Southwest Forest Industries, Inc.

National Labor Relations Board - Board Decisions

Jan 27, 1986

278 N.L.R.B. 228 (N.L.R.B. 1986)

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southwest Forest Industries , Inc., Los Angeles Con-
tainer Division and Graphic Communications
Union District Council #2, Local #388, Graph-
ic Communications International Union, AFL-
CIO. Case 21-CA-22812
27 January 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 13 March 1985 Administrative Law Judge
Clifford H. Anderson issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel also filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by making unilat-
eral changes in unit employees' terms and condi-
tions of employment. He declined, however, to rec-
ommend the usual remedy requiring the Respond-
ent to restore the status quo ante in order to pro-
vide the Union with a. meaningful opportunity to
bargain about the changes at issue . The judge con-
cluded, from the circumstances of this case, that
the Union would not have bargained. Although we
agree with the judge about the Respondent's com-
mission of an unfair labor practice, we disagree
with him concerning the propriety of reinstating
the unilaterally changed wages and working condi-
tions.
The Union has represented the Respondent's em-
ployees for more than 20 years. The latest contract
expired on 23 September 1983,1 after which the
employees went on strike. The parties had held
five negotiating sessions without reaching an agree-
ment. Subsequent to the contract's expiration, the
Union informed a Federal mediator that it would
not agree to meet with the Respondent until the
latter dropped previous proposals for employee
health care contributions and for deletion of the
union-security clause. On 28 November the Re-
spondent delivered a letter to the Union notifying
it of the Respondent's intention to implement a re-
duction in the wage rates of unskilled employees
and other undescribed changes from its last propos-
I All dates refer to 1983
al. The Union did not respond to the letter.2 On
Friday, 2 December, the Union received from the
Respondent a copy of an "Interim Policy Manual,"
which would be effective until a new union con-
tract was negotiated. No cover letter or other ex-
planation accompanied the manual. The manual dif-
fered from the Respondent's last contract offer in
that it eliminated certain unit positions, reduced
wages in certain job classifications, contained a
new management-rights policy,, and changed vaca-
tion and holiday schedules. The manual went into
effect on Monday, 5 December. The Union did not
request bargaining over the changes, but did file an
unfair labor practice charge on 6 December. In
subsequent communications between the parties,
the Union emphasized the need to resolve the al-
leged unfair labor practice.
It is well established that a make-whole order re-
storing the status quo ante is the normal remedy
when an employer has made unlawful unilateral
changes in its employees' terms and conditions of
employment.3 The judge, however, citing Depend-
able Maintenance Co., 274 NLRB 216 (1985), found
that such a remedy was unnecessary, because he
concluded that the Union would not have resumed
bargaining even if the Respondent had given suffi-
cient notice of the changes. We find that Dependa-
ble Maintenance is distinguishable and that a status
quo ante remedy is appropriate. In Dependable
Maintenance, the changes in the terms and condi-
tions of employment were on the bargaining table
prior to the company's unilateral implementation of
them, and the union allegedly continued to bargain
to impasse despite the company's unlawful prema-
ture implementation of the changes. The Board re-
manded the case to the judge to determine whether
the parties had bargained to impasse subsequent to
the unlawful changes and, if so, what effect that
would have on the status quo restoration remedy.
Here, in contrast, the changes had not been the
subject of any bargaining prior to the Respondent's
unlawful implementation of them, and the Union
linked resumption of bargaining to the redress of
the alleged 8(a)(5) violation. Therefore, unlike in
Dependable Maintenance, in which there may not
have been any doubt of the union's bargaining posi-
tion after the respondent committed its unfair labor
practice, the judge's finding here that the Union
would not have bargained with the Respondent
even absent the unfair labor practice was purely
2 The judge found, and we agree , that the Union had sufficient notice
of the specific proposed change in the wage rates of unskilled employees
and that the Union had waived its right to protest subsequent implemen-
tation
8 See, e.g ., Lauren Mfg. Co., 270 NLRB 1307 (1984); Carpenter Sprin-
kler Co, 238 NLRB 974 (1978)
278 NLRB No. 31
SOUTHWEST FOREST INDUSTRIES
speculative. Inasmuch as the Respondent, as the
wrongdoer, bears the risk of any uncertainty that
its wrong has caused, we shall order it to restore
the status quo ante.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Southwest Forest Industries, Inc., Los
Angeles Container, Division, Santa Fe Springs,
California its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraphs 2(a), (b),
(c), and (d) and reletter the subsequent paragraphs.
