Louisiana-Pacific Corp.

National Labor Relations Board - Board Decisions

Sep 20, 1993

312 N.L.R.B. 165 (N.L.R.B. 1993)

165
312 NLRB No. 35
LOUISIANA-PACIFIC CORP.
1 On December 23, 1992, Administrative Law Judge William J.
Pannier III issued the attached decision and errata. The Respondent
filed exceptions and a supporting brief and the General Counsel filed
an answering brief.
2 We find no merit to the Respondent’s exceptions to the judge’s
findings that the Respondent violated Sec. 8(a)(5) by eliminating
Local rule 9 from its implemented terms and conditions of employ-
ment after impasse and by transferring unit work to nonunion saw-
mill employees. In adopting the judge’s finding that the Respondent
violated Sec. 8(a)(5) and (1) by unilaterally eliminating Local rule
9, we do not rely on the judge’s discussion of the parties’ agreement
to ‘‘call each other back’’ to the bargaining table. Nevertheless, we
agree with the judge’s finding that the Respondent was not privi-
leged to make last-minute changes to its final proposal prior to im-
plementation without first offering the Union a meaningful oppor-
tunity to bargain.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent does not except to the judge’s findings that it vio-
lated Sec. 8(a)(1) by threatening to curtail overtime assignments if
grievances about overtime assignments were filed, and Sec. 8(a)(3)
by withdrawing an offer to partially reimburse an employee for med-
ical expenses because he filed a grievance and pursued it to arbitra-
tion. The Respondent also does not except to the judge’s finding that
it violated Sec. 8(a)(5) by unilaterally allowing nonunit employees
to perform shipping and receiving work during the plant shutdown.
4 The Union represents a unit of production and maintenance em-
ployees at the pulp mill. The sawmill employees are not represented
by any labor organization.
5 The General Counsel does not challenge the propriety of the
shutdown.
6 In the past the Respondent had arranged for similar in-kind trades
of materials with a competitor.
Louisiana-Pacific Corporation, Western Division
and Association of Western Pulp and Paper-
workers, Local 49. Cases 20–CA–24231, 20–
CA–24343, and 20–CA–24413
September 20, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions to the decision in this case1 present, inter
alia, the following issues: (1) whether the Respondent
violated Section 8(a)(5) by arranging with a competitor
for an in-kind trade of pulp during a plant shutdown;
and (2) whether the Respondent violated Section
8(a)(5) by refusing to ‘‘red-circle’’ the wage rates of
two chip dump CAT operators.2
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,3 and conclusions, as modified, and to
adopt the recommended Order, as modified below.
The Pulp Mill Shutdown
The Respondent operates a pulp mill and a sawmill
in Samoa, California.4 From mid-October through De-
cember 1991, the Respondent, for economic reasons,
shut down its pulp mill operation.5 During late October
or early November 1991, one of the Respondent’s
major customers, C. Itoh Company (Itoh), approached
the Respondent for a supply of 5000 tons of pulp. The
Respondent explained that its pulp mill was shut down,
that it would cost approximately $200,000 to reopen it,
and that it would do so only if Itoh would pay the cost
to reopen the plant in addition to the cost of the pulp.
Itoh refused and threatened that, if forced to find an-
other supplier, the Respondent would risk losing Itoh’s
business permanently. After further negotiations, Itoh
suggested that the Respondent borrow the 5000 tons of
pulp from a competitor to satisfy Itoh’s order.6
Acting on Itoh’s suggestion, the Respondent ar-
ranged with a nearby competitor, Simpson Paper Com-
pany (Simpson), to fill Itoh’s order and to the Re-
spondent to fill a similar order for one of Simpson’s
customers when the Respondent became operational.
Simpson filled Itoh’s order in November 1991; the Re-
spondent filled an order for a similar quantity of pulp
for Simpson’s customers in January and February
1992.
The complaint alleges, and the judge found, that the
Respondent violated Section 8(a)(5) by ‘‘subcontract-
ing out an order for pulp product rather than recall
Unit employees at the Pulp Mill to do this work.’’ The
judge found that the arrangement with Itoh, which the
Respondent admits it made without notice to or bar-
gaining with the Union, deprived the unit employees,
during late 1991, of work they ordinarily performed.
Rejecting the Respondent’s argument that the employ-
ees did not incur a loss as a result of the arrangement,
the judge found that the Respondent’s employees were
deprived of the time value of the money they would
have earned had they been permitted to perform the
work in November. Moreover, the judge found that the
Respondent presented no evidence that it would have
suffered any economic detriment by the passage of
time required to notify and bargain with the Union.
The Respondent argues on exception that it was not
obligated to bargain with the Union because the in-
kind trade of pulp did not materially and substantially
change the employees’ terms and conditions of em-
ployment. The Respondent points out that it had in-
formed Itoh that it (the Respondent) had no intention
of reopening the pulp mill to fill Itoh’s order unless
Itoh agreed to bear the $200,000 cost. Moreover, the
Respondent notes that, because the employees per-
formed work for Simpson in early 1992—work which
they otherwise would not have had—the employees
suffered no overall detriment, and indeed benefited,
166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The General Counsel’s reliance on Torrington Industries, 307
NLRB 809 (1992), is misplaced. In that case, the employer laid off
unit employees and transferred a truck and a nonunit driver to per-
form the unit work. We found that the decision to lay off unit em-
ployees and replace them with nonunit employees and independent
contractors to perform the same work constituted essentially
‘‘Fibreboard-type subcontracting’’ and did not change the scope or
direction of the business. In that case, the General Counsel took
issue with the decision to lay off the unit employees. In this case,
by contrast, the complaint alleges at most a failure to recall the unit
employees, by reopening the mill, but does not challenge the Re-
spondent’s decision to close the mill in the first place. Given this
factual distinction, Torrington Industries has no application to this
case.
Member Raudabaugh does not agree that a decision concerning
whether or when to end a layoff has no significant impact on unit
employees. In his view, such a decision, like the decision to have
the layoff in the first place, does have such an impact on unit em-
ployees. He would apply the test in Dubuque Packing, 303 NLRB
386 (1991), to such a decision. See generally his concurring opinion
in Holmes & Narver, 309 NLRB 146 (1992). Applying that test, he
assumes arguendo that the General Counsel met his prima facie bur-
den under Dubuque. However, the Respondent has shown that the
decision was not based on labor costs; it was based on the Respond-
ent’s unwillingness to spend $200,000 to reopen the facility. Accord-
ingly, the decision was not a mandatory subject.
8 Therefore, we adopt the judge’s conclusions of law except as
modified above.
We also adopt the judge’s finding that the Respondent violated
Sec. 8(a)(5) and (1) by transferring unit mechanical work to nonunit
sawmill employees during the pulp mill shutdown. By contrast to the
in-kind trade, the Respondent demonstrated a willingness to, and did,
call in laid-off mechanics during the shutdown to perform mechani-
cal work, and pulp mill mechanics thereby suffered significant det-
riment when their work was transferred to the sawmill.
9 The contractual provision reads as follows:
In the event [Respondent] permanently eliminates an estab-
lished regular job classification, those employees with five (5)
or more years of service in the mill who occupied that job clas-
sification at the time it was eliminated shall not have their
straight-time hourly rate reduced below that of the eliminated
classification at the time of discontinuance unless they refuse to
accept a promotion or refuse to bid for available job openings.
. . .
10 We do not agree that Industrial Relations Manager Greenhalgh’s
acknowledgment at trial that the Respondent had probably ‘‘provided
a benefit that . . . some of the employees weren’t entitled to under
from the Respondent’s decision. We find merit in the
Respondent’s exception.
As the Respondent correctly notes, an employer is
not obligated to bargain over a decision to subcontract
unit work if the decision would have no substantial,
significant, or material effect on the employees’ terms
and conditions of employment. See Westinghouse Elec-
tric Corp., 153 NLRB 443, 446–447 (1965) (no viola-
tion where employees suffered no ‘‘significant det-
riment’’ as a result of subcontracting unit work); see
also Precision Castings Corp., 233 NLRB 183 fn. 1
and 210–211 (1977) (no violation where subcontract-
ing occurred after plant had been closed and employ-
ees terminated). We find that, under the circumstances
of this case, the in-kind trade of pulp did not have a
significant detrimental effect on the unit employees.
We note first that the pulp mill was closed at the
time Itoh approached the Respondent with its order for
5000 tons of pulp. Thus we are not here faced with a
situation in which the Respondent could merely have
postponed the mill closing or not closed it at all. Rath-
er, as the judge noted, the Respondent had closed the
plant in October, well before Itoh placed its order for
pulp, and there is no dispute that it would have cost
approximately $200,000 to reopen the plant to fill the
order. There also is no evidence to contradict the Re-
spondent’s contention that it had no intention of re-
opening the plant to fill Itoh’s order, even at the risk
of losing Itoh’s business.
Because the pulp mill had been shut down and the
employees laid off, a decision to which the General
Counsel does not take issue, and because the evidence
supports the Respondent’s contention that it would not
have opened the plant unless Itoh agreed to bear the
cost, we find that the employees would have had no
occasion to perform the work in any event during the
latter part of 1992. We find, therefore, contrary to the
judge, that the employees did not sustain a significant
detriment as a result of the Respondent’s arrangement
with Simpson.7 Accordingly, we find that the Re-
spondent did not violate Section 8(a)(5) and (1) by ar-
ranging an in-kind trade of pulp with a competitor.8
The Chip Dump Cat Operators
We agree with the judge that the Respondent vio-
lated Section 8(a)(5) by revoking its agreement to
apply the red-circle provision in the collective-bargain-
ing agreement to employees adversely affected by the
shutdown of the Respondent’s power boiler operation.9
We do not agree, however, with the judge’s finding
that the agreement extended beyond the 37 employees
in the power boiler operation to encompass the 2 chip
dump CAT operators. The judge noted that on August
16, 1991, the Respondent sent a memo to its employ-
ees to ‘‘explain the various procedures and plans asso-
ciated with the reduction of Pulp Mill employees.’’
Paragraph 6 of that memo stated:
Those employees who displace junior employ-
ees and remain in the mill will have their rates
red circled. In future years, employees’ rates that
are red circled will only receive 50% of future in-
creases. They may also lose their rates if they
refuse to exercise their seniority and bid on avail-
able jobs.
Although the Respondent’s August 16 memorandum
to employees could be read to apply more broadly, we
find that the context in which the memorandum was
issued—2 days after the steering committee meeting of
Union and Respondent representatives to discuss the
imminent, permanent shutdown of the power boiler op-
eration—reasonably confines the agreement to employ-
ees of that operation.10
167LOUISIANA-PACIFIC CORP.
the [expired collective-bargaining] agreement’’ constituted an admis-
sion that the Respondent understood the agreement to have broader
application. In our view, Greenhalgh’s statement admits to nothing
more, in light of the chip dump employees’ claims, than a recogni-
tion of unintended consequences resulting from the parties’ agree-
ment to red-circle the power boiler operation employees.
11 Backpay for employees who were laid off as a result of the Re-
spondent’s unlawful unilateral changes shall be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950).
Backpay for employees whose pay was reduced as a result of such
changes shall be computed in the manner prescribed in Ogle Protec-
tion Service, 183 NLRB 682, 683 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971).
Accordingly, we reverse the judge’s finding only to
the extent that his remedy11 and Order could be read
to include the two chip dump CAT operators.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Lou-
isiana-Pacific Corporation, Western Division, Samoa,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following as paragraph 2(c).
‘‘(c) Make whole, with interest on the amounts
owing, all employees for any losses of pay and bene-
fits suffered as a result of elimination of the layoff re-
striction set forth in Local rule 9, of refusal to honor
the red-circle wage rate agreement of August 1991,
and of performance of mechanic and storeroom clerk
work by nonunit employees during the last 4 months
of 1991.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT change any term or condition of em-
ployment of employees in the appropriate unit de-
scribed below, without first giving notice to Associa-
tion of Western Pulp and Paperworkers, Local 49 and
affording it an adequate opportunity to bargain about
that proposed change. The appropriate bargaining unit
is:
All hourly paid employees in the Machine Room,
Pulping, Causticizing, Material Handling & Ship-
ping, Chip Dump, Storeroom, Technical, Recov-
ery, Power Boiler, and General Departments and
all Maintenance Department hourly paid employ-
ees of the pulp mill in Samoa, California; exclud-
ing employees classified as, or working in, admin-
istration, actual supervision, watchman duties,
sales, engineering and drafting, research and tech-
nical occupation requiring professional training,
accounting, clerical, stenographic and other office
work.
WE WILL NOT rescind and refuse to honor agree-
ments reached with the above-named labor organiza-
tion concerning employment terms and conditions of
employees in the above-named bargaining unit.
WE WILL NOT withdraw offers to reimburse em-
ployee expenses for medical examination and treat-
ment, or otherwise discriminate against employees be-
cause grievances are processed to arbitration, nor be-
cause of activity or support for the above-named labor
organization or any other labor organization.
WE WILL NOT threaten employees with discontinu-
ance of overtime assignments if grievances are filed.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL restore and observe the layoff restriction
set forth in Local rule 9 of our 1988–1991 collective-
bargaining contract with the above-named labor orga-
nization and, in addition, the terms of the our red-cir-
cle wage agreement of August 1991.
