Vermont Marble Co.

National Labor Relations Board - Board Decisions

Jan 15, 1991

301 N.L.R.B. 103 (N.L.R.B. 1991)

103
301 NLRB No. 13
VERMONT MARBLE CO.
1 In adopting the judge’s finding, we do not rely on Braeburn Alloy Steel,
202 NLRB 1127 (1973), cited in fn. 4 of the judge’s decision. Contrary to
the judge, it was agreed in that case that the local union was not a recognized
bargaining agent, either individually or jointly with the International. In this
case, whether the local unions are bargaining agents of the Respondents’ em-
ployees is the principal issue to be decided.
In affirming the judge’s finding, we also observe that art. XVII, sec. 3 of
the International Union’s constitution states that ‘‘The International Union and
the Local Union to which the member belongs shall act exclusively as the
member’s agent to represent the member in the presentation, maintenance, ad-
justment, and settlement of all grievances and other matters relating to terms
and conditions of employment or arising out of the employer-employee rela-
tionship.’’ (Emphasis added.) Although that language would be consistent with
a finding that the International and the local unions were joint representatives
of the Respondents’ employees, it is equally consistent with the judge’s find-
ing that the locals here function, in effect, as the International’s agents and
not as representatives in their own right.
The judge adverted to an incident in which local bargaining committee
members clashed with the International representative over a contract proposal.
Contrary to the judge’s indication, that episode took place in negotiations with
Vermont Marble, not White Pigment. We correct this inconsequential error.
2 As is fully set forth in the judge’s decision, the locals to which the em-
ployees formerly belonged were merged into a different local, Local 4, in early
1989. The Respondents contend that the mergers created questions concerning
representation. The judge found, however, that the International alone was the
bargaining representative, and therefore, in effect, that the mergers effected no
change in the identity of the bargaining representative and that no question
concerning representation had been raised.
3 The judge stated that the General Counsel had not pursued those allega-
tions in his brief. We disagree. Although the General Counsel’s brief to the
judge contained virtually nothing in the way of argument or analysis on this
point, it specifically stated that the withdrawal of recognition was an issue for
the judge to decide.
4 All dates are in 1989.
5 Case 1–RM–1208 (White Pigment) and Case 1–RM–1209 (Vermont Mar-
ble). Both petitions have since been dismissed under the Board’s blocking
charge rule.
6 Each letter also bears the inscription ‘‘cc: Mr. Francis Farrell.’’ Francis
Farrell is the International Union staff representative who attended the most
recent negotiations with the Respondents. It thus appears that the International
was notified of the Respondents’ positions set forth in their May 31 letters.
7 As they had in their RM petitions filed with the Regional Office.
Vermont Marble Company and White Pigment
Corporation and United Steelworkers of Amer-
ican, AFL–CIO–CLC. Cases 1–CA–26372–1 and
1–CA–26372–2
January 15, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On June 18, 1990, Administrative Law Judge Ste-
phen J. Gross issued the attached decision. The Gen-
eral Counsel and the Respondents filed exceptions and
supporting briefs; the Charging Party filed cross-excep-
tions and a supporting brief; and the General Counsel
filed a brief in reply to the Respondents’ exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found, and we agree, that the Charging
Party (the International Union) is and at all relevant
times has been the sole bargaining representative of the
Respondents’ bargaining unit employees.1 We there-
fore adopt his finding that the Respondents violated
Section 8(a)(5) and (1) of the Act by ceasing to make
contractually mandated payments of union dues to the
International and, instead, placing those sums in es-
crow pending the resolution of the dispute over the
identity of the employees’ bargaining representative.2
The judge, however, dismissed the allegations that
the Respondents violated Section 8(a)(5), on or about
April 21, 1989, by withdrawing recognition from the
International.3 The General Counsel and the Inter-
national have excepted to those dismissals. We find
merit to their exceptions.
