670 F.2d 754 (7th Cir. 1982), 80-2794, Consolidated Papers, Inc. v. N.L.R.B.

Docket Nº:80-2794.
Citation:670 F.2d 754
Party Name:CONSOLIDATED PAPERS, INC., Petitioner, Sandra M. Allen, et al., Party-Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Office & Professional Employees International Union, Local No. 95, Intervening Respondent.
Case Date:February 12, 1982
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 754

670 F.2d 754 (7th Cir. 1982)

CONSOLIDATED PAPERS, INC., Petitioner,

Sandra M. Allen, et al., Party-Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent,

Office & Professional Employees International Union, Local

No. 95, Intervening Respondent.

No. 80-2794.

United States Court of Appeals, Seventh Circuit

February 12, 1982

Argued Oct. 29, 1981.

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Robert E. Mann, Chicago, Ill., for petitioner.

Susan Williams, N.L.R.B., Washington, D. C., for respondent.

Joseph E. Finley, Princeton, N. J., for intervenor-respondent.

Before PELL and CUDAHY, Circuit Judges, and GRANT, Senior District Judge. [*]

CUDAHY, Circuit Judge.

This is a petition for review of an order of the National Labor Relations Board (the "Board") involving Consolidated Papers, Inc. (the "Company"). The Board has cross-petitioned for enforcement of its order. The Board found that the Company committed an unfair labor practice by refusing to bargain with the Office and Professional Employees International Union, Local No. 95 (the "Union") concerning the wages, hours and working conditions of six employees holding jobs as Customer Service Representatives ("CSRs"). 253 NLRB No. 34 (1980). The Board's order was predicated on an earlier decision that the CSRs constituted an accretion to the existing bargaining unit. We conclude that the Union's unit clarification petition, which resulted in the Board's finding of accretion, was not properly entertained by the Board. Accordingly, we deny enforcement of the Board's order.

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I.

The Company is engaged in the manufacture and sale of paper and paper products at its plant and home office in Wisconsin Rapids, Wisconsin. The Union was certified in 1944 to represent a class of office workers employed at the Company's Wisconsin Rapids facility. Since then, the parties have entered into a series of collective bargaining agreements, each of which has contained a recognition clause describing the bargaining unit covered by the contract. Since 1955, the recognition clause in each successive contract has defined the unit to include "hourly paid employees engaged in office and clerical work" (emphasis added). Managerial, supervisory, professional, confidential and technical employees have been expressly excluded from the unit by the recognition clause. 1 The parties have historically implemented this contractual unit description by excluding from the bargaining unit employees who perform work that is exempt from the coverage of the Fair Labor Standards Act.

The controversy in the instant case followed the Company's decision in July 1979 to transfer the location of its CSRs from Chicago, where they had been headquartered for 36 years, to the Wisconsin Rapids plant. The CSRs are and have been salaried positions and, as the Board found, they are exempt from Fair Labor Standards Act coverage.

On November 30, 1979, the Union filed a unit clarification petition pursuant to section 9(b) of the National Labor Relations Act, as amended, 29 U.S.C. § 159(b) (1976), seeking to include the CSRs in the existing Wisconsin Rapids bargaining unit. 2 The Company argued, inter alia, that a unit clarification petition could not be entertained because the CSRs were excluded from the bargaining unit by the terms of the contract and by historical practice. Rejecting these arguments, the Regional Director held that the CSRs shared a community of interest with the unit employees and hence constituted an accretion to the bargaining unit. The Board declined to review this decision. When the Company subsequently refused to bargain with the Union concerning the CSRs, this unfair labor practice proceeding followed. 3

II.

An accretion is the addition of a relatively small group of employees to an

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existing bargaining unit where these additional employees share a sufficient community of interest with unit employees and have no separate identity. The additional employees are then absorbed into the existing unit without first having an election and are governed by the unit's choice of bargaining representative. Lammert Industries v. NLRB, 578 F.2d 1223, 1225 n.3 (7th Cir. 1978); Universal Security Instruments, Inc. v. NLRB, 649 F.2d 247, 253 (4th Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 506, 70 L.Ed.2d 380 (1981); NLRB v. Food Employers Council, Inc., 399 F.2d 501 (9th Cir. 1968).

A finding of accretion by the Board is similar to the Board's function of defining an appropriate bargaining unit. 4 In both situations, the Board uses its expertise to determine the most appropriate employee composition for a particular unit. Universal Security Instruments, 649 F.2d at 253; Lammert Industries, 578 F.2d at 1225. A finding of accretion, like the certification of an appropriate bargaining unit, is committed to the Board's sound discretion, and may not be set aside unless the reviewing court is convinced that the Board has acted in an arbitrary and capricious manner. Universal Security Instruments, 649 F.2d at 253; Lammert Industries, 578 F.2d at 1225.

Although broad, the Board's discretion in accretion cases is not without limit. In particular, when the Board adopts a policy to guide it in the exercise of its discretion, the original very broad discretion is to some extent narrowed, and subsequent decisions must be reasonably consistent with the expressed...

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