Procter & Gamble Mfg. Co. v. N.L.R.B.

Decision Date04 September 1981
Docket NumberNo. 80-1275,80-1275
Citation658 F.2d 968
CourtU.S. Court of Appeals — Fourth Circuit
Parties108 L.R.R.M. (BNA) 2177, 92 Lab.Cas. P 13,015 The PROCTER & GAMBLE MANUFACTURING COMPANY, Port Ivory, New York Plant; Kansas City, Kansas Plant; Dallas, Texas Plant; Baltimore, Maryland Plant, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Guy Farmer, Washington, D. C. (Farmer, Wells, McGuinn, Flood & Sibal, Washington, D. C., Harry L. Browne, James G. Baker, Spencer, Fane, Britt & Browne, Kansas City, Mo., Harold S. Freeman, Gregory L. Hellrung, Dinsmore, Shohl, Coates & Deupree, Cincinnati, Ohio, on brief), for petitioners.

R. Michael Smith, Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., on brief), for respondent.

Before HAYNSWORTH and FIELD, Senior Circuit Judges, and PHILLIPS, Circuit Judge.

JAMES DICKSON PHILLIPS, Circuit Judge:

This case is before us upon the petition of Procter & Gamble Manufacturing Company (Procter & Gamble) to review and set aside a decision and order of the National Labor Relations Board (Board) and upon the Board's cross-application for enforcement of its order. Procter & Gamble Manufacturing Co., 248 N.L.R.B. No. 119 (Apr. 4, 1980).

Procter & Gamble is a national manufacturer with its headquarters in Cincinnati, Ohio. This case involves four Procter & Gamble plants Port Ivory, New York, Kansas City, Kansas, Dallas, Texas, and Baltimore, Maryland and the four independent unions representing employees at these plants. 1 The four unions eventually want to bargain with Procter & Gamble on a multiplant basis. 2 As a step towards this goal, each union, during its collective bargaining agreement's renewal negotiations in 1976 or 1977, attempted to include members of the other three unions on its bargaining committee. Procter & Gamble clearly is opposed to multiplant bargaining and, therefore, it sought to discourage the participation of such "outsiders" 3 in the negotiations.

The unions filed charges with their respective regional Board offices, alleging that Procter & Gamble committed numerous unfair labor practices during the 1976-77 contract renewal cycle. The charges were transferred to the Brooklyn, New York Regional Office, complaints issued, and the cases consolidated before an Administrative Law Judge (ALJ). The ALJ concluded that Procter & Gamble violated subsections 8(a)(1), (3), and (5) of the Act, 29 U.S.C. § 158(a)(1), (3), (5), by engaging in a concerted course of conduct at all four plants which effectively foreclosed the unions' selected outside bargaining representatives from participating in the contract negotiations. He also found unfair labor practices at individual plants. Procter & Gamble Manufacturing Co., No. JD-608-79 (Aug. 31, 1979) (appended to 248 N.L.R.B. No. 119) (Jt.App. at 980). The Board affirmed the ALJ's rulings, findings, and conclusions and adopted his recommended order with slight modification. 248 N.L.R.B. No. 119 (Jt.App. at 1094).

In its petition to this court, Procter & Gamble raises four major objections: (1) the Board erred in finding any unfair labor practices; (2) several allegations are barred by the six-month limitation in subsection 10(b) of the Act, 29 U.S.C. § 160(b); (3) the Board erred in issuing one decision and order for the four distinct plants and unions when there was no single consolidated complaint; and (4) the Board's conclusions, order and notice are too broad. We consider these objections in order and, for the reasons that follow, we find them without merit. Accordingly, except for that portion of the Board's order directing Procter & Gamble to sign the now expired 1977 Kansas City agreement, we grant enforcement.

I

The following facts are supported by substantial evidence on the record. Each of the unions involved in this case is an independent labor organization and the recognized bargaining representative for the employees at its respective plant. For numerous years, each union has negotiated and executed collective bargaining agreements for its unit. Before 1976-77, each union was represented at contract negotiations by a bargaining committee composed solely of its members, although the union's attorney occasionally attended the bargaining sessions too. Negotiations were held at the plant and Procter & Gamble paid the employee negotiators for the work time they lost while in negotiations.

