Forest Grove Lumber Co.

National Labor Relations Board - Board Decisions

Jul 8, 1985

275 N.L.R.B. 1007 (N.L.R.B. 1985)

FOREST GROVE LUMBER CO. 1007
Forest Grove Lumber Company and Local 2845,
Lumber , Production and, Industrial Workers.
Cases 36-CA-4559 and 36-CA-4594
8 July 1985 -
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 9 January 1985 Administrative Law Judge
Russell L. Stevens issued the attached decision.
The Charging Party and the General Counsel each
filed exceptions and a supporting brief, and the Re-
spondent filed an answering brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended
Order. I
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Forest
Grove Lumber Company, Forest Grove, Oregon,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
' The judge concluded, and we agree, that no causal connection has
been established between the Respondent's unlawful conduct and the pro-
longation of the strike We reject the argument in the exceptions that the
-Respondent's direct dealing with its employees necessarily prolonged the
Charging Party's economic strike and converted it to an unfair labor
practice strike Contrary to the Charging Party and the General Counsel,
we find Safeway Trails, Inc, 233 NLRB 1078 (1977), enfd 641 F 2d 930
(D C Cir 1979), cert denied 444 U S 1072 ( 1980), distinguishable from
the present case Thus, Safeway Trails involved the factual context of an
egregious effort by the employer to obtain the employees' repudiation of
their union representative as a precondition to revoking a collective-bar-
gaining agreement Consequently, the unlawful conduct in Safeway Trails
clearly intruded on the bargaining process and "could not help but" pro-
long the strike In contrast, the Respondent's unlawful conduct here in-
volved solicitation of employees to urge their representatives to soften
the Union's bargaining demands, and there was no effort to repudiate
those bargaining representatives The unfair labor practices here did not
have any inevitable impact on bargaining that would necessarily cause
prolongation of the strike
Additionally, in adopting the judge's conclusion, we find it unnecessary
to pass on his reliance on Soule Glass & Glazing Co Y NLRB, 652 F 2d
1055 (1st Cir 1981), denying enf in pertinent part to 246 NLRB 792
(1979)
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge. This
case was tried in Portland, Oregon,. on October 16,
1984.' The charge in Case 36-CA-4559 was filed on
September 23 by Local 2845, Lumber, Production and
' All dates hereinafter are within 1983, unless otherwise stated
Industrial Workers (Union).2 The charge in Case 36-
CA-4594 was filed by the Union on November 4. By
order dated June 22, 1984, the Regional Director for
Region 19 , National Labor Relations Board , consolidated
the two cases for trial , and issued a_ consolidated com-
plaint3 ' alleging that Forest Grove ' Lumber Company
(Respondent) violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act (Act). -
All parties were given full opportunity to participate,
to introduce relevant evidence , to examine and cross-ex-
amine witnesses , to argue orally , and to file briefs. Briefs,
which have been carefully considered , were filed on
behalf of the General Counsel and Respondent.
On the entire record , and from my observation of the
witnesses - and their demeanor , I make the following
FINDINGS OF FACT -
I. JURISDICTION
Respondent is an Oregon corporation, with an office
and place of business in Forest Grove, Oregon, where it
is engaged in the business of operating a sawmill. -
During the past 12 months, which period is representa-
tive of all times material herein, in the course and con-
duct of its business operations, Respondent had gross
sales of goods and services' valued at in excess $500,000;
sold and shipped goods or provided services from its fa-
cilities within the State of Oregon to customers outside
the State or sold and shipped goods or provided services
to customers within the State, which customers were en-
gaged in interstate comnierce by other than indirect
means, of a total value in excess of $50,000; and pur-
chased and caused to be transferred and delivered to its
facilities within the State of Oregon'goods and materials
valued at in excess of $50,000 directly from sources out-
side the State, or from suppliers within the State which
in turn obtained such goods and materials directly from
-sources outside the State.