WE WILL reinstate any employee laid off as a result
of failure to continue observing the layoff restriction
set forth in Local rule 9 and reinstate the red-circle
wage rates earned by employees pursuant to the agree-
ment of August 1991.
WE WILL make whole, with interest, all employees
for any losses of pay and benefits suffered as a result
of our elimination of the layoff restriction set forth in
Local rule 9, of our refusal to honor the red-circle
wage rate agreement of August 1991, and of the per-
formance of mechanic and storeroom clerk work by
nonunit employees during the last 4 months of 1991.
LOUISIANA-PACIFIC CORPORATION,
WESTERN DIVISION
Frank M. Wagner, for the General Counsel.
168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel’s unopposed motion to correct transcript in
three respects is granted.
Robert Hulteng and Edward J. Goddard (Littler, Mendelson,
Fastiff & Tichy), of San Francisco, California, and Chris
Beincourt, of Aden Lake, Idaho, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Eureka, California, on August 12 and 13,
1992. On February 24, 1992, the Regional Director for Re-
gion 20 of the National Labor Relations Board (the Board)
issued an order consolidating cases, consolidating for hearing
and decision separately issued complaints, one based on a
charge filed in Case 20–CA–24231 on September 19, 1991,
another based on a charge filed in Case 20–CA–24343 on
November 19, 1991, and a third based on a charge filed in
Case 20–CA–24413 on January 10, 1992, collectively alleg-
ing violations of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, 29 U.S.C. § 151, et seq. (the Act). All
parties have been afforded full opportunity to appear, to in-
troduce evidence, to examine and cross-examine witnesses,
and to file briefs. Based on the entire record,1 on the briefs
that were filed, and upon my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Louisiana-Pacific Corporation, West-
ern Division (Respondent) has been a California corporation,
with a pulp mill located in Samoa, California, engaged in the
business of processing and selling paper and other wood
products on a nonretail basis. In the course and conduct of
those business operations during calendar year 1990 and,
again, during calendar year 1991, Respondent sold goods
valued in excess of $50,000 directly to customers located
outside the State of California and to enterprises within Cali-
fornia, each of which meets the applicable Board standard
for asserting jurisdiction on a direct basis. Therefore, I con-
clude, as admitted in each of Respondent’s answers to com-
plaint, that at all times material Respondent has been an em-
ployer in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, Association of Western Pulp and Pa-
perworkers, Local 49 (the Union) has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
This case presents a potpourri of issues, based on mostly
undisputed evidence, arising from a bargaining relationship
between the Union and Respondent. Their most recent col-
lective-bargaining contract had a stated term of June 1, 1988,
to May 31, 1991. Essentially, it encompassed an admittedly
appropriate bargaining unit of employees working at Re-
spondent’s pulp mill in Samoa. Thus, as recited in section 3
of that contract, the bargaining unit is:
All hourly paid employees in the Machine Room,
Pulping, Causticizing, Material Handling & Shipping,
Chip Dump, Storeroom, Technical, Recovery, Power
Boiler, and General Departments and all Maintenance
Department hourly paid employees; excluding employ-
ees classified as, or working in, administration, actual
supervision, watchman duties, sales, engineering and
drafting, research and technical occupations requiring
professional training, accounting, clerical, stenographic
and other office work.
One of the employees in that unit had been Chuck Annis,
a shift millwright who had worked for Respondent for a
number of years, but who had passed away by the time of
the hearing in this proceeding. As a shift millwright, Annis
had been required to wear a self-contained breathing appara-
tus or respirator when responding to fires or whenever a
toxic chemical leak occurred. A medical examination in early
1990 disclosed that he had developed a pulmonary impair-
ment that left him unable to wear that apparatus. During that
examination, Annis had mentioned that he had been exposed
to asbestos while working in earlier years at the pulp mill.
As a result, the attending physician, Phillip L. Wagner, M.D.,
suggested in a letter to Industrial Relations Manager Richard
Greenhalgh that Annis ‘‘be offered examination at the Uni-
versity of California occupational pulmonology department in
San Francisco to rule out a preventable progressive dis-
order.’’
Wagner’s suggestion was followed. Annis made three trips
to San Francisco during July and August 1990. Greenhalgh
testified that, before the first of them, he had notified Annis
that Respondent’s workmen’s compensation program would
reimburse his trips’ expenses if there was an ultimate deter-
mination that his condition was associated with asbestosis,
but would not provide reimbursement if it was determined
that his condition was not work-produced. As set forth in a
letter to Dr. Wagner, dated August 13, 1990, Professor of
Clinical Medicine Jeff Goldman, M.D. concluded that Annis
did ‘‘not have interstitial lung disease from an occupational
exposure.’’
Nevertheless, Annis filed a claim for reimbursement of all
expenses for the three San Francisco trips. Believing that it
had derived some benefit from the testing conducted there,
Respondent offered to compensate Annis for some of those
expenses. In a letter dated October 29, 1990, Greenhalgh no-
tified Annis, inter alia:
I have reviewed your expense request for costs in-
curred and wages lost while being tested at the Univer-
sity of California Occupational Pulmonary Department
in San Francisco.
. . . .
As I explained, the Company cannot be responsible for
the costs of medical tests merely because the employee
assumes the underlying condition to be work-related.
Notwithstanding this, the Company did derive some in-
cidental benefit from your tests and we are therefore
willing, as a goodwill gesture, to pay the difference be-
tween the cost of the tests and what your group health
169LOUISIANA-PACIFIC CORP.
plan paid. I understand this to be approximately
$599.00. This is done on the basis it will not establish
any precedent and that there will be no further claims
against the Company in this matter.
Gerald Cawvey, an instrument mechanic who was chairman
of the Union’s delegation to the Standing Committee, a body
described below, testified that after receiving the letter Annis
had ‘‘wanted to grieve for all of the expenses.’’ However,
there is no evidence that he ever actually did so. In fact,
there is no evidence that he or the Union voiced any re-
sponse whatsoever to Greenhalgh’s letter by November 9
when, due to his pulmonary condition, Respondent trans-
ferred Annis from shift millwright to day-shift worker.
Although that transfer resulted in a pay reduction for
Annis, the General Counsel does not challenge its legality.
Nor does the General Counsel contest any of Respondent’s
other actions described in the immediately preceding para-
graphs regarding Annis. Instead, the 8(a)(3) and (1) allega-
tion pertaining to Annis arises from the following subsequent
events. On the date that he received notice of his transfer,
Annis filed, and the Union began processing a grievance pro-
testing that the transfer had constituted a contractual viola-
tion: ‘‘SEC. 21 SENIORITY. FORCING CHUCK OFF OF
SHIFT MILLWRIGHT JOB IS A SENIORITY VIOLA-
TION.’’ The Union and Annis processed that grievance
through arbitration, where a decision was rendered sustaining
the propriety of Respondent’s transfer decision. Although the
grievance did not involve Annis’ expenses for medical test-
ing in San Francisco, it did become a factor in Respondent’s
ultimate decision to withdraw the above-quoted reimburse-
ment offer in Greenhalgh’s letter of October 29, 1990, the
action which the General Counsel does allege violated Sec-
tion 8(a)(3) and (1) of the Act.
Greenhalgh initially testified that Respondent’s withdrawal
of its partial reimbursement offer had occurred because
Annis ‘‘never contacted me nor did a union representative
that they wanted to accept this offer,’’ but Greenhalgh con-
tinued by adding ‘‘because [Annis] didn’t agree with the
conditions that I put in the letter of October 29th 1990.’’
Asked to explain what he meant by ‘‘not agree to the condi-
tions,’’ Greenhalgh testified:
He did not—he did not respond. He did not call. No
one made any indication that the $599 was acceptable
to him.
I should say beyond that, when we got a grievance
we assumed that he was going to be pursuing his—the
issue at least beyond what we had offered, and so we
assumed that this offer we had made had been rejected,
and I think we so indicated in a standing committee
meeting that based upon his pursuing this grievance and
other issues, that we would withdraw our offer.
In fact, in a letter to Cawvey, dated March 22, 1991, pertain-
ing to ‘‘open items from our last Standing Committee Meet-
ing on March 14, 1991,’’ Greenhalgh stated specifically:
3. Grievance No. 59–90, Chuck Annis removal from
shift. With a Class II profile, Mr. Annis was medically
precluded from wearing a respirator except to escape.
This was incompatible with responsibilities of a shift
Millwright. The letter enclosed was an offer to under-
write part of the costs for the medical evaluation. If you
choose to pursue this grievance to arbitration, this
would void our offer.
The General Counsel points to the admitted reliance on
pursuit of Annis’ grievance to arbitration as the basis for ar-
guing that Respondent violated Section 8(a)(3) and (1) of the
Act when it withdrew its partial reimbursement offer. In op-
position, Respondent contends that there is no evidence that
it harbored animus or otherwise had been acting to retaliate
against Annis. It further contends that Greenhalgh’s letter
‘‘was analogous to a proposal to settle a pending employ-
ment dispute’’ that Respondent ‘‘was under no obligation to
keep . . . on the table for any length of time’’ and, that
Annis and the Union’s nonresponse, coupled with pursuit to
arbitration of the grievance concerning Annis’ job transfer
resulting from his pulmonary disorder, constituted objective
evidence that Respondent’s ‘‘conditional settlement offer’’
was not acceptable to Annis. For the reasons set forth in sub-
section III,F, infra, I reject those contentions and conclude
that Respondent did violate Section 8(a)(3) and (1) of the
Act by withdrawing its offer to partially reimburse some of
Annis’ expenses of traveling to San Francisco for medical
examination.
An alleged independent violation of Section 8(a)(1) of the
Act arises from an incident occurring during the night shift
on August 5 and 6, 1991, when Machine Room Production
Superintendent Edwin Eaton needed a day-shift employee to
report early to feed operating bales to the beater. Rather than
call Arthur Nally and Joe Mills, the two senior day-shift em-
ployees who rarely had been willing to accept such overtime
work, Eaton called Charles Baker, a day-shift employee who
usually responded to such calls and who, indeed, did report
between 1 and 3 a.m. in response to Eaton’s call that morn-
ing. Nally then reported for work at his usual 7 a.m. starting
time and, discovering what had occurred, complained to
Eaton during an in-plant telephone conversation. Nally testi-
fied that when he had said that Eaton’s explanation—that
Eaton needed someone and that Nally did not normally work
overtime—made no difference, Eaton had retorted that if
Nally filed a grievance, ‘‘I’m going to go down there and
send those guys home and there won’t be anymore overtime.
We’ll have it done on day shift.’’
Similarly, Shannon Newman, who had recently become
shop steward, testified that when he had come to Eaton’s of-
fice later that day with Nally’s grievance, Eaton had ‘‘said
if I filed the grievance, that he’d cut off the overtime, and
have the guys on day shift in the yard labor crew do the
jobs—that job.’’ According to Newman, he left the office
with the grievance after Eaton had instructed him to, ‘‘Take
your grievance back. Talk to the guys on [Newman’s] crew
and see what they want to do, and get back to me.’’
Based on the foregoing testimony, the General Counsel al-
leges that Respondent, through Eaton, violated Section
8(a)(1) of the Act by threatening to curtail overtime work as-
signments if employees filed grievances. As discussed in
more detail in subsection III,G, infra, while Eaton denied that
he had made the above-quoted statements to Nally and to
Newman, his own accounts of those conversations, as well
as certain objective considerations that he acknowledged,
tend to support the two employees’ seemingly candid de-
170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
scriptions of Eaton’s statements. By virtue of his having
made them, Respondent violated Section 8(a)(1) of the Act.
Five separate allegations are made under Section 8(a)(5)
and (1) of the Act, arising from events occurring after the
1988–1991 contract had been reopened and 22 bargaining
sessions had led to impasse in mid-July 1991. By letter dated
July 31, 1991, Respondent’s legal counsel, Chris Beincourt,
notified the Union’s principal negotiator, Robert W. Crane,
that Respondent intended to implement, in effect, its final
offer, the terms of which were ‘‘detailed on the attachment
[to Beincourt’s letter] effective August 10, 1991. Our final
offer will be available for acceptance until that time.’’ The
General Counsel does not challenge the propriety of the bar-
gaining that occurred, the impasse that was reached, nor the
stated terms in the attachment to Beincourt’s letter that were,
in fact, implemented on August 10, 1991. Rather, the com-
plaint’s alleged violations of Section 8(a)(5) and (1) of the
Act are based on events occurring after Beincourt’s letter had
been sent to Crane.
The first one alleges that Respondent belatedly supplied an
additional change to that attachment’s list, and implemented
that change on August 10, 1991, without affording the Union
notice and adequate opportunity to bargain about it. That al-
legation pertains to Local Rule 9 appearing in Exhibit D, on
page 78, of the 1988–1991 contract. It covers maintenance
work and states:
9. Contracting of Work
The Company will not lay off mill mechanics while
contracting out in-plant maintenance work that could be
performed by mill mechanics.
Respondent concedes that at no point during the negotiations
did it specifically propose eliminating Local Rule 9. No men-
tion of that rule appears in the attachment to Beincourt’s let-
ter of July 31, 1991.