Following the mergers of Locals 22A, 26, and 30A
(to which employees of Vermont Marble belonged)
and 15306 (to which employees of White Pigment be-
longed) into Local 4, the Respondents, by letters dated
April 21, 1989,4 informed the International that they
declined to recognize Local 4 as their employees’ bar-
gaining representative absent a Board-conducted elec-
tion. On April 24, the Respondents filed RM petitions
with the Regional Office, in which they stated that the
original locals were their employees’ bargaining rep-
resentatives and that the mergers of those locals into
Local 4 created questions concerning representation.5
By letters dated May 5, the International’s attorneys
informed the Respondents that ‘‘The bargaining agent
and the contracting party for your employees has been,
and will continue to be, the International Union and
not any of the locals. Please refer to Article One of the
agreement. Your company is not requested to recog-
nize Local 4.’’ (Emphasis in the original.) By letters
dated May 31, however, the Respondents informed of-
ficers of Locals 26, 22A, and 153066 that it had al-
ways been the Respondents’ position that the locals
represented unit employees; that its obligation to check
off union dues ended with the locals’ merger into
Local 4; and that, because of their dispute with the
International (which contended that it was the employ-
ees’ sole representative), they would place checked-off
dues in escrow pending the resolution of the dispute.
We find, contrary to the judge, that by the course
of conduct just described, the Respondents unlawfully
withdrew recognition from the International Union. Al-
though the Respondents only refused, in so many
words, to recognize Local 4 in their April 21 letters,
they made clear in their letters of May 317 that it was
their position that the original locals were the rep-
resentatives of unit employees, even though the Inter-
national Union had informed them, correctly, that it,
and not any of the locals, was the bargaining agent. On
that basis alone, the Respondents discontinued making
104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The judge apparently dismissed the withdrawal of recognition allegations
because he found no evidence that the Respondents withdrew recognition on
April 21. We think that is an unnecessarily narrow reading of the complaint
allegations and the evidence in this case. In the first place, the complaint al-
leges that recognition was withdrawn on or about April 21, not on that date,
as the judge stated. More important, although the Respondents’ April 21 letters
did not, in themselves, state a refusal to recognize the International, they were
the first links in a chain of conduct that clearly constituted withdrawal of rec-
ognition from the International. That the import of the Respondents’ actions
probably did not become clear to the International until later does not mean
that the withdrawal of recognition had not been set in train around April 21,
as the complaint alleges. In any event, a discrepancy of only a few weeks be-
tween the date on which the complaint alleges a violation occurred and the
date on which the evidence establishes the violation did occur will not in itself
prejudice the Respondent. See Siracusa Moving & Storage, 291 NLRB 143
(1988). Thus, even if we were to find that the withdrawals of recognition did
not actually occur until late May, we still would find them comprehended by
the language of the complaint.
9 The judge inadvertently excluded from his recommended Order the re-
quirement that the Respondents notify the Regional Director of the steps they
have taken to comply. We shall include such a provision in our amended
Order.
10 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
the contractually required dues payments to the Inter-
national, which, as we have found, was the sole rep-
resentative. The Respondents’ insistence that only the
original locals, either individually or jointly with the
International, were their employees’ bargaining rep-
resentatives was tantamount to a refusal to recognize
any other entity, including the International, as the ex-
clusive representative. The refusal to recognize the
International violated Section 8(a)(5) and (1).8
Having found that the Respondents unlawfully with-
drew recognition from the International Union, we
shall amend the judge’s recommended Order to require
the Respondents to cease and desist and, on request, to
recognize and bargain with the International Union as
the exclusive representative of employees in the appro-
priate units.9
ORDER
The National Labor Relations Board orders that the
Respondents, Vermont Marble Company, Proctor,
Vermont, and White Pigment Corporation, Florence,
Vermont, their officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Unlawfully failing to remit to the United Steel-
workers of America, AFL–CIO–CLC (the Inter-
national), dues withheld from employees’ pay pursuant
to valid dues-checkoff authorizations.
(b) Failing and refusing to recognize the Inter-
national as the exclusive bargaining representative of
the employees of the Respondents in the units found
appropriate.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain with the
International as the exclusive representative of the em-
ployees in the following appropriate units concerning
terms and conditions of employment:
(1) All hourly paid production and maintenance
employees employed by White Pigment at its
Florence, South Wallingford, and New Haven,
Vermont plants, including truck drivers, but ex-
cluding office clerical employees, technical em-
ployees, over-the-road truck drivers under private
contract, guards and supervisors as defined in the
Act.
(2) All full-time production, maintenance, and
power employees of Vermont Marble Company at
its Center Rutland, Danby, Proctor, Weybridge,
and New Haven, Vermont facilities, including
core drill operators, truck drivers, and automobile
repairmen, but excluding chauffeurs, office jani-
tors, office clerical employees, guards and super-
visors as defined in the Act.
