St. Regis Paper Co.

ST. REGIS PAPER CO. St. Regis Paper Company and District No. 99, Inter- national Association of Machinists and Aero- space Workers, AFL-CIO. Case 1-CA-12715 10 August 1987 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 11 December 1978 the National Labor Rela- tions Board issued a Decision and Order in which it found that St. Regis Paper Company (the Re- spondent) violated Section 8(a)(5) and (1) of the Act by refusing to recognize District No. 99, Inter- national Association of Machinists and Aerospace Workers, AFL-CIO (the Union) as the bargaining representative of a certified unit of garage employ- ees at Bucksport, Maine, to which garage employ- ees at First Machias Lake, Maine, had been accret- ed, and to which the Board added two nonsupervi- sory mechanics on the wood harvester maintenance crew as well.1 The Board also found that the Re- spondent violated Section 8(a)(3) and (1) of the Act by transferring employees Ervin Googins and Wayne Haslam from its First Machias Lake garage facility to its Bucksport garage in an effort to shape the unit by transferring employees who were union members. Thereafter, the Board filed an application for en- forcement of its Order with the United States Court of Appeals for the First Circuit. On 9 July 1979 the court granted the Board's motion to with- draw its application for enforcement in order to allow the Board to reconsider its decision in light of various decisions of that court involving the standard to be used in adjudging alleged violations of Section 8(a)(3) of the Act. After reconsideration in light of the Board's de- cision in Wright Line,2 the Board found that the Respondent failed to demonstrate that it would have transferred employees Googins and Haslam had they not been union members and, therefore, that the Respondent's transfer of Googins and Haslam to its Bucksport garage was discriminatory and the Respondent thereby violated Section 8(a)(3) and (1). 1 239 NLRB 688 (1978) Chairman Dotson and Members Johansen and Stephens were not then members of the Board and did not participate in that decision 2 Wright Line, 251 NLRB 1083 (1980), where the Board set forth for- mally the test for causation to be used in resolving cases alleging viola- tions of Sec 8(a)(3) 293 On 2 April 1981 the Board issued its Supplemen- tal Decision and Order3 reaffirming its Decision and Order issued in this proceeding on 11 Decem- ber 1978. On 23 March 1982 the United States Court of Appeals for the First Circuit affirmed and enforced the Board's Order except insofar as it ordered the Respondent to recognize or bargain with the Union as the representative of mechanics at First Machias Lake (First Lake) or elsewhere, or to apply the terms and conditions of the collective-bargaining agreement to such locations.4 The court remanded the case to the Board for further proceedings con- sistent with its opinion that the Board should exam- ine the Respondent's many changes that occurred since the Board first rendered its decision. On 8 July 1982 the Board notified the parties that it had decided to accept the remand and invit- ed each party to file a statement of position. Pursu- ant to this notice the Respondent and the General Counsel filed statements. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has given full consideration to the views of the court, the Respondent's affidavits, and to the parties' contentions in their respective state- ments of position and finds, in agreement with the court, that there is merit in the Respondent's con- tention that the Board's order directing the Re- spondent to bargain with the Union as the repre- sentative of mechanics is now so outdated as to be moot and incapable of enforcement. In remanding this proceeding, the court noted that more than 5 years have passed since the facts underlying the challenged decision took place and more than 3 years have passed since the Board first issued its original decision.5 The court stated that, since the date of the Board 's original decision, the court had been informed by affidavits of the Re- spondent, which were not contested by the Board,6 a 255 NLRB 529 (1981) Chairman Dotson and Members Johansen and Stephens were not then members of the Board and did not participate in that decision * NLRB v St. Regis Paper Co, 674 F.2d 104 (1st Cir 1982). The court noted at fn 6 of its decision that employee Googins is now deceased, so that part of the Board 's Order requiring the Respondent to offer him re- instatement at First Lake is moot The heanng before the judge was held in mid-1977, his decision issued a year later, 10 July 1978 The Board's initial decision issued II December 1978 239 NLRB 688 (1978) Thereafter, the Board reconsid- ered the 8(a)(3) charge, and reaffirmed its original decision on 2 April 1981 255 NLRB 529 (1981) On 7 October 1981 the General Counsel, in response to the Respond- ent's 30 September 1981 