Clear Pine MouldingsDownload PDFNational Labor Relations Board - Board DecisionsSep 12, 1978238 N.L.R.B. 69 (N.L.R.B. 1978) Copy Citation CLEAR PINE MOULDINGS Clear Pine Mouldings, Inc. and International Wood- workers of America, Local No. 3-200, AFL-CIO. Case 36-CA-3129 September 12, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDAL.E On June 14, 1978, Administrative Law Judge James M. Kennedy issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. The General Counsel filed a brief in support of the Administrative Law Judge's Decision and a brief in reply to the exceptions and brief filed by Respondent. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. Amended Conclusions of Law Substitute the following for the Administrative Law Judge's Conclusion of Law 6: "6. On July 18, 1977, Respondent, by reprimand- ing Darlene Forseth because she was a member of the Union's committee, violated Section 8(a)(3) and (1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relesent evidence convinces us that the resolutions are incorrect. Standard Dr' WSall Products, Inc., 91 NLRB 544 (1950), enfd 188 F. 2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. Additionally, we are satisfied that Respondent's contention that the Ad- ministrative Law Judge was biased is without ment. In our opinion, there is nothing in the record to suggest that his conduct at the hearing, his resolu- tions of credibility, or the inferences he drew were based on either bias or preludice. In finding that Respondent's reprmand of Darlene Forseth violated the Act, we find it unnecessary to determine whether that reprimand was pursu- ant to art. XX of the contract and whether art. XX became, in essence, a company rule upon the expiration of the contract. The facts reveal that Respondent's written warning issued to Forseth was, as found by the Admin- istrative Law Judge, motivated by antiunion considerations based upon For- seth's membership on an in-plant union committee. While finding that Respondent's warning to Forseth violated Sec. 81a)3) as well as Sec. 8(a)( I), the Administrative law Judge inadvertently omitted reference to Sec. 8(aX3t in his Conclusions of Law. tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Clear Pine Mouldings, Inc., Prineville, Oregon, its officers, agents, successors, and assigns. shall take the action set forth in said recom- mended Order, except that the attached notice is sub- stituted for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportu- nity to present evidence, the National Labor Rela- tions Board has found that we violated the National Labor Relations Act and we have been ordered to post this notice to our employees. The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representa- tive they choose To act together for collective-bargaining or other mutual aid or protection To refrain from any or all such activity ex- cept to the extent that the employees' bargain- ing representative and employer have a collec- tive-bargaining agreement which imposes a lawful requirement that employees become union members. WE WILL NOT interrogate employees regarding their reasons for joining International Wood- workers of America, Local 3-200, AFL-CIO, and WE WILL NOT threaten employees should they choose to join the Union. WE WILL NOT give employees written warnings or otherwise discipline them because they are members of the Union's grievance/negotiating committee. WE WILL NOT enforce or give effect to any rule which prohibits employees from engaging in union activity at the plant at times when they are not actually required to be working. WE WILL NOT refuse to bargain collectively in good faith with International Woodworkers of America, Local No. 3-200, AFL-CIO, in the fol- lowing unit: All our employees at our operations near Prineville, Oregon, excluding office and cleri- cal employees, guards, professional and super- visor)y employees as defined in the Act, as 238 NLRB No. 13 69 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amended, and independent contractors and employees thereof. WE WILL NOT unilaterally, without giving the Union an opportunity to bargain, change our health insurance plan. WE Wll.l. NO'I in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights guaranteed under Section 7 of the Act. WE WilL.L immediately bargain collectively in good faith with the Union as the exclusive repre- sentative of our employees in the above bargain- ing unit and, if an understanding is reached, will embody such agreement in a written, signed con- tract. WE WILL make whole, with interest, any em- ployee who lost money as a result of our unilat- eral adoption of the new health plan. WE will. expunge from the personnel records of Darlene Forseth all references to the repri- mand given her on July 18, 1977, and will in the future treat her as if the reprimand had never been given. WE WILL, upon application, offer immediate and full reinstatement to their former positions or, if said positions no longer exist, to substan- tially equivalent positions, if jobs are available, without prejudice to their seniority or other rights and privileges, to all our employees who were on strike on or after August I, 1977, and who have not already been reinstated, dismiss- ing, if necessary, any persons hired by us on or after August 1, 1977. If insufficient jobs are available for these employees, they shall be placed on a preferential hiring list and they will be offered employment before any other persons who are hired. Where appropriate we will make them whole for loss of earnings, with interest. CLEAR PINE MOUI.DINGS, INC. DECISION SIA I MINI 01F 1lit CASE JAMES M. KENNEDY, Administrative Law Judge: This case was heard before me on December 6-8, 1977, and January 23, 1978, in Prineville and Portland, Oregon, pur- suant to a complaint issued by the Regional Director of the National Labor Relations Board for Region 19 on October 3, 1977. The complaint is based upon a charge filed by International Woodworkers of America, Local No. 3-200. AFL-CIO (herein called the Union), on July 12, 1977, against Clear Pine Mouldings, Inc. (herein called Respon- dent), alleging that it has engaged in certain violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. Issues Whether or not: 1. Respondent, on various dates in the spring of 1977 engaged in independent violations of Section 8(a)( 1) of the Act. 2(a). Respondent in May, June. and July, 1977 engaged in dilatory bargaining tactics with the Union, thereby vio- lating Section 8(a)(5). 2(b). If so, whether the dilatory tactics caused the strike of August 1, 1977,1 and whether or not the strikers should be held to be unfair labor practice strikers. 3. Respondent violated Section 8(a)(5) when, after the expiration of the collective-bargaining agreement, it discon- tinued payments to the health and welfare and pension trusts and thereafter purchased substitute medical coverage and deposited moneys which otherwise would have been contributed to the pension trust into a separate bank ac- count. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of all parties. Upon the entire record of the case and from my observa- tion of the witnesses and their demeanor. I make the follow- ing: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent admits that it is an Oregon corporation with an office and place of business located in Prineville, Oregon, where it is engaged in the manufacture and sale of mould- ings and related products. During the past 12 months it has sold and shipped from its Prineville plant to customers out- side Oregon finished products valued in excess of $50,000. It therefore admits, and I find, that it is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. IHE LABOR ORGANIZATION INVOI.Vt:I) Respondent admits, and I find, that at all times material herein the Union has been a labor organization within the meaning of Section 2(5) of the Act. 11I. THE ALLEGED UNFAIR LABOR PRAC TIC ES A. Background and Participants Respondent operates a manufacturing plant in Prineville, Oregon. It currently employs approximately 330 employees. The Union was certified as the collective-bargaining repre- sentative of Respondent's employees in an appropriate unit on August 4, 1965, in Case 36 RC-2057. At that time the plant employed only 68 production and maintenance em- ployees. It has since grown to its present size, and during All dates hereinafter are 1977 unless otherwise noted. 70 CLEAR PINE MOULDINGS that period Respondent has signed a series of collective- bargaining contracts with the Union. The most recent collective-bargaining contract, which had a duration of 2 years, expired on June 1, 1977. It is the negotiation of a successor agreement which is under scru- tin) here. During the relevant period Respondent's management included General Manager Thomas S. "Stu" Turner, Gen- eral Superintendent Joel Hensley., and Personnel Manager Robert Lockyear. During the collective-bargaining sessions Respondent was represented by its attorney, Verne W. Newcomb, Delosh "Dee" Hustead, a professional negotia- tor employed by Timber Operators Council, Inc., and Turner. The Union was represented at all meetings by Phillip L. Douglass, its business agent. At the first meeting he was assisted by an IWA regional representative named lIes Miller. At later meetings the IWA regional representative was Hugh Kidwell. The union officials were also assisted by a local committee consisting of five of Respondent's em- ployees. One member of the Union's committee, Darlene Forseth. is an alleged victim of certain independent 8(a)(1) and (3) conduct. The Union opened the 1975-77 contract for negotiation of a successor agreement by Douglass' letter of March 14. Attached to that letter were the Union's initial demands. Respondent's General Manager Turner acknowledged re- ceipt of the Union's opening letter by his letter to the Union dated March 22. By letter dated March 31 Douglass sub- mitted additional matters for negotiation. B. .4lleged Interference, Restraint, and Coercion The 1975-77 