Kobell For and on Behalf of N.L.R.B. v. United Paperworkers Intern. Union, AFL-CIO, CLC

• Decision Date: 04 June 1992
• Docket Number: AFL-CI,AFL-CIO,R,No. 91-6141,CLC,91-6141
• Citation: 965 F.2d 1401
• Parties: 140 L.R.R.M. (BNA) 2788, 122 Lab.Cas. P 10,200 Gerald KOBELL, Regional Director of the Sixth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant, v. UNITED PAPERWORKERS INTERNATIONAL UNION,, and its Constituent Local Unions, Erie Local 620, Local 14, Local 197; International Brotherhood of Firemen and Oilers,, and its Constituent Local Union; and Local 246, International Brotherhood of Firemen and Oilers,espondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1401

965 F.2d 1401

140 L.R.R.M. (BNA) 2788, 122 Lab.Cas. P 10,200

Gerald KOBELL, Regional Director of the Sixth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD Petitioner-Appellant, v. UNITED PAPERWORKERS INTERNATIONAL UNION, AFL-CIO, CLC, and its Constituent Local Unions, Erie Local 620, Local 14 Local 197; International Brotherhood of Firemen and Oilers AFL-CIO, and its Constituent Local Union; and Local 246 International Brotherhood of Firemen and Oilers, AFL-CIO, Respondents-Appellees.

No. 91-6141.

United States Court of Appeals, Sixth Circuit.

Argued March 17, 1992.

Decided June 4, 1992.

Ellen A. Farrell, Deputy Associate Gen. Counsel, argued and briefed and Jayme L. Sophir, N.L.R.B., Office of the Gen. Counsel, Washington, D.C., for petitioner-appellant.

Lynn Agee, argued and briefed, and Michael Hamilton, United Paperworkers Intern. Union, Nashville, Tenn., for defendants-appellees.

Andrew E. Zelman, argued and briefed, New York City, for amicus curiae.

Before: GUY and RYAN, Circuit Judges; and JOINER, Senior District Judge. ^*

JOINER, Senior District Judge.

The Regional Director (Director) of the National Labor Relations Board (NLRB) appeals from an order of the district court denying temporary injunctive relief sought under section 10(j) of the National Labor Relations Act (NLRA) as amended, 29 U.S.C. § 160(j) (1982), pending the NLRB's determination of charges of unfair labor practices. We find that the district court erroneously concluded that the Director failed to demonstrate reasonable cause for injunctive relief. We find that issuance of an injunction would be just and proper. Therefore, we reverse, and remand the action to the district court with instructions that the injunctive relief sought by the Director immediately issue.

I.

This action was brought against the United Paperworkers International Union and three of its Locals (Union), as well as the International Brotherhood of Firemen and Oilers and one of its Locals. ¹ The underlying unfair labor practice action was initiated by the International Paper Company (Company) when it filed charges with the NLRB between June 26, 1990, and July 20, 1990. The charges were based upon the Union's adoption of a pooled voting contract ratification procedure. In the period between entry of the order now appealed and oral argument before this court, an administrative law judge (ALJ) of the NLRB determined that implementation of the pooled voting ratification procedure is violative of sections 8(b)(3) and 8(d) of the NLRA. The district court relied upon the testimony heard by the ALJ and upon documents submitted. These sources reveal the following facts.

The Company conducts paper manufacturing operations at approximately 200 locations in 35 states. The Union represents Company employees at 66 of those sites. The parties have collectively bargained for approximately 50 years. Prior to 1984 the employees of the 66 facilities were represented in two large units, called multiples. Through collective bargaining, the parties agreed to break up the multiples and, since 1984 the contract negotiations have proceeded at the Local level. In 1985, the Company injected proposed changes in benefits into the bargaining process, notably the elimination of automatic Sunday "premium pay," if the Sunday fell within an employee's regular 40-hour week, and changes in work rules. The Union resisted these changes and strikes were called by the Union at three of the Company's facilities. The result of the strikes has been the permanent replacement of approximately 2200 strikers.