(b) In the manner set forth in the remedy section of
the judge’s decision, remit to the International, with in-
terest, the dues they withheld, or should have withheld,
from their employees’ pay, but which they did not
remit to the International.
(c) Post at each of their facilities in Vermont copies
of the attached notice marked ‘‘Appendix A’’ (in the
case of Vermont Marble) or ‘‘Appendix B’’ (in the
case of White Pigment).10 Copies of the notices, on
forms provided by the Regional Director for Region 1,
after being signed by the Respondents’ authorized rep-
resentatives, shall be posted by the Respondents imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondents to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondents have taken to comply.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
105VERMONT MARBLE CO.
1 The International filed unfair labor practice charges against Vermont Mar-
ble in Case 1–CA–26372–1 and against White Pigment in Case 1–CA–26372–
2 on May 11, 1989, and amended its charges on June 22. The complaint dated
July 11, 1989, was amended at the hearing. The Respondents admit that they
are employers engaged in commerce for purposes of the National Labor Rela-
tions Act (the Act) and that the International is a labor organization. I heard
the case in Proctor, Vermont, on February 7, 1989. Briefs have been filed by
the General Counsel, by the International, and by the Respondents. The Re-
spondents have filed an unopposed motion to correct the transcript. I grant the
motion.
2 The bargaining unit consists of:
Continued
WE WILL NOT unlawfully fail to remit to the United
Steelworkers of America, AFL–CIO–CLC (the Inter-
national), dues that we withheld or should have with-
held from employees’ pay pursuant to dues-checkoff
authorizations.
WE WILL NOT fail and refuse to recognize the Inter-
national as the exclusive representative of our bar-
gaining unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL remit to the International, with interest, the
dues that we withheld, or should have withheld, from
our employees’ pay and that we should have, but did
not, pay to the International.
WE WILL recognize and, on request, bargain with the
International as the exclusive representative of employ-
ees in the following appropriate unit:
All hourly paid production and maintenance em-
ployees at our Florence, South Wallingford, and
New Haven, Vermont plants, including truck driv-
ers, but excluding office clerical employees, tech-
nical employees, over-the-road truck drivers under
private contract, guards and supervisors as defined
in the Act.
WHITE PIGMENT COMPANY
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT unlawfully fail to remit to the United
Steelworkers of America, AFL–CIO–CLC (the Inter-
national), dues that we withheld or should have with-
held from employees’ pay pursuant to dues-checkoff
authorizations.
WE WILL NOT fail and refuse to recognize the Inter-
national as the exclusive representative of our bar-
gaining unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL remit to the International, with interest, the
dues that we withheld, or should have withheld, from
our employees’ pay and that we should have, but did
not, pay to the International.
WE WILL recognize and, on request, bargain with the
International as the exclusive representative of employ-
ees in the following appropriate unit:
All full-time production, maintenance, and power
employees at our Center Rutland, Danby, Proctor,
Weybridge, and New Haven, Vermont facilities,
including core drill operators, truck drivers, and
automobile repairmen, but excluding chauffeurs,
office janitors, office clerical employees, guards
and supervisors as defined in the Act.
VERMONT MARBLE COMPANY
Michael Fitzsimrnons, Esq., for the General Counsel.
Ellen Kearns, Esq. and David S. Rubin, Esq. (Kearns & As-
sociates), of Boston, Massachusetts, for the Respondents.
Shailah T. Stewart, Esq. (Angoff, Goldman, Manning, Pyle,
Wanger & Hiatt), of Boston, Massachusetts, for the Charg-
ing Party.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. This case
presents the issue of whether, as of 1989, the United Steel-
workers of America (the Internatonal) alone was the collec-
tive-bargaining representative of the bargaining unit employ-
ees at Vermont Marble Company and White Pigment Com-
pany, or whether the employees at each of those two compa-
nies were represented jointly by the International and certain
local unions. If the International alone was the collective-bar-
gaining representative, then, for reasons that will be dis-
cussed below, both Vermont Marble and White Pigment (col-
lectively the Respondents) violated Section 8(a)(5) and (1) of
the National Labor Relations Act (the Act). If the Inter-
national and the local unions jointly represented the Re-
spondents’ employees, neither of the Respondents violated
the Act in any respect.1
For the reasons set out in the following pages, my conclu-
sion is that the International alone was, and is, the exclusive
bargaining representative of the Respondent’s bargaining unit
employees.