By letter to Crane and Norman Miller, the Union’s presi-
dent, dated August 8, 1991, Beincourt announced, in perti-
nent part,
I am writing to notify you of [Respondent’s] intent
to exempt Local Rule 9 from those provisions of the
expired agreement which will be effective beginning
August 10, 1991. That provision, as you know, would
bar the Company from contracting out in-plant mainte-
nance work that could be performed by laid-off mill
mechanics.
. . . .
We believe that the bargaining history is clear and
that the implemented terms would allow [Respondent]
to determine whether it makes sense to reduce manning
and use contractors. To eliminate any chance for confu-
sion, however, we did want to add Local Rule 9 to the
list of items that would be implemented.
If you have any questions, or if you do not agree
that this is consistent with [Respondent’s] position at
the table, we hereby call you back to the table for fur-
ther discussions. We are available to meet before imple-
mentation on August 10th if you like, or any day the
following week if you deem necessary.
The General Counsel contends that so belated an announce-
ment of Local Rule 9’s elimination from what had become,
by the time of Beincourt’s letter, a term and condition of em-
ployment constituted a unilateral change that violated Section
8(a)(5) and (1) of the Act.
Respondent contends that during negotiations it had put
the Union on notice that it intended to eliminate all manning
restrictions by which it had been bound by the contract. As
a result, urges Respondent, the Union should have been on
notice that restrictions imposed by contractual provisions
such as Local Rule 9 would be encompassed by that elimi-
nation posture. Furthermore, Respondent argues that the par-
ties had agreed that tentative agreements could be modified
until such time as the employees ratified a contract and since
that never occurred, because the employees had rejected Re-
spondent’s final offer, both parties had remained free to
modify their proposals, as Respondent did concerning Local
Rule 9. Finally, contends Respondent, it is undisputed that no
union representative contacted Respondent to object to, or
negotiate about, eliminating Local Rule 9, though offered the
opportunity to do so in the above-quoted final paragraph of
Beincourt’s letter to Crane and Miller. In consequence, Re-
spondent urges, the Union waived whatever remained of its
right to bargain about Local Rule 9’s elimination. I reject
these arguments.
As more fully discussed in subsection III,B, infra, Re-
spondent’s negotiating posture never necessarily encom-
passed Local Rule 9’s restrictions and, indeed, Respondent
specifically told the Union during negotiations that the rule’s
restriction was inapplicable to its proposal to remove con-
tractual manning restrictions. Second, whatever the merit of
an argument to allow preratification changes in proposals and
tentative agreements, in announcing Local Rule 9’s elimi-
nation Respondent failed to observe the very procedure
agreed on for doing so. Consequently, it can take no solace
in whatever such arrangement it now advances. Finally, as
Beincourt’s above-quoted letter states, despite the offer to
bargain about elimination of Local Rule 9’s restrictions, Re-
spondent adhered to its position that implementation of its
final offer would occur on August 10, 1991, 2 days after the
date of Beincourt’s letter announcing that elimination. Ac-
cordingly, the Union had been accorded only 1 day to formu-
late a bargaining position and negotiate about Respondent’s
suddenly announced reversal of position concerning Local
Rule 9. So short a period hardly affords adequate opportunity
for meaningful negotiations and, in fact, appears to have
been nothing more than an exercise in going through the bar-
gaining motions before implementing an already decided-on
change in a term and condition of employment. Thus, in the
circumstances, there is no basis for concluding that the
Union’s failure to respond constituted a waiver.
The second alleged violation of Section 8(a)(5) and (1) of
the Act is that on September 26, 1991, Respondent unilater-
ally changed procedures concerning the effects on unit em-
ployees of a reduction in force. That allegation finds its ori-
gin in Exhibit A, section I, subparagraph C,10, on pages 47
to 48 of the 1988–1991 contract. That provision remained
unaffected by the 1991 negotiations, impasse, and implemen-
tation of Respondent’s final offer. It states:
In the event [Respondent] permanently eliminates an
established regular job classification, those employees
171LOUISIANA-PACIFIC CORP.
with five (5) or more years of service in the mill who
occupied that job classification at the time it was elimi-
nated shall not have their straight-time hourly rate re-
duced below that of the eliminated classification at the
time of discontinuance unless they refuse to accept a
promotion or refuse to bid for available job openings,
in which event their rate of pay, at that time, shall re-
vert to the rate of their new job. Fifty percent (50%)
of general wage increases and adjustments will not be
used to increase their retained rate of pay.
In essence the provision ‘‘red-circles’’ existing wage rates of
employees adversely affected by a reduction in force, so long
as the provision’s qualifications are satisfied, by allowing
those employees to avoid having their wage rates dropped to
the bottom rates of other progression ladders for jobs to
which they are transferred.
By letter dated August 13, 1991, Pulp Mill Manager Fred
R. Martin notified Union President Miller that the power
boilers and associated equipment would be permanently shut
down and that ‘‘we have identified certain jobs which will
no longer be required,’’ followed by a list of 37 ‘‘employees
whose jobs will be eliminated.’’ In fact, most, but not all,
of those employees’ job classifications had been eliminated.
Nevertheless, all 37 employees would have their rates red-
circled under the plan submitted to the Union by Martin.
On August 14, 1991, that subject was discussed at a meet-
ing of the Standing Committee, a body consisting of equal
numbers of union and management representatives who peri-
odically meet to resolve grievances and other issues. That
meeting’s minutes, the accuracy of which is not disputed, re-
cite:
7. [Respondent] reviewed the red circle provisions of
the implemented contract. No wage reductions will take
place for red circled employees until the next wage in-
crease. Red circled rates will only receive 50% of fu-
ture wage increases. Red circled employees will lose
their rate only if they refuse to bid on posted jobs.
On August 16, 1991, Greenhalgh implemented that arrange-
ment, authoring a memo to all employees ‘‘explain[ing] the
various procedures and plans associated with the reduction of
Pulp Mill employees.’’ Paragraph 6 of that memo states:
Those employees who displace junior employees and
remain in the mill will have their rates red circled. In
future years, employee’s rates that are red circled will
only received 50% of future increases. They may also
lose their rates if they refuse to exercise their seniority
and bid on available jobs.
The General Counsel voices no objection in connection
with the foregoing events. Shortly after they occurred, how-
ever, a change in chip dump handling procedures led Re-
spondent to decide to reduce by two the number of Cat oper-
ators in that department. Although the Cat operator job clas-
sification was not eliminated, the two affected operators
claimed that their wages should be red-circled, just as Re-
spondent had red-circled those of employees whose jobs, but
not job classifications, had been eliminated by the power
boiler shutdown. Their claim led Respondent to reevaluate its
decision to red-circle all power boiler employees.
Initially Respondent proposed that the Union agree to con-
fine the August arrangement to employees adversely affected
by the power boiler shutdown, thereby constructing a fence
around them, and that subsequent reductions in force, includ-
ing the one involving the two chip dump Cat operators,
would again be governed by the above-quoted provision of
Exhibit A, section I, subparagraph C,10. The Union rejected
that proposal. By letter dated September 26, 1991,
Greenhalgh advised the Union that Respondent intended to
remove from the list of 37 power boiler employees the 7
whose job classifications had not been eliminated and who,
consequently, had not been covered by the red-circle provi-
sions of subparagraph C,10 of Exhibit A, section I: ‘‘Accord-
ingly, the people whose classifications were not eliminated,
even though they may have five years of service, will have
their rates reduced to the rate of the job they presently
hold.’’
The General Counsel contends that by removing the red-
circle wage rates of those seven employees and of the two
chip dump Cat operators, Respondent violated Section
8(a)(5) and (1) of the Act. In opposition, Respondent charac-
terizes the August arrangement to red-circle the rates of the
seven power boiler employees as a mere ‘‘informal agree-
ment’’ that, in effect, was invalidated by the Union’s subse-
quent unwillingness to ‘‘neither confirm nor renew’’ its limi-
tation to power boiler employees. I reject that argument.
As described more fully in subsection III,C, infra, what-
ever the parties’ interpretation of Exhibit A, section I, sub-
paragraph C,10 had been prior to August, Greenhalgh admit-
ted that Respondent, in effect, agreed in connection with the
power boiler shutdown to interpret that contractual provision
so that red-circle benefits would be extended to all employ-
ees adversely affected by reductions in force. That is a result
not changed by characterizing that agreement as ‘‘informal,’’
for the Act imposed no formalities as a condition precedent
for establishing that an agreement has been struck. Con-
sequently, in August Respondent and the Union agreed to
apply red-circle rate benefits to all employees adversely af-
fected by a reduction in force, thereby effectively creating a
term or condition of employment to which all such employ-
ees would be entitled.
To be sure, that agreement was not necessarily unlimited
in duration. Like any noncontractual term and condition of
employment, qualifications for red-circle rate benefits could
be changed through the process of negotiations. However, a
party is not free to utilize already conferred benefits of a
term or condition of employment as a lever to extract
changes or limitations in that employment term’s prospective
application. That is what occurred here. Greenhalgh con-
ceded that Respondent’s agreement with the Union allowed
rates to be red-circled for all employees adversely affected
by a reduction in force. Unhappy with that consequence of
its agreement, Respondent sought to negotiate a limitation on
the term and condition of employment resulting from that
agreement, by restoring all qualifications enunciated in Ex-
hibit A, section I, subparagraph 10,C. Unable to achieve
agreement to that restoration, Respondent simply rescinded
its August agreement and all benefits already conferred by its
terms on employees. As a consequence, the seven power
boiler employees and two chip dump Cat operators had their
red-circle employment terms erased, as if Respondent had
172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
never agreed to confer that benefit. In so doing, Respondent
violated Section 8(a)(5) and (1) of the Act.
The third alleged violation of Section 8(a)(5) and (1) of
the Act is that in September and, again, during the period be-
tween mid-October and December 1991, Respondent trans-
ferred unit mechanical, i.e., maintenance, work from unit
pulp mill employees to nonunit sawmill employees, without
affording the Union notice and an opportunity to bargain
about those work transfers. There is no dispute that mechani-
cal work transfers occurred during those months and, further,
none about the fact that the work involved was maintenance
work performed in the past by unit employees. However, Re-
spondent argues that such transfers had been encompassed by
the June–July negotiations and by the implemented changes
which, urges Respondent, ‘‘permitted [it] to reduce the num-
ber of maintenance mechanics and to subcontract and/or
transfer maintenance mechanic work at its sole discretion.’’
As discussed more fully in subsection III,D, infra, Re-
spondent’s argument is supported neither by testimonial nor
documentary evidence. Indeed, the evidence shows that Re-
spondent violated the terms of its own implemented final
offer by transferring the mechanical work without ‘‘prior
conferral with the Union,’’ as required by its implemented
changes, and there is no showing of any past practice of
transferring mechanical work to the sawmill on an ad hoc
basis. Consequently, Respondent violated Section 8(a)(5) and
(1) of the Act by the September and October–December
1991 transfers of mechanical work to the sawmill employees
for performance.
The remaining two allegations that Respondent violated
Section 8(a)(5) and (1) of the Act arise from events occur-
ring in connection with one of the periodic temporary pulp
mill shutdowns. In this instance, the shutdown lasted from
approximately October 15 to after Christmas of 1991. The
General Counsel does not challenge the propriety of that
shutdown. However, during late October or early November
1991 a customer, C. Itoh Company, requested 5000 tons of
pulp. Though Respondent explained that it would cost
$200,000 to reopen the plant and close it again after produc-
tion of that pulp, Itoh was unwilling either to pay that cost
or, alternatively, to seek another supplier for its order with-
out permanently taking its business elsewhere. Itoh’s rep-
resentative suggested that Respondent borrow the pulp. Act-
ing on that suggestion, Respondent worked out an arrange-
ment with a nearby competitor, Simpson Paper Company, to
fill Itoh’s order and, once Respondent’s pulp mill reopened,
to allow Respondent to fill a like order for Simpson. As a
result, the latter filled the Itoh order in November and De-
cember 1991 and Respondent filled Simpson’s like order in
early 1992.
Respondent admits that those arrangements with Simpson
had been made without any notice of them being given to
the Union and without affording the Union an opportunity to
bargain over disposition of work normally performed by em-
ployees that it represented. Because of Respondent’s failure
to do so, the General Counsel alleges that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by ‘‘subcontract[ing]
out an order for pulp product rather than recall Unit employ-
ees at the Pulp Mill to do this work.’’
Respondent takes issue with that characterization, contend-
ing that the transaction had been merely an ‘‘in-kind’’ trade
of produce, not a subcontracting of production, that was
within the scope of its entrepreneurial prerogative. To sup-
port that contention, Respondent points out that an employer
is under no obligation to accept specific orders from particu-
lar customers and that its decision to effect an in-kind trade
was not one susceptible to the give-and-take of negotiations.
Moreover, argues Respondent, it had a practice of engaging
in such trades in the past and, in any event, the unit employ-
ees performed a like amount of work for Simpson Paper in
1992, with the result that they suffered no work loss in the
final analysis.
