Finch, Payne & Co., Inc.

National Labor Relations Board - Board Decisions

Jan 31, 2007

349 N.L.R.B. 270 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
349 NLRB No. 28
270
Finch, Pruyn & Company, Inc. and Paper, Allied-
Industrial, Chemical & Energy Workers Inter-
national Union, AFL–CIO.1 Cases 3–CA–23461–
1 and 3–CA–23461–2
January 31, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
I. INTRODUCTION
The principal issue in this case is whether the Respon-
dent, Finch, Pruyn & Company, Inc., violated Section
8(a)(5) and (1) of the National Labor Relations Act by
unilaterally subcontracting during an economic strike for
the pulp needed for its papermaking operation. We find,
in agreement with the judge, that the Respondent’s sub-
contracting was a lawful temporary measure to maintain
its operations during the strike. Accordingly, we affirm
the judge’s findings that the subcontracting did not con-
vert the economic strike to an unfair labor practice strike,
and that the strikers remained economic strikers. Fur-
ther, we find that the Respondent did not violate the Act
by continuing its unilateral subcontracting after the strike
had ended because of the absence of a union request to
bargain about the poststrike subcontracting.
The case also presents two allegations that the Re-
spondent failed to furnish requested information in viola-
tion of Section 8(a)(5) and (1) of the Act. First, the judge
dismissed an allegation that the Respondent unlawfully
refused to provide Paper, Allied-Industrial, Chemical &
Energy Workers International Union, AFL–CIO, Local
18 (Local 18) with copies of the Respondent’s subcon-
tracts for pulp. Second, the judge found that the Respon-
dent unlawfully refused to provide information, re-
quested by both Local 18 and Paper, Allied-Industrial,
Chemical & Energy Workers International Union, AFL–
CIO, Local 155 (Local 155), regarding the preemploy-
ment drug testing of permanent replacement workers
without offering to bargain over its asserted confidential-
ity concerns. For the reasons discussed below, we re-
verse the judge in both instances.
Finally, the complaint alleges that the Respondent
unlawfully failed to recall employee Bernard Palmer
after the strike had ended. Contrary to the judge, we find
that the Respondent violated Section 8(a)(5) and (1) by
unilaterally eliminating Palmer’s prestrike “pcc oiler”
position. However, we agree with the judge that the Re-
spondent did not violate Section 8(a)(3) and (1) by elimi-
nating Palmer’s position or by failing to recall him to
another available position.

1 Hereafter PACE or the Charging Party.
We shall address these issues in turn.2
II. THE SUBCONTRACTING AND RELATED ISSUES
A. Factual Background
The Respondent operates a paper mill in Glens Falls,
New York. The papermaking process requires pulp,
which the Respondent produces in its own pulp mill lo-
cated at the Glens Falls facility. Local 155 represents a
unit of the paper mill employees. Local 18 represents a
separate unit of the pulp mill employees. This case arose
when the Locals (the Union) commenced an economic
strike against the Respondent after unsuccessful contract
negotiations.3
Bargaining for successor collective-bargaining agree-
ments commenced about May 14, 2001.4 At the outset of
the negotiations, the Respondent’s president and chief
executive officer, Richard Carota, advised the Union that
the Respondent needed significant economic and labor
cost concessions to remain competitive. Carota empha-
sized that employees of a nearby competitor were also
represented by PACE but that they received significantly
lower wages and benefits than the Respondent’s union-
represented employees. Carota stressed that this situa-
tion placed the Respondent at a substantial labor cost
disadvantage. The record shows that the Respondent lost
approximately $6 million in 2001.5
Between May 14 and June 15, the parties engaged in
more than 40 bargaining sessions. On June 15, the Re-
spondent declared impasse and implemented its final
offer.6 The Union commenced an economic strike the

2 On March 26, 2004, Administrative Law Judge Bruce D. Rosen-
stein issued the attached decision. The General Counsel filed excep-
tions and a supporting brief, the Respondent filed an answering brief,
and the General Counsel filed a reply brief. The Charging Party filed
exceptions and a supporting brief, the Respondent filed an answering
brief, and the Charging Party filed a reply brief. The Respondent filed
cross-exceptions and a supporting brief, the General Counsel filed an
answering brief, the Charging Party filed a revised answering brief, and
the Respondent filed a separate reply brief to each answering brief. On
December 23, 2004, the General Counsel, pursuant to Reliant Energy,
339 NLRB 66 (2003), filed a citation of supplemental authority to
Fairfield Tower Condominium Assn., 343 NLRB 923 (2004). The
Respondent filed a response on January 6, 2005.
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, cross-exceptions, and briefs and has decided to affirm the
judge’s rulings, findings, and conclusions as modified below and to
adopt the recommended Order as modified and set forth in full below.
3 Five other unions representing other employees of the Respondent
also went on strike. This case involves only Local 18 and Local 155.
4 Unless otherwise noted, all subsequent dates are in 2001.
5 There is no dispute that the Respondent’s economic concerns were
bona fide.
6 The Union filed unfair labor practice charges alleging that the Re-
spondent engaged in bad-faith bargaining. The Board’s regional office
FINCH, PRUYN & CO. 271
next day. It is undisputed at this point that the strike ini-
tially resulted from the parties’ inability to agree on eco-
nomic issues.
The Respondent previously had decided that it would
not attempt to operate its pulp mill during a strike.
Rather, the Respondent had developed a plan to keep its
paper mill running by purchasing hardwood kraft pulp on
the open market. The plan was based on the Respon-
dent’s knowledge that pulp was widely available, and at
a price reaching an historic low due to an industrywide
recession. Consistent with its prestrike planning, on June
18 the Respondent began placing a series of “spot” or-
ders to purchase pulp. The Respondent placed 15 spot
orders between June 18 and July 30, for delivery through
December.7
The strike continued through the summer of 2001.
During this period, the Respondent discovered that it was
able to maintain the quality of its manufactured paper
products with the use of the purchased pulp.8 The Re-
spondent further realized that it could buy pulp more
cheaply than it could produce it because the market price
of pulp remained historically low. The Respondent con-
tinuously monitored the quality, price, and competitive-
ness of its operations using market pulp.
The parties’ negotiations continued in September. In
early October, the Union rejected the Respondent’s re-
vised last best offer. On October 15, the Respondent
began to hire permanent replacements in all areas of its
facility, except the pulp mill, which remained idle.
At the November 13 negotiating session, the Union in-
quired about the status of the pulp mill. The Respondent
informed it that “no determination had been made to re-
activate it as the price of purchased pulp was still below
what it costs to make [our] own.” The Respondent reaf-
firmed in writing the following day that the pulp mill is
“down for the foreseeable future.”9

dismissed the charges, and the General Counsel denied an appeal of the
dismissal. In its brief in support of its cross-exceptions, the Respondent
argues that the complaint allegations of unlawful subcontracting should
be barred by dismissal of these charges. The Charging Party has filed a
motion to strike this argument on the ground that it relies on facts that
are not part of the record. Inasmuch as we are dismissing the subcon-
tracting allegations on the merits, we find it unnecessary to pass on the
Respondent’s argument and on the Charging Party’s motion to strike.
7 The Respondent projected that the strike reasonably could last at
least 6 months because each striking employee was eligible for 26
weeks of unemployment compensation.
8 At the time of its prestrike planning, the Respondent was uncertain
if purchased pulp, as compared to its own pulp, could produce the same
level of quality in its finished paper products.
9 The Respondent made six additional market spot purchases of
hardwood pulp between November 12 and 16, all for delivery through
December.
On November 21, all seven unions ratified the Re-
spondent’s proposed agreements and the strike ended.
Separate contracts were signed for each union, and recall
agreements for strikers were signed on November 26.
When the strike ended, the Respondent decided to
keep the pulp mill closed for the foreseeable future and
to continue to purchase pulp on the open market. The
Respondent kept its pulp mill closed throughout 2002.
During that year it made approximately 85 separate spot
purchases of market pulp to maintain production.
On February 26, 2003, the Respondent advised its em-
ployees that it would reopen the pulp mill in June 2003.
The Respondent based its decision on two factors: the
market price of pulp had begun to rise, and the Respon-
dent faced a lengthy re-permitting process for the pulp
mill if it remained closed any longer. As planned, the
Respondent reopened its pulp mill in early June 2003,
and recalled the majority of the former pulp mill strikers
to their prestrike positions.
B. The Judge’s Decision10
The judge found that the Respondent’s spot purchases
of pulp during the strike were a lawful measure under-
taken to remain in business while countering the effects
of the strike. The judge relied on well-established prece-
dent holding that an employer may lawfully employ tem-
porary subcontracting to continue operations in the face
of an economic strike.11 The judge explained that the
Respondent acted consistently with its strike contingency
plan and without antiunion animus. Accordingly, the
judge concluded that the Respondent permissibly sub-
contracted unit work during the strike without bargaining
with the Union.
The judge further found that the Respondent’s decision
to continue purchasing market pulp after the strike ended
was undertaken solely to maintain its papermaking op-
erations. The judge observed that the Union never made
a request to negotiate with the Respondent over the con-
tinued purchases of market pulp, or over the decision not
to reopen the pulp mill at the end of the strike. There-
fore, the judge found that the Respondent did not violate

10 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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.
11 See, e.g., Land Air Delivery v. NLRB, 862 F.2d 354 (D.C. Cir.
1988), cert. denied 493 U.S. 810 (1989); Elliot River Tours, 246 NLRB
935 (1979); Empire Terminal Warehouse Co., 151 NLRB 1359 (1965),
affd. 355 F.2d 842 (D.C. Cir. 1966); Shell Oil, 149 NLRB 283 (1964).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD272
Section 8(a)(5) and (1) of the Act by its continued sub-
contracting for pulp.12
Having rejected the General Counsel’s core subcon-
tracting allegation, the judge rejected the concomitant
strike conversion and striker reinstatement allegations as
well. The judge explained that the economic strike could
not have converted to an unfair labor practice strike as a
result of the Respondent’s lawful subcontracting. The
judge observed, moreover, that there was neither subjec-
tive nor objective evidence that the subcontracting pro-
longed the strike.
The judge likewise found that the strikers remained
economic strikers. The judge determined that, because
the subcontracting was lawful, the strikers did not be-
come unfair labor practice strikers, and the Respondent
properly recalled economic strikers in accord with the
parties’ negotiated recall agreements.13
C. Discussion
1. The Respondent’s subcontracting during the strike
The Respondent’s unilateral purchases of pulp during
the Union’s economic strike were a lawful temporary
measure to maintain its business operations. It is settled
that, “when workers strike, an employer may temporarily
subcontract unit work in order ‘to enable the employer to
continue operating in an emergency situation thrust upon
it by a strike.’” Naperville Ready Mix v. NLRB, 242 F.3d
744, 756 (7th Cir. 2001), cert. denied 534 U.S. 1040
(2001), quoting American Cyanamid Co. v. NLRB, 592
F.2d 356, 360 (7th Cir. 1979). Accord: Fairfield Tower
Condominium Assn., supra at 924 (legitimate employer
measures to maintain operations during a strike include
temporarily contracting out unit work). The Respon-
dent’s actions were fully consistent with this principle.
The Respondent began purchasing pulp as a means to
continue its operations during the Union’s economic
strike. Significantly, the Respondent tailored its pur-
chases to the expected duration of the strike. The Re-
spondent placed orders for delivery only through De-
cember 2001, which matched the Respondent’s reason-
able projection of the strike’s duration based on the strik-
ers’ eligibility for 26 weeks of unemployment insurance.

