Boise Cascade Corp.

462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Boise Cascade Corporation and Local Union 159, United Paperworkers International Union and Local 771, United Association of Journeymen & Apprentices of the Plumbing & Pipefitting In- dustry of the United States & Canada and Local 4-33, International Woodworkers of America and Local No. 50, International Union of Operating Engineers and Chauffeurs, Team- sters & Helpers Local 346 and Local No. 731, International Brotherhood of Electrical Work- ers and Local No. 49, United Paperworkers International Union and International Associa- tion of Machinists, Lodge No. 760. Cases 18- CA-9290-1, 18-CA-9290-2, 18-CA-9290-3, 18-CA-9290-5, 18-CA-9290-6, 18-CA-9290- 7, 18-CA-9290-8, and 18-CA-9290-9 31 March 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 31 March 1986 Administrative Law Judge Karl H. Buschmann issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Parties and the General Counsel filed briefs in response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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, and conclusions as modified, in accordance with the following analysis. At the hearing the Respondent moved to dismiss the complaint insofar as it alleges that the Re- spondent unlawfully bargained with the three Charging Parties that represent its production em- ployees (Local Union 159, United Paperworkers International Union; Local No. 50, International Union of Operating Engineers; and Local No. 49, United Paperworkers International Union), based on its assertion that there is no evidence linking those Unions to any alleged unlawful bargaining by the Respondent. The judge denied the Respond- ent's motion. He concluded that during the parties' 1985 negotiations the Respondent unlawfully insist- ed to impasse on its maintenance modernization proposal with not only the five Charging Parties who represent its maintenance employees, but also the three production Unions. Although we agree with the judge that the Respondent's proposal is a nonmandatory subject of bargaining because it 1 The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties would change unit scope, and that the Respondent violated Section 8(a)(5) and (1) of the Act by insist- ing to impasse on the proposal with the five main- tenance Unions, we find that the Respondent's motion should be granted as to the three produc- tion Unions. The General Counsel conceded that the mainte- nance modernization proposal (that would consoli- date the maintenance employee units, thereby ef- fectively requiring shared representation by the maintenance Unions) "pertained primarily, if not exclusively," to the maintenance Unions. The judge reasoned that the proposal "significantly affected" the production Unions, and therefore that the Re- spondent and these Unions were at impasse on the proposal, because the proposal would permit the Respondent to assign production employees to maintenance work. However, the uncontradicted evidence shows that the Respondent actually was at an impasse with the production Unions on vaca- tion pay, health insurance coverage, premium pay on holidays, and lines of progression, rather than the maintenance modernization proposal. Moreover, although the maintenance moderniza- tion proposal was set forth in a memorandum of agreement presented to the Joint Union Council composed of all the Unions, there is no evidence that the Respondent insisted that the production Unions agree to the proposal. The uncontradicted testimony of the Respondent's chief negotiator, Fred Delaney, was that the production Unions were free to sign the memorandum of agreement without agreeing to the maintenance modernization proposal. Delaney in fact informed the Unions that the Respondent's intention was to sign separate contracts, which was consistent with the parties' past practice. The parties' past practice is also that each Union is not required to agree to all provi- sions of the Respondent's proposed memorandum of agreement and that provisions that do not apply to individual units have not been included in their respective individual bargaining agreements. During one set of past contract negotiations, sever- al Unions signed final agreements with the Re- spondent even though one Union had rejected the memorandum of agreement presented to the Joint Union Council and called a strike. That the Unions also intended to have separately signed contracts during the 1985 negotiations is shown by the fact that they changed the wording of the Joint Union Council's counterproposal so that it would clearly require the Respondent to recognize "each of the signatory Unions as the sole bargaining representa- tive," instead of the Joint Union Council. Further, the Respondent's 28 May 1985 final offer specifical- ly refers to individual acceptances in two places. 283 NLRB No. 69 BOISE CASCADE CORP. 463 Thus, the evidence does not establish that the Re- spondent insisted to impasse on the maintenance modernization proposal with the production Unions. Accordingly, we shall grant the Respond- ent's motion to dismiss the complaint insofar as it relates to the production Unions.2 - AMENDED CONCLUSIONS OF LAW Substitute the, following for Conclusion of Law 4. "4. The Respondent violated Section 8(a)(5) and (1) of the Act by (a) refusing to incorporate the prior recognized unit descriptions for the five maintenance Unions at its facility in a new agree- ment, (b,) by insisting to impasse on, and by unilat- erally implementing, a proposal which modified the bargaining units and the jurisdictions of the five maintenance Unions, and (c) by unilaterally impos- ing wages and other conditions of employment on its employees represented by those Unions." ORDER The National Labor Relations Board orders that the Respondent, Boise Cascade Corporation,, Inter- national Falls, Minnesota, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain with Unions which represent its maintenance employees and re- fusing to incorporate in collective-bargaining agreements the recognized unit descriptions of these employees' respective bargaining representa- tive. (b) Insisting to impasse on, and unilaterally im- plementing, a proposal ' which modified the recog- nized bargaining units and'the established jurisdic- tions of the Unions representing its maintenance employees. (c) Unilaterally imposing on its employees repre- sented by maintenance Unions wages and other conditions of employment. (d) In any like or related