging disposable medical items and for printing on the coated tyvek. One other operation, the printing of heat-seal labels, was completed at South- ampton and was the only nonmedical product produced at that facility. Despite the physical proximity of the Philadelphia and Southampton plants, the differences between the terms and conditions of employment were substantial The em- ployees at the two plants worked different shifts and were placed on separate seniority lists. Further, the bene- fits and wages for Southampton employees were less than those enjoyed by the Philadelphia employees repre- sented by Local 169 Each group of employees was sub- B. Southampton Operation Shift to Philadelphia On January 26, 1982, Respondent's board of directors formally approved a resolution to relocate the medical packaging division from Southampton to Philadelphia. Some months earlier, an informal decision was made to transfer the business products operations from Philadel- phia to Indianapolis and install the Southampton medical packaging operation in the vacated space. To ensure a smooth transition, Respondent expanded the responsibil- ities of certain members of management in the fall of 1981. On November 23, 1981, Corporation President and Chief Executive Officer Don O'Neill informed vice president and general manager of medical packaging Dave Hofman that he would be responsible for both Southampton and the Philadelphia operations. Shortly thereafter on December 1, 1981, other managers assigned to one plant or the other were given responsibility for functions at both facilities. Thus, Ed Kravcak, plant man- ager at Southampton, became plant manager at Philadel- phia. Mike Hof, materials manager at Philadelphia, as- sumed responsibility for medical packaging in Southamp- ton and Paul Bonasch, plant engineer and maintenance supervisor at Southampton, became responsible for Phila- delphia as well. Thus, until the operations in Southamp- ton ceased in October 1982, these managers exercised au- thority in both plants. As scheduled, Respondent closed Southampton on Oc- tober 15 and moved the secondary conversion operation intact to Philadelphia where substantial physical changes were completed to accommodate its special needs. Interi- or walls were constructed to physically separate identifi- cation and packaging processing from that of medical packaging so as to ensure sanitary conditions for its func- tions in conformance with medical industry standards. In December 1982, and January 1983, shortly after in- stalling medical packaging in the newly designed space in Philadelphia, Respondent also acquired machinery from Surgicot, a medical packaging subsidiary of Squibb. For the most part, the Surgicot equipment, comprised of printing presses and pouching machines, augmented Re- spondent's medical packaging conversion capabilities by virtue of its more sophisticated technology. However, two types of machines purchased from Surgicot, a poly- bag and a laminator, added new operations to the medi- cal packaging functions. Other Surgicot acquisitions such as slitters and rewinders, which essentially duplicated ex- isting Southampton equipment, also were integrated into and installed beside the medical packaging equipment transferred from Southampton. Even with this additional PAPER MFRS CO equipment, the physical separation of medical packaging from identification and packaging was maintained.3 Upon Southampton's closing, virtually all of the em- ployees there transferred to Philadelphia, bringing with them their established wages, benefits, and seniority.' The job classifications of the transferred employees re- mained intact with but a few exceptions. Two Southamp- ton shipping and receiving employees were offered other positions in medical packaging at the Philadelphia loca- tion as was a truckdriver who previously transported goods between the two plants Several maintenance workers at Southampton were merged into a larger group of the such employees in Philadelphia, but contin- ued to service medical packaging equipment there. Due to an increasing demand for Respondent's secondary conversion products, greater production potential cre- ated by the Surgicot acquisition, and the new polybag and laminator operations, Respondent hired approximate- ly 30 new employees 5 Respondent placed all of the medical packaging new hires including those assigned to the Surgicot equipment in job classifications reserved previously for Southampton personnel, added them to the same separate seniority list and treated them in every other way as it did its transferred workers Thus, all medical packaging employees, including transfers and new hires, received identical wages and benefits, per- formed their work duties within the walled area, and were required to wear smocks or jackets and head cov- erings to ensure sterile production conditions No other workers in the plant wear such protective clothing unless they are entering the medical packaging division Once the medical packaging division was fully oper- ational in Philadelphia, some interaction between divi- sional employees was inevitable. Although employees in each division worked slightly different shifts (medical packaging shifts ran from 7 a in. to 3 p m. or 3 to 11 p.m. and identification and packaging from 7 am to 3:30 or 3.25-11.55), and ate lunch at different times, there was some overlap in the cafeteria before their shifts began. In addition, all employees parked in the same parking lot and entered the plant through a single entrance, although each group used a separate timeclock. During production time, however, interaction between line employees was nonexistent. While joint management of the two divisions existed at a high corporate level much as it had before the transfer, the same line foreman who exercised daily supervision before the relocation continued to do so afterwards The only workers who moved between divi- sions during production time were shipping/receiving 