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

No. 72-220

PHELPS DODGE CORPORATION,

rs. 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,

rs. Petitioner,

AFL-C1lO JOINT NEGOTIATING COMMITTEE FOR

PHELPS DODGE, er a... 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-

TIONS FOR WRIT OF CERTIORARI.

MILTON A. SMITT,

General (ooneert,

TT F. WENZLER.

Laber Relations Count,

Chamber of Commerce of the

Taited State« of America.

1615 H Street. XN. W..

Washington, Ip. C. 20008,

GERARD CC. SMETANA,

#25 Seuath Homan Arenue.

Chicage, Milinei« 60607,

LAWRENCE M. COHEN.

HERBERT M. RERMAN.

K. BROCE STWKLER,

LEDERER, FOX AND GROVE.

Itt Weet Warhincton Street.

Chicage, Mlineixs quan,

Afterneys for the Chamber of Commerce of the

United States of America. ,

aye POLES

PP! Aye HS Se seo 6 <

SR Tyee ‘

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

Ce GE BOE. 0 4. c cccccvesccssccesesscosess 3

AaMMMOM on ccccccccccccscccccccccccccocccsccccece 5

A. The decision below will lead to the breakdown

of the stable bargaining units envisaged by

es 6.66666 6656006058 560000655 008 SC SECO 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

GD BR ccccccccevceccceccsecscecséseesene 9

PD | «75 le 666 cebeae ébaeeendieceneansueneetn 11

TasBLe 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.

NIN sc cagducie ackanuueiele , Sea te a 7,8

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

See ED 00.6065060040606adeesebeobneboeseneses 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.

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

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

i Tp sasnenédoenéeacbesrnsesdenensséetsens y

N. L. R. B. v. Hess Oil & Chemical Corp. 415 F. 2d

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

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

361 U. S. 477, 497-498 (1960) ...............22000.. 4

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

I, CE cocdcdeceseveeisosonscors 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,

DPT + .scdatkbitenssvndbeneavenneennedoason 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

PED Gees Ob Bc ccccccscasccocsccccecs 4

1967 Labor Relations Yearbook, 84, 85, 91............ 7

I Be a ee ae ee

IN THE

Supreme Court of the Gnited States

Octoser Term, 1972.

No. 72-220.

PHELPS DODGE CORPORATION,

Petitioner,

vs.

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-CIO JOINT NEGOTIATING COMMITTEE FOR

PHELPS DODGE, er av., ax» 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.

ooo

eee

INTEREST OF THE AMICUS CURIAE.

The Chamber of Commerce of the United States of

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

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 is

‘‘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 w ritten sonnent 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.

3. 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 underlying 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 on 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 de inands were all manda-

tory items and concluded nevertheless that insistence to impasse

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

TPS LETS BL NT SRI NO IIE ST ee

3

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. S. 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, i.e..

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-

ferrous 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).

—_

Ps ee

ene rere - %

Pe vstrcemcnn., fobs A

4

case 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, ean 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. B. y,

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 (Tndustrial

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

sity of Pennsylvania 1972). p. 10.

5

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 in enlarged unit bargaining will lead to a

breakdown of collective bargaining in numerous multi-

unit 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 voluntary 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,

6

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

3 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),

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

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

i 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 ened by the Director of “Region 11 of the

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

BPirdeas nernicinnimec ove piste data dk adie atom

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

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

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

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 bu~ine=+, may be equally important.”

404 U.S. at 179, n. 19 Cengeliast« 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 thix 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,”

% In Fibre board, the © ourt held tha “replacement of em.

ployees in the existing bargaining unit with these of an independ.

ent contractor te do the same work under similar conditions of

employment—i iva paney subject of collective bargaining under

Section 8(b).°° 379 UT. at 215. In Oliver and in Carroll, this

Court dealt with the pada Se of whether certein combinations

or agreements violated anti-trust laws. In Olirer, 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 net therefore vielate Ohio's anti-

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

mean the progressive curtailment of jobs through withdrawal 4

more and more carrier-owned vehicles from serviee.”” 358 U. 8

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

yr job competition of other union members . . °° 391 U.S.

at 101-1

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

nination 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

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

decision below, it ix 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. Ax the Court of

Appeals for the Second Circuit pointed out in N. 1. R. B.

v. General Electric Coa. AVS F. 2d 736, 760 n. 15 (1969),

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

unployer’s overall conduct of negotiations wax unlawful

even though hix individual actions considered alone were

proper :

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

become a vital part of an illegal overall pattern of

conduct.

