Mccormick-Shires Millwork, Inc.

National Labor Relations Board - Board Decisions

Oct 23, 1987

286 N.L.R.B. 754 (N.L.R.B. 1987)

754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McCormick -Shires Millwork, Inc. and Millmen's
Local No. 1411 , Pacific Northwest Council of
Industrial Workers, AFL-CIO. Case 36-CA-
4000
23 October 1987
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 28 September 1982 Administrative Law
Judge Gerald A. Wacknov issued the attached de-
cision. The Respondent and the General Counsel
filed exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the record and the at-
tached decision in light of the exceptions and has
decided to affirm the judge's rulings, findings, and
conclusions as modified, and to adopt the recom-
mended Order as modified.
We adopt the judge's finding that the Respond-
ent violated Section 8(a)(5) and (1) of the Act by
unilaterally reducing and then raising wages and
replacing the contractual pension and insurance
plans during an economic strike,' by dealing di-
rectly with its employees, and by thereafter reduc-
ing wages for a second time.2
The judge found that the Respondent violated
Section 8(a)(1) by insisting that it would hire re-
turning strikers only as new employees, without
their prior seniority. To remedy this violation, the
judge recommended that the seniority of former
i In adopting the judge's finding that the Respondent made unilateral
changes during the strike in violation of Sec 8(a)(5), we note that the
Respondent attacks that finding on the ground that the parties had
reached impasse prior to those changes For the reasons stated by the
judge, that contention is without merit As the Respondent does not con-
tend that the pendency of the strike otherwise narrowed or cut off its
bargaining obligation , we find it unnecessary to address the questions
raised by such cases as Capitol-Husting Co Y NLRB, 671 F 2d 237 (7th
Cir 1982) See the discussion in Service Electric Co, 281 NLRB 633, 637-
642 (1986) Cf Marbro Co, 284 NLRB 1303 (1987), Corson & Gruman
Co, 284 NLRB 1316, 1318 (1987)
2 The dissent excuses one of the Respondent's unilateral changes-im-
plementation of its last prestrike wage proposal-on the ground that the
strike indicated that the parties were at impasse . The judge correctly re-
jected the Respondent 's contention that the employees ' decision to reject
the parties' tentative agreement and to strike instead created an impasse
See Charles D Bonanno Linen Service v NLRB, 454 U S 404, 414 (1982),
Huck Mfg Co Y NLRB, 693 F.2d 1176, 1186-1187 (5th Cir 1982), enfg
254 NLRB 739 (1981). Had there been a real issue about the existence of
an impasse when the strike began, the Respondent 's contention could
hardly be maintained in the face of the continuance of bargaining during
the strike Colfor, Inc, 282 NLRB 1173 (1987) It is also noteworthy that
the parties had been negotiating little more than 2 weeks before the Re-
spondent claimed that they were at impasse . Finally, to the extent that
the dissent relies on the Respondent 's characterization of its proposal as a
"final" offer and on the employees' rejection of the tentative agreement,
including that offer, it is relying on reasoning similar to that rejected by
the court of appeals in Teamsters Local 175 v NLRB, 788 F 2d 27, 31-32
(D C Cir 1986), denying enf to Bell Transit Co, 271 NLRB 1272 (1984)
strikers be restored and that they be made whole
for any loss of pay or benefits they may have suf-
fered as a result of their losing seniority. The Re-
spondent contends that the record does not support
this finding and remedy. We disagree. We find that
the judge was warranted, on the facts adduced, in
finding an 8(a)(1) violation and in recommending a
make-whole remedy for that violation.