Although the General Counsel’s cases against White Pig-
ment and Vermont Marble are remarkably similar, it will
make for easier reading to discuss them separately. I accord-
ingly first turn to the General Counsel’s claim that White
Pigment violated Section 8(a)(5).
The General Counsel’s Case Against White Pigment
White Pigment is in the business of grinding marble into
powder. (The powder is used in the manufacture of paints,
plastics, paper, and foodstuffs.) White Pigment has facilities
in Florence and New Haven, Vermont. The Company’s bar-
gaining unit employees are members of Steelworkers Local
15306.2
106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees employed at White Pig-
ment’s Florence, South Wallingford, and New Haven, Vermont plants, in-
cluding truck drivers, but excluding office clerical employees, technical
employees, over-the-road truck drivers under private contract, guards and
supervisors as defined in the Act.
3 See, e.g., a case cited by the Respondents, BASF-Wyandotte Corp., 276
NLRB 498, 599 (1985). It involved joint representation by an international
union and a local union, and the collective-bargaining agreement specifically
referred to both the international union and the local union.
4 See, e.g., Braeburn Alloy Steel, 202 NLRB 1127 (1973), a case involving
both the Steelworkers International Union and a Steelworkers local union. The
Board there simply assumed that ‘‘the United Steelworkers of America, AFL–
CIO,’’ meant only the International.
Early in 1989 the International merged Local 15306 into
a much larger Steelworkers’ local, Local 4. The International
merged the two locals without providing the members of
Local 15306 with the procedural safeguards that the Board
requires. Further, White Pigment contends, and the General
Counsel and the International do not dispute, that there is no
substantial continuity between premerger Local 15306 and
postmerger Local 4. (See generally NLRB v. Food & Com-
mercial Workers Local 1182, 475 U.S. 192 (1986).) There-
after White Pigment advised the International that the Com-
pany would not recognize Local 4 as a bargaining representa-
tive of its employee, and White Pigment began escrowing the
union dues it collected from its employees (pursuant to
checkoff authorizations) rather than forwarding the moneys
to the International.
The General Counsel and the International agree that if
Local 15306 was a bargaining representative of the White
Pigment employees, whether alone or jointly with the Inter-
national, at the time of its merger into Local 4, a question
concerning representation arose and White Pigment lawfully
could refuse to bargain further with either Local 4 or the
International. But the General Counsel and the International
take the position that the International alone was (and is) the
exclusive bargaining representative of the Company’s bar-
gaining unit employees. If that is the case, then Local
15306’s merger into Local 4 is beside the point insofar as
White Pigment’s obligations are concerned.
Contract Provisions
Two collective-bargaining contracts covering White Pig-
ment’s bargaining unit employees are in evidence. One is for
the period 1984–1987 (the 1984 contract) and the other for
the period 1987–1990 (the 1987 contract). Both contracts
refer to a Board ‘‘certification of representative dated May
8, 1963.’’ Unfortunately, the record tells us nothing about
what that certification says.
That means that a determination of who represents the
White Pigment employees—just the International, or the
International jointly with Local 15306—is going to have to
be based on: (1) the language of the contracts themselves;
and (2) other evidence describing the various relationships
between White Pigment, the International, and Local 15306.
(The General Counsel contends that the parol evidence rule
renders immaterial evidence outside the 1987 contract. I will
discuss that contention later in this decision.)
The first thing about the 1984 and 1987 contracts is their
covers. And the covers of both contracts read: ‘‘Agreement
between White Pigment Corporation and United Steelworkers
of America, AFL–CIO–CLC.’’
Then, turning to the first page of text (of both contracts),
the contacts read:
AGREEMENT
This Agreement made and entered into this [date] by
and between WHITE PIGMENT CORPORATION,
hereinafter referred to as ‘‘the Company,’’ and
UNITED STEELWORKERS OF AMERICA AFL–
CIO–CLC, hereinafter referred to as ‘‘the Union.’’
WITNESSETH
The Company and the Union hereby agree as fol-
lows:
ARTICLE I—RECOGNITION
Section 1. The Company recognizes the Union as the
sole exclusive representative for the purposes of collec-
tive bargaining in respect to rates of pay, wages, hours
of employment, and other conditions of employment, of
all [bargaining unit] employees . . . .
The Respondents’ arguments in response to that language
take two tacks. One is that other language of the White Pig-
ment collective-bargaining contracts themselves shows that
the words ‘‘United Steelworkers of America AFL–CIO–
CLC’’ (and, therefore, the term the Union), as used in those
contracts, includes Local 15306, along with the International.