Unable to obtain its objectives by striking the Company at individual Locals, the Union amended section 4 of article XV of its constitution with the purpose of creating an alternative economic weapon. Section 2 of article XV of the constitution states that: "Negotiations for collective bargaining agreements shall be subject to supervision by, and their terms, conditions and termination shall be subject to the approval of the International President." Thus, it has always been within the authority of the International President to approve or disapprove of an agreement reached between a Local and the Company. There was testimony before the ALJ that, in practice, the International President consistently approved of agreements reached at the Local level. Section 4 of article XV was amended to read:

In some instances, Locals may choose to engage in coordinated bargaining to enhance their bargaining strength. In order to assure that bargaining is meaningful and orderly, it will be necessary to allow pool voting with the supervision of the President under Article XV, Section 2 of the UPIU Constitution. Should a group of Locals choose this course of action, the following procedures shall apply:

1) Participating Locals shall announce their commitment to allow their votes on a collective bargaining agreement to be pooled with other Locals making the same commitment.

2) The Locals shall agree on major issues they wish to pursue in collective bargaining.

3) Each Local will continue its independent decision making in their separate bargaining units.

4) Votes taken on contract proposals will be tallied at each location. The results will then be sent to the International President who will tally the pooled votes.

The existence of a contract will be governed by Article XV, Section 1 of the Constitution.

The purpose of the pool procedure was stated by the Union as two-fold: (1) to obtain common contract expirations within a recognized pool and (2) to resist concessions. The Union's vice president testified that he declared the pool to be in effect in March 1990. By August 1991 over 20 Locals had joined the pool.

The operation of the voting pool is not completely described in the constitution, but explanatory documents disseminated to Locals in order to encourage their participation in the voting pool provide details:

Under pool voting, local unions voluntarily agree to allow their votes on a contract at their location to be pooled with the votes of other local unions who have joined the pool. After voting, the ballots are sent to the UPIU International President who will tally the votes from all locations in the pool. The contract at any one location is considered ratified only if there is a vote in favor of ratification by a majority of all votes cast in the pooled locals.

In other words, the existence of a contract at any Local is dependent upon the ratification of contract proposals by a majority of those voting in the pooled Locals. Even though one Local may have voted to accept a proposal, failure of a majority "yes" vote within the pool would mean that no contracts would be ratified at any Local within the pool. The Locals were advised by the Union that, upon the completion of voting on a contract proposal, the tallies for the Local should be sent only to the International Union and that the Local should not reveal to the Company the results of the vote. The Union asserts that inclusion within the pool was entirely voluntary. However, it is not clear that Locals had the same flexibility to leave the pool as to join it. Explanatory documents state that a Local may leave the pool "only with the agreement of the other local unions participating in the pool."

The course of bargaining between the Locals and the Company has been significantly affected by implementation of the pooled voting procedure. The expiration dates of contracts between the Company and individual Locals had been staggered, and bargaining for new contracts proceeded to votes at individual Locals at different times. ² By July 1990 three Locals had voted on contracts. These were Local 14, representing employees at the Company's Androscoggin mill in Jay, Maine; Local 620 representing employees at the Company's Erie mill in Erie, Pennsylvania; and Local 197 representing employees at the Company's Strathmore mill in Westfield, Massachusetts.

On March 12, 1990, the Company was informed by officials of Local 14 that the ballots had been sent to the International President in accordance with the pool procedure, and that there could be no contract until the pooled votes were tallied. From that date bargaining ceased at the facility. Voting at the Erie and Strathmore facilities resulted in the acceptance and rejection of Company proposals respectively. Although the Locals had been instructed not to inform the Company of the results of the voting, this direction was not followed. However, the Locals did transmit their ballots to the International President who, in accordance with the pool procedure, would not approve of the agreement reached at the Erie facility until all votes taken within the pool were tallied. Bargaining also ceased for these facilities.

This pattern of bargaining to the point of a vote, followed by the cessation of all bargaining, was repeated at a number of Locals within the pool. At the time of the Director's petition, the results of voting at two facilities were unknown. At three facilities, Local members voted to reject Company offers and negotiations were not resumed. At other facilities, bargaining ceased prior to tender of a final offer because bargaining could not yield a contract until the tally of all pool votes. The result of the pool, as of the time of the filing of this appeal, has been to frustrate the implementation of agreements ratified by individual Locals or to preclude additional bargaining at facilities which have rejected proposals or at those facilities where the results of balloting are unknown.

II.

The NLRB issued complaints on the Company's unfair labor practices charges which were heard by the ALJ in May 1991. The complaints alleged that the Union had violated sections 8(b)(3) and 8(d) of the NLRA by refusing to bargain in a diligent and timely manner and by conditioning an agreement at a given bargaining unit on matters...