On 7 May 1981, the day the strike began, the Re-
spondent mailed a letter to its bargaining unit em-
ployees, all of whom were on strike. The letter ad-
dressed to each employee informed him that a tem-
porary replacement had been hired to fill his job,
but that as of Monday, 11 May, the temporary re-
placement would become permanent if the striker
had not returned to work. Thereafter, the letter
continued, "should you request rehire we will give
you preference over other persons who have not
been employed here before."3
When the parties met for the first time after the
strike commenced, on 12 May, the Respondent an-
nounced that it already had hired some permanent
replacements . The Respondent told the union nego-
tiating committee that any strikers who wished to
return to work could make application, would be
interviewed with respect to being reemployed, and
if hired would be given new seniority dates.4 (Such
returning strikers would thus have less seniority
than any permanent strike replacements who were
hired before them and retained.) Seven of the 14
strikers returned to work on 13 May, one more on
14 May, and a ninth returned on 26 May.
The Respondent contends that it did nothing to
affect the seniority of the returning strikers, and, in
fact, the record is silent on the actual implementa-
tion of the seniority loss. However, absent any
clarification of their seniority positions, the return-
ing strikers and those who remained out had reason
to believe that the Respondent's 12 May statement,
which advised them that they could make applica-
tion for reemployment and, if hired, would be
given new seniority dates, was in effect. Seniority
was not addressed specifically in the Respondent's
7 May letter setting 11 May as the return-to-work
deadline for avoiding permanent replacement and
telling employees they would retain only a prefer-
ential position for "rehire"; but the Respondent's
statements at the 12 May meeting, as well as subse-
quent bargaining sessions , spelled out the conse-
3 According to the testimony of the Respondent's president , on 7 May
each employee was also sent a copy of G C Exh 5, a letter addressed to
one of the Union's negotiators, announcing that the Respondent regarded
negotiations to be at an impasse and intended to hire replacements and to
"make whatever changes we deem necessary in wages, hours, working
conditions and fringe benefits without contacting you "
4 The Respondent did not contest the General Counsel 's evidence con-
cerning its statements to the Union on the subject of seniority
286 NLRB No. 68
MCCORMICK-SHIRES MILLWORK 755
quences of "rehire" for those strikers who failed to
comply with the deadline.5 Moreover, there can be
little doubt that the Respondent regarded them as
having been "rehired" rather than having resumed
their former status .6 Without taking any further
formal action regarding their seniority, therefore,
the Respondent is responsible for the situation cre-
ated by its actions.
Thus, the Respondent "rehired" strikers who re-
turned after the deadline set, giving them no indi-
cation that the rehiring was on terms other than
those announced to the Union. We find that this
conduct constituted the imposition of an unlawful
limitation on the strikers' reinstatement rights in
violation of Section 8(a)(1).7 Gulf Envelope Co., 256
NLRB 320, 325 (1981); Pittsburgh & New England
Trucking Co., 238 NLRB 1706, 1707 (1978), enfd.
in part mem. 612 F.2d 1309 (4th Cir. 1979) (see
brief description of court's unpublished decision in
Pittsburgh & New England Trucking Co., 249
NLRB 833, 834 (1980), enf. denied 643 F.2d 175
(4th Cir. 1981)). Cf. Gehnrich & Gehnrich, Inc., 258
NLRB 528 fn. 2 (1981) (respondent voluntarily
withdrew seniority-loss proposal).
We also agree with the judge that the Respond-
ent's serious unfair labor practices, committed at
the outset of the strike, converted it from an eco-
nomic strike to an unfair labor practice strike.
However, we find it unnecessary to pass on the
judge's finding that it changed its nature on 7 May,
the day the strike began.
On 7 May the Respondent mailed letters warning
employees of permanent replacement, with their re-
employment rights limited to a preference for
"rehire."8 At the same time, the Respondent appar-
° The Union's negotiators initially treated the Respondent 's 12 May
statement regarding loss of seniority as a bargaining or strike-settlement
proposal and , at one point, were willing to accept that condition in order
to settle all matters in dispute No agreement was reached, however, and
the parties resumed their opposing positions on this issue , which, as the
Respondent states in its exceptions, was "the subject of continuing discus-
sions until the discussions were broken off by the filing of the charge in
this case "
6 Thus, the Respondent 's part-owner and supervisor , Donald Lea, as-
sented at the hearing to the Respondent counsel 's characterization of re-
turning strikers as "former employees" and further testified that , although
they had been earning $9 70 an hour befoie the strike, they were "hired
at $8 00 " Describing an overture he made some time later to one of the
strikers who had not returned to work, Lea testified that he told him the
Respondent "probably would need some help, if he wanted to come out
there and put in an application " Lea also told other nonreturning strikers
that "if they wanted to apply for a job, we would certainly entertain the
idea "
7 The complaint did not allege a violation of Sec 8(aX3) The judge's
make-whole remedy for this 8(a)(1) violation is, in any event , the same as
for a corresponding 8(aX3) or for an 8(a)(5) violation , which we there-
fore need not consider.
a It was not alleged that this in itself constituted an unlawful threat Cf.
