Weyerhaeuser Co.

National Labor Relations Board - Board Decisions

Mar 15, 1985

274 N.L.R.B. 972 (N.L.R.B. 1985)

972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weyerhaeuser Company and Local Union No. 2065,
United Brotherhood of Carpenters and Joiners
of America , AFL-CIO. Case 10-CA-19446
15 March 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 27 September 1984 Administrative Law
Judge Joel A. Harmatz issued the attached deci-
sion. The Charging Party, the General Counsel,
and the Respondent filed exceptions and supporting
briefs; the Charging Party filed an answering brief
to the Respondent's exceptions; and the Respond-
ent filed an answering brief to the exceptions of the
Charging Party and the General Counsel.
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.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' We agree with the judge based on his analysis of NLRB v Fleetwood
Trailer Co , 389 U S 375 (1967), that the Respondent did not violate the
Act Accordingly, we further agree with the judge that it is unnecessary
to rule on whether the Union waived the strikers' statutory rights and
whether the instant complaint was time-barred by Sec 10(b) of the Act,
and therefore we do not pass on his alternate discussion of either of those
issues
DECISION
STATEMENT OF THE CASE
JOEL A HARMATZ, Administrative Law Judge This
proceeding was heard by me in Livingston, Alabama, on
May 23, 1984, upon an unfair labor practice charge filed
on August 1, 1983, and a complaint issued on April 6,
1984, alleging that Respondent violated Section 8(a)(3)
and (1) of the Act by, since February 1, 1983, failing and
refusing to reinstate strikers following their unconditional
application to return to work. In its duly filed answer,
Respondent denies that any unfair labor practices were
committed. Following close of the hearing, briefs were
filed on behalf of the General Counsel, the Charging
Party, and Respondent
On the entire record in this case, including consider-
ation of the posthearing briefs, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Washington corporation, with a facili-
ty located in Livingston, Alabama, where it is engaged
in the manufacture of plywood and related products In
the course of its operation, during the calendar year pre-
ceding issuance of the complaint, a representative period,
Respondent sold and shipped from its facility goods
valued in excess of $50,000 directly to customers located
outside the State of Alabama. Accordingly, Respondent
is, and has been at all times material, an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act
it. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and it is
found that Local Union No. 2065 , United Brotherhood
of Carpenters and Joiners of America , AFL-CIO , is, and
has been at all times material , a labor organization within
the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background
In addition to a question of whether the complaint is
time-barred by Section 10(b) of the Act, this case raises
an issue of the first impression concerning employment
rights conferred upon economic strikers pursuant to Sec-
tion 2(3) of the Act as construed in NLRB v. Fleetwood
Trailer Co., 389 U.S 375 (1967). The Supreme Court in
that case held that economic strikers are entitled to rein-
statement as vacancies develop, even if work is not avail-
able for all upon termination of the strike. Here, the
General Counsel would extend Fleetwood to circum-
stances where, when vacancies arose, reinstatement was
denied upon consideration unrelated to the strike, which
entailed the precise discretion available to management,
had there been no labor dispute
An overview of the facts shows that the Union, since
1976, has been certified as the representative of a pro-
duction and maintenance unit at the plywood mill in Liv-
ingston, Alabama In 1979, that facility was acquired by
Respondent. At that time, Respondent recognized the
Union as exclusive employee bargaining representative
and assumed, in essential respects, the subsisting collec-
tive-bargaining agreement, scheduled to expire on Octo-
ber 17, 1980.
