Willamette Indust v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 25, 1998 Decided June 9, 1998

No. 97-1375

Willamette Industries, Inc.,

Petitioner

v.

National Labor Relations Board,

Respondent

On Petition for Review and Cross-Application for

Enforcement of an Order of the

National Labor Relations Board

William H. Walters argued the cause for petitioner, with
whom Louis B. Livingston was on the briefs.

Fred B. Jacob, Attorney, National Labor Relations Board,
argued the cause for respondent, with whom Linda Sher,
Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, and David Habenstreit, Supervi-
sory Attorney, were on the brief.

Lester V. Smith, Jr. was on the brief for amicus curiae
Timber Operators Council.

Harlan Bernstein was on the brief for amicus curiae
Western Council of Industrial Workers.

Before: Silberman and Ginsburg, Circuit Judges, and
Buckley, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Silberman.

Silberman, Circuit Judge: Petitioner Willamette Industries
contends that the National Labor Relations Board failed to
adequately explain why certification of a maintenance-only
bargaining unit was appropriate, in light of the Board's
previous practice and its prior precedent. We grant the
petition for review, and deny the Board's cross-petition for
enforcement.

I.

At its Albany, Oregon facility, Willamette Industries man-
ufactures particleboard from wood by-products. Production
employees work on the "line" turning raw materials into
finished product, and maintenance workers are responsible
for keeping the line running smoothly. Production and main-
tenance employees are included in the same collective bar-
gaining unit at all 21 of Willamette's organized lumber indus-
try plants, three of which are particleboard facilities. Local
280 of the International Brotherhood of Industrial Workers,
however, petitioned for an election only among the 40 mainte-
nance employees of the approximately 200 production and
maintenance workers at the Albany plant. The Regional
Director (Acting), after a contested hearing, directed an
election in the unit sought by Local 280, which the Union won
29-11. Petitioner refused to bargain with what it contended
was an inappropriate unit in the lumber industry. In the
ensuing unfair labor practice proceeding, the Board agreed
with the Regional Director's unit determination.

II.

We grant wide deference to the Board's unit determina-
tions, mindful as we are, that the Board is not obliged to
select the most appropriate unit but only an appropriate unit.
American Hosp. Ass'n v. NLRB, 499 U.S. 606, 610 (1991);
Local 627, Int'l Union of Operating Eng'rs v. NLRB, 595
F.2d 844, 848 (D.C. Cir. 1979). Many representation cases,
moreover, turn on disputed questions of fact. Accordingly,
we often reject challenges to Board unit determinations sum-
marily, occasionally raising a judicial eyebrow that a petition-
er would even bring the case to us. This is not such a case.

Petitioner argues that for a very long time the Board has
certified only "wall-to-wall" units in the lumber industry.
The Regional Director and the Board, it is asserted, have
reversed course in this proceeding without an explanation,
indeed without even acknowledging that a policy change was
effected. In order to understand petitioner's position, which
is supported by amici Timber Operators Council and the
Western Council of Industrial Workers (the Union that repre-
sents employees in many lumber industry "wall-to-wall"
units), it is necessary to review Board precedent going back
almost 50 years. For a time, the Board flatly barred sepa-
rate "craft" or special department representation in the lum-
ber industry. See Weyerhaeuser Timber Co., 87 N.L.R.B.
1076, 1082 (1949). That per se rule was adopted "[i]n view of
the comprehensive and consistent history of industrial bar-
gaining, the extensive integration of all production and main-
tenance work, and the fact that the industry ha[d] tended to
develop specialists rather than workmen in the craft tradi-
tion." Id. In 1966, the Board abandoned Weyerhaeuser's
categorical approach, along with similar rules operating in
other industries, in its Mallinckrodt Chemical Works deci-
sion. 162 N.L.R.B. 387, 398 n.17 (1966). But, the next year,
in Timber Products Co., 164 N.L.R.B. 1060 (1967), the Board
made clear that it would still look unfavorably on separate
maintenance units in the lumber industry. In that case, a
unit of maintenance electricians was rejected partly because
of the "integrated aspects of [the] employer's operation" and
partly because "the pattern of bargaining in [the lumber]

industry ha[d] been almost exclusively on an industrial rather
than craft basis, and that such bargaining ha[d] been condu-
cive to a substantial degree of stability in labor relations."
Id. at 1063.1 Similar results (and reasoning) followed in
Potlatch Forests, Inc., 165 N.L.R.B. 1065 (1967), and U.S.
Plywood-Champion Papers, Inc., 174 N.L.R.B. 292 (1969).
Member Fanning, dissenting in U.S. Plywood, 174 N.L.R.B.
at 297, as he had in Timber Products, accused the Board of
virtually having resurrected the Weyerhaeuser per se rule.

That is how Board law stood prior to this case. And we are
told that industry practice conforms to this "wall-to-wall"
pattern. The Regional Director's decision nevertheless broke
from this pattern. He found that the Albany plant's mainte-
nance employees had a separate "community of interest"
because they had their own supervision, had a common
function, were more highly-skilled than production workers,
were on a higher wage scale, and did not regularly perform
any production work. He dismissed the prior Board lumber
cases as distinguishable on their "facts." He did not even
mention the operations integration point that the Board cases
had emphasized,2 and as to what Member Fanning had ob-
served was the all-important factor--the history of wall-to-

__________
1 The Board also thought the electrical workers were more
specialists than true craftsmen, but Member Fanning, who dissent-
ed, thought the Board's decision was really driven by the lumber
industry's bargaining history. Timber Products, 164 N.L.R.B. at
1067.

2 Board's counsel argued that although the Regional Director
did not explicitly consider the Board's "integrated operations" fac-
tor, his determination that the maintenance employees' job func-
tions substantially differed from the production employees' tasks
was the equivalent. But in the Board's prior cases, the integrated
operations factor looked to "the extent to which the continued
normal operation of the production process is dependent upon the
performance of the assigned functions of the employees in the
proposed unit." Mallinckrodt, 162 N.L.R.B. at 397 (cited in Timber
Products and Potlatch Forest for the proposition that integrated
operations is relevant to lumber industry unit determinations).

wall bargaining units in the industry--the Regional Director
had this to say:

The Employer offered evidence that at others of its
plants, and in the lumber industry in general, production
and maintenance units are the rule. However, there is
no evidence that establishment of a maintenance-only
unit at the Albany plant would have any disruptive effect
on labor relations at the Employer's other plants or
otherwise in the industry.

The Board, in its answer to Willamette's challenge to the
unit determination in the unfair labor practice proceeding,
agreed with the Regional Director that its prior cases were
distinguishable because they involved a greater degree of
integration and interchange of job functions between mainte-
nance and production employees. The Board also appeared
to endorse the Regional Director's treatment of the industry
bargaining pattern, interpreting one of its prior lumber cases
as not relying so heavily on this factor. It said that while
"the Board in U.S. Plywood ultimately determined that the
petitioned-for maintenance department unit in that case was
inappropriate, it did so primarily on the ground that the
subject maintenance employees were not a distinct and homo-
geneous group, not on the basis of industry bargaining pat-
tern and stability." Willamette Indus., 323 N.L.R.B. No. 137,
(1997).

We do not think the Regional Director and Board's deci-
sions meet the reasoned decisionmaking standard of the APA.
To be sure, Board precedent permitted a distinction to be
drawn, as it always does in such cases, between the factors
that point to a separate or common community of interest
between maintenance and production workers--although, as
we noted, neither the Regional Director nor the Board explic-
itly addressed the integration of operations factor. But there
simply is no denying that in the lumber industry the standard
wall-to-wall practice had always been given significant, if not
dominant, influence on unit determinations. The Regional
Director, while ostensibly addressing that factor, turned it
inside out by asserting blithely that there was "no evidence"

that establishing a maintenance-only unit in the Albany plan
would have a "disruptive effect on labor relations at the
Employer's other plants" (or otherwise within the industry).
The Board in evaluating this factor in the past had always
pointed to the positive evidence of labor stability as connected
to the historical wall-to-wall bargaining units. It had never
asked whether a deviation would cause instability. It is
doubtful whether such speculative evidence could be pro-
duced, but, in any event, changing the focus in that way is
equivalent to fundamentally downgrading that factor sub
silentio. And because that factor was so important, its
diminution causes a 180%A1 turn in policy with no Board expla-
nation. This will not do. See Drug Plastics & Glass Co. v.
NLRB, 44 F.3d 1017, 1022 (D.C. Cir. 1995).

* * * *

In the order under review the Board neither properly
considered the integration and bargaining-pattern factors
that it had previously identified as important in determining
the appropriate bargaining units in the basic lumber industry,
nor did it explain why those factors no longer deserve the
same weight that they have received in the past. According-
ly, we grant the petition for review and deny the application
for enforcement.