Mead Nursing Home, 265 NLRB 1115 ( 1982) (panel majority found use of
term "rehire" with the phrase "you may no longer have a job" was ob-
jectionable conduct)
ently mailed to employees copies of its letter to the
Union, announcing its declaration of an impasse
and its intention to make whatever unilateral
changes it deemed necessary.9 There is no evi-
dence fixing the date employees received these let-
ters, but the Respondent implicitly calculated that
they would receive them before "May 11, 1981 at
the normal starting time," the deadline for return-
ing to work before being permanently replaced.
We find that the strike became an unfair labor
practice strike as of 11 May. The Respondent's
complete rejection of the bargaining process in re-
sponse to the strike, although phrased as if based
on an impasse , seriously impeded successful negoti-
ations and by its nature contributed to prolonging
the strike. See Harowe Servo Controls, 250 NLRB
958, 961, 1056 (1980); Safeway Trails, 233 NLRB
1078, 1082 (1977), enfd. 641 F.2d 930 (D.C. Cir.
1978); Randle-Eastern Ambulance Service, 230
NLRB 542 (1977), enf. denied on other grounds
584 F.2d 720 (5th Cir. 1978).10
AMENDED REMEDY
We shall correct the judge's inadvertent failure
to provide that the Respondent preserve and make
available certain records pertinent to the make-
whole remedy.
We correct the judge's remedy to provide that
backpay to make the employees whole for the Re-
spondent's unilaterally imposed wage decreases and
other unilateral changes shall be computed in the
manner set forth in Ogle Protection Service, 183
NLRB 682, 683 (1970).
Finally, we shall modify the judge's recommend-
ed remedy and Order to provide, in accordance
with the Board's decision in Drug Package Co., 228
NLRB 108 (1977), that the Respondent, on applica-
tion , reinstate all striking employees to their former
or substantially equivalent positions, without preju-
dice to their seniority or other rights and privi-
leges, discharging, if necessary, any replacements
hired after the strike was converted to an unfair
labor practice strike, and make them whole for any
loss of earnings they may suffer as a result of the
Respondent's refusal, if any, to reinstate them, by
payment to each of them of a sum of money equal
to that which each would have earned as wages
during the period commencing 5 days after the
date on which each one unconditionally offers to
9 See fn. 3, supra
10 If this conduct were not a sufficient factor in the prolongation of
the strike, we would not hesitate to find that the strike was converted to
an unfair labor practice strike on 12 May when the Respondent made
clear to the union negotiating committee , which included four striking
employees, that "rehire" meant without seniority See Gulf Envelope Co,
supra at 320 fn 1, 325-326; Interstate Paper Supply Co, 251 NLRB 1423,
1432 (1980)
756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
return to work to the date of the Respondent's
offer of reinstatement, less any net earnings during
such period, with backpay to be computed in the
manner prescribed in F W. Woolworth Co., 90
NLRB 289 (1950), with interest to be computed in
the manner prescribed in New Horizons for the Re-
tarded.' 1 In the event the Respondent has already
rejected, or hereafter rejects, unduly delays, or ig-
nores any unconditional offer to return to work, or
attaches unlawful conditions to its offer of rein-
statement, the 5-day period serves no useful pur-
pose and backpay will commence as of the uncon-
ditional offer to return to work. National Car
Rental System, 237 NLRB 172 (1978).12
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, McCormick-Shires Millwork, Inc., Rick-
reall, Oregon, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 2(b).
"(b) Upon application reinstate the unfair labor
practice strikers and make them whole for any loss
of earnings that they may have incurred in the
manner set forth in the amended remedy section of
this decision."
2. Insert the following as paragraph 2(e) and re-
letter the subsequent paragraphs accordingly.
"(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
11 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short -term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U S C § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
12 As we have found that the strike was converted to an unfair labor
strike on 11 May, at a time earlier than the Respondent gave any indica-
tion that it had hired permanent replacements , it would appear that all of
the strikers are entitled to reinstatement If the strike converted only on
12 May, the determination of reinstatement rights would have to take
into account the Respondent's announcement on that date that it had
hired some permanent replacements But the Respondent has presented
no evidence concerning the number of permanent replacements it had
then hired or, of equal importance , any evidence of its commitment to
those hired as replacements that their status was permanent This is espe-
cially significant in light of the Respondent 's representation to the stnk-
ing employees that it had hired temporary replacements whose status
would change on the strikers' failure to come to work on I1 May In any
event, because we find the strike was converted on 11 May, before any
claim of permanent replacement can be made , the strikers ' reinstatement
rights will not be affected by whether any strike replacements employed
thereafter were temporary or permanent But see NLRB v Mars Sales
Co., 626 F 2d 567, 573 (7th Cir 1980), enfg 242 NLRB 1097 (1979),
NLRB v Murray Products, 584 F 2d 934, 939 (9th Cir 1978), enfg. 228
NLRB 268 (1977) (Employer must show that a commitment of perma-
nent status has been made to strike replacement )
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order."
3. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, concurring and dissenting.
I agree with my colleagues that the Respondent
acted unlawfully when, after it regarded the strike
as having ended, it dealt directly with the employ-
ees and cut wages without showing such urgent
economic necessity to excuse bypassing the Union.
However, for the reasons set forth below, I would
find the Respondent's actions on the strike's com-
mencement and its later implementation of its last
pre-impasse offer to be lawful. In addition, I dis-
agree with my colleague's finding that the Re-
spondent imposed an unlawful limitation on the re-
turning strikers' reinstatement rights. Based on
these findings, and absent proof to the contrary, I
find the economic strike was not converted to an
unfair labor practice strike.
In my view, an employer is not required during
a strike to apply preexisting terms of employment
either to its strike replacements or to returning
strikers. A striking union is not expected to bargain
for strike replacements, whose interests are at odds
with those of the strikers the Union represents.'
Because the interests of returning strikers are more
closely aligned with those of strike replacements
than those of the strikers, 2 I find an employer has
no greater duty to bargain during the strike over
the terms of employment of returning strikers than
it does over those of strike replacements. I there-
fore find the Respondent's unilateral setting of
wages at the commencement of the strike was
lawful. For these same reasons, I find the Respond-
ent's later unilateral actions would also have been
lawful had the Respondent relied on, and estab-
lished, the continuation of the strike to negate its
bargaining obligation. However, as the Respondent
apparently takes the position in its exceptions that
the strike had terminated by the time it made these
later changes, it is precluded from claiming as a de-
fense those special considerations that apply to a
strike situation.
After the majority of the strikers had returned to
work for about 2 weeks, the Respondent imple-
mented the last wage proposal concerning them it
had offered the Union before the strike. In my
view, implementation of the last offer was lawful
because, at that time, the parties were at impasse.
The Respondent and the Union had successfully
i See Leveld Wholesale, 218 NLRB 1344, 1350 (1975)
8 See my further discussion of this view in Service Electric Co, 281
NLRB 633 fn 1 (1986)
MCCORMICK-SHIRES MILLWORK
negotiated at least two prior agreements and bar-
gained in good faith to a tentative new agreement
subject to ratification by the unit employees. When
the employees struck, they rejected the tentative
agreement and thus the Respondent's last offer. As
the Union had already been afforded the bargaining
opportunity to which it was entitled, the Respond-
ent had the right to implement its last offer.3
Concerning the reinstatement of returning strik-
ers, the record reveals that the Respondent made
such a proposal at the parties' first bargaining ses-
sion after the strike commenced and during one
subsequent bargaining meeting. When this proposal
was first made, the Union did not resist. In fact, its
negotiating representative testified that the Union
expressed willingness to accept the Respondent's
proposal concerning the strikers' seniority as part
of a strike-settlement package, but that no settle-
ment was reached because of other unresolved dis-
puted matters. Such a proposed loss of seniority,
made to the employees' bargaining representative
in the context of settlement negotiations, rather
than as a threat directed at striking employees, is
not prohibited by the Act. Moreover, absent proof
that the Respondent implemented any diminution
of the returning strikers' seniority rights, I see no
reason to question the Respondent's denial that it
did so. Accordingly, I would dismiss the relevant
complaint allegations.
Finally, I would not find that the strike, which
began as an economic strike, at any time converted
to an unfair labor practice strike. As discussed
above, the only violations I would find in this case
involve direct dealing and unilateral changes, both
of which the Respondent regards as having oc-
curred after the strike ended. In any event, I note
the well-settled principle "that an employer's unfair
labor practices during an economic strike do not
per se convert it to an unfair labor practice strike,
absent proof of a causal relationship between the
unfair labor practices and the prolongation of the
strike."4 Here no proof of such a causal nexus has
been established between any of the Respondent's
alleged unlawful conduct and the strikers' duration.
Accordingly, I conclude and find that the Union's
strike remained at all times an economic strike.