I find that Respondent is, and at all times material has
been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The Union is, and at all times material herein has been,
a labor organization within the meaning of Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background4
Respondent 's mill is a specialty sawmill, established
prior to 1957. In that year the mill was purchased by
Carl Burnard and Emanuel Link. Carl Burnard has man-
aged -the mill since 1957. In 1978 all outstanding corpo-
rate stock was purchased by Carl Burnard and his two
sons, Tom and Robert (Jack). The mill is an old one,
with limited capacity to handle logs. Only one shift is
2 By letter dated November 7, addressed to Respondent's attorney, the
8(a)(3) allegation of this charge -was dismissed
3 The. complaint was amended at trial to add a Sec 7(e), with my
leave
4 This background summary is based upon credited testimony and evi-
dence not in dispute
275 NLRB No. 144
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
used , from 8 a.m.-to 5 p.m. The unit has approximately
55 employees. Jack Burnard is vice president of Re-
spondent, and is sales and office manager. He is in
charge of Respondent 's labor relations.
Respondent has had collective-bargaining agreements
with the Union since 1957. During that time, until the
present controversy, only two or three minor grievances
each year have been filed by the Union, and there have
been no strikes. In February and March 1983 Jack Bur-
nard talked with David Asivido, who is employed by the
Timber Operators Council (Council), which- acts as a
labor consultant and representative for approximately
450 members, both union and nonunion: The Council
principally deals with two unions, i.e., Local 2845 and
International Woodworkers of America (IWA). Jack
Burnard asked Asivido what the Council could do for
Respondent so far as labor matters were concerned. Jack
indicated that, although he had negotiated past contracts
with the Union, he was not sure he would be able to do
so in 1983. In past years Respondent had adopted the in-
dustry pattern settlement, but Jack was uncertain as to
whether or not he could do the same in 1983. At that
time Respondent was experiencing economic difficulties.
Respondent joined the Council in April, as a member.
In the past, the Union and IWA have negotiated with
the major employers in the Union, and reached pattern
settlements . Thereafter, those settlement agreements
were presented to smaller employers for possible accept-
ance and signature. Some smaller plants have executed
agreements that ,- have differed somewhat from pattern
settlements . The 1983 settlement agreement was reached
with the "Big 7" employers on Sunday evening, June 5
and was signed June 6. The.agreement was ratified by all
employees in late June.
J. L. Perrizo is executive secretary of the Union, and
has bargained with Respondent approximately 14 years.
In late June he asked Jack if he was aware that the' in-
dustry pattern agreement had been reached. Jack said he
was, but did not know what the terms and conditions
were. Perrizo mailed a copy of the agreement to Jack,
who said in mid-July that he needed more time to study
it. In late July, Perrizo again talked with Jack and they
agreed to meet August 9 to discuss the agreement. They
met as scheduled and discussed several matters, including
pensions.
Sometime prior to August 26, Jack called Perrizo on
the telephone and read to him the following proposal:
FOREST GROVE LUMBER COMPANY
CONTRACT PROPOSAL
AUGUST 26, 1983
Forest Grove Lumber Company's objective
during contract negotiations is to arrive at a mutual-
ly satisfactory contract that will allow the Compa-
ny to be more competitive and hopefully, provide
greater job security for our employees.
We propose the following changes:
(1) $1.85/hour wage cut across board.
(2) Entry level salary new employees only $6.50.
(3) Eliminate 3 floating holidays, Friday after
Thanksgiving, December 24 and December 31.
(4) Reinstate day before and day after require-
ment on holiday eligibility.
.(5) Eliminate 2nd sentence Article IX (Promo-
tions) Part A.
(6) Eliminate vacation increment pay.
(7) Vacation benefits to be ^ based on hours work-
ed, not compensable,hours
(8) Restore 1200 hour requirements for vacation
credit.
(9) Vacation rate of pay based on rate of pay
from May 31 not June 1. -
(10) No overtime pay for Sunday if regular shift
falls on that day. -
Perrizo and Burnard met on August 26 to discuss Re-
spondent's proposal, but they reached no agreement. The
proposal was not acceptable to the Union. Perrizo told
Jack that, if the proposal was Respondent's final one, the
Union probably would call a strike. Perrizo called Jack
on the telephone again on August 27, but there was no
change in the position of either side. On August 28 Per-
rizo again talked with Jack, and told him the Union
would extend the existing agreement for a year, with the
stipulation that the parties would continue to negotiate
without a strike until it was mutually agreed that they
were at impasse. Respondent did not agree. The employ-
ees went out on strike August 30.
