WESTERN STATES REG. COUN. NO. 3, INT. WOODWORKERS v. NLRB

• Citation: 130 US App. DC 176,398 F.2d 770
• Decision Date: 19 June 1968
• Docket Number: No. 21317.,21317.
• Parties: WESTERN STATES REGIONAL COUNCIL NO. 3, INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO, and Western Council of Lumber and Sawmill Workers, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Weyerhaeuser Company, Crown Zellerbach Corporation, Rayonier Incorporated, and International Paper Company and Association, Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

130 US App. DC 176, 398 F.2d 770 (1968)

WESTERN STATES REGIONAL COUNCIL NO. 3, INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO, and Western Council of Lumber and Sawmill Workers, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent Weyerhaeuser Company, Crown Zellerbach Corporation, Rayonier Incorporated, and International Paper Company and Association, Intervenors.

No. 21317.

United States Court of Appeals District of Columbia Circuit.

Argued April 25, 1968.

Decided June 19, 1968.

Mr. Joseph L. Rauh, Jr., Washington, D. C., with whom Messrs. John Silard and George Kaufmann and Mrs. Harriett R. Taylor, Washington, D. C., were on the brief, for petitioners.

Mr. Glen M. Bendixsen, Atty., N.L.R.B., with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., were on the brief, for respondent.

Mr. Charles F. Prael, San Francisco, Cal., with whom Mr. Guy Farmer, Washington, D. C., was on the brief, for intervenors.

Before BAZELON, Chief Judge, and WRIGHT and McGOWAN, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

Once again we are asked to review an order of the National Labor Relations Board absolving the four lumber companies, intervenors here, from a violation of Section 8(a) (1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) and (3) (1964 ed.). Our first contact with this case left us with some doubt as to the validity of the theory upon which the Board was proceeding and consequently we remanded the case to the Board for further consideration. Western States Reg. Council No. 3, Int. Woodworkers v. N. L. R. B., 125 U.S.App.D.C. 1, 365 F.2d 934 (1966). On June 29, 1967, the Board issued the supplemental decision and order presently under review. In view of the Board's findings and conclusions therein, the unions' petition is denied.

I

Prior to 1962 labor contract negotiations in the lumber industry had in large part been conducted by single employers or informal groups of employers none of the members of which had been fully bound to accept the results of any negotiations. However, in preparation for the negotiations for the 1963 contract, six timber and lumber processing companies in the Pacific Northwest, led by the Weyerhaeuser Company, decided to form an association to bargain collectively with the unions representing their employees to a settlement binding on all parties. An agreement establishing the association was signed by April 22, negotiations commencing with the International Woodworkers of America on April 24 and with the Lumber and Sawmill Workers on May 9. Bargaining sessions, attended by representatives of the unions and the association's negotiating committee, were held throughout May and into June.¹ On June 5 the unions called a strike against two of the companies, St. Regis Paper Company and U. S. Plywood Company, and, on June 7, the remaining association members locked out their employees pursuant to the provision of the association agreement that the others would cease operating if any member of the association were struck.²

Asserting the unlawfulness of the concerted lockout, the unions filed unfair labor practice charges with the Board in mid-June of 1963. Hearings were held before a trial examiner during April and May, 1964. The issues for these hearings had been framed with an eye to the Supreme Court's decision in N. L. R. B. v. Truck Drivers Local Union No. 449 etc. (Buffalo Linen), 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676 (1957), and accordingly the evidence was directed to the questions whether (1) the employers as a group had bound themselves to accept the bargaining result and (2) the unions had knowingly consented to bargain on such a basis. The trial examiner decided both questions favorably for the employers and, applying Buffalo Linen, ruled that the employers' conduct in locking out their employees was not in violation of the Act. This recommendation of the trial examiner was issued on April 5, 1965.