Thereafter, contract renewal negotiations opened in
1980, and following rejection of Respondent's final offer,
an economic strike commenced on May 11, 1981, among
the 145 production and maintenance workers Briefly, at
the outset of the strike, mill operations continued
through utilization of clerical, supervisory and 34 unit
employees who elected to cross the picket line. Howev-
er, not a single replacement for any of the strikers was
ever hired. In fact, production ceased on May 21, 1981,
when the plant was shut down in consequence of general
deteriorating economic conditions in the plywood indus-
try. Also contributing to the closedown decision was the
alleged incidence of picket line misconduct, including the
sabotage of company property. In consequence of the
shutdown, all nonstriking employees were laid off
Negotiations continued. On September 10, 1981, agree-
ment was reached on a new collective-bargaining agree-
ment which was ratified by the employees later that
274 NLRB No. 130
WEYERHAEUSER CO 973
day I With acceptance, employees made an uncondition-
al offer to return to work and effective September 10,
1981, the strike officially ended
None of the strikers were restored to payroll status in
consequence of the strike settlement For, the plant re-
mained closed in September 1981, and at the time it was
not forseeable as to the whether or when it would
reopen This state of events was provoked by legitimate
economic reasons, and closedown on an indefinite basis
would have occurred even if there had been no strike 2
The future of the plant remained uncertain until late
1982, when a decision was made to reopen In the mean-
time, contract renewal negotiations took place between
August and October 1982, producing a new contract ef-
fective October 14, 1982 3 Later on January 14, 1983,
Respondent began advertising for "skilled" workers in
general maintenance, electrical work, and plywood pro-
duction Some or all of the employees who participated
in the strike submitted applications prior to January 29,
1983 Production operations resumed on April 17, 1983
By May 1983, the mill was in full production and of the
144 unit employees that had been hired, all were treated
as new employees. Only 26 of this group had been em-
ployed by Respondent prior to the strike. The unfair
labor practice charge giving rise to this proceeding was
filed on August 1, 1983.
There is little question, on the face of the above facts,
that most, if not all, of the former economic strikers
were denied reinstatement to their former positions when
production resumed in April 1983 Accordingly, the
8(a)(3) and (1) allegations of the complaint will be
deemed to have been substantiated, unless at least one of
the issues raised by the defense, as set forth below, is an-
swered in the affirmative.
1 Did the employment of the economic strikers termi-
nate prior to the availability of job vacancies for reasons
unrelated to their participation in any protected concert-
ed activity so as to render Fleetwood Trailer, supra, inap-
posite?
2. Did the Union waive, through the process of collec-
tive bargaining, any statutory right to reinstatement
which the economic strikers might otherwise have assert-
ed?4
3 Did the Union receive clear and unequivocal notice
more than 6 months prior to its filing of the instant
unfair labor practice charge on August 1, 1983, either of
an operative unfair labor practice or that Respondent
would not recognize that the strikers possessed rights
under Fleetwood Trailer, so as to preclude litigation of
the instant complaint under Section 10(b) of the Act?
B The Fleetwood Issue
On the merits, the critical issue is whether Fleetwood
Trailer guarantees an actual "job" to economic strikers
even though their employment rights would have termi-
nated had they not lost a single day of work due to their
participation in a strike First off, it is necessary to ob-
serve that this is not a case where upon conclusion of the
strike reinstatement to active employment had been
denied because strikers were replaced or because of a
strike-related reduction in work Instead, upon termina-
tion of the strike on September 10, 1981, the plant was
closed due to economic considerations neither caused by,
nor related to, the strike. At that juncture, it was under-
stood by all that strikers had joined nonstrikers who,
since May 21, 1981, had been in layoffs Also mitigating
against the rights of the strikers is the fact that, since
1977 to date, successive bargaining agreements governing
the production and maintenance unit have included the
following-
Section 5. An employee shall be considered ter-
minated and seniority lost for any of the following
reasons