12 The judge additionally considered and rejected the Respondent’s
alternative argument that its decision to purchase market pulp was a
management decision entirely exempt from bargaining under First
National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). We ad-
dress this issue below.
13 The judge also rejected, as lacking evidentiary support, the Gen-
eral Counsel’s theory that Local 18 and Local 155 engaged in joint
bargaining. We have reviewed the record on this point and adopt the
judge’s finding. We further find that the judge, for the reasons set forth
in his decision, properly rejected the Charging Party’s theory—not
alleged by the General Counsel—that the Respondent unlawfully mis-
led the Union regarding the hiring of permanent replacements.
In these circumstances, we find that the Respondent
clearly did not violate the Act by unilaterally purchasing
sufficient pulp to maintain its operations during the
strike. See Land Air Delivery, 286 NLRB 1131, 1132 fn.
8 (1987) (“An employer is not under a duty to bargain
over temporary subcontracting necessitated by a strike
where such subcontracting does not transcend reasonable
measures necessary to maintain operations in strike cir-
cumstances”).
Indeed, the General Counsel and the Charging Party do
not seriously contest the lawfulness of the Respondent’s
temporary subcontracting during the strike. Rather, the
crux of their argument is that the Respondent decided in
July 2001 to continue buying market pulp, regardless of
the duration of the strike, as long as buying it was
cheaper than producing it in its own pulp mill. They
contend that the Respondent failed to notify and bargain
with the Union over this asserted decision. The General
Counsel and the Charging Party thus argue that, in July
2001, the Respondent unilaterally entered into what
amounted to a permanent subcontract to buy pulp,
thereby violating Section 8(a)(5) and (1) of the Act. We
reject this argument because we find insufficient evi-
dence that the Respondent in fact made such a decision
in July.
The General Counsel and the Charging Party correctly
argue that the Board and the courts have long drawn a
distinction between temporary and permanent subcon-
tracting during a strike. As the Seventh Circuit has ex-
plained:
[T]he mere fact that employees go on strike does not
relieve the employer of the duty to bargain to impasse,
and thus it does not permit an employer permanently to
subcontract out unit work in the absence of an impasse.
Naperville Ready Mix v. NLRB, supra at 756; see also, e.g.,
Land Air Delivery, supra at 1132 fn. 8 (“Permanent subcon-
tracting is distinguished from nonpermanent, stop-gap, or
temporary measures entered into by an employer to con-
tinue service during a strike”). The facts in the present case,
however, do not support the General Counsel’s and the Un-
ion’s proposed application of this distinction.
We have carefully reviewed the record and find, as did
the judge, no evidence that the Respondent made a fixed
decision in July 2001 to permanently continue subcon-
tracting for pulp. The judge made a specific finding on
this point:
[T]here was no single subcontract for the purchase of
hardwood kraft pulp. Rather, the Respondent made pe-
riodic spot purchase orders based on its operational
needs relative to the duration of the strike.
FINCH, PRUYN & CO. 273
The record fully supports the judge’s finding. There is no
evidence that the Respondent entered into a long-term con-
tract for pulp in the summer of 2001, even when the price
had reached an historic low. Rather, the Respondent con-
tinuously monitored the fluctuating market price of pulp, as
well as the quality of its manufactured products, as it evalu-
ated whether to make additional spot purchases. These cir-
cumstances refute the contention that the Respondent made
a decision in July 2001 to permanently subcontract for pulp
without regard to the strike’s duration.
Nor does the testimony of the Respondent’s president,
Richard Carota, establish that such a decision was made,
as argued by the dissent. As the dissent acknowledges,
the judge did not specifically discuss much of Carota’s
testimony. But, even so, Carota specifically testified that
he did not recall making a permanent subcontracting de-
cision in July 2001—the timeframe alleged by the Gen-
eral Counsel.
Our dissenting colleague concedes that the Respon-
dent’s original decision to temporarily subcontract was
because of the strike. However, according to the dissent,
the Respondent thereafter decided during the strike to
permanently subcontract because the price of purchased
pulp had reached a historic low. We disagree. Carota
did not testify as to any change of decision. At most,
Carota’s testimony is subject to the interpretation that an
increase in the cost of pulp could cause the Respondent
to reconsider the original decision to subcontract because
of the strike. But it does not follow that the price of pulp
at the time of the original decision, or a lower price at a
subsequent time during the strike, displaced the original
reason for subcontracting. Indeed, if cost had become
the reason for subcontracting, Respondent would have
sought to “lock in” the lower cost for the future. The
Respondent never did so.
In the end, the Respondent’s unilateral subcontracting
for pulp during the strike was, at all times, a lawful tem-
porary measure undertaken to continue its business op-
erations. For this reason, we agree with the judge’s addi-
tional findings that the economic strike never converted
to an unfair labor practice strike, and, consequently, that
the strikers remained economic strikers whom the Re-
spondent lawfully recalled in accordance with the par-
ties’ negotiated recall agreements.
2. The Respondent’s subcontracting after the strike
The Respondent’s unilateral subcontracting after the
strike also did not violate the Act, though for a different
reason: the Union waived its right to bargain. The record
shows that when the strike ended the Respondent consid-
ered anew whether to reopen its pulp mill. The Respon-
dent decided to keep the pulp mill closed and to continue
purchasing pulp. Obviously, the purchases were no
longer necessary to counter the effects of the strike. The
Respondent’s decision was primarily an economic one: it
was cheaper to buy pulp than to have the bargaining unit
employees produce it.
Although we find that the Union waived its right to
bargain, we find it appropriate to address the Respon-
dent’s initial contention that its decision to continue pur-
chasing pulp instead of producing it was a management
decision entirely exempt from bargaining under First
National Maintenance Corp. v. NLRB, 452 U.S. 666
(1981). We disagree.14 We find, as did the judge, that
the Respondent’s subcontracting more closely resembles
the type of subcontracting found to be a mandatory sub-
ject of bargaining in Fibreboard Paper Products v.
NLRB, 379 U.S. 203 (1964).
In First National Maintenance, the Court held that an
employer, which provided cleaning and maintenance
services to commercial establishments, was not required
to bargain with a union over its decision to discontinue
operations at a nursing home and discharge its employees
working there, after it was unable to secure an increase in
its management fee. The Court reasoned that the em-
ployer’s decision to shut down part of its business consti-
tuted a significant “change in the scope and direction of
the enterprise [which] is akin to the decision whether to
be in business at all[.]” 452 U.S. at 677. The Court con-
cluded that bargaining over such management decisions,
which directly impact employment but have as their fo-
cus economic profitability, should be required “only if
the benefit, for labor-management relations and the col-
lective-bargaining process, outweighs the burden placed
on the conduct of the business.” Id. at 679. In First Na-
tional Maintenance, the Court concluded that the benefit
of bargaining did not outweigh the burden placed on the
employer’s right to terminate part of its business for non-
labor cost reasons. Accordingly, the Court held that the
employer did not have a duty to bargain over the deci-
sion. Id. at 686.
In contrast, in Fibreboard Paper Products v. NLRB,
supra, the Court held that an employer was required to
bargain over its decision to subcontract bargaining unit
work when it involved the mere replacement of bargain-
ing unit employees with those of an independent contrac-
tor to do the same work under similar conditions of em-
ployment. 379 U.S. at 215. The Fibreboard Court un-
derscored that a key consideration in this area is whether
the employer’s conduct “is suitable for resolution within

14 The majority on this issue consists of Members Schaumber and
Walsh. As stated in fn. 19, infra, Chairman Battista finds it unneces-
sary to pass on whether the Respondent’s subcontracting decision was a
mandatory subject of bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD274
the collective bargaining framework[.]” Id. at 214.
When labor costs underlie the employer’s decision to
subcontract bargaining unit work, the decision is particu-
larly amenable to the collective-bargaining process. See,
e.g., Geiger Ready-Mix Co. of Kansas City, 315 NLRB
1021, 1023 (1994), enfd. in pert. part 87 F.3d 1363 (D.C.
Cir. 1996); Naperville Ready Mix v. NLRB, supra at 754.
In the circumstances here, we agree with the judge’s
finding that the Respondent’s decision to purchase pulp
rather than to produce it was more like the subcontract-
ing at issue in Fibreboard than the partial closing at issue
in First National Maintenance. At bottom, the Respon-
dent replaced the unit employees assigned to the pulp
mill with those of the contractors engaged to provide the
Respondent with pulp. Labor costs clearly were a factor
in the Respondent’s decision. From the very beginning
of the parties’ negotiations, the Respondent emphasized
that it needed significant labor cost concessions. More
specifically, the Respondent identified labor costs as a
significant factor in the competitiveness of its pulp mill
operation versus those of its subcontractors.15 Thus, the
Respondent’s decision was of the type that “is suitable
for resolution within the collective bargaining frame-
work[.]” Fibreboard, supra, 379 U.S. at 214.16
In aligning this case with Fibreboard rather than First
National Maintenance, we also rely on the judge’s find-
ings: (1) that the Respondent at all times maintained the
pulp mill in a state ready for activation; and (2) that the
Respondent, even while it was subcontracting for pulp,
continued to produce essentially the same paper products
using its same papermaking machines.17 And, of course,
as soon as the market price of pulp had risen sufficiently,

15 During the strike the Respondent periodically issued memoranda
to its salaried and replacement workers apprising them how the Re-
spondent was doing during the strike. The Respondent explained in a
July 30, 2001 memorandum:
Most kraft mills [that produce the subcontracted pulp] don’t pay
double time or supply free health care or pay triple time for some
holidays or double time and one-half for their other holidays or pay
vacation pay of 150% to 300% of a normal 40-hour work week as
we have done. These are some of the reasons their cost to make
pulp is lower than ours. (Emphasis in original.)
16 It may be that the Union ultimately would have been unable to sat-
isfactorily address the Respondent’s cost concerns, but, as the Fibre-
board Court observed, “national labor policy is founded upon the con-
gressional determination that the chances are good enough to warrant
subjecting such issues to the process of collective negotiation.” 379
U.S. at 214.
17 The Respondent’s vice president of manufacturing, Raymond Bar-
rows, testified that the Respondent did not produce any new or different
products while subcontracting. (Tr. 680–681, 685, 688). Accordingly,
we reject the Respondent’s contention that by subcontracting it pro-
duced different “text and cover” products and thus implemented a
product type and design decision exempt from bargaining under First
National Maintenance.
the Respondent reopened the pulp mill and recalled the
majority of the unit employees to resume making the same
products. In light of all of the above, the Respondent’s
subcontracting for pulp hardly strikes us as a change akin
to “opening a new line of business or going out of business
entirely.” First National Maintenance, supra, 452 U.S. at
688.18 Accordingly, we find that the Respondent’s deci-
sion to continue subcontracting for pulp after the strike
was a mandatory subject of bargaining.19
Nevertheless, in the circumstances here we are unable
to find that the Respondent’s unilateral action violated
the Act. As the strike was drawing to a close in Novem-
ber 2001, the Respondent expressly informed the Union
of its decision to continue buying market pulp. Despite
this explicit notification, the record shows that the Union
never requested that the Respondent bargain over its de-
cision to continue purchasing pulp and to keep the pulp
mill idle. The Union’s failure to request bargaining over
these topics constituted a waiver of its bargaining rights.
Citizens Natl. Bank of Willmar, 245 NLRB 389, 389–390
(1979) (union which has notice of employer’s proposed
change must timely request bargaining to preserve its
right to bargain on that subject), enfd. 644 F.2d 39, 40
(D.C. Cir. 1981); see also generally Lenz & Riecker, 340
NLRB 143, 145 (2003) (reaffirming principle that, where
a union fails to take advantage of an opportunity to bar-
gain, the Board will not find a failure-to-bargain viola-
tion).
The General Counsel argues that a union is not held to
have waived bargaining concerning a change that is pre-
sented to it as a fait accompli. See, e.g., Pontiac Osteo-
pathic Hospital, 336 NLRB 1021, 1023 (2001); NLRB v.
Crystal Springs Shirt Corp., 637 F.2d 399, 402 (5th Cir.
1981). But that is not the circumstance here. First, fol-
lowing the end of the strike, the Respondent did not enter
into new contracts for pulp until December 18. This was

18 Compare Eltec Corp., 286 NLRB 890, 892 (1987), enfd. 870 F.2d
1112 (6th Cir. 1989), cert. denied 493 U.S. 891 (1989) (bargaining
required in light of employer’s retention of ownership rights in equip-
ment and temporary nature of employer’s arrangements) with King-
wood Mining Co., 210 NLRB 844, 845 (1974) affd. sub nom. mem.
UMWA v. NLRB, 515 F.2d 1018 (D.C. Cir. 1975) (bargaining not re-
quired where employer totally eliminated mining portion of its opera-
tion and sold equipment).
19 The judge properly found that, because there was no relocation of
unit work here, the test in Dubuque Packing Co., 303 NLRB 386, 390
fn. 8 (1991), enfd. 1 F.3d 24 (D.C. Cir. 1993), cert. denied 511 U.S.
1138 (1994), is inapplicable. See Geiger Ready-Mix Co. of Kansas
City, supra at 1022–1023 (Dubuque inapplicable when facility not
permanently closed, its operation not relocated to another location,
physical assets not permanently relocated and facility reopened).
Chairman Battista finds it unnecessary to pass on whether this sub-
contracting decision was a mandatory subject of bargaining. Rather,
even assuming arguendo that it was, he agrees with Member Schaum-
ber that the Union waived its right to bargain.
FINCH, PRUYN & CO. 275
a full month after it had given notice to the Union of its
intentions, affording ample opportunity to request bar-
gaining. Second, the Respondent still did not enter into
any long-term contracts. It continued to purchase pulp
through individual spot contracts. This incremental ap-
proach afforded the Union an opportunity to request bar-
gaining at any time over future purchases. And, as men-
tioned, the Respondent maintained the pulp mill in a
condition ready for reactivation. Thus, at all times, there
was a meaningful opportunity to bargain, which the Un-
ion simply did not take.
For these reasons, we affirm the judge’s dismissal of
the allegation that the Respondent’s unilateral subcon-
tracting after the strike violated the Act.
III. THE INFORMATION REQUESTS
The judge dismissed an allegation that the Respondent
violated Section 8(a)(5) and (1) of the Act by failing to
furnish Local 18, upon request, with a copy of the Re-
spondent’s contracts for the purchase of pulp. In addition,
the judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by failing to bargain over an
accommodation, under Detroit Edison v. NLRB, 440 U.S.
301 (1979), to furnish Locals 18 and 155 with information
regarding its pre-hire physical exams and drug testing of
replacement workers. We reverse both findings.
A. The Pulp Contracts
By letter dated January 23, 2002, Local 18 requested
copies of the Respondent’s contracts for pulp, asserting
that the contracts were “relevant to helping us restore our
members to their respective jobs.” The Respondent did
not comply. The Respondent replied, by letter dated
January 29, 2002, that it was not required to furnish
“confidential financial information” under Nielsen Litho-
graphing Co.20 The Respondent also asserted that Local
18 had not established the relevance of the requested
information. However, the Respondent informed the
Union that it did not anticipate starting the pulp mill “in
the foreseeable future.”
Local 18 sought to further establish relevance and to
accommodate the Respondent’s asserted confidentiality
concerns. In a follow-up letter to the Respondent, Local
18 explained:
[W]e need the copies of the contracts so that we can de-
termine for ourselves whether the company has ade-
quate justification for failing to recall strikers to their

20 279 NLRB 877 (1986), enf. denied and remanded 854 F.2d 1063
(7th Cir. 1988), on remand 305 NLRB 697 (1991), petition for review
denied sub nom. Graphic Communications Local 508 v. NLRB, 977
F.2d 1168 (7th Cir. 1992).
jobs in the pulp mill. We are agreeable for now to your
eliminating the dollar amounts from the contracts.
The Respondent, by letter dated February 7, 2002, again
declined to furnish copies of the contracts. The Respondent
did disclose to Local 18 that it “ha[d] placed orders for pur-
chased pulp for the year 2002.”
The judge dismissed the relevant complaint allegation,
finding that Local 18 did not show that the pulp contracts
were relevant and necessary to its ability to represent the
pulp mill workers. The judge reasoned that because the
Respondent had advised Local 18 that it had purchased
pulp for the year 2002, Local 18 was aware that the mill
would remain closed for that period. The judge addition-
ally noted that the contracts were “sensitive information
of competitive significance” not subject to disclosure
under Nielsen Lithographing Co., supra.
It is axiomatic that an employer has a duty to furnish to
a union, on request, information that is relevant and nec-
essary to its role as the exclusive bargaining representa-
tive of unit employees. Detroit Edison Co. v. NLRB,
supra at 303; NLRB v. Acme Industrial Co., 385 U.S.
432, 435-436 (1967). Information pertaining to bargain-
ing unit employees is presumptively relevant and neces-
sary and must be produced. Where the requested infor-
mation involves matters outside the bargaining unit –as
here regarding the relationship between the Respondent
and its subcontractors - the union has the burden of es-
tablishing the relevancy and necessity for such informa-
tion. Allison Corp., 330 NLRB 1363, 1367 (2000);
Postal Service, 332 NLRB 635, 636 (2000) (broad dis-
covery-type standard is applicable). We find, contrary to
the judge, that Local 18 satisfied its burden.
As Local 18 argued to the Respondent, we find that
copies of the pulp contracts were relevant and necessary
to the Local’s ability to assess and enforce the unit em-
ployees’ recall rights. Most importantly, the contracts
would have shown the duration of the Respondent’s
commitments to buy pulp. This was significant because
the pulp mill employees would not return to their jobs so
long as the Respondent continued purchasing market
pulp. The Respondent clearly understood this purpose,
even if not perfectly articulated by Local 18, as it advised
Local 18 of the duration of the overall contracts. In these
circumstances,21 Local 18’s request was sufficient to put
the Respondent on notice of a relevant purpose for the