For the reasons set forth in subsection III,E, infra, I reject
Respondent’s arguments. Respondent is under no obligation
to operate a business at all, but having chosen to do so it
must comply with all obligations imposed by law, including
by the Act. Disposition of unit work is a mandatory subject
of bargaining. Neither good-faith nor economic exigencies
relieve an employer’s obligation to give notice of, and an op-
portunity to bargain about, changes in mandatory bargaining
subjects to its employees’ bargaining agent before effecting
changes in those subjects. The evidence does not support the
past practice and no-loss components of Respondent’s argu-
ment. Accordingly, I conclude that Respondent’s failure to
satisfy its statutory bargaining obligation in connection with
Itoh’s order violated Section 8(a)(5) and (1) of the Act.
The other allegation arising from the shutdown involves
the pulp mill storeroom where four shipping and receiving
department employees, denominated storeroom clerks, work
during normal operations. They receive incoming supplies for
all areas of Respondent’s Samoa complex, they either deliver
those supplies to their intended area of the complex or store
them in inventory, and, in addition, they issue requisitioned
materials from inventory upon presentation of an issue or
order ticket by personnel from the various areas of the
Samoa complex, as well as from other facilities operated by
Respondent in Northern California.
During past temporary pulp mill shutdowns one storeroom
clerk had been retained to continue receiving and storing or
distributing supplies to areas of the Samoa complex that
were not shut down. Respondent decided that during the
1991 pulp mill shutdown it would stop all supplies shipments
to the extent possible, store in the sawmill area whatever
shipments could not be stopped without actually storing
those shipments’ contents, and lay off all four storeroom
clerks during the shutdown. The General Counsel does not
contest the propriety under the Act of those particular deci-
sions.
Since the sawmill remained in operation during 1991’s
final calendar quarter, supplies continued to be received for
its operation. Moreover, periodically supplies needed to be
withdrawn from inventory for areas that continued to operate,
such as the office. Initially, the General Counsel alleged that
Respondent violated the Act by, without giving prior notice
and affording a bargaining opportunity to the Union, using
‘‘supervisors and Saw Mill employees to do Unit work in the
shipping and receiving Department of the Pulp Mill.’’ But
during the hearing, the General Counsel was allowed to
amend that allegation to delete its specification of ‘‘super-
visors.’’
With respect to that allegation as amended, the parties
never litigated nor have they argued concerning performance
of that work specifically by sawmill employees. Instead, they
have litigated and argued about whether receiving and dis-
173LOUISIANA-PACIFIC CORP.
tributions from inventory had been made generally by per-
sonnel other than the storeroom clerks, most particularly by
Sandra Swift, whose title is store supervisor, and by purchas-
ing department buyer Phillip Sutter. Respondent contends
that both of those individuals are statutory supervisors and,
further, argues that there has been no showing of shipping
and receiving work being performed during the shutdown by
other than supervisors or contractors in any manner contrary
to past practice. As discussed in subsection III,E, infra, the
evidence does show that receiving and distribution of mate-
rials from inventory had been made by other than unit per-
sonnel during the shutdown and, moreover, in a manner not
consistent with past practice. Inasmuch as Respondent con-
cedes that it never notified the Union of those particular
changed practices, I conclude that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act.
B. Notification that Local Rule 9 Would Be Eliminated
As pointed out in subsection III,A, supra, although Re-
spondent concedes that it never specifically proposed elimi-
nating Local Rule 9’s restriction during 1991’s June-July ne-
gotiations, it argues that the thrust of its bargaining strategy
and related proposals concerning manning restrictions should
have put the Union on notice that the restriction of Local
Rule 9 could not survive implementation of Respondent’s
final offer. Evaluation of that argument necessitates an exam-
ination of Respondent’s bargaining strategy and of its pro-
posals concerning continued performance of unit mainte-
nance work by mill mechanics.
In the course of formulating its bargaining strategy prior
to commencing negotiations, Respondent determined that it
had been operating at a competitive disadvantage, because of
its nearest competitor’s greater latitude to subcontract work.
In view of that fact, and in light of recent modernization of
machinery that enabled it to operate with fewer people, Re-
spondent formulated certain proposals to allow future oper-
ations to be conducted with a lesser number of unit pulp mill
employees. The first one, to which the General Counsel
voices no objection, increased the ability of supervisors to
perform unit work.
More to the point of the complaint’s allegation concerning
Local Rule 9 is number 8 of Respondent’s proposals submit-
ted to the Union on June 11, 1991:
8. Section 21 and Exhibit A, section 11—Paragraph
a—Revise seniority section and manning requirements
for maintenance department to remove all restrictions
on [Respondent’s] right to determine manning or elimi-
nation of classifications.
The portion proposing a change in Ssction 21 of the 1988–
1991 contract involves no issue in this case, since it pertains
to production employees’ promotion and progression ladders.
The second portion of Respondent’s proposal 8, however,
is material, for it refers to a contractual provision—correctly
stated, Exhibit A, section II, subparagraph 9(a), on page 53
of the 1988–1991 contract—that concerns maintenance work:
9. Nothing in Section II or Section III shall be con-
strued so as to (a) oblige [Respondent] to hire or retain
any employee unless there is work for him, except
maintaining maintenance crew strength at June 1, 1974,
level so long as mill is in normal operation. . . .
The maintenance portion of Respondent’s proposal 8 was tar-
geted at eliminating that 1974 floor for maintenance crew
numbers.
Obviously, neither Exhibit A’s above-quoted language nor
Respondent’s proposal 8 make any specific reference to
Local Rule 9. Moreover, from the face of those two contrac-
tual provisions, elimination of the 1974 maintenance crew
floor would not, of itself, obviate Local Rule 9’s separate
prohibition against laying off mill mechanics where work
that they could perform was being contracted. However, both
parties presented evidence concerning discussion of Local
Rule 9 during the course of the negotiations in June and July
1991.
For the General Counsel, Area Representative Robert W.
Crane testified that Local Rule 9 had been discussed at more
than one negotiating session and that, during those discus-
sions, the Union had expressed willingness to agree to Re-
spondent’s proposal 8 so long as the restriction of Local Rule
9 was strengthened. According to Crane, Respondent’s prin-
cipal negotiator, Beincourt, had rejected that counterproposal,
in the process stating expressly that Respondent preferred the
language already recited in Local Rule 9. Yet, both in con-
nection with that description and in the course of testifying
about other subjects, Crane did not appear to be testifying
candidly. That appearance is strengthened by a review of the
record of his testimony which shows an almost total inability
to provide coherent and detailed descriptions of events, in-
cluding specifically his generalized assertions about what had
occurred with respect to discussions of Local Rule 9—gener-
alized assertions which Respondent’s witnesses effectively
denied having taken place. Additionally, Crane’s generalized
claims about discussions of Local Rule 9 during negotiations
were not corroborated by other members of the Union’s ne-
gotiating team, though Respondent’s questioning showed that
many, if not all, of them were present during the hearing.
Accordingly, I place no reliance of Crane’s testimony con-
cerning what had been said about Local Rule 9 during nego-
tiations in the summer of 1991.
Nevertheless, the testimony of Respondent’s witnesses
does show that in the course of discussing Local Rule 9 dur-
ing negotiations, Beincourt had specifically rejected the sug-
gestion that Local Rule 9 was affected by Respondent’s
above-quoted proposal 8. Thus, Beincourt testified that when
he had been asked by the Union’s negotiators, during the
session on June 21, 1991, if Local Rule 9 ‘‘Wouldn’t . . .
prohibit you from contracting out maintenance levels,’’ he
had read the rule and, then, had responded that it ‘‘wouldn’t
apply to prevent us from subcontracting maintenance work
because if we eliminated the job, people wouldn’t be on lay-
off, would they?’’
Similarly, Industrial Relations Manager Greenhalgh testi-
fied that, when asked at that negotiating session about the ef-
fect of Local Rule 9 on Respondent’s proposed elimination
of the 1974 manning floor, Beincourt had said that Local
Rule 9 ‘‘wouldn’t have any bearing at all on our proposal.’’
In like vein, Employment Manager and Housing Manager
Oscar Filgas testified that after Beincourt had ‘‘reiterated our
position that we still intended to’’ remove ‘‘all language re-
lated to . . . 1974 manning levels,’’ and after Crane had read
Local Rule 9 aloud, Beincourt had eventually responded that
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the rule ‘‘wouldn’t be applicable, anyway, because there
would be no maintenance levels.’’ Based on the three ac-
counts of these officials of Respondent, the evidence shows
that Respondent specifically had told the Union that Local
Rule 9 was not affected by Respondent’s proposals. More-
over, Beincourt, Greenhalgh and Filgas each testified that
Local Rule 9 had not been discussed at any negotiating ses-
sion other than on June 21. Consequently, whatever the gen-
eral thrust of Respondent’s bargaining strategy and regardless
of the proposals actually made by Respondent, Beincourt had
specifically told the Union during negotiations that Local
Rule 9 would not be affected by Respondent’s bargaining
proposals and objectives. As a result, there is no basis for
concluding that the Union should have understood from the
general thrust of bargaining that Respondent’s actual propos-
als reasonably contemplated removal of Local Rule 9’s re-
striction.
Indeed, any remaining force to such an argument is erased
altogether by Respondent’s admitted reason for having cho-
sen to send the letter of August 8, 1991. Beincourt testified
that, after having sent his notice of intent to implement Re-
spondent’s final offer by letter of July 31, 1991, he had re-
ceived a report that employees had been saying that sub-
contracting mill mechanics’ work could be blocked by the
continued existence of Local Rule 9. In view of that report,
testified Beincourt, ‘‘to follow the safer course, we decided
that we needed to put out a letter immediately’’ concerning
Respondent’s position on Local Rule 9. Thus, he authored
the letter of August 8, 1991, quoted in pertinent part in sub-
section III,A, supra. That letter’s assertion that Local Rule
9’s elimination had been contemplated by the June–July ne-
gotiations is directly contradicted by Respondent’s own offi-
cials’ admission regarding what Beincourt had told the Union
about Local Rule 9 on June 21. Further, had Beincourt truly
believed a month and a half later that the rule had been rea-
sonably comprehended by the negotiations, it seems mean-
ingless for him to have again conveyed such a message spe-
cially to the Union when, so far as the evidence shows, no
similar clarification was ever issued concerning any other
implemented term.
In fact, rather than simply pursuing a ‘‘safer course,’’ Re-
spondent appears to have sent the letter of August 8, 1991,
because the employees’ statements had led it to re-evaluate
the effect of Local Rule 9’s restriction on its actual propos-
als. Having done so, it appears to have concluded that it may
too hastily have rejected the possible impact of that rule’s re-
striction as an obstacle to its above-described bargaining
strategy. Thus, it set out to correct the problem, in the proc-
ess trying to portray the belated change as no more than a
clarification, instead of a change. However, as concluded
above, Beincourt’s letter did announce a change. Respondent
was not at liberty to try to perfect its bargaining strategy by
simply adding at the last minute a change to a provision
whose significance it had previously overlooked. Under the
Act, a party to negotiations is not free to ‘‘exceed[] its last
offer,’’ Eastern Maine Medical Center v. NLRB, 658 F.2d 1,
13 fn. 11 (9th Cir. 1981), by belatedly adding changes to re-
pair earlier omissions without giving the other party ‘‘a
chance to discuss the specifics of any proposal before it is
implemented.’’ Peerless Roofing Co. v. NLRB, 641 F.2d 734,
735 (9th Cir. 1981).
As pointed out in subsection III,A, supra, Respondent ar-
gues that there had been an understanding that either party
was free to make changes before the employees ratified
agreement on all terms for a contract. That had not occurred
when Beincourt’s letter had been sent. Yet, Respondent’s
conduct in connection with its announcement that Local Rule
9 would be eliminated was not consistent with Beincourt’s
uncontroverted description of how that understanding was to
operate. During negotiations, Beincourt testified, he had pro-
posed that any party would be free to make changes prior
to ratification and,
Mr. Crane didn’t have any problem philosophically
with that position, but he insisted that his words were
something to the effect of, ‘‘Well, let’s not do it
through letters. Call us back or we’ll call you back, if
there’s any issue that needs to be clarified.[’’]
We have to call the other party back to the bargain-
ing table. We agreed to do that.
But on August 8, 1991, Beincourt followed the very
course that he admitted had been understood would not be
followed in making proposed changes. Rather than refraining
from announcing the change by letter and, instead, calling
the Union to notify it of Respondent’s decision to add Local
Rule 9’s elimination to the list of changes to be imple-
mented, Beincourt sent a letter to Crane and Miller. He never
claimed that he had even tried to call Crane in connection
with that addition. Accordingly, whatever force it might de-
rive in other circumstances from this understanding with the
Union, Respondent cannot rely on an understanding whose
very procedure it concededly disregarded.