submission of a supplemental affidavit in support of its earlier motion to dismiss the enforcement proceeding as moot, indi- cated that the supplemental affidavit was not received by the attorneys representing the General Counsel until 5 October 1981 Consequently, when the Board filed its response to the Respondent 's motion to dismiss the enforcement proceeding on 2 October 1981, no reference was made to the issues raised in the Respondent's supplemental affidavit 285 NLRB No. 39 294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that many changes have occurred, i.e.,,the Buck- sport garage was closed in April 1980; First Lake was closed in February 1981 and some of its per- sonnel and materials were transferred to Colson Field, which was reopened; and there are currently three hourly mechanics assigned to Colson Field, and none of them has ever been a member of the Union or had dues checked off while with the Re- spondent.7 The court indicated that it was troubled by the Respondent's contention that the Board's order di- recting it to bargain with the Union as the repre- sentative of mechanics at First Lake is now so out- dated as to be moot and incapable of enforcement. The court also noted that, while courts of appeals do not normally take into account changes in cir- cumstances since the date of the Board proceedings under review, the changes in this proceeding are so fundamental that they are not easily ignored. The court further noted that it was aware that a bargaining obligation is not normally ended simply by relocation of the employer's facilities. However, it indicated concern that, if it were to enforce the Board's order directing bargaining at First Lake, the Board would construe it so as to direct the Re- spondent to bargain with the Union on behalf of the three hourly mechanics, not now members of the Union, at Colson Field. Additionally, this would seem to require the Respondent to bargain in a unit in which there is little or no basis for as- suming the Union today enjoys the support of any of the employees. In such unusual circumstances the court thought it proper to remand so that the Board may reconsider its order in light of present realities, consistent with past practice, to avoid im- mediately locking the parties into a lengthy bar- gaining relationship on the basis of ancient events. Pursuant to its remand, the court directed that the Board consider whether circumstances justify the application of the bargaining order, now ad- dressed to the defunct First Lake, to any location other than First Lake; whether any purpose re- mains to be served by such order at this time; and, if so, whether the Board should reword its order so as to make its scope and effect clear, identifying the location or locations to which it now applies. The court concluded that it was reluctant to issue the process of the court to enforce an order whose current applicability and scope are so in doubt and whose obsolescence is a real possibility. 7 The record shows that Alfred Wood, presently a salaried mechanic, was transferred from First Lake to Colson Field in February 1981 Wood had been a member of the Union, but revoked his payroll authorization and resigned his membership on 23 February 1977, prior to becoming a supervisor for the mechanics working on the now defunct mechanical harvester operation The Respondent's affidavits8 show, in part, that the First Lake garage continued to be manned by bargaining unit personnel until February 1981; that no mechanics have been permanently assigned' to 'First Lake since it closed; that the mechanical har- vester crew mechanics were disbanded in Decem- ber 1980; that Respondent has sold its logging trucks and other logging equipment; that due to economic conditions it planned to employ only one salaried mechanic, one hourly mechanic, and one working foreman' at Colson Field after November 1981; that there was no likelihood of the recall of any laid-off mechanics until early summer 1982; that Googins, Haslam, and Norton signed payroll deduction authorizations for union dues before 18 July 1977, the Respondent honored the authoriza- tions and paid the amounts deducted to the Union, and they were the only mechan ics permanently as- signed from Bucksport garage to First Lake garage or any other location; that, during all times payroll deduction authorizations for deduction of union dues were in effect, the Respondent made such de- ductions and paid such dues to the Union; and that all wages and benefits contained in the June 1976 collective-bargaining agreement were extended to all mechanics including those permanently assigned to First Lake, excepting only provisions on lunch- breaks and holidays, and neither of these provisions resulted in any loss of money to mechanics at First Lake. We find, in agreement with the court, that there has been an unfortunate delay of more than 4 years since the Board's