Peperworkers Local 1575 (Scott Paper)

PAPERWORKERS LOCAL 1575 (SCOTT PAPER) 1019 United Paperworkers International Union Local 1575 (Scott Paper Company) and Robert E. Lathan. Case 15-CB-2860 16 July 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 8 March 1985 Administrative Law Judge Frank H. Itkin issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge's decision. 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, fmdings, and conclusions' and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, United Pa- perworkers International Union, Local 1575, Fair- hope, Alabama, its officers, agents, and representa- tives, shall take the action set forth in the Order. 'The Supreme Court's recent decision in NLRB v. Electrical Workers Local 340, 125 LRRM 2305 (May 18, 1987), does not alter the basic con- clusion here. In this case, the Union selectively withheld consent for the retention of seniority by a temporary supervisor. This Union conduct was based on its displeasure with the manner in which that employee per- formed his temporary duties, which included grievance adjustment, on behalf of management. As found by the judge, this conduct was plainly calculated to coerce the Employer in its selection of supervisory person- nel who perform grievance adjusting duties, and therefore violated Sec. 8(bX1)(19) of the Act. William Lurye, Esq., for the General Counsel. Michael Hamilton, Esq., for the Respondent. DECISION STATEMENT OF THE CASE FRANK H. ITKIN, Administrative Law Judge. An unfair labor practice charge was filed in this case on February 3, and an amended charge was filed on Febru- ary 8, 1984. An unfair labor practice complaint issued on August 3, 1984. The complaint alleged that the Employ- er, Scott Paper Company, and the Union, United Paper- workers International Union, Local 1575, are parties to a collective-bargaining agreement which provides: "By mutual agreement between the Company and the Local Union involved, employees may be temporarily trans- ferred to positions out of the bargaining unit to salaried status, or allowed a leave of absence for duties with the signatory Union for a period of up to one year, without a loss of seniority"; the Employer requested approval from the Union under this provision for the temporary promotion of employee Robert E. Lathan to the position of supervisor; the Union refused to give its assent to the promotion because of Lathan's earlier interpretation and application of the collective-bargaining agreement while he was acting temporarily as a supervisor; the Union thereby attempted to cause and did cause the Employer to fail and refuse to temporarily promote Lathan; and by such conduct, the Union violated Section 8(b)(1)(B) of the National Labor Relations Act. Respondent Union filed an answer on August 13, 1984, admitting the juris- dictional allegations, denying that it had violated the Act as alleged, and affirmatively alleging: Milder the terms of. . . the collective-bargaining agreement, the Employer may unilaterally promote employees out of the bargaining unit into superviso- ry positions, temporary or otherwise. Respondent only has contractual authority, to not agree that em- ployees temporarily transferred to positions out of the bargaining unit to salaried status will retain their seniority for a period up to one year. Respondent admits only that it would not agree to the Charging Party's retention of seniority in the event he was set up to the position of supervisor by the Employer. The parties, following a telephonic conference call on January 15, 1985, moved that I accept their proposed stipulation "in lieu of testimony" "in order to effectuate the purposes of the Act and to avoid unnecessary costs and delay." As stated therein: The parties agree that the charge, the amended charge, complaint and notice of hearing, respond- ent's answer, and this stipulation and exhibits herein, constitute the entire record in this case and that no oral testimony is necessary or desired by any of the parties. I therefore accept the stipulation, dated January 28, 1985, and, on this entire record, make the following 1 FINDINGS OF FACT 1.The charge against Respondent was filed by Lathan with the Regional Director for Region 15 on February 3, 1984, a true copy of which was served on Respondent about that date. An amended charge against Respondent was filed by Lathan with the Regional Director on Feb- ruary 8, 1984, a true copy of which was served on Re- spondent about that date. 2. Scott Paper Company (the Employer) is a Pennsyl- vania corporation engaged in the cutting and processing of timber into wood and paper products, with facilities The parties previously had filed a motion to transfer this proceeding to the Board with stipulation, dated October 14 1984. The Board, on De- cember 14, 1984, rejected the motion and stipulation, noting that "the pleadings raise issues of fact and law which can best be resolved on the basis of a hearing before an administrative law judge." The parties, how- ever, during the pretrial conference, made it clear that they intended to present no testimony or evidence other than the stipulation. Under the circumstances, I have accepted the stipulation. 284 NLRB No. 114 1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD located throughout the United States. The Employer's facility located in Mobile, Alabama, a part of its southern operations division, is the only facility involved. 3. During the past 12 months, a period representative of all times material, the Employer, in the course and conduct of its business operations described in paragraph 2, above, derived gross revenues in excess of $50,000 di- rectly from points located outside the State of Alabama and, during the same representative period, sold and de- livered goods valued in excess of $50,000 directly to points located outside of Alabama. 