697 F.2d 1013 (11th Cir. 1983), 81-7664, Mead Corp. v. N.L.R.B.

Docket Nº:81-7664.
Citation:697 F.2d 1013
Party Name:The MEAD CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Case Date:February 11, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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697 F.2d 1013 (11th Cir. 1983)

The MEAD CORPORATION, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 81-7664.

United States Court of Appeals, Eleventh Circuit

February 11, 1983

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[Copyrighted Material Omitted]

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Smith & Schnacke, Robert J. Brown, Dayton, Ohio, for petitioner.

William M. Bernstein, Gen. Counsel, N.L.R.B., Washington, D.C., for respondent.

Petition for Review of an Order of the National Labor Relations Board.

Before HILL and CLARK, Circuit Judges, and SCOTT, [*] District Judge.

CHARLES R. SCOTT, District Judge:

This case is before the Court upon a petition filed by The Mead Corporation

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(hereinafter 'Company') pursuant to Section 10(f) of the National Labor Relations Act (hereinafter 'Act') and Rule 15 of the Federal Rules of Appellate Procedure to set aside the decision of the National Labor Relations Board (hereinafter 'NLRB' or 'Board'). The NLRB has filed a cross-application for enforcement of its order pursuant to Section 10(e) of the Act.

The Printing Specialties & Paper Products Union Local 527 (hereinafter 'Union'), which represents the production and maintenance employees at the Company's plant in Atlanta, Georgia, filed two consolidated complaints with the NLRB. The Union alleged that the Company withdrew a proposal concerning wage rate adjustments knowing that acceptance of the proposal by the Union was imminent and, therefore, refused to bargain in good faith in violation of Sections 8(a)(1) and (5) of the Act. The Union further alleged that the Company interrogated and threatened its employees who engaged in union activities and prohibited them from writing grievances during working hours, contrary to prior Company practice, all in violation of Section 8(a)(1) of the Act. A hearing was held before an administrative law judge (hereinafter 'ALJ') who found that the Company had violated Sections 8(a)(1) and (5) of the Act by refusing to bargain in good faith and had violated Section 8(a)(1) of the Act by interfering with the right of its employees to engage in union activities. The ALJ recommended that the Company be ordered to cease and desist from the conduct found to be violative of the Act and that the Company further be ordered to bargain in good faith with the Union upon request with regard to wages, hours and other terms and conditions of employment.

A three-member panel of the NLRB affirmed the decision of the ALJ but modified the proposed remedy by further ordering the Company to reinstate for 20 consecutive days the Company's proposal of August 27, 1979 which was found to have been unlawfully withdrawn. 1 On petition for judicial review, the Company contends that the NLRB erred in finding violations of the Act and, in the alternative, argues that the Board's remedial order is improper.

Refusal to Bargain in Good Faith

The Company and the Union have negotiated and executed a series of collective-bargaining agreements since approximately 1963. The collective-bargaining agreement at issue in the case at bar was in effect from February 15, 1979 through February 15, 1981. Articles XXIII and XXVII of the collective-bargaining agreement provide as follows:

RATES FOR NEW OR CHANGED JOBS

Article XXIII

When the installation of new type equipment necessitates the creation of a new job classification, the Union will be so notified. The Company shall establish a rate for this classification in line with the current wage scale for like work. This rate shall stand for a period of ninety (90) days. If at the end of the ninety (90) day period neither party has questioned the rate established for the new job classification, it shall become the established rate for the new job and shall be treated as any other part of the wage scale. The establishment of such rates will be a matter for negotiation.

When a change in methods necessitates the elimination of a job classification, or changes in the job responsibilities of existing job classifications, the Company shall establish rates for the job classification thus affected, in line with the current wage scale for like work. This rate shall stand for a period of ninety (90) days. If at the end of the ninety (90) day period neither party has questioned the rate established for the new job classification, it shall become the established rate for the job and shall be treated as any other part of the wage scale. The

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establishment of such rates will be a matter for negotiation.