contract between Respondent and the Union, like previous contracts, contained a maintenance-of- membership union-security clause. Many of Respondent's employees had not joined the union. In March, in order to make certain it had sufficient bargaining strength to suc- cessfully negotiate a new contract, the Union began a mem- bership drive among those employees who had not joined. A union meeting was held in late March, approximately March 25. At that time about 40 employees joined the Union and executed dues-checkoff authorization forms. Douglass delivered these to Respondent the following Mon- day. For a period of time thereafter, other employees also joined the Union and executed dues-checkoff forms. These. too, were promptly given to Respondent. I. Randle and Stephens Two employees who signed dues checkoffs were Andrew Randle and Laura Stephens. Although the record does not show each date, their checkoff authorization forms were given to Respondent. Immediately after they were received. Personnel Manager Lockyear called each to his office where they were separately interviewed in April. Lockyear. saying he had to be careful how he worded it, testified that he asked Randle, a forklift driver, why he had joined the Union. Randle replied that he thought it was necessary for safety reasons. Lockyear also asked Randle if he had heard rumors around the mill. Randle replied that he paid no attention to rumors. The interview then ended. Stephens. who works in the vinyl department, testified that when Lockyear called her in, he told her he had to be careful how he approached her. He then asked her why, after 8 months of employment, she had joined the Union. She replied she became a member because she wanted to obtain union retirement benefits. Lockyear replied that re- tirement benefits did not depend on union membership and she and her husband together were throwring away $22 per month on union dues. He then asked her who had ap- proached her about joining the Union and whether the ap- proach had been made on the job. She refused to tell him who had approached her but did say she had not been approached on the job. Lockyear then asked her to have her husband come and see him. She told her husband about Lockyear's request, but he refused to see Lockyear. Lockyear and General Superintendent Hensley both tes- tified they had heard reports about the union organizing drive which led them to believe employees were being mis- led about the need for union membership. Lockyear testified that employees Ron Boothe and Rod Johnson, the day after the union meeting, had told him the meeting had been a fiasco and Boothe had been shouted down. According to Lockyear, Boothe said the union had made a demand that it needed more membership or it would lose its power; that if it lost its power in negotiating, the Company would do away with all the employees' fringe benefits and lower their wages. Lockvear says Johnson said practically the same thing. Hensley testified Boothe told him the union officials had said if the union membership didn't increase the Union was going to cut wages and drop the fringe benefits.- In addition, Hensley said he received reports from three of his fobremen that the Union had told employees that if they didn't join there was a possibility there would be no union and the Company would cut fringes, wages and do just anything it wanted. According to Lockyear. it was these reports which trig- gered his interview of Randle. which he admits. He does not recall interviewing Stephens, though he does not deny the possibility. He says the purpose of the Randle interview was to determine if the Union was obtaining membership by feeding employees misinformation. Presumably that was also behind his interview of Stephens. Boothe, a glue-press setup man employed for 8 years by Respondent. testified that when he went to the meeting, the union officials, including Phil Douglass and others whom he did not know, listed what the Union's bargaining de- mands were going to be. Boothe then reports they said if the Union lost its representational rights, Respondent could not match the current medical insurance and could drop wages to the minimum wage and drop some of the holidays. Boothe says that he tried to tell the union officials and membership that Respondent would not do those things because "they just ain't that kind of people .... " Every time Boothe tried to say something he was either laughed at or 2 Such a statement by Boothe should have caused Hensley serious doubts about Boothe's accuracy, for he well knew: that the Union could not cut wages or fringe benefits; only Respondent could. If Boothe was simply being inarticulate in reporting that the Union. it' weak, would be unable to negoti- ate well, such a remark is above suspicion insofar as the Union's alleged deceptive practices are concerned 71 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the subject was changed. Boothe readily admitted he was opposed to the Union's continued representation and said he wanted "to see the Union out." In view of Boothe's antiunion attitude, and in view of the fact that he characterized the union officials' talk as phrased in "could" terms rather than "would" terms, I find Respon- dent's explanation for the Randle and Stephens interviews to be hollow. It may well have been true that Boothe re- ceived a hostile reception from the Union's officials and membership, no doubt because of his own hostility toward the Union. Despite his enmity, he testified that the Union's sales pitch was couched in possibilities, not certainties. Even Hensley seems to have gotten that message because he said he was not certain if Boothe had used the words "could" or "would" in quoting the union officials. Accordingly, I conclude that shortly after the Union's March organizational meeting, Respondent had no reason- able grounds to believe that the Union was engaging in deceptive organizing practices. It knew that the Union was engaging in simple, hard-sell, organizing techniques and was not engaging in any falsehoods. Accordingly, there ap- pears to have been no legitimate justification for interrogat- ing Randle and Stephens. 2. The hiring interview of Kenneth Heitz Kenneth Heitz was hired on June 7, a week after the collective-bargaining contract expired. He was interviewed by Lockyear who made the decision to hire him. Heitz tes- tified that during the interview Lockyear told him there was a union at Respondent but it would not be to Heitz' advan- tage to join it. Heitz said Lockyear told him the Company had just as good benefits as the Union. According to Heitz, Lockyear spent most of the interview time telling him join- ing the Union was not to his advantage. Heitz did have some difficulty in explaining the percent- age of time spent on a discussion of union matters versus the amount of time spent discussing the job he was being hired to perform. He recalls Lockyear gave him a prehire package of employment-related literature. Lockyear testi- fied that the package is always given to new hires and it always contains a standard letter explaining that the deci- sion to join the Union rests with the employee.' Heitz how- ever, testified he had never seen such a letter. He essentially denies Lockyear's version, saying the thrust of the interview was Lockyear's persistent effort to dissuade him from join- ing the Union. Lockyear testified he only vaguely recalled interviewing Heitz in June. He explained he has approximately 30 inter- views per month and for that reason is unable to be more specific. He could only testify about the routine he nor- mally follows in such circumstances. He said employees who are being interviewed commonly ask why they should join the union and his standard answer is: "The choice is yours." He also said he doubts saying to Heitz or anyone 3 The letter to which Lockyear refers is in evidence as Resp. Exh. i. That particular letter is dated March 29, 1977; Lockyear testified the letter is periodically redated. He said it was redated on March 29 and redistributed to all employees at that time because of the so-called misinformation which the Union was allegedly then giving employees about the need for joining the Union. that the Company's benefits were just as good as the Union's, because such a remark is inconsistent with the facts. He observed that all employees received identical benefits under the union contract whether or not they were union members. It is true that Heitz was a little vague in certain portions of his testimony; however he was no more vague than Lockyear. Of the two, Heitz specifically recalled the inter- view and specifically recalled the tenor of the interview was to the effect that he should not join the Union. I note, too, that Heitz' testimony is similar to that of Stephens', noted above. Accordingly, I find Lockyear used Heitz' prehire in- terview as an opportunity to dissuade Heitz from joining the Union. 