Respondent further argues that before eliminating Local
Rule 9’s restriction, it had offered an opportunity for the
Union to resume negotiations and discuss abolishing that
rule. In so arguing, Respondent points to the above-quoted
final paragraph of Beincourt’s letter of August 8, 1991. Yet,
this argument is not as persuasive as Respondent urges. Al-
though the Union never challenged Respondent’s assertion in
Beincourt’s letter that Local Rule 9’s elimination was con-
sistent with Respondent’s overall bargaining position and
never accepted Respondent’s offer to meet for discussion
about it, neither the assertion nor the offer is as appealing
as they might facially seem. First, as discussed above, Local
Rule 9’s elimination was not ‘‘consistent with [Respond-
ent’s] position at the table,’’ and, as participants in the nego-
tiations, the Union’s representatives were well aware that
such a statement misrepresented Respondent’s admitted ear-
lier position that its proposals did not affect Local Rule 9’s
continued viability. By virtue of that blatant misrepresenta-
tion, Respondent naturally called into question the good faith
of its own expression of willingness to bargain about the be-
lated addition to its list of intended changes.
Of perhaps greater significance, Beincourt’s letter states
that Respondent intended to effect ‘‘implementation [of its
final offer] on August 10th.’’ At no point in that letter, nor
by any other means so far as the evidence shows, did Re-
spondent offer to delay implementation of its final offer, nor
at least of its intent to abolish Local Rule 9, until such time
as the Union had an opportunity to evaluate the effect of that
rule’s elimination, formulate a bargaining position regarding
that subject, and engage in meaningful bargaining with Re-
spondent concerning this belated announcement. Two con-
175LOUISIANA-PACIFIC CORP.
sequences flow from that circumstance. First, the letter left
the Union with less than 48 hours to fulfill its bargaining ob-
ligation to unit employees, by trying to prepare for and en-
gage in meaningful negotiations concerning the rule’s an-
nounced abolition. In fact, Beincourt’s letter was not faxed
to Crane and hand-delivered to Wilson until around noon of
August 8, 1991, thereby leaving the Union with but a single
full workday before ‘‘implementation on August 10th.’’
Crane’s office is in Walnut Creek, California, over a hun-
dred miles south of the Samoa pulp mill. At the time,
Beincourt’s office had been in Portland, Oregon, well to the
north of that pulp mill. As a result, this was not a situation
where Crane could simply walk across the street or drive a
few miles down the road to meet with the Union’s officers,
and perhaps some of the unit employees, to discuss the rule’s
announced elimination and, then, to immediately discuss its
elimination face to face with Beincourt and Respondent’s
other representatives. In sum, the timing of the announce-
ment hardly accorded ‘‘adequate time [for the Union] to con-
sider and respond to [Respondent’s] proposal[].’’ Southwest
Forest Industries v. NLRB, 841 F.2d 270, 273 (9th Cir.
1988).
A second, independent, consequence of the abbreviated
time between Beincourt’s announcement of Local Rule 9’s
elimination and implementation of that change on August 10,
1991, is that the letter created the appearance, if not the re-
ality, that bargaining about the added change would be fu-
tile—that Respondent was simply going through the motions
of offering to bargain about an already finalized decision to
implement an additional, and belatedly announced, change at
the same time that it implemented the previously and law-
fully announced changes in the attachment to Beincourt’s let-
ter of July 31, 1991. In other words, in the circumstances
‘‘the unilateral change was effectively implemented when it
was announced,’’ ABC Automotive Products Corp., 307
NLRB 248 (1982), and Respondent had no intention of bar-
gaining with an open mind about its possible retention.
To be sure, properly conducted negotiations about elimi-
nation of Local Rule 9’s restriction might not have yielded,
in the end, an agreement concerning Respondent’s proposed
change. Yet, in the circumstances, any conclusion about the
outcome of any negotiations about the rule’s restriction, had
Respondent given proper notice of willingness to undertake
them, is speculative. Respondent is the party that belatedly
announced the additional change in employment terms. It has
not shown that its abrupt reversal of position concerning con-
tinued viability of Local Rule 9’s restriction would not have
generated a counterproposal and could not have led to mean-
ingful negotiations concerning continuation or modification
of the restriction embodied in Local Rule 9. In sum, there
is no basis in the evidence for concluding that proper notice,
and a properly afforded opportunity to engage in meaningful
bargaining about the addition of Local Rule 9 to Respond-
ent’s list of changes to be implemented, would not have led
to further negotiations between the parties.
For the foregoing reasons, I conclude that a preponderance
of the evidence does not establish that the Union’s non-
response to the letter of August 8, 1991, constituted a waiver
of its right to adequate proper notice and an opportunity to
bargain about elimination of Local Rule 9’s restriction.
Therefore, I conclude that Respondent’s belated addition of
that restriction’s elimination to the list of already announced
changes to be implemented on August 10, 1991, violated
Section 8(a)(5) and (1) of the Act.
C. Change in the Red-Circle Rate Benefit
As described in subsection III,A, supra, the General Coun-
sel alleges that Respondent violated Section 8(a)(5) and (1)
of the Act by changing an agreed-on red-circle procedure in
a manner that deprived employees of a benefit they had al-
ready earned as a result of that agreement. This particular al-
legation requires examination of essentially three areas: past
interpretation of Exhibit A, section I, subparagraph C,10 of
the 1989–1991 contract, discussions conducted by the parties
in mid-August 1991 regarding red-circling, and bargaining
that occurred after the chip dump Cat operators’ claim had
arisen.
As to the contractual provision itself, there is no evidence
that it had been interpreted to apply in favor of employees
who job classification had not been eliminated by a reduction
in force. Thus, Exhibit A, section I, subparagraph C,10 be-
gins by applying its terms only to situations where Respond-
ent ‘‘permanently eliminates an established regular job clas-
sification.’’ There is no evidence whatsoever of past in-
stances where that qualification had been disregarded when-
ever particular employees’ jobs had been eliminated. Nor is
there any evidence that an interpretation eliminating that
qualification had been the subject of previous negotiations,
much less that there had been a prior understanding by the
parties to, in effect, tacitly rewrite that threshold qualification
out of Exhibit A, section I, subparagraph C,10.
In an apparent effort to supply such evidence, Crane testi-
fied that during negotiations in July 1991, Greenhalgh had
asked for the Union’s interpretation of the red-circle rate
contractual provision, Miller had replied that it applied to
employees with more than 5 years’ service who lost their
jobs because of a closure, and Greenhalgh had said that also
was Respondent’s position. Then, testified Crane, at a meet-
ing ‘‘around August 5,’’ Greenhalgh once more had agreed
to the Union’s assertion that wages would be red-circled for
all employees with more than 5 years’ seniority whenever
there was a closure. However, Crane’s convenient description
of these events appeared no more reliable than his assertions
concerning discussions about Local Rule 9 during negotia-
tions, as described in subsection III,B, supra.
At the outset, there simply is no corroboration for Crane’s
testimony about these asserted red-circle rate conversations.
Most particularly, though present during the hearing, Miller
never confirmed having participated in the July conversation
described by Crane. Furthermore, while Employment Man-
ager and Housing Manager Filgas testified that the subject of
red-circling had been discussed at a Standing Committee
meeting on July 9, 1991, there is no evidence that Crane had
attended that, or any other, Standing Committee meeting.
Nor is there any objective evidence that those Standing Com-
mittee discussions had been pursued into the concurrently oc-
curring negotiating sessions, as Crane seemed to be trying to
claim. Accordingly, I conclude that a preponderance of the
evidence does not support an argument that there had been
an historic understanding that, despite its express terms to the
contrary, Exhibit A, section I, subparagraph C,10 would be
interpreted to allow rates to be red-circled even for employ-
ees whose job classification had not been eliminated.
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As Respondent points out in its brief, however, ‘‘accounts
of the July 9 Standing Committee meeting [have] little, if
any, bearing on the issue,’’ because, ‘‘The main crux of this
case concerns the agreement reached by the parties at the
August 14 Standing Committee meeting.’’ Moreover, Re-
spondent concedes that the substance of that particular agree-
ment did remove the requirement of job classification elimi-
nation as a condition for receiving red-circle rate treatment.
However, as described in subsection III,A, supra, Respondent
contends that only an ‘‘informal agreement’’ concerning that
subject had been reached on that date. Yet, as pointed out
in that subsection, the Act does not differentiate agreements
by type and, then, grade their significance based on the par-
ticular type of agreement at issue. Absence of accompanying
ruffles and flourishes does not accord second-rate status to
a particular agreement, so long as one was reached, under
Section 8(d) of the Act.
A more significant consideration is the scope of the red-
circle agreement reached by the parties in August 1991. To
be sure, it arose as a result of Respondent’s closure of power
boilers and associated equipment. Moreover, while item 7 of
the Standing Committee minutes for its meeting of August
14, 1991, quoted in subsection III,A, supra, recite that, ‘‘No
wage reductions will take place for red circled employees,’’
those minutes also show that the discussions during that
meeting had pertained to the boiler shutdown. Consequently,
there is some basis for concluding that the red-circle agree-
ments had been confined only to the 37 employees affected
by that shutdown.
However, Greenhalgh conceded that the August agreement
had not been so limited by the parties themselves. For, he
testified that after the two chip dump Cat operators had
claimed the benefit of that agreement, he had reported to his
superiors ‘‘that we had probably provided a benefit that . . .
some of the employees weren’t entitled to under the [expired
collective-bargaining] agreement,’’ by providing red-circle
protection to employees ‘‘who had lost their jobs, but their
classification had not been eliminated.’’ Moreover, it is un-
disputed that Respondent had then set out to negotiate modi-
fication of that August red-circle agreement so that it would
apply no further than to the 37 power boiler and associated
equipment employees. As a result, Respondent’s own admis-
sions and course of conduct establish that it had understood
its agreement with the Union in August 1991 to extend to
all employees whose jobs would be eliminated, not merely
to those who lost jobs as a result of the power boiler and
associated equipment shutdown.
Apparently, Respondent had made the red-circle agreement
under the mistaken belief that it simply had been abiding by
the expired contract’s Exhibit A, section I, subparagraph
C,10. Yet, there is no evidence that the Union had misled
Respondent into such a belief. Nor is there evidence that the
Union had been aware of Respondent’s subjective impres-
sion. Respondent’s bargaining obligation has not terminated
as a result of the contract’s expiration and implementation of
its final offer. As ongoing events affecting unit employees
arose, Respondent had a continuing obligation to negotiate
about their effects on employees represented by the Union.
The fact that, in the course of doing so, Respondent offered
an employment term more beneficial to employees than the
contractually specified one did not oblige the Union to chal-
lenge or contest that offer. Nor, given the myriad reasons
that parties make proposals, did such an offer serve as some
form of notice to the Union that, in effect, Respondent did
not know what it was doing in making such a proposal. A
party to negotiations is entitled to assume that the opposing
party is competent to understanding the consequences of its
own proposals. Accordingly, the Union cannot be faulted for
accepting at face value Respondent’s red-circle rate offer,
even though it turned out that, from Respondent’s perspec-
tive, it created a less than desirable situation. The Union’s
agreement to that proposal created a term and condition of
employment that Respondent was obliged to continue honor-
ing.
Of course, since the August red-circle rate agreement had
not been a contractual one, Respondent remained free there-
after to give notice that it wanted to modify that agreement
by resurrecting all qualifications enumerated in Exhibit A,
section I, subparagraph C,10. However, a party is not free to
hold hostage already conferred benefits as a device for com-
pelling the other party to accept future changes in those ben-
efits. That is, an employer cannot withhold employees’
wages for past work, for example, to extract their bargaining
agent’s agreement to a wage reduction for future work. In
the final analysis, that is what occurred here.
Respondent admittedly made a broad agreement to red-cir-
cle rates for employees whose jobs were eliminated, without
regard to elimination of their job classifications. Nine em-
ployees—seven power boiler and associated equipment em-
ployees and two Cat operators—qualified for that benefit be-
fore Respondent returned to the Union and proposed restor-
ing all contractual conditions for red-circle rate benefits. Re-
spondent was free to pursue that course of conduct. It was
also free to implement that proposal in the future, once it had
bargained in good faith to a legitimate impasse. But, the Act
does not allow a party to rescind and withdraw benefits
earned prior to agreement or impasse. Nor does it permit a
party to utilize withdrawal of already earned benefits to lever
concessions from the other party in negotiations. Therefore,
by rescinding the red-circle rate benefits already conferred by
the August 1991 agreement, Respondent violated Section
8(a)(5) and (1) of the Act and, furthermore, inherently tainted
the bargaining and any impasse that otherwise would have
resulted from those negotiations.
D. Performance of Unit Maintenance Work by
Sawmill Employees
It is undisputed that Respondent never gave prior notice to
the Union in September 1991 when it sent a store’s forklift
for transmission overhaul and, also during that same month,
a heavy Cat loader for repairs by nonunit sawmill employees.
Similarly, during December 1991, without prior notice to the
Union, three pulp mill 988 Cat loaders were repaired by
nonunit sawmill employees. Although major mechanical
work on pulp mill machinery had been ordinarily performed
by independent contractors, prior to September 1991 less
major mechanical work on the pulp mill’s machines had been
performed by three mechanics and one serviceman employed
in the pulp mill and included in the bargaining unit. As a re-
sult, it is undisputed that the above-described forklift and
loader repair works had been performed ordinarily by em-
ployees in those job classifications.