3 G C Exh 15 is a blueprint of Respondent's Philadelphia facility which identifies the placement of all equipment in identification and packaging and medical packaging Equipment transferred from South- ampton is designated by pink circles and that purchased from Surgicot by yellow squares, while machinery previously existing in Philadelphia is represented by green triangles Only the equipment with pink or yellow designations appears within the segregated medical area while equipment indicated by green triangles is clustered in a separate part of the plant " The Respondent indicates that 40 employees transferred while the record suggests that as many as 45 Southampton employees shifted to Philadelphia 5 At the time of this proceeding, an additional 30 employees had been hired bringing the employee complement in medical packaging to ap- proximately 100 493 and building and machine maintenance personnel Prior to housing medical packaging and identification and packaging under one roof, these support personnel served only the division at their respective locations and received orders from local division foremen After relo- cation, shipping and receiving employees operated fork- lifts to move materials between divisions and to retrieve products for shipping These employees received instruc- tions from foremen in both divisions. Building mainte- nance employees also worked throughout the plant on an as-needed basis and were supervised exclusively by Paul Bonasch, plant engineer. However, because machine maintenance employees had expertise in either medical packaging or identification on packaging machinery, absent unusual circumstances, they worked in their spe- cialty area only. Not only was there no physical movement of line em- ployees between divisions during production time, there was no reassignment of employees from one division to another nor could employees assert their seniority out- side their respective units. When the Surgicot machinery created a demand for additional operators, no identifica- tion and packaging employees were transferred to fill the need. Instead, Respondent hired new workers including one identification and packaging retiree whom it treated as a newcomer C Medical Packaging Employees Elect Local 14 Shortly after the decision to move the Southampton operations to Philadelphia was announced, the medical packaging division employees designated the Graphic Arts International Union, Local 14, to bargain on their behalf On April 14, 1982, Local 14 requested that Re- spondent recognize it as the bargaining representative of Respondent's Southampton employees. Respondent re- fused and on the same day, April 29, Local 14 filed a pe- tition for election with Region 4 of the National Labor Relations Board The Regional Director's Decision and Direction of Election, which issued on June 10, 1982, set forth the unit stipulated to by the parties- All full-time and regular part-time pouch machine operators, general factory employees, inspector/- packer employees, machine technicians, press opera- tors, press helpers, truckdrivers, slitter operators, GN breather bag machine operators, GN helpers, maintenance repair, shipping and receiving employ- ees and die mounters employed at the Employer's 1310 Industrial Highway, Southampton, Pennsylva- nia facility, excluding all other employees, office clerical employees, quality control employees, guards and supervisors as defined in the Act. Respondent urged that the petition be dismissed in view of the imminent relocation of the Southampton oper- ation. The Regional Director refused the request stating in his decision that while cognizant of Respondent's plan "to transfer its medical packaging division to . Phila- delphia . . he could find no evidence in the record to indicate that the relocation . [would] affect the integ- rity of the unit or that a representative complement 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [would] not be employed. 116 Respondent's subsequent re- quest for review of the Decision and Direction of Elec- tion was denied as lacking in merit. An election was con- ducted July 8, 1982, at which a majority of voters chose to be represented by Local 14. Respondent filed objec- tions on July 15, 1982, resulting in a 2-day hearing on August 23 and 24 On October 18, the hearing officer found Respondent's objections to the August election without merit and rec- ommended that Local 14 be certified as the represenative of Respondent's Southampton employees. Again, Re- spondent took exception and sought review with the Re- gional Director. D. The Arbitration On September 17, 1982, in anticipation of the transfer of the Southampton operations to Philadelphia and while Respondent's objections to the election were pending, Teamsters Local 169 informed Respondent that "work . . . to be performed by newly hired . . . or transferred employees . . must be done under our contract and . . . included within our unit." By reply of September 22, 1982, Respondent stated it took no position as to which of the Unions rightfully represented the South- ampton employees. However, in Respondent's view, if Local 169 was the appropriate bargaining agent then the existing contract did not apply. At a meeting with man- agement officials on October 14, 1982, Local 169 insisted that the Southampton employees be treated as an accre- tion. To resolve the matter, the Respondent and Local 169 agreed to submit the issue to arbitration. Subsequently, on January 5, 1983, Local 14 notified Respondent that it knew of the scheduled arbitration and that it intended to file unfair labor practice charges should the Company apply the Local 169 contract to the medical packaging division employees. Despite Local 14's objections, Respondent and Local 169 proceeded with the arbitration on January 12. Local 14 did not par- ticipate On February 8, 1983, before the arbitrator issued his decision, the Regional Director certified Local 14 as the bargaining