Amicus Curiae Brief — Phelps Dodge Corp. v. AFL-CIO Joint Negotiating Committee

“4

TS 33972

IN THE

Supreme Court of the Gnited

Ocroser Term, 1972.

MICEAEL fo2

smut;

tea “t+ he

No. 72-220

PHELPS DODGE CORPORATION,

vs. Petitioner,

AFL-CIO JOINT NEGOTIATING COMMITTEE FOR

PHELPS DODGE CORPORATION, er at.,

and

THE NATIONAL LABOR RELATIONS BOARD,

Respondents.

No. 72-359

NATIONAL LABOR RELATIONS BOARD,

vs. Petitioner,

AFL-C1lO JOINT NEGOTIATING COMMITTEE FOR

PHELPS DODGE, er au., anv PHELPS DODGE COR-

PORATION, Respondents,

BRIEF AMICUS CURIAE ON BEHALF OF THE CHAM-

BER OF COMMERCE OF THE UNITED STATES

OF AMERICA IN SUPPORT OF THE PETI-

TIONS FOR WRIT OF CERTIORARI.

MILTON A. SMITH,

General Counsel,

OTTO F. WENZLER,

Labor Relations Counsel,

Chamber of Commerce of the

United States of America,

1615 H Street, N. W..

Washington, D. C. 20006,

GERARD C. SMETANA,

925 South Homan Avenue,

Chicago, Illinois 60607,

LAWRENCE M. COHEN.

HERBERT M. BERMAN,

K. BRUCE STICKLER,

LEDERER, FOX AND GROVE,

111 West Washington Street,

Chicago, Illinois 60602,

Attorneys for the Chamber of Commerce of the

United States of America.

THE GUNTHORP-WARREN PRINTING COMPANY, ONICAGO

> “ o- as Supe: eo te Nahe eS ak ee

2 ae a an aE ¢

INDEX.

— PAGE

Brief Amicus Curiae on Behalf of the Chamber of

Commerce of the United States of America in Sup-

port of the Petitions for Writ of Certiorari........ 1 ;

Interest of the Amicus Curiae...................... 2

RUE GE BIB 00 oc cen ccccsecnsccccesssaces 3

BEES «06608 60nedenessccesesseceodcecensccenses 5

A. The decision below will lead to the breakdown

of the stable bargaining units envisaged by

Ser Gils 00a 60066 ebeebusowaasndbeuticecee 5

B. The Court below has misconstrued the con-

trolling decisions of this Court.............. 7

C. The decision below raises a substantial and

recurring question in the administration of

Er Mi ndnuonspagnestuccuucsbdadsoucunccse 9

SEL Husenduncaendeschdeddzsunsvaoencenedes 11

Taste or Cases.

Allied Chemical Workers v. Pittsburgh Plate Glass

Company, 404 U. S. 157 (1971)............ 3, 5, 7, 8, 9, 11

American Federation of Musicians v. Carroll, 391 U. S.

EP CE Ssdehdedsnrescakscechéwuddubbsedece chen 7,8

American Ship Building Co. v. NLRB, 380 U. S. 300,

SP GEE Sandaudeeacdlekeretdcbbicbaceaswrescus 4

Central Soya Company, Inc., 142 NLRB 930, 939... .. 10

Douds v. I. L. A., 241 F. 2d 278, 282-283 (2nd Cir. 1957) 10

Fibreboard Paper Products Corp. v. NLRB, 379 U. S.

SP ET Sdn nedeeanensencecdsndbiuedoswcescnnce 7,8

= — |

2 POTN 8 8 or

International Longshoremen’s Association (New York

Shipping Association, Inc., 118 NLRB 1841, 1843

(enf. den.) 277 F. 2d 681 (D. C. Cir. 1960).......... 10

Mastro Plastics Corp. v. NLRB, 350 U. S. 270 (1956)... 1

N. L. R. B. v. General Electric Co., 418 F. 2d 736, 760

1 Sn dbncaidaciesuckecsakeaenetieasasinds 4

N. L. R. B. v. Hess Oil & Chemical Corp., 415 F. 24

440, 444 (1969) cert. den. 397 U. S. 916 (1970)...... 10

N. L. R. B. v. Insurance Agents’ International Union,

SER TH Bh Ga, Ge Gc wcccccccccccsescccces 4

N. L. R. B. v. Montgomery Ward & Co., Inc., 399 F. 2d

es ee I SII wa kecascseseceéseseccccss 10

Shell Oil Co., 194 NLRB No. 166 (1970)............. 6

The Standard Oil Co., 137 NLRB 690, 691 (1962)... .. 10

Teamster’s Union v. Oliver, 358 U. S. 283 (1959). .... 7,8

Textile, Inc., 119 NLRB 1792, 1797-1798... ............ 10

United Mine Workers v. Pennington, 381 U. S. 657,

Ey GE cbécceibubhebagsichesGebesseceuoussenns 10

William M. Cherresh, Coalition Bargaining (Univer-

sity of Pennsylvania Press 1969).................. 3

MISCELLANEOUS.