(E) LAYOFF FOR A PERIOD OF TWELVE
(12) MONTHS6
Considered with the foregoing facts, the above provision
establishes that, in the circumstances of this case, statuto-
ry rights of the economic strikers lapsed on September
10, 1982, for reasons totally unrelated to their participa-
tion in the strike. Thus, in this instance, to construe the
Act as guaranteeing the striker a job would provide a
benefit not available to nonstrikers and award them,
under the guise of the Act, a form of windfall that they
would not have earned if the strike had not occurred 7
' See it Exh 3 The new agreement was retroactive to October 17,
1980 Respondent duly paid the retroactive benefits to all employees in
the unit As furloughed employees, the strikers as of September 10, 1981,
became eligible for unemployment benefits Most filed
2 The General Counsel stipulated to this effect The Charging Party
was unwilling to go as far, but did concede that Marvin E Waters, a
regional corporate labor relations manager for the Respondent, if permit-
ted, would have testified to the purely economic justification for this
state of events With respect to the latter, I would note that had it been
necessary for Waters to testify, his undenied testimony would have been
deemed entirely probable and credible See, e g , Bushnell's Kitchens, 222
NLRB 110, 118 (1976)
° See it Exhs 4(a) and (c)
* Respondent also defends on grounds that the strikers are estopped
from asserting statutory rights in view of their acceptance of benefits ne-
gotiated in 1981 and 1982 That contention is rejected, without further
discussion, as an attempt to override significant statutory interests pre-
served by the Board's longstanding doctrine that statutory rights may
only be deemed to have been waived through collective bargaining upon
evidence manifesting a clear, unmistakable, and conscious yielding More-
over, Respondent's argument proves too much, for statutory interests
would rarely survive bargaining negotiations, if subject to nullification
upon aceptance by employees of the "fruits" of a contract
5 The offer to return to work and the placement of the strikers on
layoff was accomplished by deliberations and negotiations between Re-
spondent and the Union in September 1981 It was clearly communicated
and understood by the Union that the plant would remain in a shutdown
mode and that the strikers would be committed at that point to "Layoff,"
a status which facilitated the filing of unemployment claims
c See it Exh 2, p 12, the collective-bargaining agreement for the
term of October 17, 1977, to October 17, 1980, it Exh 3, art VI, the
collective-bargaining agreement for the term of October 17, 1980, to Oc-
tober 16, 1982, and Jt Exhs 4(a) and (c), art VI, the agreement for the
term of October 17, 1982, to October 16, 1983
There is no quarreling with the observation by counsel for the
Charging Party that the conversion of status from striker to laid-off em-
ployee which took place on September 10, 1981, did not conform with
the type of reinstatement contemplated by Fleetwood Trailer The result
reached here warrants no such conclusion Instead, those rights are
viewed simply as having been cut off when subsequently, under the
Continued
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Controlling precedent requires no such result. Under the
Act, strikers are to be treated in the same fashion upon
their unconditional offer to return to work as would
have been the case had they not participated in a strike
Absent specific evidence of antiunion motivation, eco-
nomic strikers are entitled to no more or no less. They
enjoy no exemption from uniformly applicable conditions
of work, which are unrelated to strike activity and
which fail to prejudice the strikers on the basis of work-
time lost due to participation in a strike.8
Fleetwood Trailer does not encroach upon these funda-
mental principles. The result and rationale of that case
were intertwined with two basic statutory conceptions,
one dealing with "causation" and the second with
"effect." The first derives from Section 2(3) of the Act,
which, insofar as material, preserves against cutoff, em-
ployee status, but only in the case of: "an individual
whose work has ceased as a consequence of a labor dis-
pute." Pursuant thereto, on the facts in Fleetwood, the
requisite "causation" existed because the unavailability of
work was attributable to reduced production in conse-
quence of the strike which, at strike's end, "affect[ed] the
level of production and the number of jobs." 389 U.S. at
381. In the instant case, upon unconditional application
to return to work, reemployment was neither blocked
nor impaired by replacement or strike related cutbacks.