representative of Respondent's medical pack- aging employees . Respondent petitioned the Board for review. Five weeks after the certification, on March 17, the arbitrator issued his award. He noted that while ob- jections were pending to the certification of Local 14 as the representative of Respondent's Southampton employ- ees, in his opinion the bargaining unit ceased to exist when Southampton closed, placing Local 14 "entirely out of the picture." In the arbitration proceeding, Re- spondent argued that the medical packaging division em- ployees did not belong in the Local 169 unit because 6 The Regional Director stated the positions of the parties as follows "The Employer contends that the petition should be dismissed as this fa- cility will be permanently closed by September 30, 1982 Although it plans to transfer its medical packaging divisions to Philadelphia the Employer is uncertain as to the number of employees that will be re- quired and whether their job duties will be changed after the operation is moved The Petitioner contends that the Employer is merely relo- cating its Industrial Highway facility and that no material changes are ex- pected in the size of the un>,t, the job duties of the employees or the Em- ployer's operations " they were involved in secondary operations The arbitra- tor rejected Respondent's contention and found that these employees accreted to the Local 169 unit. He con- cluded, however, that the terms and conditions of the ex- isting contract did not apply, ordered that existing bene- fits and seniority be maintained, and provided that retro- active to February 1, 1983, the top wage in each classifi- cation be increased 50 cents per hour. Respondent volun- tarily complied with the award. On March 25, 1983, several weeks after it was certified by the Board, Local 14 requested that Respondent meet for the purpose of negotiating a collective-bargaining agreement By letter dated April 6, 1983, Respondent re- plied that the unit had ceased to exist when transferred to Philadelphia and that it would be advisable to wait for the NLRB's resolution of the certification question. Nonetheless, Respondent invited Local 14 to contact it to set a date to meet and discuss the situation On April 14, the Board denied Respondent's final request for review. Five days later, on April 19, Local 14 again noti- fied Respondent of its desire to commence bargaining. Respondent refused to recognize Local 14 as the repre- sentative of its medical packaging employees and has not bargained to date. II DISCUSSION A. Deferral is Unwarranted At the outset, it is necessary to determine whether de- ferral is warranted to the arbitrator's decision that medi- cal packaging employees were accreted to the identifica- tion and packaging unit . The General Counsel and Local 14 contend that questions affecting employee representa- tion, which encompass accretion issues, are traditionally resolved by the Board so that deferral here is inappropri- ate. While conceding that accretion issues have tradition- ally been reserved for decision by the Board, the Re- spondent nevertheless urges adoption of the arbitrator's award . Local 169 also urges the Board to put aside its longstanding policy with respect to accretion and instead to apply Spielberg Mfg. Co., 112 NLRB 1080 (1955), which, it maintains, leads to the conclusion that deferral is warranted In Spielberg, the Board held that it would defer to an arbitrator's award where the "proceedings appear to have been fair and regular, all parties [have] agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act." Id. at 1082 . The Board engrafted onto the Spielberg doctrine a requirement that evidence bearing on the unfair labor practice must have been presented to and considered by the arbitrator if the Board is to refrain from hearing the matter. Raytheon Co., 140 NLRB 883 ( 1963); Suburban Motor Freight, 247 NLRB 146 (1980). However, in Combustion Engineering, 195 NLRB 909 (1972), the case chiefly relied on by the General Counsel and Local 14, the Board held that the issue of accretion is for it alone to decide . Affirming the administrative law judge's decision in that case, the Board ruled that it need not consider whether the arbitrator's award met the Spielberg standards and, in fact , found arbitration wholly PAPER MFRS CO irrelevant when the issue before it involved its statutory obligation to determine when a new group of employees accreted to a preexisting unit . Accord: Hershey Foods, 208 NLRB 452, 457 (1974). The administrative law judge explained the reasoning underlying the Board's approach as follows: [T]he arbitration was entirely irrelevant to the Board proceeding, since the contracting parties' intent, which was the only issue before the arbitra- tor in interpreting the contract, had no bearing on the question of accretion. In resolving that issue, the Board normally considers only such factors as em- ployee interchange, lines of supervision, similarity of work tasks and skills, and physical proximity. The mere fact that an employer is willing to permit an incumbent union to represent the disputed em- ployees is not considered to warrant adding them to the established unit. The reason for this is obvious. With regard to questions of contract coverage, the controlling consideration is the intent of the parties. With regard to the question of the scope of an ap- propriate bargaining unit, a vital consideration is freedom of choice in selecting a bargaining agent, for, under Section 9(b) of the Act it is the Board's responsibility, in fashioning bargaining units, to guard against any undue impairment of freedom of choice. Thus, all the arbitrator can decide is that the em- ployer and union have all agreed that the union may bargain for a group of employees, regardless of their wishes in the matter. It is for the Board to decide whether such disenfranchisement is consist- ent with the policies of the Act. Id. at 910-911 Thus, even where the arbitrator