The other is that even if the words of the contracts do not
so indicate, evidence about collective bargaining and griev-
ance processing shows that Local 15306 is in fact a collec-
tive-bargaining representative of the bargaining unit employ-
ees.
What does ‘‘United Steelworkers of America’’ mean, as
used in the White Pigment collective-bargaining contract? In
my decade or so of hearing cases arising under the Act, I
have never come across a collective-bargaining agreement
that refers to the ‘‘United Steelworkers of America’’ (or to
the United Mine Workers of America, or the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers, etc.), and that does not specify a local union, in
which the parties intended the reference to be to a local
union along with (or instead of) the International union. The
Respondents have not pointed to any. And any perusal of
Board cases will show that where the parties to a contract
want to refer to a local union, they say so, including where
they want to refer jointly to an international union and a
local union.3 In Industrial America, that is to say ‘‘United
Steelworkers of America’’ means the International alone; it
does not mean the International and one or more local
unions.4
Perhaps I should now simply conclude that the Inter-
national was the exclusive collective-bargaining representa-
tive of White Pigment’s bargaining unit employees and that,
accordingly, White Pigment violated Section 8(a)(5). But in-
stead, I am going to assume that the parties to the 1984 and
1987 contracts might conceivably have intended that Local
15306 be a collective-bargaining representation of White Pig-
ment’s employees even though the contracts state that White
Pigment’s recognizes the ‘‘United Steelworkers of America,
AFL–CIO–CLC,’’ as the ‘‘sole exclusive representative’’ of
the employees, and even though ‘‘United Steelworkers of
107VERMONT MARBLE CO.
5 References to the White Pigment contracts will be to both the 1984 and
1987 contracts unless otherwise specified.
6 The International may, of course, properly confer on a local union the au-
thority to act as its agent on matters relating to the representation of unit em-
ployees. Rath Packing Co., 275 NLRB 255 (1985).
7 The International’s penchant for using the undefined term ‘‘the Inter-
national Union’’ as distinguished from ‘‘the Union,’’ in contracts that define
‘‘the Union’’ to mean the International has led to other judicial headscratching.
See L. O. Koven & Bro. v. Steelworkers Local 5767, 250 F.Supp. 810, 813
(D.N.J. 1966).
America, AFL–CIO–CLC,’’ in all other contexts invariably
refers to the International, exclusively.
Distinctions in the contracts between ‘‘union and Inter-
national Union’’ Given the definition of ‘‘the Union,’’ as
quoted earlier, one might expect a contract provision requir-
ing the Company to remit checked-off union dues to the
International’s treasurer to refer to ‘‘the Treasurer of the
Union.’’ Instead the contracts refer to ‘‘the International
Treasurer’’ (art. 155). Similarly the contracts provide for the
right of visitation to White Pigment’s facilities ‘‘by Inter-
national Union representative’’ (art. 16).
But it is in reference to grievance processing that the con-
tract language is most startling. According to article 9 of the
contracts, the second step of the grievance process involves
‘‘the Union representative.’’ But the third step involves ‘‘the
Union representative and the International Union representa-
tive.’’ Finally, ‘‘If the Company has any grievance or com-
plaint it may take it up with the Internatiolnal Union rep-
resentative.’’
The references to ‘‘the International Union’’ constitute, to
say the least, inelegant drafting, given the earlier definition
of ‘‘the Union.’’ And one way to make sense out of the
‘‘Union’’-‘‘International Union’’ phraseology in the quoted
passages is to conclude that employees are represented by
both the Local and the International. But that interpretation
makes nonsensical the contract’s definition of ‘‘the Union.’’
A second approach to interpreting the provisions at issue
is to assume that, for some purposes, members of the Local
may serve as agents of the International in respect to matters
affecting the Local’s members. Once that is assumed, then
the reason for the distinctions in the contract between
‘‘Union representative’’ and ‘‘International Union representa-
tive’’ becomes obvious. Those distinctions merely represent
the contract’s inartistic way of specifying when something
must be done by an official of the International rather than
by a member of the local whom the International authorized
to act on the International’s behalf.
The International’s constitution is relevant in this respect.