The plant was closed at that juncture for economic rea-
sons, and would have been held in that status even if
there had been no strike. Moreover, in accordance with
repeatedly negotiated, nondiscriminatory and uniformly
applicable employment terms, rights of recall would
have terminated for strikers and nonstrikers alike on Sep-
tember 10, 1982, even if there had been no "labor dis-
pute." Thus, a nexus between job dislocation and labor
dispute being absent, the expansive definition of
Fleetwood sought by the proponents of the complaint on
the instant record would fail to derive support from any
congressional intent encompassed within Section 2(3) of
the Act 9 See Allied Chemical Workers v. Pittsburgh Plate
Glass Co., 404 U.S. 159, 166 (1971)
preestablished conditions of work, all employees, former strikers and non-
strikers alike, forfeited their recall rights under conditions having no
greater causative relationship with the strike than would be true in the
case of it reinstated striker who was subsequently discharged on grounds
of misconduct Indeed, the termination of the employee status herein was
no more related to a labor dispute than would have been the case if on
September 10, 1981, the strikers had been reinstated to active payroll
status , but then shortly thereafter laid off for legitimate economic reasons
for a period exceeding 12 months In either case , the termination of recall
rights would have been triggered by considerations other than the strike
Obviously, my views concerning the absence of causation ought not be
confused as any endorsement of Respondent's contention that the Union,
through collective bargaining, specifically waived the statutory rights
claimed on behalf of the strikers
8 Contrary to the Charging Party, the termination of statutory recall
rights herein was not effected unilaterally , but pursuant to specific, un-
mistakable terms of successive collective-bargaining agreements initially
negotiated without reference to the strike
a The General Counsel and the Charging Party place heavy reliance
on language in Fleetwood, supra, to the effect that, absent a showing of
legitimate substantial business justification, "when a job for which the
striker is qualified becomes available, he is entitled to an offer of rein-
statement" 389 U S at 381 I am unwilling, however, to construe this
reference as an absolute, intended by the Court to confer guarantees
beyond the express limitations contained in Sec 2(3) of the Act I would
agree with the Charging Party that the protective "employee" status con-
In addition to the foregoing, the Court in Fleetwood
also discussed the element of motive, wherein it was ob-
served that proscribed discrimination might be inferred
from an employer's conduct without need for independ-
ent proof of intent to discourage union activity In this
respect, the Court stated that if "after conclusion of a
strike, the employer refuses to reinstate striking employ-
ees, the effect is to discourage employees from exercising
their rights to organize and to strike as guaranteed by
Section 7 and 13 of the Act" 389 U.S. at 378. Here
again, however, in context, the Court's expression is
more conditional than the quoted material might imply.
For it was simply a restatement of the rationale of
NLRB v. Great Dane Trailers, 388 U.S. 26 (1967), where-
in it was held that specific proof of discriminatory
motive is dispensable if the employer's conduct "could
have adversely affected employee rights to some extent."
388 U S. at 34. Here, however, there is neither subjective
proof of motivation, nor room for a fairly based infer-
ence that denial of employment to the strikers would
have a foreseeable discouraging effect on the assertion
by employees of the right to strike. In the eyes of em-
ployees the manner by which the reopened plant was
manned would hardly be perceived as imposing any such
impediment Thus, considering the reasons for the close-
down, commencing September 11, 1981, and the effects
of the contractual restrictions on rights of recall, the
denial lacked any tendency to restrain future participa-
tion in any form of concerted protected activity. In this
latter respect, far from a hostile device of discrimination,
such restrictions on recall are not uncharacteristic of the
industrial experience in this country and the 12-month
limitation specifically involved here was a part of a
system of negotiated conditions that existed prior to the
strike and continued in governing collective-bargaining
agreements thereafter. Its impact on strikers and non-
strikers alike was equal. t o
tinues under Sec 2(3) of the Act until the striker returns to "regular and