decides the issue of ac- cretion on the basis of Board precedent, that decision is "subject to de novo review . . . unless `clearly . . . con- sonant with the Board standards."' Id at 912, citing Wes- tinghouse Electric Corp., 162 NLRB 768, 771 (1967). Recently, in Olin Corp., 268 NLRB 573 (1984), the Board announced a new standard for determining wheth- er deferral to arbitration is warranted. The Board "would find that an arbitrator has adequately considered the unfair labor practices if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice." Id. at 5. Where differences arise "between the contractual and statutory standards of review," the Board stated its intent to weigh such discrepancies in its determination of whether the award itself is clearly repugnant to the Act as required by Spielberg. Id. However, it noted that its "inquiry . . . [did] not require an arbitrator's award to be totally consistent with Board precedent." Rather, it would not find an award to be "clearly repugnant . . [u]nless the award is `palpably wrong,' i.e., unless the ar- bitrator's decision is not susceptible to an interpretation consistent with the Act." Id. Finally, in Olin, the burden of proving the arbitral process defective is imposed on the party seeking a de novo determination Id. 495 It is important to bear in mind that Olin involved an arbitrator's denial of reinstatement to an employee whose discharge also was alleged to violate Section 8(a)(3) and (1) of the Act It was solely within this context that the Board articulated the standards to be applied in deter- mining whether deferral was warranted There is no sug- gestion in Olin that the Board intended to forgo the rules applicable to deferral when its statutory responsibility for resolving representation issues is at stake. Thus, the prin- ciples of Combustion Engineering and Hershey Foods remain intact and continue to govern in cases such as this where accretion is in issue. On applying the test in Combustion Engineering to the facts of the present dispute, I conclude that the arbitra- tor's award is far from being "consonant with Board standards." The fundamental flaw in the arbitrator's deci- sion lies in his diregard of the Board's certification of Local 14 as the bargaining representative of the medical packaging employees and his mistaken assumption that the unit ceased to exist upon its move to Philadelphia which, in his view, forced Local 14 "entirely out of the picture."7 Because of these errors, the arbitrator gave no consideration to Board precedent which clearly pro- scribes reliance on relocation as an excuse for evading the consequences of certification. See General Electric Corp, 186 NLRB 289, 293 (1970). Although the arbitator quoted a paragraph from Com- bustion Engineering, supra, it is evident that he gave nothing more than lip service to the principles articulat- ed in that case. A review of his decision plainly shows that he did not properly analyze or apply the reasoning in Combustion Engineering to the issues presented here. Because of his initial error in assuming the demise of the Southampton unit and because Local 14's interests were not represented in the arbitration hearing, the arbitrator proceeded as if the only question before him was wheth- er or not the Southampton employees accreted into the unit represented by Local 169 Consequently, he did not consider the central issue in this case-whether the certi- fication of Local 14 as the collective-bargaining repre- sentative for the medical packaging employees survives following their transfer. To the extent that the arbitrator considered integration of functions between the two op- erating divisions at the Philadelphia plant, he emphasized factors which have peripheral impact upon the interests of employees and ignored other criteria which are more critical. Thus, he attached great weight to the fact that the employees use a common cafeteria (albeit, at differ- ent times), restrooms, and parking lot, and that the chief corporate officers are uniform for all workers in the plant. However, he failed to take into account that medi- cal packaging employees are housed in a self-contained quarter of the facility; perform different operations, re- ceive different benefits, have a separate seniority and classification system, are supervised by different line foremen, and have little exchange with most identifica- tion and packaging employees. Having failed to properly apply the criteria in Combustion Engineering from the outset, it is not surprising that the arbitrator reached a ' See G C Exh 11, Arbitrator' s report and award at 2 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD result wholly at odds with the approach utilized by the Board in determining whether certification may be ig- nored and one represented unit accreted to another. Ac- cordingly, I conclude that the arbitrator's award is not entitled to deference by the Board B. Certification of Local 14 Bars Accretion The next issue to be resolved is whether the relocation of the unit from Southampton to Philadelphia, the addi- tion of the Surgicot machinery to the medical packaging division, or the increase in the unit size constitute unusu- al circumstances sufficient to disturb the Board 's certifi- cation of Local 14. It is well established that for 1 year following Board certification, a bargaining representative enjoys a pre- sumption of continuing support from a majority of the employees in an appropriate unit Brooks v. NLRB, 348 U.S. 96 (1954) The presumption may be rebutted only by a showing of unusual circumstances which include the following situations. "(1) the certified union dissolved or became defunct ; (2) as a result of a schism, substantial- ly all the members and officers of the certified union transferred their affiliation to a new local or internation- al; (3) the size of the bargaining unit fluctuated radically within a short-time." Id. at 98. Given the Act's principal purpose of promoting