Burrows Paper Corp.

National Labor Relations Board - Board Decisions

Sep 15, 2000

332 N.L.R.B. 127 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 82
Burrows Paper Corporation and PACE International
Union, Local 678, AFL–CIO.1 Case 26–CA–
18552
September 15, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On January 13, 1999, Administrative Law Judge Kelt-
ner W. Locke issued the attached bench decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief. The Respon-
dent filed a reply brief.
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,2 and conclusions and
to adopt the recommended Order as modified.3
1. In adopting the judge’s finding that the Respondent
engaged in surface bargaining in violation of Section
8(a)(5) and (1) of the Act, we emphasize, in addition to
the factors primarily relied on by the judge (including the
Respondent’s minimum wage position and its proposed
recognition clauses), that the Respondent’s initial pro-
posal would have limited any agreement to 1 year from
the date of the representation election and that even after
the Respondent later abandoned this position, it adopted
the stance that a contract would be effective only for 1
year from ratification. Further, the Respondent advanced
proposals that would have allowed essentially no role for
the Union in determining wage rates. Thus, the Respon-
dent’s November 1997 proposal provided for an annual
review of finishing room wages by the paper division
manager, who would make changes at his sole discretion,
based on performance, waste, and marketplace competi-
tive forces. The proposal included no role for the Union
in determining the wages of unit employees. Similarly,
the Respondent’s January 1998 proposal included a pro-
vision allowing raises to be selectively awarded to indi-
vidual employees based on managers’ determinations of
merit. Merit determinations, in turn, would not be sub-
ject to the grievance process, but would be appealable to
the human resources manager, whose decision would be
final.

1 On January 4, 1999, the United Paperworkers International Union,
AFL–CIO, CLC merged with the Oil, Chemical and Atomic Workers
International Union. Accordingly, the caption has been amended to
reflect that change.
2 The Respondent 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.
The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
3 We adopt the judge’s recommendation that the Union’s certifica-
tion year be extended in accordance with Mar-Jac Poultry, 136 NLRB
785 (1962), as well as his findings that the Respondent violated the Act
by, inter alia, engaging in surface bargaining from about October 15,
1997 (when negotiations on an initial collective-bargaining agreement
began), through July 1998. Accordingly, we find that a 1-year exten-
sion of the Union’s certification year, running from the date the Re-
spondent begins to bargain in good faith, is necessary to effectuate the
purposes of the Act and to allow the Union a reasonable period of time
for good-faith bargaining, free from the influences of the unfair labor
practices previously committed by the Respondent. Bryant & Stratton
Business Institute, 321 NLRB 1007 fn. 5, 1045–1046 (1996).
In addition, during bargaining, the Respondent consis-
tently adhered to its position that any agreement would
not include a grievance and arbitration process, unless
management had the final word on all grievances. At the
same time, the Respondent insisted on a no-strike, no-
lockout clause, and proposed very broad management-
rights provisions conferring on the Respondent’s com-
plete discretion as to, inter alia, hiring, promotion, demo-
tion, retention, layoff, assignment, transfer, training ap-
praisal, discipline, suspension, and discharge. The Re-
spondent also adhered to the view that its nine paid holi-
days should be eliminated, along with sick leave and its
existing pension plan, and that it would not accept any
provision by which it would collect and forward union
dues.
These positions are given added flavor by the testi-
mony of Michael Tourné, an international representative
of the Union who negotiated on its behalf. Tourné stated
that R.W. Burrows Jr., the Respondent’s chief executive
officer, told him during negotiations that the Union’s
only purpose was to collect dues, that he did not person-
ally recognize the Union as the employees’ representa-
tive, and that the Union was an outsider unwelcome in
the plant.
Tourné further testified that Burrows told him that he
wanted to continue to run the business as he saw fit, as he
had before the advent of the Union, and that it was hard to
see why anyone would want to be a member of the Union
after July 31, 1998 (1 year after the date of the Union’s
election victory). Burrows, according to Tourné, asked
him if there could be another vote because he was still not
convinced that the Respondent’s employees actually de-
sired the Union’s representation.
We do not maintain that each of the above items, con-
sidered in isolation, evidence bad faith. However, viewed
in the aggregate, this evidence, in addition to the evidence
332 NLRB No. 15
BURROWS PAPER CORP. 83
relied on by the judge, persuades us that the Respondent
engaged in surface bargaining.4
2. We agree with the judge that the Respondent vio-
lated Section 8(a)(5) by unilaterally granting wage in-
creases in January and February 1998 to certain finishing
room and maintenance employees.
At the November 12, 1997, negotiating session be-
tween the Respondent and the Union, the Respondent
submitted a “First Proposal Agreement” which sets forth
proposals as to a number of items. One of the items was
a proposal to increase the wages of certain finishing em-
ployees effective January 5, 1998, to apparently redress
pay discrepancies among employees in that area. The
judge credits the testimony of Union Representative Mi-
chael Tourné that he was not expecting the raises to be
implemented without further discussion. Nevertheless,
on November 13, the day after Respondent proposed the
wage increase, the Respondent issued a notice to em-
ployees that the wage rate would be effective on January
5, 1998.5 Although the Union had requested Respondent
to bargain in December, Respondent stated that the earli-
est it could meet was mid-January. Thus, despite the
Union’s efforts to schedule meetings, the parties were
not scheduled to meet and did not meet between the time
the Respondent proposed the wage increase and its Janu-
ary 5 implementation.
At the next bargaining session, January 21–22, 1998,
the Respondent proposed a wage increase for certain
maintenance employees effective February 2, 1998. The
increase was apparently modeled on a skill-based system
already in effect at another of the Respondent’s facilities.
The Respondent’s bargaining proposal at that session
declared that “all statements in this proposal are merely
that—a proposal. These statements should not be con-
strued as contract language.” The Union did not respond
at the meeting and the parties were not scheduled to meet
again until February 11 and 12. Nevertheless, the Re-
spondent implemented the maintenance employees’
wage rates on February 2.
The judge found that because there was no impasse,
the Respondent could not lawfully implement these
changes without the Union’s assent. He further found
that the Union did not waive its right to bargain about the
increases. Contrary to our dissenting colleague, and in
agreement with the judge, we find that there was no
agreement or waiver here.
It is undisputed that contract negotiations were not at
impasse when the January and February wage increases