3. Darlene Forseth Darlene Forseth is a vinyl-machine operator and is a member of the in-plant union committee. That committee serves both as a grievance committee and as an ad hoc ne- gotiating committee. On July 18 she was called to General Superintendent Hensley's office. When she arrived she found the other members of the committee present as well as three female employees from the vinyl room. These were Mary Ann Tooley, Wrilda Chancellor nee Edwards and Elris Jones. According to Lockyear, a short time earlier, four female employees from the vinyl department (the three mentioned above plus one Schwand) had come to his office. He said Chancellor was very upset and Tooley was almost in tears. Chancellor did most of the talking and reported "there was an employee in the plant that was harassing them about union activities during working hours" and they wanted it stopped. Moreover, he said, Chancellor claimed the em- ployee was telling them they could be fined for crossing any picket line, their wages could be attached, and they could lose their jobs or be forced back into the Union. He recalls Chancellor saying Forseth was the person who was making these remarks. When that discussion ended, Lockyear re- ported the women's complaint to Hensley and Turner; Turner thereupon directed Lockyear to issue Forseth a rep- rimand for violating article XX of the contract which pro- hibited union activity on the job.4 At the time the repri- mand was issued the contract had been opened, and negotiations for a new one were underway. Curiously, as seen infra, Respondent at the bargaining table had earlier taken the position that the contract had expired; a response to a union contention that the contract may still have been in effect, having been opened only for modification. It is unclear why Turner chose to rely upon a clause in a con- tract which he believed had expired 6 1/2 weeks earlier. It is clear that the decision to issue the reprimand was made without investigating Forseth's side of the case. In- deed, when she arrived in Hensley's office Lockyear had already prepared the written reprimand. A consolidation of the testimony of all involved shows Lockyear merely said in general terms that Forseth had violated article XX and was being reprimanded. He never specifically advised Forseth 4 Art. XX of the contract states in full: "There shall be no union activity during working hours, execpt as provided in Article XIX-Grievances." 72 CLEAR PINE MOULDINGS or the committee what Forseth had actually done. Forseth believed the reprimand referred to an incident in May in- volving Chancellor while the vinyl department employees were returning to their work stations from a break. She could not understand how she could be in violation of arti- cle XX because that incident had occurred on a break, not during working hours. Therefore. she refused to sign the warning. In reaching the decision to reprimand Forseth, Lockyear relied principally on Chancellor, not Tooley. During both meetings on July 18, Tooley was so upset she was nearly weeping. Indeed, Tooley was in a similar state during her testimony before me and became virtually incoherent. It was obvious to me, as it must have been obvious to man- agement on July 18, and probably before, that Tooley is highly excitable and has an extremely low emotional threshold. Tooley testified she believes it was not until the following day, July 19, that she was actually able to articulate her own complaint about Forseth to Lockyear. According to her, the incident occurred on July' 18, and although she wished to complain to management about it, was then un- able to do so. Chancellor, Jones. and Schwand. sympathiz- ing with Tooley's then upset state, accompanied her to Lockyear's office. However, only Chancellor appears to have articulated any complaint. Chancellor said she told Lockyear that if Forseth would quit running up and down between the ma- chines causing friction and anxiety, it wouldn't be so bad. Chancellor conceded Forseth never said anything directly to her about the Union and all she had heard were rumors. She claimed to have earlier overheard Forseth speak to an employee named Puckett, telling him that if employees at- tempted to resign from the Union, the Union had hired a lawyer and the employees could be sued. It is not clear if she related that to Lockyear; probably she did not. Chan- cellor told Lockyear she had heard these rumors from other sources as well. Chancellor admits all vinyl room employees, not just Forseth, occasionally engaged in union activity on the job. She conceded that union solicitation on the job didn't bother her and she admits to having done it herself. Once during working hours she tried to get a coworker named Ferguson to join the Union. She says Tooley even did the same thing at one time. Moreover, Chancellor readily con- ceded that the talk about lawsuits was all rumor and Lock- year had told them not to believe everything they heard. Even absent Lockyear's assurance, Chancellor admiis she had a pretty good idea the talk of lawsuits was "malarkey." At one point during the initial July 18 meeting with Lockyear, Chancellor says Tooley was in such a state that she could not speak. At another point she says Tooley told Lockyear that Forseth had told her that if employees crossed the picket line they could be sued. It should be observed here that Chancellor, on August 16, signed an affidavit in which she omitted the entire July 18 incident(s). Also in that same affidavit she makes the flat statement that although she had heard rumors in the plant to the effect that employees who tried to withdraw from the Union would be sued, wages cut. and insurance taken away, no member of the union negotiating committee (which included Forseth) and no officer of Local 3-200 and no agent of the IWA ever made any such statement to her. She does not even mention Forseth's alleged statement to employee Puckett. In reviewing Lockyear's and Chancellor's testimony, I find it strange that she does not corroborate what he says she told him on July 18. He says she told him Forseth was harassing employees with union activity during working hours, describing certain detriments which would befall them if they resigned from the Union or crossed its picket line. She says she told Lockyear that Forseth was causing friction and anxiety running up and down between the ma- chines (presumably talking about the Union in some fash- ion, but she doesn't specifically say so). Not only did she fail to testify about Forseth's specific activity, she conceded before me that Forseth had not engaged her in such conver- sations and she had only overheard Forseth make such statements to Puckett, not Tooley. If that is so, how did Lockyear learn of Tooley's complaint? Moreover, why did Chancellor omit all of this from her affidavit and say she had never heard any member of the union committee (nec- essarily including Forseth) make such remarks? One answer is that Lockyear probably didn't learn of Tooley's com- plaint from Chancellor, but from Tooley on July 19. Other possible answers are that Chancellor either exaggerated to Lockyear. or Lockyear jumped to conclusions about For- seth. Tooley's testimony makes the first and third answers the most likely, though Chancellor's exaggeration cannot be discounted. Perhaps all three answers are correct to some degree. Tooley testified that the incident which triggered her tears on July 18 consisted of only a few words uttered by Forseth. According to Tooley, either July 18 or possibly the day before, Forseth had observed that the Union needed only a few more signatures and it would have its quota for a closed shop, and if people joined after the quota was reached, they would have to pay a $40 initiation fee. Tooley had joined the Union in March but had resigned on approximately July 10 or 11, the week before. She said that on July 18 Forseth told her she could not resign, and the Company would be sued and employees fined if they crossed the picket line; moreover, if they crossed the picket line, employees would be unable to get their wages. The foregoing two paragraphs are the consolidation of hesitant, confused testimony given by Tooley on direct. On cross-examination she could only testify about what had occurred in Lockyear's office, not Forseth's statements, and conceded she may not have been able to tell him about Forseth's alleged threats until July 19. With regard to nearly everything else mentioned above, she was virtually incoherent. Frankly, I find Tooley to be confused and unable accu- rately to recall what transpired. Indeed, it appears to me that while she may basically be an honest individual, her recollections cannot be relied upon. Indeed, I am certain that even as an employee, not simply as a witness, her ob- servations and recollections must be weighed in that light. Certainly her performance on July 18 could not have been sufficient evidence to be relied upon by Lockyear and Turner if they were acting reasonably. An employer truly wishing to investigate improper employee conduct would not wholly rely upon the oral statement of a virtually inco- 73 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herent individual, who was incapable of describing what had happened to her. Even if she managed to say it was Forseth who had upset her, a fairminded employer would have asked Forseth of her version of what had occurred. Yet, Respondent did not do so: instead, it made up its mind to issue Forseth a warning letter before discussing the mat- ter with Forseth in any way. Respondent's method of investigating the accusation of Forseth, its jumping to conclusions, and its precipitate issu- ance of the warning to her raise questions themselves. If it had little or no factual basis for disciplining Forseth, why did it do so, and why did it do so in such a hasty, reckless manner? In view of the fact that Respondent had earlier engaged in unjustified interrogation of Randle and Ste- phens, and had gone out of its way to dissuade Heitz from joining the Union, it appears to me that Respondent's ac- tion can only be explained as a deliberate attempt to dispar- age the Union by disciplining one of its in-plant committee members. B. Collective Bargaining As noted earlier, the Union's letter of March 14 opened the 1975-77 agreement for negotiation. On that day it sub- mitted certain proposals and on March 31 it submitted some additional proposals. Thereafter, the parties engaged in five negotiation sessions between May 16 and August 1, when the Union struck. The first negotiation meeting oc- curred on May 16 and was a typical first meeting in that the Union expained its proposals to the Employer. The propos- als which were given to Respondent at that time were so- called local openers, meaning that they were proposals from the Local, rather than from the Local's parent International Union. The union representatives explained that a settle- ment had just been reached (or was about to be reached) with certain large wood products industry employers lo- cated in Washington State, two areas of Oregon, and Cali- fornia. This