William M. Chernesh, Coalition Bargaining (Univer-

sity of Pennsylvania Press 1969).................. 3

G. Hildebrand, Bargaining Structures and Relative

Power, Report No. 5, Collective Bargaining: Sur-

viving in the 70’s (Industrial Research Unit, Whar-

ton School of Finance & Commerce, University of

Pennsylvania 1972), p. 10

1967 Labor Relations Yearbook, 84, 85, 91

Supreme Court of the United States

Octrorer Term, 1972.

No. 72-220.

PHELPS DODGE CORPORATION,

Petitioner,

rs.

AFL-CIO JOINT NEGOTIATING COMMITTEE FOR

PHELPS DODGE CORPORATION, er ax,

and

THE NATIONAL LABOR RELATIONS BOARD,

Respondents.

No. 72-359.

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

vs.

AFL(10 JOINT NEGOTLATING COMMITTEE FOR

PHELPS DODGE, er at., axv PHELPS DODGE COR-

PORATION,

Respondents.

BRIEF AMICUS CURIAE ON BEHALF OF THE CHAM.

BER OF COMMERCE OF THE UNITED STATES

OF AMERICA IN SUPPORT OF THE PETI-

TION FOR WRIT OF CERTIORARI.

SR Ri OP RUN OE OS SET SET TT

INTEREST OF THE AMICUS CURIAE.

The Chamber of Commerce of the United States of

America (hereafter ‘‘the Chamber’’) files this brief amicys

curiae to present its views on a case of great significance

in the administration of the National Labor Relations Act.

Respondent Committee represented to the Board that this js

‘‘one of the most important cases—if not the most im-

portant case—to come before the Board in many years.’?

The Chamber agrees and, for this reason, submits that this

Court should review the instant case.

The issue presented here—whether the Board may con-

clude that an attempt to obtain agreement on terms and

conditions of employment to be generally applicable on a

company-wide basis constitutes an impermissible effort to

extend the bargaining unit—is of substantial interest to the

Chamber.* Many of its members deal with unions which

represent, as the Committee did here, employees in two or

more bargaining units. This case, as the court of appeals

modified opinion made clear,’ is not limited to the particular

1. This brief is filed with the written consent of all parties in

accordance with Rule 42(2) of this Court.

2. See the Committee's Brief in support of exceptions to the

Board Trial Examiner's Decision, p. 1.

4. The Chamber is a business federation with a membership of

more than 3800 state and local chambers of commerce and trade

associations. It has an wiaderlving membership cf more than five

million businessmen and business firms. many of which are en-

gaged in commerce and subject to the Act.

4. In its initial decision, the court did not pass on the question

of whether bargaining to impasse or, mandatory subjects could be

considered evidence of an unlawful objective te expand the bar-

gaining unit. In the court’s modified order. however, the court

expressly assumed that the Committee’s deinands were all manda-

tory items and coneluded nevertheless that insistence to impasse

upon them was ‘‘not evidence of an attempt to merge the bargain-

ee

LI ES ENO OND —

ae REISE CORTE TR RE SR EE an

factual situation here involved ; it would substantially alter

existing bargaining relationships in each of these other

situations as well. As the Board observed in its petition

for certiorari (p. 8), the decision would permit unions in

numerous industries to unilaterally enlarge bargaining out-

side the confines of established bargaining units.’ This is

a matter of vital concern to the Chamber and its member

organizations. For example, the Chamber recently appeared

as an amicus curiae in Allied Chemical Workers v. Pitts-

burg Plate Glass Company, 404 U. 8. 157 (1971), where it

successfully requested this Court to confine mandatory bar-

gaining to the active employees in an appropriate unit.

The Chamber has a similar interest in this case and re-

spectfully requests this Court to consider its views.

SUMMARY OF ARGUMENT.

This case presents the Court with board issues of far-

reaching legal and economic significance.

First, despite the national controversy generated by the

issue of coalition or coordinated bargaining this Court has

never had an opportunity to pass on the question. Because

of increased union efforts to expand bargaining units, de-

termination by this Court of the questions presented in this

ing of separate units.’” App., p. A. 13. Thus, the court not only

decided that the Board's decision was not supported by substan-

tial evidence, but was wrong on a material question of law, ie..

whether an improper bargaining object could ever be determined

where a union does not use improper bargaining means.

5. In addition to the enlarged unit bargaining in the non-

ferrcus metals industries, as shown here, there is a strong likeli-

hood of such bargaining in other major industries, where, as here,

there is uniform bargaining by a small number of employers. Ex-

amples of such industries are the home products, chemical and

oil industries. See William M. Chernesh, Coalition Bargaining

(University of Pennsylvania Press 1969).

