Timber Products Co.

National Labor Relations Board - Board Decisions

Nov 26, 1985

277 N.L.R.B. 769 (N.L.R.B. 1985)

TIMBER ]PRODUCTS CO. 769
Rockwood & Company and W. H. Gonyea Trust No.
1-17 d/b/a Timber Products Co. and Local 3-
6, International Woodworkers of America,
AFL-CIO-CLC. Case 36-CA-4576
26 November 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 3 May 1984 Administrative Law Judge Rus-
sell L. Stevens issued the attached decision. The
Respondent and the Charging Party filed excep-
tions, supporting briefs, and answering briefs, 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 decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order.
1. The judge found that the Respondent had
made a final contract offer to the Union on 24
August 1983,2 which was not withdrawn before 11
October when the Union accepted the Respond-
ent's final offer, but that the Respondent was not
obligated to execute a contract embodying the par-
ties' agreement because the agreement was silent as
to essential terms and did not constitute a fully
formed collective-bargaining agreement.3 We dis-
agree and find that the Respondent and the Union
had reached full and complete agreement on the
terms of a collective-bargaining agreement when
the Union accepted the Respondent's outstanding
final contract offer.
The essential facts, as set forth in the judge's de-
cision, are not in dispute. Following three bargain-
ing sessions between the Respondent and represent-
atives of the Union's Regional Council,4 the parties
i We note that the judge inadvertently stated at one point in his deci-
sion that the Union refused to sign a contract embodying the agreement
reached by the parties, whereas the complaint in fact alleges that the Re-
spondent has failed and refused to sign a contract
2 Unless otherwise indicated , all dates are 1983.
S The judge noted that the Respondent has not challenged the proposi-
tion that the Respondent's contract offer, not withdrawn, could be ac-
cepted by the Union and a contract formed even after counteroffers had
been made if a "full and complete agreement" had been reached Presto
Casting Co., 262 NLRB 346 (1982), enfd in relevant part 708 F.2d 495
(9th Cir. 1983); Pepsi-Cola Bottling Co., 251 NLRB 187 (1981), enfd. 659
F.2d 87 (8th Cir. 1981).
4 Local 3-6, International Woodworkers of America, AFL-CIO-CLC,
party to successive collective-bargaining agreements with the Respond-
ent, delegated its authority to bargain with the Respondent regarding "in-
dustry" subjects of regional concern to its Regional Council Agreement
was reached concerning "local" matters on 17 August
had reached, agreement on all issues except starting
wages for new employees, a pension plan,,' and a
health and welfare plan. The Respondent wanted
lower starting base pay for certain entry level posi-
tions than that provided in the industry agreement,
and wanted to substitute its own -pension and
health and welfare plans and to withdraw from the
multiemployer plans included in the industry con-
tract. On 24 August the Respondent sent, the Union
a letter specifying a final contract offer:
The attached benefit levels, together with the
attached details of a wage rate change for cer-
tain job classifications, together with the indus-
try settlement as presented to Timber Products
Co., except as modified by these benefit and
wage provisions, constitutes Timber Product
Co.'s final offer to the union.
Attached to this letter were a provision relating to
starting wage rates, materials relating to health and
welfare benefits, and a document entitled, "Timber
Products Company, TOC-IWA Pension Plan, Out-
line of Major Plan Provisions, Revised Compara-
tive Summary." Because this document is determi-
native of the ultimate issue in this alleged unfair
labor practice proceeding, a copy is attached as
Appendix B.
On the same date, 24 August, the Respondent
sent a letter to its employees advising them that it
had transmitted a final offer to the Union's Region-
al Council and that the Company intended to oper-
ate its facilities, notwithstanding a strike which had
commenced on 19 August. The letter also stated in
part:
The Company's proposed pension plan pro-
vides the same level of benefits as the T.O.C.
[multiemployer] plan, but vesting begins earli-
er. The Company is offering, past service
credit to assure no loss of vesting under the
Company's plan for those employees who
have not put in their ten years to obtain any
vesting under the T.O.C. plan.
At the Union's request the parties again met on 8
September, at which time the Respondent provided
its proposed health and welfare plan in detail. Al-
though the three issues separating the parties were
discussed, no agreements were reached. Nor were
any agreements reached on 20 September at a sub-
sequent meeting, and the Respondent advised the
Union at that time that it was terminating the par-
ties' current contract, withdrawing from the pen-
sion and health and welfare plans included in that
contract, and implementing its final offer.
By letter of 21 September, the Respondent con-
firmed in writing its position as stated at the par-
'277 NLRB No. 78
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties' 20 September negotiating session . The Re-
spondent stated in its letter, with respect to the
three outstanding issues:5 (1) "the proposal with re-
spect to base rate made September 8, 1983, is a
final offer as clarified at our meeting of September
20 that the base rate will not include a shift differ-
ential," (2) "The Company's final offer with re-
spect to the health and welfare package is the
package that was presented to you on September 8
in detail," and (3) "As soon as the Company's pen-
sion plan document is prepared, we will furnish a
copy for your review and be willing to discuss its
details. In any event, the level of benefits in that
plan will not be less than those levels previously
furnished you. Since the Company's plan is on a
calendar-year basis, adoption of the plan may take
place any time between now and December 31
without loss to the employees."
The Union's Regional Council returned the dele-
gated authority to bargain on industry and regional
matters to Local 3-6 on 29 September, and the
Local on 11 October sent the Respondent a letter
accepting the Respondent's final offer. Thus, the
Union notified the Respondent that "Local Union
No. 3-6, International Woodworkers of America,
accepts the company's final offer as outlined in
your letter of August 24, 1983 and reaffirmed at
the meeting of September 20, 1983 and in the Sep-
tember 21, 1983 letter of Phil Cass, Jr." The letter
further states that the Union will be in contact with
the Respondent to put together language reflecting
the agreement. On 13 October the Respondent re-
plied that the question of handling replacement
workers had not been settled, that it would insist
that all employees who worked during the strike
and those who resigned from the Union be elimi-
nated from the union-security provision in the con-
tract, and that it would not enter into any future
dues-checkoff arrangements with the Union. The
Respondent further stated that "[t]he Company is
reviewing the terminated contract to determine if
there are any other changes it feels are necessary."
The judge found that no enforceable contract
was formed by the Union's acceptance of the Re-
spondent's outstanding final offer because the Re-
spondent's proposed" pension and health and wel-
fare plans lacked essential terms preventing full and
complete agreement on the terms of a contract at
that time. We disagree. With respect to the health
and welfare proposal, the record indicates that the
Respondent provided the Union with a complete
health and welfare plan on 8 September; indeed,
the Respondent in its 21 September letter to the
Union referred to the health and welfare package
5 The Respondent's' 21 September letter is reproduced , in relevant part,
in the judge's decision.
that was presented to the Union "on September 8
in detail." Nor has the Respondent itself contended
that the health and welfare proposal was other
than fully complete. We disagree, therefore, with
the judge's finding that any essential details were
lacking from the health and welfare proposal when
the Union accepted it on 11 October.