"(a) Recognize and bargain in good faith with
the Union regarding terms and conditions of em-
ployment of unit employees.
"(b) Restore unit employees' terms and condi-
tions of employment to the level in existence
before the December 1983 changes and continue
them in effect unless or until a new agreement is
reached or an impasse is reached in bargaining.
"(c) Make employees whole for the losses they
incurred as a result of the December 1983 unilater-
al change in employees' terms and conditions of
employment, in the manner set forth in this Deci-
sion.
"(d) 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,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order."
2. Substitute the attached notice for that of the
administrative law judge.
4 The Respondent shall make employees whole for any monetary
losses as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), plus
interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). See
also Isis Plumbing Co, 138 NLRB 716 (1962).
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 ordered us to post and abide by this notice.
229
WE WILL NOT change unit employees ' terms and
conditions of employment at a time when we have
not clearly communicated our proposed changes to
the Union with sufficient time for the Union to bar-
gain about the changes before their implementa-
tion.
WE WILL NOT in any like or related manner vio-
late the terms of the National Labor-Relations Act.
WE WILL recognize and bargain in good faith
with the Union regarding terms and conditions of
employment of our unit employees.
WE WILL restore unit employees' terms and con-
ditions of employment to the level in existence
before the December 1983 Interim Manual changes
and continue them in effect unless or until a new
agreement is reached in bargaining. .
WE WILL make employees whole for the losses
they incurred as a result of the December 1983 uni-
lateral change in the terms and conditions of em-
ployment.
,
Graphic Communications Union, District Coun-
cil #2, Local #388, Graphic Communications
International Union, AFL-CIO represents our em-
ployees in the following unit:
All corr. operators, corr. slitter scorer opera-
tors, corr. assistant to knifeman, corr, roll
shafter, corr. assistant operator, corr. off-
bearer, corr. Starchman, corr. roll grab, cur-
tain coat operator, curtain coat helper, printer
slotter operator, printer slotter assistant, auto-
matic taper operator, inspector, slitter scorer
operator, comet - gluer, Flexo printer folder
gluer, Flexo printer folder assistant, Flexo
stacker, unitizer operator, die mounter, sticher
or taper semi auto operator, jumbo taper,
bobst operator, bobst assistant operator platen
food, platen die cut operator, eccentric slotter
operator, baler operator, fork lift operator,
shipping fork lift, pallet yard fork lift, transfer
car operator, shipping clerk, working foreman,
maintenance working foreman, maintenance
working foreman, bundlers, strippers, slitter
operator, pallet yard, janitor, die wash, box-
maker operator, die maker, band saw operator,
maintenance journeyman, maintenance staff,
maintence helper, assistant Flexo bobst opera-
tor, oiler and clean-up maintenance, excluding
truckdrivers, all the employees, guards and su-
pervisers as defined in the Act.
SOUTHWEST FOREST INDUSTRIES,
INC. Los ANGELES CONTAINER DIVI-
SION
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peter Tovar, Esq., for the General Counsel.
John H. Stephens Esq. (Cox Castle & Nicholson), of Los
Angeles, California, for the Respondent.