21 There is no dispute that the Respondent understood the factual ba-
sis for the information request: the continuing closure of its pulp mill.
See Contract Flooring Systems, 344 NLRB 1298 (2005).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD276
information: determining when the pulp mill workers
could return to their jobs.22
Contrary to the judge, we find that the Respondent did
not satisfy Local 18’s need for information simply by
advising it that the contracts would last through 2002.
The Board has long held that a union is not required to
accept at face value an employer’s representations. A
union is entitled to verify an employer’s assertions. See
Wallace Metal Products, Inc., 244 NLRB 41 fn. 2 (1979)
(union entitled to see actual contracts to facilitate verifi-
cation).23
To be sure, the Respondent had a legitimate confiden-
tiality interest in the contracts. Under Detroit Edison v.
NLRB,24 however, this interest did not privilege the Re-
spondent to reject Local 18’s request outright. The Re-
spondent had a duty to bargain with Local 18 over an
accommodation between Local 18’s information needs
and its confidentiality interest. See, e.g., International
Protective Services, 339 NLRB 701, 704–05 (2003); U.S.
Testing Co. v. NLRB, 160 F.3d 14, 20 (D.C. Cir. 1998),
enfg. 324 NLRB 854 (1997). The Respondent failed to
do so, essentially ignoring Local 18’s proposal to redact
financial terms from the contracts.25 Accordingly, we
find that the Respondent violated Section 8(a)(5) and (1)
of the Act by failing to bargain with Local 18 over an
accommodation for the provision of the requested infor-
mation.26

22 See Beth Abraham Health Services, 332 NLRB 1234 (2000); Alli-
son Corp., supra, 330 NLRB at 1367 fn. 23 (employer is obligated to
furnish requested information where the circumstances should “put the
employer on notice of a relevant purpose which the union has not spe-
cifically spelled out”).
23 See Kellogg’s Snack Co., 344 NLRB 756, 756 fn. 1 (2005) (“The
Union needs the requested information to determine [the issue] for
itself. . .[it] is not required to accept, at face value, the Respondent’s
assertion[.]”)
24 Supra, 440 U.S. 301.
25 Nielsen Lithographing Co., supra, relied on by the judge and the
Respondent, is inapplicable. Nielsen concerns an employer’s obligation
to furnish a union with financial information to substantiate its claim of
an inability to meet the union’s bargaining demands. See, e.g., AMF
Trucking & Warehousing, Inc., 342 NLRB 1125 (2004). Local 18’s
request for copies of the pulp contracts did not relate to any inability-to-
pay claim by the Respondent. The parties had already agreed on suc-
cessor contracts at the time of the information request.
26 No affirmative remedial order is necessary because the contracts
were subsequently supplied pursuant to subpoena. This does not moot
the violation, however, as an employer has a duty to timely respond to
the information request. Woodland Clinic, 331 NLRB 735, 742 fn. 16
(2000).
B. The Request for Information Regarding Prehire
Physical Exams and Drug Testing
By letters dated January 23 and 24, and February 24,
2002, the Union27 requested that the Respondent provide
the dates, times, and places where replacement workers
were given pre-hire physical examinations and drug tests,
as well as the names of the individuals tested. The Re-
spondent replied that hiring decisions, including pre-hire
screening of permanent replacements, were within its
discretion and not relevant to the Union’s representa-
tional responsibilities. The Respondent also expressed
confidentiality concerns regarding the requested informa-
tion. Nonetheless, the Respondent did inform the Union
that all new hires were required to undergo pre-
employment physical examinations and drug testing.
The Respondent also identified the locations where the
testing took place and who conducted the tests.
The judge found that the Union’s requested informa-
tion “generally” related to workplace safety and health
and was relevant to the Union’s representational duties.
The judge also found that the Respondent had asserted
legitimate confidentiality interests, which triggered its
duty to bargain toward an accommodation under Detroit
Edison v. NLRB, supra. The judge found that the Re-
spondent failed to bargain toward such an accommoda-
tion and, for that reason, concluded that the Respondent
violated Section 8(a)(5) and (1) of the Act. We reverse,
because the judge’s threshold finding of relevance was in
error.
Prehire drug and alcohol testing of applicants is not a
mandatory subject of bargaining, and therefore informa-
tion concerning such testing is not deemed presumptively
relevant. See Star Tribune, 295 NLRB 543, 548–549
(1989). Thus, as discussed above, a union seeking such
information bears the burden of establishing its relevance
to its representational duties. Postal Service, supra, 332
NLRB at 636. The union must offer more than “mere
suspicion” in order to demonstrate the relevance of the
information. Sheraton Hartford Hotel, 289 NLRB 463,
464 (1988); Bohemia Inc., 272 NLRB 1128, 1129
(1984). We have carefully reviewed the record and find
that the Union did not sustain its burden in this instance.
The Union claimed that its request was based on safety
concerns, as the Union wanted to confirm that all re-
placement employees underwent drug screening. The
Union, however, provided no support for its claim that
the Respondent failed to uniformly require screening.
The Union simply asserted that the Respondent’s hiring
was done amid “haste and confusion.” Further, although

27 Local 18 and Local 155 made separate requests for the same in-
formation.
FINCH, PRUYN & CO. 277
the Union cited two “near miss” accidents that had oc-
curred at the Respondent’s plant, the Union did not es-
tablish any possible link between these incidents and a
lack of pre-hire drug testing.
The Union also asserted that the information was nec-
essary to ensure that the Respondent was not discriminat-
ing against union-affiliated applicants. But the Union
presented no evidence at all that would even remotely
suggest that the Respondent was engaging in such dis-
crimination. Cf. Mid-Continent Concrete, 336 NLRB
258 (2001) (union informed employer of factual basis
underlying its contention of discrimination based on ap-
plicant’s union activities), enfd. 308 F.3d 859 (8th Cir.
2002).
In these circumstances, we conclude that the Union did
not demonstrate the probable relevance of the requested
information, and we shall dismiss this allegation.28
IV EMPLOYEE BERNARD PALMER
The judge dismissed the complaint allegation that the
Respondent violated Section 8(a)(5) and (1) of the Act
when, after the strike ended, it unilaterally eliminated the
pcc oiler position, which had been held by striker Ber-
nard Palmer. For the reasons set forth below, we agree
with the General Counsel and Local 15529 that the Re-
spondent’s conduct was unlawful.
Palmer was a long-time employee of the Respondent
and a past president of Local 155. Beginning in 1983, he
held the position of basement oiler. The basement oiler
job took a total of 8 hours per day to perform, with re-
sponsibility for lubricating equipment in several areas of
the Respondent’s operation. The basement oiler position
included pcc oiler duties, which accounted for about 1
hour of work per day.
On May 28, 1997, the Respondent suspended Palmer
for 4 months for allegedly sabotaging a machine. Local
155 filed a grievance over the suspension. While the
grievance was pending, Palmer completed his suspen-
sion. However, the Respondent did not return him to his
job as a basement oiler. Rather, the Respondent placed
him in a newly created job: the pcc oiler position. There
is no dispute that this new job took Palmer only 1 hour
per day to perform. He nevertheless was paid a full sal-

28 We recognize that the Union’s request covered the names of re-
placement employees, information which is deemed presumptively
relevant. See Grinnell Fire Protection Systems, Inc., 332 NLRB 1257
(2000), enfd. in pertinent part 272 F.3d 1028 (8th Cir. 2001). The
Union’s request, however, intertwined the names with the requested
testing information. In these circumstances, the Respondent was not
required to parse out the Union’s request as constituting separate in-
formation requests, and to provide the names alone.
29 The pcc oiler position was located in the paper mill unit repre-
sented by Local 155.
ary. Ultimately, an arbitrator found no just cause for
Palmer’s suspension and awarded Palmer full backpay.
The arbitrator did not, however, order the Respondent to
return Palmer to his basement oiler position.
Palmer remained in the stand-alone pcc oiler position,
which still required only 1 hour of actual work per day,
for approximately 4 years until the commencement of the
strike. Following the conclusion of the strike, the Re-
spondent never recalled Palmer to the pcc oiler position
and never bargained with Local 155 with respect to the
status of that position. Rather, the Respondent unilater-
ally reassigned the pcc oiler duties to another oiler posi-
tion, effectively eliminating the pcc oiler position.
It is well-established that an employer violates Section
8(a)(5) and (1) of the Act if it makes a unilateral change
in a term or condition of employment involving a manda-
tory subject of bargaining without first bargaining to im-
passe.30 “The Board has long held the elimination of unit
jobs, albeit for economic reasons, is a matter within the
statutory phrase ‘other terms and conditions of employ-
ment’ and is a mandatory subject of bargaining within
the meaning of Section 8(a)(5) of the Act.” Plymouth
Locomotive Works, Inc., 261 NLRB 595, 602 (1982). It
is undisputed that the Respondent never bargained with
Local 155 over the elimination of the pcc oiler position.
The Respondent’s unilateral action and failure to fulfill
its bargaining obligation is thus plainly established on the
record before us. Cf. Paul Mueller Co., 337 NLRB 764,
765 (2002) (employer’s admissions established the es-
sential elements of its unlawful refusal to bargain).
The judge nevertheless dismissed this allegation, rea-
soning that the pcc oiler position “still exists,” though it
is not assigned to any employee. However, the record
shows that the Respondent has no intention to fill the pcc
oiler position. Indeed, the Respondent emphasizes that it
would be inefficient to ever fill it. We can find no mean-
ingful distinction between a position that the Respondent
will never fill and a position that has been formally
eliminated. The bottom line is that the Respondent has
unilaterally taken away a unit position without giving
Local 155 prior notice and an opportunity to bargain.31

30 See, e.g., NLRB v. Katz, 369 U.S. 736 (1962).
31 The Respondent argues that it was not contractually obligated to
have a specific pcc oiler position. It is settled, however, that an em-
ployer’s “established past practice can become . . . an implied term and
condition of employment.” Bonnell/Tredegar Industries v. NLRB, 46
F.3d 339, 345 (4th Cir. 1995). Any unilateral change in an implied
term or condition of employment violates Sec. 8(a)(5) and (1) of the
Act. Lafayette Grinding Corp., 337 NLRB 832 (2002). Having main-
tained the pcc oiler job for approximately 4 years, the Respondent
changed an implied term and condition of employment when it unilat-
erally eliminated the position. Thus, it is immaterial that the Respon-
dent may not have been contractually obligated to provide for a pcc
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD278
For these reasons, we find that the Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally elimi-
nating the pcc oiler position.32
ORDER33
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Finch, Pruyn & Company, Glens Falls, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Paper, Al-
lied-Industrial, Chemical & Energy Workers Interna-
tional Union, AFL–CIO, Local 18 in an attempt to reach
an accommodation of interests in response to the Union’s
request for relevant information that the Respondent con-
siders confidential.
(b) Eliminating bargaining unit positions without giv-
ing prior notice of such decision to Paper, Allied-
Industrial, Chemical & Energy Workers International
Union, AFL–CIO, Local 155 and affording it an oppor-
tunity to bargain regarding the decision and effects of the
elimination of those positions.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the unlawful unilateral elimination of the
pcc oiler position.
(b) Within 14 days from the date of this Order, offer
Bernard Palmer full reinstatement to his former job of
pcc oiler, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(c) Make Bernard Palmer whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ful elimination of his position. Backpay shall be com-
puted in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
(d) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify, and, on request, bargain collectively and in

oiler position. The Respondent’s obligation to maintain the status quo
is not based on a collective-bargaining agreement but on its own past
practice.
32 We agree with the judge, however, for the reasons set forth in his
decision, that the Respondent did not violate Sec. 8(a)(3) and (1) of the
Act by: (1) eliminating the pcc oiler position; and (2) by failing to
recall Palmer to another available oiler position.
33 We have modified the judge’s recommended Order to conform to
the violations found, and to correct certain inadvertent errors. We have
substituted a new notice to comport with these modifications.
good faith with Paper, Allied-Industrial, Chemical & En-
ergy Workers International Union, AFL–CIO, Local 155.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facilities in Glen Falls, New York, copies of the at-
tached notice marked “Appendix.”34 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 3, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceeding, the
Respondent has gone out of business or closed the facili-
ties involved in these proceedings, it shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since December 31, 2001.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the amended consolidated
complaint is dismissed insofar as it alleges violations not
found.
MEMBER WALSH, dissenting in part.
A key factual issue lies at the core of this labor dis-
pute: whether the Respondent1 decided while its pulp
mill employees were on strike to purchase low-cost pulp
on the open market regardless of the duration of the
strike. If the Respondent made such a decision, then it
plainly violated Section 8(a)(5) and (1) of the Act be-
cause it is undisputed that the Respondent never provided

34 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 Finch, Pruyn & Company, Inc. The Respondent operates a paper
mill in Glens Falls, New York.
FINCH, PRUYN & CO. 279
the Union2 with notice or an opportunity to bargain. The
violation, in turn, would support the complaint allegation
that the strike, at least with respect to Local 18, con-
verted to an unfair labor practice strike, the result being
that the Respondent also violated Section 8(a)(3) and (1)
when it failed to immediately reinstate the Local 18
strikers at the conclusion of the strike. Contrary to the
majority, the record evidence summarized below shows
that the Respondent made that critical decision.3
I.
It is necessary to review only a few matters to get to
the crux of this case. The Respondent and the Union
have been parties to a long series of collective-bargaining
agreements. This case arose from the parties’ unsuccess-
ful efforts in May and June 20014 to negotiate a succes-
sor collective-bargaining agreement. There is no doubt
that the negotiations were difficult. The Respondent was
insisting on significantly reducing its operating costs,
largely at the expense of its employees’ wages and bene-
fits. As the judge found, the parties’ inability to resolve
those cost issues led the Union to commence a strike on
June 16, which, concededly, was economic in nature at
the outset.
To withstand the strike, the Respondent began subcon-
tracting for pulp to keep its paper mill operating. The
Union ended its strike on November 21, but the Respon-
dent refused to reinstate the pulp mill employees. In-
stead, the Respondent continued subcontracting for pulp
for nearly two additional years, until June 2003. The
Respondent finally restarted its pulp mill at that time
both because the market price of pulp had risen substan-