settlement is later referred to by the parties as the "industry settlement." With regard to so-called cost items, the local openings were not specific on exact amounts. However, the Union did ask for a general wage increase, a cost-of-living in- crease, some wage adjustments on certain job classifica- tions, an increase in the Employer's pension contribution with concomitant benefit improvements, and an increase in the Employer's contributions to health and welfare with concomitant improvements of those benefits as well. On union security, the Union asked to change the existing maintenance of membership clause to a standard union shop clause. There were other items as well, but they are not pertinent to this analysis. After the Union presented and explained its demands the meeting was adjourned to give Respondent time to consider them. Neither Douglass nor Miller asked Respondent to specifically reply to the Union's wage demand, probably because it was not yet spe- cific enough. The next meeting occurred on June 9. As previously noted, Hugh Kidwell appeared in Miller's place on the Union's negotiating team; he became the Union's principal spokesman. Kidwell presented the "industry settlement" as the Union's proposal in addition to the previously offered local openings. This proposal included a wage increase based upon a three-category formula.' In addition the "in- dustry settlement" called for increased contributions to the health and welfare and pension plans which Respondent had joined much earlier. 6 The parties discussed those proposals in some depth and during that period, "Dee" Hustead, Respondent's profes- sional negotiator, admits telling Kidwell that Respondent did not wish to set a pattern because it was too early to do so.' He did concede to Kidwell that Respondent expected to grant a reasonable wage increase. Kidwell recalls attorney Newcomb saying that Respondent believed the industry settlement did not fit Respondent's operations as it was not part of the "industry" as that term is generally used. New- comb argued that Respondent was a moulding operation and not an integrated wood products business and was, therefore, in a separate industry. Both Douglass and Kid- well recall Newcomb saying the Union was not treating Respondent fairly because it was competing with other moulding operations in northern California which had col- lective-bargaining agreements which did not expire until August, September, or October 1977. They recall Newcomb asking if the Union would wait until the northern Califor- nia operations settled new collective-bargaining agreements with their unions. Hustead admits telling the Union that Respondent was not a pattern-setter. He also recalls Kid- well asking Newcomb if Respondent wanted the Union to wait until the competitors had settled with their Unions, and Newcomb replied such an approach was "not unheard of." Also during the meeting Hustead concedes Kidwell asked if he was telling the Union that Respondent was not willing to negotiate until August, and Hustead replied, "Well, we're meeting with you aren't we?" Kidwell then asked, "Well, when are you going to have an offer or coun- teroffer? We are not going to wait until August." Either Hustead or Newcomb replied that Respondent had been a leader in the past and did not wish to be a leader again. Turner testified that at this meeting Respondent "tested the water" to determine what the Union's reaction to an interim contract would be. He said that it was definitely Respondent's preference to wait until settlements were reached by the competitors with their unions: he said Re- spondent did not want to be in the same position as it had been in 1975 when it had signed first, and union contracts, which its competitors had signed later, failed to meet the wage and fringe levels to which Respondent had agreed. He recalls Kidwell said he wanted to negotiate a new contract The formula divided job classifications into three categones. In the first year the wage increase for each category was to be 70 cents, 80 cents, and 90 cents. In the second year it was 60 cents, 70 cents, and 80 cents. In the third year it was also to be 60 cents, 70 cents, and 80 cents. I On June 8, 1967, Respondent signed a participation agreement in the Timber Operators Council, Inc. IWA Health and Welfare Plan and on Sep- tember 22, 1971, Respondent signed a participation agreement in the Timber Operators Council, Inc.-IWA Pension Plan. Each of these plans consists of a trust jointly administered by the Union's parent International Union and Timber Operators Council, Inc., an association representing various employ- ers in the wood products industry. It appears that Respondent believed that in 1975 it had unwisely signed the collective-bargaining agreement in the belief that other competitors would follow suit. When they did not, and successfully negotiated contracts containing lower cost items, including wages and fringes, Respondent found itself disadvantaged competitively. It did not want that situation to arise again. See Turner's testimony, infra. 74 CLEAR PINE MOULDINGS at that moment and Newcomb replied by asking Kidwell to sign up other moulding companies first (an apparent refer- ence to some nonunion competitors in Oregon). The next meeting occurred on June 24. Kidwell asked for Respondent's proposal on wages but Respondent had none. Newcomb simply said Respondent would not set a pattern. According to Douglass, Newcomb repeated that the Union was placing Respondent in an unfair position with respect to its competitors in northern California; moreover, Hus- tead and Newcomb both said Respondent did not wish to pay the higher health and welfare and pension rates. Kid- well asked if Respondent was pleading inability to pay, but Newcomb replied it was not. Newcomb said Respondent was willing to continue fringe benefits at the previous rates. but not at the rates which had been set by the "industry settlement." Newcomb hoped the TOC-IWA health and welfare trust would agree to pay a second level of benefits. At this point there was some discussion of whether or not either the health and welfare or the pension trusts would or could accept contributions at the previous rates. During that discussion the Union continued to insist on the new rates. With regard to the wage question, Kidwell said he was aware that Respondent was not a large company like Crown Zellerbach, Weyerhaeuser, or Georgia-Pacific and the Union didn't intend to "hold tight" to the industry set- tlement; it was prepared to accept less. Also at this meeting, according to Hustead and Turner, as well as Douglass' hazy recollection, Kidwell made a short-lived claim that the 1975 77 contract was opened only for modification and had not yet terminated. New- comb rejected that view. Hustead recalls Kidwell asked the Company to keep the contract in effect until impasse, but Newcomb rejected Kidwell's contention that the contract may have only been open for modification and was still in effect. At this point Newcomb said Respondent still had two or three ideas to explore at the next meeting. Douglass recalls Newcomb asking whether or not the Union was interested in the concept of an interim agreement which would expire after the northern California competitors had settled with their unions-apparently September. Douglass recalls Kid- well replying that they were there to negotiate now and were not concerned with what was happening elsewhere. Turner testified Respondent "had detected some concern on the Union's part that the contract had expired and peo- ple were resigning. We thought that there might be some advantage to both parties if we proposed an interim agree- ment." He says he suggested that to Kidwell who answered that the Union would listen to anything. Turner also re- members that after a discussion of the nonunion and north- ern California competitors, Kidwell said, "If you have all of this information, why aren't you ready to make an offer?" Turner also remembers a discussion about "setting a pat- tern" but does not recall what it was. In addition, Turner remembers Hustead saying New- comb had given the Union an alternative if it was inter- ested-a clear reference to the concept of an interim agree- ment. A caucus was called at that point according to Turner and, after it was over someone, either Hustead. Newcomb, or Turner said the time was not right to explore a proposal to the Union and one of them said that around the first of the next week someone would be in contact with the Union on the subjects which had been discussed that day. The meeting then ended. The next meeting was held on July 8. The meeting opened with Kidwell asking for Respondent's counterpro- posal: Respondent's representatives did not directly re- spond but began discussing the problems they had discov- ered with regard to a second level of benefits under the TOC-IWA health and welfare trust. Turner reported that the Company had looked into it and all agreed that the trusts would not accept a lesser contribution than that set by the newly signed industry settlement; moreover, a sec- ond level of health benefits could not he obtained. New- comb told the Union that Respondent would continue to pay the fringe benefits at the old rate as long as the trusts would accept them. Kidwell said he wanted "any offer" from the Company. and the Union would look at anything. Hustead told him Respondent was not interested in a long-term situation and asked if Kidwell would consider an interim contract. Ac- cording to Hustead there was some discussion about the nonunion competitors. He said no company representative suggested a means by which Respondent could become competitive with those firms. He says Kidwell asked if Re- spondent was pleading inability to pay and Newcomb re- plied it was not. Hustead says he told the Union that the Company wanted to be on equal footing with its competi- tors and either he or Newcomb agreed, saving the Com- pany would be fools to make an offer without knowing what the other