Deane Western, Esq., of Norwalk, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on October 2, 1984, in Los Ange-
les, California. The case arose as follows. On December
6, 1983, Graphic Communications Union, District Coun-
cil #2, Local #388, Graphic Communications Interna-
tional Union, AFL-CIO, filed a charge in Case 21-CA-
22812, against Southwest Forest Industries, Inc., Los An-
geles Container Division (Respondent). Based on that
charge, the Acting Regional Director for Region 21 of
the National Labor Relations Board issued a complaint
and notice of hearing against Respondent on February
28, 1984, and issued an amendment to the complaint on
April 23, 1984. Thereafter on August 7, 1984, the instant
case was consolidated with certain other cases by the
Regional Director's order consolidating cases, consoli-
dated amended complaint, and amended notice of hear-
ing. Those cases were subsequently severed by the Re-
gional Director on September 27, 1984, in his order sev-
ering cases , withdrawal of consolidated amended com-
plaint, and amended notice of hearing in Cases 21-CA-
23142 and 21-CA-23210, and notice of approval of set-
tlement agreement in Cases 21-CA-23142 and 21-CA-
23210. The amended complaint agreement and the
amended answer denies that Respondent in December
1983 implemented certain changes in the terms and con-
ditions of unit employees without prior notice to the
Union and without having afforded the Union an oppor-
tunity, to meet and bargain as the exclusive representative
of Respondent's' employees, thus violating Section 8(a)(5)
and (1) of the National Labor Relations Act.
All parties were given full opportunity to participate
at the hearing, to introduce relevant evidence, to call, ex-
amine, and cross-examine witnesses, to argue orally, and
to file posthearing briefs,
On the entire record,' including helpful briefs from
the General Counsel and Respondent, and my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing2`
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Delaware corporation, has at all times
material been engaged in the business of designing, man-
ufacturing, and supplying corrugated paper products and
operates a facility, located in Santa Fe Springs, Califor-
nia. In the normal course and conduct of its business op-
I The General Counsel's unopposed motion to correct transcript is
granted.
2 Through the pleadings and numerous written stipulations of fact, the
parties substantially reduced matters in dispute at the hearing. Where not
otherwise noted , these findings are based on the pleadings , stipulations,
and/or uncontested documentary and testimonial evidence
erations, _Respondent annually sells and ships- goods and
products valued in excess of $50,000 directly to custom-
ers located outside the State of California. Respondent is,
and has been at all times material herein, an employer
engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATIONS
Graphic Communications Union, District Council #2,
Graphic Communications International Union, AFL-
CIO (District Council), and Graphic Communications
Union, Local #388, Graphic Communications Interna-
tional Union, AFL-CIO (Local and, collectively with
the District Council, Union) are, and each of them has
been at all times material herein, labor organizations
within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The District Council has for over 20 years been the
exclusive collective-bargaining representative of Re-
spondent's employees in the following unit:
All corr. operators, corr. slitter scorer operators,
corr. assistant to knifeman, corr. roll shafter, corr.
assistant operator, corr. offbearer, corr. starchman,
corr. roll grab, curtain coat operator, curtain coat
helper, printer slotter operator, printer Blotter assist-
ant, automatic taper operator, inspector, slitter
scorer operator, comet gluer, Flexo printer folder
gluer, Flexo printer folder assistant, Flexo stacker,
unitizer operator, die mounter, sticher or taper semi
auto operator, jumbo taper, bobst operator, bobst
assistant operator Platen food, Platen die cut opera-
tor, eccentric slotter operator, baler operator, fork
lift operator, shipping fork lift, pallet yard fork lift,
transfer car operator, shipping clerk, working fore-
man, maintenance working foreman, bundlers, strip-
pers, slitter operator, pallet yard, janitor, die wash,
boxmaker operator, die maker, band saw operator,
maintenance journeyman, maintenance staff, mainte-
nance helper, assistant Flexo bobst operator, oiler
and clean-up maintenance, excluding truck drivers,
all other employees, guards, and supervisors as de-
fined in the Act.3
There are approximately 175 bargaining unit employees
at Respondent's Santa Fe Springs facility. The Union
and Respondent have had a collective-bargaining rela-
tionship for over 20 years. Successive collective-bargain-
ing agreements have been entered into with the most
recent effective by its terms from June 16, 1979 to June
15, 1983. That agreement was extended by mutual con-
sent of the parties initially to June 16, 1983, and thereaf-
3 The General Counsel alleged in the amended complaint and the par-
ties stipulated that the appropriate bargaining unit is that set forth in the
most recently expired collective-bargaining agreement between the par-
ties The classifications listed above are taken in haec verba from that con-
tract
SOUTHWEST FOREST INDUSTRIES 231
ter indefinitely subject to cancellation on 30 day's notice
by either party. About August 22, 1983, the Union sent
Respondent a letter dated August 22, 1983, terminating
the collective-bargaining agreement effective September
23, 1983.