2 “Union refers, collectively, to Paper, Allied-Industrial, Chemical &
Energy Workers International Union, AFL–CIO, Locals 18 and 155.
Local 18 represents, among others, the employees working in the Re-
spondent’s pulp mill and woodyard. Local 155 represents, among
others, employees working in the Respondent’s paper mill and machine
room.
3 I join my colleagues in finding, for the reasons set forth in the ma-
jority decision, that the Respondent: (1) violated Sec. 8(a)(5) and (1) by
failing to bargain with Local 18 over an accommodation of Local 18’s
request for copies of the Respondent’s contracts for pulp purchases; (2)
did not violate Sec. 8(a)(5) and (1) by refusing to furnish the Union
with information regarding prehire physical exams and drug testing;
and (3) violated Sec. 8(a)(5) and (1) by unilaterally eliminating em-
ployee Bernard Palmer’s prestrike pcc oiler position. In light of the
remedy provided for the latter violation, I find it unnecessary to pass on
whether the Respondent additionally violated Sec. 8(a)(3) and (1) by
eliminating Palmer’s position or by failing to recall him to another
available oiler position. Finally, inasmuch as I would find that the
Respondent violated Sec. 8(a)(5) and (1) by failing to notify and bar-
gain with the Union over its mid-strike decision to permanently sub-
contract for pulp, I find it unnecessary to pass on whether the Union
waived its bargaining rights when the Respondent reaffirmed that deci-
sion at the conclusion of the strike.
4 All dates are 2001, unless stated otherwise.
tially and because the Respondent was facing a costly
environmental recertification of the pulp mill if it re-
mained idle any longer.
II.
As the majority finds, the Respondent was not obliged
to bargain with the Union over its initial decision to pur-
chase enough pulp to maintain its papermaking operation
during the strike. This was a lawful temporary measure.5
As the majority acknowledges, however, an economic
strike does not privilege an employer to unilaterally en-
gage in permanent subcontracting.6 And subcontracting
for an indefinite period not to terminate at the expiration
of an economic strike is tantamount to permanent sub-
contracting.7 The record shows that the Respondent, at
some point during the strike, made a unilateral decision
to engage in such indefinite subcontracting here, thereby
violating Section 8(a)(5) and (1).
The Respondent’s president and chief executive offi-
cer, Richard Carota, testified at the unfair labor practice
hearing that the Respondent decided during the strike to
indefinitely subcontract for pulp, the price of which was
reaching an historic low. Specifically, Carota testified
that, “sometime . . . after the pulp mill was shut down
initially because of the strike, sometime in that period of
time, the company decided it was going to operate with
purchased pulp, so long as it could continue to get that
low cost pulp on the market.”8
Although not discussed by the judge, Carota’s testi-
mony is particularly compelling both because of his in-
timate involvement in the management of the Respon-
dent’s affairs and because his testimony represents an

5 See, e.g., Naperville Ready Mix v. NLRB, 242 F.3d 744, 756 (7th
Cir. 2001), cert. denied 534 U.S. 1040 (2001); American Cyanamid Co.
v. NLRB, 592 F.2d 356, 360 (7th Cir. 1979), enfg. 235 NLRB 1316
(1978).
6 See Naperville Ready Mix v. NLRB, supra at 756.
7 See Land Air Delivery v. NLRB, 862 F.2d 354, 357 fn. 2 (D.C. Cir.
1988), cert. denied 493 U.S. 810 (1989).
8 On direct examination by the Charging Party, conducted under
Federal Rule of Evidence 611(c), Carota’s testified as follows:
Q. Sometime before you sent this [Sept. 14, 2001] letter [to
R’s stockholders] and after the pulp mill was shut down initially
because of the strike, sometime in that period of time, the com-
pany decided it was going to operate with purchased pulp, so long
as it could continue to get that low cost pulp on the market, cor-
rect?
A. This is true, yes.
Carota’s answer came after he initially testified that he did not “re-
member making such a decision” and that, in response to local news
reporters’ questions about how long the pulp mill would be closed, the
Respondent may have said, “[I]ndefinitely, we didn’t know. We didn’t
know how long the price of craft [pulp] would be down. We didn’t
know how long the strike would last.” The judge failed to discuss any
of this testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD280
admission against the Respondent’s interests.9 Carota
was the Respondent’s highest-ranking management offi-
cial, and it is undisputed that he was actively engaged in
the Respondent’s handling of the strike, the Union, its
employees, and its investors. Indeed, it was Carota who,
at the outset of the parties’ negotiations, explained to the
Union the Respondent’s need for dramatic concessions,
and it was Carota who issued regular updates on the
situation to stockholders and employees alike. In these
circumstances, Carota’s admission that the Respondent
decided during the strike to indefinitely subcontract for
pulp is highly probative of the pivotal factual question in
this case.10
Moreover, Carota’s testimony is consistent with
documentary evidence in the record. As described, the
Respondent initially began subcontracting for pulp as a
temporary means to continue its papermaking operations
during the strike. Accordingly, in June 2001, the Re-
spondent attributed its shutdown of the pulp mill to the
strike.11 In subsequent communications concerning the
pulp mill, however, the Respondent focused on the price
and quality of pulp available on the open market, and did
not expressly link the shutdown of the pulp mill to the
strike or its conclusion.12
Similarly, when the Union inquired in late Autumn
2001 about the status of the pulp mill, the Respondent, on
November 13, advised the Union that, “no determination
had been made to reactivate it.” The Respondent further
explained on that date why it had no immediate plans to
restart the pulp mill: “the price of purchased pulp was still
below what it costs to make [our] own.” This response
was fully consistent with Carota’s testimony that the Re-
spondent had decided during the strike to indefinitely pur-
chase low-cost pulp on the open market.
Finally, in a December 14 letter to the Respondent’s
stockholders, Carota summed up the situation as follows:
“[o]ur Pulp Mill and Woodyard have not operated since
June because less expensive pulp remains available from

9 The Respondent’s position, as summarized in its answering brief, is
that “[t]here simply was no . . . ‘subcontract’ of the sort imagined by
the General Counsel in his brief and alleged in the Complaint.”
10 Certainly, if the Respondent had not made such a decision during
the course of the strike, one would expect that Carota would have testi-
fied to that effect. Instead, he testified to the contrary. Cf. Polaroid
Corp., 329 NLRB 424, 430 (1999) (testimony of respondent’s chief
executive officer confirms Board finding)
11 On June 19, for example, the Respondent issued an internal
memorandum, stating, “The Pulp Mill is down due to the strike.” (R.
Exh. 21).
12 On July 23, for example, the Respondent issued an internal memo-
randum, explaining that it intended to “mothball” the pulp mill and
reassign salaried employees working in that area “until the cost to pro-
duce our own pulp is less than the price of hardwood kraft pulp.” (GC
Exh. 102).
outside suppliers and its quality is equal to or better than
our own pulp.” This acknowledgement is hardly surpris-
ing, because the record shows that, by late Summer 2001,
the Respondent had fully realized that it could maintain
the quality of its manufactured paper products using pulp
that was cheaper to buy than to produce. Carota’s De-
cember 14 letter confirmed that, again, as Carota himself
testified, the Respondent months earlier had adopted a
strategy of indefinitely operating with market pulp so
long as it could be bought cheaply.13
In finding that the Respondent did not make a mid-
strike decision to indefinitely subcontract for pulp, the
majority mistakenly relies on the Respondent’s decision
to place “spot” orders for pulp instead of entering into a
long-term contract for pulp that “lock[ed] in” the lower
cost for the future. This confuses the question of
whether the Respondent made a decision to indefinitely
buy pulp with the separate question of how the Respon-
dent implemented that decision. That the Respondent
eschewed long-term contracts in favor of making spot
purchases is not inconsistent with the conclusion that the
Respondent had adopted a strategy of indefinitely operat-
ing with purchased pulp.
Indeed, it appears that the Respondent’s decision to
place spot orders was dictated by market forces. The
record indicates that the use of spot contracts was the
norm in the industry. Moreover, there is no dispute that
throughout 2001 and 2002 pulp was abundantly available
on the open market at historically low prices. Pulp sup-
pliers accordingly did not require long-term contracts.14
Placing spot orders made particular sense for the Re-
spondent, as well, because it had to continuously weigh
the price of pulp against its own costs, including the
fixed expense of maintaining its pulp mill in a ready
state. In these circumstances, the Respondent’s use of
spot purchases simply does not have the significance
attributed to it by the majority.
At bottom, it appears that the Respondent, having got-
ten a taste of the cost-savings achievable by buying pulp,
converted what was a temporary means to withstand the
strike to an indefinite means to supplant its pulp mill
operation. Whatever the merits of this conversion, the
Respondent simply was not entitled to adopt it unilater-
ally. As the Seventh Circuit aptly observed when finding

13 The evidence thus shows, contrary to the majority’s view, that the
low cost of pulp had “displaced” the Respondent’s initial reason for
subcontracting, which was solely to maintain operations during the
strike.
14 Cf. Elliott River Tours, 246 NLRB 935 (1979) (subcontractor of
struck employer demanded long term contract as a condition for taking
on the work).
FINCH, PRUYN & CO. 281
unlawful another employer’s unilateral permanent sub-
contracting during an economic strike:
Here the Union is not challenging the Company’s right
to continue operating by contracting out unit work on a
temporary basis. It objects only to the Company’s uni-
lateral decision to make the arrangement permanent in
the absence of an emergency. . . . . There has been no
showing that this Company would have been harmed
by negotiating with the Union prior to contracting out
the . . . work permanently. Therefore no justification
has been shown for the Company’s failure to observe
the bargaining obligations set forth in the Act.15
The Respondent accordingly violated Section 8(a)(5) and
(1) of the Act by failing to notify and bargain with the Un-
ion over its mid-strike decision to subcontract for pulp “for
an indefinite future period not to terminate at the expiration
of the strike.”16
III.
Further, the record warrants finding, contrary to the
judge’s decision, that the Respondent’s failure to meet its
bargaining obligation over that mid-strike decision con-
verted Local 18’s economic strike into an unfair labor
practice strike.17 The result is that the Respondent also
violated Section 8(a)(3) and (1) when it failed to imme-
diately reinstate the Local 18 strikers at the conclusion of
the strike.
The standard for determining whether a strike has been
converted from an economic strike into an unfair labor
practice strike is well-established: the unlawful conduct
need not be the “sole or predominant” factor that caused
a prolongation of the work stoppage; it is sufficient that
the unlawful conduct was “a factor.”18 The Board con-
siders both subjective and objective factors in analyzing
a claim of conversion.19

15 American Cyanamid Co. v. NLRB, supra at 360. The Respon-
dent’s decision was not required by any operational exigency. Cf. Land
Air Delivery v. NLRB, 862 F.2d 354, 358 (D.C. Cir. 1988), cert. denied
493 U.S. 810 (1989) (permanent subcontracting during economic strike
may be justified where “necessary to the business purpose of keeping
the plant continuously in operation and time of decision is of the es-
sence”) (citations omitted). Further, I fully agree with Member
Schaumber that the Respondent’s decision was a mandatory subject of
bargaining, and not a management decision exempt from bargaining
under First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981).
16 See Land Air Delivery v. NLRB, supra at 357 fn. 2.
17 The General Counsel asserts that the striking employees repre-
sented by Local 155, who were not employed in the pulp mill, were
nonetheless affected by the Respondent’s unilateral action because the
two local unions engaged in joint bargaining. The judge’s finding that
they did not engage in joint bargaining, however, is supported by the
record evidence.
18 C-Line Express, 292 NLRB 638 (1989).
19 Id.
Here, the judge rejected the General Counsel’s claim
of conversion, largely based on the absence of subjective
evidence of the strikers’ reaction to the Respondent’s
decision to permanently subcontract for pulp. What the
judge failed to fully appreciate, however, is that a subjec-
tive analysis, which would consider the striking employ-
ees’ characterization of their own motive for continuing
the strike after the unfair labor practice, is precluded by
the nature of the Respondent’s misconduct. Central to
the Respondent’s unfair labor practice is its failure to
notify Local 18 of its mid-strike decision. Not surpris-
ingly, then, the record is devoid of evidence of the strik-
ers’ subjective reaction to that decision.20 The judge
therefore erred in pointing out, for example, the absence
of evidence that the Respondent’s indefinite subcontract-
ing was discussed when the Union conducted its strike
vote.
At the same time, the judge failed to pay heed to the
principle that objective evidence may afford a sufficient
and independent basis for finding conversion when sub-
jective evidence is unavailable.21 It is thus well estab-
lished that, “[a]pplying objective criteria, the Board and
reviewing court may properly consider the probable im-
pact of the type of unfair labor practice in question on
reasonable strikers in the relevant context.”22 “The com-
mon thread running through [objective criteria] cases is
the judgment of the Board that the employer’s conduct is
likely to have significantly interrupted or burdened the
course of the bargaining process.”23
The Respondent’s mid-strike decision to indefinitely
subcontract for pulp, viewed objectively, was a significant
crossroad in the parties’ bargaining process and the strike.
Critically, because the Respondent did not notify Local 18
of that decision, Local 18 was deprived of an opportunity
to reevaluate its position in light of this key development.
Local 18, not to mention the strikers, was deprived of the
opportunity to end the strike, to accept the Respondent’s
terms, or to take other appropriate action.24
This was significant because at least two facts strongly
suggest that Local 18 would have seized such an oppor-

20 The judge’s observation that the Respondent’s purchases of pulp
were open and notorious by September 2001 misses the point. The key
fact, still unknown to the Union at that time, was that the Respondent
had decided to purchase pulp indefinitely.
21 C-Line Express, supra at 638 (presence or absence of evidence of
employees’ subjective motivation is not a sine qua non for determining
conversion).
22 Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1080 (1st
Cir. 1981), abrogated on other grounds NLRB v. Curtin Matheson Sci-
entific, Inc., 494 U.S. 775 (1990).
23 C-Line Express, supra, 292 NLRB at 638.
24 Cf. Eads Transfer, Inc., 304 NLRB 711, 712 (1991), enfd. 989
F.3d 373 (9th Cir. 1993) (explaining policy favoring requirement that
employers timely notify employees of a lockout).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD282
tunity had the Respondent given timely notice of its deci-
sion. First, Local 18 had largely premised the strike on a
belief that the Respondent would be unable over an ex-
tended period of time to supply its papermaking opera-
tion with the high quality pulp typically produced by the
unit employees. This was a reasonable assumption. Al-
though the market price of pulp is in constant fluctuation,
the Respondent had never indefinitely shut down the
pulp mill in favor of purchasing pulp, even when the
market price was below the Respondent’s manufacturing
cost.25 The Respondent’s decision to indefinitely idle the
pulp mill was thus historically unprecedented and, once
made, it essentially eviscerated Local 18’s perceived
economic leverage. Second, when the Respondent fi-
nally informed Local 18 of its decision on November 13,
Local 18 quickly capitulated. Within one week of re-
ceiving that notice, Local 18 ended the strike and its
membership ratified the Respondent’s last offer.26
In these circumstances, there is good reason to believe
that the strike in fact was prolonged by the Respondent’s
unlawful failure to give timely notice of its decision to
indefinitely subcontract for pulp. For these reasons, I
would find, contrary to the judge, that the Union’s eco-
nomic strike was converted into an unfair labor practice
strike, at least with respect to Local 18, and that the Re-
spondent thereby violated Section 8(a)(3) and (1) by fail-
ing to immediately reinstate the Local 18 strikers at the
conclusion of the strike.
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

