NLRB v. Weyerhaeuser Company

• Decision Date: 04 May 1960
• Docket Number: No. 12793.,12793.
• Citation: 276 F.2d 865
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WEYERHAEUSER COMPANY, a Corporation, as successor to the Ace Folding Box Corporation, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

276 F.2d 865 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WEYERHAEUSER COMPANY, a Corporation, as successor to the Ace Folding Box Corporation, Respondent.

No. 12793.

United States Court of Appeals Seventh Circuit.

April 6, 1960.

Rehearing Denied May 4, 1960.

COPYRIGHT MATERIAL OMITTED

Thomas J. McDermott, Associate Gen. Counsel, Melvin J. Welles, Atty., Stuart Rothman, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Alfred Avins, Atty, N. L. R. B., Washington, D. C. for petitioner.

Thomas R. McMillen, Chicago, Ill., James B. Moran, Chicago, Ill., for respondent. Bell, Boyd, Marshall & Lloyd, Chicago, Ill., of counsel.

Benjamin M. Robinson, New York City, Gen. Counsel, Matthew Silverman, New York City, Atty., Amalgamated Lithographers of America, New York City, for Amalgamated Lithographers of America, Amicus Curiae in Support of Petition.

Before HASTINGS, Chief Judge, SCHNACKENBERG and CASTLE, Circuit Judges.

HASTINGS, Chief Judge.

This is a case of first impression before a Court of Appeals testing the appropriateness of a collective bargaining unit composed of lithographic press employees in the paper box industry, a case in which a craft unit was severed from an existing certified industrial union.

It comes before us on the petition of the National Labor Relations Board (Board) pursuant to the provisions of Section 10(e) of the National Labor Relations Act (the Act). 29 U.S.C.A. § 160(e). The Board prays for enforcement of its order issued against Ace Folding Box Corporation requiring that it cease and desist from its refusal to bargain with the duly certified representative of certain employees, the Amalgamated Lithographers of America, AFL-CIO (Lithographers). Subsequent to the Board's issuance of the order, Ace Folding Box Corporation was merged into the Weyerhaeuser Company and dissolved. By order of court, Weyerhaeuser Company presently is the proper respondent. The court denied Lithographers' motion to intervene in this proceeding but granted its alternative request to file a brief amicus curiae.

The chronology of this dispute follows: On February 23, 1958, Lithographers filed a representation petition for a separate craft unit pursuant to Section 9(c) of the Act, 29 U.S.C.A. § 159(c), in which it requested certification as the bargaining representative of all lithographic production employees at respondent's plant in Middlebury, Indiana. At the time the petition was filed, all hourly employees in respondent's plant were represented by the United Paperworkers of America, Local 10181 AFL-CIO (Paperworkers). This certified industrial unit included, among others, letterpress employees, offset press employees, ink mixers and storekeepers, cutting pressmen, glue machine operators, die makers, and maintenance and repair workers. Paperworkers was permitted to intervene in the representation proceeding by virtue of its contract.

The Board found a lithographic craft unit appropriate and defined its scope to include all pressmen, apprentice pressmen, feeders, helpers, and floormen engaged in offset (lithographic) work at respondent's plant, excluding all other employees and supervisors as defined in the Act. The Board directed that an election be conducted among the designated employees.¹

Both respondent and Paperworkers petitioned for reconsideration of the decision, but the Board denied the request. The Board did, however, specifically amend its short-form election specification. It found that in these circumstances either the craft (Lithographers) or the industrial (Paperworkers) unit was appropriate and ordered certification of the union which would receive a majority of votes to be cast.

On July 3, 1958, seventeen eligible employees voted on ballots that gave two choices — representation by Lithographers or by Paperworkers. Twelve employees voted for Lithographers; four, for Paperworkers; and one ballot was void. Consistent with the election results, on July 14, 1958, the Board certified Lithographers as the collective bargaining representative of the lithographic production employees.

Lithographers requested a bargaining conference with respondent on July 22, 1958; respondent has declined to bargain. Upon Lithographers' charge of refusal to bargain, the Board issued an unfair labor practice complaint on November 18, 1958.

At the hearing on the complaint before the trial examiner, the Board, respondent, and Lithographers appeared; Paperworkers was permitted to intervene. Subsequently, the Board adopted the trial examiner's intermediate report which found that respondent had violated Section 8(a) (5) and (1) of the Act, 29 U.S.C.A. § 158(a) (1, 5) by its refusal to bargain with Lithographers. Accordingly, the Board directed respondent to cease and desist from its unfair labor practices, to bargain with Lithographers upon request, and to post appropriate notices. 124 NLRB No. 9 (1959). It is the enforcement of this order that the Board requests.