stability in the workplace, once employees have chosen to be represented and their choice has been certified, the Board has been reluctant to find unusual circumstances. When measured against prevailing case law, the cir- cumstances which the Respondents claim are extraordi- nary here are insufficient to defeat the presumption which insulates the Union from challenge for the year following its certification . It is evident from the language cited below why the first circumstances relied upon by the Respondents-the transfer of the Southampton em- ployees to Philadelphia-will not obviate the company's duty to bargain with Local 14: If the obligation on the part of the Empldyer under a Board certification to bargain with 4 certified union was dependent on the Employer 's remaining at the plant located name in the certification with the original personnel of the unit, he would have it within his power to vitiate the certification at will by moving his plant to another location and chang- ing the personnel of the appropriate unit. Obviously such a circumvention is not within the intent of the Act.8 In Drukker Communications, 258 NLRB 734, 747 (1981), the administrative law judge adopted and expand- ed on the position expressed in General Electric, supra "that the relocation of an employer's operations does not change the nature of the employing enterprise and the bargaining unit based upon it , where the operations at the new location, as here, are a continuation of those conducted at the prior location " The Board found in Drukker that although only a portion of the previously certified unit was relocated , the transferred segment re- 8 General Electric Co, 186 NLRB 289, 293 (1970) mained intact and its relationship to the department as a whole was undisturbed.9 As in this case, the employer in Drukker pointed to the acquisition of new equipment and an increase in the employee complement as unusual cir- cumstances. The Board observed that since the equip- ment would have had no impact on the unit had it been installed at the old plant, it could have no impact on the unit simply because it was introduced at the new site Id. The employee increase also was regarded as inconse- quental for as the administrative law judge observed in Drukker, the presumption of continuing majority status for the Union cannot be "rebutted by turnover or in- crease in the size of the workforce alone, since there is also a presumption that new employees will support the union in the same proportion as the previous employee complement " Id. Respondent's reliance on St. Bernadette's Nursing Home, 234 NLRB 835 (1978), and Renaissance Center Partnership, 239 NLRB 1247 (1979), is misplaced for these cases are clearly distinguishable on their facts from the instant matter. r 0 In St. Bernadette's, 2 months after the Union's certification, the employer, a Catholic arch- diocese, acting on plans announced before the election, closed the doors to St. Bernadette's nursing home. Three months later it opened a new facility that had been under consideration for at least 4 years and was designed to provide beds lost as a result of closing several of its former facilities, one of which was St. Bernadette's. Al- though all employees were encouraged to apply for em- ployment at the new facility, only 38 out or 63 did so. For legitimate reasons, only 15 of the 38 were hired for a total work force of 207. On these facts, the Board found unusual circumstances which rebutted the 1-year pre- sumption and obviated the employer's duty to bargain with the Union. In Renaissance Center, the employer of two groups of security guards, one consisting of 59 em- ployees represented by a certified union and the other of 67 unrepresented employees, consolidated the two into one operation. The Board rejected the Union's conten- tion that the 67 employees accreted into the existing unit Finding this to be the kind of radical fluctuation in unit size referred to in Brooks, the Board deemed the 1-year presumption rebutted by unusual circumstances and the larger unit to be appropriate Accordingly, it ordered that an election be conducted among the employees of While affirming the administrative law judge's conclusion in Drukker, supra, that the employer was obliged to bargain with the Union follow- ing transfer of a portion of the unit, it reversed a finding that the employ- er refused to bargain about the decision to relocate 10 The Respondent also cites Great A & P Tea Co, 140 NLRB 1011, (1963), as a controlling precedent in determining whether accretion of a new operation to an existing unit has occurred However, that case is in- apposite since the disputed employees for whom accretion was sought were not in a certified bargaining unit In another case relied on by the Respondent, Boston Gas Co, 235 NLRB 1354 (1978), the Board found that the transferred employees were accreted although previously repre- sented, however, in that case, unlike the present situation, the merged employees shared common supervision and performed the same job duties as did those employees at the base location In contrast, the func- tions and line supervision of medical packaging operators seem quite dis- tinct from those of identification and packaging operators If this were not the case, there would be no need for separate sets of job classifica- tions for each group PAPER MFRS CO the enlarged unit so as not to disenfranchise the merged majority. The differences between the facts in St Bernadette's and Renaissance Center with those in the present dispute are readily apparent In St. Bernadette's, supra, the Board focused in large part on the hiatus between the closing of the old and the opening of a totally new and enlarged facility, the fact that neither the operations nor the staff were moved intact from one location to the other, and that a "wholly new group of workers were employed, the vast majority of whom had no prior connection with the old facility." Id at 837. In