25 President Carota testified that, since 1991, the price per ton of pur-
chased pulp fell below the Respondent’s manufacturing cost on four
separate occasions, each lasting an average of 8 months. Yet the Re-
spondent had never shut down the pulp mill or made paper from pur-
chased pulp for an extended period of time. Prior to the strike, the
Respondent had only purchased small amounts of pulp to use during
planned temporary shutdowns or emergencies.
26 It appears that the judge simply failed to grasp the significance of
Local 18’s quick action to end the strike. Instead, he focused on its
failure to present evidence of anything occurring between November 14
and November 21 that would indicate that the Respondent’s subcon-
tracting decision prolonged the strike.
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain in good faith with Pa-
per, Allied-Industrial, Chemical & Energy Workers In-
ternational Union, AFL–CIO, Local 18 in an attempt to
reach an accommodation of interests in response to the
Union’s request for relevant information that we consider
confidential.
WE WILL NOT eliminate bargaining unit positions
without giving prior notice of such decision to Paper,
Allied-Industrial, Chemical & Energy Workers Interna-
tional Union, AFL–CIO, Local 155, and affording it an
opportunity to bargain regarding the decision and the
effects of the elimination of those positions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL rescind the unlawful unilateral elimination of
the pcc oiler position.
WE WILL, within 14 days from the date of the Board’s
Order, offer Bernard Palmer full reinstatement to his
former job of pcc oiler, without prejudice to his seniority
or any other rights or privileges previously enjoyed.
WE WILL make Bernard Palmer whole for any loss of
earnings and other benefits suffered as a result of our
unlawful elimination of his position.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify, and, on request, bargain collec-
tively and in good faith with Paper, Allied-Industrial,
Chemical & Energy Workers International Union, AFL–
CIO, Local 155.
FINCH, PRUYN & COMPANY, INC.
Robert A. Ringler, Esq., for the General Counsel.
John S. Irving, Esq., of Washington, D.C., William Bevan, III,
Esq., of Pittsburgh, Pennsylvania, and Michael T. Wallen-
der, Esq., of Albany, New York, for the Respondent-
Employer.
James R. LaVaute, Esq., and Stephanie A. Miner, Esq., of Syra-
cuse, New York, for the Charging Party.
FINCH, PRUYN & CO. 283
DECISION
STATEMENT OF THE CASE1
BRUCE D. ROSENSTEIN, Administrative Law Judge.2 This
case was tried before me on December 8–12 and 16–8, 2003, in
Albany, New York, pursuant to an amended consolidated com-
plaint and notice of hearing in the subject cases (complaint)
issued on June 19, 2003, by the Acting Regional Director for
Region 3 of the National Labor Relations Board (the Board).
The underlying charges and amended charges were filed on
various dates in 2002 by Paper, Allied-Industrial, Chemical &
Energy Workers International Union, AFL–CIO (the Charging
Party, the Union, Local 18, or Local 155) alleging that Finch,
Pruyn & Company, Inc. (the Respondent or Employer), has
engaged in certain violations of Section 8(a)(1), (3), and (5) of
the National Labor Relations Act (the Act). The Respondent
filed a timely amended answer to the complaint denying that it
had committed any violations of the Act.
Issues
The complaint alleges that Respondent engaged in violations
of Section 8(a)(1) and (5) of the Act by its failure to provide
necessary and relevant information to Local 18 and Local 155,
its unilateral elimination of the pcc oiler position and the uni-
lateral subcontracting of its pulp mill and wood yard without
notice or negotiations with the Union. Additionally, the com-
plaint alleges that effective June 16, 2001,3 certain employees
of Local 18 and Local 155 commenced an economic strike that
was prolonged by Respondent’s subcontracting of its pulp mill
without notice or negotiations with the Union in violation of
Section 8(a)(1) and (5) of the Act, thereby converting the eco-
nomic strike to an unfair labor practice strike for which the
Respondent failed or refused to reinstate some of the striking
employees in violation of Section 8(a)(1) and (3) of the Act.
Lastly, the complaint alleges that the Respondent eliminated the
pcc oiler position and failed to recall a striker to an available
oiler position in violation of Section 8(a)(1) and (3) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the helpful
briefs filed by the General Counsel, Charging Party,4 and the

1 The allegations pertaining to the discharge of employees Hugh
Capen and James Benway and the suspension of employee William
Ryan alleged in pars. 13(a) and (b) of the complaint were resolved by
the parties through a non-Board settlement reached after the opening of
the hearing. The General Counsel has no objections to the terms of the
settlement. Accordingly, as the settlement between the parties effectu-
ates the purposes and policies of the Act, I approved and made it a part
of the record (ALJ Exh. 2). Allegations concerning the status of these
employees as economic or unfair labor practice strikers are still pending
and will be addressed in the subject decision.
2 Prior to the opening of the hearing the Union made a motion to
disqualify me as the designated trial judge due to my former service as
Special Counsel to the General Counsel between 1976 and 1979, when
John S. Irving, Esq., one of Respondent’s attorneys, served as General
Counsel of the Board (ALJ Exh. 1). I denied the motion on the record
for the reasons stated in the transcript (Tr. 5–8).
3 All dates are in 2001 unless otherwise indicated.
4 The Charging Party’s unopposed motion to correct the transcript
attached to its brief, is granted.
Respondent,5 I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the manufacture
of paper at its facility in Glens Falls, New York, where it annu-
ally sold and shipped goods and materials valued in excess of
$50,000 directly to customers located outside the State of New
York. The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Respondent’s operation
Respondent is a privately held corporation that has been in
existence for 138 years. It has a board of directors and individ-
ual stockholders. Since 1985, Richard J. Carota has been
chairman, president, and CEO. Respondent manufactures ap-
proximately 240,000 tons per year of premium uncoated print-
ing papers for advertising, book publishing, and business office
uses nationwide. For many years Respondent’s employees
have been represented for collective-bargaining purposes by
seven labor organizations including Local 18 and 155. Local
18, has a practice of entering into separate collective-bargaining
agreements with the Respondent, as does Local 155. Histori-
cally, the last two 5-year collective-bargaining agreements have
expired on the same day (GC Exhs. 2, 4, 67, and 68). Thus,
bargaining for successor agreements normally occurs at the
same time for all unions including Locals 18 and 155. Local 18
represents employees that work in the shipping, finishing, con-
verting, buildings & grounds, waste treatment, warehousing,
material handling, wood yard and pulp mill portions of the
operation. At the time of the economic strike, there were ap-
proximately 300 Local 18 bargaining unit members, 75 of
whom worked in the Employer’s pulp mill and wood yard. The
most recent collective-bargaining agreement between Respon-
dent and Local 18 is effective from November 24 through De-
cember 31, 2006 (GC Exh. 3). Local 155 represents employees
that work in the machine room, paper mill, pulp prep and qual-
ity (paper lab) departments. At the time of the economic strike
there were approximately 149 Local 155 bargaining unit mem-
bers, none of who worked in the Employer’s pulp mill or wood
yard. The most recent collective-bargaining agreement be-
tween the Respondent and Local 155 is effective from Novem-
ber 24 through December 31, 2006 (GC Exh. 5).
2. Prestrike bargaining
The parties engaged in approximately 45 prestrike meetings
some of which included all the unions while others involved
independent negotiation sessions between each union and the