3 Times Herald Printing Co, 221 NLRB 225 (1975), Chemical Producers
Corp, 183 NLRB 141 (1970)
4 Certified Corp, 241 NLRB 369, 373 (1979), and cases cited See also
Amber Delivery Service, 250 NLRB 63, 72 (1980)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
757
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to bargain in good faith
with Millmen's Local No. 1411, Pacific Northwest
Council of Industrial Workers, AFL-CIO as the
collective-bargaining representative of employees
in the following unit:
All production, maintenance and material han-
dling employees employed at the Rickreall,
Oregon Plant, excluding office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
WE WILL NOT unilaterally decrease your wages
or discontinue the pension or health insurance
plans you enjoyed under the expired collective-bar-
gaining agreement.
WE WILL NOT deal directly with you regarding
wages, hours, and working conditions, rather than
negotiating such matters with the Union which
represents you.
WE WILL NOT cause you to lose seniority or
other benefits in reprisal for engaging in lawful
strike activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make you whole by paying all pension
and health and welfare contributions which should
have been paid as provided in the expired collec-
tive-bargaining agreement.
WE WILL make you whole, including interest,
for the wages you have lost as a result of the uni-
lateral wage decreases we have imposed.
WE WILL restore seniority to former strikers
who have returned to work and WE WILL make
them whole, with interest, for any loss of pay or
758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
benefits they may have suffered as a result of the
discrimination against them . As it has been deter-
mined that the strike which began on 7 May 1981
was converted into an unfair labor practice strike
11 May 1981, we advise that WE WILL reinstate
each of the remaining strikers, on application, to
their former positions, discharging, if necessary,
any replacements hired after the strike's conver-
sion, and WE WILL make such strikers whole for
any loss of earnings they may suffer as a result of
our refusal, if any, to reinstate them in a timely
fashion, with interest.
WE WILL bargain in good faith with the Union
as your collective -bargaining representative in an
effort to reach agreement on a new contract.
MCCORMICK -SHIRES MILLWORK, INC.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is, and has been at all
times material , a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are wheth-
er the Respondent violated Section 8(a)(1) and (5) of the
Act by unilaterally changing wages and discontinuing
certain fringe benefits of its employees; whether it by-
passed the Union and negotiated directly with its em-
ployees ; whether it unlawfully insisted on loss of seniori-
ty for striking employees; and whether the economic
strike which commenced on May 7 , 1981, was converted
into an unfair labor practice strike as a result of Re-
spondent 's alleged unlawful conduct.
Richard V. Stratton, Esq., for the General Counsel.
William B. Wyllie, Esq., of Salem, Oregon, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.
Pursuant to notice , a hearing with respect to this matter
was held before me in Salem , Oregon, on July 27, 1982.
The charge was filed October 6, 1981, by Millmen's
Local No. 1411, Pacific Northwest Council of Industrial
Workers, AFL-CIO (the Union).
Therafter, on November 30, 1981, the Acting Regional
Director for Region 19 of the National Labor Relations
Board (the Board) issued a complaint and notice of hear-
ing alleging a violation by McCormick-Shires Millwork,
Inc. (Respondent) of Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act (the Act).
The parties were afforded a full opportunity to be
heard , to call , examine, and cross -examine witnesses, and
to introduce relevant evidence. Since the close of the
hearing, briefs have been received from the General
Counsel and Respondent.
On the entire record, and based on my observation of
the witnesses and consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is an Oregon corporation engaged in the
manufacture and sale of custom cabinets, with a facility
located at Rickreall , Oregon . Respondent annually sells
and ships from its Rickreall facility finished products
valued in excess of $50,000 directly to customers outside
the State of Oregon . It is admitted , and I find , that Re-
spondent is, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
B. The Facts
The facts are not in material dispute . On April 22,
1981, the parties began negotiating a successive collec-
tive-bargaining agreement . A tenative agreement was
reached on May 6, 1981, contingent on ratification by
the unit employees . Contrary to the recommendation of
union representatives and the negotiating committee, the
employees rejected the proposed contract and, on May
7, 1981, an economic strike commenced . The strike is
continuing to the present time.
On May 7, 1981, Respondent sent the following mail-
gram to the Union:
IT IS OBVIOUS THAT NEGOTIATIONS HAVE BROKEN
DOWN AND THAT THIS MATTER IS AT AN IMPASSE.