There is no dispute, the parties stipulated and I find,
that the District Council has at all material times been
the representative for purposes of collective bargaining
of a majority of the employees in the unit and by virtue
of Section 9(a) of the Act, has been, and is now, the ex-
clusive representative of all the employees in the unit for
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
B. Negotiations, the Strike, and Subsequent Events
The District Council and Respondent scheduled a col-
lective-bargaining session on May 27, 1983, to renegoti-
ate the then expiring contract. That meeting was can-
celed by the District Council and no new meetings were
scheduled until August 9, 1983, which meeting was in
turn postponed until August 16, 1983, at the request of
the District Council. On August 16, 1983, Respondent
and the District Council met for approximately 3-1/2
hours. At this initial session, the District Council present-
ed Respondent with its demands. Respondent then made
its proposals which included deletion of union security,
employee health care contributions, and other matters.
Shapiro, on behalf of the District Council, strongly
staled his objections to Respondent's proposals on health
care and union security. No agreement on proposals was
reached at the meeting, although the parties agreed to
meet again the following day. The second bargaining ses-
sion took place on August 17, 1983. As in past negotia-
tions, the parties agreed to wait for a multiemployer con-
tract to be reached before they discussed the new con-
tract's economic portions. The District Council and Re-
spondent exchanged ideas concerning the language of the
new contract, and some minor contractual changes were
agreed to. The meeting lasted several hours, with most
of the time devoted to Respondent's proposals on union
security and health care contributions. On August 24,
1983, the District Council and Respondent held another
meeting. Negotiations over contract language continued
and some minor progress was made. Neither side made
any movement on its differing health care and union-se-
curity proposals. Because of health problems with the
District Council's chief negotiator, no bargaining sessions
took place over the next 4 weeks. In mid-September
1'983, the details of the economic settlement involving
the multiemployer group became known to Respondent.
On September 21, 1983, the parties met again. The
meeting was attended by Federal Mediator John Court-
ney. At this meeting, the District Council's chief negotia-
tor was David Grabhorn. Respondent submitted a com-
plete written proposal for a new contract. During the
session the parties went through Respondent's various
proposals item by item, including its proposal of deletion
of union security. The proposals reflected' a modification
of Respondent's earlier position on health care. Respond-
ent's wage proposal was the same as that contained in
the new multiemployer agreement. Following presenta-
tion of Respondent's proposal, Grabhorn said the Dis-
trict Council would study it in caucus and propose a
counterproposal. The parties separated. Later that same
day, the District Council sent work through the Federal
mediator that it would be caucusing the rest of the day.
It was agreed that the parties would meet the following
day, September 22, 1983, at 1 p.m. That same day Re-
spondent prepared a summary of its proposals as they
had been offered to the District Council and distributed
copies to the employees at meetings held at the jobsite
during worktime.
Respondent and the District Council met again at 1
p.m. on September 22, 1983. The District Council's rep-
resentatives restated their position that the contract ter-
minated at midnight. David Grabhorn, the District
Council's organizer and chief negotiator at this meeting,
also accused the Respondent of committing unfair labor
practices and stated that charges would be filed. Re-
spondent's representative, Brokaw, denied wrongdoing.
The District Council also protested the fact that Re-
spondent had posted a notice to employees on the morn-
ing of September 22, 1983, altering the graveyard-shift
schedule effective at midnight September 22. In response
to this protest, Respondent rescinded the graveyard-shift
change which had not as yet been implemented. The
meeting ended after less than 10 minutes. Later that same
day the ' District Council filed an unfair labor practice
charge with the Board alleging that Respondent failed to
bargain in good faith with the District Council in viola-
tion, of Section 8(a)(5) of the Act. The District Council
alleged "surface bargaining" and "bypassing the Union."