With respect to the Respondent's pension pro-
posal, the judge correctly found that a complete
pension plan had not been finalized at the time of
the Union's acceptance of the offer. We note, how-
ever, that the Respondent's final offer was not a
pension "plan," but rather specified benefit levels
which it would provide. Thus, in its letter of 24
August the Respondent describes its final offer
with respect to the pension plan as "the attached
benefit levels." As evidenced by Appendix B, the
Respondent's offer encompassed such essential ele-
ments as the effective date, eligibility requirements,
amounts of benefits, early retirement, disability
benefits, death benefits, termination benefits and
vesting, standard benefit form, and accrued bene-
fits. Moreover, the Respondent proposed that many
of these items would be the same as that provided
in the present TOC-IWA Plan, a readily ascertain-
able standard since it refers to the employees' mul-
tiemployer plan already in existence.
That the Respondent's offer did not contain all
the administrative details included in its 51-page
pension plan eventually tendered to the Union on
28 December is not fatal. It is clear that, once the
Union accepted its stated final offer, the Respond-
ent was obligated to provide a pension plan con-
taining the enumerated benefits under the terms
specified in Appendix B. Any additional details
could be resolved by the parties later.6 And, while
the judge found that the Respondent's pension
offer was defective because it was silent as to the
amount and basis of contributions to be made, there
was never any issue between the parties as to the
funding of the plan. The Union was not affected by
how much the plan might cost or how it might be
funded, because it was understood that the Re-
spondent alone would be obliged to provide the
level of benefits specified in Appendix B. Indeed,
the plan finally submitted to the Union in Decem-
ber after the conclusion of the strike provides, at
section 4.1, that "no contributions shall be required
under the Plan from any Participant."
It is also clear that the Respondent thought that
it was offering a complete package susceptible of
6 The Board has previously found that an agreement to defer bargain-
ing on identified issues does not preclude a finding that parties have
agreed to a contract . Custom Colors Contractors , 226 NLRB 851, 854
(1976). See also Central Plumbing Co, 198 NLRB 925 (1972); Falkowski
Grocery, 236 NLRB 473 (1978).
TIMBER PRODUCTS CO. 771
resulting in an enforceable contract upon the
Union's acceptance, for its final offer contained no
contingencies . Nor, ' when it wrote to employees
advising them of its final offer to the Union, did it
indicate that acceptance of that offer would have
to await further bargaining with respect to pension
plan details. Rather, it is clear that the Respondent
contemplated that the Union's acceptance of its
final offer would result in an immediate contract
and end the ongoing strike. Only when the strike
was unsuccessful and the employees had returned
to work did the Respondent raise other matters
which it claimed prevented complete contract
agreement.
We find, therefore, that when the Union un-
equivocally accepted the Respondent's final offer
on 11 October, an enforceable contract was formed
and the Respondent was thereafter obligated to
execute and abide by that contract. Its failure to do
so violated Section 8(a)(5) and (1) of the Act. Be-
cause this collective-bargaining agreement incorpo-
rated the union-security provision contained in the
parties' previous agreement, the Respondent was
also obligated to honor the union-security provi-
sion of that contract. Accordingly, we shall require
the Respondent to execute and give retroactive
effect to the parties' agreement, 7 on request by the
Union, and to comply with the dues-checkoff pro-
vision of the contract. We shall also require the
Respondent to remit to the Union the dues due and
owing for each employee who executed a dues-de-
duction authorization, together with interest.8
2. The judge also found, and we agree, that the
Respondent violated Section 8(a)(l) of the Act by
conditioning reinstatement of economic strikers
upon their resignation of union membership, and
that this unlawful condition delayed reinstatement
of some economic strikers. In order to remedy the
Respondent's unlawful conduct, the judge recom-
nlendied that the Respondent be ordered to make
whole all unit employees for any losses they may
have incurred as a result of the Respondent's re-
quiring that they resign from the Union as a condi-
tion of reinstatement, with interest. His recom-
mended Order, however, requires the Respondent
to make whole all economic strikers who were not
7 The industry settlement incorporated in the Respondent's final offer
to the Union does not specify an effective date but does state that "Con-
tracts shall be renewed and/or extended for a three-year period ending
May 31, 1986 " The previous contract to which the settlement refers ex-
pired on 31 May 1983 Whether the effective date of the parties' agree-
ment for purposes of giving that agreement retroactive effect should be I
June 1983, the date from which the prior agreement would be renewed
for a 3-yeas period, or 11 October 1983, the date on which the parties
reached agreement on the new contract, we leave to the compliance
stage of the proceeding
s Stackpole Components Co, 232 NLRB 723 (1977) Interest is to be
computed in the manner prescribed in Florida Steel Corp, 231 NLRB 651
(1977), see generally Isis Plumbing Co, 138 NLRB 716 (1962)
permanently replaced during the strike for losses
suffered by reason of the Respondent's failure to
reinstate them on their unconditional offer to
return to work, without reference to the unlawful
union resignation requirement.9
To the extent that the judge found that economic
strikers who were not returned to work for reasons
other than refusal to comply with the Respondent's
requirement that they resign from the Union in
order to return are entitled to backpay, we reject
that conclusion. The complaint does not allege, nor
does the record reveal, that the Respondent violat-
ed the Act by failing or refusing to reinstate eco-
nomic strikers immediately upon their uncondition-
al offer to return to work. The complaint, instead,
alleges that the Respondent violated Section 8(a)(1)
of the Act by conditioning reemployment of the
strikers on their resignation of union membership,
and only this issue was litigated at the hearing. Ac-
cordingly, we shall modify the judge's recommend-
ed Order in conformance with his recommended
remedy by requiring the Respondent to make
whole economic strikers only for losses incurred as
a result of the Respondent's requirement that they
resign from the Union as a condition of reinstate-
ment. The issue of which specific strikers are enti-
tled to backpay, and the amounts thereof, we leave
to the compliance stage of the proceeding.
3. The General Counsel has excepted to the
judge's failure to provide a make-whole remedy for
all employees who suffered any losses by reason of
the Respondent's having unilaterally established a
work rule change denying employees working a 4-
day week the right to bump less senior employees
for a fifth day of work. We find merit to this ex-
ception, as the judge found that the Respondent
unlawfully implemented that work rule change
without prior notice to or bargaining with the
Union.' ° Employees who may have suffered losses
as a result of the Respondent's unilateral change
are entitled to be made whole with interest. Back-
pay for any losses resulting from the changing of
this work rule is to be computed in a manner con-
sistent with Board policy as stated in Ogle Protec-
tion Service, 183 NLRB 682 (1970), with interest
thereon as set forth in Florida Steel Corp., 231
NLRB 651 (1977)."