4

ease is imperative. It is apparent, as hereafter noted at

pp. 3-5, that the union approach here involved, in view of its

approval by the court below, is now being frequently

emulated by other powerful unions in major industries,

This Court should determine the lawfulness of this new and

destructive bargaining tactic.

Second, the decision below alters, without legislative ap-

proval, the economic balance of power between employers

and unions. As one commentator has suggested, the goal

of coalition and related forms of inter-unit bargaining

**. . . is to bring about unilaterally an enlargement of the

scope of negotiations and of decision-making to embrace a

fragmented group of bargaining units that had hitherto

negotiated separately." We submit that only Congress,

not the courts, can determine whether such a goal is ap-

propriate. As this Court noted in American Ship Building

Co., v. NLRB, 380 U.S. 300, 317 (1965), citing NV. L. R. By.

Insurance Agents’ International Union, 361 U.S. 477, 497-

498 (1960), the Board cannot **... introduce some standard

of properly ‘balanced’ bargaining power, or some new dis-

tinction of justifiable and unjustifiable, proper and ‘abusive’

economic weapons into .. . the Act.’ Economic and social

judgments must remain within the discretion of the legis-

lature; they are not within the province of courts or ad-

ministrative agencies.

Third, the Court below by naively and myopically viewing

the Committee’s demands sanctioned unilateral enlarge-

ment of the bargaining units. The effect was to judicially

amend the Act, and disregard the Board’s expertise in

6. Hildebrand, Bargaining Structures and Relative Power, Re-

port No. 5, Collective Bargaining: Survival in the 70's (Industrial

Research Unit, Warton School of Finance & Commerce, Univer-

sity of Pennsylvania 1972). p. 10.

nt .

LEE Te eee eS -e> QS , . . Be =

4)

determining the unit in which bargaining is to take place.

Moreover, in so doing, the Court below misapplied deci-

sions of this Court, and acted in derogation of the recent

decision of this Court in Pittsburgh Plate Glass.

ARGUMENT.

A. The Decision Below Will Lead to the Breakdown of

the Stable Bargaining Units Envisaged by the Act.

The approval by the Court below of a union charade

to engage im enlarged unit bargaining will lead to a

breakdown of collective bargaining in numerous multi-

anit companies. No longer will employers be required to

bargain only within the confines of stable units established

in accordance with the Act; rather, simply by following the

blueprint drafted by the court below—making mandatory

demands which have the intent and effect of enlarging

an established unit—a union can extend negotiations to new

units without the voluniary employee choice contemplated

by our national labor policy. Instead of stabilizing bargain-

ing, this technique will inexorably lead to a severe dis-

location of free collective bargaining in contravention of

the intent of the Act.

Indeed, a few recent examples clearly illustrate the

rapidly increasing utilization of extra unit bargaining with

its concommittant reigniting of long and often painfully

resolved disputes regarding the appropriate bargaining

unit.

Item 1: In negotiations this year between Armstrong

Cork Company and a coalition of unions under the leader-

ship of the Industrial Union Department of the AFL-CIO,

the unions at numerous locations made bargaining demands,

RRP LANE! PEPE TOR AE in DUNE BPR RIOR ELAR BOOLEAN I PR

a

|

such as a limited no strike clause, a common company-

wide termination date and a ‘‘most favored nations”? clause,

identical to those involved in the instant case. The basis

for the unions’ demand was expressly stated to be the

decision of the court below. The unions thus hoped to

accomplish through this device the goal of ‘‘coordinated”

negotiations, a goal which had already led to violence,

strikes, lockouts and the disruption of a previously peace-

ful relationship. See the affidavit of L. J. Bibri, attached

hereto as Appendix A.

Item 2: In another situation which closely parallels the

instant case, a coalition composed of the International

Brotherhood of Electrical Workers and four of its local

affiliates sought to merge all units represented by any mem-

ber of the coalition in the General Telephone Company of

the Southeast into a single unit.’ As in the instant case,

this coalition has demanded, as the condition precedent to

the conclusion of any contract, a common expiration of

all contracts.

Item 3: In another variant of the instant theme, during

recent negotiations between Shell Oil Company and the Oil,

Chemical and Atomic Workers International Union, a union

tried to force a unilateral merger of separately certified

bargaining units for the purpose of negotiating uniform

fringe benefits. In Shell Oil Co., 194 NLRB No. 166 (1970),

the Board found, relying on its decision here (now set

aside by the court below), that the company’s refusal to

engage in such enlarged unit bargaining did not violate

the Act. The union has now appealed that decision on the

basis of the court of appeals opinion in the present case. A

similar approach was utilized by the Industrial Union De-

7. See complaint issued by the Director of Region 11 of the

Board in Case No. 5-CB-1279, attached hereto as Appendix B.