companies were doing.' At that point, knowing Kidwell wanted any offer. Hus- tead asked if the Union would be interested in an interim agreement. Kidwell again replied that the Union would look at anything. Respondent asked for a caucus and re- tired for an hour or so while it prepared a written proposed interim agreement. That proposal has been received in evi- dence as an attachment to General Counsel's Exhibit 7. a cover letter. After Respondent had the proposal and the cover letter typed, the parties resumed their discussion and Respondent's interim contract proposal was submitted to the Union. It contained four provisions, the first of which was: "The prior agreement will be renewed on an interim basis for a period of 60 days and thereafter until either party gives 10 days written notice of termination." Item 3 provided that all general wage increases negotiated would be retroactive to June 1. Kidwell caucused his negotiating committee and they de- cided to reject it. lie says upon their return he reported that the very concept of an interim agreement was not accept- able and even if it were, this particular proposal would not be accepted because of item I, the 10-day notice provision. Another reason given by Kidwell for rejecting the interim agreement was the fact that it did not specifically deal with the health and welfare and pension contribution problems (it appeared that the trusts would refuse to accept contribu- tions at the old rate) and because there was no guarantee that a union-shop clause would appear in the next agree- ment. 8 Hustead's estimony. 75 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After the Union rejected the proposed interim contract, both Douglass and Kidwell say Kidwell demanded a wage proposal. Douglass recalls Newcomb saying that he was disappointed in the Union's rejection of the interim con- tract and Kidwell replied there was nothing in it for the Union. Turner said the Union rejected the interim proposal unless Respondent would agree to a union shop clause in the next contract, but he rejected that out of hand.9 Turner admitted he knew all along that the 10-day notice provision would never be accepted by the Union. Kidwell, frustrated by the progress of bargaining, told Respondent that their next meeting would be under the auspices of the Federal Mediation and Conciliation Service and that a mediator would arrange the next meeting. On July 10 or 11, the Union held a meeting of its mem- bership and informed the membership that Respondent had made no economic offer in response to the Union's "indus- try settlement" demand, Douglass sought strike authoriza- tion, and the membership voted to give the bargaining com- mittee the right to strike at its discretion. In addition, Douglass showed the membership Respondent's proposed interim agreement; they rejected it. When the next negotiation meeting opened on July 26 there was an initial discussion between Newcomb and Kid- well about the health and welfare problem. Newcomb re- peated that Respondent still wished to obtain a second level of benefits (thereby maintaining the old contribution rate) but that the trust would not accept a contribution less than the rate set by the industry settlement. He went on to say that Lockyear had been in the process of investigating other plans and had found one which was equal to the TOC- IWA plan. According to Douglass, Newcomb was no more specific than that. Douglass says Newcomb never told the Union it intended to stop the contributions. Hustead re- members the Union remained firm on its position that Re- spondent should pay the higher rates on health and welfare and pension as reached by the industry settlement. The parties then engaged in a discussion of the interim contract proposal. Initially Respondent's proposal was the same as that set forth in General Counsel's Exhibit 7. How- ever, it quickly dropped the 10-day notice provision and substituted October I as a fixed expiration date. It also of- fered to continue the TOC-IWA health and welfare trust as long as it would accept the lower contribution rate. If it would not accept the old rate, Respondent offered to hire another carrier to supply the same benefits. Newcomb also said that since the TOC-IWA pension trust also would not accept the old rate, Respondent would set that money aside in a special bank account to be disposed of later by negotia- tions. The Union then caucused. Upon its return from the caucus, Kidwell gave the me- diator a 7-point counteroffer. The Union accepted October I as the expiration date for an interim agreement, as well as the Company's proposals regarding vacation options, changed job classifications, and wages retroactive to June 1. 9 At the hearing Respondent sought to prove and now argues (Resp. Br. p. 1 0) that the Union was seeking a union-shop clause in the interim agree- ment. This is inconsistent with even Turner's version and it is extremely unlikely that the Union would have made such a demand. It is clear to me that at all times until July 26 the Union sought a union-shop clause in the successor long-term agreement. But it rejected Respondent's proposals on health and wel- fare and pension and insisted that the contributions to those trusts be on the basis of the industry settlement. It also said that the long-term agreement negotiations would have to begin after Labor Day. Finally, the Union asked that Re- spondent not recognize, for union security purposes, the union membership resignations which had occurred since June 1. Respondent, according to Turner, rejected the first as too expensive and the second as illegal. Shortly thereafter the meeting ended. However, before the end, Kidwell advised the mediator, acknowledged by Hustead, that the Union was withdrawing its demand for a union shop. Kidwell says he withdrew it because he knew Respondent would never agree but hoped such a concession on the part of the Union would "get the ball rolling." Kidwell again asked for an economic offer, but there was no reply. The meeting ended subject to call by the FMCS. Thereafter, according to Douglass, the union negotiating committee decided to call a strike under its previously granted authorization. From the Union's vantage point Re- spondent had not yet made a proposal on wages and noth- ing had changed in that regard since the strike authoriza- tion. Accordingly, it called a strike for August 1. On that day, according to a stipulation of the parties, 240 employees appeared for work while 88 did not. Testimony shows that by August 15, those strikers who had not re- turned to work were replaced.'? Additional negotiation meetings occurred on August 2, September 2, October 14, and December 5 and 6. It was not until the October 14 meeting that Respondent ever made an economic wage offer. At that time it offered an across-the- board 8-percent wage increase. Although the record may not clearly show it, approximately 2 weeks before the hear- ing convened in this matter, the Union on behalf of the remaining strikers offered their return to work. C. The Unilateral Change Question Many of the facts relating to Respondent's unilateral change with regard to the health insurance and the pension plans are set forth in the preceding subsection. It is unnec- essary to detail the exact dates, but it appears that the TOC-IWA health and welfare trust granted Respondent a I-month extension, which was paid. Thereafter, Respon- dent purchased substitute coverage from Aetna, a private insurance carrier. No such extension was granted with re- gard to the pension contributions, and Respondent began depositing those moneys in a separate bank account. With regard to the substitution of health plans. it is clear that no representative of Respondent ever advised the Union it had selected a particular insurance plan. The sub- stitute plan was simply placed into effect immediately upon the date the TOC-IWA plan, as extended, expired. Despite Turner's belief that coverage offered by the private carrier is identical to that previously offered by TOC-IWA, he conceded he did not know whether that was exactly true. '" On September 10, a decertification petition was filed, Case 36-RD-586. It was dismissed on October 3 because of the pendency of the instant charge. On October 6, a union-security deauthorization petition was filed, Case 36- UD-158. It was later dismissed because no collective-bargaining agreement containing a union-secunty clause was then in effect. 76 CLEAR PINE MOULDINGS IV. ANALYSIS AND CONCLUSIONS A. Interference, Restraint, and Coercion I have earlier found that Respondent had no legitimate business need to interrogate employees Randle and Ste- phens regarding why they had joined the Union. That being the case, what did Respondent hope to achieve? Certainly these were not idle questions, for Lockyear specially called those two to his office for private interviews and even sought such an interview with Stephens' husband. The only reasonable explanation is that Respondent believed it could either weaken the Union or keep it weak if it could undo the Union's membership drive to some extent. That further incidents do not appear to have occurred does not change this analysis, because about that time Hustead warned Lockyear to avoid further interrogation. A similar observation may be made about the Heitz in- terview when Lockyear told him to avoid joining the Union. It is clear to me that even though the comment may not have been directly connected to a threat, Lockyear's message was clear: Heitz should avoid joining the Union if he wished to remain on good terms with management. Again, even if a threat cannot be inferred, such a message to a new hire might well, if successful, prevent the Union from obtaining a new member (particularly since the con- tract had expired and a strike could be foreseen) and would tend to have made negotiations more difficult for the Union. Accordingly, I conclude that the interrogations of Randle and Stephens tended to interfere with, restrain, and coerce them in the exercise