Article XVII of the International’s constitution states that
‘‘the International Union shall be the contracting party in all
collective-bargaining agreements.’’ But the constitution (in
the same article) also provides that the ‘‘International Union
and the Local Union to which the member belongs shall act
exclusively as the member’s agent to represent the member
in . . . all grievances.’’6 The contract language referring to
‘‘Union’’ and ‘‘International Union’’ representatives obvi-
ously stems from the role in grievance processing that the
International’s constitution gives to the local.7
I conclude that the references in the 1984 and 1987 con-
tracts to ‘‘the International Union,’’ as distinct from ‘‘the
Union,’’ do not require me to find that the parties intended
the Local to be a joint representative of the employees, along
with the International. It is true that those references would
be consistent with such an intention. But they are also con-
sistent with an intention on the parties’ part that members of
Local 15306 from time to time serve as agents of the Inter-
national.
The Signature Pages of the 1984 and 1987 Contracts
The Respondents contend that the signature pages of the
1984 and 1987 contracts show that Local 15306 represented
the bargaining unit employees jointly with the International.
The 1984 Contract
Recall that the first page of text of the 1984 contract
specifies that the agreement is between White Pigment and
the United Steelworkers of America, that the Company rec-
ognizes ‘‘the Union as the sole exclusive representative for
the purpose of collective bargaining’’ and ‘‘the Union,’’ in
turn, is defined as the United Steelworkers of America.
Under these circumstances, if the signature page of the con-
tract were to evidence joint representation by the Inter-
national and Local 15306, the writing on the page would in
the very least have to specify that Local 15306 was a party
to the contract and that the officials of the Local signed the
contract as such and not as agents of the International.
The signature page of the 1984 contract looks like this
(with capitalization as in the original):
IN WITNESS WHEREOF, this Agreement is exe-
cuted in duplicate originals on the day above written on
behalf of the Company by its duly authorized represent-
ative and on behalf of the Union by its duly authorized
representatives.
United Steelworkers of America, AFL–CIO–CLC
United Steelworkers of White Pigment
America Corporation
AFL–CIO–CLC
llllllllll Bylllllllll
[name] [name], President
International President
llllllllll Local Union 15306
[name] Committee
International Secretary
llllllllll llllllllll
[name] [name]
International Treasurer
llllllllll llllllllll
[name] [name]
International Vice
President
(Administration)
108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 That tallies with the testimony of an International representative that the
members of the Local 15306 committee who participated in the bargaining
‘‘are duly elected representative[s] of the United Steelworkers of America
along with myself.’’
9 Even had the page not been clear that the committee members were sign-
ing as representatives of the Internatinal, and even had those committee mem-
bers all been officials of Local 15306 and signed it as such, that still would
not be proof that the Local was a joint collective-bargaining representative.
See North American Phillips Co., 78 NLRB 666, 668 (1948) (the contract stat-
ed that a local union was sole bargaining representative; the Board deemed
the International to be ‘‘merely a nominal party’’ to the contract despite the
signature on the contract of an International official in his official capacity).
10 Pages are mixed up in the 1987 contract (G.C. Exh. 4). (An attempt was
made at the hearing to straighten things out. See Tr. 46. But it was not quite
right.) There are two signature pages in the document, pp. 19 and 20. But the
signatures on p. 19 relate to the pension plan on pp. 21–22. The signatures
that relate to the collective-bargaining contract are on page 20. (that is clear
both from an examination of pp. 18–22, and from a comparison of the 1987
contract with the 1984 contract.)
11 The International official who headed the union negotiating team testified
at one point that ‘‘the local itself can override my objection and vote to accept
the proposals. It’s not unusual.’’ But it turns out that he was referring to the
right of the members of the Local to vote on whether to accept a proposed
contract.
llllllllll llllllllll
[name] [name]
International Vice
President
(Human Affairs)
llllllllll
[name]
Director, District One
llllllllll
[name]
Sub-District Director
As I read that writing, it specifies that everyone who
signed the contract (except for White Pigment’s president)
signed it as a ‘‘duly authorized representative’’ of the United
Steelworkers of America, AFL–CIO–CLC.8 Further, no one
signed the contract as an official of Local 15306. Rather,
four persons signed as members of the ‘‘Local Union 15306
Committee,’’ and they did so without indicating their official
position in the local. (In contrast, the seven officials of the
International who signed the contract did so over their titles.)