PRE SPE ES PII Ne ELITE ES IIT SFR

7

partment of the AFL-CIO in 1966 negotiations with Union

Carbide Corporation ; the I. U. D.’s goal there also, was ‘‘to

force companies to negotiate major economic items on a

national level.’’ The result was strikes at eleven Union Car-

bide plants, which ranged from 44 to 246 days, involved

7200 hourly paid employees, the loss of $20.5 million in

wages and cost the company almost $3.5 million in pre-

tax income. 1967 Lab. Rel. Yearbk. 84, 85, 91.

As more and more unions in multi-unit companies learn

the lesson taught by the court below, they also will seek

to improperly enlarge their bargaining power by demand-

ing enlarged unit bargaining. The cost will be industrial

strife and economic dislocation. The Chamber submits,

therefore, that the decision below is not only incorrect,

but that it has severe, far-reaching economic consequences

involving the very structure of the institution of collective

bargaining. This Court should address itself to the legality

of this serious national problem.

B. The Court Below Has Misconstrued the Controlling

Decisions of This Court.

In reversing the Board, the Court below relied on four

decisions of this Court.* Upon the basis of these cases, the

Court sanctioned the enlarged-unit bargaining techniques of

the Union on the ground that ‘‘the fact that a demand may

have extra unit effects does not alter its status as a manda-

tory subject of bargaining.’’ (App., p. A13.) In enunciating

this rule, however, the Court below overlooked the fact that

none of the cited decisions sanctioned unilateral enlarge-

8. Fibreboard Paper Products Corp. v. N. L. R. B., 379 U.S.

203 (1964): American Federation of Musicians v. Carroll, 391

U.S. 99 (1968) ; Teamster’s Union vy. Oliver, 358 U.S. 283 (1959) ;

Allied Chemical Workers v. Pittsburgh Plate Gless Co., supra.

8

ment of the unit such as occurred in this case. Fibreboard,

Carroll and Oliver, all arising in a subcontracting or unit

preservation context, do not require a company to bargain

about demands which enlarge a unit, but only to bargain

about demands which, while having coincidental ‘‘extra-unit

effects,’’ concern the preservation of unit work or unit jobs.

Indeed, in Pittsburgh Plate Glass, this Court not only so

limited Fibreboard and Oliver but indicated as well that

‘*[o]ther considerations, such as the effect on the employer’s

freedom to conduct his business, may be equally important,”

404 U.S.-at 179, n. 19 (emphasis added).

In the instant case, the Committee did not seek to pre-

serve unit work or jobs, but, rather, sought to enlarge the

unit for its own bargaining advantage. Such an objective

disregards the admonition of this Court in Pittsburgh Plate

Glass Co. that an employer’s bargaining obligation extends

only ‘‘to ‘terms and conditions of employment?’ in the unit

‘appropriate to such purposes’ which the union represents,”

9. In Fibreboard, the Court held that ‘‘replacement of em-

ployees in the existing bargaining unit with those of an independ-

ent contractor to do the same work under similar conditions of

employment—is a statutory subject of collective bargaining under

Section 8(b).”’ 379 U. S. at 215. In Oliver and in Carroll, this

Court dealt with the question of whether certain combinations

or agreements violated anti-trust laws. In Oliver, the Court found

that a provision of a collective bargaining agreement regulating

truck rental paid to independent truck drivers was a mandatory

subject of bargaining and did not therefore violate Ohio’s anti-

trust law. The Court said that ‘‘. . . an inadequate rental might

mean the progressive curtailment of jobs through withdrawal of

more and more carrier-owned vehicles from service.’’ 358 U. S.

at 295. Similarly, in Carroll, this Court held that a labor agree-

ment provision requiring an orchestra leader to charge a minimum

price does not violate the Sherman Act because ‘‘the price list

.. . has the objective to protect employees’ job opportunities and

wages from job competition of other union members . . .’’ 391 U.S.

at 101-102.

% 7

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9

and not to extra-unit bargaining. The area of unit deter-

mination is one which singularly involves Board exper-

tise; its decisions are to be ‘‘accorded broad discretion.”’

The objective must be one of grouping together only em-

ployees who have ‘‘substantial mutual interests’’ in order

“to assure the coherence among employees necessary for

efficient collective bargaining.’’ 404 U.S. at 171-172. The

decision below, it is submitted, disregards these principles.

C. The Decision Below Raises a Substantial and Recurring

Question in the Administration of the Act.

Even assuming arguendo that the specific extra-unit de-

mands of the Committee are mandatory bargaining sub-

jects, such demands, when considered together with, and in

the context of, the Committee’s goal of company-wide bar-

gaining, had the clear intent and effect of impermissibly

enlarging the bargaining unit and of merging all of the

Company's operations into a single unit. As the Court of

Appeals for the Second Cirenit pointed out in NV. L. R. B.

v. General Electric Co., 418 F. 2d 756, 760 n. 15 (1969),

cert, den., 397 U. S. 965 (1970), in determining that an

employer's overall conduct of negotiations was unlawful

even though his individual actions considered alone were

proper : ig

... A policy ..., innocent in and of itself, can in context

hecome a vital part of an illegal overall pattern of

conduct.