original unit determination herein and our finding that the Respondent refused to bar- gain with the Union, and that there have been sig- nificant changed circumstances in the Respondent's operations. As pointed out by the Respondent, except for Alfred Wood, who was a member of the Union but resigned in 1977, there is no evidence that any unit employees at the Colson Field garage have been or wish to be represented by the Union. The Board's bargaining order, if enforced, would have the un- desirable result of requiring that current employees be represented by a union they have not chosen to represent them. It is clear from the Respondent's affidavits that its operations and circumstances are completely dif- ferent today than they were several years ago when this proceeding originated. There is no evi- dence that the Respondent must bear full responsi- s Two affidavits were filed by Robert D. Cope, manager of the Maine region of the Northern Timberlands Division of the Respondent, dated September 1981. ST. REGIS PAPER CO. bility for the deterioration of the unit that we had previously found appropriate. Most of the changed circumstances in the Re- spondent's operations and in the appropriate unit since the Board's original unit determination that have resulted in the constant erosion and deteriora- tion of the unit have been involuntary and imposed by factors over which the Respondent has had very little input or control, i.e., economic cycles that affect the Respondent's operations when the demand for paper is down, change of seasons, and the normal everyday changes involving the promo- tion, layoff, transfer, firings, hirings, and death of employees. Under these circumstances, we find that the purposes and policies of the Act require that we find that the Respondent's bargaining obli- gation no longer continues, that the bargaining unit is no longer appropriate in view of its reduction in size and the new employees in the unit, that the Board's bargaining order has become moot, and that the collective-bargaining agreement between the Respondent and the Union is inoperable. We have carefully reexamined and reconsidered the entire record in this case, including the state- ments of position of the General Counsel and the Respondent, in the light of the court's remand, and have decided to vacate that portion of our Supple- mental Decision and Order having to do with the Respondent's obligation to bargain with the Union and its obligation to apply the collective- bargaining agreement to certain of its garage locations. We find it appropriate to modify our Order to this extent, inasmuch as the court remanded the pro- ceeding to the Board for a limited purpose and en- forced it in all other respects. Accordingly, as we find that our bargaining remedy is moot and no longer appropriate in view of the Respondent's changed circumstances, we shall amend the Order by deleting that language that requires the Respondent to bargain with the Union in the appropriate unit and to apply the terms and conditions of its collective-bargaining agreement with the Union to its First Lake garage mechanics including the processing of grievances. As the court has already enforced our Order in part, our new Order will be limited to the findings herein. AMENDED REMEDY The Board in its original decision in this pro- ceeding ordered that the Respondent, on request, transfer Ervin Googins and Wayne Haslam to the First Machias Lake garage facility and make the unit employees whole, with interest, for any losses they have suffered by reason of the Respondent's failure to honor the contract as to the First Lake 295 mechanics. As the court noted, Googins died after the issuance of the Board's decision and before the issuance of the court's decision and, therefore, the order requiring the Respondent to offer him a transfer is moot.9 However, as the Board has stated on various occasions, backpay is based not on a private right but rather on a public right estab- lished to vindicate the policies of the Act.1 ° The death of a discriminatee does not, therefore, obvi- ate the need , for the backpay that is intended, along with other remedial provisions, to reestablish the situation as it would have existed absent the unfair labor practices, thereby dissipating, removing, or avoiding the consequences of the illegal conduct. Where, as here, a discriminatee has died, the Board has specifically ordered his estate made whole for any financial loss suffered as a result of the unlaw- ful conduct against him. In view of the above considerations, we find the make-whole remedy with respect to Googins sur- vived his death. Accordingly, we reaffirm that por- tion of our original Order requiring the Respond- ent to make Googins whole, and we shall modify our Order to require that the Respondent pay to Ervin Googins' estate any loss of earnings Googins may have suffered by reason of the discrimination