A Job Evaluation Committee comprised of the appropriate Plant Manager, Industrial Relations Representative, Chapel Chairman, steward or employee representative(s) shall meet to resolve wage rate issues arising from the installation of new equipment, modifications in existing equipment or changes in job duties having significant effect on employee skill, effort, responsibility, or working conditions requirements.

Should an employee claim that his or her duties have been significantly changed he or she will present the matter to his or her supervisor and steward who in turn shall present the issue to the Job Evaluation Committee. In the event the Committee determines that the duties have changed, it will set a new wage rate.

If the parties are unable to reach an agreement, the rate as established shall stand until termination of the Agreement. Should negotiations result in an increased rate, such increase shall be retroactive to the date of establishment of such rate.

AMENDMENT

Article XXVII

This Agreement is complete in writing and excludes all matters from further negotiations for the duration of this Agreement, whether or not previously mentioned, and except as specifically provided to the contrary herein. Further, this Agreement shall not be amended, changed, altered, or qualified, except by an instrument in writing duly signed by the parties signatory hereto.

This Agreement cancels and supersedes any and all previous Agreements, whether written or oral.

During the negotiations of the labor agreement for February 15, 1979 through February 15, 1981, the parties were unable to agree on wage rate adjustments for certain jobs under Article XXIII. Concerned that this disagreement would prevent timely acceptance of the labor agreement, the parties discussed the possibility of resolving this issue after ratification of the labor agreement.

Company representative John Rottler told the Union that after ratification of the collective-bargaining agreement the Company would further discuss the possibility of wage rate increases for certain jobs under Article XXIII. Union President Ralph Meers testified that he informed Rottler that the Union needed a written commitment from the Company to "sit down after negotiations and make the job adjustments." Rottler testified that he told Meers that the Company could not promise a wage rate increase but would agree to further discuss the unresolved Article XXIII matters after ratification of the labor agreement.

The parties subsequently entered into a written agreement entitled "General Understandings not to be placed in Labor Agreement" whereby the Company agreed to take certain actions following the ratification of the labor agreement. Paragraph 4 of this collateral agreement provides as follows:

4. The Company agrees to meet within 60 days of the ratification date to discuss as Article XXIII's the following jobs:

108 Flexo Operator I

109 Flexo Operator II

110 Assistant Flexo Operator

152 Adhesive Maker

302 Senior Press Operator

342 Third Press Operator

350 Web Cutting Helper-Zerand

363 Take Off (case turning)

404 Lift Operator Clerk "B" in Plant I finishing, Containers, and outlying warehouses 405 Local and Shuttle Driver (Containers)

345 Winder Repiler

303 Cutting Premakeready in Dept. 221

400 Title Change

406 Roll Clamp Operator Clerk B

Maintenance Article XXIII filed in January 1979

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This collateral agreement was actually incorporated into the collective-bargaining agreement which was ratified by the Union in February 1979.

Shortly after the ratification of the collective-bargaining agreement, the parties resumed their discussion of wage rate adjustments under Article XXIII. Although some wage rate adjustments were made, the parties were unable to agree on wage rate adjustments for certain maintenance job classifications listed in paragraph 4 of the General Understandings. The Company and Union representatives continued to meet on numerous occasions for several months but were still at an impasse on the issue of wage rate adjustments for maintenance employees under Article XXIII.

The Company's position was that it could not offer a wage rate increase for maintenance employees under Article XXIII because there had been no change in the job responsibilities of maintenance employees. The Union, however, asserted that most of the maintenance employees had already acquired new skills and assumed additional responsibilities which justified a wage rate increase under Article XXIII.

On August 7, 1979, the Company presented a written proposal which provided for a wage rate increase for maintenance employees on the condition that these employees would undergo training to acquire new skills in areas outside their present job classification. A representative of the Company stated that the offer would be withdrawn if not accepted within ten days. Union President Ralph Meers wrote a letter to Operations Manager Charles Maynard on August 14, 1979, requesting that a meeting previously scheduled for August 27, 1979 include a...

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