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

considered im fofo, unilaterally enlarged the bargaining

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 ommon expiration date demand would, as a_ practical

_-_--_—_-

10. “10. Inet enacting Section 9 of the Act. ‘Cangrem establiched a

detailed precedure for collective bargaining. An established bar-

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

parties, but only throuch mutnal consent er through utilization

of the Board's representation procedures. [»fcrnetional Lane.

shoremen’s Association (New Vark Shipping Association, Ine).

118 NLRB 1841. 1842. enforcement denied on other ereunds, 27

F. 24 681 (D.C. Cir, 1960): N LB Rv. Mentqemery Ward &

Co, Inc. 399 F. 2d 409, 112 (7th Cir, 1968): Dowds © TL A.

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

Tac... 142 NLRB 930, 939: Tertile. Jee. 119 NLRB 1792. 1797-17%

Absent agreement. neither empleyer ner anien “may attempt te

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

or units.” Shell Oi Co., supra, Accord: NX. L. R. Bo v. Hess OF @

Chemical Corp. 415 FP. 2d 440, 444 61969). cert, denied 297 TS

916 (1970): The Standard Oi Company. 137 NLRB 690, &™

(1962) enforced 222 F. 24 40 (6th Cir, 196%). Indeed the anti-

trust, as well as the laher, laws are “clearly st agrinst emplever-

union agreements seeking to prescribe labor standards outsule the

bargaining unit.” (nited Mine Workers «. Perningten, 1 TLS

657, 665 (1965). In sum, once the duty te bargain exists, change

whieh **. .. denies the Roard |. . ultimate control, of the bargaining

unit . . . disrupts the bargaining process."" Dowds v. 1. L. A. supre

at 283.

SS

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

anit-by-unit basis ax 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

hasis.""

CONCLUSION.

Thi» case raises a recurring and substantial problem in

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

resolved by thix Court, ix likely to engender further severe

economic 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,

~

V1. This result is wholly inconsistent with this ( .art’s repeated

warning that it ““must net 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, infer alia Mastro Plastics Corp. v. N. L. R. B., 350

tS. 270 (1956).

=

SPURT PAPER EI Pn RS A

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Al

APPENDIX A.

AFFIDAVIT

SraTe OF PENNSYLVANIA

(CounTY OF LANCASTER

I, L. J. Bibri, being first duly sworn on my oath depose

and state as follows:

1. I am Vice President and Director of Employee Re-

lations of the Armstrong Cork Company, Liberty and

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

as 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-

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

2. On various dates between April 13 and August 2,

1972 plant managers at our Macon, Georgia, Jackson,

Mississippi, Fulton, New York, Braintree, Massachusetts

and Beaver Falls, Pennsylvania plants received from local

mions representing these respective plants the following

contract demands:

a) There shall be no strikes in the bargaining unit

covered by this agreement during the life of this agree-

ment: provided that this no-strike clause shall not be

effective during any period in which employees are

conducting a lawful strike in any other bargaining unit

of the Company.

hb) The termination date of this agreement be the

same as the termination dates in other agreements

negotiated by the Company in 1972.

c) When, during the term of this agreement, the

Company negotiates an agreement covering any other

yore

AN REL ON ADA AGED LB tw

ADA Nao hat ay

a

A2

bargaining unit of the Company, the Union shall have

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 in

each instance the Third Circuit Court of Appeals decision

of AFL-CIO v. Joint Negotiating Committee for Phelps

Dodge v. NLRB, 79 LRRM 2939 (3rd Cir. 1972), petition

for certiorari filed in Case Nos. 72-220 and 72-359 (S. Ct.

Oct. term, 1972). At the other locations the same demand-

were presented in substance as part of basic contract pro-

posals. While documentation was not offered, the demands

were described as being of the same orgin as those listed

above.