of their Section 7 rights. The threat implied in Lockyear's importuning Heitz to refrain from joining the Union did the same. I find, therefore, that such activity violated Section 8(a)(I) of the Act. Insofar as Forseth is concerned, aside from questions of credibility and/or motive, it is clear that the contract on which Respondent relied tojustify the warning had expired and article XX had no life. Thus Respondent in issuing the warning was in effect imposing its own rule of conduct upon Forseth. Assuming that a union may waive employ- ees' rights to engage in Section 7 activity (an assumption which probably cannot be made: see N.L.R.B. v. Magnavox Company of Tennessee, 415 U.S. 322 (1974), and Gale Prod- ucts, Div. of Outboard Marine Corp., 142 NLRB 1246 (1963)), because of the contract's expiration no waiver can be presumed here. Thus, I shall simply find the article XX language to be a company rule. As such, it is unlawful on its face. It is unlawful for it is so broad as to prohibit union activity during nonwork time. Such a rule unduly restricts employees from engaging in protected activity at times when they may be in the plant, but when they are not actu- ally' being required to preform work. See Essex Interna- tional, Inc., 211 NLRB 749 (1974). Aside from that analysis, however, it appears that Re- spondent's warning to Forseth was actually motivated by antiunion considerations and it is unnecessary to determine whether she had even engaged in the activity Tooley appar- ently accused her of.' Two weeks earlier employee Kel- hoyama had solicited union membership on the job during working hours. He was not a member of the union commit- " Forseth credibly denied Tooley's accusations. tee. Respondent was aware of his conduct, but did not dis- cipline him; it only asked the union committee to see that such activity ceased. The only difference between Kel- hoyama's situation and Forseth's is that Forseth was a committee member. That being so. it is clear that Respon- dent disciplined her for her committee-member status, not her conduct. That is particularly clear when the shallow nature of the evidence against her is scrutinized." Accord- ingly, I find that Respondent violated Section 8(a)(3) and (I) when it issued the July 18 warning to Forseth. B. Majority Status and Alleged Union Misconduct Respondent has raised two matters in its defense which may be dealt with summarily. It claims the Union no longer represents a majority of the unit employees. If it truly be- lieved that, it should have raised the issue either prior to or during negotiations. It did not do so until it answered the complaint herein. In any event, section IV, A, of this deci- sion demonstrates clearly that Respondent was, during bar- gaining, engaging in unlawful conduct which probably had some negative impact on the size of the Union's member- ship. Whether that conduct was intended to eliminate the Union's majority status or was simply to give Respondent a bargaining advantage is not important. What matters is that Respondent was unlawfully tinkering with the Union's representative status and may not rely on its own miscon- duct to now claim the Union lacks a majority. C & C Ply- wood Corporation and Veneers, 163 NLRB 1022 (1967); Mi- ami Coca-Cola Bottling Co. and Miami Coca-Cola Bottling Co. d/h/a Key West Coca-Cola Bottling Co., 150 NLRB 892 (1965)., Moreover, the Union here was certified by the Board in 1965 and enjoys a presumption of continued ma- jority despite unit expansion, turnover, or the failure of many employees to join the strike (which. as will be seen was caused by' Respondent's bargaining tactics). King Radio Corporation. 208 NLRB 578 (1974). Respondent also contends it may' refuse to bargain with the Union because of alleged Union misconduct upon the beginningof the August I strike. It contends the Union did not properly control the strike and permitted mass picket- ing, tack strewing, and hitting autos with picket signs. As- suming all these things happened (which is not really sup- ported in the record), they stopped almost immediately and there is no evidence that union officials participated in or encouraged such conduct. In sum the evidence is too thin to base an improper conduct finding upon. Respondent's prin- cipal evidentiary proffer is a state court injunction dated September 7. C. Respondent Engaged in Dilator' Bargaining A careful review of the record leads me to conclude that Respondent entered into collective-bargaining negotiations with the Union with the purpose of delaying an agreement until it could get a reading on the wage settlements which were expected to be reached by its northern California com- petitors during the late summer and fall of 1977. In order to 12 The effect such a warning may have had on the union membership or union activity of others cannot be overlooked here, either, particularly since Forseth was attending bargaining meetings. 77 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obtain that perspective, Respondent engaged in dilatory, surface bargaining with the Union. Such conduct clearly violates Section 8(a)(5) of the Act. Moreover, it appears to me that such conduct was the principal cause of the strike which began on August 1. and that the strikers were unfair labor practice strikers and are entitled to be treated as such upon their abandonment of the strike and their uncondi- tional offer to return to work. I reach these conclusions principally because it is clear that Respondent never made a wage offer until October 14 despite the fact that it was well aware of the economic costs being borne by both its nonunion competitors in Oregon and by its union competitors in northern California. When it discovered the Union wished to press for an immediate long-term contract. Respondent kept silent and refused to engage in serious discussion about the Union's offer. In- stead, it left the Union hanging, awaiting an offer. Then, when the Union had become sufficiently impatient, it made not an economic offer," but an interim proposal which Turner knew would be rejected. In a very real sense Respondent baited a trap for the Union which was simply designed to permit time to pass. The trap consisted of Respondent's attempt in the early stages of negotiation to persuade the Union that it would be fair to await the outcome of the northern California nego- tiations. Respondent knew that if the Union rejected that approach, it could still attain that objective by making a proposal which would surely be rejected. Turner's admis- sion that he knew the Union would reject an interim con- tract calling for a 10-day notice of cancellation is clear evi- dence of that purpose. When in fact it was rejected on July 8, Kidwell asked Respondent for an economic proposal on a long-term contract. However, Hustead, earlier in the meeting had already said Respondent was not interested in a long-term situation (prior to submitting the interim con- tract proposal), thereby admitting that Respondent in- tended to wait for a perspective on what was occurring in northern California. Moreover, in an exchange prior to the submission of the interim proposal. and in response to Kid- well's request for an economic offer, Hustead and New- comb failed to definitively answer Kidwell's request. Kid- well asked if they were pleading inability to pay. Newcomb replied they were not and Hustead said Respondent merely wanted to be on an equal tooting with its competition. Ilus- tead admits either he or Newcomb then remarked that the Respondent would be "fools" to make an offer without knowing what its competitors were going to do. After the Union had rejected the interim contract pro- posal and Kidwell had asked for an economic offer on a long-term agreement, instead of replying directly, New- comb said Respondent was "disappointed in the Union's attitude," but declined to go beyond the interim proposal. Kidwell told Newcomb the interim proposal had nothing in it for the Union, clearly implying that the Union was reject- ing the concept. On July 26, Respondent repeated its proposal for an in- terim agreement. This time, however, when it was rejected out of hand, Respondent made two specific modifications, dropping the 10-day notice requirement and proposing to 13 That the offer included retroactivity does not detract Irom the fact that Respondent refused to discuss wage rates. resolve the health and welfare and pension problems by saying it would continue to make contributions at the old rate as long as the trusts would accept them: if the trusts would not, it would substitute a health plan containing equal benefits and would place the pension contributions in a bank account. The latter proposals, while facially appear- ing to be reasonable, are in reality nothing more than an offer to maintain an existing situation. In normal circum- stances proposing the status quo would not necessarily be evidence of surface bargaining, hut here I believe it is, be- cause Respondent knew as before that the Union would reject it. Again, it was an attempt to let time pass and was simply a red herring. At this point, however, the Union followed the false lead and made a 7-point counterproposal on an interim agree- ment. It may well have been that the Union's counterpro- posal contained an improper clause (the proposal that Re- spondent dishonor resignations from the Union for union- security purposes) but it did imply that an interim agree- ment might be acceptable if Respondent would consider a union-shop clause in the new long-term agreement. As a union-shop clause was entirely unacceptable to Respon- dent, the Union's overture here was immediately rejected. It will be recalled that during the hearing Respondent sought to prove and now argues that the Union wanted to insert a union-shop clause in the short term, interim agree- ment. This is a mischaracterization of the facts for there is no credible evidence that the Union ever suggested that the interim agreement contain a union-shop clause. In fact, Turner in