Boise Cascade Corp. v. N.L.R.B., s. 87-1154
| Decision Date | 04 November 1988 |
| Docket Number | 87-1197,Nos. 87-1154,s. 87-1154 |
| Citation | 860 F.2d 471 |
| Parties | 129 L.R.R.M. (BNA) 2744, 273 U.S.App.D.C. 386, 110 Lab.Cas. P 10,818 BOISE CASCADE CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Local 771, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, et al., Intervenors. LOCAL UNION 159, UNITED PAPERWORKERS INTERNATIONAL UNION, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Boise Cascade Corporation, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Emery W. Bartle, with whom Mark B. Rotenberg, Minneapolis, Minn., was on the brief, for petitioner Boise Cascade Corp. in No. 87-1154 and intervenor Boise Cascade Corp. in No. 87-1197.
William D. Watters, with whom Steven W. Schneider, Duluth, Minn., was on the brief, for petitioners, Local Union 159, United Paperworkers Intern. Union, et al. in No. 87-1197 and intervenors Local Union 771, United Ass'n of Journeymen, et al. in No. 87-1154.
Patrick J. Szymanski, Attorney, N.L.R.B., with whom Robert E. Allen, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel and Peter Winkler, Supervisory Atty., N.L.R.B., were on the brief, for respondent, Elliott Moore, Paul J. Spielberg, and Margery E. Lieber, Attorneys, N.L.R.B., Washington, D.C., also entered appearances for respondent.
Before SILBERMAN and SENTELLE, Circuit Judges, and GREENE, * District Judge, United States District Court for the District of Columbia.
Opinion for the Court filed by District Judge HAROLD H. GREENE.
These consolidated petitions for review, and cross-application for enforcement, require us to consider the validity of a National Labor Relations Board decision involving the Boise Cascade Corporation and eight unions at the company's facility in Minnesota. The Board found, first, that the company had violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), (5) (1982), 1 when it insisted to bargain to impasse, and then unilaterally implemented, a proposal it had made with respect to its five maintenance unions, 2 and second, that the company had not violated the Act by demanding that three of its unions which represent only production workers 3 agree to the proposal relating to the maintenance unions. For the reasons explained below, we agree with the Board on both aspects of its decision. Accordingly we deny the petitions for review filed by the company and the production unions, 4 and we grant the Board's cross-application for enforcement.
In 1965, Boise Cascade purchased a paper mill 5 in International Falls, Minnesota. At that time, and through 1984, the employees were divided into nine bargaining units, 6 each with its own collective bargaining agreement. Each contract contained jurisdictional provisions defining the work covered by the agreement and provided that this work would be performed only by employees operating under that contract. In the jurisdiction clause or in a separate paragraph, each contract also described the employees represented by the particular union. In 1984, Boise Cascade proposed the elimination of the jurisdictional rules so as to enable it to require employees in the various classifications to perform work outside their particular crafts. Specifically, the company bargained for the ability to assign maintenance employees to maintenance tasks entirely unrestricted by their unit designations.
These proposals were discussed for some period of time between the company and the unions. Subsequently, in the course of formal contract negotiations, Boise Cascade proposed the placement of all current maintenance employees into one of three broad new "general mechanic" categories: pipefitter, millwright, and electrical/instrument. The company proposal also would have eliminated all jurisdictional and unit description provisions, replacing them with a clause giving the company the unrestricted right to assign work to any employee. 7
The unions stated in response that they were willing to discuss the company's interest in greater flexibility in the assignment of work, but they opposed the elimination of the existing unit descriptions and maintenance classifications. 8 Eventually, by a letter dated June 25, 1985, the company declared that the negotiations were at an impasse, it announced its intention to implement its final offer on July 1, 1985, and it did in fact unilaterally implement the offer on that date.