4. The Employer is, and has been at all times material, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 5. Respondent is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. 6. At all times material, Norman L. Thomas has been Respondent's president and has been, and is now, an agent of Respondent within the meaning of Section 2(13) of the Act. 7. Since 1957, and at all times material, the Employer has recognized, and continues to recognize, Respondent as the exclusive collective-bargaining representative of certain of its production and maintenance employees. 8. Respondent and the Employer have, since 1957, bar- gained over and executed successive collective-bargain- ing agreements, the most recent agreement being effec- tive by its terms from June 1, 1983, through June 1, 1986. 9. The collective-bargaining agreement described in paragraph 8, above, contains the following clause, which also has been included in successive collective-bargaining agreements since 1968: SECTION 9. Seniority (E) By mutual agreement between the Company and the Local Union involved, employees may be tem- porarily transferred to positions out of the bar- gaining unit to salaried status, or allowed a leave of absence for duties with the Signatory Union for a period of up to one (1) year, without loss of se- niority. 10. Pursuant to the contract provision described in paragraph 9, above, the Employer presents to Respond- ent every 6 months a list of bargaining unit employees it wants to temporarily promote to the position of moveup supervisor. Respondent's membership, after receipt of the list from the Employer, votes on whether "letters of pro- tection" will be issued by Respondent, in which Re- spondent agrees that an employee acting as a temporary supervisor will continue to accrue seniority. If Respond- ent refuses to issue a letter of protection, an employee accepting a temporary promotion to the position of moveup supervisor will lose all seniority (job, depart- mental, and mill) and, on returning to the bargaining unit, would start at the lowest classification. It is the Em- ployer's general policy not to temporarily promote an employee when Respondent refuses to issue a letter of protection. Historically, Respondent has issued letters of protection for employees designated for temporary pro- motion. However, sometime in 1971, the exact date being unknown, Respondent refused to issue a letter of protec- tion to Tommy Speller, who was acting as a moveup su- pervisor at the time. On Respondent's refusal to issue the letter of protection, the Employer promoted Speller to the position of permanent supervisor. Also, in March 1975, United Paperworkers International Union 423 (Local 423) denied a letter of protection to Donald Ray Smith. Local 423 represents certain employees of the Employer at the facility involved herein in a bargaining unit separate from Respondent. Local 423 was signatory to a contract that contained the clause set forth in para- graph 9, above. After Local 423 refused to renew Smith's letter of protection, the Employer promoted him to the position of permanent supervisor. 11. Since about 1980, the exact date being uncertain, Robert E. Lathan has been a moveup supervisor. During the period of time from 1980 until, but not including, December 14, 1983, Respondent, at 6-month intervals ap- proved the Employer's request for a letter of protection for Lathan. Lathan is a member in good standing of Re- spondent. 12. Since about 1980, the exact date being unknown, Lathan was a moveup supervisor in the roll-wrapping department. He was responsible for supervising approxi- mately 16 employees. Lathan made job assignments, re- solved employee grievances at the first step of the griev- ance procedure, granted employees time off, issued writ- ten "incident reports" on employee misconduct, ap- proved and initiated employees' timecards, and attended supervisors' meetings. Lathan, while a moveup supervi- sor, earned 5 percent higher wages than the highest paid classification in the roll-wrapping department, the ship- per classification. 13. Since about 1980, the exact date being unknown, Lathan, while acting as a moveup supervisor, was a su- pervisor within the meaning of Section 2(11) of the Act. Lathan was a moveup supervisor at all times material. 14. In the latter part of October 1983, Lathan, while acting as a moveup supervisor, about 5:30 a.m., found employees Lonnie Fitzgerald, L. D. Williams, and E. G. Scott sleeping in a departmental office. Lathan directed them to return to work. Thereafter, Lathan reported the incident to his supervisor, Nathan Cooper, and on Coo- per's request, completed an incident report. Subsequent- ly, all three employees received written reprimands. Fitz- gerald was also suspended for 3 days. 15. By memorandum dated November 9, 1983 (at- tached to the stipulation as Exh A), the Employer re- quested that, among other employees, Lathan be issued a letter of protection by Respondent for the position of moveup supervisor, pursuant to section 9(E) of the col- lective-bargaining agreement, for the period January 1 to June 30, 1984. 16. About December 14, 1983, Respondent, pursuant to prior posted notices, conducted a membership meeting at which the Employer's request for letters of protection, including Lathan's, was considered. The incident described in paragraph 14, above, was raised by Fitzgerald and discussed by the membership; PAPERWORKERS LOCAL 1.575 (SCOTT PAPER) 1021 the employees were upset because they felt that Lathan should not have reported Fitzgerald and should have just directed him to go back to work. Several employees also complained that Lathan had abused his supervisory pre- rogative on other occasions by pushing employees too hard and making incorrect overtime assignments. On three occasions, Respondent has grieved Lathan's assign- ment of overtime and the Employer has paid overtime to the employee entitled to it. On three other occasions, Re- spondent has grieved Lathan's assignment of work; the Employer denied these grievances at the first step and the Union did not thereafter pursue them. Also, Re- spondent grieved the discipline imposed on Fitzgerald, Williams and Scott, described in paragraph 14, above; the grievance was denied by the Employer through the third step and the Union did not refer the grievances to arbitration. Respondent's membership unanimously voted not to protect Lathan's seniority by issuing a letter of protection. 