4 In view of this conclusion, it is unnecessary to pass on the General
Counsel’s request to adduce further evidence on this issue.
5 See GC Exh. 48a (stating that “effective that date [January 5] BPC
is reinstating the original system [including pay increases]”).
were granted. The Respondent therefore could not law-
fully implement the wage increases without the Union’s
assent6 or waiver of its right to bargain. There is no evi-
dence that the Union consented to the wage increases.
Therefore, the Respondent would be justified in imple-
menting the proposed raises only if the Union, by its si-
lence, had waived its bargaining rights. It is, however,
well established that a waiver of statutory bargaining
rights must be clear and unmistakable.7 We find that the
Union’s silence here, did not, under the circumstances,
constitute such a waiver.
The Respondent’s proposal for a January wage in-
crease was made in the context of overall contract nego-
tiations. However, the day after making the proposal, at
a time when no bargaining was scheduled until mid-
January, and before receiving a response from the Union,
the Respondent announced to employees that the in-
creases would be implemented on January 5, 1998. In
these circumstances, we find that the Union was not
properly afforded an opportunity to bargain concerning
these proposals prior to the announcement. Further, after
the November 13 announcement of the wage increase to
employees, we find that the Union could reasonably con-
clude that the matter at that point was a fait accompli,
i.e., that the Respondent had made up its mind and that it
would be futile to object to the pay raises.8 We find that
the Union, therefore, did not clearly and unmistakably
waive its right to bargain by remaining silent on the pro-
posed wage raise. Accordingly, we agree with the judge
that the Respondent violated Section 8(a)(5) by unilater-
ally implementing the wage increase for finishing em-
ployees on January 5, 1998.
We similarly find that the Union did not waive its right
to bargain over the proposed February 2, 1998 wage raise
proposal. As noted above, the February 2 wage increase
was not proposed until January 21. After the January
21–22 bargaining session, the parties were not scheduled
to meet again until February 11 and 12 (a session which,
in any event, the Respondent cancelled). Thus, there was
no opportunity to negotiate about the February 2 increase
before it was implemented. Further, the Respondent spe-
cifically stated that this was a proposal, suggesting that it
would only be implemented once it was agreed to by the
6 See Bottom Line, 302 NLRB 373, 374 (1991); RBE Electronics of
S.D., 320 NLRB 80 (1995); Vincent Industrial Plastics, 328 NLRB 300
(1999), enfd. in relevant part 209 F.3d 727 (D.C. Cir. 2000). The Re-
spondent has not proved and does not claim that there was any eco-
nomic exigency which would permit it to compliment these changes
absent agreement or impasse.
7 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
8 Insulating Fabricators, Inc. Southern Division, 144 NLRB 1325,
1332 (1963). See generally Intersystems Design Corp., 278 NLRB 759
(1986).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 84
Union. We therefore agree with the judge that the Union
cannot be said to have clearly and unmistakably waived
its right to bargain about the February 2, 1998 raise.
Accordingly, we find that the Respondent’s unilateral
granting of the February increase was unlawful.
3. The judge found, and we agree, that the Respondent
violated Section 8(a)(5) and (1) of the Act by withhold-
ing a customary across-the-board pay increase in July
1998. The judge recommended that the Respondent be
required to grant such increase to the full extent it would
have done so in the absence of the Union, and that, if
necessary, the determination of the amount of such in-
crease should be resolved at the compliance stage of this
proceeding. We note, however, that, for the past 25
years, the Respondent’s July increase has been at least
three percent, that the last four increases have been three
percent increases, and that the Union has stated that it
would agree to a three percent increase. In these circum-
stances, rather than leave the matter to compliance, we
shall specify the required increase as three percent. We
will modify the judge’s recommended Order and notice
accordingly.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Burrows
Paper Corporation, Pickens, Mississippi, 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) Grant to all bargaining unit employees a 3-percent
wage increase effective July 1, 1998.”
2. Substitute the following for paragraph 2(d).
“(d) On request, bargain in good faith with the Union
for an initial collective-bargaining agreement, reducing
to writing any agreement reached as a result of such bar-
gaining. The Union’s certification year shall be extended
for 1 year from commencement of bargaining.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER HURTGEN, dissenting in part.
I agree that the Respondent engaged in surface bar-
gaining, and unlawfully withheld a July 1998 pay in-
crease, and blamed the Union for the lack of an increase.
However, I do not find that the Respondent unlawfully
raised the wages of certain employees in its finishing and
maintenance departments in January and February 1998
without notifying and bargaining with the Union.
It appears that the Union itself raised the issue of pay
discrepancies in the finishing department at the initial
negotiating session on October 15, 1997. It was agreed
that Respondent’s agent, R. W. Burrows Jr., would
investigate the matter and report back at the November
session. He did so, and presented a corrected wage
schedule. No union representative objected. Further, the
Respondent’s written proposal on the matter, handed to
the Union at the November session, stated a January 5,
1998, effective date. The Respondent also issued a no-
tice dated November 13, 1997, to all employees (includ-
ing Local 678 president, Richard Washington, one of the
Union’s two negotiators) giving the same effective date.
The parties had no negotiations scheduled (and none
took place) between November 13, 1997, and January
21, 1998. At the January 21 and 22 sessions, the Union
again interposed no objection to the raises, which by that
time had been in effect for more than 2 weeks.
At these January sessions, and again at the Union’s ini-
tiative, the parties discussed the implementation at Pick-
ens of a skill-based pay system for maintenance employ-
ees, which system was already in effect at the Respon-
dent’s union-represented facilities in New York. Interna-
tional representative, Michael Tourné, acknowledged that
Burrows said he would implement the skill-based pro-
gram on February 2. Again, there was no objection from
the Union. Such program was implemented as of Febru-
ary 2. Indeed, it was not until the Union filed a charge
relative to these matters in March 1998 that the Respon-
dent learned of the Union’s objection.
My colleagues rely on the judge’s crediting of
Tourné’s testimony. However, Tourné testified only that
he was under the impression that Burrows would not
implement the raises without further discussion. There is
no evidence that Burrows said or did anything to apprise
Tourné that this would be so.
My colleagues note that Respondent said, in January
1998, that its proposals were not to be treated as actual
contract language. In their view, this statement supports
the 8(a)(5) allegation regarding the January and February
increases. I disagree. There is nothing improper or un-
usual about a party submitting a proposal in bargaining,
with precise contract language to be worked out later.
The essential point is that Respondent clearly stated its
intention to implement the increases.
My colleagues note that the February 2 increase was
not proposed until January 21, and no meeting was
scheduled until February 11 or 12. In response, I note
that the Union could have picked up the phone and
lodged a protest at any time during that 12-day period.
I do not agree with my colleagues that the issue here is
to be decided under “waiver” principles. Where, as here,
the parties have discussed a subject, the issue is simply
whether the parties have reached an agreement on that
subject. Under principles of contract law, the agreement
BURROWS PAPER CORP. 85
can be expressed, implied, or by acquiescence. Thus, the
issue here is simply whether the Union agreed to, or at
least acquiesced in, the two wage increases. It is clear
that there was such agreement or acquiescence. As to the
January increase, Respondent told the Union in Novem-
ber that the effective date would be January 5. On No-
vember 13, Respondent told the employees, by notice,
the same thing. There was no Union objection. As to the
February increase, Respondent told the Union on January
21–22 that there would be an increase on February 2.
Following the earlier pattern, there was no union objec-
tion.
My colleagues state that there is no evidence that the
Union consented to the wage increase at issue. For the
reasons stated supra, I disagree. I emphasize in particular
the facts that the changes were undertaken at the Union’s
initiative, and were essentially preannounced efforts by
the Respondent to respond to the Union’s concerns. In
the absence of any indication on the part of the Union
that it objected in any way to the Respondent’s proposed
remedies for those concerns, or to the Respondent’s
stated intent to put them into effect, I cannot agree with
my colleagues that there was no evidence of Union con-
sent.
In these circumstances, I find that the Respondent did
not act unilaterally with respect to the finishing room and
maintenance changes. Accordingly, I do not find that the
Respondent’s actions relative to these matters were
unlawful.
As stated, supra, I do, however, find that the Respon-
dent violated Section 8(a)(5) by engaging in surface bar-
gaining and withholding a July 1998 pay increase, and
Section 8(a)(1) by blaming the Union for the letter.
Based on these violations, I also have a separate view as
to remedy. The parties were negotiating a first contract.
During negotiations, the Respondent made clear that
there would be no contract, or—at most—only one that
effectively excluded the Union from any role in deter-
mining major terms and conditions of employment. In-
deed, the evidence shows that the Respondent’s chief
executive officer did not accept the Union’s legitimacy
as the employees’ representative. Under these circum-
stances, it well may be wholly inadequate to simply order
the Respondent to bargain in good faith. Such an order
would not change Respondent’s attitude and demon-
strated antipathy to collective bargaining. And, without a
change in attitude, the Respondent could resume similar
tactics, albeit perhaps better disguised ones. A skilled
mediator, however, could see through such tactics and
could cause the Respondent to alter its conduct. In short,
a mediator could help to insure that the bargaining would
be in good faith. A mediator would also provide the
Board with a window through which to observe the
negotiations and to receive a first-hand neutral report of
the bargaining.