Respondent and the Union met with a Federal media=
tor on September 15, but no agreement was reached.
The parties met again with a Federal mediator on Sep-
tember 28, and Respondent presented a new proposal, as
follows:
(1) $1.50/hour wage cut across board.
(2) Entry level salary new employees only $7.00.
(3) Eliminate 3 floating holidays, Friday after
Thanksgiving, December 24 and December 31. .
(4) Reinstitute day before and day after require-
ment on holiday eligibility.
(5) Eliminate 2nd sentence Article IX (Promo-
tions) Part A with respect to key jobs. Employer
agrees to implement training program key jobs.
(6) Eliminate vacation increment pay.
(7) Vacation benefits to be based on, hours
worked, not compensable hours.
(8) Restore 1200 hour requirements for vacation
credit.
(9) Vacation rate of pay based on rate of pay
from May 31 not June 1.
(10) No overtime pay for Sunday if regular shift
falls on that day.
(11) The Company agrees to pay increased con-
tributions required to remain a participating em-
ployer in the LPIW-TOC Health and Welfare Plan.
(12) The Company agrees to pay contributions
required to remain a participating employer in the
Lumber Employer and LPIW Pension Trust.
(13) The Company agrees to discuss implementa-
tion of a profit sharing program.
(14) The Company guarantees a minimum of 4
days per week employment until, January 1, 1984,
except in the case of breakdown or bad weather.
FOREST GROVE LUMBER CO.
The parties were not able to agree, and on September 29
Respondent wrote to the Union, as follows:
September 29, 1983
Mr. Jim Bledsoe
Western Council of
Lumber Production & Industrial Workers
721, S. W. Oak
Portland, Oregon 97205
Dear Mr. Bledsoe:
Unfortunately, . it is now obvious to us that our
negotiations are hopelessly deadlocked . We had sin-
cerely hoped that the Company's counter proposal
presented to the Union during our meeting of Sep-
tember 28 , 1983 would provide a basis to reach an
agreement . It is our understanding that the Union
informed the mediator that our proposal is unac-
ceptable and the Union has nothing further to offer.
Accordingly, we wish to advise the Union that
our proposal of September 28, 1983 is our final
offer. Further, we intend to implement this offer ef-
fective October 6, 1983:
Sincerely,
Forest Grove Lumber Company,
s/ Jack Burnard
Jack Burnard
Vice President
The Union did.not reply to the letter. On October 1 Re-
spondent wrote a letter to all employees , enclosed a
copy of Respondent's proposal of September 28, advised
'of the apparent impasse, advised that Respondent would
begin operations , and advised that Respondent "will
begin hiring replacements."
On September 12, 1984, Perrizo wrote a letter to Bur-
nard:5
As you know, the Union is the exclusive bargain-
ing representative of your employees. On behalf of
the Union, I hereby demand that you timely dis-
close the precise terms and conditions of employ-
ment currently in force and effect for all employees
working for Forest Grove Lumber Company. Ac-
cordingly, I expect your prompt reply concerning
not only the current wage rates being paid to the
various employees, but also all other terms and con-
ditions of employment which are in effect as well.
Respondent sent to Pernzo the information he requested,
together with a copy of the parties' expired contract and
a copy of Respondent 's last proposal for a new contract.
A. Alleged Bypassing of the Union and Dealing
Directly With Unit Employees
Paragraph 7 of the complaint alleges that , on several
occasions in September and on one occasion in October,
Respondent bypassed the Union and dealt directly with
unit employees.
5 Of the unit's approximately 55 employees, all-except 3 presently are
out on strike
1009
1. Phillip Vandehey , a striking unit employee who was
paid $10. 19 per hour when he went on strike August 30,
testified that he talked with Jack Burnard within 2 weeks
after the the strike started ,. prior to Respondent 's second
proposal to the Union, at the strike line. He said employ-
ee Mike Herrinckx was present and that four strikers
were on the line at that time . He said Jack Burnard came
from the office to the strike . line, and:
Well, Jack Burnard came across from the office
and over to the strike line. I asked him how negoti-
ations were faring and he said that the negotiations
weren't going well. He says the union refused to ne-
gotiate with - the company.