Similarly, in this case, the Committee’s demands, when

considered in toto, unilaterally enlarged the bargaining

ORLY RINE NS TROL BT EAI TIT IO a ms . . os . . a a

10

unit."° The Committee’s willingness to bargain separately

at each location, as the Board recognized, was a sham. The

items it demanded, if made part of a collective bargaining

agreement, would necessarily have precluded separate unit

negotiations, and would have effectively merged all of

the Company’s plants into a single overall unit. Before

agreeing, for example, on a wage adjustment at any one

plant in its operation, the Company would be constrained to

consider its effect on all units; under the ‘‘most favored

nation’’ clause, a more favorable wage adjustment would

automatically be incorporated into a contract covering all

other represented units. Similarly, if the proposed limited

no strike clause were adopted, the Company could never

make a decision to accept a strike at any one location with-

out at the same time determining whether it could accept a

strike at all of its other locations. To the same effect, the

common expiration date demand would, as a_ practical

10. In enacting Section 9 of the Act, Congress established a

detailed precedure for collective bargaining. An established bar-

gaining unit cannot be altered by unilateral! action of one of the

parties, but only through mutual consent or through utilization

of the Board’s representation procedures. International Lona-

shoremen’s Association (New York Shipping Association, Inc.),

118 NLRB 1841, 1843, enforcement denied on other grounds, 277

F. 2d 681 (D.C. Cir. 1960): NV. L. PR. Rov. Montgomery Ward &

Co., Inc. 399 F. 2d 409, 412 (7th Cir. 1968); Donds vo TL. A.

241 F. 2d 278, 282-283 (2nd Cir. 1957); Central Soya Company

Inc., 142 NLRB 930, 939: Tertile, Inc... 119 NLRB 1792. 1797-1798.

Absent agreement, neither employer nor union ‘‘may attempt to

force on the other an enlargement or merger of an established unit

or units.’” Shell Oil Co., supra, Aceord: N. L. R. B. v. II css O71 &

Chemical Cerp., 415 F. 2d 440, 444 (1969), cert. denied 397 U.S.

916 (1970); The Standard Oil Company. 137 NLRB 690, 691

(1962) enforced 322 F. 2d 40 (6th Cir. 1963). Indeed the anti-

trust, as well as the labor, laws are ‘‘clearly set against employer-

union agreements seeking to prescribe labor standards outside the

bargaining unit.’" United Mine Workers v. Pennington, 381 U.S.

657, 668 (1965). In sum, once the duty to bargain exists, change

which ‘‘.. . denies the Board... ultimate control, of the bargaining

unit... disrupts the bargaining process.’’ Douds v. J. L. A., supra

at 283,

ARNDT ENE EY EAE RT MEE AEN MT Ta TEEN ALARA: MORSE

to) ra

ae

11

matter, merge negotiations at all Company locations. More-

over, the Committee expressly refused to execute an agree-

ment in any one unit until agreement was reached in all

other pending negotiations. In short, under the decision

below, the Company would no longer be negotiating on a

unit-by-unit basis as required by Section 9 of the Act, but,

as a matter of absolute economic necessity, would be com-

pelled to negotiate with the unions on a company-wide

basis.”

CONCLUSION.

This case raises a recurring and substantial problem in

the administration of the Act. It is an issue which, unless

resolved by this Court, is likely to engender further severe

economie dislocation. By considering this question, the

Court’s time will not be misspent. The petitions for writs of

certiorari should be granted.

Respectfully submitted,

MILTON A. SMITH,

General Counsel,

OTTO F. WENZLER,

Labor Relations Counsel,

Chamber of Commerce of the

United States of America,

1615 H Street. N. W.,

Washington, D. C. 20006,

GERARD C. SMETANA,

925 South Homan Avenue,

Chicago, Illinois 60607,

LAWRENCE M. COHEN,

HERBERT M. BERMAN,

K. BRUCE STICKLER,

LEDERER, FOX AND GROVE,

111 West Washington Street,

Chicago, Illinois 60602,

Attornens for the Chamber of Commerce of the

United States of America,

11. This result is wholly inconsistent with this Court's repeated

warning that it ‘‘must not be guided by a single sentence or

member of a sentence, but look to the provisions of the whole law,

and its object and policy.’ Pittsburgh Plate Glass, 404 U.S. at

185, citing, inter alia Mastro Plastics Corp. v. N. L. R. B., 350

U.S. 270 (1956).

Al

APPENDIX A.

AFFIDAVIT

Stare or PexXsevivanta

cecsty oF Laxcaster

1, L. J. Bibri, being first duly «worn on my oath depose

and «tate as follows:

1. Lam Vice President and Director of Employee Re-

lations of the Armstrong Cork Company, Liberty and

Charlotte Streets, Lancaster, Pa. 17604. 1 was employed

a Director of Employee Relations during both the cur-

rent and the 1970 contract negotiations when our com-

pany was confronted by a coalition of unions representing

all 8 of our unionized plant locations under the leader-

chip of the Indostrial Union Department of the AFL-CIO.