against him. However, since the Respondent's obli- gation to return Ervin Googins to the First Ma- chias Lake garage facility ended with his death, we shall limit the backpay period from the date of the discrimination against Googins to the date of his death. Any backpay is to be computed as pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as set forth in New Horizons for the Retarded.I I ORDER The National Labor Relations Board orders that the Respondent, St. Regis Paper Company, Buck- sport, Maine, its officers, agents, successors , and as- signs, shall 1. Cease and desist from (a) Restraining or coercing employees into with- drawing from membership in District No. 99, Inter- national Association of Machinists and Aerospace Workers, AFL-CIO by attempting to transfer em- ployees from one job location to another. According to the Respondent's affidavit, Ervin Googins died in June 1979 1° Lauderdale Lakes General Hospital, 239 NLRB 895 (1978) 11 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 will be com- puted at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S C § 6621 Interest on amounts accrued prior to 1 January 1987 shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Discouraging membership in, or activities on behalf of, District No. 99, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization of its employees, by transferring employees because of their mem- bership in such labor organization, or otherwise discriminating in regard to their hire or tenure of employment or any terms or conditions of employ- ment of its employees. (c) 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, return Wayne Haslam to the First Machias Lake garage facility if reopened. (b) Make whole Ervin Googins' estate for any loss of earnings Googins may have suffered, from the date of discrimination until the date of his death, by reason of the discrimination against him in the manner set forth in the amended remedy sec- tion of this decision. (c) Post at its facilities at Bucksport, Maine, and at the First Machias Lake garage, if reopened, oth- erwise at Colson Field garage, copies of the at- tached notice marked "Appendix." 12 Copies of the notice, on forms provided by the Regional Direc- tor for Region 1, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. MEMBER STEPHENS, dissenting. I agree that the delay in this case is unfortunate, but I cannot agree that the passage of time and the changes cited by the Respondent constitute reasons for withdrawing the bargaining order. This is not a Gissel case.' The Union involved here was certified in 1958 and, after its initial certification year, it en- joyed a rebuttable presumption of majority. See Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987). The court of appeals upheld the 12 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 " NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). finding that the employees at First Lake were properly accreted into the unit and that therefore the Respondent violated Section 8(a)(5) and (1) of the Act when it originally refused to apply the col- lective-bargaining agreement to those employees; and none of the changes cited by the Respondent following the court's remand-relocation to a facil- ity 11 miles away, downsizing of operations, and turnover in personnel-would constitute grounds for withdrawing recognition from a union enjoying a rebuttable presumption of majority. Neither do I see any injustice in issuing the bar- gaining order. It is not for indefinite duration. The Board orders only that good-faith bargaining take place for a reasonable period of time. If after that period expires the parties are unable to reach agreement and employees are dissatisfied with union representation, the employees are free to pe- tition for decertification. Relieving the Respondent of a bargaining obligation that other employers bear regardless of turnover and reductions in plant size simply because litigating the Respondent's unfair labor practices has consumed a great amount of time does not, in my view, effectuate the poli- cies of the Act. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain our employees from or coerce them into withdrawing their membership in District No. 99, International Association of Ma- chinists and Aerospace Workers, AFL-CIO by at- tempting to transfer them from our First Machias Lake garage facility to our Bucksport, Maine garage. WE WILL NOT transfer employees from First Ma- chias Lake to Bucksport because of their member- ship in District No. 99, International Association of Machinists and Aerospace Workers, AFL-CIO. 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, transfer Wayne Haslam to the First Machias Lake garage facility if reopened. WE WILL make whole Ervin Googins' estate for any loss of earnings Googins may have suffered by reason of the discrimination against him, with inter- est. ST. REGIS PAPER COMPANY