The General Counsel alleges that by allowing unit work to
be performed by nonunit employees without prior notice to
177LOUISIANA-PACIFIC CORP.
the Union, and affording it an opportunity to bargain about
that subject, Respondent violated Section 8(a)(5) and (1) of
the Act. Respondent argues that under its implemented em-
ployment terms, enumerated in the attachment to Beincourt’s
letter of July 31, 1991, Respondent had been allowed to
transfer mechanical work to nonunit employees. However, as
stated in subsection III,A, supra, the evidence does not sup-
port what, in effect, is a plea in avoidance. In the first place,
no official of Respondent ever testified as to the reason for
having chosen to have that repair work performed by nonunit
sawmill employees. Consequently, there is no testimony sup-
porting Respondent’s argument that the repair work transfers
had been made pursuant to the terms of Respondent’s imple-
mented offer. Nor, for that matter, is there evidence that the
implemented terms had even been considered before any of
those equipment transfers had been made.
Aside from that fact, the evidence shows that those work
transfers to the saw mill had not been made in conformance
with the terms of Respondent’s final offer. In making that ar-
gument, Respondent points to the 14th paragraph of the at-
tachment to Beincourt’s letter. In pertinent part, that provi-
sion states: ‘‘Provide that [Respondent] has the sole right,
after prior conferral with the Union, to eliminate or change
jobs on progression ladders and to vary manning levels with-
in the maintenance trades.’’ (Emphasis added.) Inasmuch as
Respondent acknowledges that it never had given notice to
the Union before sending the forklift and loaders to the saw-
mill for repair by nonunit employees, it obviously failed to
satisfy the italicized requirement of item 14 of its own imple-
mented offer. In consequence, that implemented change can-
not stand as a defense to the unilateral change in perform-
ance of repair work by unit employees.
Nor can it be persuasively maintained that sending unit
maintenance work to the sawmill had been somehow consist-
ent with Respondent’s general bargaining strategy concerning
maintenance work and that the Union should have under-
stood as much. As discussed in subsection III,B, supra, al-
though Respondent’s general bargaining objective had been
to operate with fewer employees, it had chosen generally to
do so by expanding the ability of statutory supervisors and
contractors to perform unit work. So far as the evidence dis-
closes, at no point did Respondent’s negotiators even suggest
the specific possibility that unit work would be transferred to
nonunit employees as a means of operating with fewer em-
ployees.
To be sure, Respondent’s eighth proposal, quoted in sub-
section III,B, supra, seems to allow removal of all restric-
tions on Respondent’s ‘‘right to determine manning’’ for the
maintenance department. Yet, that proposal was made in the
context of a specific proposal to remove the 1974 mainte-
nance floor imposed by Exhibit A, section II, subparagraph
9(a), as also quoted and discussed in subsection III,B, supra.
Consequently, a respectable basis exists for concluding that,
independent of that 1974 crew floor, proposal 8 did not con-
template transfers of unit work to nonunit Samoa complex
employees. In any event, that proposal was implemented by
the attachment’s above-quoted item 14 and, as pointed out
above, the forklift and loaders were transferred to the saw-
mill for maintenance without compliance with the imple-
mented term’s required ‘‘prior conferral with the Union.’’
Accordingly, by its own disregard of that requirement, Re-
spondent fouled the nest of any argument based on the em-
ployment terms that it implemented on August 10, 1991.
Before concluding this discussion, one further point is
worth mentioning. As described in subsection III,A, supra,
the pulp mill had been closed temporarily from mid-October
to late-December 1991. As a result, the three mechanics and
one serviceman had not been working when the three 988
Cat loaders had been transferred for repair to the sawmill.
However, unilateral action ‘‘interferes with the right of self-
organization by emphasizing to the employees that there is
no necessity for a collective bargaining agent.’’ May Stores
Co. v. NLRB, 326 U.S. 376, 385 (1945). By proscribing uni-
lateral action, the Act ‘‘prevent[s] the employer from under-
mining the union by taking steps which suggest to the work-
ers that it is powerless to protect them.’’ NLRB v. Advertisers
Mfg. Co., 823 F.2d 1086, 1090 (7th Cir. 1987). Those poli-
cies, and the harm which they are intended to prevent, are
not altered in any fashion by the fact that represented em-
ployees happen to be temporarily laid off at the time of the
employer’s unilateral action.
During the shutdown, Respondent had periodically recalled
one of the unit’s storeroom clerks to perform needed work
and had recalled three of those clerks before the shutdown’s
conclusion to perform certain work. There is no basis for
concluding that Respondent could not at least have bargained
with the Union and given it the opportunity to propose a
similar or other course of action concerning repair of the 988
Cat loaders. And, of course, there had been no temporary
shutdown in progress at the time that the forklift and heavy
Cat loader had been transferred to the sawmill for repair in
September 1991.
Continued performance of unit work is a mandatory bar-
gaining subject, Fibreboard Products Corp. v. NLRB, 379
U.S. 203 (1964), subject to certain qualifications not applica-
ble here. First National Maintenance Corp. v. NLRB, 452
U.S. 666 (1981). Therefore, I conclude that by having failed
to give notice and an adequate bargaining opportunity to the
Union before transferring machinery to the sawmill for re-
pairs ordinarily performed by unit employees, Respondent
violated Section 8(a)(5) and (1) of the Act.
E. Events During the 1991 Pulp Mill Shutdown
As described in subsection III,A, supra, from mid-October
until after Christmas 1991, Respondent’s pulp mill had been
closed. During that closure Respondent filled an order for
pulp by having a competitor supply it. In early 1992, it filled
one of that competitor’s order for a like amount of pulp. Re-
spondent acknowledges that it gave no prior notice and bar-
gaining opportunity to the Union with regard to that arrange-
ment. Based upon these facts, the General Counsel alleges
that Respondent unilaterally subcontracted unit work in vio-
lation of Section 8(a)(5) and (1) of the Act.
As pointed out in subsection III,A, supra, Respondent
takes issue with that characterization, arguing that the trans-
action had been an in-kind product trade, not a subcontract
of work. Yet, such a characterization is no more than a word
game. Regardless of how the transaction is characterized, it
resulted in the movement of work ordinarily performed by
Respondent’s unit employees to employees not employed in
the bargaining unit at Respondent’s pulp mill. As a result,
unit employees were deprived of income during late 1991
from work that they ordinarily performed. Continued per-
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
formance of unit work is a mandatory subject of bargaining,
as pointed out in subsection III,D, supra. Accordingly, re-
gardless of the label affixed to the transaction, Respondent
failed to satisfy the statutory obligation to give the Union no-
tice of and an opportunity to bargain about the mandatory
subject of unit work performance.
While Respondent does not actually challenge that general
proposition, it advances arguments that, it contends, establish
that the pulp trade fell within a limitation or exception to the
general proposition that notice, and an opportunity to bar-
gain, must be provided before specific unit work can be
transferred to nonunit employees. First, Respondent argues
that it is under no obligation to accept specific orders from
specific customers and, inferentially, that it had no obligation
to bargain about doing so in any particular instance, such as
with respect to the order from Itoh. As far as it goes, that
argument is correct. However, the General Counsel is not al-
leging that Respondent failed to bargain about whether or not
to accept Itoh’s order. Rather, the allegation is that Respond-
ent failed to satisfy a bargaining obligation that arose from
events that followed as a consequence of Respondent’s deci-
sion to accept that pulp order. After all, Respondent is under
no obligation to continue operating a business. But having
chosen to do so, it is required to observe obligations imposed
by the Act. So too, having accepted Itoh’s order, it is obliged
to follow the Act’s restrictions with respect to filling that
order.
A facially more compelling argument is that it would have
been too expensive to reopen the pulp mill to process Itoh’s
order and, consequently, that Respondent made a good faith
business decision to effect a product trade for which no alter-
native could have been provided realistically through the bar-
gaining process. Yet, it is settled that unlawful unilateral ac-
tion is not excused by a claim of ‘‘good faith nor [a] claim
of economic justification,’’ NLRB v. Amoco Chemicals
Corp., 529 F.2d 427, 432 (5th Cir. 1979), nor will it be ex-
cused by ‘‘the emergency nature of the situation.’’ NLRB v.
Hondo Drilling Co., 525 F.2d 864, 867 (5th Cir. 1976), cert.
denied 429 U.S. 818.
It may well be that, even had Respondent satisfied its stat-
utory obligation of affording notice and a bargaining oppor-
tunity to the Union, negotiations would have yielded no al-
ternative course of action for providing pulp to Itoh, in light
of the costs of reopening and reclosing the pulp mill. How-
ever, in light of the merely generalized evidence concerning
that subject, the record provides no basis for concluding with
any certainty that no such alternative course could have been
developed as a result of negotiations—at least to the extent
that only some, if not all, unit employees could have earned
income from providing pulp for Itoh in late 1992.
Certainly, Respondent has produced no evidence that it
would have suffered any economic detriment from passage
of the time needed to notify the Union of Itoh’s order and,
if a timely request to promptly discuss it had been received
from the Union, to bargain about the ability of unit employ-
ees to perform at least some of the work needed to fill it.
Of course, unit employees were paid for filling Simpson’s
like order in 1992. However, that fact is not so compelling
a consideration as Respondent now seeks to portray it. As
every creditor appreciates, timing of money’s receipt is a ma-
terial consideration. Thus, the fact that employees received
income for work performed in early 1992 does not erase det-
riment they suffered as a result of not having been provided
with an opportunity to bargain about possibly earning it in
late 1991.
Beyond that consideration of timing of income receipt,
there is no evidence that the existence of Simpson’s order
had any effect whatsoever on the unit employees’ return to
work at the end of 1991, nor on their ability to work con-
tinuously thereafter during early 1992. That is, Respondent
presented no evidence showing that the back side of its ar-
rangement with Simpson had led to earlier recall of the pulp
mill employees than would otherwise have occurred. Simi-
larly, Respondent presented no evidence to show that but for
the need to fill the order for Simpson, unit employees would
not have been able to work continuously during 1992’s first
calendar quarter. Accordingly, there is no evidence that the
existence of the need to fill Simpson’s order had enhanced
unit employees’ employment opportunities.
It must be kept in focus that, in the final analysis, the Act
does not oblige Respondent to succeed in negotiating an ar-
rangement satisfactory to the Union and the employees that
it represents. Instead, Respondent had been obliged to do no
more than offer a bargaining opportunity to the Union and,
within reason, try to negotiate a mutually satisfactory ar-
rangement. See generally Foodway, 234 NLRB 72, 77
(1978). Respondent has presented no evidence showing that
it would have suffered any detriment by having taken those
steps. In contrast, as pointed out in subsection III,D, supra,
unilateral action undermines a bargaining agent by conveying
the message that it is powerless to protect employees and
‘‘that there is no necessity for a collective bargaining agent.’’
May Stores Co. v. NLRB, supra.
Finally, Respondent argues that the pulp transaction ar-
ranged with Simpson had been consistent with a practice of
past product and material trades with competitors to which
the Union had never voiced any objection. Yet, waiver of the
statutory bargaining obligation is not established merely by
a bargaining agent’s past failure to object to similar unilateral
conduct. See, e.g., Ciba-Geigy Pharmaceuticals Division v.
NLRB, 722 F.2d 1120, 1127 (3d Cir. 1983). Furthermore,
Respondent has presented no evidence whatsoever that the
Union had even been aware of whatever past trades had been
made by Respondent and its competitors. The absence of
such evidence nullifies any contention that past failures to
protest those trades constitutes a waiver and establishes a
past practice allowing them to be effected in the future with-
out affording the Union prior notice and an opportunity to
bargain about them.
In addition, there is no particularized evidence of past ma-
terial and product trades of the magnitude of the 5000-ton
pulp trade arranged with Simpson. Pulp Mill Manager Martin
provided a generalized account to the effect that past trades
had occurred. But he gave no more than a generalized de-
scription of items involved and circumstances under which
those trades had taken place. At no point does his testimony
about those incidents show that they had been similar in
magnitude to the volume of pulp involved in Respondent’s
arrangement with Simpson.
Therefore, I conclude that a preponderance of the evidence
establishes that Respondent violated Section 8(a)(5) and (1)
of the Act by failing to notify and offer to bargain with the
Union about performance of unit work by nonunit employees
before arranging to have Simpson perform unit work. That
179LOUISIANA-PACIFIC CORP.
leaves for consideration in connection with the temporary
shutdown the allegation involving the work of the pulp mill
shipping and receiving department during it. As set forth in
subsection III,A, supra, the General Counsel does not chal-
lenge Respondent’s decision to layoff all four storeroom
clerks during the pulp mill’s 1991 shutdown. Nor does the
General Counsel contend that Respondent violated the Act
by deciding to stop deliveries of pulp mill supplies during
that shutdown. Finally, while there is evidence of occasional
removal by supervisors of items from inventory, the General
Counsel was permitted to withdraw the supervisory portion
of this allegation. That leaves three areas for evaluation.
First, although it is not altogether clear, the General Coun-
sel appears to contest the decision to store whatever supplies
were received, because their delivery could not be stopped,
for the storeroom. The record shows that these deliveries
were taken to a central location where they were stored until
three storeroom clerks were recalled immediately before
Christmas, before the other pulp mill employees, to distribute
those supplies. In addition, one storeroom clerk had been re-
called on three earlier days during December 1991 to handle
then-needed supplies’ distributions from that central location.