ALL OFFERS ARE WITHDRAWN AND WE INTEND TO
MAKE ANY CHANGES WE SEE FIT IN WAGES, FRINGE
BENEFITS, WORKING HOURS OR OTHER CONDITIONS
OF EMPLOYMENT WITHOUT CONTACTING YOU.
Also, on the same date , Respondent sent the following
letter to the Union:
It is apparent from what is happening here today
and what you have said that you have rejected our
offer. That offer was our full and final offer and we
regard this matter as being at an impasse.
Accordingly we are going to hire replacements
and we 're going to make whatever changes we
deem necessary in wages , hours , working conditions
and fringe benefits without contacting you.
The first negotiating meeting following the strike took
place on May 12 , 1981. Respondent stated that it had al-
ready hired some six or eight permanent replacements
and took the position that if any of the strikers were in-
terested in returning to work they would be interviewed
for jobs , and that the seniority date of all employees, in-
cluding the returning strikers , would be their date of hire
following the commencement of the strike. The Union
asked for reinstatement of the Company 's original con-
tract offer that had been withdrawn by the Respondent
MCCORMICK-SHIRES MILLWORK 759
pursuant to the foregoing written communications. Re-
spondent declined to renew its proposal.
About May 14, 1981, 8 or 9 of the total complement of
14 employees had resigned from the Union and returned
to work, and Respondent had also hired replacements for
certain other employees who remained on strike. For a
period of 2 weeks following their reinstatement, Re-
spondent paid the returning strikers about $1.70 per hour
less than they were earning prior to the strike. Thereaf-
ter, commencing on June 5, 1981, Respondent paid the
former employees their old rate of pay plus an additional
4 percent, which amount was consistent with its last
offer to the Union prior to the strike. On April 6, 1982,
Respondent instituted a 15-percent decrease in wages
after discussing its dire economic circumstances directly
with the employees, and apparently giving them the
option of accepting a decrease in wages or, in the alter-
native , a probable layoff.
Another meeting was held on June 24, 1981, and Re-
spondent announced that it was replacing 1 he contractual
pension plan with a profit-sharing plan, and had contact-
ed a different carrier for medical insurance. The Union
asked for a list of names of all current employees, togeth-
er with their job classification and rates of pay. The
Company replied that it would furnish all the informa-
tion except the employees' names as it was fearful of har-
assment of the employees. Apparently this information
was furnished to the Union on June 26. Further meetings
were held thereafter, apparently until about mid-1982,
but the parties have been unable to reach agreement.
Respondent admits that it never refused to negotiate
with the Union subsequent to the strike, and that
throughout the negotiations it never took the position
that the Union no longer represented the employees
However, during the hearing, Respondent presented tes-
timony that at one point during the negotiations a com-
pany representative asked representatives of the Union,
"Are you sure you're representing any of these people?"
C. Analysis and Conclusions
It is clear that from the very outset of the strike the
Respondent was under the erroneous legal assumption
that, as it declared in its May 7, 1981 letter and mail-
gram,' the strike created an impasse situation which
thereupon privileged Respondent "to make any changes
were see fit in wages, fringe benefits, working hours or
other conditions of employment without contacting
you.,,
As stated by the administrative law judge in Mark
Twain Marine Industries, 254 NLRB 1095 at 1113 (1981):
Since it had been held that a union's decision to
strike does not in itself amout to an impasse and it
does not relieve a company from its duty to contin-
ue to bargain, Respondent's unilateral implementa-
tion of the provisions of the labor agreement have
the effect of undermining the bargaining process
which it was obligated to continue and likewise un-
dermine the status of the Union as the exclusive
bargaining representative of employee.
Indeed, even if an impasse existed Respondent would
then be privileged to put into effect only its pre-impasse
proposals. Taft Broadcasting Co., 163 NLRB 475 (1967),
enfd. 395 F.2d 622 (D.C. Cir. 1968). None of the propos-
als it made prior to May 7, 1981, however, included a
wage reduction or withdrawal from the contractual pen-
sion and medical insurance plans. Although Respondent
may have alluded to some of these matters during the
course of continued bargaining subsequent to the strike,2
it is clear that Respondent was not making formal pro-
posals in this regard, but rather was obtusely advising
the Union of a decision the Company had reached, con-
sistent with its expressed belief that it could take any uni-
lateral action if so desired. Such speculative comments
made during negotiations do not fulfill Respondent's bar-
gaining obligation. See Fullerton Transfer, 224 NLRB
480, 487 fn. 33 (1976).