That charge was dismissed by the Acting Regional Di-
rector on December 9, 1983,1 and the District Council's
appeal of the dismissal of the charge was sustained by
General Counsel's office of appeals on January 20, 1984.
At midnight on September 22, 1983, the District Coun-
cil called a strike among the unit employees of Respond-
ent and all employees joined the strike. During the 8
weeks following commencement of the strike, there were
no negotiations between the District Council and Re-
spondent. Although a majority of employees remained
on strike during October and' November 1983, Respond-
ent continued operations to a limited' extent through the
employment of temporary replacements.
In November 1983 Respondent was considering hiring
permanent replacements and considering changes in
hours and working conditions of unit employees. On No-
vember 23, 1983, Respondent contacted the Federal me-
diator and asked him 'to set up a, meeting with the Dis-
trict Council. The mediator contacted the District Coun-
cil but was advised that the District Council would not
agree to meet with Respondent unless and until it
dropped its proposals on union,security and health care.
On 'November 28, 1983, Respondent hand-delivered to
the District Council a letter, notifying it of Respondent's
intention to hire permanent replacements, proposing a
wage reduction in some unit classifications, and suggest-
ing that other undescribed changes would be made. The
District Council did not contact Respondent in response
to this letter.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 30, 1983, about 100 striking employees
arrived at Respondent's facility in an attempt to return to
work. Mason, personnel director for Respondent, in-
formed the striking workers that Respondent was not
prepared to take them back that morning because Re-
spondent had so many temporary employees and they
needed to be scheduled out. Mason also told the striking
workers that Respondent had to prepare manning tables
based on which operations were needed. He further in-
formed the striking workers that, as a result of lost busi-
ness, Respondent would not be able to bring them all
back to, work immediately. Finally, Mason told the strik-
ing workers that Respondent was preparing an interim
policy manual which would be effective until a new con-
tract with the Union was negotiated.
On December 2, 1983, Respondent delivered a copy of
its interim policy manual to the Union without a cover
letter or other explanation save a business card of Re-
spondent 's personnel manager . Most of Respondent's unit
employees received a copy of the interim policy manual
on December 5, 1983, the date the charges were put into
effect. The interim policy manual differed from Respond-
ent's last offer in the following respects:
(a) The manual made no provision for the position of
working foreman.
(b) The manual made no provision for the position of
pallet yard forklift operator and pallet yard helpers.
(c) The manual provided for a reduced hourly wage
rate for employees in the bundler position.
(d) The manual provided for' reduced hourly wage
rates for employees and unskilled classifications.
(e) The manual contained a new management rights
policy.
(f) The manual reduced the number of paid holidays.
(g) The manual provided for a new industrial injury
policy.
(h) The manual did not provide for union bulletin
boards, union representatives, shop committees, griev-
ances committees, and joint conciliation committees.
(i) The manual changed the method for computing
overtime for employees.
(j) The manual changed vacation policies.
At no time subsequent to December 2, 1983, did the
District Council request bargaining over the changes set
forth in the manual nor did the District Council request
that the implementation of the changes be delayed, pend-
ing negotiations.
Since early February 1984, following Respondent's
being informed that the Regional Office of the Board
was issuing the complaint in the instant matter, various
meetings and an exchange of correspondence have oc-
curred between Respondent and the District Council.
Respondent has repeatedly requested that the District
Council state its position with respect to the changes in-
stituted in December 1983. Representatives of the Dis-
trict Council have at no time expressed opinions regard-
ing the changes nor offered counterproposals, consistent-
ly' asserting that all meetings and communications be-
tween the parties should be directed to settling the unfair
labor practice charges and complaint. To the time of the
hearing the District Council has adhered to its earlier-
stated position that Respondent's proposals with respect
to union security and employee-paid medical coverage
were unsatisfactory and a bar to further bargaining. At
no time during the relevant period has Respondent with-
drawn its recognition of the District Council or suggest-
ed bargaining be limited as to subject matter, time, or
place.