3. This tactic was merely a refinement of the demands

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 United States

presented the Company with uniform demands for changes

in the pension and insurance supplements in effect at those

locations. In the negotiations which ensued, it became ob-

vious to me, and the records so support, that the IUD's

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

supplement and the basic contract upon the expiration date

at each of the plants in turn, and (hb) to offer to work

without a contract until all of the plant agreements in the

company had expired so as to effeet, if necessary, a multi-

plant shut-down.

4. IUD representatives were frequently present at con-

tract negotiations at each separate location. As a result

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;

A3

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

November 14, 1970;

ce) Fulten, New York, August 19, 1970 to Novem-

ber 16, 1970;

d) Braintree, Massachusetts:

1. Production unit, August 25, 1970 to November

10, 1970;

2. Maintenance unit: August 26, 1970 to November

16, 1970;

e) Jackson, Mississippi: September 1, 1970 to No-

vember 7, 1970.

I have read the above affidavit consisting of this page

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

of my knowledge.

/s/ L. J. Brsri

A4

APPENDIX B.

Unrtep States or AMERICA

Before the National Labor Relations Board Region 1],

: Cases Nos.

11-CB-359

INTERNATIONAL BROTHERHOOD OF 11-CB-359.2

ExectrricaL Workers, AFL-CIO, (f iy

and Its Locats 289, 2035, 1431 meget J

and 1087 q 5-CB-1279)

and 11-CB-359-3

(formerly

GenxeraL TELEPHONE CoMPANY OF 10-CB-2141)

THE SOUTHEAST 11-CB-359-4

(formerly

d 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 seq., 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

|

1 POGUE IE Fe SOLE RR

A5

consolidate said cases in order to effectuate the purposes

of the Act and to avoid unnecessary costs or delay,

Ir 1s Heresy Orperep, 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-CB-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.

4,

General Telephone has an annual gross income in excess

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

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.

ee

All employees assigned to General 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-

SB ELE OL LOE, CL MEE BLE SOL IL ED GOST LE IES LRN he GOO

all

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propriate for the purposes of collective bargaining within

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

perform 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 Districts 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-

stallation 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 in 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 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.

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 described 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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A9

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 described 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 »

common expiration date for any collective bargaining

agreements covering the employees described in paragraph.

7, 8, 9 and 10, above, in conjunction with their insixtenc

on recognition of a System Council a< described in pars

graph 16, above.

18.

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

after, Respondents have insisted with threat of «trike, that

no collective bargaining agreement would be consummated

for any one of the units described in paragraph« 7, §, 9 and

10, above, unless agreements that all <uch units contained

provisions for common expiration dates.

Since on or about July 27, 1972, Re«pondent« have e-

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 condition

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.

Since on or about June 14, 1972, Respondent Local 29

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

tive bargaining agreement referred to in paragraph 20,

AS

All

above, because it failed to provide for recognition of a

System Council.

By the acts described above in paragraphs 16, 17, 14,

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.

The acts of the Respondents described in paragraphs 16,

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

operation of the Employer described above in paragraphs

4, 4 and 5, have a cloee, intimate and «ub«tantial relation

to trade, traffic and commerce among the several States

and tem to lead to labor dixputex burdening and obstruct-

mg commerce and the free flow of commerce.

a4

The acts of Rexpondents described in paragraphs 16,

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

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

and (7) of the Act.

Pirast Taxe Novice that on the 22nd day of August,

972, 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

Xathonal Labor Relations Board on the allegations «et forth

m the complaint, at which time and place vou will have the

night to appear in person, or otherwise, and give textimony.

Form NLEB-4668, Statement of Standard Procedure in

Formal Hearings Hekl Before the National Labor Relations

Beard in Unfair Labor Practice Cases, ix attached.

Al2

You are further notified that pu to Section 102.

and Section 102.21 of the Board's RB and

Series 8, ax amended, you shall file with the Regional Direc.

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

Relations Board, an original and four copies of an anewer

to the said complaint within 10 days from service thereof,

and that anles« you do <0, all the allegation« im the above

complaint shall be deemed to be admitted to be truce and

may be so found by the Board.

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

of July, 1972.

« Ree» Jouxerox

Reed John«ton, Regional Director

National labor Relation.< Board

Region 11

1624 Wachovia Building

Winston-Salem, North (arolina 27m