In sum, the signature page of the ’84 contract amounts to
further evidence that only the International was the collec-
tive-bargaining representative of White Pigment’s bargaining
unit employees.9
The 1987 Contract
The signature page of the 1987 contract is set up the same
way as the 1984 contract except that there is no ‘‘UNITED
STEELWORKERS OF AMERICA, AFL–CIO–CLC’’ on a
line by itself following ‘‘authorized representatives.’’10 Thus,
there is this sentence (which is identical to the 1984 con-
tract):
IN WITNESS WHEREOF, this Agreement is exe-
cuted in duplicate originals on the day above written on
behalf of the Company by its duly authorized represent-
ative and on behalf of the Union by its duly authorized
representatives.
And following that there are signatures under ‘‘United Steel-
workers of America, AFL–CIO–CLC,’’ ‘‘White pigment
Corporation’’ and ‘‘Local Union 15306 Committee.’’ And
again, officials of the International signed over their titles,
persons signing as the Local Union 15306 Committee did not
show titles.
Since ‘‘the Union’’ is defined to mean the International (as
discussed earlier), the signature page of the 1987 contract,
like that of the 1984 contract, shows that, except for White
Pigment’s president, everyone who signed the contract signed
it as a ‘‘duly authorized representative’’ of the International.
Bargaining Practice
The Respondents contend that the joint representative sta-
tus of Local 15306 is shown by the way bargaining was con-
ducted. That contention starts from the premise that there is
a test for joint representation that goes this way, in situations
in which the contract means an international union as the
employees’ collective-bargaining representative:
(1) Look to see to what extent members of the local
participated in contract negotiations and to what extent
they, rather than any international officials, were re-
sponsible for the positions taken on behalf of the em-
ployees.
(2) If any members of the local were sufficiently ac-
tive during the negotiating process, and/or if on some
occasions they, not the international official(s), domi-
nated that process, that means that the local union rep-
resents the employees jointly with the international
union.
The Respondents’ initial problem is that there is no such
test. In fact, where an international union is named as the ex-
clusive bargaining representative of unit employees, the inter-
national remains as such even if the local conducts all the
contract bargaining. Rath Packing Co., 275 NLRB 255
(1985); cf. Appleton Electric Co., 105 NLRB 666, 668
(1953).
The Respondents’ other problem is that the participation in
the bargaining process by the members of the ‘‘Local Union
15306 Committee’’ is entirely consistent with their being
agents of the International for that purpose, as the signature
pages of the contracts say they are. The committee members
convinced White Pigment to agree to contract terms that ad-
dressed issues of local concern and that, clearly, were not on
the International’s agenda. In at least one instance, moreover,
where the committee members vehemently clashed with an
International official about a proposed contract provision, the
provision preferred by the committee found its way into the
contract. But an International official was at all bargaining
sessions, and he clearly headed the union delegation. And
there is no evidence that any committee member ever pro-
posed any contract provision over the International official’s
objection.11
Other Relationships Between White Pigment and
Local 15306
As a White Pigment official testified, ‘‘labor relations was
out there on the floor with the men. It had to be done every-
day. Questions come up, we’d go and settle them then. I
never dealt with an International rep on any weekly, month-
ly, or quarterly basis. It was done with the local people.’’
109VERMONT MARBLE CO.
12 See Kal Kan Foods, 288 NLRB 590, 593 (1988), for a discussion of the
use of the parol evidence rule in Board cases.
13 Actually Locals 26 and 30A merged just before the merger into Local 4.
But Vermont Marble did not object to the Locals 26–30A merger, and that
merger has no bearing on the outcome of this proceeding.
14 The record includes copies of three Vermont Marble collective-bargaining
contracts, one for the years 1981–1984, one for 1984–1987, and one for 1987–
1990.
15 The signature page of the current Vermont Marble collective-bargaining
contract is set up slightly differently from White Pigment’s and the way it is
set up could be interpreted as indicating that the ‘‘Local Union Committee’’
is a party to the contract, along with the Internation and Vermont Marble. But
the signature pages of earlier Vermont Marble contracts are set up the way
White Pigment’s are. And the record is barren of any evidence that the change
was intended to reflect a change in the identity of the parties to the contract.
16 Those employees, in turn, are all members of the same bargaining unit:
All full-time production, maintenance and power employees of the
Company at Center Rutland, Danby, Proctor, Weybridge and New Haven,
Vermont, including core drive operators, truck drivers, and automobile re-
pairmen, but excluding chauffeurs, office janitors, office clerical employ-
ees, guards and supervisors as defined in the Act.
Thus, for example, on safety matters company officials deal
with plant safety representatives selected by the Local—even
though article 11 of the 1984 and 987 contracts requires the
Company to ‘‘confer with the Union regarding safety.’’