manner interfering with, restraining, or, coercing employees in the ex- ercise of the rights guaranteed them', by Section 7 of the Act. ' 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, meet and confer with the Unions which represent its maintenance employees at rea- sonable times and .places with respect to wages, 2 The judge inadvertently omitted from his Conclusions of Law his im- plicit finding that the Respondent violated Sec. 8(a)(5) and (1) of the Act by unilaterally implementing the terms of its 28 May 1985 ' final offer, as well as its maintenance modernization proposal , without first bargaining in good faith to impasse. We adopt,this finding only to the extent that it applies to the final offer's implementation with respect to the mainte- nance Unions, and shall modify the Conclusions of Law accordingly hours, and other terms and conditions of employ- ment. (b) At the Union's or Unions' request,, rescind any or all unilateral changes in representation or in terms and conditions of employment made on or after 1 July 1985 affecting its employees represent- ed by the maintenance Unions and make those em- ployees whole, with interest, as set forth in the remedy section of this decision. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its International Falls, Minnesota lo- cation copies of the attached notice, marked "Ap- pendix."3 Copies of the notice, on forms provided by the:, Regional Director for Region 18, after being sigted by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall, be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps 'the Respondent has taken to comply. a 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX 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 ordered us to post and abide by this notice. WE WILL NOT fail and refuse to bargain with the Unions representing our maintenance employees by insisting to impasse on changes in the recognized bargaining units and jurisdiction of these Unions as a condition for new collective-bargaining agree- ments. WE WILL NOT refuse to incorporate the recog- nized collective-bargaining units of the Unions rep- 464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD resenting our maintenance employees in new col- lective-bargaining agreements. WE WILL NOT unilaterally impose on our em- ployees represented by maintenance Unions wages and other conditions of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, meet and confer with the Unions representing our maintenance employees at reasonable times and places with respect to wages, hours, and other terms and conditions of employ- ment. WE WILL, at the Union's or Unions' request, re- scind any or all unilateral changes made on or after 1 July 1985 affecting our employees represented by maintenance Unions and make them whole for any losses they may have suffered, plus interest. BOISE CASCADE CORPORATION James L. Fox, Esq., for the General Counsel. Emery W. Bartle and Mark B. Rotenberg. Esqs. (Dorsey & Whitney), of Minneapolis, Minnesota, for the Respond- ent. William D. Watters, Esq., of Duluth, Minnesota, for the Charging Party. DECISION KARL H. BUSCHMANN, Administrative Law Judge. These consolidated cases were tried at International Falls, Minnesota, on 29 and 30 October 1985. The charges in Cases 18-CA-9290-1, -2, -3, -5, -6, -7, and - 8 ,were filed on 15 July 1985; the charge in Case 18-CA- 9290-9 was filed on 26 July 1985. The consolidated com- plaint was filed 29 August 1985. The primary issue is whether the Respondent, violated Section 8(a)(5) and (1) of the National Labor Relations Act, when it unilaterally implemented its final proposal which, in substance, did not include the preexisting -bargaining unit descriptions, eliminated work assignment restrictions, modified the recognized bargaining unit classifications for maintenance jobs, and combined them into three broad categories. On the entire record, including- my observation of the witnesses, and after consideration of the briefs filed by the General Counsel, the Company, and the Union, I make the following FINDINGS OF FACT The Company, Boise Cascade Corporation, is a Dela- ware corporation with an office and place of business in International Falls, Minnesota, where it is engaged in the manufacture of paper products . Boise Cascade Corpora- tion, the Respondent, is admittedly, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Since 1965, when Boise Cascade acquired the facility in International Falls, Minnesota, consisting of a paper mill and an insulite plant, it had separate col- lective bargaining agreements with eight union locals, not counting the union for, its railroad- operation. They are: (1) Local 4-33, International Woodworkers of America, (2) Chauffeurs, Teamsters & Helpers Local 346, (3) Local 771, United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States & Canada, (4) Local 731, International Brotherhood of Electrical Workers, (5) International As- sociation of Machinists, Lodge No. 760, (6) Local Union 159, United Paperworkers International Union, (7) Local No. 50, International Union of Operating Engineers, and (8) Local No. 49, United Paperworkers International Union.' These eight Unions that are also the Charging Parties in this case represent between 600 and -700 "main- tenance" and "production" employees. The Unions had conducted their negotiations with the Employer by forming a "Joint Union Council" that was a committee of representatives of the eight Unions. The president of the Joint Union Council served as the spokesman during the bargaining sessions. According to established prac- tice, the Joint Union Council and the Employer would agree to a "memorandum of agreement," which con- tained the provisions applicable to all Unions. Local issues were negotiated separately, and, on ratification of the memorandum of agreement and the resolution of local issues, each of the Unions would have a separate collective-bargaining agreement, with the Respondent. Negotiations for new contracts between Boise Cascade and the Unions commenced in 1984, since the parties' latest collective-bargaining agreements dated, -1 May 1981 and effective for 3 years, expired on 30 April' 1984 (G.C. Exhs. 2(a)-(h)). These'eight separate agreements had provided' for a "Recognition" article that defined the collective-bargaining unit of employees that each of the Unions represented. Of particular importance were the unit description of the "maintenance" employees, be- cause during the negotiations for new