The Board's General Counsel filed and prosecuted an unfair labor practice complaint against the company before and administrative law judge; Boise Cascade took exception to the ALJ decision in favor of the unions; and the National Labor Relations Board, affirming the decision of the ALJ, found that the company had violated sections 8(a)(5) and (1) of the Act with regard to the five maintenance unions. The Board's order requires the company to cease and desist and to bargain with these unions, 9 and it orders the company to rescind any unilateral changes. 10
The company contends, correctly, that the determination of whether a particular proposal is a mandatory subject of bargaining depends upon the application of the law to the facts, with the legal standard ultimately within the province of the courts. Ford Motor Co. v. NLRB, 441 U.S. 488, 495-97, 99 S.Ct. 1842, 1848-49, 60 L.Ed.2d 420 (1979); Allied Chemical and Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 182, 92 S.Ct. 383, 399, 30 L.Ed.2d 341 (1971). Nevertheless, where the Board's construction of the statute is "reasonably defensible," Ford Motor Co., supra, 441 U.S. at 497, 99 S.Ct. at 1849, and the Board's determination is supported by substantial evidence, we ordinarily defer to the Board's application of "the general provisions of the Act to the complexities of industrial life." NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1150, 10 L.Ed.2d 308 (1963). We find neither misconstruction of the law nor a want of substantial evidence in the case before us.
It is well settled that the scope of the employees' bargaining unit is not a mandatory subject of bargaining. Cf. Shell Oil Co., 194 N.L.R.B. 988, 995 (1972), enf'd sub nom., OCAW v. NLRB, 486 F.2d 1266, 1268 (D.C.Cir.1973); Newspaper Printing Corp. v. NLRB, 625 F.2d 956, 963 (10th Cir.1980), cert. denied, 450 U.S. 911, 101 S.Ct. 1349, 67 L.Ed.2d 335 (1981).
It is the company's position that its proposal merely affected work assignments and jurisdiction--two subjects which are mandatory subjects of bargaining and which therefore may be bargained to impasse and implemented unilaterally by the company upon impasse. In the labor law context, jurisdiction 11 refers to the type of work the members of the union are to perform; 12 the scope of the bargaining unit is determinative of what employees the unit represents. The two concepts are not always easy to distinguish in practice and, in fact, under some of Boise Cascade's prior labor agreements, unit description and jurisdiction were combined in a single recognition clause. Nevertheless, whatever the difficulty, it is clear that an employer may not, "under the guise of the transfer of unit work ... alter the composition of the bargaining unit." Newport News Shipbuilding and Dry Dock Co. v. NLRB, 602 F.2d 73, 77-78 (4th Cir.1979).
The reasons why the law does not sanction a unilateral change by the employer in the scope of the bargaining units are as simple as they are fundamental. As the Board's General Counsel explained in an Advice Memorandum, unilateral changes in the unit description are unlawful first, because a union has a right to have its authority recognized in the collective bargaining agreement, and second, because the existence of a defined unit is a prerequisite to bargaining over terms and conditions of employment, for parties cannot bargain unless they know which employees a union represents. Beaver County Times, 99 L.R.R.M. 1726, 1727 (1978).
More basically, if an employer could vary unit descriptions at its discretion, it would have the power to sever the link between a recognizable group of employees and its union as the collective bargaining representative of these employees. This, in turn, would have the effect both of undermining a basic tenet of union recognition in the collective bargaining context and of greatly complicating coherence in the negotiation process. Once an appropriate bargaining unit has been established, the statutory interest in stability and certainty in bargaining obligations requires adherence to that unit. Shell Oil Co., supra. Indeed, the "parties cannot bargain meaningfully about wages or hours or conditions of employment unless they know the unit of bargaining." Douds v. International Longshoremen's Association, 241 F.2d 278, 282 (2d Cir.1957).
The Douds decision, by general agreement a leading authority on the subject of bargaining over unit scope, explained that this subject is a non-mandatory subject of bargaining because the parties must mutually understand which employees will be affected by their negotiations, and because to allow a party to insist upon a change in the scope of a bargaining unit would subvert the authority of the Board to make binding determinations regarding the appropriateness of bargaining units. 241 F.2d at 282-83. We agree with that reasoning. It follows that neither an employer nor a union has the unilateral power to modify the scope of the bargaining unit as determined by the Board, whether following bargaining to impasse or otherwise.
With respect to the instant proceeding, the Board found that the company proposal, although it also affected work assignments and jurisdiction, in its essence effected an alteration of the scope of the bargaining units. That finding is plainly supported by the evidence.
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