Accordingly, I would authorize the Regional Director
to appoint a mediator—chosen from a list of those quali-
fied from an American Arbitration Association panel for
the Regional Office area which includes Pickens. The
selection may be of a person mutually selected by the
parties or through a procedure of alternatively striking
names from the list. The mediator would be directed, at
Respondent’s expense, to participate in all bargaining
sessions, to attempt to forge an agreement, and—if an
agreement is not reached during a period of time decided
by the mediator—to render a report to the parties and to
the Regional Director. That report should specify the
status of the negotiations, including matters agreed on,
matters not agreed on, the positions of the parties with
respect thereto, and the mediator’s recommendations, if
any, concerning the bargaining and the resolution of the
non-agreed to items.
I believe that such a remedy would “encourage the
practice and procedure of collective bargaining.”1 Ac-
cordingly, I would impose it.

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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT take any action which interferes with
the exercise of these rights.
WE WILL NOT inform employees that we will not
grant the wage increases previously given in July of each
year because they have selected the Union, PACE Inter-
national Union Local 678, AFL–CIO, to represent them.
WE WILL NOT unilaterally withhold wage increases
which we previously granted in July of each year because
employees are represented by the Union.
1 See Sec. 1 of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 86
WE WILL NOT unilaterally grant wage increases to
certain employees in the bargaining unit represented by
the Union without first notifying the Union and bargain-
ing with it in accordance with our duty under the Act.
WE WILL NOT refuse to bargain in good faith with
the Union as the collective-bargaining representative of
our employees in the following unit:

INCLUDED: All full time and regularly scheduled part
time production and maintenance employees and truck
drivers employed at Respondent’s Pickens, Mississippi
facility.
EXCLUDED: All other employees, including all office
clerical employees, professional employees, guards and
supervisors as defined in the Act.
WE WILL NOT, in any like or related manner inter-
fere with, restrain, or coerce our employees in the exer-
cise of the rights guaranteed them by Section 7 of the
Act.
WE WILL, on request by the Union, rescind the wage
increases we unilaterally granted to certain employees in
the finishing and maintenance departments in January
and February 1998.
WE WILL grant to all bargaining unit employees a 3-
percent wage increase effective July 1, 1998.
WE WILL, on request, bargain in good faith with the
Union for an initial collective-bargaining agreement,
reducing to writing any agreement reached as a result of
such bargaining. The Union’s certification year shall be
extended for 1 year from commencement of bargaining.
BURROWS PAPER CORPORATION
Susan B. Greenberg, Esq., for the General Counsel.
John T. McCann, Esq, and Lindsey Holmes–Hazelton, Esq.
(Hancock & Estabrook, LLP), of Syracuse, New York, for
the Respondent.
Leeann G. Anderson, Esq., of Nashville, Tennessee, for the
Charging Party.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard
this case on September 23, 1988, and October 26–29, 1998, in
Memphis, Tennessee. After the parties rested, I heard oral ar-
gument, and on October 30, 1998, issued a bench decision pur-
suant to Section 102.35(a)(1) of the Board’s Rules and Regula-
tions, setting forth findings of fact and conclusions of law. In
accordance with Section 102.45 of the Rules and Regulations, I
certify the accuracy of, and attach hereto as “Appendix A,” the
portion of the transcript containing this decision.1 The Rem-
edy, Order, and Notice provisions are set forth below. Addi-

1 The bench decision appears in uncorrected form at pp. 1215
through 1238. The final version, after correction of oral and transcrip-
tional errors, is attached as Appendix A to this Certification.
tionally, in light of Board precedent which issued after I deliv-
ered the bench decision on October 30, 1998, I have decided,
sua sponte, to amend my conclusions of law, to find that the
Respondent violated the Act by the conduct alleged in
complaint paragraphs 13(b) and 15(a) and (b).
Amendment
Complaint paragraph 13(b) alleged that on or about June 30,
1998, Respondent unilaterally discontinued its established past
practice of awarding unit employees an annual wage increase of
at least three percent. In the decision I delivered from the
bench on October 30, 1998, I found that there was an estab-
lished past practice that the Respondent would grant some kind
of raise in or around July of each year. However, I did not find
that Respondent made an unlawful unilateral change by failing
to give employees such a raise in 1998, and therefore concluded
that the General Counsel had not established the violation al-
leged in complaint paragraph 13(b).
Complaint Paragraph 15(a) alleged that on June 3, 1998, Re-
spondent issued a memorandum to its employees. The memo-
randum, attached to the complaint as Appendix A, stated, in
part:

Several Pickens employees have asked if there will be
an increase in July this year. Under the National Labor
Relations Act we are required to negotiate with the union.
We are also required to keep everything as it was when
you voted the union in, while negotiations are taking
place.
In January in response to your desire for fair treatment,
we moved some wages. We thought the union agreed with
us, but the union filed a charge against the company for
raising those rates. We had to hire a lawyer to defend us.
I believe that we were misled by the union on this and that
we did the right thing to correct a perceived unfairness.
We can not give any increase at this time without more
charges being filed by the union.
I feel that it is too bad we can not deal directly with
you on the issue of wage increases. We must deal with the
union. You must take your questions and concerns to the
union, since you have chosen them to represent you.

Complaint paragraph 15(b) alleged that the statements in this
Company’s memorandum disparaged the Union and coerced
employees by blaming the Union for the loss of an annual wage
increase. Complaint paragraph 17 alleged that this action vio-
lated Section 8(a)(1) and (5) of the Act.
In the decision which I delivered orally from the bench, I
recommended dismissal of the allegations raised by paragraph
15 of the complaint, on the basis that the statements in question
were not coercive. This conclusion, I believed, was consistent
with my finding that Respondent had acted lawfully in failing
to give employees the raises to which its June 3, 1998 memo-
randum referred. See, e.g., Alltel Kentucky, Inc., 326 NLRB
1350 (1998).
More recent cases have prompted me to reconsider this con-
clusion. On the same day I issued the bench decision, the
Board issued its decision in Rural/Metro Medical Services, 327
NLRB 49 (1998). In that case, after a union petitioned to rep-
BURROWS PAPER CORP. 87
resent a unit of employees, the employer posted a notice which
stated, in part: “During a meeting last night, the question was
asked as to what would happen with performance reviews and
merit increases if the union is voted in. . . . [I]f the union is
voted in, all issues connected with wages, hours and working
conditions are subject to negotiation. Therefore, the Company
cannot change your wages (which include merit increases),
hours and working conditions unless and until there is a con-
tract.” The Board found this language to be violative.
The Board based its decision in Rural/Metro Medical Ser-
vices on a stipulated record. The stipulated facts included that
it had been the employer’s practice “to award merit increases
ranging from no increase to an 8 percent increase, based on the
performance reviews, but entirely at the Respondent’s discre-
tion.” (Emphasis added.) However, based on other facts in the
stipulated record, the Board found that the procedure this em-
ployer used, which carefully correlated the amount of the raise
with the individual employee’s performance review, con-
strained the employer’s discretion.
The amount of discretion exercised by the employer in the
Rural/Metro Medical Services case did not defeat the employ-
ees’ expectation that they would receive a raise on a particular,
regularly occurring date. Rather, the Board held that a merit
wage program would be found to be a term and condition of
employment when it was an established practice “regularly
expected by the employees,” and set forth three criteria for
making such a determination:

1. The number of years the program has been in place;
2. The regularity with which raises are granted;
3. Whether the employer used fixed criteria to determine
whether an employee will receive a raise, and the amount
thereof.