Respondent's opposition to the enforcement of the order is based on four contentions: (1) the Board's determination that the bargaining unit in question was appropriate constituted arbitrary action and was not supported by substantial evidence; (2) the Board's election procedure was improper inasmuch as (a) it allowed the employees to determine the appropriate unit and (b) the representation ballot offered employees no opportunity to vote "no union"; (3) the Board erred in refusing to consider the effect of Lithographers' disaffiliation from the AFL-CIO after its certification; (4) the Board erred in refusing to consider the effect of Lithographers' alleged violation of the AFL-CIO no-raiding agreement.

Upon examination, we hold that each of respondent's contentions cannot be sustained and that we should enter a decree enforcing the Board's order in full.

I

With reference to respondent's challenge to the appropriateness of the bargaining unit, it is axiomatic that the Board has wide discretion in establishing the correct limits of a bargaining unit. The Board's act of "informed discretion" is based on the particular facts of each case and will be reversed only when there is a capricious and arbitrary exercise of such discretion. We must affirm the Board's factual findings when they are supported by substantial evidence on the record considered as a whole. 29 U.S.C.A. § 160(e). Packard Motor Car Co. v. National Labor Relations Board, 1947, 330 U.S. 485, 491, 67 S.Ct. 789, 91 L.Ed. 1040; International Union, United Auto, Aircraft and Agr. Implement Workers of America v. National Labor Relations Board, 7 Cir., 1956, 231 F.2d 237, 243; National Labor Relations Board v. Esquire, Inc., 7 Cir., 1955, 222 F.2d 253, 256; Allis-Chalmers Mfg. Co. v. National Labor Relations Board, 7 Cir., 1947, 162 F.2d 435, 439; Valley Mould & Iron Corp. v. National Labor Relations Board, 7 Cir., 1940, 116 F.2d 760, 764, certiorari denied 313 U.S. 590, 61 S.Ct. 1114, 85 L.Ed. 1545.

The standards limiting our review apply equally to the Board's original designation of the appropriate bargaining unit (Paperworkers) and to the subsequent situation, as here, where it must determine whether to carve out an appropriate craft unit from an existing industrial unit. The only restriction in the Act itself is the mandate that the Board cannot refuse to sever a craft unit from the existing industrial unit solely on the ground that a different bargaining unit has been established in a prior Board determination. See Section 9(b) (2) of the Act, 29 U.S.C.A. § 159(b) (2).

A résumé of the facts before us indicates that the Board did not act arbitrarily in its severance of a craft unit composed of eighteen lithographic production employees. Respondent is engaged in the manufacture of folding paper boxes. Its production run generally involves printing, cutting, and gluing the raw material, known as paper board. After processing, the empty paper boxes are folded flat, packed and shipped out in such folded condition. Prior to 1956, respondent carried on these activities in a plant in White Pidgeon, Michigan, in which the printing was done solely by letterpress. Late in 1954, the Board ordered a representation election held in that plant; and subsequently, Paperworkers was certified as the bargaining agent for all eligible employees.

In 1956, respondent moved into a new single-floor plant in Middlebury, Indiana. In this plant it installed four letterpresses and added a five color offset (lithographic) press. At the time of the representation hearing respondent was preparing to install a second offset press.

Essentially, a letterpress operation produces the printed impression by pressing an unprinted sheet against a raised, inked surface; it is often described as a "mechanical" operation. "The lithographic process is distinguishable from letterpress printing in that it involves printing from a plane surface and depends for its operations upon a chemical difference between various portions of the surface of the plate used in making the impression. Each step in the process is separate and distinct from that of letterpress." Fey Publishing Company, 108 NLRB 1031, 1032 (1954). The record discloses testimony that the lithographic method of reproduction is used not only on paper but also in the metal decorating and toy industries, in the plastic industry and in the textile industry to decorate cloth.

Respondent employed 100 to 110 hourly employees and 30 to 35 salaried employees in two shifts. Fifteen to twenty employees worked on the letterpresses. Of the remaining hourly employees, Lithographers requested a craft unit composed of "all lithographic production employees." It claimed that at least twelve employees should be included in the unit (two five-color pressmen, two second pressmen, two five-color apprentices, two five-color feeders, and four five-color helpers). It also left to the discretion of the Board the question of whether six floormen should be included in...