C. Position of the Parties
The General Counsel's position may be briefly summa-
rized as follows. The General Counsel concedes that as
of November 23, 1983, when the District Council con-
veyed its position to Respondent that it would not meet
with Respondent unless and until Respondent changed
its contract proposals on union security and health care,
the parties were at an impasse. The General Counsel fur-
ther agrees that once impasse is reached, an employer is
free to implement the terms of its last offer. The General
Counsel emphasizes, however, that the only changes
properly made by Respondent here must be "consistent
with the employer's final offer and consistent with the
offers the Union has rejected." The General Counsel
notes that the final offer submitted by Respondent to the
District Council differs in significant ways from the
changes actually implemented. In essence the General
Counsel's argument that the institution of those unilateral
changes not part of Respondent's final offer of Septem-
ber 1983 are violations of Section 8(a)(5) and (1) of the
Act.
Respondent emphasizes that the General Counsel is
not contending that Respondent engaged in general bad-
faith bargaining with the District Council or that it un-
dertook any of the actions in dispute as a result of union
animus. In this context Respondent argues that it at-
tempted to bargain with the District Council regarding
its changes in proposals by initiating the November 23,
1983 contact with the Federal mediator. It was only,
argues Respondent, after the Federal mediator indicated
the Union would not bargain further, unless , Respond-
ent's union-shop and employee health care provisions
were changed, that it sent to the District Council its
letter of November 28, 1983. That letter specifically indi-
cated that Respondent
has found it necessary to effect some changes in our
proposal of September 21. The most significant of
these changes involves a revision in the existing
wage rates for the unskilled classification of em-
ployees . . . . Otherwise, we plan to implement
these changes immediately.
We would be happy to meet with you at any
time to discuss this and all other proposed language
changes in the interest of reaching an agreement.
Respondent argues that this letter put the District
Council on sufficient notice of its contract proposal
changes to avoid any allegation of improper implementa-
tion. Respondent further 'notes that its interim policy
manual, delivered to the District Council on December
2, 1983, and implemented on December 5, 1983, also put
the District Council on notice of its intended changes.
Yet despite all of this, argues Respondent, the District
SOUTHWEST FOREST INDUSTRIES 233
Council never attempted to delay implementation of the
changed proposals or to meet and bargain with Respond-
ent despite Respondent 's continuing expressions of will-
ingness to do so. Respondent contends that the District
Council's continued unwillingness to meet and bargain
with Respondent unless and until Respondent 's contract
proposals with respect to union shop and employee
health care contributions were modified represents a con-
tinuing statement by the District Council that it -was un-
interested in any other terms and conditions of employ-
ment of unit employees and that, in such a context, it
was in essence a futility for Respondent to make repeat-
ed efforts to induce the District Council to bargain over
matters independent of those key items.
D. Analysis and Conclusions
The parties do not dispute the fact that Respondent
implemented changes in working conditions which dif-
fered significantly from its last offer in negotiations with
the District Council. There is no doubt that, were there
no intervening events, Respondent , in making such
changes, would be in violation of Section 8(a)(5) and (1)
of the Act. It is the supervening events, primarily Re-
spondent's November 28 and December 2, 1983 commu-
nications to the District Council and the District Coun-
cil's omission to respond, which are the bases of conten-
tion in the instant matter. Respondent argues that those
communications put the District Council on notice of
changes in Respondent's final proposal and gave the Dis-
trict Counil sufficient time to consider those proposals
and to request additional bargaining on them prior to im-
plementation if it so desired . Thus, Respondent argues
that the District Council waived any right to insist` on
bargaining with respect `to those matters by its failure to
seek a delay in the implementation of the changes and its
failure to request bargaining-regarding the matter.4
The Board in American Bus Lines, 164 NLRB 1055,
1055-1056 (1967), found that a union had waived its
right to object to unilateral changes where the' employer
gave the union 1 'week's advance notice of its plan to im-
plement contemplated changes and the union did not re-
spond.' In M. A. Harrison Mfg., 253 NLRB' 675, 676
(1980), enfd. 682 F.2d 580 (6th Cir. 1982), a 3-.day inter-
val between an employer 's announcement of and subse-
quest,institution of unilateral changes were held to be in-
adequate to give the union an opportunity to bargain and
hence was an insufficient defense to an, 8(a)(5), violation.
