Consolidated Papers, Inc. v. N.L.R.B., 95

• Citation: 670 F.2d 754
• Decision Date: 12 February 1982
• Docket Number: No. 95,No. 80-2794,I,95,80-2794
• Parties: 109 L.R.R.M. (BNA) 2815, 93 Lab.Cas. P 13,235 CONSOLIDATED PAPERS, INC., Petitioner, Sandra M. Allen, et al., Party-Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Office & Professional Employees International Union, Localntervening Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 754

670 F.2d 754

109 L.R.R.M. (BNA) 2815, 93 Lab.Cas. P 13,235

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.

Argued Oct. 29, 1981.

Decided Feb. 12, 1982.

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.

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 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 policy. If the Board chooses to depart from established policy, it must explicitly announce the change and its reasons for the change. Midwest Stock Exchange, Inc. v. NLRB, 620 F.2d 629 (7th Cir.), cert. denied, 449 U.S. 873, 101 S.Ct. 214, 66 L.Ed.2d 94 (1980); NLRB v. Northeast Oklahoma City Manufacturing Co., 631 F.2d 669, 673-74 (10th Cir. 1980); NLRB v. Osborn Transportation, Inc., 589 F.2d 1275, 1279 (5th Cir. 1979). Where the Board's order is inconsistent with its declared policy as established by its previous decisions, this court will deny enforcement of the Board's decision in order to repudiate arbitrary action. Midwest Stock Exchange, supra. See also Monmouth Medical Center v. NLRB, 604 F.2d 820, 823 (3d Cir. 1979).

In the instant case, we do not reach the question whether the Board erred in concluding that the CSRs share a community of interest with unit employees sufficient to justify an accretion. We believe that the Board failed to adhere to its own precedent, which articulates a policy not to entertain unit clarification petitions in circumstances such as those presented here. Expressing no opinion on the wisdom of the policy, we limit our inquiry to the fairness of the Board's application of that policy in the instant case. Midwest Stock Exchange, 620 F.2d at 634.

In Wallace-Murray Corp., 192 NLRB 1090 (1971), the Board announced a policy not to entertain unit clarification petitions midway in the term of an existing collective bargaining agreement that "clearly defines" the bargaining unit covered by the contract. See also Shop Rite Foods, Inc., 247 NLRB No. 143 (1980); Massachusetts Teachers Ass'n, 236 NLRB 1427 (1978); Arthur C. Logan Memorial Hospital, 231 NLRB 778 (1977); Northwest Publications, Inc., 200 NLRB 105 (1972). To allow such mid-term petitions, the Board has stated, would be disruptive of voluntarily continued bargaining relationships. The Board's consistent procedure in such cases, therefore, has been to dismiss the unit clarification petition without prejudice to the filing of another petition "at an appropriate time." Wallace-Murray, 192 NLRB at 1090. An appropriate time is shortly before the expiration of the current collective bargaining agreement. Shop Rite Foods, Inc., 247 NLRB No. 143 (1980); Peerless Publications, Inc., 190 NLRB 658 (1971). At that time, the parties are presumably commencing negotiation of a new contract and they may either negotiate a modification in the contractual unit description without resort to a unit clarification proceeding or seek such a clarification, which may then be incorporated into the contract. ⁵ The underlying purpose of the Wallace-Murray rule, the Board has indicated, is to spare the parties unnecessary labor disputes. Shop Rite Foods, Inc., 247 NLRB No. 143 (1980).

The effect of Wallace-Murray is to leave the party seeking to include a group of employees in the unit two options: (1) to await the expiration of the current collective bargaining agreement and file another unit clarification petition with the Board, or (2) to seek an immediate self-determination election among the employees sought to be included. The Wallace-Murray rule thus deals only with the timeliness of unit clarification petitions; the rule does not, as the Union argues, allow an employer to escape forever a finding of accretion. The rule expresses a policy of deferring, during the term of the contract, to the negotiated unit description. ⁶

The Regional Director, in a decision that the Board declined to review, did not even discuss Wallace-Murray or its progeny in dismissing the Company's argument that the contractual unit description barred the Union's unit clarification petition in the instant case. ⁷ Instead, the Regional Director cited cases in which the Board has found that a bargaining unit may be appropriate even if it includes both salaried and hourly paid employees. He concluded that the method of compensation for a particular job classification is not dispositive on the question of accretion where there is otherwise a community of interest. This discussion of the issue, however, misconstrues the nature of the Wallace-Murray rule. Whether the Board would, as an initial matter, have included the salaried CSRs in a bargaining unit together with hourly paid employees is basically irrelevant to the applicability of Wallace-Murray. The rule reflects a discretionary policy of the Board not to entertain certain unit clarification petitions filed during the mid-term of a contract; whether the rule applies in a given case has nothing to do with the appropriateness of the bargaining unit. ...