To the extent that the General Counsel may be arguing that
Respondent violated the Act by storing supplies delivered
during the shutdown, rather than return a storeroom clerk to
handle and distribute them immediately upon receipt, I do
not agree.
Obviously, the layoff of all storeroom clerks for the shut-
down’s duration meant that there would be no one to receive
shipments as they were delivered. Yet, the complaint in-
cludes no allegation that the decision not to retain one clerk,
as in the past, had been unlawfully reached or implemented.
Indeed, so far as the evidence discloses, Respondent had sat-
isfied its bargaining obligation by notifying the Union that it
intended to layoff all four clerks. Moreover, unlike the
above-described situation regarding Respondent’s arrange-
ment with Simpson, there is no evidence that the clerks ulti-
mately lost any work as a result of this particular facet of
the shutdown. Incoming materials were simply stored and,
when the clerks returned, they distributed items from that
central location to their appropriate destinations within the
Samoa complex. As a result, the clerks, not someone else,
ended up performing that work and being paid for the work
of recording and breaking down those shipments of supplies
and, then, distributing them.
Second, notwithstanding the above-described general ar-
rangement, not all incoming supplies had been delivered to
that central location. The General Counsel presented 17 in-
voices for shipments of sawmill supplies that had been deliv-
ered to the Samoa complex during the 1991 shutdown. Lead
Stores Clerk Glen Vickers testified ‘‘that particular set of
documents reflects material that would have come to [the
clerks] and been distributed’’ by them in cartons that ‘‘we
would not open,’’ but ‘‘would take [them] and load [them]
in a van and deliver’’ them to the appropriate location within
Respondent’s complex. Respondent does not dispute that it
had not notified the Union and given it an opportunity to
bargain about direct delivery of those supplies to the sawmill
during the shutdown.
Respondent did point out that each of the 17 invoices had
been addressed to No. 1 L-P Drive, which is the address of
the Samoa complex, rather that to the pulp mill or storeroom.
Yet, Respondent presented no evidence that, in fact, those
materials had been delivered directly to the intended destina-
tion within the complex, rather than to the storeroom or to
the designated central location from which distribution of
them had been undertaken by nonsupervisory, nonunit per-
sonnel. Employment Manager and Housing Manager Filgas
did testify that supplies addressed to No. 1 L-P Drive some-
times are delivered by carriers directly to the location within
the Samoa complex where they are to be used. However, he
admitted that he did not ‘‘have first hand knowledge of how
the material comes to the saw mill.’’ More specifically,
Filgas did not claim to know how the supplies covered by
the 17 invoices had gotten to the sawmill.
To be sure, Respondent might have rerouted supplies de-
liveries directly to the sawmill for the shutdown’s duration.
Yet, Respondent presented no evidence to that effect. As a
result, so far as the record shows, there were 17 sawmill sup-
plies deliveries received during the 1991 shutdown, those
supplies ordinarily were received and distributed to the saw-
mill by unit employees, and someone else, not shown to be
a supervisor, had received and distributed supplies from
those 17 shipments, without prior notice to the Union that a
change in ordinary receiving and distributing procedure
would be occurring during the shutdown.
Finally, during their normal working hours of 7 a.m. to
3:30 p.m. the storeroom clerks distribute requisitioned items
to personnel upon presentation of an issue or order ticket by
them. During other hours, when no unit storeroom clerks are
working, supervisors and nonsupervisory personnel obtain a
stores key from a guard and go into the storeroom from
where they pick out needed item(s). There is evidence of off-
hours pickups from inventory stores during the shutdown.
However, since it had been established practice for personnel
to remove items from the storeroom from 3:30 p.m. to 7
a.m., when storeroom clerks are not working, no violation of
the Act can be based on continuance of that practice during
the shutdown.
There is, however, evidence of several items being re-
moved from the storeroom, or perhaps from the central loca-
tion where supplies were being received and stored during
the shutdown, between the hours of 7 a.m. and 3:30 p.m.
during the shutdown. Store Supervisor Sandra Swift admitted
that she had ‘‘filled a few orders’’ between those hours on
November 7 and 18, 1991. Buyer Phillip Sutter testified that
he had filled some orders from inventory, most after 3:30
p.m. However, he did not claim that six other orders had
been filled by him at times other than between 7 a.m. and
3:30 p.m. during the shutdown. Nor did Respondent present
any other evidence that Sutter had filled those six orders
other than between those daytime hours when the storeroom
clerks ordinarily work. In addition, two other orders, one in-
volving Gary Bernardi and the other Bill Manson, had been
filled from inventory during the shutdown. There is no evi-
dence that those two orders had been filled before 7 a.m. or
after 3:30 p.m. Nor did Respondent contend that, on those
occasions during the shutdown, either Bernardi or Manson
had been a statutory supervisor.
Respondent does contend that both Swift and Sutter had
been statutory supervisors and, by virtue of the deletion of
supervisors from the General Counsel’s allegation, that their
removal of inventory items had not given rise to a violation
of the Act. To support that supervisory contention regarding
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Swift, she testified generally that she possessed authority to
discipline employees. But, Respondent presented no particu-
larized evidence that she ever had done so and she acknowl-
edged that she never had actually disciplined anyone. While
she testified that she scheduled the four storeroom clerks and
one salaried person, presumably Sutter, the clerks all work
a regular 7 a.m. to 3:30 p.m. schedule and Respondent pre-
sented no evidence that Swift had ever told any of the clerks
when to perform particular tasks. After testifying that she
possesses authority to ask employees to work overtime, Swift
acknowledged that before doing so, ‘‘I normally would get
an okay through someone else’’ in the maintenance depart-
ment. Moreover, there is no evidence that her asserted au-
thority to grant vacations, as well as days and other time off,
is more than ministerial. Consequently, the evidence is not
sufficient to establish that Swift had been a supervisor within
the meaning of Section 2(11) of the Act.
Even less persuasive is Respondent’s contention that Sutter
had been a statutory supervisor at all times material. In the
final analysis, that contention rests solely on his testimony
that he relieved Swift whenever she was absent from Re-
spondent’s facility. Since I have found that she is not a statu-
tory supervisor, the fact that he relieves her hardly suffices
to establish supervisory status under Section 2(11) of the
Act. Furthermore, even if Swift had been a statutory super-
visor, there is no evidence whatsoever that she is absent from
Respondent’s facility with any regularity and that he fills in
for her other than occasionally. Additionally, there is no evi-
dence that, when doing so, Sutter exercises, or had possesses
authority to exercise, independent judgment in connection
with the supervisory powers enumerated in Section 2(11) of
the Act. Consequently, as is true of Swift, Respondent has
failed to present evidence supporting its assertion that Sutter
had been a statutory supervisor at all times material.
A somewhat facially more appealing contention advanced
by Respondent is based upon the undisputed fact that it
would have taken no more than 20 to 30 minutes to fill any
one of the above-mentioned orders and, in some instances,
no more than a few minutes. In short, argues Respondent, the
filling of these orders by nonunit personnel had been only a
minor matter. ‘‘The Board has recognized that not every
minor unilateral change in working conditions constitutes an
unfair labor practice.’’ Xidex Corp. v. NLRB, 924 F.2d 245,
253 (D.C. Cir. 1991). ‘‘For a unilateral change to be unlaw-
ful, it must be ‘material, substantial, and significant.’’’ (Foot-
note omitted.) Litton Systems, 300 NLRB 331 (1990). Stand-
ing alone, a total of 11 instances of less than 30 minutes
each—a total of less than 6 hours—spent filling orders dur-
ing a 2-month period would appear to qualify as not being
‘‘material, substantial and significant.’’ Yet, evidence of fill-
ing orders from stores does not stand alone as the only ship-
ping and receiving department employees’ work performed
during the 1991 shutdown.
As described above, supplies from 17 shipments had also
been received and taken to locations within the Samoa com-
plex. That also is work that unit storeroom clerks ordinarily
would have performed, but for the layoff of all of them dur-
ing the 1991 shutdown. And the distribution of those sup-
plies, like the distributions from inventory by nonunit person-
nel, had been made without affording the Union prior notice
and an opportunity to bargain about those changes in proce-
dure.
Furthermore, those events pertaining to the shipping and
receiving department did not occur in a vacuum. As con-
cluded earlier in this subsection, Respondent failed to satisfy
its bargaining obligation in connection with Itoh’s order.
Moreover, as concluded in preceding subsections, Respond-
ent further violated Section 8(a)(5) and (1) of the Act when
it eliminated Local Rule 9, rescinded benefits already con-
ferred as a result of its red-circle agreement, and transferred
mechanical work to nonunit sawmill employees. In con-
sequence, even if the shipping and receiving department uni-
lateral changes had not been ‘‘material, substantial and sig-
nificant,’’ of themselves, those ‘‘apparently unimportant
change[s] in a working condition take[] on more signifi-
cance,’’ Xidex Corp. v. NLRB, supra, 924 F.2d at 253, in the
context of Respondent’s other unfair labor practices. There-
fore, I conclude that Respondent violated Section 8(a)(5) and
(1) of the Act by unilaterally allowing nonunit employees to
perform shipping and receiving department employees’ work
during the 1991 shutdown.
F. Withdrawal of Respondent’s Offer to Partially
Reimburse Annis
As described in subsection III,A, supra, it is undisputed
that Respondent withdrew its previously made offer to par-
tially reimburse Annis for his medical examination and treat-
ment in San Francisco that followed diagnosis of his pul-
monary impairment. Moreover, Respondent admits that a fac-
tor in that withdrawal decision had been the Union’s decision
to pursue to arbitration a grievance concerning Annis’ job
transfer. That is shown by Greenhalgh’s testimony, quoted in
subsection III,A, supra, and, most specifically, by the portion
of his letter quoted in that subsection to Cawvey on March
22, 1991. Section 7 of the Act protects the right of employ-
ees to file and process grievances. See, e.g., NLRB v. City
Disposal Systems, 465 U.S. 822, 836 (1984). Accordingly,
depriving Annis for that reason of a benefit promised in the
course of his employment relationship violated Section
8(a)(3) and (1) of the Act. But, in the circumstances pre-
sented, analysis cannot simply terminate with that conclu-
sion.
Respondent characterized its partial reimbursement offer as
‘‘analogous to a proposal to settle a pending employment
dispute.’’ Based in that characterization, it contends that it
properly withdrew its offer in light of the time that had
elapsed without any specific response to that offer and the
supposedly inconsistent action of filing and processing
Annis’ grievance to arbitration. However, in the cir-
cumstances, those factors do not provide the support for its
proposed settlement contention urged by Respondent.
Of itself, passage of time without specific acceptance by
Annis of the offer is not a significant consideration. Re-
spondent never placed a time limitation upon acceptance
when Greenhalgh originally made the offer to Annis on Oc-
tober 29, 1991. Respondent has not argued, nor provided evi-
dence to support an argument, that it suffered any detriment
from absence of a more immediate response by Annis to that
offer. To the contrary, on March 22, 1991, almost 5 months
after the offer had been made initially, Greenhalgh wrote to
Cawvey in terms that clearly portrayed the offer as still via-
ble. Indeed, the terms of that particular communication,
quoted in subsection III,A, supra, convey the unmistakable
meaning that the offer would continue to be viable into the
181LOUISIANA-PACIFIC CORP.
future. At no point in that communication did Greenhalgh
express even the slightest concern about timeliness for its ac-
ceptance. Rather, the lone concern that Greenhalgh expressed
in his letter in connection with the reimbursement offer per-
tained exclusively to pursuit of Annis’ grievance to arbitra-
tion. However, in the final analysis, there was no relationship
between the offer of reimbursement for expenses of medical
examination and treatment, on the one hand, and the subject
of the grievance, transfer of Annis from shift millwright to
day shift, on the other hand.
To be sure, in his letter of October 29, 1990, Greenhalgh
conditioned Respondent’s partial reimbursement offer ‘‘on
the basis . . . that there will be no further claims against
[Respondent] in this matter.’’ But that letter makes no spe-
cific mention of any claims other than Annis’ ‘‘expense re-
quest for costs incurred and wages lost while being tested at
the University of California Occupational Pulmonary Depart-
ment in San Francisco.’’ Accordingly, despite the letter’s
generalized reference to ‘‘further claims,’’ the context of that
reference tends to show that Respondent intended its general-
ized terminology to refer only to ‘‘expense request[s] for
costs’’ in excess of the $599 that Greenhalgh expressed will-
ingness to pay Annis. In fact, Respondent admits as much in
its brief: ‘‘Nevertheless, [Respondent] made an offer to pay
Annis $599.00 if Annis agreed that no further claims relating
to the medial examinations be filed against [Respondent].’’
At no point does Greenhalgh’s letter make any specific men-
tion that the job transfer was encompassed, as well.
That is not necessarily surprising since at the time of
Greenhalgh’s offer on October 29, 1991, Annis had not yet
been transferred from shift millwright to day shift. Nor was
he to be transferred for almost another 2 weeks. In footnote
7 of its brief, Respondent argues that it had been aware of
the need to make that job transfer at the time that
Greenhalgh had sent that letter to Annis. However, that argu-
ment suffers from a lack of evidence to support it. In his ex-
planation of reasons for making the offer, quoted in sub-
section III,A, supra, Greenhalgh made no mention whatso-
ever of Annis’ subsequent job transfer as a consideration for
the offer of October 29, 1990.