I mentioned to him that I could see why. I said
they were asking for too many things . In particular
I I. mentioned . that I thought that I could take a pay
cut and it wouldn't actually hurt me so much, but I
thought that in reference to a few of the other
things that were on there , one was seniority pertain-
ing to being able to bid for jobs and also the six
paid holidays , I thought that was just too much to
take away , you know, from the people.
'Jack came back to me and he said not to worry
about this . He says this proposal 's not a firm pro-
posal . He says everything on this proposal is negoti-
able. But, he says , this something that-he says we
do and the union does, he says , by asking for more
than what you want, he says, we can , come to a
mutual agreement , you know , something that both
the company and the union can- agree with. He
didn 't mention anything one way or the other about
what the proposals that he was willing to make
were, but he did say that the union refused to nego-
tiate and they would only go with the industry set-
tlement and that was all. He said by the union refus-
ing to negotiate, he says , the only people it hurts is
you men who are -. out on strike. He says it doesn't
hurt Jay Perrizo or Jim Bledsoe. He says they're
going to get paid no matter what. He said they
have their jobs and no matter if the strike gets over
with or not, he said they will get paid.
He also told us that he thought that we should
get some of the men together and try to get some-
thing going as far as settling this strike. I told Jack,
I says I don 't think we-the union does our negotia-
tions for us, I don 't think that we actually have a
say-so in the matter . You know, we more or less
kind of gave them our negotiating power . He says,
well, you'd better get together with your union rep-
resentatives and tell them that you want them to
take some of these proposals . Otherwise, he says, I
don't see any end to the strike.
A week later, Vandehey stated , Jack Burnard again came
to the strike line: '
... he told us that negotiations were still at a stale-
mate, that things haven't - changed too much since
the last time that he talked to us . He said that he
could not-if we'd ever be going back to work.
That was pretty close to the gist of the conversa-
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. We had a little bit of small talk after that, then
he took•off out into the yard.
Jack Burnard testified that he talked with picketers
almost daily, and, that, on most occasions, the picketers
initiated the conversations. He said picketers asked him
about specific items in Respondent's proposal and he ex-
plained them, but said- he' never tried--to deal directly
with employees, nor did he solicit any bargaining ideas
from them, nor did he offer employees any terms differ-
ent from those in Respondent's proposal. He said he had
been instructed by Asivido to be very careful in his con-
versations, with, strikers, and that he -was careful. Jack
denied: ever telling employees that if they listened to the
Union they would have to remain out on strike;. or that
the Union was not helping the employees; or that he so-
licited employees for contract changes; or. that he told
Vandehey to get employees together and try to settle the
dispute; or that he told Vandehey that if the Union did
not change its position there would be no work avail-
able; or asking -employees why they listened only to the
Union. Relative to Vandehey, Jack Burnard testified:
I- remember Phil Vandehey was one. I remember
on ne specific occasion he was one that asked me,
well, how about a dollar, you know, would a dollar
be enough. David had warned me-that I might have
a striker or somebody else try and entrap me in a
situation where I would say, well, okay, $1.35
would be better, or something like that. So, I was
very careful about responding to that and said our
figures have"'shown that $1.85 is about where we
need to be, but we've indicated to the-union that
these matters are negotiable; and, basically, "in each
instance tried to get them, if they were interested in
doing something, to steer those kind of comments
to the union.
2. Clifford Christensen , a striking unit `employee, paid
$10.59 per hour when ' the 'strike started , testified that he
talked with Jack Burnard seven - or eight times in Sep-
tember concerning contract negotiations.; During the first
conversation , Christensen testified , some windows of the
mill had been broken and: -
Jack said , well, if we 'd settle this , we wouldn't-
this kind of 'Stuff wouldn't happen . I told him, no, if
we settled it,'it probably wouldn 't. Jack ` says, well,
you- ought ` to listen a little more to the' company
and less to ' the- union ' and maybe we ,can get this
thing settled . - Carl, standing there , said, yeah,- if
you'd listen to'meand the company a little more in-
stead of the union , we could get this settled.6
At the second conversation , on September 13:
Jack ^ came walking ) over" there and 'he walks up and
says,' Cliff, what would you ,take, what would `you
accept to go back to work . - I, told him, well, you
know what -it'd take` to,•get me„back to work. Jack
said , well, why don't you talk with the men and see
1 -1
e "Carl" referred to Carl Burnard
what they'd accept to go to back to work. I told
him you already know what it's going to take to get
us back to work. I told him I didn't want to talk to
you no more and drove off.