9 In his discussion of this unfair labor practice , the judge also observed
that the Respondent offered no justification for its delay in returning
strikers to the job on the basis of business necessity and that, on this
record, it failed to meet the requirements of the Act when it did not rein-
state the economic strikers immediately on their unconditional offer to
return to work
10 No exception has been taken to this finding
11 See generally Isis Plumbing Co, 138 NLRB 716 (1962).
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board orders that
the Respondent, Rockwood & Company and W.
H. Gonyea Trust No. 1-17 d/b/a Timber Products
Company, Medford, Oregon, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain by refusing to execute a
contract negotiated and agreed upon with the
Union.
(b) Conditioning reinstatement of economic strik-
ers on, and requiring that employees sign forms for,
their resignation of union membership.
(c) Implementing work rule changes and a new
dental and vision plan covering unit employees
without prior notice to, or bargaining with, the
Union.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed them in Section 7 of the
Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Execute, on request, a collective-bargaining
agreement embodying the terms and conditions to
which the Respondent and the Union finally
agreed on 11 October 1983, to be effective in ac-
cordance with the terms of that contract.
(b) Apply retroactively, the terms and conditions
of the collective-bargaining agreement to which
the Respondent and the Union agreed, and make
employees whole for any loss of earnings and other
benefits suffered as a result of its failure to execute
and abide by that agreement in a manner consistent
with Board policy as stated in Ogle Protection Serv-
ice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971), with interest as prescribed in Florida
Steel Corp., 231 NLRB 651 (1977).
(c) Reimburse the Union for all membership dues
which the Respondent has failed to withhold and
transmit to the Union pursuant to signed dues de-
duction authorizations and in accordance with the
checkoff provision of the collective-bargaining
agreement, with interest thereon as provided by
the Board's decision.
(d) Make whole all economic strikers for any
losses they may have incurred as a result of the Re-
spondent's requiring that they resign from the
Union as a condition of reinstatement, in the
manner set forth by the judge in that section of his
decision entitled "The Remedy."
(e) Make whole all unit employees for any losses
they may have suffered by reason of the Respond-
ent's changing its work rule to deny employees
working a 4-day week the right to bump less senior
employees for a fifth day of work, with interest, as
provided by the Board's decision.
(f) 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 compute the
amount of backpay due under the terms of this
Order.
(g) Post at its facility copies of the attached
notice marked "Appendix A."12 Copies of the
notice, on forms provided by the Regional Direc-
tor for Region 19, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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-
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."
APPENDIX A
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.
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 do anything that interferes with
these rights.
WE WILL NOT refuse to bargain by refusing to
execute a contract negotiated and agreed on with
the Union.
TIMBER PRODUCTS CO.
WE WILL NOT condition reinstatement of eco-
nomic strikers on, or require that they sign forms
for, their resignation of union membership.
WE WILL NOT implement work rule changes or a
new dental and vision plan covering unit employ-
ees without prior notice to, or bargaining with,
Local 3-6 , International Woodworkers of America,
AFL--CIO-CLC.
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, on request of the Union, execute a
collective-bargaining agreement embodying the
terms and conditions to which we and the Union
finally agreed on 11 October 1983 , to be effective
in accordance with the terms of that contract.
WE WILL apply the terms and conditions of the
collective-bargaining agreement to which we and
the Union agreed retroactively , and WE WILL make
you whole with interest for any loss of earnings
and other benefits resulting from our failing to exe•-
cute and abide by that agreement.
WE WILL reimburse the Union for all member-
ship dues which were authorized by our employees
to be deducted but which we failed to deduct and
transmit to the Union.
WE WILL make whole all economic strikers for
any losses which they may have incurred as a
result of our requiring that they resign from the
Union as a condition of reinstatement, with inter-
est.
WE WILL make whole all unit employees for any
losses which they may have suffered by reason of
our changing our work rule to deny employees
working a 4-day week the right to bump less senior
employees for a fifth day of work , with interest.
773
OUTLINE OF MAJOR PLAN PROVISIONS-
Continued
REVISED COMPARATIVE SUMMARY
Proposed New Plan
Timber Products
Present TOC-IWA
Plan
3. NORMAL
RETIREMENT
a) Eligibility Age 65. (Same) Age 65.
b) Benefit $17 per month for $15 per month for
each Year of each Year of
Service Service
completed before completed before
1981.
$19.50 per month
for each Year of
Service
completed after
1981.
1965.
$17 per month for
each Year of
Service
completed after
1965 and before
1981.
$19.50 per month
for each year of
Service
completed after
1981.
A Year of Service A Year of Service
is determined as (for service after
follows : 1965) is
determined as
follows:
Hours Credit
Less than 600... 0
600-900 ............. 1 /2
900-1200 .. ......... 3 /4
1200 or more.... 1
Hours Credit
Less than 600... 0
600-900 ............. 1 /2
900-1200 .......... 3/4
1200 or more.... 1
ROCKWOOD & COMPANY AND W. H.
4. EARLY
GONYEA TRUST No. 1-17 D/B/A
RETIREMENT
a) Eligibility Age 55 and 10 Age 55 and 10
TIMBER PRODUCTS CO. Years of Service. Years of Service.
APPENDIX B b) Benefit
(Same)
Accrued Benefit at Accrued Benefit at
TIMBER PRODUCTS COMPANY
Early Retirement
earned to date,
Early Retirement
earned to date,
TOC-IWA PE14SION PLAN
reduced each
year retirement
reduced each
year retirement
OUTLINE OF MAJOR PLAN PROVISIONS
precedes age 62.
(Same)
precedes age 62.
5. DISABILITY
REVISED COMPARATIVE SUMMARY BENEFITS
a) Eligibility Total and Total and
Proposed New Plan Present TOC-IWA Permanent Permanent
Timber Products Plan Disability after 5 Disability after 5
1 EFFECTIVE Date of 1965 Years of Years of
DATE Employment. Employment in Employment in
2 GENERAL After 1000 Hours After 1000 Hours the Timber the Timber
Industry (Same) IndustryELIGIBILITY of Service. of Service . .
(Same)
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
b) Benefit Accrued Benefit
earned to date of
disability . (Same)
6. DEATH
BENEFIT
a) Eligibility Death after 1 year
of service.
b) Benefit $1000.00 for each
year of service.
$17,500.00
maximum.
7.
TERMINA-
TION
BENEFITS
a) Eligibility
b) Benefit
Vesting to begin
after 7 Years of
Service.
Accrued Benefit
payable at
retirement (or
lump sum
equivalent)
determined as
follows:
Accrued Benefit
earned to date of
disability.
Death after 5 Years
of Service.
1/2 Employer
contributions.
Generally, 10 Years
of Service.
Accrued Benefit
payable at
retirement (or
lump sum
equivalent)
determined as
follows:
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge. This
case was tried in Medford, Oregon, on March 13, 1984.1
The complaint, issued December 12, is based on a charge
filed October 13 and an amended charge filed December
7 by Western States Regional Council No. III, Interna-
tional Woodworkers of America (International), Local
3-6, International Woodworkers of America (Local or
the Union). The complaint alleges that Rockwood &
Company and W. H. Gonyea Trust No. 1-17 d/b/a
Timber Products Co. (Respondent) violated Section
8(a)(1) and (5) of the National Labor Relations Act (the
Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses , to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of Respondent and the Union. The General Coun-
sel did not file a brief, but made a closing argument at
trial.