A month after the Rural/Metro Medical Services decision,
the Board issued its decision in Kurdziel Iron of Wauseon, 327
NLRB 155 (1998). In Kurdziel Iron, the Board reversed an
administrative law judge’s determination that the evidence was
insufficient to show that the Respondent had a pattern or prac-
tice of granting cost-of-living increases on an annual basis.
In the present case, the evidence establishes that before 1998,
Respondent had a past practice of granting a wage increase to
employees each July. However, unlike the raises in the Ru-
ral/Metro Medical Services case, the record here does not es-
tablish that they were based on an assessment of any individual
employee’s performance. To the contrary, the evidence suggests
that in a given year, all employees received the same percentage
wage increase.
The percentage did not remain the same from year to year,
and, over a long period of time, there was considerable varia-
tion. As I noted in the bench decision, the record indicates that
Respondent retained considerable discretion as to the amount of
the raise. However, applying the criteria set out by the Board
in Rural/Metro Medical Services, I find that the employees still
retained the expectation that they would receive a raise of some
amount in July 1998.
Clearly, the practice of granting a raise of some kind had
been in effect for a substantial number of years. It was also
highly regular, taking place every July.
The third criterion in Rural/Metro Medical Services, whether
the employer used fixed criteria to determine whether an em-
ployee received a raise, pertains specifically to the situation in
which each employee receives a “merit raise” based on an indi-
vidual performance evaluation. However, the record here does
not establish that individual employees received different raises
based on performance appraisals. Rather, it appears that every
unit employee received a raise in the same percentage amount.
Therefore, the third Rural/Metro Medical Services criterion is
not applicable here.
In sum, I conclude that, based on Respondent’s past practice,
the unit employees had a reasonable expectation that they
would receive a raise in July 1998. I further conclude that Re-
spondent’s failure to grant this raise in July 1998 constituted a
unilateral change in an established term or condition of em-
ployment which was a mandatory subject of collective bargain-
ing. This action violated Section 8(a)(5) and (1) of the Act.
Therefore, I find that the General Counsel has established the
violation alleged in complaint paragraph 13(b).2
The Respondent’s June 3, 1998 memorandum, attributing the
decision not to award raises in July 1998 to the Union’s actions,
must be considered in light of the conclusion that Respondent
had a duty to grant employees a raise in July 1998 and violated
Section 8(a)(5) and (1) by failing to do so. I conclude that the
June 3 memorandum violates Section 8(a)(1) of the Act, as
alleged in paragraphs 15 and 17 of the complaint. See Ru-
ral/Metro Medical Services, above. Although paragraph 17
alleges that the conduct described in paragraph 15 also violates
Section 8(a)(5) of the Act, I believe that it is the actual with-
holding of the anticipated July wage increase, and not the an-
nouncement of it, which constitutes the Section 8(a)(5) viola-
tion.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act. Since August 8, 1997, the Union has
been the exclusive collective–bargaining representative, within
the meaning of Section 9(a) of the Act, of a unit of all full-time
and regularly scheduled part-time production and maintenance
employees and truck drivers, employed at Respondent’s Pick-
ens, Mississippi facility.
3. Since on or about October 15, 1997, and continuing through
July 1998, Respondent failed to bargain collectively in good
faith, as defined in Section 8(d) of the Act, with the Union with
respect to wages, hours, and other terms and conditions of em-
ployment, in violation of Section 8(a)(5) and (1) of the National
Labor Relations Act.
4. By raising the wages of certain employees in the finishing
and maintenance departments in January and February 1998,
without notifying and bargaining with the Union, Respondent

2 Complaint par. 13(b) alleges that the unilateral change took place
on about June 30, 1998, whereas I find that the change took place in
July 1998. The parties fully litigated this matter, and the slight differ-
ence in dates is not significant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 88
unilaterally changed a term of employment which was a man-
datory subject of bargaining, in violation of Section 8(a)(5) and
(1) of the Act.
5. By failing to grant wage increases in July 1998, notwith-
standing its established past practice of raising wages in July of
each year, the Respondent unilaterally changed a term of em-
ployment which was a mandatory subject of bargaining, in
violation of Section 8(a)(5) and (1) of the Act.
6. By notifying employees, in a June 3, 1998 memorandum,
that the Union was responsible for Respondent’s decision not to
grant its customary wage increase in July 1998, the Respondent
violated Section 8(a)(1) of the Act.
7. The violations of the Act described above have affected
commerce within the meaning of 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, including posting the notice to em-
ployees attached hereto as Appendix B. Additionally, it must
recognize and bargain in good faith with the Union as the ex-
clusive representative of the bargaining unit employees.
The Board certified the Union as the exclusive bargaining
representative of employees in the unit on August 8, 1997. At
all times on and after that date, Respondent has been under a
duty to notify the Union before making a material, substantial,
and significant change in any term or condition of employment
which is a mandatory subject of collective bargaining. See
Millard Processing Services, 310 NLRB 421, 425 (1993), cit-
ing Angelica Healthcare Services Group, 284 NLRB 844, 853
(1987). Moreover, the Act does not permit Respondent to
make such a change without first obtaining the agreement of
the Union or else bargaining until the parties reach a lawful
impasse.
As stated by the Board in RBE Electronics of S.D., 320
NLRB 80, 81–82 (1995), “when, as here, parties are engaged in
negotiations for a collective-bargaining agreement, an em-
ployer’s obligation to refrain from unilateral changes extends
beyond the mere duty to provide notice and an opportunity to
bargain about a particular subject matter; rather it encompasses
a duty to refrain from implementation at all, absent overall
impasse on bargaining for the agreement as a whole.” See also
Bottom Line Enterprises, 302 NLRB 373 (1991); Sartorius,
Inc., 323 NLRB 1275 (1997); NLRB v. Katz, 369 U.S. 736, 748
(1962).
However, in January and February 1998, Respondent gave
raises to certain employees in its finishing and maintenance
departments without notifying the Union in advance and bar-
gaining with it. Such raises constituted a material, substantial,
and significant change in a condition of employment which was
a mandatory subject of collective bargaining. Additionally, as
discussed above, in July 1998, Respondent withheld a regu-
larly–scheduled wage increase.
Respondent made these changes without the Union’s con-
sent, and without having reached a lawful impasse in bargain-
ing. Moreover, the evidence did not establish the existence of
any conditions, such as economic exigencies or delaying tactics
by the Union’s negotiators, which might create an exception to
the general rule prohibiting these unilateral changes.
These violation must be remedied. The remedy will not re-
quire Respondent to rescind the raises it gave to the finishing
and maintenance department employees unless the Union re-
quests such a rescission. However, if requested by the Union,
the Respondent shall reinstate the terms and conditions of em-
ployment which were in existence before the unlawful unilat-
eral changes in wages in January and February 1998.
With respect to Respondent’s failure, in July 1998 to grant
employees the wage increase which it regularly had given at
that time in previous years, Respondent must grant such in-
crease to the full extent it would have increased wages in the
absence of the Union. If necessary, the determination of the
amount of such increase may be resolved at the compliance
stage.
As stated above, I have found that between October 1997
and July 1998, the Respondent engaged in “surface bargain-
ing,” meeting with the Union without an intention to reach a
collective-bargaining agreement, in violation of Section 8(a)(5)
and (1) of the Act. This unfair labor practice took place during
the first year after the Board certified the Union as the exclu-
sive representative of Respondent’s bargaining unit employees.
I recommend that the Board extend the certification year in
accordance with Mar-Jac Poultry, 136 NLRB 785 (1962).
Considering the small number of bargaining sessions, the lack
of agreement between the parties, and the Respondent’s mani-
fest desire to stall the negotiations until the Union abandoned
the employees, it appears clear that extending the certification
year would not unduly saddle the employees with a bargaining
representative they no longer desire. Rather, extension of the
certification year would assure that it is the bargaining unit
employees, and not their employer, who have the power to
make such choices. In sum, I conclude that the Mar-Jac rem-
edy is appropriate here. See Bryant & Stratton Business Insti-
tute, 321 NLRB 1007 (1996), and cases cited therein.
On the findings of fact and conclusions of law here, and on
the entire record in this case, I issue the following recom-
mended 3
ORDER
The Respondent, Burrows Paper Corporation, Pickens, Mis-
sissippi, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to meet and bargain in good faith with the Un-
ion as the exclusive collective-bargaining representative of
employees in the following appropriate unit:

INCLUDED: All full time and regularly scheduled part time
production and maintenance employees and truck drivers em-
ployed at Respondent’s Pickens, Mississippi facility.