On seven or eight occasions, Christensen testified, Jack
Burnard asked him what he would accept to return to
work. On one occasion they discussed the number of
holidays Respondent was willing to give employees.
Jack Burnard testified as summarized supra, and
denied all of Christensen's testimony about his alleged
statements to Christensen concerning negotiations. Bur-
nard -denied trying to deal with unit employees, but testi-
fied employees asked him what they could do to resolve
the problem, to which he replied that they should get to-
gether, make proposals to the Union, and let the Union
talk with Respondent.
3. Russell Anderson, who was being paid $10.01 per
hour at the time he went on strike August 30, testified
that he. talked with Jack Burnard the second week of
September, when some replacement employees came to
work. Also present were Ed Gray, Juan Moreno, and
Ted Anderson. Russell Anderson testified that Jack Bur-
nard stated:
Then it got around to the contract talks and he said
he was going to sign the contract. I said, well, I'd
taken a cut already, I figured, because I'd been
working short-handed. He said that he could have
as many people in there as he wanted to to take our
place and that he had to compete-with non-union
mills. I told him I didn't support the mills being
non-union. Then it got around to the talk of the
paper that was the proposals that they gave out and
he said he didn't have to have everything, but he
had to have a lot of it.
A week or so earlier, Anderson testified, Jack Burnard
told him "don't listen to Jay Perrizo or Jim Bledsoe, that
they'll lead you down a road that's somewhere negative,
and that the Union doesn't care about you."
Jack Burnard denied the latter piece of testimony by
Anderson, and relative to the former, stated:
People would ask me, well, how are we going to
live with' this type of thing, you know, you're
taking away too much. I indicated that these
weren't written in stone, that we needed some kind
of a concession-that amounted to this type of area,
you know, this type of ballpark in terms of dollars.
But, that was all.
4. Edward Gray, who was being paid $10.01 per hour
at the time he-went out on strike August 30, corroborat-
.ed the testimony of - Russell Anderson concerning the
conversation with Jack Burnard in September, but elabo-
rated on Anderson's testimony to a considerable degree.
Gray said they discussed the old contract, the wages
being proposed by Respondent, the fact that Carl Bur-
nard did not like or trust union representatives, the possi-
bility of "talking about" employees working short-
handed,-and related working. conditions. Gray concluded
FOREST GROVE LUMBER CO.
his testimony by saying, "Jack said he didn't have to
have everything on the proposal paper that he'd given
us, but that he did have to have some relief. Jack also
said that we'd have to get together with the rest of the
men and discuss it and see what it would take to get the
crew back." He said Jack Burnard initiated the conversa-
tion.
Jack Burnard denied Gray's testimony, and Gray's
conclusions stated above, and added, "Basically, when-
ever anyone asked me that, I would refer them to the
Union."
5. Dennis Waibel, who was being paid $10.36 per hour
at the time he went on strike August 30, testified that he
had a conversation near the picket line- with Jack Bur-
nard in September, a couple of days after the strike start-
ed. Waibel testified that Jack Burnard approached a van
where he, Jerry Johnson, and Roger Adams were play-
ing cards, and:
He said you know, you could be working. Jerry
said yeah, if you'd sign the contract we would be
working. Jack said we can't sign the contract with-
out some pay cuts. Jerry says well, he says, if you
don't sign the contract, we can't go to work for
you.
Jerry asked him, he said what would it take to
get the contract signed. Jack said $1.85 an hour pay
cut. Jerry said, well, we just can't give that to you
because he says people are on the standard that
they work for, and he says I'm living at that stand-
ard, and he says if I had to take a cut, he says, we
just couldn't make it.
