Consolidated Papers, Inc., Sandra M. Allen, Party-Petitioners v. National Labor Relations Board, Office & Professional Employees International Union, Local No. 95, Intervening

Citations: 670 F.2d 754; 109 L.R.R.M. (BNA) 2815; 1982 U.S. App. LEXIS 21850Docket: 80-2794

Court: Court of Appeals for the Seventh Circuit; February 11, 1982; Federal Appellate Court

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A petition for review has been filed regarding an order from the National Labor Relations Board (NLRB) concerning Consolidated Papers, Inc. The NLRB found that the Company committed an unfair labor practice by refusing to negotiate with the Office and Professional Employees International Union, Local No. 95 about the working conditions of Customer Service Representatives (CSRs). The NLRB's determination was based on a prior decision recognizing the CSRs as an addition to the existing bargaining unit. However, the court concluded that the Union's clarification petition, which led to this finding, was improperly considered by the Board, resulting in the denial of enforcement of the Board’s order.

The Company, based in Wisconsin Rapids, Wisconsin, has had a long-standing bargaining relationship with the Union, certified in 1944, which historically defined the bargaining unit to include only hourly office and clerical employees, explicitly excluding managerial and other specific roles. This contractual definition has been consistently upheld, with exempt employees from the Fair Labor Standards Act (FLSA) being excluded from bargaining.

The dispute arose when the Company decided to relocate the CSRs from Chicago to Wisconsin Rapids. CSRs are salaried positions and exempt from FLSA coverage. In November 1979, the Union filed a clarification petition to include the CSRs in the bargaining unit. The Company contended that the petition should not be considered since the CSRs were excluded based on the existing contract and historical practices. The Regional Director ruled that the CSRs had a community of interest with the existing unit, leading to the accusation of unfair labor practices when the Company refused to negotiate.

Accretion refers to the addition of a group of employees to an existing bargaining unit when these employees share a significant community of interest with the current unit and do not possess a separate identity. Such employees are incorporated into the unit without an election, adhering to the existing unit's representative. The National Labor Relations Board (NLRB) has broad discretion in determining accretion, akin to its function in defining appropriate bargaining units, and its decisions can only be overturned if proven arbitrary or capricious.

While the NLRB has wide discretion in accretion cases, this discretion is constrained by its established policies. If the Board changes its policy, it must explicitly state the reasons for the change. Courts will deny enforcement of Board decisions that deviate from its declared policies to prevent arbitrary actions.

In the current case, the court does not assess whether the Board correctly concluded that the additional employees share sufficient community interest for accretion. Instead, it finds that the Board did not follow its own established precedent regarding unit clarification petitions, particularly a policy against considering such petitions during the term of an existing collective bargaining agreement that clearly defines the unit. The Board believes that allowing these mid-term petitions would disrupt ongoing bargaining relationships and typically dismisses them without prejudice, permitting future petitions at a more appropriate time.

An appropriate time for filing unit clarification petitions is shortly before the expiration of a collective bargaining agreement, as established in Shop Rite Foods, Inc., and Peerless Publications, Inc. Parties may negotiate modifications to the contractual unit description or seek clarification, with the aim of avoiding unnecessary labor disputes. The Wallace-Murray rule provides two options for including a group of employees in a bargaining unit: waiting for the current contract to expire to file a new petition or requesting an immediate self-determination election. This rule pertains solely to the timeliness of unit clarification petitions and does not allow an employer to evade a finding of accretion. 

In the case at hand, the Regional Director dismissed the Company's argument regarding the contractual unit description without addressing the Wallace-Murray rule. Instead, the Director referenced precedents where mixed salaried and hourly employees were deemed an appropriate bargaining unit, concluding that compensation type is not the sole factor in determining accretion if there is a community of interest. However, this interpretation misrepresents the Wallace-Murray rule, which is a discretionary policy against mid-term petitions and is unrelated to the appropriateness of the bargaining unit itself.