contracts, the, Re- spondent expressed its goal to remove jurisdictional bar- riers for its maintenance employees and to "[i]ncrease employee working efficiency by removing any jurisdic- tional restraints" (G.C.' Exh. 3). In an attempt to demon- strate to the Unions the obsolete nature of the jurisdic- tional restraints, Respondent compiled a listing of the 28 job descriptions for maintenance employees ranging from "blacksmith" to "Oiler" as they existed in the contracts (R. Exh. 10) and compared them to 19 job descriptions that were still in use in 1984. Moreover, the Company saw the division of labor as grossly inefficient and bar- gained for greater flexibility in work assignments of its maintenance workers to remain competitive in its mar- kets. Boise Cascade listed numerous examples of what it considered inefficient work , assignments accompanied by proposed changes and proposed that (1) "Simple routine maintenance ... be performed by operators," (2) "main- tenance employees perform simple routine tasks normally performed by operators," and (3) "any work connected with an employee's primary craft assignment [be made] non jurisdictional" (G.C. Exh. 4). ' The first listed six Unions represent "maintenance" employees that were directly affected by Respondent's "maintenance modernization pro- grams." BOISE CASCADE CORP. 465 Unable to agree to these proposals, the parties negoti- ated a 1-year extension of the old contracts and agreed to discuss the issues during the interval. The parties met repeatedly beginning in August 1984. In December 1984, Boise-Cascade closed its insulite plant. However, the par- ties continued to meet and to discuss "contract modern- ization" for the remaining operation, the paper mill. The Company proposed 11 items believed "necessary to allow the paper Manufacturing Operation to continue in the face of the rapidly changing competitive environ- ment" (G.C. Exh. 6). Item 3 of the 11 points stated: "Achieve employee work efficiency by removing any union/departmental jurisdictional restraints throughout the mill." This issue was the most difficult for the Union, and the parties remained unable to agree on a new con- tract. The negotiations carried over into 1985. During 1985, there were 31 bargaining sessions, beginning 27 March and ending 24 June. The Company's initial proposal, in- tended for each of the eight Unions, was offered with the following explanation on its face (G.C. Exh. 9): The following is a draft Labor Agreement to re- place existing Labor Agreements. Nothing proposed is meant to change the member Union's right to represent those job classifications they presently represent. We do mean to remove Union jurisdic- tions as an obstacle to employees performing work efficiently and economically .... The Company's proposed unit description and recogni- tion clause, in leu of describing each of the eight units, as in the past, provided as follows: The Company recognizes one of the identified Unions as the sole collective bargaining agency for its employees on those occupations listed in the wage schedule attached as Exhibits A-1 through A- 9 as a part of this Agreement for the purpose of col- lective bargaining with respect to wages, hours of work, and working conditions for the period of this agreement ... . This Article-Recognition '-shall not restrict the right of the Company to assign work to employees or limit the Company's use of contractors as the Company deems appropriate. The Company proposed a union-security clause that, as a condition of employment, required an employee "to become and remain a member of one of the Union's party to this Agreement." The appropriate Union that an employee was expected to join, according to the propos- al, was "the one whose occupation the employee works in the majority of time." No employee was expected to belong "to more than one union in any calendar month, but [he] may be required to transfer to the appropriate Union." Respondent's' proposal was in line with its stated 12 February 1985 "Overall Objectives" to totally modernize the work rules, remove all jurisdictional restraints, modify the wage and benefit structure, and reduce actual labor cost per ton. More specifically, these objectives were stated as follows (G.C. Exh. 17): MAINTENANCE REORGANIZATION All current trades and crafts will be consolidated into three maintenance categories: Pipefitter Millwright Electrical/Instrumentation * There will be no union craft or departmental jurisdictional restraints to work assignment whatso- ever. * All maintenance employees will be placed in one of the three categories. * Employees will first be required to acquire all the basic skills necessary to assist in any job assign- ment. * Next, employees will be required to acquire all functional skills of the other two categories. * Finally, employees must become proficient in the highly-skilled areas of their primary category. * Extensive training, both classroom and on-the- job, will be necessary for at least two years. * Basic, functional and proficient skills and quali- fication parameters are to be determined unilaterally by management and are not arbitrable. Respondent specifically included among the items to be modified item 17, "Union Recognition Jurisdiction." Negotiations between the parties indicated a preoccu- pation with Respondent's proposal to change the juris- dictional restraints for its maintenance employees and to reorganize the 28 existing job categories for maintenance employees into the 3 broad categories: pipefitters, mill- wrights, and electrical/instrumentation. ' A perusal of the transcripts of the bargaining sessions indicates that Re- spondent's chief negotiator, Fred Delaney, repeatedly ex- pressed the notion that the Company intended to erase jurisdiction to get work done or to get around the juris- dictional issue to achieve greater efficiency. Although the Unions were expected to retain the same number of employees by proportionally sharing the maintenance employees in the 'three categories, the Employer would be able to assign the employees without restrictions to their union affiliation (it. Exhs. 1-24). The union negotiator, Robert Walls, resisted Respond- ent's proposal as it related to Respondent's attempt to modify the Unions' respective jurisdictions and ques- tioned ,not only the practical impossibility of the scheme but also its legality. For example, at one point during the discussions, on 4 April 1985, the following exchange oc- curred (Jt. Exh. 3, p. 5): Union: This whole thing is then to get us to cross over jurisdiction! Company: Absolutely. We have said that from day one. The jurisdiction is in-efficient. And we want to correct that. 466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD At another point during- the discussions on that day, the Unions stated the issue as follows (Jt. Exh. 3(b)): What, I guess what gives you the right to come in here and,say that you're going to take jurisdic- tion° away from one union and give it to the other union, or whatever? . . . I believe there is some laws that protect us in our jurisdiction and I'm sure every international is going to fight your jurisdic- tion .. . The Company's negotiator Delaney replied: Well, first of all, we're not talking about jurisdic- tion for one and giving it to another. What we are talking about is sharing jurisdiction. On 29 April, after lengthy discussions had already oc- curred, the exchange continues to show that the pre- dominant issue was the Company's proposal to modify the Unions' jurisdiction. At one point the Unions' repre- sentative commented (Jt. Exh. 8b, pp. 1-2): Union: It just seems to me it's on the fringes of legal question and it's a jurisdictional. Delaney: I'm sure, it is, and depending on which lawyer depends on maybe which answer you get, I don't know. On 22 May, Delaney conceded that removing all the rights of jurisdiction previously held by the Unions was the central issue (Jt. Exh. 18(a), p., 1). In one of the last sessions, Delaney has this to say (Jt. Exh. 22b, p. 1): We knew we cannot erode the maintenance unit. That is still a protection. We don't see anything in the "agreement that would cause that. If we were to 'try to get that' right, it would have to be directly stated to you very, clear, unambiguous. We haven't done that=so we know that there's protection there against erosion of the unit. In the recognition, there's no way that we see that we could use your recognition, your jurisdiction language and do what we want to do and that is a firm and final position of ours.-;We have to have the right to think, to get this work done effectively and efficiently. We will continue to present to you the proportion because we think -that preserves the unit and we aren't trying to get rid of units. We aren't trying to reduce them. On 29' May 1985 the Company distributed its final "settlement 'memorandum" to the Unions. It was Re- spondent's final 'offer'(G.C. Exh. 10). The parties held their last meeting on, 24 June, when the Company stated that there was--no need for further meetings, because the parties had reached an impasse. By letter of 25 June 1985, Respondent informed the Unions, inter alia, as fol- lows (G.C. Exh. l2): Over three weeks have passed since our Company made its final contract proposal to your Union. This final proposal was preceded by 36 negotiating meet- ings and contract modernization meetings with your Union since our initial discussions during, the 1984 negotiations of the, areas which needed to be ad- dressed for a modern labor contract. Yesterday we met again with your Union representatives and a Federal Mediator. A counter-proposal was present- ed by -the Unions. The terms of this counter-propos- al and, our -final proposal are far apart. Our, final contract offer has not been accepted, and the spokesman for your Joint Union Council stated that it contains features which are completely unaccept- able. - We clearly are at an impasse in these contract nego- tiations. Given the impasse which now exists in these contract talks, the period of negotiations has expired for purposes of ending any prior contract commitments with your Union. - We hereby notify you that, effective July 1,- 1985, the Company will be,implementing the terms and conditions of employment reflected in the Compa- ny's final contract proposal dated May 24, 1985, in- cluding the five pages of modifications/Addendums thereto dated May 31, 1985, and June 3, 1985. On 1 July 1985 Boise Cascade implemented the final proposal that regrouped and, reclassified its more than 203 maintenance employees,as demonstrated by the fol- lowing chart (G.C. Exh. 14): Maintenance Modernization Program Placing of 17 crafts into three (3) maintenance categories. Each category described by union, craft and number of employees. Union Craft-General Mechanic Employ- ees9 Pipefitter Category:', z,s- UAJAPPI Pipefitter ................................................. 35 UAJAPPI Welder .................................................... 14 IWA Oiler ........... ...................................:.................. 2 IWA Rigger............................................................... 10 IWA Painter.............................................................. 5 IBT Pipecover .......................................................... 4 Total ................................................................... 70 Millwright-Category :4,5,6 IAM Millwright ........................................................ - 45 IAM Tinner ............................................................... 8 LAM Machinist ......................................................... 6 IAM Garage mechanic ............... :............................ 12 IAM Heavy equipment Operator ............................ 1 IAM Mason......... ............................................ 1 IBT Steam plant millwright .................................... 4 IWA Rigger .............................................................. 3 IWA Mason helper ..................................................: ' 1 IWA Oiler .............................................:................... 2 IWA Cement man .................................................... 2 IWA Painter .............................................................. 2 Total ................................................................... 87 Electrical/Instrument Category:7,e - IBEW Electrician ..................................................... 36 IBT Instrument repairman ....................................... 10 BOISE CASCADE CORP. 467 Placing of 17 crafts into three (3) maintenance categories. Each category described by union, craft and number of employees. Union Craft-General Mechanic Employ- ees9 Total ................................................................... 46 Totals: General mechanic-pipefitter .................................. 70 General mechanic-millwright ................................ 87 General mechanic-electrical/instrument............... 