3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and recom-
mended 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 purposes.
BURROWS PAPER CORP. 89
EXCLUDED: All other employees, including all office cleri-
cal employees, professional employees, guards and supervi-
sors as defined in the Act.

(b) Unilaterally changing any term of condition of employ-
ment of bargaining unit employees, including, but not limited to
granting wage increases or otherwise changing the compensa-
tion of any bargaining unit employees without first giving the
Union notice of the proposed change and an adequate opportu-
nity to bargain in good faith to agreement or impasse concern-
ing such changes, and also including failing to grant periodic
wage increases which have become terms and conditions of
employment.
(c) Informing employees that a periodic wage increase will
not be granted because of the Union, or because employees
selected the Union to represent them.
(d) In any like or related manner restraining or coercing em-
ployees 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) Rescind, in writing, its June 3, 1998 memorandum to em-
ployees regarding the reasons why they would not receive the
wage increase which Respondent previously had given in July
of each year.
(b) If requested by the Union, rescind the wage increases Re-
spondent unilaterally granted to certain employees in the finish-
ing and maintenance departments in January and February
1998, and restore the terms and conditions of employment in
effect before it unilaterally granted such wage increases.
(c) Grant to all bargaining unit employees the wage increase
Respondent would have granted in July 1998 but for its unlaw-
ful unilateral change in its practice of giving such wage in-
creases in July of each year.
(d) Meet and bargain in good faith with the Union as the ex-
clusive collective-bargaining representative of employees in the
unit described above in paragraph 1(a) of this Order.
(e) Preserve and, within 14 days of request, make available
to the Board or its agents for examination and copying, all re-
cords necessary to determine that the terms of this Order have
been complied with.
(f) Within 14 days after service by the Region, post at its fa-
cility in Pickens, Mississippi, and at all other places where
notices customarily are posted, copies of the attached notice
marked “Appendix B.”4 Copies of the notice, on forms pro-
vided by the Regional Director for Region 26, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately on receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees customarily are posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material.

4 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.”
(g) 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
insofar as it alleges violations of the Act not specifically found.
APPENDIX A
BENCH DECISION
This is Bench Decision in the case of Burrows Paper Corpo-
ration, which I will call the Respondent, and United Paper-
workers International Union, AFL–CIO, CLC, Local 678,
which I will call the Charging Party or the Union. The case
number is 26–CA–18552.
This Decision is issued pursuant to Section 102.35 Subpara-
graph (a) (10), and Section 102.45 of the Board’s Rules and
Regulations.
The Complaint alleges that the original charge in this pro-
ceeding was filed by the Union on March 4, 1998, and served
on the Respondent by regular mail on March 5, 1998, and that
the first amended charge was filed by the Union on July 14,
1998, and served by certified mail on July 31, 1998. Although
Respondent’s Answer denies these allegations, based upon the
charge and the affidavit of service in evidence as General
Counsel’s Exhibit 1(a) and 1(b), I find the original charge in
this proceeding was filed on March 4, 1998 and served on
March 5, 1998 as alleged.
Based upon a written stipulation received in evidence as
General Counsel’s Exhibit 2, and upon General Counsel’s Ex-
hibits 1(e), 1(f) and 1(g) I find that the Union filed the first
amended charge on July 14, 1998, and that the National Labor
Relations Board served this charge on Respondent by certified
mail on August 12, 1998.
In its Answer, the Respondent has admitted the allegations in
Paragraphs 2 through 7 of the Complaint. Based upon those
admissions, the written stipulation of the parties, and the record
as a whole, I find the following facts to be true and established
by the evidence:
At all material times the Respondent, a corporation with an
office and place of business in Pickens, Mississippi, herein
called the Respondent’s facility, has been engaged in the manu-
facture of paper products. During the 12-month period ending
June 30, 1998 Respondent, in conducting its business opera-
tions described above in Paragraph 2, sold and shipped from
Respondent’s facility goods valued in excess of $50,000 di-
rectly to points located outside the State of Mississippi.
During the 12-month period ending June 30, 1998, Respon-
dent, in conducting its business operations described in Com-
plaint Paragraph 2, purchased and received at Respondent’s
facility goods valued in excess of $50,000 directly from points
located outside the State of Mississippi.
At all material times, the Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6)
and (7) of the Act.
At all times material for the purposes of this proceeding R.
W. Burrows, Jr. was a supervisor of Respondent within the
meaning of Section 2(11) of the National Labor Relations Act,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 90
and an agent of Respondent within the meaning of Section
2(13) of the Act.
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act. The following employees of Respondent,
which I will call the Unit, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section
9(b) of the Act:
Included: All full time and regularly scheduled part time pro-
duction and maintenance employees and truck drivers em-
ployed at Respondent’s Pickens, Mississippi facility.

Excluded: All other employees, including all office clerical
employees, professional employees, guards and supervisors as
defined in the Act.

On August 8, 1997 the Union was certified as the exclusive
collective-bargaining representative of the Unit following a
representation election conducted by the National Labor Rela-
tions Board.
The General Counsel of the Board, in a Complaint issued on
July 31, 1998 by the Regional Director of Region 26 of the
Board, alleges that Respondent has failed and refused to bar-
gain collectively with the Union, in violation of Section 8(a)(5)
and (1) of the Act.
I conducted a hearing in this case on September 23, 1998 and
October 26, 27, 28 and 29, 1998 in Memphis, Tennessee. After
the parties had presented their evidence, I heard oral argument
on October 29, 1998, and am issuing this Bench Decision on
October 30, 1998.
In the Complaint, the General Counsel alleges that Respon-
dent breached its duty to bargain with the Union. The General
Counsel alleges that various acts of the Respondent breached its
duty to bargain under two separate legal theories. The Com-
plaint alleges that Respondent made unilateral changes in work-
ing conditions which were mandatory subjects of bargaining
without first notifying the Union and affording it an adequate
time to bargain regarding those changes.
More specifically, Paragraph 13(a) of the Complaint, as
amended orally by the General Counsel during the hearing,
alleges that on or about January 5, 1998 and February 2, 1998,
the Respondent unilaterally awarded wage increases to certain
finishing room and maintenance employees in the bargaining
unit.
Complaint Paragraph 13(b) alleges that on or about June 30,
1998, Respondent unilaterally discontinued its established past
practice of awarding unit employees an annual wage increase of
at least three percent.
Complaint Paragraphs 14(a) and (b) allege, in essence, that
the wage increases described in Paragraphs 13(a) and 13(b) are
mandatory subjects of collective bargaining and that Respon-
dent made the change without giving the Union prior notice and
an opportunity to bargain about them. Complaint Paragraph 17
alleges that by engaging in such conduct the Respondent has
failed and refused to bargain collectively with the exclusive
collective-bargaining representative of its employees in viola-
tion of Section 8(a)(5) and (1) of the Act.
In addition to alleging that Respondent breached its bargain-
ing obligation by making unilateral changes in wages, the
Complaint also alleges that by its overall conduct, Respondent
has failed and refused to bargain in good faith with the Union.
More specifically the General Counsel contends that Respon-
dent has gone through the motions of collective bargaining
without having the intention of reaching an agreement.
Such a “surface bargaining” theory has its roots in Section
8(d) of the National Labor Relations Act which defines the duty
of bargain as follows:

For the purposes of this Section to bargain collectively is the
performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times
and confer in good faith with respect to wages, hours and
other terms and conditions of employment, or the negotiation
of an agreement or any question arising thereunder, and the
execution of a written contract incorporating any agreement
reached if requested by either party, but such obligation does
not compel either party to agree to a proposal or require the
making of a concession. . . .