On the entire record, and from my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
Years of Vested
Service Percentage
Less than 7...... 0%
7 ..................... 25%
8 ....................... 50%
9 ........................ 75%
10 or more. ...... 100%
Years of Vested
Service Percentage
Less than 10.... 0%
10 or more..... 100%
...................
.....................
..................... .
8 STANDARD 5-year Certain and
BENEFIT Life Annuity.
FORM (Same)
9. ACCRUED Retirement Benefit
BENEFIT earned to date of
termination of
employment (for
whatever reason).
(Same)
5-year Certain and
Life Annuity.
Retirement Benefit
earned to date of
termination of
employment (for
whatever reason).
Dale B. Cubbison, for the General Counsel.
Phil Cass, Jr., and Douglas Mitchell (Cass, Scott, Woods &
Smith), of Eugene, Oregon, for the Respondent.
Lynn-Marie Crider, of Gladstone, Oregon, for the Charg-
ing Party.
1. JURISDICTION
Respondent is an Oregon partnership with an office
and place of business in Medford, Oregon , where it is en-
gaged in the business of manufacturing plywood particle-
board and other wood products . During the past 12
months, which period is representative of all times mate-
rial herein , Respondent , in the course and conduct of its
business operations, sold and shipped goods and services
from its facilities within the State of Oregon to custom-
ers outside that State, or sold and shipped goods or pro-
vided services to customers within that State , which cus-
tomers were engaged in interstate commerce by other
than indirect means, in a total value in excess of $50,000.
I find that Respondent is, and at all times material
herein has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 3-6, International Woodworkers of America,
AFL-CIO-CLC is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background2
Respondent and the Local Union had had a collective-
bargaining relationship since 1966. Their most recent
contract expired by its terms May 31, 1983. The contract
i All dates are within 1983 unless otherwise stated
2 This background summary is based on credited testimony and evi-
dence not in dispute
TIMBER PRODUCTS CO.
included, inter alia, a provision for reopening and for
automatic extension. Customarily, the International's Re-
gional Council negotiates in company with Lumber Pro-
duction Industrial Workers of America (LPIW) a region-
al contract with Western Wood Products Employers As-
sociation (Association). Past practice has been for the
Local Union to negotiate certain local subjects independ-
ently with Respondent prior to commencement of re-
gional negotiation, and thereafter to adopt the regional
contract for other provisions. The International negoti-
ates both for itself and with Respondent for the Local
Union. In the past Respondent has bargained for itself,
independently for the Association. The union-security
provision of the International agreement was not opened
by Respondent for the Local Union during 1983 negotia-
tions relative to the independent agreement between Re-
spondent and the Local Union.
Respondent and representatives of the International
and the Local Union held their first negotiation session
on May 31 Representing Respondent were Phil Cass
(Respondent's attorney in this case), Joe Gonyea, and
Alex Austin, Respondent's manager. Representing the
International was Rodney Kelty, vice president of the
]International. Representing the Local Union was a com-
mittee headed by Dennis Dawson, the Local Union's
business agent and financial secretary. Kelty was acting
as the Local Union's authorized representative. At the
meeting Kelty explained his authority to act for the
Local Union as a regional representative, and explained
the items that the Local Union had reserved for local ne-
gotiations. The Local Union had commenced negotia-
tions on May 16, acting separately from the Regional
Council and Kelty, relative to local issues. Kelty ex-
plained in detail 16 separate issues that had been opened
between the International and the Association. Respond-
ent made no proposals.
The same persons met again on August 2. In the inter-
im, the International, LPIW, and the Association had
reached agreement on a contract, which fact was related
by Kelty to Gonyea. Kelty explained that the contract
had been ratified by the membership, and that the union
representatives were prepared to talk with Respondent.
Kelty presented to- Respondent a copy of the industry
contract that had been negotiated, and discussed it in
detail. The contract made no change in pay for new em-
ployees hired at the bottom of the labor scale. Respond-
ent's representatives asked for time to respond, and a
later meeting date was scheduled.
On August 19 the same persons met again, in Re-
spondent's offices as in the past. Respondent generally
agreed with the industry contract, but proposed a start-
ing base pay for approximately 10 entry level positions,
of $7 per hour as opposed to approximately $10 per hour
in the industry contract. In addition, Respondent said it
wanted to substitute its own pension, health, and welfare
plans for those of the industry contract, although no spe-
cific written proposal was handed to union representa-
tives. There was discussion concerning Respondent's
plans, and Kelty asked that Respondent submit written
texts of its proposals The requested written proposals
then were given to Kelty, who rejected them and insist-
ed on the industry contract provisions. Kelty said the
775
Union would do what it had to do. A. strike and picket-
ing commenced the evening of August 19.
On August 24 Respondent wrote a letter to the Inter-
national , stating as follows:
Gentlemen:
Attached to this letter are the benefit details of
Timber Products Co.'s proposal for life and medical
coverage and for the Company pension plan.
As you were advised at our meeting of August
19, Timber Products Co. will not execute the indus-
try settlement presented to it. The attached benefit
levels, together with the attached details of a wage
rate change for certain job classifications, together
with the industry settlement as presented to Timber
Products Co., except as modified by these benefit
and wage provisions, constitutes Timber Product
Co.'s final offer to the Union.
We will, of course, be available for any further
meetings you desire.
Sincerely,
/s/ A.J. Austin
Resident Manager
Kelty asked Respondent for another meeting, which
was held on September 8 at a hotel, with the same per-
sons present as those who attended the earlier negotia-
tion sessions. The strike still was in progress. Kelty pro-
posed to Gonyea a starting wage rate of $8 per hour,
with upward steps ultimately to arrive at the rates of the
expired contract with Respondent, which was a little
more than $10 per hour.3 Gonyea advised Kelty that
two strikers had been permanently replaced, and Kelty
said that matter would have to be taken care of later.
Respondent gave Kelty a copy of its proposed health
and welfare plan, which did not contain dental and eye
benefits.
On September 19 Kelty sent a message to Cass, listing
seven matters "that need to be addressed if we were to
agree to the company's proposals."
A meeting was held at Respondent's office on Septem-
ber 20, with the same persons attending except Gonyea,
who did not attend. Kelty reviewed the various matters
listed in his message to Cass, and Respondent offered a
counterproposal on wages, of $7.25 per hour starting
wage for some positions and $7.10 for others. Union rep-
resentatives held a caucus, returned to the meeting, and
rejected Respondent's wage offer. Cass asked whether or
not the Union would accept Respondent's wage offer, if
Respondent accepted the Union's health and welfare
plan. The Union again caucused, returned, and counter-
offered to accept Respondent's pension, health, and wel-
fare plans if Respondent would agree to an $8 wage,
gradually increased to the expired contract rate. Cass re-
fused that counteroffer, stated that Respondent was ter-
minating the contract, and stated that, as of September
23,4 Respondent was going to withdraw from the
3 Kelty testified that base rates are not uniform in the industry, they
vary among the various companies
4 Counsel stipulated that no party terminated the contract prior to Sep-
tember 20
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's pension , health, and welfare plans and implement
Respondent's final offer.