It is clear that Respondent bypassed the Union as the
employees' collective-bargaining representative and held
meetings and had discussions directly with employees.
Such discussions culminated in a substantial wage de-
crease in April 1982. Assuming arguendo that in March
1982, Union Representative Ronald Aasen mentioned to
Donald Lea, one of Respondent's owners, that there was
nothing further to talk about, such a comment which by
its very nature merely reflected exasperation, did not
constitute a license to Respondent to continue engaging
in unilateral conduct with impunity.
Respondent's insistence , commencing shortly after the
strike began, that it would hire returning strikers only as
new employees and that they would lose their prior se-
niority as a direct result of the strike, is inherently dis-
criminatory and a clear violation of the right to strike
protected by the Act. Globe Molded Plastics Co., 204
NLRB 1041 fn. 1 (1973); George Banta Co., 256 NLRB
1197, 1218-1219 (1981); Pittsburgh & New England
Trucking, 238 NLRB 1706, 1707 (1978).
Respondent maintains that some of the unilateral
changes it made, particularly the wage decreases, were
necessitated by financial hardship. Although the record
strongly indicates that this may be the case, it is clear
that such considerations, under the circumstances, do not
justify unilateral action. See Arco Electric Co., 237 NLRB
708, 709 (1978), enfd. 618 F.2d 698 (10th Cir. 1980);
Inland Cities, 241 NLRB 374, 379 (1979), enfd. 618 F.2d
717 (9th Cir. 1980). Thus, the record shows no urgent
economic necessity which would have precluded Re-
spondent from proposing and bargaining over such de-
creases prior to their implementation. Indeed, as noted
previously, Respondent maintains that at one point,
about 3 weeks prior to the institution of the April 6, 1982
wage decrease, it alluded to the Union that a decrease in
wages was a possibility. Again, although such an asser-
tion does not rise to the level of a legitimate bargaining
' The record shows that the Union did not receive a timely copy of
the mailgram
8 One of Respondent's owners, Donald Lea, testified that at one point
in negotiations he said to the union representative, "I'm not sure that
we're not going to have to give a wage decrease "
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
proposal , it does provide evidence that bargaining over
the matter was feasible.
Respondent was not privileged to unilaterally discon-
tinue pension and health and welfare contributions fol-
lowing the expiration of the contract . Rather , such con-
tractual benefits must be maintained even after the expi-
ration of a contract in the absence of a lawful bargaining
impasse . Wayne 's Dairy , 223 NLRB 260, 264 ( 1976);
Cauthorne Trucking, 256 NLRB 721 (1981 ). Respondent's
mistaken belief to the contrary does not operate as a de-
fense to such unlawful conduct.
Respondent 's contention that it was privileged to make
unilateral changes following the strike because it be-
lieved the Union no longer represented a majority of the
unit employees , is likewise without merit . First , through-
out a lengthy period of negotiations the Respondent
never definitively raised the lack of majority status as an
issue . Further, as the Board in Orion Corp., 210 NLRB
633 (1974), enfd . 515 F . 2d 81 (7th Cir. 1975), has stated:
[A] showing as to employee membership in, or
actual financial support of, an incumbent union is
not the equivalent of establishing the number of em-
ployees who continue to desire representation by
that union . There is no necessary correlation be-
tween membership and the number of union sup-
porters since no one could know how many em-
ployees who favor union bargaining do not become
or remain members thereof.
See also Petroleum Contractors , 250 NLRB 604, 607
(1980), enfd . 671 F.2d 496 (3d Cir . 1981).
On the basis of the foregoing , I find that the Respond-
ent has violated Section 8(a)(5) of the Act by unilaterally
changing the wages of employees , unilaterally discon-
tinuing the contractual pension and medical plans, and
by dealing directly with its employees in contravention
of its obligation to bargain with the Union . I further find
that Respondent has violated Section 8 (a)(1) of the Act
by insisting on loss of seniority as a condition of contin-
ued employment or rehire of striking employees.
The unfair labor practices found herein, are sufficient,
I find, to have converted the economic strike into an
unfair labor practice strike , as alleged . Thus, from the
very inception of the strike on May 7 , 1981, Respondent
advised the Union that it considered the matter at an im-
passe and intended to make whatever changes it desired
without contacting the Union . Shortly thereafter , the Re-
spondent imposed an unlawful condition , namely, loss of
seniority , on returning strikers , and thereafter made the
unilateral changes as found above . Based on the forego-
ing, I conclude that the strike was converted from an
economic into an unfair labor practice strike on May 7,
1981, the date when Respondent first set forth its unlaw-
ful intent.