contrast, there was no hiatus when the medical packaging employees trans- ferred to Philadelphia and continued working there in a newly walled-in area. All but three of the Southampton workers were assigned to tasks identical to those per- formed in Southampton. Prior to the transfer, the South- ampton employees received wages, and benefits different than those in identification and packaging. Their job classifications and seniority list also were separate and distinct from those covering employees in Philadelphia. These distinctions continued after the transfer. i t Signifi- cantly, the separation between the the medical packaging division and the identification and packaging unit re- mained unblurred with the addition of the Surgicot ma- chines and the advent of newly hired operators. Over time, as new workers were added, they were slotted into the existing Medical Packaging job classifications and se- niority list, and received the same wages and benefits covering employees represented by Local 14. In addi- tion, the new machinery was installed in the area re- served for medical packaging. When PMC closed South- ampton, it ensured that there would be no interruption of its operations. With the exception of the two new proc- esses involving polybag and laminator machines, medical packaging production in Philadelphia was identical to that in Southampton. Unlike St. Bernadette's, virtually all unit employees transferred along with the machinery and remained an identifiable entity separate from identifica- tion and packaging. As noted above in Renaissance Center, the precipitous and instant addition of 67 workers more than doubled the size of the certified unit and, therefore, was sufficient to overcome the presumption of continued majority sup- port It is true that PMC increased its work force in medical packaging from the approximately 40 Southamp- ton workers who transferred in October to approximate- ly 70 at the end of January 1983 and finally to approxi- mately 100 at the time of this proceeding. 12 However, ' i It is interesting to note that when resisting the accretion of the Southampton employees into the unit represented by Local 169, Re- spondent took a position before the arbitrator contradictory to the one asserted herein, arguing there that the transferred workers "have job de- scriptions and/or classifications not compatible with covered employees, and their pay scales and benefits could not be adapted to those set forth in [Local 169's] agreement Additionally the company's position is that the transferred employees by virtue of their medical packaging division status are involved in a totally different aspect of the Company's oper- ation " (G C Exh 11 at p 3) 12 The record does not state whether there were more than 70 em- ployees in the medical packaging division on March 25, 1983, the critical date on which Local 14 requested that the Respondent meet for purposes of collective-bargaining 497 these increases occurred gradually over a span of II months with new employees apparently hired throughout this period as customer demand expanded. Thus, this in- cremental growth differs vastly from the abrupt expan- sion in unit size which occurred in the Renaissance Center case. A review of these precedents makes it clear that Drukker Communications is more closely on point with the present matter than are the cases cited by the Re- spondent. In Drukker, as here, the employer relocated unit operations between the date of the union election and its certification, introduced new equipment, and hired more employees to meet increased production needs Yet, the Board found there that relocation of op- erations did not disturb unit certification where the oper- ations and the unit remained essentially intact after relo- cation . Moreover, although some changes were made in corporate management, the day-to-day supervision in Re- spondent's medical packaging division remained the same as before the move. Further that division was physically contained in plant space separated from identification and packaging by specially constructed walls In Drukker, the Board treated the increase in unit size from 27 to 70 employees as having no effect on the certifica- tion. In other words, although the transferred employees represented 386 percent of the total work force, the Board found this increase inconsequential. PMC in- creased its employee complement from approximately 40 to 70 about the time the bargaining request was made, with the original Southhampton employees representing 57 percent of this number Once again, the facts in PMC are even more persuasive than those in Drukker for find- ing the certification valid. See also Golden Coach, 266 NLRB 62 (1983) (although unit size increased by 30 per- cent, from 18 to 60 over year's time, employer was bound to bargain with certified representative of its unit employees). In the final analysis, the factors relied on by the Re- spondent are not unusual enough to disturb the Board's certification of Local 14 as the bargaining agent for the medical packaging division employees. As the Board has stated in Hershey Foods, supra 208 NLRB at 458, the ac- cretion doctrine "will not be applied where the employ- ee group sought to be added to an established bargaining unit is so composed that it may separately constitute an appropriate bargaining unit " In light of this predecent, since Local 14's certification remains valid, it is inappro- priate to reach Respondent's claims regarding accretion of the transferred employees into Local 169 A final question remains as to the appropriate unit placement of the newly hired employees The record shows that these new hires were assigned to machines similar in function and physically proximate to other equipment in medical packaging, were subject to the same terms and conditions of employment as the original medical packaging employees, and are presumed to sup- port Local 14 in the same proportion as the original unit employees. See