referring to the July 8 discussion, admits as much when he says the Union rejected the interim contract con- cept unless there was a union-shop clause in the next agree- ment. This is not the only mischaracterization of the facts which concerns me. Respondent also argues that the con- cept of the interim agreement came from the Union. That is not correct for the suggestion was Newcomb's: on June 24 he asked if the Union was interested in the concept of an interim agreement." Later, on July' 8, lustead asked Kid- well if the Union was interested in a short-term or interim agreement. Quoting from Douglass' testimony, Kidwell's reply was "Maybe--possibly a year or less: I don't know. I can't answer that: we will look at anything." That response can hardly be characterized as anything hut an equivocal answer. At that point Respondent had made no counterof- fer whatsoever and Kidwell's statement is simply evidence that the Union wanted to start some place. It cannot be translated to a claim that the Union wanted an interim agreement, or that an interim agreement was the Union's idea. Both these mischaracterizations appear to me to be sim- ply attempts at obfuscation and, as such, are in themselves evidence that Respondent did not enter into negotiations in good faith. I regard Respondent's distorting the Union's demand for a union shop to a demand to insert a union shop clause into the interim agreement. an extremely un- likely possibility, as evidence that Respondent saw the issue 14 As early as June 9, according to turner. Respondent was "testing the water" for the nion's reaction to an interim contract proposal. 78 CLEAR PINE MOUILDINGS as an opportunity to confuse bargaining, and thereby could gain even more time.' Finally, there is the salient fact that Respondent never made an economic offer until October 14. At that point a sufficient amount of time had passed so Respondent could see what had occurred in northern Califo)rnia. It had ac- complished its purpose of reaching that date and could now make, from its point of view, an intelligent decision with regard to wages and other cost items. All of this results in no other conclusion than that Re- spondent was engaging in dilatory, surface bargaining from the outset. '" Such conduct was a direct cause of the August I strike and I therefore find these strikers to be unfair labor practice strikers. I). nilateral C('hanges It is clear that Section 8(d) of the Act obligates an em- ployer, upon the expiration of a collective-bargaining con- tract, to maintain existing wages, hours. and terms and con- ditions of employment. and unilateral changes in those matters constitutes a violation of Section 8(a)(5). N'.L.R.B. v. Katz, Benne,. etc., d/h/la l'illianm.hurghl Steel Products Co., 369 U.S. 736. 747 (1962); Master Shlck anll/or Mastrer 7irousers Corp., et al.. 230 NI RB 1054 (1977). Health insur- ance and pension plans are included in the definition of employ ment conditions. Harold WI'. Hlinsol, d/lhla lien House Iarket iN'o. 3, 428 F.2d 133 (('.A. 8. 1970): and Sir Jatme.s, Insc., 183 NLRB 256 (1970). It is undisputed that Respondent ceased making pay- ments to both the health/welfare and pension trusts at some point following the July 26 meeting. By that meeting both parties knew that neither trust would accept contribu- tions at the previous rates. In that circumstance, do the above principles of la\w still apply or was Respondent privi- leged to cease making the payments? In addition to ceasing to make the payments to the trusts, Respondent. without consulting the Union, simultaneously purchased health insurance from Aetna and began deposit- [5 As noted supra, Respondent's la)( I ) activity appears. at least in part. to have been aimed at the t Union's solidanty and to either create and /or take advantage of the resulting loss of strength at the bargaining table. 16 As the Court of Appeals for the Fifth Circuit said in :' 1. R.B R. Her- man Sausage Co. In1., 275 -.2d 229, 231 232 (1960): The obligation of the emploser to bargain in good faith does not require the yielding of positions fairly maintained It dies nsot permit the Board, under the guise of finding of bad faith. to require the employer to contract in a way the Board might deem proper. Nor maw the Board . . directly or indirectly, compel concessions or otherwise sit in judg- ment upon substantive terms of collective bargaining agreements . ., for the Act does not "regulate the substantive terms governing wages. hours and working conditions which are incorporated in an agreement" N.L.R.B. vs American National Ins. Co. 1952, 343 U.S. 395. 402, 404, affg .lAmeriun Naticnil Ini Co v. N .L.R.B 187 F.2d 307 (C.A. 5, 1951). On the other hand while the employer is assured these valuable rights, he may not use them as a cloak In approaching it from this vantage, one must recognize as well that bad faith is prohibited though done with sophistication and finesse. Consequently, to sit at a bargaining table, or to sit almost forever. or to make concessions here and there, could be the sers means by which to conceal a purposeful strategs to make bar- gaining futile or fail Hence. iH haie said in more oblorful language it takes more thain mere "surface bargainimng," or "shadH boxing to a dra, " or "riving i/it Utnion a nrnaround while purporting to he meeting with the I rtin 6tr puripon ofi ollectivie hargaining "F [Emphasis supplied: Ins. omitted.l ing the money otherwise destined tor the pension trust into a separate bank account. In view of the trusts' refusal to accept premiums at the old rate, were Respondent's actions therefore privileged? Respondent argues that an impasse had arisen on these matters and it was privileged to implement these changes because they were consistent with its last offer to the Union on July 26. Aside from whether the conduct was consistent with the offer. I doubt that there was a true impasse. First, Respondent. as I have tound, was engaging in unlawful dilatory bargaining, and no legitimate impasse can occur in that circumstance. Cf. It as, ite's Olive Knoll Falrrnis, Inc., d/ E/a lfmtai nc's Datli, 223 NLRB 260 (1976); and Herman S'aust.ge Co.. lht.. 122 NILRB 168, enfd. 275 F.2d 229 (C.A. 5, 1960). Second. although Respondent did on July 26 pro- pose taking the action it eventually took. it was in the con- text of a proffered interim contract. No real bargaining on a successor contract had begun and thus there were many issues which had not even been discussed, much less re- solved. Moreover, the Union on July 26 had just made a concession on its demand for a union shop. Thus, negotia- tions had not reached a stage where an impasse could have occurred. Compare Cre st Beserage Co., Inc.. 231 NLRB 116 (1977). and the impasse criteria of 'aut Broadcasling ( o.. It'WDllA. I -bFI! TI'. 163 NILRB 475 (1967). Ieaving the question of impasse and returning to the trusts' conduct, there appears to he a legitimate question of whether or not a trust in these circumstances can properly refuse to accept status quo contributions during the pen- dencv of bargaining. It seems to me that such a refusal is contrary to the policies of Section 8(d)as discussed in Kat: and Hinson requiring the parties to maintain conditions during that time." TIhe General Counsel does not make such an argument and I therefore will not address myself to it. The General Counsel does, however, contend that the 1967 and 1971 participation agreemenns bind Respondent to pay the higher premium rates as now called for by the trusts. I cannot concur. The participation agreements call for no specific amounts of contribution. Those amounts are found in the collective-bargaining contracts and have changed over the years. Nothing in the participation agree- ments contemplates binding Respondent to anything except what is achieved at collective bargaining. To hold that Re- spondent is bound by the participation agreements to the higher "industry settlement" rate would in effect permit a third party to dictate terms to Respondent. If that had been contemplated in the participation agreements, I might con- cur with the General Counsel. However, the fact that spe- cific rates appear in the collective-bargaining contract mili- tates against that conclusion and favors the conclusion that the amounts are to be set by collective bargaining between Respondent and the Union, not dictated by the trusts. Ac- I' The Board has forced similar trusts to accept contributions contraro to their rules To mx knowledge. however. these orders have always been in a remedial context. Lnited Brotherhlrd iof Carpe'nters and Joiners clf America, Lial 191.?, AFI. CIO, et al (Assoueiated Contractors oqfAmerica, Southern California). 213 NL.RB 363 (1974). theorx of remedy modified sub nom. 5. L. R B v United Brotherhood iif Carpenters and Joiners of A merica, Local I/913, A4 F. ('10 [(arpenters Pension 7rurt fior Southern California]. 531 F.2d 424 (C A. 9 1976); and Jacloh- Transfer. Inc.. 227 NL.RB 1231 (1977). 