On September 21 Cass wrote a letter to Kelty, stating
in part:
Dear Mr. Kealty:
This letter confirms the Company's position as it
stood at the close of the negotiating session con-
ducted on September 20, 1983.
First, the Company is extremely disappointed in
the outcome of the negotiations. It appears obvious
to us that despite the dancing around with respect
to the pension and health and welfare matters that
the International will not allow Timber Products to
enter into a collective bargaining agreement con-
taining a change in the base rate. This is particularly
disturbing to us because, while the International is
willing to make adjustments in base rate jobs wages,
the concept of the base rate at the current level
must remain inviolate because of other disputes in
which the International is involved. We have a dif-
ficult time understanding this position in light of the
fact that it has been made clear throughout the
process of negotiations that the change in the base
rate will have no dollar impact on any current em-
ployee of the Company.
Be that as it may, the Company's position as of
the close of the bargaining meeting on the 20th is
that the proposal with respect to base rate made
September 8, 1983, is a final offer as clarified at our
meeting of September 20 that the base rate will not
include a shift differential. Our new proposal pre-
sented on the 20th, preserving some historical
spreads in base rate positions, having been rejected,
was withdrawn. The Company's final offer with re-
spect to the health and welfare package is the pack-
age that was presented to you on September 8 in
detail. In this respect, we were also disappointed
that the analysis of the health and welfare package
proposed by the Company, which you were to have
reviewed by your analyst, resulted in a paraphrased
letter to the Company containing what the Compa-
ny considers to be a list of minor variances from the
current plan and did not include the complete anal-
ysis. It is obvious to us that in some respects the
plan proposed by the employer is superior, particu-
larly with respect to the co-insurance level and the
maximum level of benefits as two examples.
We advised you at the nieeting of September 20
that it appeared that the parties were at loggerheads
over the base rate and that no proposal made by the
Company which included its base rate offer would
be acceptable to the International, nor would a con-
tract containing such a proposal be executed by the
union. The Company felt that under the circum-
stances it had no alternative but to exercise its right
to terminate the existing collective bargaining
agreement effective Friday, September 23, and im-
plement its health and welfare package and base
rate proposal. We also advised you at that time that
the Company was implementing its withdrawal
from the TOC-IWA Pension Trust. As soon as the
Company's pension plan document is prepared, we
will furnish a copy for your review and be willing
to discuss its details. In any event, the level of bene-
fits in that plan will not be less than those levels
previously furnished you. Since the Company's plan
is on a calendar-year basis, adoption of the plan
may take place any time between now and Decem-
ber 31 without loss to the employees.
We of course stand willing to meet with the rep-
resentatives of our employees at mutually conven-
ient times and places to continue negotiations.
The letter also stated Respondent's determination to hire
permanent striker replacements.
In a memorandum to Respondent's employees, dated
September 21, Austin stated that Respondent and the
Union were at impasse, and that employees should "con-
tact us about returning, before a replacement is hired."
Although most union members initially refused to
cross the picket line, many of them began crossing it
commencing approximately September 23. Gary John-
son, Respondent's personnel safety director, talked with
50 or 60 employees who came to his office to inquire
about returning to work, between September 23 and Sep-
tember 26. He told the employees they would be re-
turned to work on a seniority basis, as jobs were avail-
able. There was some discussion with each employee
concerning resignation from the Union, and each em-
ployee was given union resignation forms prepared by
Respondent's counsel and typed by Johnson, as more
fully discussed below. Approximately 62 union members
resigned their membership, of which approximately 50
used Respondent's forms. Several members went to the
union hall and discussed the possibility of resigning.
Prestrike union membership totalled approximately 160
of Respondent's employees.
By letter to Dawson dated September 29, the president
of the International's Regional Council No. III stated
"Regional Council No. III has returned the authority as
requested by IWA Local Union No. 3-6 on industry, re-
gional bargaining between IWA Local Union No. 3-6
and Timber Products Corporation."
On October 11 Dawson wrote a letter to Austin, stat-
ing:
Local Union No. 3-6, International Woodworkers
of America, accepts the company's final offer as
outlined in your letter of August 24, 1983 and reaf-
firmed at the meeting of September 20, 1983 and in
the September 21, 1983 letter of Phil Cass Jr.
On October 13 Cass replied to Dawson:
I am responding to your letter of October 11,
1983 addressed to Mr. Austin. The tenor of that
letter is the acceptance of the company's final offer
as outlined at the meeting of September 20, 1983,
and as affirmed by letter of September 21, 1983.
If you will review your notes of the meeting of
September 20 and the letter of September 21, you
will note that in addition to notice of implementa-
tion of its final offer the company terminated its
current collective bargaining agreement with Local
TIMBER PRODUCTS CO. 777
3.6. You will also note that the company left open
the question of handling , replacement workers. The
company is reviewing the terminated contract to
determine if there are any other changes it feels are
necessary . You should be advised ,, though, that the
company has no intention of requiring any employ-
ee; who has previously resigned from the Union or
employee who worked during the strike to rejoin
the Union . Consequently , the company will insist
that all employees who worked during the strike
and those who resigned from the Union will be
eliminated from any Union security provisions in
the contract . In light of that fact , the company has
no desire to enter into any future dues checkoff ar-
rangements with the Union.
The Company will, of course, meet with you to
discuss these matters in more detail.
In its answer to the complaint , Respondent admitted
the appropriate unit and the fact that the Union is recog-
nized by Respondent as its employees ' exclusive collec-
tive-bargaining representative.
A. Alleged Changes in Work Rules and Benefits
It is alleged in the complaint that the following
changes unilaterally were made by Respondent without
prior notice to , or bargaining with , the Union in viola-
tion of Section 8(a)(5) and (1) of the Act:
(a) On or about September 26, a workrule change
- was initiated , denying unit employees working a 4-
day week , the right to bump less senior employees
for a fifth day of work.
Respondent initially , in its answer, denied this allega-
tion , but changed its answer at trial , and admitted the
change of the rule . Respondent admitted in its answer,
the fact that the Union is the exclusive bargaining repre-
sentative of its employees . Such a rule is a work condi-
tion subject to mandatory bargaining , and its unilateral
change by Respondent was a violation of the Act, as al-
leged. The violation does not depend on whether or not
Respondent 's offer of a contract was accepted by the
Union, since the work rule was not encompassed by the
contract offer. Unilateral change of past work practice
was involved.
(b) On or about September 29, Respondent unilater-
ally implemented a new dental and vision plan cov-
ering its unit employees.