Drukker, supra at 747 Accordingly, I conclude that they are properly included within the unit represented by Local 14. Moreover, Respondents have offered no evidence to show that any medical packaging 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD division employee was dissatisfied with representation by Local ,14. Accordingly, PMC was obliged to bargain with Local 14 as the certified representative of employ- ees in the medical packaging unit . Its failure to accede to the Union's request for bargaining violates Section 8(a)(1) and (5) of the Act. In addition, by recognizing Local 169 as the representative of its medical packaging division employees when the Local did not represent the unit, PMC violated Section 8(a)(1) and (2) It follows that Local 169 violated Section 8(b)(1)(A) of the Act by claiming to represent the medical packaging unit employ- ees. CONCLUSIONS OF LAW 1. Paper Manufacturers Company is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Warehouse Employees Local 169 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. Graphic Communications International Union, Local 14, AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act 4. Local 14 of the Graphic Communications Union is the exclusive bargaining representative of employees in the following appropriate unit within the meaning of Section 9(a) of the Act. All full-time and regular part-time pouch machine operators, general factory employees, inspector/- packer employees, machine technicians, press opera- tors, press helpers, truck drivers, slitter operators, GN breather bag machine operators, GN helpers, maintenance repair, shipping and receiving employ- ees and die mounter employee at 13130 Industrial Highway, Southampton, Pennsylvania facility, ex- cluding all other employees, office clerical employ- ees, quality control employees, guards and supervi- sors as defined in the Act. 13 7. By demanding that Respondent Employer recognize it as the bargaining representative of the aforementioned unit without majority support of employees in that unit, Teamsters Local 169 engaged in unfair labor practices violating Section 8(b)(1)(A) of the Act. 8. The unfair labor practices set forth in paragraphs 5, 6, and 7 above affect commerce within the meaning of the Act. THE REMEDY Having found that Respondent Employer engaged in unfair labor practices in violation of Section 8(a)(5), (2), and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. The Respondent shall be directed to recognize and bar- gain with Local 14 of the Graphic Communications Union as the duly certified bargaining representative of employees in the following appropriate unit: All full-time and regular part-time pouch machine operators, general factory employees, inspector/- packer employees, machine technicians, press opera- tors, press helpers, truck drivers, slitter operators, GN breather machine operators, GN helpers, main- tenance repair, shipping and receiving employees and die mounter employee at 13130 Industrial High- way, Southampton, Pennsylvania facility, excluding all other employees, office clerical employees, qual- ity control employees, guards and supervisors as de- fined in the Act PMC also shall be ordered to cease recognizing and bar- gaining with Teamsters Local 169 with respect to em- ployees in the above-described unit. In addition, having also found that Respondent Union, Teamsters Local 169, violated Section 8(B)(1)(A) of the Act, I shall recom- mended that it be ordered to cease and desist therefrom. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed14 5. By refusing to bargain collectively with Local 14, the certified representative of the unit described above in paragraph 4, the Respondent Employer engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By recognizing Teamsters Local 169 as the bargain- ing representative of the aforementioned unit without Local 169 enjoying the support of a majority of unit em- ployees, Respondent Employer engaged in unfair labor practices violating Section 8(a)(2) and (1) of the Act. 13 As discussed above, positions held by two Southampton shipping and receiving clerks and one truckdriver were eliminated with the reloca- tion. In addition, the two Southampton building and machine mainte- nance positions were merged into a larger group of such workers at Philadelphia These few alterations do not affect the conclusion that the medical packaging division was transferred virtually intact However, a clarification of the unit may be in order Similarly, the fact that the loca- tion set forth in the unit description has changed is immaterial, for the address of an employer's plant in a Board certification is provided for purposes of identification, not limitation See General Electric Co, 186 NLRB 289, 293 (1970) ORDER A. Respondent Paper Manufacturers Company, Phila- delphia, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing or refusing to bargain collectively concern- ing rates of pay, wages, hours of employment, or other terms and conditions of employment with Graphic Com- munications Local 14 as the exclusive representative of the employees in the following unit: All full-time and regular part-time pouch machine operators, general factory employees, inspector/- packer employees, machine technicians, press opera- 14 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses PAPER MFRS "CO. tors, press helpers, truck drivers, slitter operators, GN breather machine operators, GN helpers, main- tenance repair, shipping and receiving employees and die mounter employee at 13130 Industrial High- way, Southampton, Pennsylvania facility, excluding all other employees, office clerical employees, qual- ity control employees, guards and supervisors as de- fined in the Act. (b) Recognizing Teamsters Local 169 as the bargaining representative of employees in the above-described ap- propriate unit unless said labor organization has been certified by the National Labor Relations Board as the exclusive bargaining representative of such employees. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act. (a) Withdraw and withhold all recognition from Team- sters Local 169 as the exclusive bargaining representative of the aforementioned unit unless and until said labor or- ganization has been certified by the Board as the exclu- sive representative of such employees. (b) On request, meet and bargain collectively with Graphic Communications Local 14 as the exclusive bar- gaining representative of the employees in the aforemen- tioned unit concerning rates of pay, wages, hours of em- ployment, or other terms and conditions and, if an under- standing is reached, embody such understanding in a signed agreement. (c) Post at Paper Manufacturers Company's Philadel- phia, Pennsylvania facility copies of the attached notice marked "Appendix A."15 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al, (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. B Respondent Teamsters Local 169, its officers, agents, and representatives, shall 1. Cease and desist from (a) Acting as the exclusive bargaining representative of the unit described above for the purpose of dealing with Paper Manufacturers Company concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment unless and until Teamsters Local 169 shall have demonstrated its exclu- sive majority representative status pursuant to a Board- conducted election among said employees. i 5 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " 499 (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2 Take the following affirmative action which will ef- fectuate the policies of the Act. (a) Post at Teamsters Local 169 copies of the attached notice marked "Appendix B." i 6 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent 's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced , or covered by any other materi- al. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 16 See In 15 above APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities WE WILL NOT refuse to bargain collectively upon re- quest concerning rates of pay, wages, hours of employ- ment, or other terms and conditions of employment with Graphic Communications International Union , Local 14, AFL-CIO-CLC as the exclusive representative of our employees in the following appropriate unit: All full-time and regular part-time pouch machine operators, general factory employees, inspector/- packer employees, machine technicians , press opera- tors, press helpers, truck drivers , slitter operators, GN breather machine operators, GN helpers, main- tenance repair , shipping and receiving employees and die mounter employee at 13130 Industrial High- way, Southampton, Pennsylvania facility , excluding all other employees, office clerical employees, qual- ity control employees, guards and supervisors as de- fined in the Act. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT recognize Warehouse Employees Local 169, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America as the col- lective bargaining representative of our full-time and reg- ular part-time pouch machine operators, general factory employees, inspector/packer employees, machine techni- cians, press operators, press helpers, truck drivers, slitter operators, GN breather machine operators, GN helpers, maintenance repair, shipping and receiving employees and die mounter employee at 13130 Industrial Highway, Southampton, Pennsylvania facility, excluding all other employees, office clerical employees, quality control em- ployees, guards and supervisors as defined in the Act, unless and until it has been certified by the Board as the exclusive bargaining representative of such employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them under Section 7 of the National Labor Relations Act, as amended. WE WILL bargain collectively, upon request, with Graphic Communications International Union, Local 14, AFL-CIO-CLC as the exclusive representative of all our employees in the bargaining unit described above, with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment WE WILL withdraw and withhold all recognition from Warehouse Employees Local 169 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the collective bargaining rep- resentative of our full-time and regular part-time pouch machine operators, general factory employees, inspec- tor/packer employees, machine technicians, press opera- tors, press helpers, truck drivers, slitter operators, GN breather machine operators, GN helpers, maintenance repair, shipping and receiving employees and die mount- er employee at 13130 Industrial Highway, Southampton, Pennsylvania facility, excluding all other employees, office clerical employees, quality control employees, guards and supervisors as defined in the Act, unless and until it has been certified by the Board as the exclusive bargaining representative of such employees. PAPER MANUFACTURERS COMPANY APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT act as the exclusive bargaining repre- sentative of Paper Manufacturers Company full-time and regular part-time pouch machine operators, general fac- tory employees, inspector/packer employees, machine technicians, press operators, press helpers, truck drivers, slitter operators, GN breather machine operators, GN helpers, maintenance repair, shipping and receiving em- ployees and die mounter employee at 13130 Industrial Highway, Southampton, Pennsylvania facility, excluding all other employees, office clerical employees, quality control employees, guards and supervisors as defined in the Act, unless and until we have demonstrated our ex- clusive majority representative status pursuant to a Board-conducted election among said employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the excercise of the rights guaranteed them under Section 7 of the Na- tional Labor Relations Act, as amended WAREHOUSE EMPLOYEES LOCAL 169 A/W INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA