B.A. Mullican Lumber & Mfg. Co.

National Labor Relations Board - Board Decisions

Jul 31, 2007

350 N.L.R.B. 493 (N.L.R.B. 2007)

B.A. MULLICAN LUMBER & MFG. CO.
350 NLRB No. 45
493
B.A. Mullican Lumber & Manufacturing Company
and United Mine Workers of America. Cases
11–CA–19451 and 11–CA–19547
July 31, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On November 27, 2002, Administrative Law Judge
George Carson issued the attached decision. The Re-
spondent and the Charging Party filed exceptions, sup-
porting briefs, answering briefs, and reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,
and to adopt his recommended Order as modified.2
REMEDY
Having found that the Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act by withdrawing recognition from the
Union, we shall order the Respondent to cease and desist
from engaging in such conduct and to bargain with the
Union in the bargaining unit described in the judge’s
decision, with respect to wages, hours, and other terms
and conditions of employment and, if an agreement is
reached, embody it in a signed document.

1 The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We deny the Respondent’s motion to strike the Charging Party’s
brief. We also deny the Respondent’s motion to reopen the record.
The latter motion seeks to introduce into evidence the Respondent’s
position statement to the Board’s Regional Director, in which the Re-
spondent requested information regarding how many decertification
slips the decertification petitioner had filed in support of the petition.
The Respondent offers no explanation for its failure to offer its position
statement into evidence at the hearing. In addition to this procedural
point, the substantive position taken in the statement does not aid the
Respondent. In support of its motion, the Respondent cites NLRB v.
New Associates, 35 F.3d 828 (3d Cir. 1994), where the Third Circuit,
relying on the Board’s failure to disclose decertification information to
the employer, denied enforcement of the Board’s bargaining order.
However, as the judge noted, the Board has held that the concerns
underlying the Third Circuit’s New Associates decision are not applica-
ble where, as here, the employer withdraws recognition before, and
therefore without reference to, the employer’s request for the decertifi-
cation information. See Planned Building Services, 318 NLRB 1049
(1995).
2 We shall modify the judge’s recommended Order to provide the
standard notice posting language.
The judge recommended an affirmative bargaining or-
der to remedy the Respondent’s unlawful withdrawal of
recognition, but did not justify imposition of such an
order as required by the United States Court of Appeals
for the District of Columbia Circuit. Nevertheless, for
the reasons set forth below, we agree with the judge that
an affirmative bargaining order is warranted on the facts
of this case.
The Board has previously held that an affirmative bar-
gaining order is “the traditional, appropriate remedy for
an 8(a)(5) refusal to bargain with the lawful collective-
bargaining representative of an appropriate unit of em-
ployees.” Caterair International, 322 NLRB 64, 68
(1996). In several cases, however, the United States
Court of Appeals for the District of Columbia Circuit has
required the Board to justify, on the facts of each case,
the imposition of an affirmative bargaining order. See,
e.g., Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d
727 (D.C. Cir. 2000); Lee Lumber & Building Material
Corp. v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997);
Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C.
Cir. 1994). In Vincent Industrial Plastics, supra, the
court stated that an affirmative bargaining order “must be
justified by a reasoned analysis that includes an explicit
balancing of three considerations: (1) the employees’
Section 7 rights; (2) whether other purposes of the Act
override the rights of employees to choose their bargain-
ing representatives; and (3) whether alternative remedies
are adequate to remedy the violations of the Act.” Supra
at 738. Consistent with the court’s requirement, we have
examined the particular facts of this case and we find that
a balancing of the three factors warrants an affirmative
bargaining order.
(1) As the Board stated in Parkwood Developmental
Center, Inc.,3 an affirmative bargaining order in this case
vindicates the Section 7 rights of the unit employees who
were denied the benefits of collective bargaining by the
Respondent’s unlawful withdrawal of recognition and
resulting refusal to bargain with the Union for a collec-
tive-bargaining agreement. The Respondent withdrew
recognition from the Union without a showing that the
Union had actually lost majority support. The Respon-
dent’s unlawful conduct demonstrated a disregard for the
employees’ Section 7 right to select union representation,
and the Respondent’s conduct would tend to unfairly
undermine continuing support for the Union. At the
same time, an affirmative bargaining order, with its at-
tendant bar to raising a question concerning the Union’s
continuing majority status for a reasonable time, does not
unduly prejudice the Section 7 rights of employees who

3 347 NLRB 974, 976 (2006).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD494
may oppose continued union representation as the order
is not of indefinite duration but for a reasonable period of
time sufficient to allow the good-faith bargaining that the
Respondent’s unlawful withdrawal of recognition cut
short. It is only by restoring the status quo ante and re-
quiring the Respondent to bargain with the Union for a
reasonable period of time that employees’ Section 7 right
to union representation is vindicated. It will also give
employees an opportunity to fairly assess the Union’s
effectiveness as a bargaining representative and deter-
mine whether continued representation by the Union is in
their best interests.
(2) An affirmative bargaining order also serves the
Act’s policies of fostering meaningful collective bargain-
ing and industrial peace. It removes the Respondent’s
incentive to delay bargaining in the hope of discouraging
support for the Union, and it ensures that the Union will
not be pressured to achieve immediate results at the bar-
gaining table—results that might not be in the employ-
ees’ best interests. It fosters industrial peace by reinstat-
ing the Union to its rightful position as the bargaining
representative chosen by a majority of the employees.
Also, as mentioned, providing this temporary period of
insulated bargaining will afford employees a fair oppor-
tunity to assess the Union’s performance in an atmos-
phere free of the effects of the Respondent’s unlawful
withdrawal of recognition and refusal to bargain.
(3) As an alternative remedy, a cease-and-desist order,
alone, would be inadequate to remedy the Respondent’s
withdrawal of recognition and refusal to bargain with the
Union because it would allow another challenge to the
Union’s majority status before the employees had a rea-
sonable time to regroup and bargain with the Respondent
through their chosen representative in an effort to reach a
collective-bargaining agreement. Such a result would be
particularly unfair where the Respondent’s unlawful re-
fusal to recognize and bargain with the Union has con-
tinued since June 28, 2002, and has likely undermined
employee support for continued union representation.
Allowing another challenge to the Union’s majority
status without a reasonable period for bargaining also
would be unfair in light of the fact that the litigation of
the Union’s charges took several years and, as a result,
the Union needs to reestablish its representative status
with unit employees. Indeed, permitting a decertification
petition to be filed immediately might very well allow
the Respondent to profit from its own unlawful conduct.
We find that these circumstances outweigh the temporary
impact the affirmative bargaining order will have on the
rights of employees who oppose continued union repre-
sentation.4
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the violation in this case.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, B.A.
Mullican Lumber & Manufacturing Company, Norton,
Virginia, its officers, agents, successors, and assigns
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(c).
“(c) Within 14 days after service by the Region, post at
its facility in Norton, Virginia, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 11,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since June 28, 2002.”
CHAIRMAN BATTISTA, concurring.
I join my colleagues in finding that the Respondent did
not violate Section 8(a)(5) of the Act by unlawfully re-
fusing to execute a collective-bargaining agreement and
that the Respondent violated Section 8(a)(5) of the Act
by unlawfully withdrawing recognition from the Union.1

4 Parkwood, supra, 347 NLRB 974, 977; see also Goya Foods of
Florida, 347 NLRB 1118, 1123 (2006); Smoke House Restaurant, 347
NLRB 192, 193–194 (2006).
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 In light of this violation, I agree with my colleagues that an af-
firmative bargaining order is warranted here. However, I do not agree
with the view expressed in Caterair International, supra, that an af-
firmative bargaining order is “the traditional, appropriate remedy for an
8(a)(5) violation.” I agree with the United States Court of Appeals for
the District of Columbia Circuit that a case-by-case analysis is required
to determine if the remedy is appropriate. Alpha Associates, 344
NLRB 782, 787 fn. 14 (2005). I recognize, however, that the view
expressed in Caterair International, supra, represents extant Board law.
Flying Foods, 345 NLRB 101, 110 fn. 23 (2005). In addition, for the
B.A. MULLICAN LUMBER & MFG. CO. 495
I write separately to express my substantial doubts about
the validity of Levitz Furniture Co. of the Pacific, 333
NLRB 717 (2001), particularly as administered under
current “blocking charge” rules. However, in the ab-
sence of a full-Board majority to use this case as a vehi-
cle to overrule or modify Levitz, I have applied it in this
case, and I have found a violation. In an appropriate
case, however, where a valid RM petition is filed and
supported, I would process the petition without regard to
“blocking charge” rules. My view on this matter is set
forth below.
Under Levitz, an employer who has an objective basis
for uncertainty as to the union’s majority status, but no
objective proof of actual loss, may not lawfully withdraw
recognition. Instead, the employer can file an RM peti-
tion. I agree that the best way for ascertaining employee
desires regarding union representation is to have a secret
ballot NLRB election. That election is superior to au-
thorization cards where a union seeks representation, and
it is superior to informal employee expressions where
employees ostensibly seek to oust an incumbent union as
representative. In this sense, an RM petition leading to
an election is superior to an employer’s unilateral with-
drawal of recognition.
However, an RM petition is often met with union-filed
charges and a union’s request that its charges “block” the
election. Even if those charges are ultimately dismissed
by the Regional Director, the investigation itself will
postpone the election. Further, if the Regional Director
finds that the charges have prima facie merit, and that
they should be a block to the election, the election will be
postponed for the considerable time that it takes to liti-
gate and adjudicate the allegations.2 In the meantime, the
union remains the de facto representative, notwithstand-
ing a very real uncertainty as to the majority status of the
union. There is instability inherent in a situation where
there is uncertainty as to whether the union has majority
support. In view of the above, I would be inclined to
retain Levitz, subject to a requirement that an employer’s
RM petition would not be blocked. Under this approach,
the election would be held, and appropriate objections
could be filed by the losing party.
However, in the instant case, the Respondent did not
file an RM petition.3 Further, the issue of changing the

reasons set forth by my colleagues, I agree that an affirmative bargain-
ing order is warranted under the analysis required by the D.C. Circuit.
2 In theory, the employer could settle the case, but he may not want
to do so if he believes that he has not committed any unfair labor prac-
tices. Of course, he has a right to litigate. And, even if he settles, the
remedial posting period will serve to delay the election.
3 It would appear that an RM petition could have been processed.
The May 21 employee letter to the Respondent appears to have pro-
“blocking charge” rule has not been raised or briefed by
any party or by any amici. In these circumstances, I join
the majority in applying Levitz and finding that the with-
drawal of recognition was unlawful.
There remains one final matter. The employee decerti-
fication slips that ostensibly express rejection of the Un-
ion have been in the possession of the General Counsel.
We do not know how many slips there are or what they
show. The Respondent did not seek to subpoena those
slips. If there had been such a subpoena, the General
Counsel would have been presented with the issue of
whether to consent to the disclosure of these documents.4
In the absence of a subpoena, I do not pass on whether
the General Counsel, as a matter of due process or fair-
ness should consent or on the consequences of any re-
fusal to consent.
Jasper C. Brown Jr., Esq., for the General Counsel.
George J. Oliver, John W. Mann, and Beth Mabe Gianopulos,
Esqs., on brief, for the Respondent.
Deborah J. Feliks, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Norton, Virginia, on October 7 and 8, 2002.1 The
charge in Case 11–CA–19451 was filed on April 19, and the
charge in Case 11–CA–19547 was filed on July 2. A consoli-
dated complaint issued on August 22. The complaint alleges
that the Respondent violated Section 8(a)(5) of the National
Labor Relations Act by failing and refusing to sign an agreed-
upon contract and by withdrawing recognition from the Union.
The Respondent’s answer denies that it violated the Act and, in
a pretrial motion, argues that it never reached an agreement
with the Union. I find that there was no meeting of the minds
regarding the effective date of the contract, thus the Respondent
was not obligated to sign the contract. I find, under the stan-
dard established in Levitz, 333 NLRB 717 (2001), that the Re-
spondent failed to establish by objective evidence that the Un-
ion had lost its majority status, thus the withdrawal of recogni-
tion from the Union was unlawful.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing

vided an objective basis for uncertainty as to the Union’s majority
status.
4 See Sec. 102.118 of the Board’s Rules and Regulations.
1 All dates are in the year 2002, unless otherwise indicated.
2 I hereby receive GC Exh. 18 which was not formally moved into
evidence. Plant Manager Ricky Burchfield admitted its authenticity.
References to the exhibit at the hearing and in both briefs confirm that
the parties assumed that the exhibit had been received.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD496
FINDINGS OF FACT
I. JURISDICTION
The Respondent, B.A. Mullican Lumber & Manufacturing
Company (the Company), a Delaware limited partnership, is
engaged in the manufacture and nonretail sale of wood flooring
at its facility in Norton, Virginia, at which it annually purchases
and receives goods and materials valued in excess of $50,000
directly from points located outside the Commonwealth of
Virginia. The Respondent admits, and I find and conclude, that
the Company is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that the
United Mine Workers of America, the Union, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Contract
1. Facts
The Union was certified as the collective-bargaining repre-
sentative of the Company’s production employees on August
24, 2000.3 The parties began negotiations for a collective-
bargaining agreement on October 27, 2000. On November 17,
2000, the parties agreed to and signed a protocol regarding
negotiations that, in pertinent part, provides that
. . . [A]ll tentative agreements will become final only after to-
tal agreement on all sections of the labor agreement is reached
. . . and after ratification by the local union and company ap-
proval. The company will prepare typed copies of completed
articles to be reviewed and signed by the chief spokesman of
each negotiating committee [at] sessions following those in
which the tentative agreements are reached on the respective
proposals.
Employees at the Company have, historically, received wage
increases in September. In January 2001, the parties, anticipat-
ing that their negotiations would be concluded within a year,
agreed that “future pay increases negotiated though the collec-
tive bargaining process” would “be retroactive to the date of
September 1, 2000,” and would be paid “within sixty (60) days
following the successful conclusion of any new collective bar-
gaining agreement.”
The chief spokesman for the Company during negotiations
was Management Consultant Charles Tuck. The chief spokes-
man for the Union was International Representative Charles
Dixon. In the summer of 2001, a mediator for the Federal Me-
diation and Conciliation Service became involved in the nego-
tiations.
On September 12, 2001, the parties were on the verge of
agreement regarding what both believed would be a complete
collective-bargaining agreement. On the afternoon of Septem-
ber 12, the Union accepted the Company’s comprehensive eco-

3 The appropriate unit is: All full-time and regular part-time produc-
tion employees employed by Respondent at its Blackwood Industrial
Park Road, Norton, Virginia facility; excluding all office clerical em-
ployees, confidential employees, temporary employees, QC techni-
cians, lumber receiving coordinators, shipping coordinators and guards,
professional employees, and supervisors as defined in the Act.
nomic proposal. The proposal states that “[t]he term of the
New Labor Agreement will be for three (3) years commencing
on September 1, 2000, and ending at midnight on August 31,
2003.” It provides, “[i]n lieu of retroactive pay,” for a “one-
time ratification bonus of $300 to each employee currently
working at the time of the execution of this agreement.” The
parties also agreed to five addenda, addendum A through E.
Addendum E, entitled employee disciplinary action, provides
that, in consideration of the payment for “lost production bonus
incentive,” the Union “agrees to withdraw any and all out-
standing grievances filed during the negotiation of this Labor
Agreement.” It is undisputed that the addenda were not signed
or initialed on September 12. Both parties agree that, at the
close of the session, the parties needed to sign the addenda.
The parties disagree regarding the status of a transition agree-
ment regarding attendance.
The tentative collective-bargaining agreement contained a
new attendance policy with point assessments for violations.
The maximum number of points under the new policy was 10.
The existing policy had also assessed points, but at different
amounts than the new policy. Under the old policy, the maxi-
mum number of points was 30. Following the Union’s accep-
tance of the Company’s economic proposal, Company negotia-
tor, Tuck, pointed out that it would be necessary, prior to im-
plementing the terms of the new agreement, to agree upon how
existing points would be transferred to the new system. The
Union proposed that all employees start with a clean slate, that
all points and discipline be erased. The Company disagreed
and proposed carrying forward one third of accumulated points
but with the understanding that no employee would be termi-
nated or moved to a higher level of discipline.
The minutes of the meeting do not reflect that any memoran-
dum of agreement was signed. Dixon testified that full agree-
ment was reached, that a document reflecting the agreement
was created, and that it was signed by the parties. Union Board
Member Mike Kennedy testified that Tuck prepared the agree-
ment. Dixon and Kennedy further testified that the Union had
only one copy of this document and that it disappeared at the
ratification meeting. Tuck testified that no final agreement was
reached and that, when this bargaining session ended, the Un-
ion stated that it would get back to the Company with a pro-
posed transition agreement. He testified that he did not have
his computer with him and did not prepare the agreement at the
meeting. The minutes reflect only that the parties agreed that
no employee would be assessed more than 6 points. The min-
utes do not note agreement regarding discipline or which party
assumed responsibility for drafting the transition agreement.
In view of the fact that the addenda to which the parties
agreed were not signed in final form on September 12, I do not
credit the testimony that the parties signed a document reflect-
ing the transition agreement since this matter was not discussed
until after the parties had agreed to the addenda. Whether the
parties actually agreed to the transition agreement is immaterial
in view of subsequent events. The critical factor for this deci-
sion is the nature of the discussion regarding the transition
agreement insofar as it relates to implementation of the contrac-
tual attendance policy. The entire discussion regarding the
transition agreement related to what action was going to be
B.A. MULLICAN LUMBER & MFG. CO. 497
taken regarding the current point totals of employees. There
was no discussion of retroactivity or recomputing points from
some point in the past.
It is clear that, on September 12, 2001, the parties anticipated
a rapid ratification of the contract, followed by its execution
and implementation. Although the parties discussed transition
to the new attendance policy, implicitly accepting the transition
as being current point totals, neither party raised the matter of
whether the point totals would be the current point totals as of
September 12, the point totals on the day of ratification, or the
point totals on the day of signing. There was no discussion
regarding the effective date of the overall collective-bargaining
agreement.
On September 13, and the morning of September 14, 2001,
the Company created a document titled “Tentative Agreement”
that incorporated all of the substantive provisions to which the
parties had agreed. At 3 p.m. on the afternoon of Friday, Sep-
tember 14, Personnel Manager Chris Kommes met Dixon at
Pound, Virginia, and delivered this document, which the Union
needed for its ratification meeting. The parties agree that
Kommes also delivered addenda A, B, and C and that Dixon
signed those addenda. Kommes testified that he also presented
Dixon with addenda D and E but that Dixon refused to sign
those addenda because neither contained signature lines. Dixon
testified that addenda D and E were not presented to him. Al-
though Kommes says he expected to receive the Union’s draft
of the transition agreement regarding attendance, Dixon did not
present that document to him. Despite his purported anticipa-
tion of receipt of that document, Kommes said nothing to
Dixon about its absence. Dixon, consistent with his testimony
that the document had been drafted and signed on September
12, 2001, testified that the transition agreement was not men-
tioned.
On Monday, September 17, 2001, a decertification petition,
Case 11–RD–626 was filed with the Regional Office for Re-
gion 11. The Company learned of this filing on that date. The
Union had learned of the filing by September 19, 2001.
On September 18, the Union held a meeting that was open to
all employees. The employees ratified the provisions of the
tentative agreement. Dixon and Kennedy, as well as several
employees, testified that the ratification purportedly included
the transition agreement of which there was only one copy, and
Dixon and Kennedy testified that that document could not be
located after the meeting. The tentative agreement, in the first
paragraph, states:
This AGREEMENT, is effective _______________, 2001
and is between Mullican . . . and the INTERNATIONAL
UNION, UNITED MINE WORKERS OF AMERICA. . . .
There is no separate paragraph stating the duration or expira-
tion date for the contract. Consistent with the economic pack-
age to which the parties agreed on September 12, 2001, the
document provides, under “Wages and Benefits” as follows:
“Term of the New Labor Agreement will be for three (3) years
commencing on September 1, 2000, and ending at midnight on
August 31, 2003.”
Notwithstanding its ratification September 18, the Union did
not execute the Tentative Agreement. On September 19, Inter-
national Representative Dixon wrote Tuck advising that the
tentative agreement had been ratified and that the Union had
learned that a decertification petition had been filed with the
Regional Office. The letter continues as follows:
Management’s involvement in this Employee Petition
For Decertification is obvious to the Union and needless to
say Management’s credibility is all but Non-Existent.
Mullican Management needs to admit their involve-
ment in this Employee Decert Process and execute the Par-
ties Tentative Agreement which has been ratified.
If your response to this suggestion is basically a denial
and [to] suggest that the Union file it’s Charges with the
National Labor Relations Board; SAVE YOUR STAMP.
Whether the foregoing request to execute the agreement,
conditioned upon an admission of involvement with the decerti-
fication petition, constituted a legally cognizable request to
execute the agreement is not before me. The 10(b) date in this
proceeding is October 19, 2001. The complaint alleges a fail-
ure to sign an agreed-upon contract as of April 2.
The Union filed a charge with the Board that blocked the de-
certification petition. This charge was, after investigation,
withdrawn. The decertification petition is still pending. It has
continued to be blocked by various unfair labor practice
charges including, since April, the charges in this proceeding.
The record reflects no communications between the parties
in the weeks following the Union’s demand that the Company
admit involvement with the decertification petition.
On November 28, 2001, the Company implemented the 2001
wage increase in the amount to which the parties had agreed
retroactive to September 1, 2001. On November 29, 2001,
Tuck advised Dixon of the Company’s action. The Union did
not reply in writing and no unfair labor practice charge was
filed.
In December, Dixon called Tuck and, in their conversation,
requested copies of the documents that he had signed on Sep-
tember 14. He did not receive them over the Christmas holi-
days and, on January 2, he called again. Tuck explained that he
may have misplaced the documents. On January 2, Dixon
wrote Tuck, confirming their conversation and stating that, on
September 14, 2001, Koomes had informed him that, after he,
Dixon, signed the documents, Tuck would sign them and return
copies to the Union. The letter states that the Union had not
received those copies. Dixon also requested “a copy of the
agreement which was in reference to the Attendance Control
Program. This was an agreement proposed by management
which related as to how Employees with points under the old
system would be treated under the new point system.”
By letter dated January 18, Tuck informed Dixon that he had
not signed addenda D or E or the attendance transition agree-
ment. He enclosed those addenda and a transition agreement,
but did not comment that he had drafted the transition agree-
ment although, according to his testimony, the Union had
agreed to draft it on September 12, 2001, but had not done so.
The letter concludes stating that, upon execution by the Union,
the Company is prepared to sign the documents and return cop-
ies to the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD498
The Union did not respond to this letter but did file an unfair
labor practice charge alleging failure to sign an agreed-upon
contract. This charge was later withdrawn.
On March 19, Union Board Member Kennedy wrote Plant
Manager Ricky Burchfield requesting a third-step grievance
meeting “[u]nder the contract” regarding the suspension of an
employee. On March 25, Burchfield wrote Kennedy and con-
firmed that, in a telephone conversation on March 19, he had
explained that the Company did not have an agreement with the
Union, that the Company was maintaining the status quo and
operating under the interim grievance procedure to which the
parties had agreed “during collective bargaining.”
On April 2, the Union sent to the Company copies of ad-
denda D and E as well as the transition agreement, all signed by
Dixon. Rather than sign the actual documents that Tuck had
sent him in January, Dixon scanned the documents onto his
computer and, at the top of each document, added the following
language: “Tentatively Agreed to 9/12/01.” Dixon did not sign
and tender the tentative agreement that had been given to him
on September 14, 2001. Dixon requested that Tuck contact him
within 5 days in order “to meet and execute the final version of
the collective-bargaining agreement.” Tuck was on vacation
and did not reply until April 17. On April 19, prior to receiving
Tuck’s reply, the Union filed the charge in Case 11–CA–19451.
On April 17, Tuck wrote Dixon noting various matters in-
cluding Dixon’s purported failure to execute addenda D and E
on September 14, 2001, and the failure of the Union to have
drafted the attendance transition agreement. Tuck then refers to
Dixon’s alteration of the documents that he had sent on January
18:
It is noted that the Union has added the language “Ten-
tatively Agreed to 9/12/01” to each of the Addendums pre-
sented to you on January 18, 2002. The company consid-
ers this to be a modification of the documents, in that the
Union is attempting to make the Addendums retroactive to
September 12, 2001.”
The company considers retroactivity to be a subject for
further collective bargaining. . . .
Further, the Union’s modification of proposed Adden-
dums D and E and the Transition from the Old Attendance
Policy to new Attendance Policy appears to reopen the
bargaining process on these items. . . .
. . . Therefore, the company requests that the Union
meet and bargain with it over these issues. Please contact
me at your convenience to discuss a mutually convenient
date for us to meet and bargain over these issues.
The Union, having already filed the charge in Case 11–CA–
19451, did not formally respond to Tuck’s letter. On July 3,
Dixon and Tuck met concerning a different matter. In their
conversation, Tuck asked Dixon whether the Union was con-
tending that the contract would be retroactive to September.
Dixon replied that was indeed the Union’s position. Tuck
sought to explain that retroactivity presented significant prob-
lems including transition to the new attendance policy, since
the Company had continued to operate under the old attendance
policy, and the handling of grievances that had been filed since
September. Dixon, called in rebuttal, testified that Tuck did
state that the Company “could have a problem with retroactiv-
ity,” and asked what was the position of the Union regarding
the effective date of the agreement. Dixon testified that he
replied that the effective date “is what the contract states the
effective date to be.” If that were his reply, it was meaningless
since, as noted above, the effective date in the tentative agree-
ment is blank. I credit Tuck and find that Dixon replied that it
was the Union’s position that the contract was retroactive to
September, the same position he stated in his testimony. Al-
though Dixon initially testified that it was not his intent to raise
the issue of retroactivity by modifying the documents sent to
him by Tuck, upon further questioning he testified that the
ground rules to which the parties agreed provided for ratifica-
tion and that it was his “position and understanding that the
contract would be effective when the contract was ratified by
the employees.” The ground rules do state that both ratification
by the local union and company approval are prerequisites to a
binding agreement. The ground rules to not address retroactiv-
ity or the effective date of the agreement.
2. Analysis and concluding findings
The complaint alleges that the Respondent, since April 2, has
failed and refused to sign an agreed-upon contract. The Gen-
eral Counsel argues that the parties agreed upon all terms of the
collective-bargaining agreement on September 12, including
the transition agreement. I have found that the transition
agreement was not reduced to writing on September 12, 2001.
Even if it was, I find that there was no meeting of the minds
regarding a substantive term of the collective-bargaining
agreement, that being the effective date of the agreement.
The economic proposal to which the Union agreed reflects a
3-year term to the agreement which expires on August 31,
2003. Although not set out in a separate article, that language
appears in the wages and benefits article of the tentative agree-
ment that the Company tendered to the Union on September 14.
The foregoing suggests that the parties, in September, assumed
that the contract would expire in slightly less than 2 years, on
August 31, 2003, but there is no evidence that this was specifi-
cally discussed.
The General Counsel, citing the testimony of Dixon, argues
that “the parties agreed that the effective date of the contract
would be the date when the agreement was ratified.” Counsel
does not cite Dixon’s further testimony in which he acknowl-
edged that the foregoing testimony reflected his “position and
understanding,” not a specific agreement of the parties.
Contrary to the foregoing argument, there is no probative
evidence that there was any agreement that the effective date of
the contract would be the date of ratification. If the Company
had agreed, in anticipation of ratification and immediate sign-
ing, that the date of ratification would be the effective date of
the contract, there would at least be a colorable claim that the
Company was bound in April by the bargain it struck in Sep-
tember, notwithstanding the passage of more than 6 months.
But there was no discussion or agreement relating to the effec-
tive date of the contract. The Union did not assert that it con-
sidered the agreement to be effective upon ratification until
July. Its letter of April 2 did not affirmatively state that it con-
sidered the contract to be effective upon ratification. Although
B.A. MULLICAN LUMBER & MFG. CO. 499
the Company suspected that Dixon’s modification of the docu-
ments portended a contention of retroactivity, Dixon did not
confirm that suspicion until July 3. The Union never stated in
September 2001 that it believed that the Company’s obligations
attached upon ratification. Even if the Union’s position was
taken in good faith, despite the clear language relating to pay-
ment of the ratification bonus after execution, the Union did not
communicate its belief that the obligations set out in the con-
tract attached upon ratification rather than execution of the
agreement.
There is no evidence that there was any discussion regarding
the retroactivity of noneconomic items. Although the economic
proposal and tentative agreement provide for a 3-year agree-
ment “commencing on September 1, 2000,” the parties did not
discuss retroactivity except with regard to economic items.
Addendum E provides that the Union “agrees to withdraw any
and all outstanding grievances filed during the negotiation of
this Labor Agreement.” The Union’s agreement to that adden-
dum made any discussion regarding the viability of grievances
filed during negotiations unnecessary. The discussion on Sep-
tember 12, 2001, regarding attendance points related to assign-
ing points based upon the then current point totals under the
existing policy. The effective date in the tentative agreement
document, although reflecting the year 2001, is left blank. It is
clear that the Company understood that its obligations under the
contract would attach upon the date of execution since the “rati-
fication bonus” was to be paid to “each employee working at
the time of the execution of this agreement.”
The Company believed that its obligations under the con-
tract, the economic provisions of which were retroactive to
September 1, 2000, would be prospective upon execution of the
agreement. The Union’s alteration of addenda D and E and the
attendance transition agreement as tendered by the Company,
by adding “Tentatively Agreed to 9/12/02,” raised in the Com-
pany’s mind the issue of retroactivity. Thus, Tuck wrote
Dixon, noted the modification of the documents and stated that
it interpreted the Union’s action as an attempt to make the ad-
denda “retroactive to September 12, 2001.” Tuck advised
Dixon that the Company considered “ retroactivity to be a sub-
ject for further collective bargaining,” that the modification
appeared to reopen bargaining regarding the items to which
Dixon had added the “tentatively agreed to” language, and that
the Company was requesting that “the Union meet and bargain
with it over these issues.” He requested that Dixon contact him
to discuss a mutually convenient time to meet and bargain.
The Union filed the charge herein. Dixon did not contact
Tuck. The General Counsel, citing Dixon’s denial that he was
not attempting to raise the issue of retroactivity by adding the
“tentatively agreed to” language to the documents, argues that
the Company’s claim that the Union intended to make the
agreement retroactive was an “attempt to obfuscate and frus-
trate the collective bargaining process.” The foregoing argu-
ment completely ignores Dixon’s testimony that the Union does
contend that the agreement should be effective as of the date of
ratification, the same contention that Dixon stated to Tuck on
July 3. If, as argued by the General Counsel, Dixon had not
intended to raise the issue of retroactivity by altering the docu-
ments, he could have called or written Tuck and stated that
Tuck’s interpretation was wrong, that there was no issue of
retroactivity. He did not do so.
The Respondent argues that there was no meeting of the
minds regarding retroactivity. I agree. There was no discus-
sion in or prior to September 2001 regarding the effective date
of the agreement. If matters herein had proceeded neatly, there
would have been no issues regarding either effective date or
retroactivity since the parties would have signed the agreement,
as contemplated, in September 2001. But the parties did not
sign the agreement in September. The Union, upon learning of
the decertification petition, sent the “save your stamp” letter
demanding that the Company admit involvement with the de-
certification petition. The Company did not do so. Regardless
of the respective of merits of the parties’ positions in Septem-
ber regarding what had been or had not been signed and
whether the letter of September 19, 2001, constituted an uncon-
ditional demand that the Company sign the tentative agreement,
those matters are not relevant since the complaint allegation
before me is an alleged refusal to sign an agreed-upon contract
as of April 2.
Although the parties, without specific discussion, appear to
have agreed on September 12, 2001, that they would have a 3-
year contract retroactive to September 1, 2000, and expiring on
August 31, 2003, the Company believed that its obligations
would attach when the agreement was executed. It was not
obligated to pay the $300 “ratification bonus” to anyone other
than employees “currently working at the time of the execu-
tion” of the agreement. It had, in addendum E, assured that the
Union was obligated to “withdraw any and all outstanding
grievances filed during the negotiation of this Labor Agree-
ment.” The bargaining regarding the transition to the new at-
tendance policy assumed the current point totals under the then
existing policy. There was no discussion of retroactivity or
reassessing points accumulated since September 2000. The
foregoing agreements confirm that the Company, with good
reason, understood and believed that the contract would be
effective upon execution. The tentative agreement leaves the
effective date blank, stating that it is “effective
_______________, 2001.”
The Union’s modification of the addenda and transition
agreement raised in the Company’s mind the issue of retroac-
tivity of the noneconomic provisions of the agreement. The
Company, in its letter of April 17, advised the Union that it
considered the issue of retroactivity to be subject to bargaining
and that the Union’s modification [of the documents] appears to
reopen the bargaining process on these items. In July, Dixon
confirmed that the Union was contending that the contract was
retroactive to September.
There was no meeting of the minds regarding the effective
date of the agreement. The parties, in September, anticipated a
virtually contemporaneous ratification and signing of the con-
tract, but they had no discussion regarding the effective date.
At the point the Union demanded that the Company sign the
contract, April 2, the anticipated signing had not occurred in
September. This situation is similar to that in Raytown United
Super, 287 NLRB 1155 (1988), where the parties had actually
agreed upon an effective date but, by the time they reached full
agreement on all the terms of the contract, that date “had come
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD500
and gone.” The facts in the instant case are even more compel-
ling than the situation in Raytown where the parties had tenta-
tively agreed upon an effective date that had passed. The
Board held that the parties’ “agreement was essentially can-
celled out by their inability to reach agreement . . . before the
agreed-on effective date . . . and by the Respondent’s proposal
of a new effective date. . . .” Ibid. In the instant case, although
both parties anticipated ratification and signing in September
2001, there was never any discussion of, much less agreement
upon, the effective date of the contract. See also Transit Ser-
vice Corp., 312 NLRB 477, 482–483 (1993). In this case, as in
Century Papers, Inc., 284 NLRB 1151, 1157 (1987), “there
was no ‘meeting of the minds’ concerning a substantive term
(the commencement date) of the proposed collective-bargaining
agreement.” In view of the foregoing, the Respondent’s failure
to sign the contract, accompanied by its request that the Union
meet and bargain regarding the issue of retroactivity thereby
signifying its willingness to bargain, did not violate the Act. I
shall recommend that the allegation relating to failure to sign an
agreed-upon contract be dismissed.
B. The Withdrawal of Recognition
On May 21, the Company received a letter signed by em-
ployee James D. (Doug) Carroll, the employee who had filed
the decertification petition in Case 11–RD–626 on September
17, 2001, stating that “114 out of 220 employees have signed
decertification slips noting they no longer want to be repre-
sented by the United Mine Workers of America. These 114
signatures have been filed with the National Labor Relations
Board.”
On June 28, the Company wrote the Union stating that it had
received “written notification . . . that 114 out of 220 employ-
ees have signed for decertification and . . . based upon this ob-
jective evidence . . . we withdraw recognition of the UMWA
. . . .” Plant Manager Burchfield testified that Carroll and other
employees, three of whose names he recalled, had stated to him
that a majority of employees no longer wished to be repre-
sented by the Union. Burchfield testified that there was “feed-
back” that only four or five employees were attending union
meetings and that there had been no election for several months
after the president ceased to be an employee. Burchfield admit-
ted that he never saw the slips to which Carroll’s letter refers
nor did he ask Carroll to provide him with copies of the slips.
In Levitz, 333 NLRB 717 (2001), the Board held that an em-
ployer must objectively establish that a union has lost majority
status before withdrawing recognition:
. . . [W]e hold that an employer may rebut the continu-
ing presumption of an incumbent union’s majority status,
and unilaterally withdraw recognition, only on a showing
that the union has, in fact, lost the support of a majority of
the employees in the bargaining unit. We overrule Cela-
nese and its progeny insofar as they hold that an employer
may lawfully withdraw recognition on the basis of a good-
faith doubt (uncertainty or disbelief) as to the union’s con-
tinued majority status.
We emphasize that an employer with objective evi-
dence that the union has lost majority support-for example,
a petition signed by a majority of the employees in the
bargaining unit-withdraws recognition at its peril. If the
union contests the withdrawal of recognition in an unfair
labor practice proceeding, the employer will have to prove
by a preponderance of the evidence that the union had, in
fact, lost majority support at the time the employer with-
drew recognition. If it fails to do so, it will not have rebut-
ted the presumption of majority status, and the withdrawal
of recognition will violate Section 8(a)(5). Id at slip op. 8.
[Footnotes omitted.]
The unverified anonymous “feedback” to which Burchfield
referred regarding attendance at union meetings and internal
elections does not constitute objective evidence of loss of ma-
jority status. The statements of four named employees, none of
whom were shown to have personal knowledge of their reports
regarding the union sentiments of a majority of employees in a
unit of over 200 employees, are hearsay. Although Carroll’s
letter states that 114 of 220 employees had signed decertifica-
tion slips, there is no probative evidence that each of those 114
employees was in the unit or employed on June 28, when the
Respondent withdrew recognition. No representative of the
Respondent ever saw, or requested to see, the “decertification
slips” to which Carroll referred in his letter. There is no evi-
dence that the Respondent identified the employees who had
purportedly signed decertification slips, determined that each
employee was in the unit, or sought to authenticate their signa-
tures.
The Respondent cites NLRB v. New Associates, 35 F.3d 828
(3d Cir. 1994), in which the Court of Appeals held that it would
not enforce a Board Order to bargain during the pendency of a
decertification petition unless the Board disclosed the number
of employees who supported the petition and that number was
less than a majority. The Respondent argues that I should apply
the rationale of that decision and find that it was incumbent
upon the General Counsel “to rebut Mullican’s assertion that
114 out of 220 bargaining unit employees signed the decertifi-
cation petition.” This argument is flawed in three separate
respects. First, the assertion is Carroll’s assertion, not Mulli-
can’s. With regard to Mullican, Carroll’s assertion is hearsay
and does not constitute objective evidence. Second, the Re-
spondent made no effort to verify the statements in Carroll’s
letter. In Planned Building Services, 318 NLRB 1049 (1995),
where the respondent also raised the decision of the Court of
Appeals in NLRB v. New Associates, supra, the Board pointed
out that, in New Associates, “the Third Circuit held that it
would not follow the Board’s decision in Dresser in those cases
where the Board refuses to disclose to the employer, at the
employer’s request, the percentage of employees supporting the
decertification petition. In this case, there is no evidence that
the Respondent, prior to refusing and failing to recognize and
bargain with [the union], requested, and was refused, informa-
tion regarding the percentage of employees supporting the de-
certification petition. . . .” Id at fn. 5. As in Planned Building
Services, supra, there is no evidence in this case that the Re-
spondent ever sought any information from the Region regard-
ing the decertification slips. Third, even if it be assumed that
114 unit employees signed decertification slips, the Respondent
has not established that this constituted a majority of the unit.
B.A. MULLICAN LUMBER & MFG. CO. 501
No payroll was placed into evidence establishing that, in fact,
the unit numbered 220 rather than 229 when recognition was
withdrawn, in which case 114 would not constitute a majority.
The Respondent has not established by objective evidence that
a majority of its unit employees had ceased to support the Un-
ion. By withdrawing recognition from the Union the Respon-
dent violated Section 8(a)(5) of the Act.
CONCLUSION OF LAW
By withdrawing recognition from the Union, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (5) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Respondent having unlawfully withdrawn recognition from
the Union, it shall be ordered to recognize the Union and notify
the Union, in writing, that it rescinds its letter dated June 28,
2002, recognizes the Union as the exclusive collective-
bargaining representative of its employees in the appropriate
unit, and will meet and bargain with the Union upon request.
Century Papers, 284 NLRB 1151, 1158 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, B.A. Mullican Lumber & Manufacturing
Company, Norton, Virginia, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to recognize and unlawfully withdrawing rec-
ognition from the United Mine Workers of America, the Union,
as the exclusive bargaining representative of its employees in
the appropriate bargaining unit set forth below.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Notify the Union, in writing, that it rescinds its letter
withdrawing recognition from the Union dated June 28, 2002,
recognizes the Union as the exclusive collective-bargaining
representative of its employees in the appropriate unit, and will
meet and bargain with the Union upon request.
(b) On request, recognize, meet and bargain collectively in
good faith with the Union as the exclusive collective-
bargaining representative of its employees in the unit described
below, regarding wages, hours, and other terms and conditions

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
of employment, and if an agreement is reached, embody it in a
signed contract. The appropriate unit is:
All full-time and regular part-time production employees em-
ployed by Respondent at its Blackwood Industrial Park Road,
Norton, Virginia facility; excluding all office clerical employ-
ees, confidential employees, temporary employees, QC tech-
nicians, lumber receiving coordinators, shipping coordinators
and guards, professional employees, and supervisors as de-
fined in the Act.
(c) Within 14 days after service by the Region, post at its fa-
cilities in Norton, Virginia, copies of the attached notice
marked “Appendix.”5 Copies of the notice, on forms provided
by the Regional Director for Region 11, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since June 28, 2002.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to recognize or unlawfully withdraw
recognition from the United Mine Workers of America, the
Union, as your exclusive bargaining representative.

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD502
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL notify the Union, in writing, that we rescind our let-
ter withdrawing recognition from the Union dated June 28,
2002, that we recognize the Union as your exclusive collective-
bargaining representative, and that we will meet and bargain
with the Union upon request.
WE WILL, on request, recognize, meet and bargain collec-
tively in good faith with the Union as the exclusive collective-
bargaining representative of our employees in the unit de-
scribed below, regarding wages, hours, and other terms and
conditions of employment, and if an agreement is reached,
embody it in a signed contract. The appropriate unit is:
All full-time and regular part-time production employees em-
ployed by Respondent at its Blackwood Industrial Park Road,
Norton, Virginia facility; excluding all office clerical employ-
ees, confidential employees, temporary employees, QC tech-
nicians, lumber receiving coordinators, shipping coordinators
and guards, professional employees, and supervisors as de-
fined in the Act.
B.A. MULLICAN LUMBER & MANUFACTURING
COMPANY