5 By motion dated March 12, 2004, the Respondent moved to strike
portions of the General Counsels and Charging Party’s posthearing
briefs. The General Counsel and the Charging Party filed oppositions
to the motion. In view of my findings herein regarding the issues raised
in the motion, it is not necessary to make a ruling.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD284
Employer. At the first general meeting held on May 14, at-
tended by all seven unions, Carota made a presentation entitled
“The Ticonderogians are coming” (R. Exh. 38). He focused on
their main competitor International Paper who has a plant geo-
graphically proximate in Ticonderoga, New York, that had
been making inroads on the Employer in the critical specifica-
tions of brightness, quality, and smoothness. Carota informed
the seven unions that International Paper, whose papermaker
employees are represented by the same International Union,
does not pay its employees double time and pays less than one-
half the cost of their employee health care plan. Likewise,
Respondent’s retirement plans, life insurance and meal allow-
ances are more costly then their chief competitor with Interna-
tional Paper having a substantial labor cost advantage of
$90/ton compared to the Employer’s labor cost of $150/ton.
This information set the tone for Respondent’s message to its
employees that in order to stay competitive, it would be neces-
sary to seek concessions during the upcoming negotiations.
Indeed, just prior to the commencement of negotiations, em-
ployees were notified that one of the paper machines would be
shut down for approximately 2 weeks due to lack of orders and
excessive high paper inventories. It was known to all parties
that the pulp and paper industry was in the midst of a major
recession (R Exh. 19).
On May 15, at the first substantive negotiation meeting
among the parties, Locals 18 and 155 submitted their individual
2001 Labor Negotiation Agendas to the Employer (R. Exhs. 2
and 3). Additionally, the Unions presented a Main Agenda for
the 2001 negotiations (R. Exh. 34). Historically, common pro-
visions in each of the seven unions’ agreements were negoti-
ated together and at the same time with the Employer. For
example, some of these items include profit sharing, wage in-
creases, vacation benefits, group life insurance, healthcare,
retirement, sick pay, holidays, double-time and holiday pay,
disability pay, and workers compensation. The Employer cal-
culated that the cost for the Main Agenda items would be an
increase of approximately $11,429,129 (R. Exh. 35).
As the negotiations approached June 15, the date the then
collective-bargaining agreements for all seven unions were set
to expire, the Employer provided on June 14 as requested by
the Union, a last-best contract offer that was subsequently re-
jected. The Employer declared the parties were at impasse and
implemented its last best contract offer. The Union filed unfair
labor practice charges on June 17, asserting that the Respondent
engaged in surface bargaining, bargained to impasse on a non-
mandatory subject of bargaining (unit scope), made regressive
proposals, would not meet with the Union, or refused to accede
to the Union’s demands in order to frustrate agreement. The
Regional Director for Region 3, on September 14, refused to
issue a complaint and on January 30, 2002, the General Coun-
sel on appeal determined that further proceedings were deemed
unwarranted. In pertinent part, the General Counsel determined
that the evidence demonstrated that a genuine bargaining im-
passe limited to mandatory subjects was reached on June 15. In
this regard, the evidence showed that prior to impasse the Em-
ployer met with the Union over 40 times and presented ap-
proximately 16 proposals. In addition, the Employer made
numerous concessions to the Union on both economic and non-
economic issues, and ultimately withdrew 10 of its proposals in
a good-faith attempt to reach agreement. Further, the Employer
continuously supplied the Union with explanations based on
documentation and objective evidence in order to support its
bargaining position that it deemed concessions from the Union
necessary in order to afford it greater flexibility so that it could
remain competitive. Although the Employer took a hard posi-
tion in bargaining, it revised its initial proposal that employees
pay their own health insurance premiums, and it offered a
$1000 annual lump-sum payment to employees that it later
increased to $1500.
3. Prestrike planning
The Employer recognized that a strike in 2001 was a strong
possibility, as it had endured a 19-day strike in 1996 when su-
pervisors filled in and paper was produced at a reduced capac-
ity. A contingency plan was developed that provided for an
orderly shutdown of the pulp mill (R. Exh. 20). The Respon-
dent decided that if a strike did occur, it would not operate the
pulp mill but would attempt to purchase a superior grade of
hardwood kraft pulp on the open market and slowly produce
paper starting with the operation of one paper machine. As part
of the contingency plan, the Respondent was aware that it could
operate one paper machine for approximately the first month of
the strike with the 1000 tons of previously produced stored
pulp. Once exhausted, it would then have to depend on the
hardwood kraft pulp to maintain its business operation. While
the Respondent on occasions previously purchased small
amounts of hardwood kraft pulp to use during planned and
unplanned shutdowns or emergencies, it was uncertain if the
hardwood kraft pulp would enable it to maintain the high qual-
ity of its paper products for distribution to its customers.
4. The strike and continued plant operation
On June 16, certain employees of Locals 18 and 155 engaged
in an economic strike due to the parties’ inability to come to an
agreement on the wide disparity over wages and benefits that
the Respondent sought in order to remain competitive with its
rivals. The Union, in commencing the strike, was of the opin-
ion that they possessed leverage due to the unique expertise of
their employees in producing a sophisticated product and work-
ing on complex machines that would be difficult to operate
with supervisors or retired employees over an extended period
of time.
Respondent, in order to operate its paper mill and continue to
remain in business, began to purchase hardwood kraft pulp on
the open market since prices were at a 20-year historical low.
Thus, the Respondent was able to purchase the pulp for less
than it would cost to produce its own unique ammonium bi-
sulfite pulp. Respondent knew its employees would be eligible
for at least 26 weeks of unemployment insurance so enough
pulp was initially purchased to last into early 2002. As the
strike continued to progress into the summer and early fall of
2001, and the strikers began to draw vacation pay that had been
accrued, the Respondent forecasted that the strike could be
extended and decided to buy additional hardwood kraft pulp on
the open market as prices remained low in comparison to pro-
ducing its own pulp.
FINCH, PRUYN & CO. 285
5. Negotiations and developments during the strike
The parties engaged in eight collective-bargaining sessions
after the commencement of the strike on June 16. The first
substantive meeting occurred on September 26, with the Union
for the first time offering to contribute 5 percent to their health
care costs and the Employer standing firm that the employees
pay 50 percent of the costs similar to their primary competitors.
Newspaper articles in August and September 2001, con-
firmed that the parties were at a standstill on economic issues
and the Union made assertions that the Respondent is not capa-
ble of making its customary top-quality paper because its
skilled workers are on strike and the pulp mill is purchasing
pulp rather then using its own sodium bicarbonate process to
produce pulp (R. Exhs. 9 and 10).
By letter dated October 15 to all employees, the Respondent
noted that due to the Union’s recent rejection of a revised last
best offer that made substantial movement on family health
insurance and additional compensation for each striking em-
ployee, it was necessary to take steps to support the long-term
operation of the mill and, accordingly, they had begun to hire
permanent replacement workers in all areas of the facility with
the exception of the pulp mill (R. Exh. 46).
During the negotiation session of November 13, the Union
inquired about the current status of the pulp mill and was in-
formed by Respondent that no determination had been made to
reactivate it as the price of purchased pulp was still below what
it costs to make their own. At the conclusion of this meeting,
the Union was provided with a revised last best offer that would
remain open through November 20.
The next bargaining session took place on November 19.
The Union apprised the Respondent that the membership had
voted on the revised offer and it was overwhelmingly rejected.
The Union stated that if the Employer were truly interested in
coming to terms, it would eliminate the maintenance of mem-
bership portion of the offer and reinstate the union-security
clause, modify the pension benefit by permitting employees to
lump out after 25 years and provide amnesty for all strikers.
The Respondent rejected these proposals, but at the Union’s
request agreed to extend the last best offer to November 23, so
that a revote could be taken. The union negotiators informed
the Respondent that they would take the last best offer back to
the membership with a recommendation to approve the agree-
ment (R. Exh. 43).
On November 21, a second ratification meeting occurred for
members of Local 18 and Local 155. The result of the tabu-
lated votes showed that the Union had ratified the agreement.
The Union communicated these results to the Respondent and
the parties agreed that the strike was officially ended on No-
vember 21.
On November 24, Locals 18 and 155 entered into separate
collective-bargaining agreements with the Respondent, which
are effective until December 31, 2006.
On November 26, Local 18 and Local 155 entered into sepa-
rate recall agreements that detailed the procedures for the recall
of strikers to prestrike positions when a vacancy occurs (GC
Exhs. 6 and 7).
The pulp mill remained closed during the remainder of 2001,
the entire year of 2002, and into the first half of 2003. By
memorandum dated February 26, 2003, Respondent apprised
all employees that it planned to reopen the pulp mill in early
June 2003. The Respondent explained that the decision to re-
open the pulp mill was based in part on the fact that purchase
orders existed to buy hardwood kraft pulp through June 2003
but the market price of pulp is then expected to exceed the cur-
rent estimate to produce our own pulp. Second, the New York
State Department of Environmental Conservation apprised us
that if the pulp mill remains shutdown beyond June 2003, it
could possibly require the repermitting of the entire pulping
operation, a lengthy process that could cost millions of dollars
and require the pulp mill to be closed for an indefinite period.
Accordingly, the striking employees in the pulp mill were in-
formed that commencing in April 2003 they would be recalled
as needed to their prestrike positions (R. Exh. 31). As of June
2003, the majority of the striking employees in the pulp mill
have been recalled to their prestrike positions.
B. The 8(a)(1) and (5) Allegations
1. The refusal to provide information
The General Counsel alleges in paragraph 9 of the complaint
that Local 18 and Local 155 independently requested certain
items of information in January and February 2002, which was
necessary and relevant to its performance as the exclusive col-
lective-bargaining representative of each unit.
By letter dated January 23, 2002, Local 18 sought a copy of
contracts relating to the purchase of contract pulp and on Feb-
ruary 24, 2002, it sought weekly schedules and the date, time
and place where replacement workers were given preemploy-
ment physical examinations and drug screening tests.
By letter dated February 9, 2002, Local 155 sought the loca-
tion of where certain replacement workers took their pre-
employment physicals/drug screening tests and on February 25,
2002, it requested additional clarification on issues related to
drug screening.
The Respondent, in a letter dated January 29, 2002, informed
Local 18 that the information regarding the purchase of contract
pulp was financial data that it intended to keep confidential.
The Respondent referenced a prior arbitration in which the
arbitrator overruled the Union’s request for confidential infor-
mation and concluded the letter by confirming earlier advice
that it does not anticipate starting the pulp mill in the foresee-
able future, based on cost and quality considerations. In a sub-
sequent letter dated February 7, 2002, the Respondent reiterated
the same information as contained in its January 29, 2002 letter
and noted in the interests of good labor relations that it has
placed orders for purchased pulp for the entire year of 2002.
In letters dated February 22 and March 6, 2002, the Respon-
dent replied to Local 18’s requests on drug screening and preem-
ployment physicals. Local 18 was informed that prehire drug
screening was not a matter within their representational responsi-
bilities and could result in divulging confidential information.
The Respondent concluded the letters by informing Local 18 that
all new employees undergo prehire physicals and drug screening,
whether or not they later become union members.
By letters dated February 6 and March 6, 2002, Respondent
replied to Local 155’s requests for information regarding drug
screening. As it had done with Local 18, Respondent informed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD286
Local 155 that prehire drug screening was not a matter within
their representational responsibilities and could result in divulg-
ing confidential information. The Respondent, while declining
to provide the information requested, apprised Local 155 that
all new employees undergo prehire drug screening.
The Supreme Court in the case of Detroit Edison Co. v.
NLRB, 440 U.S. 301 (1979), provided a balancing test for ac-
commodating a union’s need for information and an employer’s
need to protect confidential information.
In resolving issues such as presented in the subject case, the
Board held in GTE California, Inc., 324 NLRB 424, 426 (1997)
that:
An employer has a statutory obligation to provide re-
quested information that is potentially relevant and will be
of use to a union in fulfilling its responsibilities as the em-
ployees’ exclusive bargaining representative.
. . . .
A union’s interest in relevant and necessary informa-
tion, however, does not always predominate over other le-
gitimate interests . . . Thus, in dealing with union’s re-
quests for relevant but assertedly confidential information
possessed by an employer, the Board is required to bal-
ance a union’s need for the information against any legiti-
mate and substantial confidentiality interest established by
the employer.
The legitimacy of the Union’s need for information con-
tained in preemployment physicals and drug-screening reports
is clear, especially in view of the fact that it would be the ex-
clusive bargaining representative of any replacement employ-
ees. Information related to workplace safety and health is gen-
erally, relevant and necessary for the Union to carry out its
bargaining obligations. Minnesota Mining & Mfg. Co., 261
NLRB 27, 29 (1982), enfd. sub nom. Oil Workers Local 6–418
v. NLRB, 711 F.2d 348 (D.C. Cir. 1983).
On the other hand, an employer certainly has a strong confi-
dentiality interest with respect to the names and what facility
replacement workers were tested in prior to their hiring.
The Board in Pennsylvania Power, 301 NLRB 1104 (1991),
found that the respondent employer proved a legitimate and
substantial confidentiality defense justifying its refusal to pro-
vide the names of informants who provided information about
suspected drug use. Indeed, the serious public and employee
safety considerations as in the subject case were present in the
Board’s analysis of the facts in Pennsylvania Power.
While the Respondent asserts a legitimate and substantial
confidentiality interest in not releasing the names and what
facility replacement workers were tested in for drug use prior to
their hiring, I am of the opinion that the confidentiality interest
was not so substantial as to justify the Respondent’s blanket
refusal to provide any information in response to the Union’s
requests. Thus, the Respondent had an obligation to come for-
ward with some offer to accommodate both its concerns and the
Union’s legitimate needs for the information. Here, the Re-
spondent made no offer to release the information conditionally
or by placing any restrictions on the use of the information.
Since the Respondent made no effort to bargain to accommo-
date the Union’s interest in seeking relevant information and
flatly refused the information sought by both Local 18 and
Local 155 regarding preemployment physicals and drug screen-
ing for replacement employees, it violated Section 8(a)(1) and
(5) of the Act. Therefore, the violation found is the failure to
bargain over an accommodation (i.e., an alternative means of
satisfying the Union’s need), not the failure to provide the loca-
tion of testing or the names of the replacement employees who
undertook prehire physicals and drug screening tests.
In regard to Local 18’s request for copies of contracts for pur-
chased pulp to determine whether the Respondent has adequate
justification for failing to recall strikers to their jobs in the pulp
mill, I do not find that such information is relevant and necessary
to Local 18’s representational responsibilities. In this regard, the
information sought would disclose sensitive information of com-
petitive significance for which an employer is not required to
disclose. Nielsen Lithographing Co., 305 NLRB 697 (1991).
Second, copies of contracts for purchased pulp that were re-
quested in January 2002, is not necessary to determine adequate
justification for failing to recall strikers to jobs in the pulp mill
especially in light of the fact that Local 18 was informed in Au-
gust, October, and November 2001, and on subsequent occasions,
that the pulp mill would not be started for the foreseeable future
and that hardwood kraft pulp had been purchased not only
through February 2002 but for the entire year of 2002 (GC Exh.
17). Third, the Union withdrew allegations in Case 3–CA–
23461–1 that since January 17, 2002, the Employer failed to
recall unreinstated strikers to open positions in the wood yard
(CP Exh. 2(c)). Fourth, prior to the subject information request
the parties on November 26 had negotiated a recall agreement
that detailed the procedures in which striking employees would
be recalled when vacancies occurred. Lastly, contrary to the
General Counsel’s assertion that the pulp contracts were relevant
to the Union’s consideration of the subject unfair labor practices,
it is noted that when the instant information request was filed in
January 2002 the third amended charge in Case 3–CA–23461–1
had not been filed that alleges the economic strike converted to a
unfair labor strike in July 2001, when the Respondent unilaterally
subcontracted its pulp mill by purchasing a superior grade of
hardwood kraft pulp on the open market. I also note that in re-
sponse to the Charging Party’s subpoena the information was
provided by the Respondent.
For all of the above reasons, I recommend that paragraph
9(a) of the complaint be dismissed.
2. Elimination of the pcc oiler classification
The General Counsel alleges in paragraph 10 of the com-
plaint that Respondent eliminated the pcc oiler position in or
around December 2001 without notification or bargaining with
Local 155 over the conduct and effects of this conduct.
In May 1997, the Respondent suspended Local 155 em-
ployee Bernard Palmer for a period of 4 months because he
allegedly engaged in acts of sabotage by shutting down a valve
to the head box causing the flow of papermaking fiber to be
interrupted and the machine to stop operations. Local 155 filed
a grievance over the suspension, which ultimately was referred
to arbitration. The arbitrator held that the suspension was not
for just cause and awarded backpay and loss of seniority during
FINCH, PRUYN & CO. 287
the period Palmer was out of work (GC Exh. 64). The Respon-
dent abided by the arbitration award and placed Palmer in the
position of a pcc oiler who was responsible for lubricating cer-
tain valves in a particular portion of the mill. Palmer credibly
testified that while he was paid a salary commensurate with
other full-time Local 155 employees who were classified as
basement or machine room oilers his job responsibilities only
took him approximately 1-hour per day. Palmer also acknowl-
edged that after returning to work from the 1996 strike he was
classified as a basement oiler and performed the duties and
responsibilities of that position in addition to handling the du-
ties of the pcc oiler job that took approximately 10 percent of
his time.
The Respondent asserts that the position of the pcc oiler
never existed until it assigned Palmer to the job full time after
the arbitrator determined that his suspension was not for just
cause. Palmer was placed in that position because of the Re-
spondent’s continued concern that he had engaged in acts of
sabotage and they did not want to return Palmer to that section
of the mill where the alleged acts occurred. The Respondent
argues that while the pcc oiler classification still exists, they
determined not to fill the position during the strike and after the
strike ended the duties of that position could be performed
more efficiently by other tour oilers who possessed the same
skills.6 Indeed, as of the date of the hearing, the pcc oiler posi-
tion has not been filled.
If the pcc oiler position were eliminated in December 2001,
as alleged by the General Counsel, there would have been an
obligation to notify and engage in appropriate negotiations with
the Union. The facts, however, dictate otherwise. In this re-
gard, at the commencement of the strike when Palmer and other
Local 155 employees’ ceased work, there was no need to fill
the pcc oiler position, as the duties were not independently
required. Once the strike ended, the duties could be performed
as part of the responsibilities of the tour oiler position. Accord-
ingly, as certain oiler room employees were recalled after the
strike, the employee with the greatest seniority under the par-
ties’ recall agreement could adequately perform the duties of
the pcc oiler position.
Therefore, I find that the pcc oiler position was never elimi-
nated. Rather, the position was never filled during or after the
strike ended. Since the position was never eliminated, and
indeed still exists, there was no duty to notify and negotiate
with Local 155. Therefore, I recommend that the allegations in
paragraph 10 of the complaint be dismissed.
3. Subcontracting of the pulp mill
The General Counsel alleges in paragraph 11 of the com-
plaint that in or about July 2001, but without Local 18’s knowl-
edge until on or about November 14, Respondent unilaterally
subcontracted its pulp mill without prior notice or affording
Local 18 an opportunity to bargain with respect to the conduct

6 The term “tour oiler” is another name for “machine room oiler”.
The duties of “basement oiler” and machine room oiler are similar, but
they have separate work schedules and are separately considered in the
call-in procedures under the collective-bargaining agreement between
the Respondent and Local 155.
and the effects of this conduct.
The General Counsel principally relies on two cases in argu-
ing that Respondent has violated the Act as alleged in the com-
plaint. In American Cyanamid Co., 235 NLRB 1316 (1978),
enfd. 592 F.2d 356 (7th Cir. 1979), the Board, in a short-form
adoption, held that the employer violated Section 8(a)(1) and
(5) of the Act when, during an economic strike, it contracted
out unit maintenance and service work on a permanent basis
without notifying or bargaining with the union. The adminis-
trative law judge found that during an economic strike, and in
the midst of bargaining for a labor agreement, the employer
decided to permanently contract all of its maintenance and ser-
vice work, a decision affecting approximately 200 employees
or nearly half of the bargaining unit. In furtherance of this
decision, the employer, on January 9, 1976, made permanent an
existing temporary contract arrangement under which such
work was being performed and advised the Union of the elimi-
nation of those 200 jobs only after this was an accomplished
fact. In concluding that the Employer did not establish a busi-
ness justification for its subcontracting decision, the judge
found that the economic strike that was in progress was con-
verted into an unfair labor practice strike on January 9, 1976,
when the employer changed the temporary contract covering
the work to a permanent agreement.
In Fiberboard Paper Products Corp. v. NLRB, 379 U.S. 203
(1964), which predated American Cyanamid, the Supreme
Court held that the “replacement of employees in the existing
unit with those of an independent contractor to do the same
work under similar conditions of employment” was a manda-
tory subject of bargaining under Section 8(a)(1) and (5) of the
Act. That case, which did not involve a strike situation, in-
volved the contracting out of maintenance work after expiration
of a collective-bargaining agreement and for economic reasons,
without first bargaining with the Union. The maintenance work
in question continued to be performed in the plant by employ-
ees of the independent contractor instead of by employees of
the employer.
The Respondent contends that the General Counsel’s reli-
ance on the above two cases is misplaced, and argues that the
Supreme Courts decision in First National Maintenance Corp.,
452 U.S. 666 (1981), should be relied upon in finding that no
bargaining obligation exists. That case stands for the proposi-
tion that an employer which was engaged in the business of
providing housekeeping, cleaning, maintenance, and related
services for commercial customers was not required to bargain
over the decision to terminate a contract that permanently shut
down a part of its business for purely economic reasons. The
Court made a special effort to distinguish its holding in the case
from that of Fiberboard in concluding that the employer in
terminating the contract had no intention to replace the dis-
charged employees or to move the operation, the instant dispute
that led to the cancellation of the contract was solely over the
size of the management fee that the union had no control or
authority over and the union involved was certified long after
the economic difficulties arose and no issue was present regard-
ing the employer’s abrogation of ongoing negotiations or an
existing bargaining agreement. Likewise, the Court determined
that the actions of the employer did alter the company’s basic
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD288
operation and the reduction of labor costs was not at the base of
the employer’s decision to terminate the contract.
In the subject case, certain employees of Respondent com-
menced an economic strike on June 16, and effective October
15, permanent replacements were hired. Here, the Union was
the bargaining representative for many years before the pulp
mill was shut down. Additionally, negotiations were ongoing
and when the parties reached lawful impasse on June 15, the
collective-bargaining agreement was still in effect. Addition-
ally, the production of paper was not halted and improvements
were initiated while the pulp mill was shut down. Indeed, with
the purchase of the hardwood kraft pulp on the open market the
Respondent did not change the nature or direction of its busi-
ness operation, and the same paper products with identical
color and weight were produced using the same paper ma-
chines. See Bob’s Big Boy Family Restaurants, 264 NLRB
1369 (1982). Finally, Respondent did not terminate a portion
of its business; rather it replaced the union represented employ-
ees in the pulp mill by subcontracting for the purchase of hard-
wood kraft pulp for a period of time. Likewise, during the
entire time that hardwood kraft was purchased the Respondent
retained the equipment necessary to manufacture pulp and re-
opened the pulp mill in June 2003. It then commenced using
the retained equipment to manufacture its own pulp.
Based on the forgoing, and particularly noting that the pur-
chase of the hardwood kraft pulp did not alter the Respondent’s
basic operation and in part the closing of the pulp mill resulted
in a reduction of labor costs, I find that the issues in this case
are matters that are not particularly suitable for resolution under
a First National Maintenance Corp. analysis.
Long settled is the rule that an employer—at least absent an
economic strike—is obligated to bargain with the union before
it decides to subcontract. The basis for this requirement is that
subcontracting erodes the bargaining unit and is an “appropri-
ate” subject of bargaining.
In Hawaii Meat Co. v. NLRB, 321 F.2d 397 (9th Cir. 1963),
a case that preceded Fiberboard and American Cyanamid Co.,
the Court of Appeals determined that permanently contracting
out is authorized to enable the employer to continue operating
in an emergency situation thrust upon it by a strike.
In Land Air Delivery v. NLRB, 862 F.2d 354 (D.C. Cir.
1988), cert. denied 493 U.S. 810 (1989), enfg. 286 NLRB 1131
(1987), the Court of Appeals found that the employer violated
Section 8(a)(1) and (5) of the Act by permanently contracting
out bargaining unit work during the course of an economic
strike in the absence of notifying and bargaining with the union
because the decision was not motivated by economic necessity.
In this decision, the Court held that in its opinion the decision
of the U.S. Court of Appeals for the Ninth Circuit in Hawaii
Meat Co. stands for no more than the proposition that an em-
ployer may not be obliged to bargain with a union about per-
manent subcontracting7 during a strike when that subcontract-
ing is necessary to the business purpose of keeping the plant
continuously in operation and time of decision is of the essence.
In its line of cases concerning subcontracting during an eco-