Respondent's November 28, 1983 letter put the Dis-
trict Council on notice of a specific change in proposed
wage rates for Respondent's unskilled employee classifi-
cation, which change was later implemented. Under the
circumstances ,herein 'I find the District Council had suf-
ficient notice of this particular change so that the Dis-
trict Council, may be held to have waived its right to
protest its subsequent implementation., I do not find,
however, that the November 28 letter which makes ref-
4 This is not a case where the union failed to meet and bargain with an
employer . The parties agreed that negotiations were in abeyance due to
good-faith differences over terms of a new contract.
erence to other unspecified changes' may be held to
have put the District Council on notice of any additional
unnamed changes.
The delivery to the District Council on December 2,
1983, of the interim policy manual , which was conveyed
without cover letter and had no more explanation other
than its title and opening paragraph,' does not make
clear that the document was a new contract offer. The
interim policy manual, which is arranged in the general
format of a labor contract, does not readily reveal what
changes, if any, it contains which differ from Respond-
ent's last offer. For agents of the District Council to dis-
cern what changes, if any , existed between the interim
policy manual and the last offer, an item-by-item com-
parison of the last offer with the 18-page typewritten
manual would have been necessary.
Given this lack of clarity, I do not regard the interim
policy manual, without more, even when preceded by
the November 28 letter which alludes to "other
changes," is or even approaches sufficient notice to the
District Council of Respondent's contemplated changes
so as to justify the implementation of those changes
without further communication to the District Council.
Accordingly, I find the implemented changes violate
Section 8(a)(5) and (1) of the Act.'
Respondent argues strenuously that under no circum-
stances would the District Council have resumed bar-
gaining unless and until Respondent changed its position
with respect to union security and employee -paid health
contributions . Setting aside for the , moment that argu-
ment's relevance to the issue of remedy, the District
Council 's earlier adamantly stated refusal to accept the
proposals absent concessions by Respondent did not give
Respondent an ongoing license to ignore the District
Council as the exclusive collective -bargaining representa-
tive ' of unit employees. There is no dispute, and Re-
spondent not only admits but, actively asserts, that it was
regularly seeking to bargain with the District Council
and that the District Council continues to represent the
employees. Nor is there any contention that the District
Council's concert was in any way improper. The thresh-
old to bargaining is communication of proposals. It is
hardly a hardship to obligate Respondent to communi-
cate with the exclusive bargaining representative, of its
employees any and all specific amendments to its con-
tract proposals sufficiently far in advance of any pro-
posed implementation date to provide the District Coun-
cil an opportunity to consider and initiate negotiations
regarding the changes if it deems appropriate. Not
having done so the District Council's positions provides
Respondent no defense.
5 As the General Counsel correctly points out the letter incorrectly as-
serts that skilled and semiskilled job rates would remain the same, where-
as the manual discussed, supra, changed those rates
5 The opening paragraph reads
The following policies and procedures will, take effect immediately
and, will serve as management's guide in the application of pertain
practices that affect your employment These policies will remain in
effect until such time as a contract settlement is negotiated.
' The 1984 negotiations are, of course , irrelevant to the issue of wheth-
er an unfair labor practice occurred in 1983 . Dependable Building Mainte-
nance Cp, 274 NLRB 216 (1985).