2 On various dates between April 13 and August 2,

1972 plant managers at our Macon, Georgia, Jackson,

Missix«ippi, Fulton, New York, Braintree, Max«achueett«

and Beaver Fall«, Pennevivania plant« received from local

anions representing these rexpective plant« the following

contract demands :

a) There «hall be no «trikes in the bargaining unit

covered by this agreement during the life of thi« agree-

ment: provided that thix« no-<trike clause shall not be

effective during any period in which employees are

conducting a lawful «trike in any other bargaining unit

of the Company.

hb) The termination date of thix agreement be the

same asx the termination dates in other agreements

negotiated by the Company in 1972.

ce) When, during the term of thi« agreement, the

Company negotiates an agreement covering any other

A OO Se ee ee mee om =e —s

bargaining unit of the Company, the Union shall hare

the right, upon demand, to have any provision of said

agreement incorporated into this agreement.

In support of these demands, the unions at Macon, Jack

son and Fulton presented identical documentation citing is

each instance the Third Circuit Court of Appeals decisics

of AFL-CIO +. Joint Negotiating Commitice for

Dodge +. NLRB, 79 LRRM 2939 (4rd Cir. 1972), petities

for certiorari filed in Case Nox, 72-220 and 72-359 (8. &

Oct. term, 1972). At the other location= the <ame demand

were presented in substance ax part of basic contract pro.

posalx. While documentation wa= not offered, the demand.

were described as being of the <ame orgin a= thoxe licted

above.

3% This tactic was merely a refinement of the demank

made by the coalition in the 1970 negotiations, prior to

the Phelps-Dodge decision, where, under the direction of

the Industrial Union Department, separately certified

unions at these plants located throughout the U nited States

presented the ( ny with aniform cemand- for changes

in the pension and insurance -applement~ in effect at those

locations. In the negotiation= which ensued, it became ob}

vious to me, and the record« <o support, that the ITD:

strategy was (a) to fail to reach agreement on both the

supplement and the hasic contract upon the expiration date

at each of the plani« in turn, and (bh) to offer to work

without a contract until all of the plant agreement« im th

company had expired so ax to effect, if nece=<ary, a multi

plant «hut down.

4. IUD representatives were frequently present at con

tract negotiation« at each separate location. Ax a resall

of these union tactics, prolonged multi-plant strikes oc

curred at our plants as follows:

a) Macon, Georgia, September 3, 1970 to Novem

ber 4, 1970;

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b) Beaver Falls, Pennsylvania, August 15, 1970 to

November 14, 1970;

e) Fulton, New York, August 19, 1970 to Novem-

ber 16, 1970;

e) Jackson, Mix«ix<ippi: September 1, 1970 to Ne-

vember 7, 1970.

I have read the above affidavit consisting of this page

aad two other pages. It is true and correct to the best

of my knowledge.

js) LS. Boe

Sa

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Aé

Unrrep States or America

Before the National Labor Relations Board Region 11.

Cases Nos,

INTERNATIONAL BROTHERHOOD oF pepe

Evecrrica, Workers, AFL-CIO, f

and Is Locats 289, 2035, 1431 {formerly

and 1087 5-CB-1279)

and r 11-CB-359.3

(formerly

GexeraL TeLepuone Company or 10-CB-2141)

THE SovrHeEast 11-CB-359-4

(formerly

J 26-CB-725)

ORDER CONSOLIDATING CASES, COMPLAINT,

AND NOTICE OF HEARING

It having been charged in Cases Nos. 11-CB-359, 11-CB.

359-2 (formerly 5-CB-1279), 11-CB-359-3 (formerly 10-CB.

2141) and 11-CB-359-4 (formerly 26-CB-725), by General

Telephone Company of the Southeast, herein called General

Telephone, that International Brotherhood of Electrical

Workers, AFL-CIO, and its Locals 289, 2035, 1431 and 1087,

herein collectively called Respondents, have engaged in and

are engaging in unfair labor practices effecting commerce

as set forth and defined in the National Labor Relations

Act, as amended, 29 U. S. C. See. 151, et seqg., herein called

the Act, and the General Counsel of the National Labor

Relations Board, herein called the Board, by the under-

signed Regional Director for the 11th Region, having duly

considered this matter, and it being deemed necessary to

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consolidate said cases in order to effectuate the purposes

of the Act and to avoid unnecessary costs or delay,

Ir 1s Henewy Onveren, pursuant to Section 102.33 of the

Board’s Rules and Regulations, Series 8, as amended, that

these cases be, and they hereby are, consolidated.

Upon said charges the General Counsel of the Board, on

behalf of the Board, by the undersigned Regional Director,

issues this Complaint and Notice of Hearing pursuant to

Section 10(b) of the Act and Section 102.15 of the Board's

Rules and Regulations, Series 8, as amended.