46 General mechanic employees ........................... 203 1 6 percent of employees in this category will be members of IBT No. 346. 2 24 percent of employees in this category will be members of IWA No. 4-33. 3 70 percent of-employees in this category will be members of UAJAPPI No. 771. 4 4 percent of employees in this category will be members of IBT No. 346. 5 12 percent of employees in this category will be members of 1WA No. 4-33. '6 84 percent of employees in this category will be members of IAM No. 760. 7 22 percent of employees in this category will be members of IBT No. 346. s 78 percent of employees in this category will be members of IBEW No. 731. 9 Approximate current number. The proposal, as implemented, omitted the unit de- scription that was formerly contained in collective-bar- gaining agreements for each of the Unions. Instead, Re- spondent's present description of the 'units is simply a statement under "Recognition" (art. II): The Company recognizes one of those identified Unions as the sole collective bargaining agency for its employees on those occupations listed in the wage schedules attached as Exhibits A-1 through A-9.... Exhibits A-1 through A-9 consist of detailed tables of wage rates and seniority lists for the eight Unions. Also shown are the classifications of individual employees as well as the percentage of the employees' membership in the respective Unions. The job classifications contained in the prior agreement for maintenance jobs have been substituted by the three broad categories. On 3 June 1985, the Company added page A-9 to its final proposal. This proviso was drafted by Respondent's counsel and states: While this modernized Labor Agreement modifies and redefines substantially various job classifications and attendant duties thereto and removes previous contractual work assignment restrictions, the bar- gaining units described in paragraphs .1 and .2 above are the same at the time of execution of this Agreement as those represented' by the identified Unions in previous Labor Agreements. Any unresolved disputes as to which bargaining unit a particular job classification belongs will be re- solved through the National Labor Relations Board processes. On its face, the addendum seemed to continue the ex- pired unit descriptions, but the record shows otherwise. Respondent's negotiator, William Smerika, unequivocally stated that the Unions proposed and the Company reject- ed the proposal to retain the unit descriptions (Tr. 354). Similarly, Company Chief Spokesman Delaney clearly testified that the recognition clauses of the expired con- tracts were not carried forward in the final proposal that the Respondent had adopted unilaterally (Tr. 255-256). Moreover, a retention of the unit and recognition de- scriptions of the expired contracts would have prevented the flexibility and assignment changes that the Company had sought. This is clear from an analysis of the propos-, als as well as Respondent's own testimony. Respondent's testimony about the negotiations and the implementation of its proposal clearly established that the Respondent considered the modification of the rec- ognition clause as crucial to its efforts to increase the flexibility and to improve the efficiency of its mainte- nance employees. The testimony further shows that the Unions had proposed the continuation of the unit de- scriptions as they existed in the expired bargaining agree- ments. The Respondent refused to accept the Unions' proposal and declared ' an impasse on the issue (Tr. 268- 270, 354). As explained by Delaney, the Company's ne- gotiator in his testimony (Tr. 269): "Well, we wanted to change the definition of the trades or occupations , classi- fications, whatever, to reflect the broader skills'that were needed by the employees." In order to accomplish that, Delaney admitted, that the recognition clauses of the old contracts had to be changed. Analysis Generally, changes in work assignments are considered to be a mandatory subject of bargaining; however, the definition of a bargaining unit is not. Although a unit may be altered by agreement of the parties, one party may not insist to the point of impasse to change the scope of the bargaining unit. Bozzuto 's, Inc., 277 NLRB 977 (1985); Douds v. Longshoremen, 241 F.2d 278 (2d Cir. 1957); Young & Hay Transportation Co., 214 NLRB 252 (1974), enfd. sub nom. General Drivers Local 554 v. NLRB, 522 F.2d 562 (8th Cir. 1975). The General Counsel has taken the position that Re- spondent refused to incorporate the Unions' prior unit descriptions in a new collective-bargaining agreement in violation of Section, 8(a)(5) and (1) of the Act. Moreover, Respondent unlawfully insisted to impasse on, and unilat- erally implemented, a nonmandatory subject of bargain- ing, namely, the proposal to reclassify maintenance em- ployees into three broad ' categories. The General Coun- sel submits that Respondent's "recognition" proposal could not be interpreted as preserving the Unions' prior unit descriptions, and that a proper interpretation of the proposal and its practical effects as well as the testimony clearly indicate that the changes were not merely seman- tic or solely directed at assignment changes. 468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Unions' brief illustrates how the unit description in the unilaterally implemented proposal differ in practi- cal effects with the units of the expired contracts. The Unions' brief points out, as an example , that the modified unit , description of the International Brotherhood of Electrical Workers consists of 22 percent of the employ- ees in the new classification "General Mechanic-Elec- trical Instruments." As a consequence, the Union is no longer the 'exclusive bargaining representative for a de- scribed group, but the bargaining representative of some, but not all, the employees in that classification. This ex- ample is ' also illustrative for all other Unions that repre- sent members who are in one of the three new categories for maintenance employees. The Respondent, on the other hand, argues that its "Maintenance Modernization Proposal " was directed at revising only the anachronistic work assignment limita- tions and job categories and not the scope of any bar- gaining units. The Respondent argues in its brief that "the Company repeatedly emphasized [during the negoti- ations] that its proposed changes in `jurisdiction' meant only that the restrictions giving particular 'unions (juris- diction) over particular work would be