Then I asked him, I says, what else could you
take besides the $1.85? He says, well, we might be
able to take $1.50 and some of the other proposals
on the table. Then he turned around and walked
off.
The following week, Waibel testified, he, Johnson, and
Adams were sitting near the picket line when a replace-
ment employee walked nearby. Johnson and Jack Bur-
nard yelled at each other about the replacement employ-
ee, after Johnson started the yelling match, and Jack
stated, "[W]ell, why don't you guys get together, talk it
over and take the cuts, and we can get back to work."
Burnard then left.
Jack Burnard categorically and emphatically denied
Waibel's testimony.
Discussion
Jack Burnard testified that he told Asivido about em-
ployees questioning him concerning negotiations and re-
lated matters, and Asivido corroborated that testimony.
Also, Burnard and Asivido testified that the latter in-
structed Burnard concerning what he could and could
not say to employees. Further, Respondent wrote letters
to employees outlining Respondent's position. The testi-
mony of Jack Burnard and Asivido relative to this
matter is credited, and the letters are in evidence. How-
ever, those facts do not settle this issue, since the ques-
1011
tion involves what Jack Burnard allegedly said to em-
ployees. 7-
Jack Burnard and Respondent's employees are not
strangers. Respondent is a small company, and the mill is
a small one. Burnard has known some of Respondent's
employees many years, and has associated with some of
them outside work. Conversations testified to by General
Counsel's witnesses sometimes were initiated by employ-
ees, and sometimes by Jack Burnard. All of.the conver-
sations, so far as the record shows, were friendly ones.
No threats, promises, pressure, or intimidation are appar-
ent. Clearly, Burnard and the employees sincerely
wanted to settle the quarrel. However, those facts, too,
do not settle the issue.
If the statements attributed to Jack Burnard by the
General Counsel's witnesses are accepted as accurate,
they would be violations of the Act. Patently, if true,
they constituted attempts to bypass the Union and deal
directly with employees. The question is whether or not
the General Counsel's witnesses are to be credited over
Jack Burnard's denials. Based on appearance and de-
meanor of those witnesses, and the record as a whole,
the General Counsel's witnesses are credited, and it is
found that the allegations of the complaint relative to
this issue were proved.
B. Paragraph 7(e) of the Complaint
This paragraph is an amendment to the complaint, per-
mitted by me over Respondent's objection, only after
statement by the General Counsel that the allegation was
offered solely as evidence of Respondent's individual
dealing with employees, and not as an independent alle-
gation of a change in work conditions. The amendment
reads:
On or about October, 1983, and thereafter, re-
spondent offered terms and, in fact, conferred terms
on employees that were different from the terms
that it offered to the union at the bargaining table.
General Counsel's Exhibit 5 shows Respondent's wage
rates in effect after implementation of its final offer to
the Union, which included a wage reduction across the
board of $1.50 per hour. Since the newly implemented
wages in some instances exceed formerly negotiated
wages less than $1.50 per hour, the General Counsel con-
tends that the final offer was not adhered to.
Setting aside any argument that an employer is not
always required to implement an offer identically as pro-
posed, it is clear that Respondent's implemention in this
instance was in accord with past practice of the parties,
and was proper.
The question is whether or not rates negotiated by Re-
spondent and the Union in the past have. included mini-
mum rates that could be, and regularly were, exceeded
for good reason.'
Jack Burnard credibly testified that the minimum rates
often were exceeded, with knowledge of the Union, on
the basis of employee merit, or to meet industry stand-
' Respondent 's letters to employees are not alleged to be, or to contain
statements alleged to constitute , violations of the Act
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ards, or -to obtain employees otherwise not to be had at
going rates, or to retain an employee in a certain posi-
tion. That practice has been a regular one since at least
1968. Respondent's records for 1968 show the Union's
then - financial secretary, Lloyd Morton, - as receiving
more than the- negotiated minimum .- Records for 1981
show ` that Waibel, the Union's president, and John
Begert, the Union's-strike captain, were receiving pay in
excess of the negotiated - minimum. Records for 1976
show the same for Begert. Records for 1983 show the
same for Waibel and Roger Nipp, -the Union's recording
secretary. Jack Burnard further credibly testified that, al-
though deviations from minimum rates never were de-
scribed in contracts with the Union, he has discussed -
that matter in the past with Perrizo and Bledsoe. Also,
he said, several union officers have received 'higher than
minimum rates, and those facts were common knowledge
among employees of the mill. Jack Burnard testified that,
2 or 3 years ago on -a date he cannot remember, he
talked about the matter with Perrizo in Carl Burnard's
office, -and Perrizo "said although the union could not
recognize it openly, it was something that was acknowl-
edged and there was no problem with it."