79 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cordingly, I reject the General Counsel's argument that Re- spondent is bound to pay the new rates by virtue of the participation agreements. In view of the fact that the trusts would not accept con- tributions at the old rate, I find Respondent's cessation of payments to those trusts not to be a violation of Section 8(a)(5). However, I do find that Respondent's purchase of the Aetna plan without first consulting with the Union does breach the Katz principle and constitutes a violation of Sec- tion 8(a)(5). It does not matter that the benefits under that plan may be identical to the TOC-TWA plan. As the Court said: 1 The duty "to bargain collectively" enjoined by §8(a)(5) is defined by §8(d) as the duty to "meet . . . and confer in good faith with respect to wages, hours, and other terms and conditions of employment." Clearly, the duty thus defined may be violated without a general failure of subjective good faith; for there is no occasion to consider the issue of good faith if a party had refused even to negotiate in fact -"to meet ... and confer"- about any of the mandatory subjects. A refusal to negotiate in fact as to any subject which is within §8(d), and about which the union seeks to nego- tiate, violates §8(a)(5) though the employer has every desire to reach agreement with the union upon an overall collective agreement and earnestly and in all good faith bargains to that end. We hold that an em- ployer's unilateral change in conditions of employment under negotiation is similarly a violation of §8(a)(5), for it is a circumvention of the duty to negotiate which frustrates the objectives of §8(a)(5) much as does a flat refusal. [Footnotes omitted.] The same, however, cannot be said for the pension mon- ies. Respondent, up to the time of the hearing, had not substituted pension plans. It had only deposited the money in a bank account for disposition upon bargaining. It could do little else for the trust would not take it. Accordingly, I find no violation of Section 8(a)(5) in Respondent's action here. This may seem inconsistent with Crest Beverage Co., supra, but in that case there was no convincing evidence that the trust would refuse to accept the old rate. Here, such evidence is present. V,. THE REMEDY Having found that Respondent has engaged in unfair la- bor practices within the meaning of Section 8(a)(5), (3), and (1) of the Act, I shall recommend that it be required to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act, includ- ing reinstating with backpay the unfair labor practice strik- ers upon their unconditional offer to return to work'9 and the dismissal of subsequently hired employees if that be- comes necessary. Backpay and interest thereon shall be "' 369 U.S. 736 at 742-743. See similar language at 747. 19 It appears that the Union may have made such an offer on behalf of the strikers in November 1977, However, the record before me is unclear with regard to that matter and I shall leave it for the compliance stage to deter- mine whether the offer was legally sufficient. computed in accordance with the formula prescribed by the Board in F. W. Woolworth Companly, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977)° 20 Having found that Respondent has refused in good faith to bargain collectively with the Union as the exclusive rep- resentative of the employees in an appropriate unit, I shall recommend that Respondent be ordered to bargain collec- tively in good faith with the Union in that unit, and if an understanding is reached, embody such understanding in a written, signed agreement. With regard to the substitution of health plans, I shall direct Respondent to make whole any employee who suf- fered any monetary losses by reason of the fact that the substituted health plan may have in some manner provided for lesser benefits than the 1975 77 TOC IWA health and welfare trust would have paid, together with interest to be calculated as above. I shall also direct Respondent to cease and desist from such activity and to consult with the Union before making such changes in the future. Further, with regard to Forseth, I shall recommend that Respondent be required to expunge the July 18, 1977, warning from her records and to treat her as if it had never been issued. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CON(ICLUSIONS ()F LAW 1. Respondent Clear Pine Mouldings, Inc., is an em- ployer engaged in commerce and is an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Woodworkers of America, Local No. 3- 200, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit is now, and has been at all times material, an appropriate unit for the purpose of collective bargaining within the meaning of Section (9)(b) of the Act: All employees of Respondent at its operations near Prineville, Oregon, excluding office and clerical em- ployees, guards, professional and supervisory employ- ees as defined in the Act, as amended, and independent contractors and employees thereof. 4. The Union has been the exclusive collective-bargain- ing representative of Respondent's employees in the above- described bargaining unit since August 4, 1965, when it was certified as such in Case 36-RC-2057, and continues to re- main such representative for the purpose of collective bar- gaining with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of employment of those employees. 5. By interrogating employees in March 1977 regarding the reasons they decided to join the Union and by impliedly threatening newly hired employees in July 1977 with ad- verse treatment should they choose to join the Union, Re- spondent violated Section 8(a)(l) of the Act. 6. On July 18, 1977, Respondent, by reprimanding For- seth because she was a member of the Union's committee 1 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 80 CLEAR PINE MOULDINGS and in reliance on an illegal plant rule, violated Section 8(a)(I) of the Act. 7. By engaging in dilatory bargaining tactics beginning on June 9, 1977, Respondent failed to meet its obligation to bargain with the Union in good faith with respect to wages, hours, and other terms and conditions of employment and thereby violated Section 8(a)(5) and (1) of the Act. 8. Respondent's dilatory bargaining tactics as descnbed in the preceding paragraph were the direct cause of the strike which began on August 1., 1977, and the employees who engaged in such strike are unfair labor practice strik- ers. 9. By failing to notify and consult with the Union before unilaterally changing its health and welfare insurance, Re- spondent violated Section 8(a)(5) and (1) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 Respondent Clear Pine Mouldings. Inc., its officers. agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees regarding their reasons for joining the Union: impliedly threatening employees with adverse employment treatment should they choose to join the Union: disciplining employees because they are mem- bers of the union committee: and giving effect to any rule which restricts employees from engaging in rights guaran- teed them by Section 7 of the Act during nonwork time. (b) Issuing employees warning slips which have the ef- fect of weakening their employment tenure because they are members of a union committee. (c) Refusing to bargain collectively in good faith with International Woodworkers of America, Local No. 3 200, AFL-CIO, in the following appropriate bargaining unit: All employees of Respondent at its operations near Prineville, Oregon, excluding office and clerical em- ployees, guards, professional and supervisory employ- ees as defined in the Act, as amended, and independent contractors and employees thereof. (d) Unilaterally changing the health insurance plan with- out first consulting with and bargaining with the Union over such a change. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed under Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Immediately bargain collectively in good faith with International Woodworkers of America, Local No. 3-200, AFL-CIO, as the exclusive representative of its employees in the appropriate bargaining unit, and, if an understanding i' In the event no exceptions are filed as provided be Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions. and Order, and all objections thereto shall be deemed waived for all purposes. is reached, embody such agreement in a written, signed contract. (b) Make whole, with interest, any employee who lost money as a result of Respondent's unilateral institution of a substitute health insurance coverage. (c) Expunge from the personnel records of Darlene For- seth any and all references to the reprimand given her on July 18, 1977, and in the future treat her as if the reprimand had never been given. (d) Upon application, offer immediate and full reinstate- ment to their former jobs or. if' said jobs no longer exist, to substantially equivalent employment, if jobs are available, without prejudice to their seniority or other rights and privileges, to all those employees of Respondent in the unit who were on strike on or after August 1. 1977. and who have not already been reinstated, dismissing if necessary any persons hired as replacements by Respondent on or after August 1, 1977. If sufficient jobs are not available for these employees, they shall be placed on a preferential hir- ing list in accordance with their seniority or other nondis- criminatory practice theretofore used by the Company and they shall be offered employment before any other persons are hired. Such employees shall be made whole for any loss of earnings they may have suffered, or may suffer by reason of Respondent's refusal, if any, to reinstate them by pay- ment to each a sum of money equal to that which he or she normallv would have earned during the period from 5 days atfer the date on which he applied, or shall apply. for rein- statement to the date of Respondent's offer of reinstatement to him, absent a lawful justification for Respondent's failure to make such an offer. Backpay and interest thereon shall be computed in the manner set forth in that portion of this Decision entitled "The Remedy." (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security records. timecards, personnel records, and reports and all other records necessary to ana- lyze the amount of backpay or health benefits due under the terms of this Order. (f) Post at its place of business in Prineville, Oregon, copies of the attached notice marked "Appendix."22 Copies of the notice, on forms provided by the Regional Director for Region 19, after being duly signed by an authorized representative of Respondent, shall be posted by Respon- dent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that the notices are not altered, defaced, or covered by any other material. (g) Notify' the Regional Director for Region 19, in writ- ing, within 20 days of the date of this Order, what steps Respondent has taken to comply herewith. 11 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 81 Copy with citationCopy as parenthetical citation