The review concluded that both criteria for Wallace-Murray's application were met: the Union's petition was filed mid-term, and the contract explicitly defined the bargaining unit as "hourly paid" workers, excluding salaried CSRs. The argument suggesting that "hourly paid" is merely descriptive rather than limiting was rejected. The contract's exclusions do not imply that the definition of "hourly paid" is non-limiting; rather, it clearly delineates the unit to exclude CSRs. Thus, the Regional Director should have applied the Wallace-Murray rule, leading to the conclusion that the Union's petition was untimely.

The Wallace-Murray rule applies in this case, as supported by the precedent set in Monongahela Power Co., 198 NLRB 1183 (1972), where a union's unit clarification petition was dismissed as untimely. The Board and the Union argue that Monongahela Power differs from the current case because the job classifications at issue had long existed without significant change. They assert that the Wallace-Murray rule only applies when the contractual unit description specifically references the disputed job classification. In contrast, the introduction of CSR positions after the unit definition was negotiated should not exempt the application of the Wallace-Murray rule. The Board's reliance on historical job presence in Monongahela Power for its decision is deemed misplaced, as the rule does not require the disputed job categories to exist at the time of the collective bargaining agreement's execution. The rule’s purpose is to prevent parties from altering agreed-upon unit definitions shortly after negotiation. Therefore, since the contract explicitly excluded salaried employees like CSRs from the bargaining unit, the Regional Director should have dismissed the Union's petition based on the Wallace-Murray rule. Consequently, the Company’s petition for review is granted, and enforcement of the Board's unfair labor practice order is denied. The recognition clause of the collective bargaining agreement specifies that the Union represents only eligible hourly paid employees in certain divisions and explicitly excludes managerial, supervisory, professional, technical, and confidential employees.

The petition involved the inclusion of eight Customer Service Representatives (CSRs) in a bargaining unit, but two were deemed supervisory employees and excluded from consideration, a finding the Union did not contest. Currently, the focus is on six CSRs who sought to intervene in an unfair labor practice proceeding and filed a lawsuit for injunctive relief against the Board's determination regarding their bargaining unit status, a case that is still pending. These employees were granted permission to intervene in the review petition but their claims related to lack of notice and opportunity to be heard on the Union's petition were not addressed.

Generally, courts restrict the application of the accretion doctrine, as it prevents new employees from voicing their preferences for union representation. However, the Board may entertain clarification petitions shortly after a labor contract if one party proposed a modification during negotiations but later agreed to defer the issue for contract finalization. This case does not fit the exception to the Wallace-Murray rule regarding unit clarification.

The Union argued that any errors made by the Board should be overlooked to allow review of the merits for judicial efficiency, but this would condone arbitrary actions by the Board. The Regional Director also dismissed the Company's claim that the petition was barred due to historical exclusion of the job classification from the unit, noting that the CSRs had not been part of the bargaining unit location until recently and thus had not been historically excluded. Consequently, the CSRs were viewed as occupying positions analogous to newly created roles, supporting their inclusion in the bargaining unit.

The Board has reviewed unit clarification petitions filed within 90 days (Beth Israel Medical Center, 229 NLRB 295 (1977)) and 101 days (Shop Rite Foods, Inc., 247 NLRB No. 143 (1980)) prior to the expiration of a labor contract. In the current case, the Union's petition was submitted on November 30, 1979, approximately 180 days ahead of the contract's expiration. Previous cases indicate that the Board has addressed job classifications created post-contract execution, but these do not support the Board and Union's argument. In International Ass'n of Machinists, 242 NLRB 44, 45-46 (1979), the Board dismissed a petition seeking to include new job categories, determining they were excluded under the general unit description. Conversely, in Safeway Stores, Inc., 216 NLRB 819 (1975), the Board considered a petition for new jobs created after contract execution, emphasizing that these jobs involved duties beyond those in existing job categories, leading to ambiguity in their unit placement.