Perrizo -denied ever having any knowledge of wages
being paid in excess of negotiated minimum rates, prior
to May 1984. That denial is given no credence.
It is found that this allegation of the complaint is not
supported by the record.
C. Nature of the Strike
The complaint alleges that the strike was caused, and
prolonged, by Respondent's unfair labor practices alleged
in paragraph 7 of the complaint.
Obviously the strike was not caused by the alleged
unfair labor practices, since all of them occurred after
the strike cohimenced.
There is--no allegation, or evidence; that Respondent
negotiated at the table in bad faith, or at any. time re-
fused to negotiate with the Union. Jack Burnard testified
at -length, and credibly, concerning Respondent's finan-
cial difficulties. That testimony was not challenged or
contradicted -The- Union insisted that Respondent sign
the pattern agreement, which provided for increased
wages and benefits, and Respondent insisted that, in
order to survive, it had to reduce wages and some bene-
fits. After negotiation sessions and after meeting with a
Federal mediator, the. parties remained at impasse, entire-
ly because of the wages and benefits issues. The impasse
resulted in a strike. There, is no allegation, or evidence,
that the,impasseitself was caused, wholly or, partially, by
any factor other than 'economic disagreement.
The matter of Jack Burnard's efforts to deal with em-
ployees outside the Union was mentioned on a few occa-
sions, and was-the subject of an NLRB charge filed by
the Union on .September 23 and' again `on November 4,.
1983, but it is- clear that the matter of economics was the
cause of the. impasse, the strike,- and • the continuation' of
the strike. Had'Respondent signed the pattern agreement,
or had'the'Union'agreed to wage and benefit reductions
sought by Respondent, the strike would have been set-
tled forthwith, so far as the record shows. The Union
met with employees on September 20 solely to discuss
the Union's meeting with Respondent held September
15, and at that meeting there was some confusion, and
argument, occasioned by what employees believed to be
differences between Respondent's offer and what Jack
Burnard had told some employees. However, at no place
in the record is- there any indication that the strike was
prolonged by anything other than economic differences
of the parties. Indicative of the Union's intransigence, in-
sofar as settlement of the controversy was concerned, is
Perrizo's adopted and acknowledged position of the
Union, stated to a newspaper reporter on October 19,
1983, and again on November 2, 1983.
"The membership of Forest Grove believe
they're entitled to the same treatment as the rest- of
the the industry," Perrizo said. "We're not prepared
to make any counterproposals now. Our proposal is
firm. We have made them a reasonable offer," Per-
rizo said.
"They're [the strikers] holding up well. There's
no slippage. They feel strong they need to strike."
Burnard and the Union are "locked in" to their
positions, Perrizo said.8
The matter of individual dealing with employees was not
pressed during that stated union position, or in formal
negotiation sessions, or during meetings with the Federal
mediator, or at a discussion of the parties on May 11,
1984, concerning possible profit 'sharing, or in the
Union's meetings or conversations with Asivido, or at
any other time except possibly on one occasion when
Perrizo allegedly mentioned the matter casually to Bur-
nard at the picket line. It is apparent that, even had the
charge of individual dealing not been filed or had been
settled, the parties would have remained at impasse,
absent agreement on economic issues, and the strike
would have continued.