Embracing the forms of the bargaining process while trying
to avoid its substance falls short of the good faith required to
satisfy Section 8(d). It therefore would constitute a refusal to
bargain collectively in violation of Section 8(a)(5) and (1) of
the Act.
Besides the allegations that Respondent violated Section
8(a)(5) of the Act, the Complaint also alleges, in Paragraph 15,
that Respondent violated Section 8(a)(1) by disparaging the
Union and blaming the Union for the loss of an annual wage
increase. An appendix to the Complaint makes evident that the
alleged annual wage increase referred to in Paragraph 15 is the
same as that referred to in Paragraph 13(b) of the Complaint.
For reason which I will discuss in detail, I find that Respon-
dent did violate Section 8(a)(1) and (5) of the Act by unilater-
ally awarding wage increases to finishing room and mainte-
nance employees on about January 5 and February 2, 1998, as
alleged in Paragraph 13 of the Complaint. However, I do not
find that Respondent violated the Act by discontinuing an es-
tablished past practice of awarding unit employees an annual
wage increase of at least three percent, as alleged in Paragraph
13(b) of the Complaint. Therefore, I will recommend that the
Board dismiss Complaint Paragraph 13(b).
I will also recommend that the Board dismiss the allegations
in Paragraphs 15(a) and (b) which concern how Respondent
explained to its employees why they would not be receiving a
wage increase in July 1998. This explanation relates the ab-
sence of a wage increase to the Respondent’s duty to abstain
from unilateral changes in mandatory subjects of bargaining,
but I do not find that what Respondent told the employees inter-
fered with, restrained or coerced them in violation of Section
8(a)(1).
The most difficult allegations, from my perspective, concern
the Government’s theory that Respondent engaged in unlawful
surface bargaining. The General Counsel and Charging Party
advanced a number of different arguments to support their con-
tention that Respondent had not approached negotiations with
the good faith required by Section 8(d) of the Act.
Some of these arguments make me uncomfortable because
they might imply or appear to imply that the Board had author-
ity to judge the substance of a collective bargaining proposal
BURROWS PAPER CORP. 91
and give it a “thumbs up” or “thumbs down”. Paragraph 11 of
the Complaint, for example, describes certain clauses which the
Respondent proposed to the Union. Similarly, Paragraph 11 of
the Complaint describes certain Union proposals which the
Respondent rejected.
However, in argument, the General Counsel has been very
careful to explain that the Government does not allege that the
Respondent violated the Act either by proposing particular
language or by rejecting any clause which the Union proposed.
Similarly I would emphasize that to the extent that I may look
at any of the Respondent’s bargaining proposals, it is solely to
glean insight into the intentions and good faith of the Respon-
dent’s officers who advanced that proposal. The Law does not
give me either the mandate or the authority to take the Board’s
respected seal, displayed behind me in this hearing room, and
make it some kind of contract language seal of approval.
Therefore, I will try not only to step lightly in this area but to
describe the steps in sufficient detail to assist careful review.
For reasons I will explain, the evidence leads me to conclude
that Respondent did engage in surface bargaining in violation
of Section 8(a)(5) and Section 8(a)(1).
Much of the testimony is in conflict. Before discussing the
facts in greater detail, I will describe the credibility resolutions
which form the basis for my findings of fact.
Even though the Local Union President, Richard Washing-
ton, Jr., attended the bargaining sessions and testified about
them, I do not credit his testimony. Frequently while on the
witness stand, Mr. Washington was unable to answer questions
without first referring to the notes he made regarding the Un-
ion’s negotiations with the Respondent. The great extent to
which Mr. Washington had to rely on these notes would raise a
concern about the reliability of his memory even if it appeared
that the notes were a truly contemporaneous record of events
and statements made during the bargaining.
However, it became clear during cross-examination that Mr.
Washington’s initial testimony about these notes was less than
candid. When Respondent’s attorney questioned Mr. Washing-
ton about these notes on October 26, 1998, the witness admitted
that the notes used to refresh his recollection were not the
original notes he had made during the bargaining sessions.
Rather, Mr. Washington testified, he wrote them over. How-
ever, the witness stated, he did not change the notes when he
copied them. That statement was false, as Mr. Washington
later admitted.
On further cross-examination, Mr. Washington stated that he
had left his original notes at home. Since Respondent had sub-
poenaed these notes, which clearly were relevant to the issues
raised by the Complaint, I directed Mr. Washington to return
with the original notes the next day.
Mr. Washington returned with the original notes, which in
some instances were significantly different from the ones he
had brought to the hearing initially. Further cross-examination
of Mr. Washington revealed that the notes which he had rewrit-
ten months after the events took place included details absent
from the contemporaneous notes he had made during the bar-
gaining sessions. Comparing certain original notes with the
rewritten counterparts, Mr. Washington admitted that the re-
written version was nine pages long while the original notes
were only five pages long.
Two aspects of this matter particularly called into question
the reliability of Mr. Washington’s testimony. First, it is clear
that Mr. Washington did not tell the truth on October 26 when
he stated under oath that he did not change the notes when he
copied them. One day later, production of the original notes
revealed significant differences. Only at that point, confronted
by the discrepancy, did Mr. Washington admit that he did not
simply recopy the earlier notes, but instead made substantive
changes.
This admission establishes that Mr. Washington did not tell
the truth when he testified that he made no changes when he
recopied his notes. However, even more troubling than the fact
Mr. Washington failed to tell the truth is the apparent reason for
his lack of candor. The only apparent reason for this falsehood
is a desire to influence the outcome of this proceeding, even at
the expense of truth.
His initial claim that the copied notes were the same as the
original cannot be understood as an exculpatory lie designed to
get the witness out of trouble, because he wasn’t in trouble.
Similarly it cannot be understood as a yielding to some tempta-
tion to obtain a personal benefit. It does not appear that Mr.
Washington stood to gain materially and personally from this
misstatement of facts.
The only obvious reason why Mr. Washington would make
this particular false statement while under oath is to influence
this proceeding. If his desire to win this case is that strong,
then none of his testimony can be trusted. Although I do not
strike it physically from the record, I do not credit it and do not
rely upon it for any purpose.
An International Representative of the Union, Michael
Tourné, also testified for the General Counsel. Based upon my
observations, I have no doubt that he was honest and sincere.
On the other hand those laudable qualities do not always result
in accuracy.
Frequently Mr. Tourné had to refresh his recollection of the
negotiating sessions by reading from his notes. He was rela-
tively new to the bargaining process. Observing Mr. Tourné
even briefly led to the impression that he was very much a
“people person” whose defining strength lay in a seemingly
effortless ability to form easy relationships with other people. I
did not get the impression that he coped with life by breaking
down events into rigorously defined categories.
On the other hand, the Respondent’s chief executive officer,
R. W. Burrows, Jr., appeared to have an entirely different rela-
tionship with his daily planner. Referring to it while he testi-
fied, Mr. Burrows displayed an amazing command of how he
had organized his time day by day more than a year ago.
Clearly Mr. Burrows required himself to be precise. At one
point in his testimony, he drew a distinction between the words
“contract” and “agreement.”
I believe both Mr. Tourné and Mr. Burrows intended to be
honest witnesses. Any differences in the quality of their testi-
mony likely would arise from the ways they value and process
information. Where precision is important I will favor the tes-
timony of Mr. Burrows because of his exactitude. Where mean-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 92
ing depends on relationship more than definition, Mr. Tourné
would appear to be the better reporter.
Based primarily upon my observations of demeanor, I credit
the testimony of Marion William Martin, who testified for the
General Counsel. In oral argument, the Respondent’s counsel
suggested that Mr. Martin’s testimony might be affected by
bitterness because recently, when some other employees in his
department got a raise, Mr. Martin did not. Additionally, the
Respondent’s counsel suggested, Mr. Martin might also have
been upset because the Respondent did not hire Mr. Martin’s
son for a position he wanted.
In his testimony Mr. Martin mentioned that he was embar-
rassed when the Respondent posted a list of employees who
received raises, and Mr. Martin’s name was not on it, prompt-
ing some employees to joke about it. However, I did not get
the sense that Mr. Martin was bitter or vengeful.
To the contrary, Mr. Martin’s testimony suggested that he
viewed the new chief executive officer, Mr. Burrows, with
considerable respect. Mr. Martin indicated that he believed that
problems might continue at the plant because Mr. Burrows was
not receiving correct information about them. Such personal
loyalty to Mr. Burrows was evident, but I did not detect bitter-
ness in his testimony. Neither what Mr. Martin said nor the
way he said it created an impression that he was biased. I
credit his testimony.
The Respondent’s new Human Resources Manager, Paul
Leonard Stachura, also created a favorable impression as a
witness. Based on his demeanor, I conclude he was an honest
witness. However, he did not become Human Resources Man-
ager until May, 1998, and had not been involved in some of the
events which are the subject of this case.
Turning now to the facts: As already stated, on August 8,
1997, the Board certified the Union as the exclusive bargaining
representative of a unit of production and maintenance employ-
ees and truck drivers employed at Respondent’s facility in Pick-
ens, Mississippi.
By letter dated August 22, 1997, a Union representative noti-
fied Respondent’s plant manager of the certification, sought to
set up negotiations, and requested certain information to pre-
pare for negotiations. See General Counsel’s Exhibit 3.
Apparently, the plant manager forwarded the letter to Mr.
Burrows at the Respondent’s home office in Little Falls, New
York. Mr. Burrows’ response, on September 3, 1997, indicated
that he had received the letter the previous day. This reply
indicated that Mr. Burrows would be available for negotiations
on October 15 and 16, 1997 and November 12 and 13, 1997. It
concluded as follows:

Travel to Pickens from Little Falls is usually an eight to ten-
hour trip. From my three addresses, you will conclude that I
carry a fairly long list of demands on my time.

See General Counsel’s Exhibit 4.
After further correspondence, the parties met in Pickens,
Mississippi for their first bargaining session on October 15,
1997.
In oral argument, the General Counsel contended that al-
though Mr. Burrows testified that there were other commit-
ments on his schedule which precluded him from meeting with
the Union sooner than October 15th, he could have rescheduled
some of them. Moreover the General Counsel asserts that Mr.
Burrows’ testimony on cross-examination acknowledges that
he could have rescheduled some of those meetings.
I am not as eager as the General Counsel to infer an inkling
of bad faith from the fact that Mr. Burrows did not reschedule
meetings which were already on his calendar. The evidence
clearly establishes that he is an extremely busy man who runs
two separate companies, one of them a paper manufacturer and
the other a bank. At some point, moving around appointments
on a calendar book becomes as frustrating as solving a Rubik’s
Cube puzzle, and I am not sure how much the Board would ask
or even could ask for that sort of action as a demonstration of
good faith.
Moreover Mr. Burrows appears quite clearly to have an or-
ganized routine and an orderly temperament evident not only in
his demeanor but in the notes he took while at negotiating ses-
sions, in which he instructed himself to sort out a confusing
matter. Perhaps, if Mr. Burrows typically did things on the
spur of the moment, a reluctance to rearrange a schedule for a
Union meeting might possibly say something about his attitude
toward the Union. However, considering the value Mr. Bur-
rows places on structure and order in all aspects of his life and
work, I draw no inference from the fact that he did not cancel
any existing appointments to meet with the Union sooner. In-
deed the record does not establish that the Union ever asked
him to do so.
Similarly I do not find very persuasive the General Counsel’s
related argument that Mr. Burrows took several vacations out
of the country and that he could have cancelled one of these
trips to meet with the Union. The record does not reflect what
kinds of difficulties and expenses could result from cancelling
an already - scheduled vacation trip.
Moreover, one of those trips was his planned honeymoon.
Even among employment lawyers there are probably few who
would give a higher priority to collective bargaining than to a
honeymoon. I will not infer bad faith or hostility from the fact
that Mr. Burrows apparently did not wish to postpone a marital
union for a labor union.
The General Counsel and Charging Party also suggest that
Mr. Burrows should have done more than get a plane ticket and
hotel reservation before his first meeting with the Union. To
my knowledge, neither the statute nor the Board’s decisions
establish any requirements for how a party should prepare for
the first bargaining session to avoid creating the impression that
he lacks good faith.
What happens during the bargaining itself certainly does
shed light on the good faith of the parties. During oral argu-
ment, the General Counsel contended that at the first bargaining
session, on October 15 and 16, 1997, Mr. Burrows rejected all
of the Union’s proposals, and that this action implied a lack of
good faith. However, the General Counsel’s argument must be
considered along with Section 8(d) of the Act, which provides
that the duty to bargain collectively—and here I quote from the
statute—“does not compel either party to agree to a proposal or
require the making of a concession.” This provision does not
contain an exception for the first day of bargaining.
BURROWS PAPER CORP. 93
The fact that a negotiator does not agree to a proposal on the
first day he sees it does not suggest hostility to me so much as it
indicates caution. I believe a more significant indication of
good or bad faith can be obtained by looking at a series of bar-
gaining sessions and determining whether the negotiations pick
up momentum as the parties deal with each other. If the bar-
gaining goes nowhere, then the next step is to figure out why.
In this case, a year has elapsed since the negotiations began.
The record clearly establishes very little progress. In fact, one
bone of contention has been the recognition clause, yet that is
the one clause which should be the easiest for the Respondent
to accept, because it costs the Respondent nothing.
The Board had issued its Certification some two months be-
fore negotiations began. Thus the Board had determined the
scope of the bargaining unit, and by certifying that the Union
was the exclusive representative of this unit, the Board told the
Respondent to recognize the Union as such.
In other word, the Respondent did not have any discretion to
bargain about the scope of the unit or about its duty to recog-
nize the Union as the exclusive representative of employees in
that unit. However, the Respondent did not agree to a recogni-
tion clause describing the unit as certified by the Board. In-
stead, at the second set of bargaining sessions, in November,
1997, the Respondent offered a contract proposal which con-
tained the following recognition language. Noting that the
letters “BPC” stand for “Burrows Paper Corporation” and that
“UPIU” stands for “United Paperworkers International Union,”
I quote the Respondent’s proposed recognition clause in its
entirety and verbatim:

BPC recognizes that the 65 Pickens employees voted 44-21
under NLRB sanctioned election to recognize the UPIU’s
claim to represent them. BPC agrees under NLRB Law to
negotiate an agreement. BPC recognizes the right of the
UPIU to walk away from their obligation to represent the
Pickens employees after 31 July 1998. BPC agrees to treat
the 65 Pickens employees fairly in either case.