The situation relative to this allegation is the same as
that for the work rule change discussed in (a) next pre-
ceding . Respondent unilaterally changed a condition of
work without notifying or bargaining with the Union,
and at trial Respondent changed its plea to admit those
facts. A violation of the Act as alleged is found.
(c) On or about September 29, a workrule change
was established , requiring; unit employees to remain
at work performing other tasks during machine
breakdowns instead of allowing them the option of
going home or remaining at work.
Dawson testified that this unilateral change wasmade
by Respondent , and that a grievance concerning,it was
filed and resolved , but a copy of the grievance was not
offered into evidence.
Keith Scheytt, who has been employed by Respondent
since 1966 , testified that , prior to the strike, employees
had the option to go - home or remain at work if they
were not able to run their machines because of break-
down or lack of material to work on. Scheytt testified
that such an occasion arose within 2 clays after he re-
turned to work after ' the strike, but that his foremen,
Calvin Hill,5 refused to give him the option of going
home and insisted that he remain at work. Hill stated "it
was a whole new program , and, we would just go by the
way they were doing it now . . . it wasn't the same as it
was before." Hill said the rule has been changed again
since that incident , and now is the same as it was before
the strike.
Michael Hicks , president of, the Union and an employ-
ee since 1970 , corroborated Scheytt and related two
poststrike incidents similar to the one related by Scheytt,
but which involved Hicks' foreman Art Lancaster.6
Scheytt and Hicks were credible witnesses , and their
testimony is accepted as accurate . Their testimony was
not denied by Respondent . By unilaterally changing the
workrule , Respondent violated Section 8(a)(5) and (1) of
the Act as alleged in the complaint .? Whether or not any
member of Respondent 's management authorized, rati-
fied, or knew about the .actions of Hill and Lancaster is
irrelevant." Respondent argues that the incidents were
isolated and did not reflect any change in company
policy, but that , too is irrelevant.
B. Alleged Refusal to Sign an Agreed-Upon Contract
The complaint alleges that Respondent and the Union
reached full agreement on a contract October 11, but
that the Union has refused to sign the contract.
As noted above, the fact that the Union now repre-
sents, and at all , times material herein has represented,
Respondent 's unit employees is not in dispute.
Respondent and the Union commenced negotiations
for a new contract on May 31,9 the date of expiration of
the then most recent contract of the parties . Negotiations
continued on August 2 and 19, with agreement on most
issues but with failure to agree on starting wages for new
employees , a pension plan, and a health and welfare plan.
On August 24 Respondent gave the Union its "final
offer," but the parties met again on September 8 and ne-
gotiated relative to the three remaining issues. An agree-
ment was not reached then, nor on Sept ember 20, when
the parties met again in' an attempt to settle the three
issues.
5 Counsel stipulated that Hill is a Supervisor' within the meaning of the
Act
6 Counsel stipulated that-Lancaster is a supervisor within the meaning
of the Act
7 NLRB v. Katz, 369 U.S. 736 (1962).
8 Appalachian Power Co, 250 NLRB 228 (1980).
9 The fact that negotiations on local issues commenced May 16 does
not affect any finding or conclusion. Those issues were of manor nature.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The September 20 meeting was a critical one. Kelty
was the only witness who testified relative to events at
that meeting, but it was apparent that, although he was a
credible witness, he did not remember all the events of
the day. Kelty testified that, after much maneuvering be-
tween the parties, Respondent withdrew its offer on Sep-
tember 8 to raise the base wage offer from $7 to $7.25,
and the parties thereupon were back to Respondent's
offer of August 24. Kelty,testified:
JUDGE STEVENS: Q. Well, this last exchange-
Mr. Kelty, it was my understanding from your ear-
lier testimony that when you went into this with the
employer, you said that we may be able to go along
with your pension and trust fund agreements if you
will back up on your $7 base wage proposal.
A. That's correct.
Q. This is what it was?
A. Uh-huh.
Q. And was there ever any indication that they
were willing to change their approach on the base
wage proposal?
A. On the meeting of September 8 in one of my
many conversations out in the hallway, I was led to
believe from Mr. Joe Gonyea that there was some
movement there. When I come back two weeks
later, the meeting on the 20th , the conversation was
no, that there was no movement at all with that;
that I was left with the impression the company's
position was in concrete over that issue, and they
[sic] wasn 't going to move at all.
Q. All right. Well, in your earlier discussion you
said that you understood that Mr. Gonyea indicated
that there may be some movement.
A. That's correct.
Q. There was no agreement, as I take it.
A. That's right, no agreement.
Kelty earlier had testified relative to this matter:
Q. So, basically you were back to what the em-
ployer had offered you August 24?
A. That's correct.
Respondent's version of events is somewhat different.
In his letter of September 21, quoted above, Cass stated
to the Union that Respondent's position during the meet-
ing of September 20 was that Respondent's proposal of
September 8, as clarified September 20 relative to a shift
differential, was Respondent's "final offer." Cass further
stated in the letter that the "new proposal" of September
20, "having been rejected, was withdrawn," and that,
further, Respondent's "final offer with respect to the
health and welfare package is the package that was pre-
sented to you on September 8 in detail." 10
Whichever version is accepted, it is clear that, as of
the close of the meeting of September 20, Respondent in-
sisted on a reduction in starting wage rates , and the
30 Although some clarifying statements and additional details were
submitted to the Union and discussed by Respondent, it is 'clear that Re-
spondent 's offer of August 24 relative to pension, health, and welfare
plans remained essentially the same throughout negotiations . The core ar-
gument involved starting wages.
Union insisted on a reduction only if those rates, what-
ever they were, would be graduated up to the level of
the expired contract. The parties were at impasse.
A question is presented as to what Cass meant when
he stated in his letter, "Our new proposal presented on
the 20th preserving some historical spreads in base rate
positions, having been rejected, was withdrawn." That
letter was admitted into evidence without objection, and
it was not challenged or contradicted by the Union. It
must be accepted at its face value. Counsel for the Gen-
eral Counsel argued in his closing statement that Re-
spondent's offer of August 24 and its offer of September
20 were the same, and that Respondent's contractual
agreement consisted of a $7 starting wage rate, Respond-
ent's own pension, health, and welfare plans, and indus-
try provisions relative to all other items Kelty's testimo-
ny was ambiguous, but he appeared to say, as quoted
above, that whatever Respondent offered on September
20, it was the same as the offer of August 24. It seems
obvious that Respondent's basic hope for a contract at all
times has been the same as it was on August 24, i.e., a $7
wage rate, and Respondent's own pension, health, and
welfare plans. Respondent never has objected to the pro-
visions of the industry agreement, other than those relat-
ing to starting wages and the stated benefit plans, and
Respondent agreed to accept the industry provisions.
Cass' letter is not clear, but in view of what Respondent
has hoped to obtain from the outset, and of the record, it
seems that Cass' referral to something having been
"withdrawn" was a referral to shift differentials, which
never presented a real problem, so far as the record
shows. The rate, not shift differentials, was the problem.