17. About December 15, 1983, Respondent's president, Norman L. Thomas, notified the Employer, and thereaf- ter notified Lathan, that letters of protection had issued for all of requested employees except for Lathan. Conse- quently, the Employer did not offer Lathan a promotion to moveup supervisor, and effective January 1, 1984, Lathan returned to a bargaining unit position. The Em- ployer did not set up any other bargaining unit employee to the position of temporary supervisor in the roll-wrap- ping department.2 Discussion Section 8(b)(1)(B) of the National Labor Relations Act makes it an unfair labor practice for a union "to restrain or coerce . . . an employer in the selection of his repre- sentatives for the purposes of collective bargaining or the adjustment of grievances . . . ." The Supreme Court, in Florida Power & Light v. Electrical Workers IBEW Local 641, 417 U.S. 790, 803 (1974), explained: Both the language and the legislative history of 8(b)(1)(B) reflect a clearly focused congressional concern with the protection of employers in the se- lection of representatives to engage in . . . collec- tive bargaining [or] the adjustment of grievances. By its terms, the statute proscribes only union re- 2 The parties further stipulated that "this stipulation is made without prejudice to any objection that any party may have as to materiality or competency of any facts stated." Following acceptance of the above stipulation, counsel for the Em- ployer, by letter dated February 5, 1985, apprised the parties: While Scott Paper Company is not a party to this proceeding, I point out that Local 3575, OPITJ, is not the "exclusive collective bar- gaining representative" of these production and maintenance employ- ees as alleged in paragraph 7, nor is Local 423 the exclusive collec- tive bargainmg representative as implied in paragraph IQ. The United Paperworkers International Union, AFL-CIO, is the certified representative for all production and maintenance employees withm this bargaining unit. . . . While the point is probably of little import for purposes of the instant proceeding, it could have significance in the future. . This letter is made a part of this record as All Exh. I. The General Counsel and counsel for Respondent have restated their position that "Local 1575 is the proper Respondent" in view of the nature of the viola- tion alleged here (U. Br. 1). straint or coercion of an employer "in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances" and the legislative history makes clear that in enacting the provision Congress was exclusively concerned with union attempts to dictate to employers who would represent them in collective bargaining and griev- ance adjustment. Also see American Broadcasting Cos. v. Writers Guild, 437 U.S. 411 (1978); Teamsters Local 839 (Bechtel Power Corp.), 271 NLRB 1209 (1984); Electrical Workers IBEW Local 346 (Nutter, Inc.), 271 NLRB 995 (1984). Thus, Section 8(b)(1)(B) of the Act "prohibits both direct union pressure . . . to force replacement of grievance repre- sentatives and indirect union pressure . . . which may adversely affect the chosen supervisors' performance of their representative functions . . . ." Nutter Inc., supra. For, as stated by the Court in Longshoremen ILA v. NLRB, 539 F.2d 554, 560 (5th Cir. 1977): Implicit in section 8(b)(1)(B) is the congressional judgment . . . that relations between an employer and its supervisory personnel should be insulated in full measure from coercive efforts by a labor union. As the stipulated evidence of record shows, Respond- ent Union withheld its requested consent for employee Lathan's retention of seniority if again designated by the Employer as a temporary supervisor. Consequently, the Employer, under its "general policy," declined to pro- mote Lathan to the position of temporary supervisor without such consent. An employee promoted to a tem- porary supervisory position without such consent would "lose all seniority (job, departmental and mill), and on returning to the bargaining unit, would start at the lowest classification." The temporary supervisory posi- tion involved here included, inter alia, grievance adjust- ing duties. The Union, in withholding its consent, was "upset" because Lathan, while serving in the past as a temporary supervisor, had "reported" employees for "sleeping" on the job; had been "pushing employees" in the performance of their work assignments; and had made "overtime assignments" in a manner which had been regarded by the Union as "incorrect." The Union, although withholding this consent for Lathan, gave its consent for other temporary promotions that were re- quested by the Employer at the same time. I find and conclude, on this record, that such conduct, on the part of Respondent Union, was plainly calculated to coerce the Employer in his selection of supervisory personnel who perform grievance adjusting duties. With- out such consent, the Employer, under its "general policy," would not select an employee for such a posi- tion. Indeed, it is clear that an employee would, at the very least, be most reluctant to give up all seniority under the circumstances. The Union, by withholding its consent, was thus attempting to dictate to the Employer and pressure