Nor is the evidence so clear that Respondent had even
contemplated transferring Annis to day shift at the time that
Greenhalgh had sent that letter. Not only did that transfer not
occur until passage of almost another 2 weeks, but approxi-
mately a half year had elapsed since initial diagnosis of
Annis’ condition. Respondent presented no evidence that dur-
ing that period it had even considered, much less reached a
decision concerning, the possible need to transfer Annis to
a different position. In sum, the evidence does not support
Respondent’s argument that Annis’ transfer had been con-
templated by its officials at the time of Greenhalgh’s partial
reimbursement offer on October 29, 1991. Of perhaps greater
significance in the circumstances, not only was no specific
mention of a future job transfer made as part of Greenhalgh’s
offer, but there is no basis in the evidence for concluding
that Annis would likely have understood that Greenhalgh’s
offer encompassed relinquishing any right to protest any sub-
ject other than medical expenses exceeding $599. Indeed, so
far as the record discloses, not until the following March did
Respondent, itself, so contend.
In sum, neither testimonial evidence nor objective consid-
erations support Respondent’s argument that its partial reim-
bursement offer had contemplated waiver of any claim by
Annis other than his already filed ‘‘expense request for costs
incurred and wages lost while being tested at the University
of California Occupational Pulmonary Department in San
Francisco.’’ Accordingly, Respondent cannot expand the
scope of its initial settlement offer by simply pasting on an
added condition as a supposed intended quid pro quo for
having originally made it. Nor is Respondent’s position en-
hanced by two other contentions that it advances.
First, Respondent points out that it had not been ‘‘obli-
gated to pay Annis’ lost wages or expenses related to the
medical examinations in San Francisco.’’ However, this is no
more than a recast form of the argument made in connection
with the Simpson arrangement: That Respondent had no obli-
gation to accept particular orders from specific customers.
Only in this instance, Respondent is arguing, in effect, that
it had no obligation to provide a particular benefit to an em-
ployee. But, as with Itoh’s order, the significant point is not
Respondent’s obligation to undertake a particular course of
action. Rather, having freely chosen to do so, Respondent is
obliged to follow the Act’s requirements and proscriptions in
pursuing its chosen course of action. As Greenhalgh ex-
plained, a belief of benefit derived from Annis’ trips to San
Francisco had led Respondent to offer partial expense reim-
bursement. The Act does not allow Respondent to condition
such an offer on illegal conditions. Nor does it permit the
offer’s later withdrawal because Annis exercised his Section
7 right to file and pursue a grievance pertaining to a sepa-
rate, but unrelated, consequence of his impaired condition.
Second, Respondent argues that there is no evidence that
it harbored animus against Annis, nor has it been shown that
Respondent intended to retaliate against Annis over the
grievance’s processing to arbitration. Yet, animus is not so
narrow a concept that its meaning extends no further than
one of hatred or malice. Dissatisfaction, even mild dis-
satisfaction, with an employee’s protected activity suffices to
supply animus. Here, Respondent does not dispute that it was
dissatisfied with having to defend in arbitration its decision
to transfer Annis to day shift. Thus, animus did exist. More-
over, in a broader sense, animus is one analytical tool for
ascertaining whether causation exists between the exercise of
Section 7 activity and an employer’s action. Respondent ad-
mits that pursuit to arbitration of Annis’ grievance had
caused it to withdraw its partial reimbursement offer to him.
In light of that admission of causation, no evidence of more
extreme antagonism toward Annis is required. Therefore, a
preponderance of the evidence establishes that Respondent
violated Section 8(a)(3) and (1) of the Act when it withdrew
its offer to Annis of partial expense reimbursement.
G. Eaton’s Statements to Nally and Newman
As described in subsection III,A, supra, Nally and New-
man each attributed to Eaton the independently made threat
that overtime assignments would be curtailed if a grievance
was filed about Eaton’s failure to first call Nally and Mills
for available overtime work during the night shift of Novem-
ber 5 to 6, 1991. The fact that an identical threat was attrib-
uted to Eaton on separate occasions by each of two employ-
ees tends to lend some support for a conclusion that the
threat, in fact, had been made. Eaton denied having made
those threats. However, certain factors undermine those deni-
als and tend to support a conclusion that, indeed, Eaton had
182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
threatened Nally and Newman as alleged by the General
Counsel.
First, despite his denials, Eaton’s description of what he
had actually said to Nally and Newman contradicts those de-
nials and tends to support Nally’s and Newman’s accounts.
Thus, during his conversation with Nally, Eaton admitted
having said,
[W]e worked this time on straight time basis before,
and that it was issues like this that always, you know,
make it hard to keep on working overtime, especially
when it can be done on a straight time basis, and, you
know, maybe looking out for the rest of the people
that’s like to work the overtime, that, you know, my
job is to save the company money, and if we can do
it on a straight time basis, it should be, but we have
been doing it on an overtime basis.
Similarly, Eaton conceded having told Newman ‘‘virtually
what I told [Nally]. I said that’s—you know, it’s tough to
keep on paying the overtime for this kind of things.’’ During
cross-examination, Eaton further reinforced Nally’s and New-
man’s accounts by admitting that he had told each of them
that ‘‘the work can be done on a straight time basis and had
been before.’’
Second, further support for the likelihood that Eaton had
made the threats attributed to him is supplied by his own de-
scription of the circumstances underlying overtime assign-
ments in 1991. Though not actually applicable to Baker’s
early call to work on November 6, 1991, Eaton testified that
since 1984 he had followed a particular overtime assignment
procedure worked out with his crew, one of whom had been
a Standing Committee member. In agreeing to that arrange-
ment, testified Eaton, he had specifically qualified his agree-
ment by telling the crew, ‘‘Sure, I’ll give it a try, as long
as there’s no problems.’’ Eaton admitted that prior to Nally’s
protest on November 6, 1991, ‘‘We’ve never had any prob-
lems.’’ Thus, Nally’s grievance and Newman’s effort to
present it to Eaton posed the very circumstance that Eaton
had told his crew must not occur if the overtime arrangement
was to continued by him. That fact, coupled with his above-
quoted acknowledgment of responsibility for saving Re-
spondent money and his admitted statements to Nally and
Newman that ‘‘the work can be done on a straight time
basis,’’ buttress a conclusion that he had, in fact, made the
threat to Nally and, later, to Newman which those two em-
ployees described.
Third, to support Eaton’s general denials, Respondent re-
lies on the testimony of Pulp Mill Superintendent Byron Wil-
son, whose office adjoined that of Eaton during, at least, No-
vember 1991. Instead of corroborating Eaton’s account of his
conversation with Newman, however, Wilson contradicted
Eaton’s account. Thus, the latter testified that Wilson had
joined his conversation with Newman ‘‘about halfway
through the conversation of what Shannon felt about the
grievance,’’ which Newman had characterized as ‘‘a
horseshit grievance, and he didn’t believe in it, and the only
reason he came down there was because he was being pres-
sured to do it.’’ But, Wilson admitted during cross-examina-
tion that he had not overheard any of the conversation be-
tween Eaton and Newman, because the conversation between
those two individuals had ended by the time that he (Wilson)
had entered Eaton’s office.
It is not material to the General Counsel’s allegation
whether or not Newman had personally felt, and had told
Eaton, that there was no basis for Nally to grieve about not
having been called for overtime work. Nally had a statutory
right to file a grievance. As steward, Newman had a statutory
right to process it. Both employees appeared to be testifying
candidly about what Eaton had said to them. Newman’s per-
sonal opinion of the grievance’s merit hardly entitled Eaton
to threaten adverse consequences for employees if that griev-
ance was filed and processed. Therefore, I conclude that a
preponderance of the credible evidence establishes that Eaton
threatened to discontinue overtime work assignments if the
grievance was filed and processed, thereby violating Section
8(a)(1) of the Act. That conclusion is not altered by Re-
spondent’s subsequent payment to Nally and Mills of the
money they would have earned for working overtime, had
one of them been called by Eaton, nor by the absence of cur-
tailment of overtime assignments after Cawvey took over
processing the grievance. For, neither action suffices as a re-
pudiation under the standards set forth in Passavant Memo-
rial Area Hospital, 237 NLRB 138 (1978).
CONCLUSIONS OF LAW
Louisiana-Pacific Corporation, Western Division, has com-
mitted unfair labor practices affecting commerce by threaten-
ing to curtail overtime assignments if a grievance were filed
and processed, in violation of Section 8(a)(1) of the Act; by
withdrawing an offer to partially reimburse an employee for
expenses of medical examination and treatment because a
grievance of that employee was pursued to arbitration, in
violation of Section 8(a)(3) and (1) of the Act; and, without
affording prior notice and an adequate bargaining opportunity
to Association of Western Pulp and Paperworkers, Local 49,
the bargaining agent for hourly paid employees in an appro-
priate bargaining unit of Samoa pulp mill employees, by be-
latedly adding elimination of a layoff restriction to employ-
ment terms to be implemented pursuant of a final offer that
had not previously encompassed elimination of that restric-
tion, by retroactively rescinding the terms and already con-
ferred benefits of an agreement to red- circle wage rates of
employees who lost their jobs, and by assigning pulp mill
mechanic, production, and shipping and receiving department
work to nonunit employees, in violation of Section 8(a)(5)
and (1) of the Act.
REMEDY
Having concluded that Louisiana-Pacific Corporation,
Western Division has engaged in certain unfair labor prac-
tices, I shall recommend that it be ordered to cease and de-
sist therefrom and, further, that it be ordered to take certain
affirmative action to effectuate the policies of the Act. With
respect to the latter, it shall be ordered to reinstate the layoff
restrictions set forth in Local Rule 9 of the 1988–1991 col-
lective-bargaining contract and the red-circle wage rate
agreement of August 1991. It also shall be ordered to rein-
state any employees laid off as a result of its failure to con-
tinue observing the layoff restriction set forth in Local Rule
9 on and after August 10, 1991, and to reinstate the red-cir-
cle wage rate of all employees who qualified for its benefit
183LOUISIANA-PACIFIC CORP.
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
under the agreement of August 1991. In addition, it shall be
ordered to make whole in accordance with normal Board
principles all employees for any loss of pay and benefits suf-
fered as a result of the changes made unilaterally by it, as
well as the estate of Chuck Annis in the amount of $599,
with interest to be paid on the amounts owing as computed
in the manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Louisiana-Pacific Corporation, Western
Division, Samoa, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Changing any term or condition of employment of em-
ployees in the appropriate bargaining unit described below,
without first giving notice to Association of Western Pulp
and Paperworkers, Local 49 and affording it an adequate op-
portunity to bargain about that proposed change. The appro-
priate bargaining unit is:
All hourly paid employees in the Machine Room,
Pulping, Causticizing, Material Handling & Shipping,
Chip Dump, Storeroom, Technical, Recovery, Power
Boiler, and General Departments and all Maintenance
Department hourly paid employees of the pulp mill in
Samoa, California; excluding employees classified as,
or working in, administration, actual supervision,
watchman duties, sales, engineering and drafting, re-
search and technical occupations requiring professional
training, accounting, clerical, stenographic and other of-
fice work.
(b) Rescinding and refusing to honor agreements reached
with the above-named labor organization concerning terms
and conditions of employment for employees in the above-
described bargaining unit.
(c) Withdrawing offers to reimburse employees’ expenses
for medical examination and treatment, or otherwise dis-
criminating against employees because grievances are proc-
essed to arbitration, or because of activity or support for the
above-named labor organization or any other labor organiza-
tion.
(d) Threatening employees with discontinuance of over-
time assignments if grievances are filed.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Restore and observe the layoff restriction set forth in
Local Rule 9 of the 1988–1991 collective-bargaining contract
with the above-named labor organization and, in addition, the
terms of the red-circle wage rate agreement of August 1991.
(b) Reinstate any employee laid off as a result of failure
to continue observing the layoff restriction set forth in Local
Rule 9 and reinstate the red-circle wage rates earned by em-
ployees pursuant to the agreement of August 1991.
(c) Make whole, with interest on the amounts owing, all
employees for any losses of pay and benefits suffered as a
result of elimination of the layoff restriction set forth in
Local Rule 9, of refusal to honor the red-circle wage rate
agreement of August 1991, of the arrangement for unit pulp
production to be performed by employees of Simpson Paper
Company during the final calendar quarter of 1991, of per-
formance of mechanic and storeroom clerk work by nonunit
employees during the last 4 months of 1991.
(d) Preserve and make available to the Board or its agents,
for examination and copying, all payroll, business and other
records necessary to compute the backpay and reinstatement
rights as set forth in the remedy section of this decision.
(e) Post at is Samoa, California complex copies of the at-
tached notice marked ‘‘Appendix.’’3 Copies of that notice on
forms provided by the Regional Director for Region 20, after
being duly signed by its authorized representative, shall be
posted by Louisiana-Pacific Corporation, Western Division
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by it to ensure that those notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps it has taken to com-
ply.