It is clear, and it is found, that Respondent never with-
drew its offer of August 24, expressly or impliedly.
The fact that Respondent and the Union still were
willing to negotiate with each other after September 20
is shown by the record. In his letter of September 21,
Cass stated to Kelty, inter alia, "We of course stand will-
ing to meet with the representatives of our employees at
mutually convenient times and places to continue negoti-
ations."
The General Counsel's closing argument was limited
to the question of law as to whether or not a bargaining
contract offer, not withdrawn, can be accepted , after
counteroffers have been made. Under the ordinary con-
tract law, of course, an offer is extinguished by a coun-
teroffer. However, the Board and courts, including the
United States Court of Appeals for the Ninth Circuit,
have established that usual contract law is not applicable
under the circumstances of cases such as the one now
being considered. Under those decisions and opinions, an
offer to enter into a collective-bargaining agreement may
be accepted within a reasonable time unless (1) it was ex-
pressly withdrawn; (2) it was made expressly contingent
on a condition subsequent; or (3) circumstances interven-
ing between offer and purported acceptance would char-
acterize the latter as simply unfair. I" However, Respond-
" Presto Casting Co., 262 NLRB 346 (1982), enfd in relevant part 708
F 2d 495 (1983); NLRB Y Donkin 's Inn , 532 F 2d 138, 141-142 (9th Cir
1976), cert. denied 429 U S 895; Pepsi-Cola Bottling Co., 251 NLRB 187
(1981), enfd 659 F 2d (8th Or . 1981).
TIMBER PRODUCTS CO.
ent does not challenge that proposition. Rather, Re-
spondent contends that Presto Casting and Pepsi-Cola do
not control this case. That argument has merit.
It is noted at the outset that as pointed out by Re-
spondent's counsel, the complaint is narrowly drawn.
Ilad-faith bargaining is not alleged. The complaint is lim-
ited (other than the 8(a)(1) allegations discussed else-
where) to an allegation that Respondent failed and re-
fused to execute a "full and complete agreement"
reached by Respondent and the Union.
Pepsi-Cola and Presto Casting each involved a "full and
complete agreement." The question here is whether or
not Respondent and the Umon had reached full accord.
Only if the parties arrived at an enforceable agreement
would there arise a duty to sign the contract involved.12
Counsel for the Union argues, in effect, that the Union
delegated its authority to Respondent to create pension,
health, and welfare plans, Y 3 which the Union would
accept in advance even though many important details
were unknown at the time, as discussed infra. Authority
for that proposition was given as Sumner Home,14 and
counsel for the Union stated in her brief that in Sumner
Home, "a union agreed to be bound by a contract includ-
ing any language the employer wished respecting unre-
solved issues." Sumner Home does not stand for the con-
clusion urged by counsel for the Union. There, the
Board stated, inter alia:
Absent any proposals on the table on the several
major open issues between the parties we fail to see
how the promises exchanged on September 18, on
the Union's part to accept any proposals that might
be made and on the Respondent's part to make such
proposals, can be taken as having created a com-
plete bargaining agreement requiring only that the
parties reduce their agreement to writing and sign
it. Simply put, until the Respondent submitted its
proposals to the Union there could be no agreement
on the substantive terms of a collective-bargaining
contract. Hence there could be no finding of a vio-
lation predicated solely on a failure to reduce to
writing and execute an agreed-upon contract.
A delegation of authority is equivalent to a waiver of the
right to negotiate on a mandatory subject of bargain-
ing.15 A waiver of the right to negotiate a mandatory
subject of bargaining may not be lightly inferred, and
must be expressly stated in clear and unmistakable lan-
guage.16 The evidence in this case does not disclose an
express waiver of the Union's right to negotiate the spe-
cific details of the pension, health, and welfare plans of-
fered by Respondent.
12 H J Heintz Co v. NLRB, 311 U.S. 514 (1941), Orion Tool, Die Co,
195 NLRB 1080 (1972), Mercedes-Benz, 258 NLRB 803 (1981). See See
8(d), NLRA.
13 There is no ambiguity in Respondent's offer, so far as wages are
concerned
14 Sumner Home for the Aged, 226 NLRB 876 (1976), enf denied 579
F 2d 762 (6th Cir. 1979)
15 Terms and provisions of a pension plan are a mandatory subject of
bargaining Inland Steel Co, 77 NLRB 1 (1948), enfd 170 F.2d 247 (7th
Cu. 1948)
16 Keller Crescent Co, 217 NLRB 685 (1975)
779
A comparison of'Respondent's proposals and the pen-
sion, health, and welfare provision of the prior, con-
tract17 indicates the skeletal nature of the proposals sub-
mitted by Respondent on August 24. The provisions of
the 1980-1983 contract incorporated by reference the
Union's established plans. The health and welfare clauses
specify the basis and amount of employer contributions.
The pensions clause describes monetary increases in con-
tributions, the amount per year of service to be paid as
retirement benefits, and the options available to employ-
ees who are terminated by plant closure. In contrast, the
health and welfare proposals attached to Respondent's
final offer described the amount of coverage employees
and dependents would receive, but make no reference to
the source of funding or the procedure for collection of
benefits. The attachment concerning the proposed pen-
sion plan change is a comparison of benefits under the
union pension plan and the new plan, but it is silent as to
the amount and basis of contributions to be made. Since
funding and collection procedures would be of substan-
tial significance to employees and their representatives,
an agreement which is silent as to these, and other essen-
tial terms, cannot be said to constitute a fully formed col-
lective-bargaining agreement . At most, it was an agree-
ment to make a contract.18
The record shows that Respondent had not created
any pension plan as of August 24, and that the offer of
that date was no more than what Dawson called it, i.e.,
an "outline." Much remains to be done to present a com-
plete proposal, and to incorporate that proposal into a
contract after both sides have reached agreement. Re-
spondent's letter of September 21 to the Union states
that, when the proposal plans were complete, they
would be sent to the Union for review and discussion,
and in fact they later were sent, but the Union never has
commented upon, or discussed, the plains with Respond-
ent. Certainly the Union never has waived its right to
bargain concerning pension, health, and welfare plans. In
view of the foregoing, it is clear that the premise of
Pepsi-Cola and Presto Casting, i.e., full and complete
agreement on the terms of a contract, is not present in
this case.
Respondent did not violate the Act by failing and re-
fusing, as alleged, to execute a contract, since the parties
had not reached full and complete agreement on a con-
tract. 19
Verbally on September 20, and in writing on Septem-
ber 21, Respondent advised the Union that it was termi-
nating the expired bargaining agreement, effective Sep-
tember 23. Thereafter, as the Union acknowledges in its
brief on the basis of Bethlehem Steel C'o.,20 Respondent
no longer was obligated to maintain the union-security
17 Arts XXIII and XXIV.
Ss See Sumner Home, supra at 977 fn 5
is Pacific Coast Metal Trades District Council, 260 NLRB 117 (1982);
Computer Services Corp., 258 NLRB 641 (1981); Mercedes-Benz, supra;
Automatic Plastic Molding Co., 234 NLRB 681 (1978).