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found Respondent engaged in certain unfair
labor practices in violation of Section 8(a)(5) and (1) of
the Act, I shall order it to cease and desist therefrom,
and take certain affirmative action necessary to effectuate
the policies of the Act, including the posting of remedial
notices in English and, should the Regional Director de-
termine the circumstances at the time of the posting war-
rant, other languages.8
Inasmuch as I have found that Respondent had imple-
mented changes in terms and conditions of employment
of unit-employees at a time when they had not communi-
cated- to the District Council the changes in their propos-
als with sufficient specificity and with sufficient notice to
allow the District Council- an opportunity to bargain
considering those proposed changes, I shall order Re-
spondent not to institute changes in terms and conditions
of unit employees unless and until such specifity and
notice requirements have been met. Inasmuch as such
conduct, as well as the fact that Respondent communi-
cated the changes in working conditions to employees
before the proposals were communicated to the District
Council9 - undermines the collective-bargaining process, I
shall also issue a general bargaining order.
The General Counsel seeks an order restoring the
status quo ante with respect to all changes found in vio-
lation of Section 8(a)(5) and (1) of the Act. There is little
doubt that this is the normal remedy in situations where
an employer has made unilateral changes -without proper-
ly giving notice to the union. This is so because it is nor-
mally impossible to tell what the union would have done
if confronted with the employer's proposed changes in a
timely manner. Such a union might have achieved modi-
fication of the proposals or made counterproposals as
part of the collective-bargaining process. Since uncer-
tainties are to be resolved against the wrongdoer in fash-
ioning remedies for unfair labor practices, and since it is
normally the employer whose violation of the law has
prevented the union from having an opportunity to bar-
gain over the changes, it is normally appropriate to re-
store the status quo ante to provide the union with an
opportunity to bargain before those changes are reinsti-
tuted. Given that that is the-case in most situations, I find
it is not the case here. This is, so, because Respondent,
although not successful in defeating the violation itself,
had adduced sufficient evidence to convince me that ir-
respective of any opportunity to bargain with respect to
the changes enumerated in the interim policy manual, the
District Council would not have resumed bargaining
and, hence, it is unnecessary on the special facts of this
case to include a status quo ante order.10
On the foregoing findings of fact and the entire
record, I make the following
CONCLUSIONS-OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The District Council and the Local-are, and each of
them has been, at all times material herein, labor organi-
zations within the meaning of Section 2(5) of the Act.
3. At all times material herein, the unit constitutes a
unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material the District Council has been
the representative for purposes of collective bargaining
of a majority of employees in the unit and by virtue of
Section 9(a) of the Act, has been, and is, the exclusive
representative of the employees in said unit for purposes
of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment.
5. About December 1983, Respondent changed terms
and conditions of employment of employees in the unit
without first affording the District Council an opportuni-
ty to consider and bargain regarding those changes,
thereby violating Section 8(a)(5) and (1) of the Act.
6. The unfair labor practice described above is an
unfair labor practice affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edii
ORDER
The Respondent, Southwest Forest Industries, Inc.,
Los Angeles Container Division, Santa Fe Springs, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Making changes, in the terms and conditions of em-
ployment of unit employees at a time when the District
Council has not been provided sufficient notice of and
specificity of the changes so as to have an opportunity to
bargain concerning the changes prior to their implemen-
tation.
(b) Failing and refusing to bargain with the District
Council regarding terms and conditions of employment
of unit employees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act. - -
-(a) Post at its facility in Santa Fe Springs copies of the
attached notice marked "Appendix"-12 and any foreign
s Laborers Local 383 (Arizona Building Chapter), 266 NLRB 934, 939
fn 2 (1983)
1 Despite the fact that Respondent informed employees of changes
before the District Council received such information was not alleged as
a violation of the Act, it is appropriate to consider evidence not alleged
as an unfair labor practice in fashioning an appropriate remedy. See, e.g.,
NLRB v Plumbers Local 403 (Pallman Power Products), 710 F 2d 1418
(9th Cir 1983), enfg. 261 NLRB 257 (1982)
10 Dependable Building Maintenance Co, supra -
11 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
12 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-
Continued
SOUTHWEST FOREST INDUSTRIES 235
language versions of the notice as found appropriate by
the Regional Director. Copies of the notice, on forms
provided by the Regional Director for. Region 21, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcmg an Order of the National
Labor Relations Board "
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.