The General Counsel principally relied on Safeway
Trails9 in support of its argument that Respondent's indi-
vidual dealing with employees prolonged the strike in
violation of Section 8(a)(5) of the Act. However,
Safeway Trails clearly is different from the case herein,
and is not controlling. In Safeway Trails, the employer
strongly was opposed to the union negotiator, and left no
stone unturned in its effort to get nd of the negotiator,
including direct attacks on him in dealing with employ-
ees. At one time the employer stated, inter alia, in a writ-
ten internal resume:
At this time I see no possibility of settling a con-
tract with Lantz and it appears to me that we have
but three possibilities.
(1) Inform the membership and the employees of the
absolute responsibility of their representation in an
effort to get them to boot Lantz out.._
s R Exhs 2(a) and (b)
Safeway Trails, Inc, 233 NLRB 1078 (1977), enfd 641 F 2d 930 (D C
Cir 1979) -
FOREST GROVE LUMBER CO
(2) The UTU. International taking over these negoti-
ations and" putting in someone who can intelligent-
ly negotiate and reach an agreement.
(3) Failing-to achieve Nos. I and 2, it appears that
this will be a long work stoppage with the definite
possibilities'of having to put this company back to
work without a settlement with the UTU.
The Board stated, inter alia (id. at 1081), "It is well set-
tled that, while an employer may communicate its offer
to employees, an employer has no responsibility for de-
termining or selecting who should bargain on behalf of
employees." The Board concluded (id. at 1082)"
Accordingly, having concluded that the Re-
spondent's away-from-the-bargaining-table activities
constituted a campaign to employees directed
toward undermining the status and authority of
John Lantz, the chosen bargaining representative of
the employees, we find that bad faith and an 8(a)(5)
violation have been established
Further, we find that the Respondent's unfair
labor practices aggravated and prolonged the strike,
thereby converting the economic strike herein into
an unfair labor practice strike. -
It is well settled that "an unfair labor practice does not
convert an economic strike to an unfair labor practice
strike unless a causal connection is established between
the unlawful conduct and the prolongation of the
strike."i o In Anchor Rome Mills, i t cited by the Board in
Robbins Co., supra, the Board stated, "It is clear in the
present case that the inability of the parties to agree on
the terms of a new contract, and not the Respondent's
letters of April 9, 1984, or its other unfair labor practice
committed during the strike, was responsible for the pro-
longation of the strike " That is the situation in the case
at hand An economic deadlock, not attempts to deal
with employees individually, prolonged the strike 12
This allegation of the complaint is not supported by
the record.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with Respondent's oper-
ations described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
On the basis of the foregoing findings of fact and the
entire record, I make the following
CONCLUSIONS OF LAW
1. The Union is the exclusive bargaining representative
of Respondent's employees in the following appropriate
unit: -
10 Robbins Co, 233 NLRB 549 (1977), and cases cited therein
11 86 NLRB 1120, 1122 (1949)
12 See also Soule Glass & Glazing Co v NLRB, 652 F 2d 1055 (1st Car
1981)
1013
All production and maintenance employees, exclud-
ing employees engaged in administration, actual su-
pervision, research and technical" occupations, ac-
counting, clerical, stenographic and other office
work -
2 By disregarding and bypassing the Union and bar-
gaining and dealing directly with - its employees covering
their wages , hours, and other terms and conditions of
employment , Respondent violated Section 8(a)(5) and (1)
of the Act.
THE REMEDY
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act, I shall recommend that it be ordered
to cease and desist therefrom, and to take certain affirma-
tive action designed to effectuate the policies of the Act.
On these findings, of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Forest Grove Lumber Company,
Forest Grove, Oregon, its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Disregarding and bypassing the Union and bargain-
ing and dealing directly with its employees concerning
their wages, hours, and other terms and conditions of
employment in violation of Section 8(a)(5) and (1) of the
Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its place of business in Forest Grove,
Oregon, copies of the attached notice marked "Appen-
dix."14 Copies of the notice, on forms provided by the
Regional Director for Region 19, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
13 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
14 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had an opportunity to
present evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act and has ordered us to post and abide by this notice.
WE WILL NOT disregard and bypass the Union and
bargain and deal directly with our employees concerning
their wages , hours , and other terms and conditions of
employment in violation of Section 8(a)(5) and ( 1) of the
Act.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of
rights guaranteed them in Section 7 of the Act.
FOREST GROVE LUMBER COMPANY