7 The court took the term to mean subcontracting for an indefinite
future period not to terminate at the expiration of the strike.
nomic strike, the Board uses the phrase “business necessity” to
refer to decisions motivated by the desire to maintain business
operations during the course of a strike. See Elliott River
Tours, 246 NLRB 935 (1979) (board countenanced contracting
out for 2 years which exceeded the duration of the strike be-
cause the subcontractor demanded a long-term contract as a
condition for taking on the work), and Empire Terminal, 151
NLRB 1359 (1965), enfd. sub nom. Dallas General Drivers
Local 745 v. NLRB, 355 F.2d 842 (D.C. Cir. 1966) (an em-
ployer is not under a duty to bargain over temporary subcon-
tracting necessitated by a strike where the subcontracting did
not transcend the reasonable measures necessary in order to
maintain operations in such circumstances). In Shell Oil Co.,
149 NLRB 283, 285 (1964), the Board held that the respondent
was not under a duty to bargain over contracts let and com-
pleted in the course of the strike since this temporary subcon-
tracting necessitated by the strike did not transcend the reason-
able measures an employer may take in order to maintain op-
erations in such circumstances.
The General Counsel’s complaint in paragraph 11 does not
address whether the unilateral subcontracting of the pulp mill
was of a temporary or permanent nature.8 In evaluating
whether the actions of the Respondent were motivated by the
desire to maintain business operations during and after the
course of the strike, the facts leading up to the strike are in-
structive.
Respondent, based on their prior experience of enduring a
strike in 1996, developed a strike contingency plan coinciding
with the commencement of negotiations in May 2001. The
parties engaged in extensive bargaining between May 15 and
June 15, when they reached lawful impasse and the Respondent
implemented the last best contract offer that had been rejected
by the Union. There is no dispute that when the strike com-
menced on June 16 it was based on an inability to agree on
economic issues. The Respondent began an orderly shut down
of the pulp mill on June 15, but knew it could continue to
manufacture paper on one of its four paper machines for ap-
proximately a 1-month period using the 1000 tons of stored
pulp previously produced before the strike. As part of its con-
tingency plan, the Respondent was aware that the cost of hard-
wood kraft pulp on the open market was at historical low prices
and decided to purchase it in large quantities in order to remain
in business and supply its customers with paper products after it
exhausted its supply of stored pulp. In this regard, there was no
single subcontract for the purchase of hardwood kraft pulp.
Rather, the Respondent made periodic spot purchase orders
based on its operational needs relative to the duration of the
strike following the same practices as before the strike when it
purchased hardwood kraft pulp from preferred suppliers. At
the time this decision was made, the Respondent was uncertain
whether it would eventually be able to produce quantities of
paper at prestrike levels or whether the quality of its product
would be diminished in any manner.
Based on the forgoing, I find that when the Respondent initi-
ated the purchase of large quantities of hardwood kraft pulp in

8 The pulp mill was shut down for approximately 2 years commenc-
ing on June 15.
FINCH, PRUYN & CO. 289
or around the date of the strike and continued that practice until
early 2003, it did so in order to maintain its paper making op-
erations and was not undertaken because of union animus.9
Therefore, I find that the holdings of the Board discussed above
(temporary subcontracting) and the decisions of the United
States Court of Appeals in Hawaii Meat Co. and Land Air De-
livery (permanent subcontracting), privilege the Respondent’s
subcontracting in this case and relieve it of any obligation to
negotiate the subcontracting of the pulp mill and the purchase
of hardwood kraft pulp on the open market in order to remain
in business while countering the effects of an economic strike.
Accordingly, I recommend that the allegations in paragraph
11 of the complaint be dismissed.
The General Counsel opines that if a Fiberboard violation
cannot be established then the Board’s holding in Dubuque
Packing Co., 303 NLRB 386, 391 (1991), enfd. sub nom. Food
& Commercial Workers Local 150-A v. NLRB, 1 F.3d 24 (D.C.
Cir. 1993), should be followed in concluding that the subcon-
tracting herein is a mandatory subject of bargaining. In that
case, the Board recognized that an employer’s decision to relo-
cate bargaining unit work might be a mandatory subject of
collective bargaining:
Initially, the burden is on the General Counsel to establish that
the employer’s decision involved a relocation of unit work
unaccompanied by a basic change in the nature of the em-
ployer’s operation. If the General Counsel successfully car-
ries the burden in this regard, he will have established prima
facie that the employer’s relocation decision is a mandatory
subject of bargaining. At this juncture, the employer may pro-
duce evidence rebutting the prima facie case by establishing
that the work performed at the new location varies signifi-
cantly from the work performed at the former plant, establish-
ing that the work performed at the former plant is to be dis-
continued entirely and not moved to the new location or es-
tablishing that the employer’s decision involves a change in
the scope and direction of the enterprise. Alternatively, the
employer may proffer a defense to show by a preponderance
of the evidence: (1) that labor costs (direct and/or indirect
were not a factor in the decision or (2) that even if labor costs
were a factor in the decision, the union could not have offered
labor cost concessions that could have changed the em-
ployer’s decision to relocate.
Applying these guidelines to the subject case, I am not con-
vinced that the subcontracting of the pulp mill is covered under
the standards set forth above. In Dubuque, the analysis in-
volved a relocation of unit work from one location to another.
Here, the work was not relocated. Rather, a superior grade of
hardwood kraft pulp was purchased on the open market and
was used in place of the pulp previously manufactured by the
striking employees for the production of paper on the same
machines that previously were used prestrike. If others dis-
agree with this conclusion, I would still find that the Union was
not capable of offering labor cost concessions that could have

9 The complaint does not allege that the subcontracting was in any
way based on union animus or was violative of Sec. 8(a)(1) and (3) of
the Act.
changed the employer’s decision to subcontract the pulp mill
and purchase hardwood kraft pulp on the open market. In this
regard, the costs of the Union Main Agenda items presented at
the commencement of bargaining were in excess of $11 million
(R Exhs. 34 and 35). During the course of negotiations both
before and after the strike, there were minimal monetary con-
cessions offered by the Union. In fact, during the last substan-
tive negotiation session held on November 19, the Union still
insisted on an expensive pension enhancement proposal that
would have significantly increased the life annuity and health
care costs for retirees. Thus, at no time up to the date the strike
ended did the Union make any substantive economic proposals
to offset any of their proposed Main Agenda Items, never of-
fered direct or indirect labor cost concessions nor did they offer
the Respondent concessions on the difference that it was saving
in purchasing hardwood kraft pulp on the open market in com-
parison to producing its own pulp.
Accordingly, since the Union did not and could not have of-
fered labor cost concessions, I find that it would have been
unable to change the Respondent’s decision to purchase hard-
wood kraft pulp on the open market and therefore, the Respon-
dent had no obligation to negotiate over the subcontracting of
the pulp mill.10
4. Whether the economic strike converted
to an unfair labor practice strike
The General Counsel alleges in paragraph 12(c) of the com-
plaint that the economic strike was prolonged by the unfair
labor practices of Respondent in unilaterally subcontracting its
pulp mill without prior notice to or affording Local 18 an op-
portunity to bargain with respect to the conduct and the effects
of this conduct. The complaint alleges strike conversion with-
out knowledge by the strikers of the conduct later alleged to be
an unfair labor practice.
The Board has consistently held that an employer’s unfair la-
bor practices during an economic strike do not automatically
convert it into an unfair labor practice strike. Such conversion
would be found only when there is proof of a causal relationship
between the unfair labor practice and the prolongation of the
strike. Anchor Rome Mills, Inc., 86 NLRB 1120, 1122 (1949).
A strike that begins as a dispute over economic issues may
be converted to an unfair labor practice strike if the General
Counsel establishes that the “unlawful conduct was a factor
(not necessarily the sole or predominate one) that caused a
prolongation of the work stoppage.” C-Line Express, 292
NLRB 638 (1989), enf. denied on other grounds 873 F.2d 1150
(8th Cir. 1989). The Board will consider both objective and
subjective evidence in assessing whether the General Counsel
has met his burden:
Applying objective criteria, the Board and reviewing court
may properly consider the probable impact of the type of un-
fair labor practice in question on reasonable strikers in the

10 Contrary to the General Counsel and Charging Party’s argument in
brief that the Union has the capability of offering the Respondent sig-
nificant cost savings by agreeing to work for minimum wages and
reduced benefits, LaBrum publicly stated on August 30 that, “Our
people aren’t going to go back for less than what they were making
before the strike.” (R. Exh. 9.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD290
relevant context. Applying subjective criteria, the Board and
court may give substantial weight to the strikers’ own charac-
terization of their motive for continuing to strike after the un-
fair labor practice. [Id., quoting Soule Glass Co. v. NLRB,
652 F.2d 1055, 1080 (1st Cir. 1980).]
The General Counsel concedes that Local 18 did not learn
about the subcontracting of the pulp mill until November 14.11
Moreover, there is no dispute that the Union did not make a
request to negotiate over the purchase of hardwood kraft pulp
or the refusal of the Respondent to reopen the pulp mill. Like-
wise, the record does not support the position that when Locals
18 and Local 155 finalized their strike vote, the subcontracting
of the pulp mill was discussed or was the underlying reason for
the strike. Rather, the sole reason the employees voted for a
strike was the Union’s staunch opposition to the economic con-
cessions sought by the Respondent. From the inception of the
strike on June 16, until the first substantive negotiation session
on September 26, the Union did not proffer any major eco-
nomic concessions. The record does not contain nor was any
evidence presented that the purchase of hardwood kraft pulp,
which was open and notorious by September 26 was one of the
reasons that the strike was prolonged. Indeed, according to the
General Counsel’s complaint it was not possible for the Union
to have asserted that the strike was prolonged by the subcon-
tracting of the pulp mill before November 14, since the Re-
spondent did not officially inform the Union of this fact until
that date. Even in the bargaining sessions held on November
13 and 19, the Union never asserted that the strike was pro-
longed based on the subcontracting of the pulp mill. Finally,
the Union presented no evidence between November 14 and the
end of the strike on November 21, that the subcontracting of the
pulp mill prolonged the strike. It is also noted that the Union
did not file the third amended charge until May 6, 2002, that
alleged the conduct of subcontracting the pulp mill violated the
Act and the strike converted to an unfair labor practice strike
retroactively to July 2001, when the initial purchases of hard-
wood kraft pulp were made. This was a period nearly 6 months
after the 5-year contracts and striker recall agreements had been
negotiated and approximately 10 months after the alleged strike
conversion in the absence of knowledge. Mercedes Benz of

11 The Respondent did not officially inform the Union of the subcon-
tracting of the pulp mill until that date. Unofficially, Union Chief
Negotiator Robert LaBrum admitted that newspaper articles in June,
July, and August 2001, specifically discussed Respondent’s purchase of
hardwood kraft pulp on the open market (GC Exhs. 15 and 16, R. Exh.
10) and its use in the manufacture of paper on the same paper machines
as prestrike. Likewise, the Local 18 Union President testified that at no
time during negotiations did Local 18 ever tell the Employer that if
Local 18 had known about the status of the pulp mill, it would have
ended the strike sooner. Thus, I reject the General Counsel’s argument
that had the Respondent notified the Union about the subcontracting, it
might have abruptly ended what evolved into a long-term strike before
the Employer permanently replaced its work force. In that regard, the
Union was notified in advance of the Respondent’s decision to hire
permanent replacements yet it made no movement to end the strike
during the approximately 1-month period between October 15 and
November 14 when the hiring of permanent replacements was com-
pleted.
Orlando Park, 333 NLRB 1017, 1053 (2001) (the test is
whether employees knew about the employer’s conduct and
sought to strike in protest of it).
Based on the forgoing, and particularly noting my above
finding that there was no obligation for the Respondent to ne-
gotiate over the subcontracting of the pulp mill, I find that the
evidence overwhelmingly supports both subjectively and objec-
tively that the strike began as an economic strike and did not
convert at any time subsequent to the strike’s inception.
The General Counsel asserts in paragraph 12(a) of the com-
plaint that at all material times from on or about May 14
through November 21, Local 18 and Local 155 bargained
jointly with Respondent for the purpose of negotiating their
individual collective-bargaining agreements that were executed
on November 24.
The Respondent, while denying the above assertions, ex-
plains that, at times, it bargained simultaneously with seven
local unions including Local 18 and Local 155 but never bar-
gained jointly with any of the union’s.
The General Counsel argues, under its theory of joint bar-
gaining between Local 18 and Local 155, that when the eco-
nomic strike converted to an unfair labor practice strike both
Locals were impacted and therefore became unfair labor prac-
tice strikers with rights to reinstatement once they made uncon-
ditional offers to return to work.12
The Respondent vigorously denies this assertion and argues
that any strike conversion which might have occurred, could
only have been operative to Local 18 as they were the affected
employees in the pulp mill and not to the separate unit of unaf-
fected Local 155 represented employees.
I reject the General Counsel’s theory of the case for the fol-
lowing reasons. First, as found above, I have determined that the
strike which commenced on June 16 started and remained at all
times an economic strike and never converted to an unfair labor
practice strike. Second, in order to buttress the proposition of
joint bargaining between Local 18 and Local 155, the General
Counsel points to the historical practice of pooled voting engaged
in by both Locals when undertaking strike and ratification
votes.13 The fallacy in this argument is revealed in Chief Union
Negotiator LaBrum’s testimony wherein he admits that he was
not aware of any written document regarding joint bargaining
and none was provided to the Respondent prior to the com-
mencement of bargaining on May 14, he never informed the
other five unions that Local 18 and 155 would be engaging in
joint bargaining, he never orally informed Respondent negotia-
tors that Local 18 and 155 would be engaging in joint bargaining,
he never orally informed Respondent negotiators about the prac-
tice of pooled voting nor did he put in writing or send the Em-