If there is such a thing as “smoking gun evidence” in labor
law, this “recognition clause” certainly must come close.
Events which would otherwise seem ambiguous or nonsensical
suddenly appear coherent and purposeful when considered with
the words of that proposed clause.
As I will discuss shortly, the Respondent has proposed that
its employees be paid at the minimum wage which is consid-
erably less than the employees currently are making. Respon-
dent’s Human Resources Director offered an explanation which
had some plausibility. Since the plant was in a poor rural area
of Mississippi, management believed the Company could still
attract the workers it needed even if it reduced wages and bene-
fits.
However, we might regard that reasoning in social terms,
such a motive does not constitute bad faith under the National
Labor Relations Act. If an Employer truly wanted to drive that
hard a bargain to reduce its expenditures for wages, it lawfully
could take a tough stand during negotiations.
The recognition clause proposed by Respondent undercuts
any assertion that Respondent’s proposal to reduce employees
to the minimum wage arose from monetary reasons. Consider
this excerpt: “BPC agrees under NLRB Law to negotiate an
agreement. BPC recognizes the right of UPIU to walk away
from their obligation to represent the Pickens employees after
31 July 1998.”
The only modification which might make Respondent’s in-
tention more obvious would be to follow this first sentence,
“BPC agrees under NLRB Law to negotiate an agreement,”
with the parenthetical words “but you’re not going to like it.”
And it certainly does not require Sigmund Freud to under-
stand the meaning of the next sentence: When the Respon-
dent’s recognition clause states “BPC recognizes the right of
the UPIU to walk away from their obligation to represent the
Pickens employees” it isn’t difficult to see that language as a
hint, even if not followed by the words “would you please?”
Respondent’s design, to get rid of the Union as soon as the
Certification year expired, became even more apparent when
Respondent made a second attempt to draft a recognition
clause. This clause appears in Respondent’s January 21, 1998
proposal, General Counsel’s Exhibit 10. This proposed clause
states:

BPC recognizes the UPIU Local No. 678 as the representative
for the purposes of the NLR Act of a Paper Machine Room,
Maintenance, Shipping and Receiving, Finishing Room and
Pulp Room employees for the period of one year following
the August ‘97 official certification.

Now why, one might ask, did the Respondent add the phrase
“for the period of one year following the August ‘97 official
certification”? That phrase certainly will not be found in the
official Board Certification. To the contrary, under longstand-
ing Board precedents, it is clear that the Union continues to
enjoy a presumption of majority status, although a rebuttable
one, after the certification year ends.
To borrow a phrase we hear a lot today in various contexts,
including Oprah, it certainly appears that the Respondent, Mr.
Burrows at least, was in denial or at least struggling with it.
Mr. Burrows’ September 3, 1997 letter to International Rep-
resentative Tourné referred to the recent vote as “our lost elec-
tion.” Significantly, in that letter Mr. Burrows requests that the
Union representative provide him with proof that he is, indeed,
a Union representative. Only then would Mr. Burrows provide
the requested information.
That seems to me about as unusual as turning to someone
and asking him to pinch you to be sure that you’re not dream-
ing. The request for proof that Mr. Burrows put in his letter
does suggest that Mr. Burrows is having a little difficulty ac-
cepting the results of the election. This request for proof seems
to be saying “You mean, I really have a Union?”
Thereafter, the Respondent’s efforts to insert a one-year limi-
tation into the recognition clause suggest that Mr. Burrows is
still struggling to accept the Union vote. In fact, the recogni-
tion clause in the Respondent’s November 12, 1997 proposal
even recites that the employees voted 44 to 21 to “recognize the
UPIU’s claim to represent them.” On the witness stand this
week—even though the vote was more than 14 months ago—
Mr. Burrows again volunteered the numbers “44 to 21.” He is
still thinking about the tally of ballots.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 94
I find that the Respondent’s recognition clause proposals
make obvious Respondent’s hopes that the Union will go away
when the certification year has ended. In this case the evidence
also leads to the conclusion that Respondent’s hopes are now
Respondent’s plans.
The language of Respondent’s recognition proposals is cen-
tral to my finding of a surface bargaining violation. The Re-
spondent made a number of proposals which might, if consid-
ered individually, establish only a tough bargaining stand.
However, I do not reach the question of whether these propos-
als, or any of them, would indicate bad faith if considered indi-
vidually.
Respondent’s intent is so apparent from its recognition
clause proposals that I must consider it as part of the total pic-
ture. In that light, Respondent’s intent not to reach agreement
but somehow to divest itself of the Union is very clear.
With respect to the raises given certain employees in the fin-
ishing and maintenance departments in January and February, it
is clear that there was no impasse, and that the Respondent
could not implement these proposals without the Union’s as-
sent. For the waiver of a statutory right, silence does not give
consent, and neither does ambiguity. The waiver of the statu-
tory right must be clear and unequivocal. The person granting
the waiver must do so knowingly.
The record does not establish that Union Representative
Tourné knowingly gave such a waiver. I credit his testimony
that he expected Mr. Burrows to look into the matter of raises
for those employees but was not expecting it raises to be im-
plemented without further discussion.
A statement in Respondent’s January bargaining proposal
also would lead Mr. Tourné to such a conclusion. At page 10
of the Respondent’s proposal appears language that “all state-
ments in this proposal are merely that—a proposal. These
statements should not be construed as contract language.”
Because the Respondent was submitting to the Union pro-
posals it disavowed as being contract language, the situation
was, at best, ambiguous and confusing. Under such circum-
stances the Union did not clearly and unequivocally waive its
right to bargain.
Finally, there is the matter of the July 1998 raises. I find that
there was an established past practice that the Respondent
would grant some kind of raise, and that it would be on or
around July of each year. Based on the testimony of Mr. Mar-
tin, which I credit, I find that the raise varied from year to year
and that the Respondent retained considerable discretion as to
the amount of the raise.
It is possible that the Board would find that the Respondent
had a continuing duty to implement such a raise. However, I
do not believe the case law is entirely settled on this issue. See,
for example, Daily News of Los Angeles, 315 NLRB 1236
(1994).
After the Respondent unilaterally, and, as I have found,
unlawfully implemented raises in January and February, the
Union filed a charge about this change. Although a Union
letter also assured the Respondent that it did not object to grant-
ing of a three-percent increase in wages across-the-board, I
believe that the Union’s letter did not, itself, relieve the Re-
spondent of the dilemma it faced in deciding what action was
most consistent with the Law. And I believe it faced a true
dilemma in that regard.
So in these circumstances I recommend that the Board dis-
miss the allegations that Respondent made an unlawful unilat-
eral change with respect to the July raise. Similarly I recom-
mend that the 8(a)(1) allegation with the Respondent’s notice
about the wages also be dismissed.
When the transcript of this hearing is received I will prepare
a Certification of Bench Decision which will attach the tran-
script to the Decision I have delivered orally. It will also in-
clude Order, Remedy and Notice Provisions. In the circum-
stances of this case I do consider a Mar-Jac remedy to be ap-
propriate to extend the Certification year and, I will include that
in my Certification and recommendation.
After this Certification is signed by me, the Board will serve
copies of it on the parties in this case. At that time the period
for appeal will begin to run.
When I was reading the exhibits last night and looking over
the stipulation that was signed by counsel, and thinking back
about how cooperative the parties were in this case, I was very
appreciative of your professionalism and courtesy. And it’s a
real tribute to the Labor Bar that you all have such high stan-
dards. I really appreciate it.
The hearing is closed.
(Whereupon, at 1:09 P.M. the hearing was concluded.)