the Employer in the selection of his super- visory personnel. The Union cites no other legitimate object or purpose for withholding this recently requested consent for Lathan, while readily granting consent for 1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD other employees. Accordingly, the withholding of such consent, under the circumstances present here, is an at- tempt by the Union to restrain or coerce an Employer in the selection of his representatives for collective bargain- ing or grievance adjusting, in violation of Section 8(b)(1)(B) of the Act. Respondent Union argues in effect that it simply with- held its consent with respect to retention of seniority as it was entitled to do under the contract between the par- ties. However, even assuming the parties could waive by contract the utilization of such a clause to achieve an object proscribed by Section 8(b)(1)(B) of the Act, the cited language does not "clearly and unmistakably" dem- onstrate a waiver of an Employer's right to be free of union pressure in the selection of such supervisory per- sonnel where, as here, the Union was displeased and upset with the performance by that supervisor of his duties on behalf of management. Cf. Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983). CONCLUSIONS OF LAW 1.The Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By restraining and coercing the Employer in the se- lection of his representatives for the purposes of collec- tive bargaining or the adjustment of grievances, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Respondent Union will be directed to cease and desist from engaging in the conduct found unlawful and like or related conduct, and to post the attached notice. Affirm- atively, to effectuate the purposes and policies of the Act, Respondent Union will be directed to make em- ployee Lathan whole for any losses that he may have suffered by reason of its unlawful conduct and the conse- quent failure of the Employer to appoint him to the tem- porary supervisory position involved, together with in- terest, as computed and determined in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 117 (1977). See generally his Plumbing Co., 138 NLRB 716 (1962). Further, Respondent Union will make available to the Employer copies of the attached notice for posting at its facility if it is willing to do so. In addi- tion, Respondent Union will be directed to rescind all action taken by it in connection with the denial of letters of protection for Lathan as found unlawful herein, ex- punge from its records all references to such action, and notify the Employer in writing that it has done so. On these fmdings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 3 3 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 ORDER The Respondent, United Paperworkers International Union, Local 1575, Fairhope, Alabama, its officers, agents, and representatives, shall 1. Cease and desist from (a) Refusing to give its assent to the retention by tem- porary supervisors of their seniority status, as provided in section 9(E) of the collective-bargaining agreement be- tween the Union and the Employer, Scott Paper Compa- ny, in order to restrain and coerce the Employer in the selection of his representatives for the purposes of collec- tive bargaining or the adjustment of grievances. (b) In any like or related manner restraining or coerc- ing the Employer in the selection of representatives chosen by him for purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make employee Robert Lathan whole for any losses that he may have suffered by reason of the Re- spondent's unlawful action, with interest, as provided in the Board's decision. (b) Rescind all action taken by it in connection with the denial of letters of protection for Lathan as found un- lawful, remove from its records all references to such action, and notify the Employer in writing that it has done so. (c) Post at its offices and union halls copies of the at- tached notice marked "Appendix." 4 Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by Respondent's authorized repre- sentative, shall be posted by Respondent immediately upon receipt and be maintained for 60 consecutive days in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. Copies of said notice shall also be made available to the Employer for posting if the Employer is willing to do so. (d) Notify the Regional Director in writing within 20 days from the date of this order what steps the Respond- ent has taken to comply. Board and all objections to them shall be deemed waived for all pur- poses. 4 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 Enforcmg an Order of the National Labor Relations Board." PAPERWORKERS LOCAL 1575 (SCOTT PAPER) 1023 APPENDIX 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 refuse to give our assent to the reten- tion by temporary supervisors of their seniority status, as provided in section 9(E) of our collective-bargaining agreement with the Employer, Scott Paper Company, in order to restrain or coerce the Employer in the selection of his representatives for the purposes of collective bar- gaining or the adjustment of grievances. WE WILL NOT in any like or related manner restrain or coerce the Employer in the selection of representatives chosen by him for purposes of collective bargaining or the adjustment of grievances. WE WILL make employee Robert Lathan whole for any losses which he may have suffered by reason of our unlawful action, with interest, as found and provided in the Board's decision. WE WILL rescind all action taken by us in connection with our denial of letters of protection for Lathan, as found unlawful in the Board's Decision; remove from our records all references to such action; and notify the Employer in writing that we have done so. UNITED PAPERWORKERS INTERNATIONAL UNION, LOCAL 1575