During the course of bargaining , the Union requested
certain information which , although belated , was ulti-
mately furnished the Union . Under the circumstances, I
deem it unnecessary to make a finding that, as alleged,
the delay in furnishing such information was violative of
the Act.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act:
All production , maintenance and material handling
employees employed at the Rickreall , Oregon plant,
excluding office clerical employees, professional
employees , guards and supervisors as defined in the
Act.
4. Since about 1961, and at all times material, the
Union has been the designated exclusive bargaining rep-
resentative of Respondent 's employees in the unit de-
scribed above , and since that date the Union has been
recognized as such representative by Respondent.
5. Respondent has violated Section 8 (a)(5) of the Act
by unilaterally changing employees ' wages , by discon-
tinuing the contractual pension and medical insurance
plan, and by dealing directly with the employees in con-
travention of its duty to negotiate with the Union.
6. Respondent has violated Section 8 (a)(1) of the Act
by conditioning the return of striking employees on their
loss of seniority.
7. The strike, which commenced on May 7 , 1981, was
converted into an unfair labor practice strike on the same
date.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated and is violat-
ing Section 8(a)(1) and (5) of the Act , I recommend that
it be required to cease and desist therefrom and from in
any like or related manner interfering with , restraining,
or coercing its employees in the exercise of their rights
under Section 7 of the Act , and take certain affirmative
action described herein , including the posting of an ap-
propriate notice attached as an Appendix.
Respondent shall be ordered to restore to the former
strikers who have returned to work the seniority they
would have enjoyed but for the discrimination against
them, and to make them whole for any loss of pay or
benefits they may have suffered as a result of the dis-
crimination against them, in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
computed in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977).3 Further, Respondent shall
be ordered to, upon application , reinstate all striking em-
ployees to their former position , without prejudice to
their seniority to other rights and privileges, discharging,
if necessary , any replacements.
Regarding the wage decreases unilaterally imposed by
Respondent , it shall be ordered that Respondent make its
3 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
MCCORMICK-SHIRES MILLWORK 761
employees whole for any loss of wages they may have
incurred as a result thereof, in the manner prescribed
above.
Additionally, Respondent shall be required to make its
employees whole by paying all pension and health and
welfare trust fund contributions, as provided in the ex-
pired collective-bargaining agreement, which have not
been paid, and which would have been paid absent Re-
spondent's unlawful unilateral discontinuance of such
payments, and continue such payments until such time as
good-faith negotiations culminate in a new agreement or
an impasse . Any interest applicable to such payments
shall be made in accordance with the criteria set forth in
Merryweather Optical Co., 240 NLRB 1213 (1979).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, McCormick-Shires Millwork, Inc.,
Rickreall, Oregon, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing to bargain in good faith with the Union by
unilaterally changing the wages or employees and unilat-
erally discontinuing the contractual pension and medical
plans.
(b) Dealing directly with its employees in contraven-
tion of its obligation to bargain with the Union.
(c) Conditioning the rehire of striking employees on
loss of accrued seniority.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Restore to the former strikers who have returned
to work the seniority they would have enjoyed but for
the discrimination against them and make them whole
for any loss of pay or benefits they may have suffered as
a result of the discrimination against them , in the manner
prescribed in the remedy section of this decision.
(b) Reinstate all striking employees to their former po-
sitions, on application, without prejudice to their seniori-
ty or other rights and privileges, discharging if, neces-
sary , and replacements.
(c) Make its employees whole for any loss of wages
they may have incurred as a result of Respondent's uni-
lateral conduct in the manner prescribed in the remedy
section of this decision.
(d) Make its employees whole by paying all pension
and health and welfare trust fund contributions, as pro-
vided in the expired collective-bargaining agreement,
which have not been paid, and which would have been
paid absent Respondent's unlawful unilateral discontinu-
ance of such payments, and continue such payments until
such time as good -faith negotiations culminate in a new
agreement or an impasse.
(e) Post at its Rickreall, Oregon facility copies of the
attached notice marked "Appendix."5 Copies of the
notice, on forms provided by the Regional Director for
Region 19, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, 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 the Re-
spondent has taken to comply.
* If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall , as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
° 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 Nation-
al 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."