In 1968, several independent unions representing Procter & Gamble employees formed an "Amalgamation," which by 1971 consisted only of the four unions in this case. 4 One of the Amalgamation's aims is to establish a multiplant bargaining unit. At the Amalgamation's September 1975 meeting, the four unions decided to further this goal by including the outsiders on their bargaining teams during the upcoming contract renewal negotiations. This was, however, the only contemplated change in bargaining procedure. The Amalgamation's proposed plan was published in the Port Ivory union's October 7, 1975 bulletin; thus by early 1976, Procter & Gamble was alerted to the unions' plan.

The four contracts expired on different dates. Renewal negotiations accordingly began at Port Ivory on October 6, 1976, at Kansas City on January 9, 1977, at Dallas on March 25, 1977, and at Baltimore on July 18, 1977. Upon learning of the unions' plan to include outsiders, Procter & Gamble management at each plant responded in a nearly identical manner shortly before negotiations were to begin. Initially management asserted that negotiations could not be held on the plant premises because each plant had a security, or access, rule which restricted any visitors, including employees from other Procter & Gamble plants, from entering the plant except on a guided tour. Management then suggested that, as an accommodation to the union's insistence upon including outsiders, the negotiations could be held at alternative facilities, such as local motels, with the parties sharing the rental costs. In addition, Procter & Gamble would no longer pay local employee negotiators. Each union protested these changes but, because its contract was due to expire, the union eventually negotiated with Procter & Gamble under these forced conditions.

Each union managed to include three outsiders on its team for the opening negotiation session. The outsiders were introduced as members of the union's bargaining committee present to negotiate a contract for only that union. In each case management, using a series of prepared written questions furnished by Procter & Gamble's industrial relations department at its Cincinnati headquarters, then asked the outsiders about their role and purpose in participating in the negotiations. 5

The Port Ivory renewal negotiations serve as a detailed example of Procter & Gamble's concerted opposition to the outsiders. When the division manager, Philip Robinson, learned that the Port Ivory union intended to include outsiders, he consulted with Bob Larsen, a member of Procter & Gamble's industrial relations staff in Cincinnati, about the union's plan. Larsen informed Robinson that legally the union could select whomever it wanted to represent it in collective bargaining negotiations. He suggested, however, that since the union was making a change in its team composition, Procter & Gamble also could change the procedural ground rules. Larsen reminded Robinson of the plant's security rule.

Robinson then urged the Port Ivory union to use only local employees on its committee and to bargain as it had in the past. The union refused to comply or to name the outsiders who would participate. Consequently in September 1976, Robinson told the union that if it insisted on including outsiders, negotiations could not be held on the plant premises because of the security rule 6 and that Procter & Gamble would not pay employee negotiators. The union responded that it had no choice but to hold the negotiations outside the plant and offered its union hall as an alternative site. Procter & Gamble refused to meet at the union hall, so negotiations were held at various local motels with the parties sharing the rental cost of the facilities.

At the first meeting on October 6, 1976, three outsiders were present: Omer Jones (Kansas City), Hoyt Middlebrooks (Dallas), and Raymond Bramble (Baltimore). Port Ivory union president, Ken McCauley, introduced the three as members of the union's bargaining committee and stated that they were present to negotiate a contract for only Port Ivory. Robinson then asked each outsider the series of prepared written questions received from Larsen about their role and purpose in participating in the bargaining. After his interrogation, Robinson adjourned the meeting to study the ramifications of having outsiders present. Thirteen additional sessions were held in which outsiders did not participate and an agreement was reached and signed on November 16, 1976.

At Kansas City, Dallas, and Baltimore, the same sequence of events unfolded: management refused to hold negotiations on the plant premises if outsiders participated because of the security rule and it discontinued paying local employee negotiators; the unions protested these changes but eventually agreed to meet at local motels, thereby incurring half the rental cost of these alternative facilities; and at each opening session, the Procter & Gamble representative asked the outsiders the questions furnished by the industrial relations staff even though the outsiders had been introduced as members of the negotiating union's bargaining committee.

Aside from the opening session for each plant and one afternoon session of the Dallas negotiations, outsiders did not otherwise participate in the bargaining. 7 Because negotiations were held during weekday working hours, outsiders had to...

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