Evidence of that nature would be significant if the contract
did not specify that the International was the exclusive bar-
gaining representative responsibilities, along with the Inter-
national. But given that the contract does specify that the
International is the exclusive bargaining representative, that
evidence shows only that the International permits members
of Local 15306 to act as agents of the International.
Other Matters
I already touched on the fact that the International’s con-
stitution specifies that the International ‘‘shall be the con-
tracting party in all collective-bargaining agreements.’’ That,
it seems to me, is further evidence that Local 15306 does not
jointly represent the Company’s employees.
The Parol Evidence Rule
The issue in this case involves an alleged ambiguity about
who the parties are to a contract. No one has cited me to
any authority indicating that the restrictions of the parol evi-
dence rule apply where that is the question to be resolved.
I decline to broaden the reach of that rule to cover that
issue.12
Conclusion—White Pigment
Article 15 of White Pigment’s collective-bargaining con-
tract with the International refers to union dues deducted by
the Company pursuant to employee authorizations. As noted
earlier, the provision requires the Company to ‘‘remit all
sums so deducted to the International Trasurer.’’ Beginning
on or about May 31, 1989, White Pigment has not done that.
Instead the Company has placed such sums in an escrow ac-
count. The Company has thereby violated Section 8(a)(5) and
(1).
The complaint alleges that White Pigment also violated the
Act on April 21, 1989, in that, on that date, ‘‘Respondent
White withdrew its recognition of the union.’’ But the Gen-
eral Counsel does not make the same contention on brief—
properly, since there is no evidence that the Company with-
drew recognition of the International on that date. I accord-
ingly will recommend that the allegation be dismissed.
The General Counsel’s Case Against Vermont Marble
Vermont Marble mines and mills marble and generates
and distributes electric power at facilities at various locations
in Vermont. As of early 1989 its bargaining unit employees
were members of Steelworkers Locals 22A, 26, 30A. But
then those locals merged into Steelworkers Local 4.13 As
was the case with Local 15306’s merger into Local 4, the
mergers were accomplished without providing the members
with the procedural safeguards the Board requires, and there
was no substantial continuity as between Locals 22A, 26,
and 30A, on the one hand, and Local 4, on the other.
Vermont Marble’s response to the mergers tracked White
Pigment’s. On April 21, 1989, Vermont Marble advised the
International that it would not recognize Local 4. And in
May Vermont Marble escrowed the union dues it collected
from its employees.
Vermont Marble’s collective-bargaining contracts, like
White Pigment’s, state that they are with the International,
define ‘‘the Union’’ to mean the International, and state that
Vermont Marble recognizes ‘‘the Union’’ as the exclusive
representative for all bargaining unit employees.14
In all other respects too, there is no material difference be-
tween Vermont Marble’s contracts and White Pigment’s as
far as showing whether the International is the sole collec-
tive-bargaining representative.15 That similarly between
Vermont Marble’s situation and White Pigment’s further ob-
tains in regard to the nature of the relationship between the
‘‘Local Union Committee’’ and the International during bar-
gaining over new contracts and in grievance processing.
There is one matter that applies to Vermont Marble and
not to White Pigment which bears mention. As touched on
above, until 1989 Vermont Marble’s bargaining unit employ-
ees were divided into three locals unions. Yet as far as the
record shows, at all times only one collective-bargaining con-
tract covered all those employees.16 Moreover no officer of
any local union signed any of the contracts on behalf of his
local. Rather, five or six employees, some of whom were of-
ficers of the locals and some of whom were not, signed
merely as members of the ‘‘Local Union Committee.’’ Thus,
if one had to search for one or more entities to represent
Vermont Marble’s employees jointly with the International,
it would have to be the ‘‘Local Union Committee,’’ rather
than the local unions themselves.
I accordingly conclude that the International is the exclu-
sive collective-bargaining representative of Vermont Mar-
ble’s bargaining unit employees and that Vermont Marble
therefore violated Section 8(a)(5) and (1) of the Act when it
placed checked-off union dues into an escrow account rather
than paying them over to the International in accordance with
the terms of its collective-bargaining contract with the Inter-
national.
REMEDY
The recommended Order requires the Respondents to remit
to the International the moneys that the Respondents have
withheld from their employees’ paychecks, pursuant to dues-
checkoff authorizations, since about May 31, 1989, together
110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with interest on those moneys, with interest computed as pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]