12 The Union, at no time before or after the strike ended, made an
oral or written offer to unconditionally return to work.
13 The procedure of pooled voting consisted of separate votes being
taken by both Locals and then the votes were pooled giving a united
tabulation. In the subject case, because Local 18 had a larger member-
ship then Local 155, they could control the results of the vote regarding
strike or ratification issues and Local 155 would be bound.
FINCH, PRUYN & CO. 291
ployer a letter to this effect.14 Union Negotiator Michael Scarsel-
letta also testified in the proceeding and agreed with the admis-
sions of LaBrum. Further, LaBrum admitted that separate bar-
gaining agendas for Local 18 and Local 155 were submitted to
the Respondent at the inception of negotiations, that each Local
union received a last best contract offer that was independently
considered, and thereafter separate collective-bargaining agree-
ments were executed with the Respondent.
For all of the above reasons, I reject the General Counsel’s
position that Local 18 and Local 155 were engaged in joint
bargaining to sustain their argument that Local 155 employees
became unfair labor practice strikers similar to Local 18 mem-
bers who were employed in the pulp mill and were not notified
about nor permitted to negotiate over the Respondent’s pur-
chase of hardwood kraft pulp at the inception of the strike.
C. The 8(a)(1) and (3) Allegations
1. Elimination of the pcc oiler classification
The General Counsel alleges that the elimination of the pcc
oiler classification was not only undertaken without notice and
bargaining with Local 155, but was also eliminated because of
union animus.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the in-
ference that protected conduct was a “motivating factor” in the
employer decision. On such a showing, the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The United
States Supreme Court approved and adopted the Board’s
Wright Line test in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1983). In Manno Electric, 321
NLRB 278 fn. 12 (1996), the Board restated the test as follows.
The General Counsel has the burden to persuade that antiunion
sentiment was a substantial or motivating factor in the chal-
lenged employer decision. The burden of persuasion then shifts
to the employer to prove its affirmative defense that it would
have taken the same action even if the employee had not en-
gaged in the protected activity.
I am not persuaded under Wright Line, that the General
Counsel has made a strong showing that the Respondent was
motivated by antiunion considerations when it allegedly elimi-
nated the pcc oiler classification.
In May 1997, the Respondent suspended Local 155 em-
ployee Bernard Palmer for a period of four months because he
allegedly engaged in acts of sabotage by shutting down a valve
to the head box causing the flow of papermaking fiber to be
interrupted and the machine to stop operations. Local 155 filed
a grievance over the suspension, which ultimately was referred
to arbitration. The arbitrator held that the suspension was not
for just cause and awarded backpay and loss of seniority during

14 I also note that no reference to pooled voting was contained in
LaBrum’s pretrial affidavit provided to the General Counsel prior to the
issuance of the complaint.
the period Palmer was out of work (GC Exh. 64). The Respon-
dent abided by the arbitration award and placed Palmer in the
position of a pcc oiler that was responsible for lubricating cer-
tain valves in a particular portion of the mill. Palmer credibly
testified that while he was paid a salary commensurate with
other full-time Local 155 employees who were classified as
basement or machine room oilers, his job responsibilities only
took him approximately 1 hour per day. Palmer also acknowl-
edged that after he returned to work from the 1996 strike, he
was classified as a basement oiler and performed the duties and
responsibilities of that position in addition to handling the du-
ties of the pcc oiler job that took approximately 10 percent of
his time.
The evidence confirms that the position of the pcc oiler
never existed in the mill until the Respondent assigned Palmer
to the job after the arbitrator determined that his suspension
was not for just cause. Palmer was placed in that position not
because of union animus but due to the Respondent’s continued
concern that he had engaged in acts of sabotage and they did
not want to return Palmer to that section of the mill where the
alleged acts occurred. Significantly, Local 155 never protested
or filed a grievance over Palmer’s placement in the pcc oiler
position after the issuance of the arbitrator’s decision. The
Respondent argues that while the pcc oiler classification still
exists it determined not to fill the position during the strike.
After the strike ended the duties could be performed more effi-
ciently by tour oilers who possessed the same skills. Indeed, as
of the date of the hearing, the pcc oiler position has not been
independently filled.
The General Counsel alleges that the Respondent still har-
bored animus against Palmer due to the arbitration and his ser-
vice as Local 155 president between 1993 and 1997. First, as I
previously found earlier in the decision, the pcc oiler position
has not been eliminated. In this regard, at the commencement
of the strike when Palmer and other Local 155 employees’
ceased work, there was no need to fill the pcc oiler position, as
the duties were not required. Once the strike ended, the pcc
oiler duties could be performed as part of the responsibilities of
the tour oiler position. Accordingly, as certain oiler room em-
ployees were recalled after the strike, the employee with the
greatest seniority under the parties’ recall agreement could
adequately perform the duties of the pcc oiler position. Thus,
the General Counsel has not established that the pcc oiler posi-
tion has been eliminated nor have they proved that Palmer was
placed in the pcc oiler position because of his union activities.
Therefore, contrary to the General Counsel, I find that the
pcc oiler position still exists but has not been filled since the
strike ended due to legitimate business reasons unrelated to any
union activities of Local 155.
Therefore, I recommend that the portion of the General
Counsel’s complaint that alleges that the pcc oiler position was
eliminated because of union animus be dismissed.
2. Refusal to recall Bernard Palmer
The General Counsel alleges in paragraph 13(c) of the com-
plaint that the Respondent failed to recall striker Bernard
Palmer to an available oiler position because of his union ac-
tivities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD292
As discussed above I am not persuaded under Wright Line
that the General Counsel has made a strong showing that the
Respondent was motivated by antiunion considerations in
originally assigning Palmer to the pcc oiler position. Likewise,
I am not convinced that the reason Palmer was not recalled to
the available oiler position in January 2002 was due to his un-
ion activities.
In this regard, although Palmer testified that he had more sen-
iority then coworker Peter Peceu who was recalled to the vacant
machine oiler position in January 2002, Palmer admitted that
Peceu was listed ahead of him on the updated June 13 Depart-
ment Seniority list and the machine oiler schedule. Local 155
Secretary/Treasurer Ronald Gates testified that Peceu was the
most senior laid-off worker on the prestrike department seniority
list and the machine oiler schedule and in accordance with those
schedules he was recalled ahead of Palmer (GC Exh. 90).
On November 26, Local 155 and the Respondent negotiated
a recall procedure that governed the recall rights of “unrein-
stated strikers” regarding the strike (GC Exh. 7).15 The Respon-
dent, in accordance with that schedule, determined that Peceu
was the senior machine room oiler on the Department Seniority
list and he was recalled ahead of Palmer. While the General
Counsel alleges that Palmer is senior to Peceu (GC Exh. 12),
and should have been recalled first to the vacant machine room
oiler position, this argument is nothing more then a differing
and arguable interpretation over the meaning of the recall
agreement. Indeed, both Palmer and Gates agree that if the
department seniority list and the machine oiler schedule are
relied on for the recall of the most senior oiler, then Peceu
should have been recalled in January 2002. In any event, the
parties differing and arguable interpretation of the recall
agreement does not rise to the level of an unfair labor practice.
Moreover, as discussed above, I am not convinced that Palmer
was originally placed in the pcc oiler position because of his
union activities nor am I persuaded that Palmer was not re-
called to the vacant oiler position in January 2002, because of
union animus. Rather, I find that the Respondent followed the
parties’ recall agreement when selecting Peceu (a coworker,
union member and striker) as the most senior oiler to the avail-
able vacant machine room oiler position. Notably, Local 155
did not file a grievance contesting their interpretation of the
recall agreement.
For all of the above reasons, I recommend that paragraph
13(c) of the complaint be dismissed.
3. Refusal to reinstate some of the strikers
The General Counsel alleges in paragraph 12(f) of the com-
plaint that the Respondent has failed and refused to reinstate
some of the striking employees, and has delayed the reinstate-
ment of other striking employees to their former positions of
employment due to their union activities.
Based on my finding above that the June 16 strike commenced
and remained at all material times an economic strike, I am un-

15 The recall agreement at II(C) states in pertinent part: “The up-
dated Department Seniority list dated June 13, 2001 and, where appro-
priate, the last permanent department schedule will be used to identify
the senior qualified employee to fill the permanent vacancy.”
able to find that the striking employees were delayed or not rein-
stated to their former positions of employment due to their union
activities. Rather, I find that the Respondent properly recalled
unreinstated economic strikers in accordance with the negotiated
November 26 recall agreements (GC Exhs. 6 and 7).
Therefore, I recommend that paragraph 12(f) of the com-
plaint be dismissed.
D. Respondent’s Affirmative Defenses
1. The allegations in paragraph 11 of the
complaint are time barred
The Respondent contends that the General Counsel’s allega-
tion in paragraph 11(a) of the complaint is barred by the statute
of limitations in section 10(b) of the Act. The complaint al-
leges that the Union did not become aware of the subcontract-
ing of the pulp mill until November 14, thus making the third
amended charge in Case 3–CA–23461–1 filed on May 6, 2002,
timely filed within 6 months of the Union learning of the
unlawful conduct. Contrary to this position, the Respondent
argues that the Union was aware as early as June and July 2001
through newspaper articles that it had contracted to purchase
pulp on the open market and accordingly, the third amended
charge is untimely filed.
I am not persuaded that notification through the newspaper
satisfies the Respondent’s obligation to give notice to a collec-
tive-bargaining representative when changes in conditions of
employment are contemplated. The record confirms that it was
not until the November 13 collective-bargaining meeting and
reaffirmed in writing on November 14 (GC Exh. 37) that the
Respondent informed the Union that the pulp mill would be
shut down for the foreseeable future and hardwood kraft pulp
was being purchased on the open market.16
Therefore, while the alleged violation of subcontracting the
pulp mill took place more than 6 months before the filing of the
third amended charge, the union did not have official notice of
the subcontracting until a date within the 6-month period. The
limitation period does not begin to run until the party filing the
charge knows that an unfair labor practice has occurred. See
NLRB v. Electrical Workers, 827 F.2d 530, 533 (9th Cir. 1987).
Under these circumstances, the Respondent’s argument that
the third amended charge filed on May 6, 2002, was untimely
filed is rejected.
2. The hiring of permanent replacements
The Respondent contends that they lawfully hired permanent
replacements before November 14, the date the General Coun-
sel claims that Local 18 had knowledge of the subcontracting of
the pulp mill as alleged in paragraph 11 of the complaint.
The Union argues that the hiring of the permanent replace-
ments commencing on October 15 prolonged the economic
strike and converted it into an unfair labor practice strike. Ad-
ditionally, the Union asserts that the Respondent hired the per-

16 Contrary to Respondent’s argument in brief, I do not find that their
October 4 letter addressed only to employees concerning the terms of a
last-best contract offer and questions and answers regarding their status
during an economic strike serves as notice to the Union when changing
conditions of employment (GC Exh. 35).
FINCH, PRUYN & CO. 293
manent replacements in such a way as to mislead it, and there-
fore contests the legitimacy of their hire. At trial, I rejected this
argument but permitted the Union to make an offer of proof.
The only portion of the General Counsel’s complaint that
references permanent replacements is found in paragraph
12(d).17 It is, however, the allegations in paragraph 12(c) of the
complaint that assert the strike was prolonged by the subcon-
tracting of the pulp mill rather then the hiring of permanent
replacements. Indeed, at no place in the complaint, does the
General Counsel allege that the Respondent’s hiring of perma-
nent replacements violated either Section 8(a)(1), (3), or (5) of
the Act. Thus, I find that the Union is foreclosed from attempt-
ing to expand the parameters of the General Counsel’s com-
plaint. Since the complaint does not allege that the hiring of
permanent replacement violated the Act in any manner, no such
finding will be made. Kimtruss Corp., 305 NLRB 710, 711
(1991) (the charging party cannot enlarge upon or change the
General Counsel’s theory of the case). Lastly, I note that the
Union withdrew the identical allegation in the May 6, 2002,
amended charge that alleged since October 15, the Employer
misrepresented the status of replacement employees and
thereby terminated the employment of striking employees (CP
Exh. 2(c)).
The Union further argues that the Respondent’s replacement
of a union-security provision in the proposed contract with the
maintenance of membership clause at the November 13 collec-
tive-bargaining session prolonged the economic strike and con-
verted it into an unfair labor practice strike (R. Exh. 42). As
with the Union’s argument regarding permanent replacements,
I also rejected testimony on this subject but permitted the Un-
ion to argue their position in brief. Once again, I find that the
Union is attempting to expand the parameters of the General
Counsel’s complaint that does not allege the economic strike
was prolonged based on Respondent’s maintenance of member-
ship proposal made during collective bargaining. I also note
that the Union was presented with a last best contract offer on
November 13 that included the maintenance of membership
proposal which it initially rejected on November 19, but after
reconsideration it was accepted, and the strike ended on No-
vember 21. Thus, for this additional reason, I reject the Un-

17 Par. 12(d) alleges: At the time that the strike described above in
par. 12(b) converted to an unfair labor practice strike, Respondent had
not permanently replaced the striking employees.
ion’s position that the strike was prolonged because of the
maintenance of membership provision. Further, in the General
Counsel’s letters dated January 30 and May 28, 2002, that ad-
dressed the Union’s appeal and reconsideration of allegations
of bad faith bargaining both before and after June 15, no find-
ing of bad-faith bargaining was made by the General Counsel
(GC Exh. 1).
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.
3. Respondent violated Section 8(a)(1) and (5) of the Act by
its refusal to bargain in good faith with the Union in an attempt
to reach an accommodation of interests in response to the Un-
ion’s request for relevant information that the Respondent con-
siders confidential.
4. Respondent did not eliminate the pcc oiler classification
and therefore, did not violate Section 8(a)(1) and (5) of the Act.
5. Respondent had no obligation to negotiate over the sub-
contracting of its pulp mill and therefore, did not violate Sec-
tion 8(a)(1) and (5) of the Act.
6. The Union did not bargain jointly with Respondent for the
purpose of negotiating the parties’ collective-bargaining
agreement.
7. The economic strike that commenced on June 16, 2001,
was not prolonged by the Respondent’s subcontracting of the
pulp mill nor did it convert to an unfair labor practice strike.
8. Respondent did not engage in violations of Section 8(a)(1)
and (3) of the Act by refusing or delaying the reinstatement of
striking employees to their former positions.
9. Respondent did not engage in violations of Section 8(a)(1)
and (3) of the Act by eliminating the pcc oiler classification or
failing to recall striker Bernard Palmer to an available oiler
position.
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.
[Recommended Order omitted from publication.]