1.

A copy of the charge in Case No. 11-CB-359 filed on June

29, 1972, was duly served upon International Brotherhood of

Electrical Workers, AFL-CIO, herein called Respondent

International, and International Brotherhood of Electrical

Workers, Locals 1087, 289, 2035 and 1431, herein called

Respondent locals 1087, 289, 2035 and 1431, respectively, by

registered mail on June 29, 1972. A copy of the charge in

Case No. 11-CB-359-2 (formerly 5-CB-2179) filed on June

28, 1972, was duly served upon Respondents by registered

mail on June 29, 1972. A copy of the charge in Case No.

11-CB-359-3 (formerly 10-CB-2141) filed on June 28, 1972,

was duly served upon the Respondents by registered mail

on June 29, 1972. A copy of the charge in Case No.

11-CB-359-4 (formerly 26-CB-725) filed on June 29, 1972,

was duly served upon Respondents International Brother-

hood of Electrical Workers, Locals 1087 by registered mail

on June 29, 1972, and Respondents Local 1431, Local 2035,

and Local 289 on June 30, 1972.

2.

On July 27, 1972, the General Counsel of the Board,

pursuant to Section 102.33 of the Board’s Rules and Regula-

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tions, Series 8, as amended, ordered that the aforesaid

Case Nos. 5-CB-2179, 10-CB-2141, and 26-CB-725 be trans.

ferred to and continued in the 11th Region of the Board as

Case Nos. 11-CB-359-2, 11-('B-359-3, and 11-CB-359-4, re.

spectively.

3.

General Telephone is and has been at all material times

herein, a Virginia corporation maintaining its principal

office in Durham, North Carolina, with plants and exchanges

in the States of North Carolina, Virginia, South Carolina,

Tennessee, West Virginia, Alabama and Virginia, where

it is engaged as a public utility in providing local and long

distance telephone service to customers in each of these

states.

a

General Telephone has an annual gross income in excess

of $1,000,000, and it provides toll call services valued ip

excess of $50,000 annually.

5.

General Telephone is, and has been at all times material

herein, engaged in commerce within the meaning of Section

2(6) and (7) of the Act.

6.

The Respondent International and Respondent Local

289, Local 1431, Local 2035 and Local 1087, are, and have

been, at all times material herein, labor organizations within

the meaning of Section 2(5) of the Act.

7.

All employees assigned to (ieneral Telephone’s plant,

commercial, engineering, accounting, budget, data coordi-

nation, marketing and traffic departments in its General

Office and North Carolina Division, constitute a unit ap-

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iate for the purposes of collective bargaining within

the meaning of Section 9(b) of the Act. These employees

‘orm line man, switch man and installation work in con-

nection with General Telephone’s, providing and maintain-

ing telephone service for customers within the State of

North Carolina.

8.

All employees assigned to General Telephone’s com-

mercial and engineering departments in its Charles Town-

Rommey Distriets of the West Virginia-Virginia Division,

constitute a unit appropriate for the purposes of collective

bargaining within the meaning of Section 9(b) of the Act.

These employees perform line man, switch man and in-

<tallation work in connection with General Telephone’s

providing and maintaining telephone service for customers

within the State of West Virginia.

9.

All employees assigned to General Telephone’s traffic

and commercial departments in its South Carolina Division,

constitute a unit appropriate for the purposes of collective

bargaining within the meaning of Section 9(b) of the Act.

These employees perform line man, switch man and in-

stallation work im connection with General Telephone’s

providing and maintaining telephone service for customers

within the State of South Carolina.

10.

All employees assigned to General Telephone’s traffic

and commercial departments in its Tennessee Division con-

stitute a unit appropriate for the purposes of collective

bargaining within the meaning of Section 9(b) of the Act.

These employees perform line man, switch men and in-

stallation work in connection with General Telephone’s

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providing and maintaining telephone service for customers

within the State of Tennessee.

11.

At all times since on or about 1955, and continuing to

date, Local 289 has been a representative of the employees

in the unit described in paragraph 7 above for the Purposes

of collective bargaining, and by virtue of Section (a) of

the Act has been, and is now, the exclusive representative

of all the employees for the purposes of collective bargain.

ing with respect to rates of pay, wages, hours of employ.

ment and other terms and conditions of employment,

12

At all times since on or about November 21, 1958, and

continuing to date, Local 2035 has been a representative of

the employees in the unit deseribed in paragraph 8 above

for the purpose of collective bargaining, and by virtue

of Section 9(a) of the Act, has been, and is now, the exelu-

sive representative of all the employees for the purposes

of collective bargaining with respect to rates of pay, wages,

hours of employment and other terms and conditions of

employment.

13.

At all times since on or about April 1, 1968, and continu.

ing to date, Local 1431 has been a representative of the

employees in the unit described in paragraph 9 above for

the purposes of collective bargaining, and by virtue of

Section 9(a) of the Act has been, and is now, the exclusive

representative of all the employees for the purposes of col-

lective bargaining with respect to rates of pay, wages, hours

of employment and other terms and conditions of em-

ployment.