abolished in the interest of greater' efficiency" and that "[e]ach union would continue, to represent or have `jurisdiction' over, precisely the same employees as it had under the old contracts" (R. Br. 21). Respondent points to Delaney's testimony where. he explained (Tr. 259), "we meant to maintain the recognition of the employees that-or num- bers of employees , or presence of the unions that they had formerly represented, while at the same time remov- ing-used in the context of world assignment-jurisdic- tional restraints, or work assignment restraints, to those employees performing work within their capabilities." Accordingly, so argues the Respondent, Boise Cascade had the right to insist to the point of impasse to make the changes in the work assignments for its maintenance em- ployees. There ' is no dispute between the parties that the Re- spondent unilaterally implemented its final offer, effec- tive 1 July 1985, after notifying the Unions that the par- ties were at an impasse. The significance of Respondent's actions requires an examination of Respondent's final offer in relation to the prior contracts and an analysis of the effects of Respondent's "maintenance modernization program." Initially, the inquiry is simply whether the collective- bargaining , units contained in the expired agreements of the eight Unions were retgined in the final offer. As al- ready stated, Respondent has consistently refused to in- corporate the unit descriptions of the prior, contracts in its final ,offer and a comparison between the prior con- tracts and the final offer obviously shows that the unit descriptions are different. Any suggestion that the proviso subsequently added by Respondent's counsel to the final offer on 3 June 1985 had the effect -of incorporating the unit descriptions by reference, is not persuasive. First, the unit description was not simply omitted due to an oversight or because of semantic reasons; neither is there any evidence that the proviso was an attempt to simplify the wording of the unit descriptions in the expired contracts. To the con- trary, the record shows that the Respondent intentionally and unequivocally refused- the Unions' demands to incor- porate the prior unit descriptions. Indeed the proviso was not a part of Respondent's, final offer. Because the Unions had a right to have their unit descriptions contin- ued in any new agreement, and because Respondent re- fused the Unions' demands, Respondent's , conduct amounted to a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. Moreover, the Respondent in- sisted to the point of impasse and unilaterally implement- ed its final offer without the established -unit descriptions but with different descriptions . "[T]he description or size of the bargaining unit is not a mandatory subject ... it is equally well established that insistence to impasse upon a non-mandatory subject of bargaining violates Section 8(a)(5)." Newspaper Printing Corp. ,v, NLRB, 625 F.2d 956 (10th Cir. 1980), cert. denied 450 U.S. 911 (1981). "Unit scope is not a mandatory bargaining subject, and conse- quently a party may not insist to impasse an alteration of the unit. Bozzuto 's, Inc., 277 NLRB 977 (1985); -Douds v. Longshoremen, 241 F.2d 278 (2d Cir. 1957). Columbia Tribune Publishing Co., 201 NLRB 538 (1973), enfd. 495 F.2d 1384 (8th Cir . 1974); Newport News Shipbuilding v. NLRB, 602 F.2d 73 (4th Cir. 1979). An examination of the new unit description of Re- spondent's final offer shows that it did not perpetuate the established units of the various Unions. For example; the Respondent argues that "the Company's proposal was neither intended to cause, nor did it result in, any modifi- cation of the scope of any bargaining -unit" (R, Br. -26), The maintenance modernization proposal, according to the Respondent, consisted of the following : "Abolish the multitude of narrow, obsolete job categories and the work assignment restrictions ... and create three broad maintenance classifications ... of maintenance employ- ees of the mill." Respondent, however, conceded that "some revisions would be necessary in the terms of each of the contracts' recognition and jurisdiction clauses if the Company were to achieve its objective." Respondent further argues "that the Company suggested a propor- tional representation guarantee . . . the unions, however, failed to offer any-counter-proposal . . -that would satis- fy the Company's basic maintenance modernization needs .... Instead the unions' final proposal demanded reten- tion of the exact language contained in _all previous rec- ognition, jurisdiction and work , restriction clauses." In sum, so argues the Respondent, "the Company's mainte- nance modernization proposal in no way constituted a proposal to modify the scope of any bargaining unit . , each of the five maintenance unions continued as the ex- clusive - representative of those same employees it had represented prior to July, 1985." The General Counsel and the Unions, disagree, Their position is that the revised jurisdictional and unit descrip- tions were not semantic changes, but changes that de- prived each of the Unions of exclusive representation rights and that transformed established units "into over- lapping bargaining units with more than one union- repre- senting employees in the same job classification." Ac- cording to the Unions, the "Employer ' did not limit its negotiation objectives to bargaining only 'on the assign- BOISE CASCADE CORP. 469 ment of work tasks"; the Unions, were willing to negoti- ate the issues relating to the assignments of work tasks and the training for broader skills, but they were unwill- ing to accept any modification in the composition and description of the recognized and certified bargaining units, including the concept of shared jurisdiction and the loss of exclusive representation. Indeed, Respondent's version of the proportionate representation or shared ju- risdiction by the Unions is, according to the Charging Party and the General Counsel, a unit inappropriate for certification by the Board, because the Employer, and not the employee, may dictate union affiliation and be- cause of the absence of exclusive representation by the Unions. The record is clear that Respondent's final offer indeed did not preserve the composition of the prior units, and that Respondent's maintenance modernization program was not limited to jurisdictional clauses relating to work assignments, as contended by the Respondent. The unit descriptions as