Seven months later the Board issued its opinion and order. Although it agreed with the trial examiner that the employers' actions were not unlawful, it did not pursue the same path the examiner had. Rather, the Board referred to the Supreme Court's holding in American Ship Building Co. v. N. L. R. B., 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965), handed down one week before the trial examiner's recommendation was issued, that where the parties have bargained to an impasse, an employer may lock out his employees to advance his bargaining position, absent independent evidence of an unlawful motivation. Since that holding could be applied in the instant case, the Board reasoned, there was no need "to pass on the Trial Examiner's factual conclusions that the Association existed, functioned, and was accepted by the Unions as a formal multi-employer bargaining unit." The Board therefore merely looked to the state of the negotiations prior to the lockout and to the apparent motivation for such a closing down of operations. Concluding that an impasse had been reached and that there was no hostile or discriminatory motivation prompting the employers to lock out, the Board dismissed the unions' complaint. The unions appealed to this court.

Our review of the Board's order was hampered by our concern that cases not be decided on grounds other than those on which they are tried and, more important, by our uncertainty of the applicability of American Ship, a single employer situation, to the present case, a multi-employer bargaining group. We therefore remanded the case to the Board which, after affording all parties an opportunity to file additional briefs, issued the supplemental decision and order presently under review. In that supplemental decision and order, the Board reaffirmed its American Ship rationale, but only after it expressly adopted the trial examiner's finding that the employers' actions were permissible under Buffalo Linen. Since we find the Buffalo Linen analysis is dispositive of the unions' complaint and is supported by substantial evidence in the record, we find no need to reconsider or restate our position with respect to the applicability of American Ship to this case.

II

In addressing itself to the theory on which the trial examiner had heard and decided the case, that is, Buffalo Linen, the Board stated that the test to be applied in determining the status of a multi-employer unit is "whether the members of the group have indicated from the outset an unequivocal intention to be bound in collective bargaining by group rather than individual action, and whether the union representing their employees has been notified of the formation of the group and the delegation of bargaining authority to it, and has assented and entered upon negotiations with the group's representative." See Van Eerden Company, 154 NLRB 496, 499 (1965); The Kroger Company, 148 NLRB 569, 573 (1964). We approve the use of that test. Indeed, the unions do not assert that it is an improper statement of the Buffalo Linen doctrine, but rather limit themselves to a challenge of the Board's underlying factual findings.

Where, as here, the question presented is not one of law but of the reasonableness of the Board's findings and conclusions, our function on review is simply to ascertain whether, considering the record as a whole, there is substantial evidence to support the Board's determinations. Section 10(f), National Labor Relations Act, 29 U.S.C. § 160(f) (1964 ed.); Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Int. U., United Automobile, etc. Workers v. N. L. R. B., 129 U.S.App.D.C. 196, 392 F.2d 801 (1967), cert. denied, sub nom. Preston Products Co. v. N. L. R. B., 392 U.S. 906, 88 S.Ct. 2058, 20 L.Ed.2d 1364 (1968). A review of this record convinces us of the reasonableness of the Board's findings that the six companies comprising the association had effectively established a multi-employer bargaining unit within the meaning of prior Board precedents and that both unions had accepted that unit in the course of bargaining.

With respect to the first aspect of the standard, that is, whether the employers intended to bind themselves by the results of the association's bargaining efforts, there is ample evidence that the employers so intended. Thus it is clear that the prime motivation for forming the association was to seek common contract terms with the unions and that this intent was unequivocally embodied in the agreement establishing the association, Paragraph (3) of which states: "Subject matters which the Companies agree to submit to association bargaining will be all matters pertaining to the wages, hours and other conditions of employment of the employees hereinabove mentioned * * *." And Paragraph (6) provides: "Whenever negotiations between the association and authorized bargaining representatives of local unions pertaining to subjects of bargaining delegated to the association and to such union representatives, result in an agreement, subject to ratification by the union membership involved, all of the collective bargaining agreements between the several association members and the affected local unions shall be amended and supplemented accordingly."

Moreover, prior to the negotiations...