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14.

At all times since on or about 1957, and continuing to

date, Local 1087 has been a representative of the employees

in the unit deseribed in paragraph 10 above for the purposes

of collective bargaining, and by virtue of Section 9(a) of

the Act has been, and is now, the exclusive representative of

all the employees for the purposes of collective bargain-

ing with respect to rates of pay, wages, hours of employ-

ment and other terms and conditions of employment.

15.

The following-named individuals occupy the positions in

the labor organizations shown opposite their respective

names, and are, and have been at all times material herein,

agents of the respective labor organizations, within the

meaning of Section 2(13) of the Act:

Thomas J. Murphy — International Representative

Larry Kellaris -—- International Representative

Arthur Holland — President, Local 289

John Tyree — President, Local 1087

Vernon W. Webster, Jr. — President, Local 2035

E. J. Johnson — President, Local 1431

16.

Since on or about March 5, 1972, and continuing there-

after, Respondents, despite the history of separate recog-

nition of the respective locals in the respective units de-

scribed above, and over the pretest of General Telephone,

have insisted, with threat of strike, that General Telephone

recognize a System Council as the exclusive collective bar-

gaining representative of al! the employees in the units

described in paragraphs 7, 8, 9 and 10, above.

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17.

Since on or about June 1, 1972, and continuing thereafter,

Respondents have insisted, with threat of strike, upon a

common expiration date for any collective barguining

agreements covering; the employees described in paragraphs

7, 8, 9 and 10, abowe, in conjunction with their insistence

on recognition of a System Council as described in para.

graph 16, above.

18.

Since on or about June 1, 1972, and continuing there-

after, Respondents have insisted with threat of strike, that

no collective bargaiming agreement would be consummated

for any one of the umits described in paragraphs 7, 8, 9 and

10, above, unless agreements that all such units contained

provisions for common expiration dates.

19.

Since on or about July 27, 1972, Respondents have en-

gaged in a strike to require General Telephone to agree to

their demands as set forth in paragraphs 16, 17 and 18,

above.

20.

On or about May 22, 1972, Respondent Local 289 and

General Telephone agreed upon all the terms and conditions

of a collective bargaining agreement covering the em-

ployees in the unit described in paragraph 7, above, and

General Telephone requested that Local 289 execute a

written contract incorporating such agreement.

21.

Since on or about June 14, 1972, Respondent Local 289

has refused, and continues to refuse, to execute the collec-

tive bargaining agreement referred to in paragraph 20,

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All

above, because it failed to provide for recognition of a

System Council.

22.

By the acts described above in paragraphs 16, 17, 18,

19 and 21, above, the Respondents, and each of them, did

refuse, and are refusing, to bargain collectively with an

Employer, and thereby did engage in, and are engaging in,

unfair labor practices affecting commerce within the mean-

ing of Section 8(b)(3) and Section 2(6) and (7) of the Act.

23.

The acts of the Respondents described in paragraphs 16,

17, 18, 19 and 21, above, occurring in connection with the

operation of the Employer described above in paragraphs

3, 4 and 5, have a close, intimate and substantial relation

to trade, traffic and Gommerce among the several States

and tend to lead to labor disputes burdening and obstruct-

ing commerce and the free flow of commerce.

24.

The acts of Respondents described in paragraphs 16,

17, 18, 19 and 21, above, constitute unfair labor practices

within the meaning of Section 8(b)(3) and Section 2(6)

and (7) of the Act.

PieasE Take Notice that on the 22nd day of August,

1972, at 10 a.m., E. D. T., in the Federal Courtroom, United

States Post Office, Durham, North Carolina, a hearing will

be held before a duly designated Trial Examiner of the

National Labor Relations Board on the allegations set forth

in the complaint, at which time and place you will have the

right to appear in person, or otherwise, and give testimony.

Form NLRB-4668, Statement of Standard Procedure in

Formal Hearings Held Before the National Labor Relations

Board in Unfair Labor Practice Cases, is attached.

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You are further notified that pursuant to Section 102,29

and Section 102.21 of the Board's Rules and Regulations,

Series 8, as amended, you shall file with the Regional Diree.

tor, acting in this matter as agent of the National Labor

Relations Board, an original and four copies of an answer

to the said complaint within 10 days from service thereof,

and that unless you do so, all the allegations in the above

complaint shall be deemed to be admitted to be true and

may be so found by the Board.

Dated at Winston-Salem, North Carolina, this 29th day

of July, 1972.

/s/ Reep JoHNSTON

Reed Johnston, Regional Director

National Labor Relations Board

Region 11

1624 Wachovia Building

Winston-Salem, North Carolina 27101

RSA ATT SP BE SES ROE IS ES ER BRP RIN SETI ATE GS, rei o. /