unilaterally implemented differ from the established units not only in description but also in composition. By definition, each Union now represents some or a percentage of employees, but not 'all employ- ees in one of the three maintenance categories. The con- sequences are shared or overlapping jurisdiction and a loss of exclusive representation. In addition, Boise Cas- cade had the right to assign maintenance employees to one of the three classifications. In certain instances, this would interfere with an employee's right to select his bargaining representative and would empower the Com- pany to determine an employee's union affiliation. Re- spondent's new version of unit descriptions would there- fore have the effect of interfering with an employee's Section 7 rights and be contrary to Section 9(a) of the Act. Such a unit would be inappropriate for certification by the Board. Respondent's contentions that the Unions could have bargained for another approach to the shared jurisdiction or proportionate jurisdiction concept, and that the Com- pany could lawfully bargain to impasse on new work as- signment clauses may at first blush appear significant. However, the record is clear that the Respondent's rec- ognition proposal lead to the impasse. The Unions would have been willing to bargain on the broad issues relating to work assignments and training if they had been as- sured that their exclusive jurisdictions Were to remain intact without the qualifying factors of shared jurisdic- tion or any other forms of modified unit descriptions. For the record shows that Respondent insisted during the negotiations on retaining its right to assign the main- tenance employees to one of the three maintenance clas- sifications, and further insisted on' the revision of the Unions' respective recognition clauses. For the Respond- ent to suggest repeatedly that each Union would contin- ue to represent "precisely the same employees as it had under the old contracts" and that each Union would continue "as the exclusive representative of the same em- ployees" and further that the Company had not insisted "that the relationship of any particular employees with their chosen union be served or altered" ignores the pos- sibilities of future changes in'the functions or the number of employees in one of the three categories. For exam- pie, should certain employees assigned to one of the three classifications and belonging to a particular union leave their employment or be laid off, it would change the proportional position of one or more Unions and re- quire the Company to assign other employees to that Union to maintain the proportional balance. Respondent's efforts to achieve efficiency and flexibil- ity in its new contract could perhaps have been achieved had the Respondent directed its efforts solely at work as- signment issues or work flexibility without the simultane- ous attempt to redefine the established bargaining units. Respondent could certainly have proceeded by initiating a petition for unit clarification under Section 102.60(b) of the Board's Rules and Regulations. But the Respondent did not exhaust these remedies and, instead, took an in- flexible approach from the outset of the negotiations by its intentions to modify the composition and the scope of the Unions' bargaining units and to implement its recog- nition proposal. It has no right to insist to impasse on the alteration in the bargaining units. Respondent thereby violated ' Section 8(a)(5) and (1) of the Act. Respondent's motion. Because the Respondent proceed- ed with its negotiations with all Unions, not just those representing maintenance employees, Respondent's `motion to exempt the three Unions is Without merit. During the trial of this case, the Respondent moved to dismiss those portions of the complaint that related to the, production units, as opposed to the maintenance units, because the recognition proposal affected only the maintenance employees and because the General Counsel had failed to sustain the allegations with regard to the production units. The General Counsel argues that the Respondent, contrary to past practice, negotiated with the representatives of all Unions in an effort to arrive at a "master contract" or a single agreement to be applica- ble to all Unions. The Respondent, on the other hand, argues that the individual Unions were free to make changes in the, memorandum of'agreement and "that the three, non-maintenance unions , UPIU Local # 159, UPIU Local #,49 and Operating Engineers Local #50, were free to sign an agreement without agreeing to the Com- pany's maintenance modernization proposal." Obviously, it would be reasonable to assume that the Respondent would exclude those units that would be un- effected by the maintenance proposal., But the question is whether the record supports Respondent's intentions in this regard. To be sure, past practice indicates that the individual Unions were able to agree to certain provisos that had, not been part of the memorandum of agreement negotiated by the Joint Union Council. However, the record indicates that the provisions would be related to local issues. Here, the Company presented[ a single memorandum of agreement listing all nine Unions and occasionally referred to it as a master contract. Obvious- ly, it must, have occurred to the Respondent before, prior to the hearing in this case, that at least three of the Unions would be unaffected by its maintenance modern- ization proposal that was the key stumbling block in ar- riving at an agreement. The suggestion to exempt the un- affected Unions could have been made to those units during any stage of the negotiations. It might have lead 470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to a bargaining agreement with those Unions. It is diffi- cult to conclude at this stage of the proceeding that the Respondent had intended to exempt these three Unions when their, representatives were part of the Joint Union Council and in regular attendance at the negotiations. There is simply no evidence that these Unions were exempt from the consideration of the much debated juris- diction issues. Delaney's testimony that these Unions could have signed a separate agreement does not show that the Respondent or,the Unions ever considered that possibility. In any case, according to the terms of the im- plemented final offer, the Respondent has the right to assign its production employees to perform maintenance work and to assign production employees to the