2° Bethlehem Steel Co., 136 NLRB 1500 (1962), enf in part sub nom
Shipbuilders v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert denied 375 U S.
984 (1964)
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provisions of the contract.21 The fact that Respondent
terminated the contract prior to the Union's acceptance
of Respondent's August 24 offer did not, as noted by
counsel for the Union, constitute withdrawal of the offer.
However, it did extinguish the contract itself. The union-
security provisions of the terminated contract could find
their way into a new contract based on the offer and ac-
ceptance, but until a new contract is signed , Respondent
is not obligated to adhere to the former union-security
provisions.
D. Alleged Conditional Reinstatement
The complaint alleges that since about September 23
Respondent has conditioned replacement reemployment
of strikers on their resignation of union membership.
Orville Nichols, who has been employed by Respond-
ent approximately 26 years, testified he visited Johnson
at the latter's office September 23 because he heard that
Respondent was hiring employees, and Johnson offered
him, a job on a shift different from the one he had been
working, but that "it would be to my best interest to
resign from the Union to avoid problems with the
Union." Johnson stated that he could not return to work
if he did not resign from the Union, and handed Nichols
a union resignation form with copies for the Union and
for Respondent. Nichols did as instructed, and returned
to his job, which in the meantime became one on his' reg-
ular shift.
Scheytt testified he visited with Johnson in the latter's
office on September 19, and Johnson gave him a union
resignation form, stating that Scheytt must resign from
the Union in order to return to work. Scheytt did not
resign from the Union.
John Adams, who has been employed by Respondent
approximately 28 years, testified he talked with Johnson
on the telephone 2 or 3 weeks prior to September 27
about returning to work, and Johnson said, "If I wanted
my job back I'd have to resign [from the Union]."
Adams said no thanks, and hung up the telephone. On
September 27 he went to the plant, and talked with
Johnson and the plant superintendent about returning to
work. Johnson' asked if he would resign from the Union,
and Adams replied no. Johnson said "it [a resignation]
was for my own protection." Johnson asked if Adams
would cross the picket line and Adams said no. Adams
returned to work September 29.
Daryl Campbell, a unit employee, testified he talked
on September 23 with Doug Khokey,22 a supervisor,
21 On several occasions, Respondent raised with the Union the matter
of replacement employees, and argues that since the subject was an out-
standing one between the parties , it precluded a finding that there was a
complete agreement between the parties for a bargaining agreement
There is no convincing indication that agreement concerning replacement
employees was intended as a contract item . Certainly, raising that ques-
tion did not serve as a withdrawal of Respondent's offer of August 24.
The matter was one that could be resolved outside the contract It had
no effect on the union-security provision of the. expired contract, since as
earlier noted, that contract was terminated on September 20 and 21. Re-
spondent 's right to retain permanent replacements is not contested by the
Union, and is not in issue
22 Counsel stipulated that Knokey is a supervisor within the meaning
of the Act
about returning to work. Knokey said "if you want to
come back . . . " and handed Campbell two forms,
'saying they were resignations from the Union, "They
have nothing to do with the company. This is for your
protection." Knokey then told Campbell to see Johnson,
and sign a list. Campbell did not go to see Johnson.
Johnson testified that several of the many employees
he talked with about returning to work, including Andy
Miller, told him they were threatened by the Union with
fines if they crossed the picket line, and following con-
sultation with the company attorney, he told employees,
including Nicholas, Adams, and Scheytt, "for their own
protection that they resign from the Union." Johnson
denied telling any employee that he must resign from the
Union in order to return to work. Two employees who
refused to resign from the Union were reinstated before
the strike ended. He did not refuse to reinstate any em-
ployee, whether or not he resigned from the Union. He
gave two copies of resignation forms to employees who
told him they wanted to resign from the Union, one
copy of the employee's own records, and one for the
Union. Some employees returned one copy to Respond-
ent.
Knokey did not testify.
Discussion
Nichols, Scheytt, Adams, and Campbell were impres-
sive witnesses, and their testimony is credited. It is found
that Johnson and Knokey stated to them that they must
resign from the Union in order to return to work. Such a
statement is a violation of the Act.23
The strike commenced August 19 was an economic
strike, not an unfair labor practice strike, as discussed
above. The strikers therefore were entitled to reinstate-
ment unless they had been permanently replaced while
they were on strike. Many returning strikers were rein-
stated, but not all of them were reinstated immediately
on their reporting for work.24 It was Respondent's
burden to show that returning strikers were not immedi-
ately reinstated because they had been permanently re-
placed, and that burden was not met. Respondent offered
no evidence to justify its delay in returning strikers to
their jobs, on the basis of business necessity.26 On this
record, Respondent failed to meet the requirements of
the Act when it did not reinstate the economic strikers
immediately upon their unconditional offer to return to
work. A remedial order therefore will issue, regardless
of the fact that an 8(a)(3) allegation of failure or refusal
to reinstate economic strikers is not alleged in the com-
plaint.
It is clear and I find that Respondent told employees
their reinstatement was conditional upon their signing
the form discussed supra. Whether or not fewer than all
employees so were told is-immaterial.
23 Mark Twain Marine Industries, 254 NLRB 1095 (1981); NLRB V.
Mar-Len Cabinets, 659 F.2d 995 (9th Cit. 1981).
24 This matter was not fully litigated , but appears that Adams' return
to work was delayed because of Johnson 's requirement that he resign
from the Union Possibly others also were delayed, but that is a matter
that can be settled at the compliance stage of these proceedings
25 Laidlaw Corp, 171 NLRB 1366 (1968).
TIMBER PRODUCTS CO.
Respondent violated Section 8(a)(1) of the Act in re-
quiring employees to sign the form it had prepared for
them.26
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with their operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to tirade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. Respondent , Rockwood & Company and W. H.
Gonyea Trust No. 1-17 d/b/a Timber Products Co. is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 3-6, International Woodworkers of America,
AFL-CIO-CLC is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
conditioning reinstatement of economic strikers upon,
26 Presto Casting Co, supra.
781
and by requiring that employees sign forms for, their res-
ignation of union membership.
4. Respondent violated Section 8(a)(5) and (1) of the
Act by implementing work rule changes and a new
dental and vision plan covering unit employees without
prior notice to or bargaining with the Union.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I recommend that Respondent be or-
dered to cease and desist therefrom, and to take certain
affirmative action designed to effectuate the policies of
the Act.
I recommend that Respondent be ordered to make
whole all unit employees for any losses they may have
incurred as a result of Respondent's requiring that they
resign from the Union as a condition of reinstatement,
with interest thereon to be computed in the manner pre-
scribed in F W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as set forth in Isis Plumbing Co., 138 NLRB
716 (1962), and see generally Florida Steel Corp., 231
NLRB 651 (1977).
It is recommended that all allegations of the complaint
not found to have been proved be dismissed in their en-
tirety.
[Recommended Order omitted from publication.]