three maintenance categories on a permament basis . In that eventuality,, it is perfectly clear the production units as well as the production employees were significantly af- fected by Respondent's maintenance modernization pro- posal. In sum, the evidence shows that the nonmainten- ance units were affected, albeit on a lesser scale, and that they were not explicitly exempted from the negotiations. Respondent's motion should therefore be denied. CONCLUSIONS OF LAW 1. Boise Cascade Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The following Unions are labor organizations within the meaning of Section 2(5) of the Act : (a) Local Union 159, United Paperworkers International Union; (b) Local 771, United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada; (c) Local 4-33, International Woodworkers of America; (d) Local No. 50, International Union of Operating Engineers; (e) Chauffeurs, Teamsters & Help- ers Local 346; (f) Local No. 731, International Brother- hood of Electrical Workers; (g) Local No. 49 United Pa- perworkers International Union; and (h) International Association of Machinists, Lodge No. 760. 3. The following employees of Respondent constitute appropriate units for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act: (a) All employees employed by Respondent at its International Falls, Minnesota facility, in the unit described in the collective-bargaining, agreement be- tween Respondent and Local Union 159, United Pa- perworkers International Union, for the period from 1 May 1981 through 30 April 1984. Their ,exclusive collective-bargaining representative is Local 159, United Paperworkers International Union.' (b) All full-time and regular part -time employees engaged in welding and in the installation and main- tenance of all piping and plumbing equipment at Respondent's International Falls, Minnesota facility; excluding all 'other employees, office clerical em- ployees; manager, guards, and supervisors as de- fined in the Act, as amended. Local 771 , United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada has been designated as their exclusive collective-bargaining representative. (c) All employees employed by Respondent at its International Falls, Minnesota facility, in the unit described in the collective-bargaining agreement be- tween -Respondent and Local 4-33, International Woodworkers of America, for ther period from 1 May 1981 through 30 April 1984. Their exclusive collective-bargaining representative is Local 4-33, International Woodworkers , of America. (d) All full and regular part-time employees en- gaged in the operation of the old and new turbine rooms, oxygen plant and filter plant, including air compressors located in the-turbine room and demin- eralizers located in the filter plant (and such repairs to this equipment which are customarily made) and engaged in the operation of any new electrical gen- erating steam turbines similar in nature to existing equipment in the turbine room ; excluding all other employees, office clerical employees, manager, guards and supervisors as defined in the Act, as amended. Local No. 50, International Union of Operating Engi- neers is their exclusive collective-bargaining representa- tive. (e) All employees employed by Respondent at its International Falls, Minnesota facility, in the unit described in the collective bargaining agreement be- tween 'Respondent and Chauffeurs, Teamsters & Helpers Local 346, for the period from 1 May 1981 through 30 April 1984. Chauffeurs, Teamsters & Helpers Local 346 has been designated as their exclusive collective -bargaining repre- sentative. (f) All full and regular part-time employees en- gaged in the installation and maintenance of electri- cal (including electronic, refrigerating, radio, high frequency, radioactive radiation and television) equipment, and pump house and power house oper- ators; excluding all other employees , office clerical employees, managers, guards, and supervisors as de- fined in the Act, as amended. Local No. 731, International Brotherhood of Electrical Workers has been designated their exclusive collective- bargaining representative. (g) All employees employed by Respondent at its International Falls, Minnesota facility, in the unit described in the collective-bargaining agreement be- tween Respondent and Local No . 49, United Paper- workers International Union, for the -period from 1 May 1981 through 30 April 1984. BOISE CASCADE CORP. Local No. 49, United Paperworkers International Union has been designated their exclusive collective-bar- gaining representative. (h) All employees employed by Respondent at its ]International Falls, Minnesota facility, in the unit described in the collective-bargaining agreement be- tween Respondent and International Association of Machinists, Lodge No. 760, for the period from 1 May 1981 through 30 April 1984. International Association of Machinists, Lodge No. 760 has _ been designated their exclusive collective-bar- gaining representative. 4. The Respondent violated Section 8 (a)(5) and (1) of the Act by (a) refusing to incorporate, the prior recog- nized unit descriptions for the eight Unions at its facility in a new agreement and , (b) by insisting to impasse on, and by unilaterally implementing, a nonmandatory sub- ject of bargaining in the form of a proposal that modified the bargaining units and the jurisdictions of the eight Unions. 5. The aforesaid unfair labor practices affect commerce within the meaning of the Act. THE REMEDY 471 Having found that the Respondent has engaged in and is engaging in certain unfair labor practices. I shall order that it cease and desist therefrom and take certain affirm- ative action designed to effectuate the policies of the Act. Specifically, I shall order that, on request, the Re- spondent meet and bargain collectively with the Unions with respect to wages, hours, and other terms ,and condi- tions of employment. I further order that the Respondent rescind, if requested by the Unions, the unilateral imple- mentation of its final offer and that the Respondent re- store the status quo of its employees that were affected by its unilateral action, including backpay. If the Unions select to have previous conditions re- stored, calculations of the sums and payments necessary to make employees whole, with interest, shall be com- puted in accordance with normal Board-policy. See Ogle Protection Service, 183 NLRB 682 (1970); Florida Steel Corp., 231 NLRB 651 (1977). [Recommended Order omitted from publication]