substantially equivalent " employment either with the struck or some
"other" employer However , it is also plain that the guarantee extends
only to those whose employment has terminated by reason of their in-
volvement in the strike In this latter respect, congressional intent is free
from ambiguity insofar as it is expressly declared that employment status,
though actually terminated, continues only where "a consequence of, or
in connection with, any current labor dispute " Contrary to the propo-
nents of the complaint, the Court's reference in Fleetwood to job vacan-
cies was addressed to the specific facts and the issue before it, namely,
whether strikers could be denied reinstatement to subsequently emerging
job vacancies where due to the strike, no work was available at the time
of the unconditional offer to return to work
io Nothing in this decision is intended to convey that the treatment
accorded nonstrikers in all circumstances imposes a ceiling upon the
rights available to strikers The Charging Party correctly observes that
the fact that strikers are treated on parity with nonstrikers will not neces-
sarily justify a denial of Fleetwood rights to the strikers See, e g , Brooks
Research & Mfg Co, 202 NLRB 634 (1973) This is true, however, only
in circumstances where the rights denied strikers stem directly from their
participation in the strike For example, Brooks Research involved the
elimination of recall rights of permanently replaced strikers It was in
such a context that the Board rejected the contention "that economic
strikers should be equated with laid off employees " There, however,
layoff of the strikers was a direct consequence of replacement and hence
derived from the strike In contrast, here, the layoff was based on eco-
nomic considerations having nothing to do with the strike, and the fact
that the strikers were treated essentially the same as nonstrikers is plainly
Continued
WEYERHAEUSER CO 975
Indeed, on the instant facts, participation in the strike
failed to render the strikers any more vulnerable to appli-
cation of the contractual recall restriction than if they
had not lost a single day's work in consequence of their
involvement in a labor dispute In short, the evidence in
this case fails to suggest "discriminatory conduct carry-
ing a potential for adverse effect upon employee rights "
NLRB v Great Dane Trailers, supra, 388 U.S. at 35. Ac-
cordingly, the question of whether treatment of the strik-
ers was warranted by "legitimate business consider-
ations" need not be reached, for the prima facie violation
of Section 8(a)(3) may only be maintained on specific
evidence of discriminatory intent. 388 U.S. at 33-35. Ac-
cordingly, there being no such proof, dismissal of the
complaint is warranted on this basis alone.
C. The Waiver Issue
Were it necessary to consider the matter, I would
reject Respondent's contention that the Union, through
the negotiations culminating on September 10, 1981,
and/or those held in October 1982, waived any statutory
rights held by the strikers in this case It is true that ne-
gotiations waged in both 1981 or 1982 resulted in renew-
al of longstanding provisions dealing with contractual
recall rights. However, there is no suggestion that
Fleetwood or the statutory rights of the strikers were spe-
cifically addressed during these deliberations. Under
longstanding Board policy, the mere entry by a labor or-
ganization into an agreement which, in general effect, or
by interpretation, could curtail or eliminate rights guar-
anteed by the Act, fails to substantiate a waiver See,
e.g, Lehigh Metal Fabricators, 267 NLRB 568 fn. 3
(1983) 11 Indeed, as Respondent observes, even if the
rights of returning strikers are the precise subject of ne-
gotiation, a strike settlement agreement itself would not
embody a waiver of statutory rights where "the Union
could [not] make a knowing and voluntary waiver of the
rights . . [since] it had no way of knowing what those
rights were " See NLRB v. United Aircraft Corp., 534
F.2d 422, 451 (2d Cir. 1975). Milton College, 260 NLRB
399, 400 (1982), Larkins v. NLRB, 596 F.2d 240, 247 (7th
Cir. 1979). The evidence cited by Respondent in this
regard hardly meets the stringent statutory test.
D. The 10(b) Issue
Pursuant to Section 10(b) of the Act, "no complaint
shall issue based on any unfair labor practice occurring
more than 6 months prior to the filing of the charge " In
this instance, the charge was filed on August 1, 1983, es-
tablishing a 10(b) cutoff date of February 1, 1983. Re-
spondent contends that the instant complaint was time-
barred as the Union had knowledge prior thereto that
a mitigating factor Brooks is also distinguishable on grounds that the
denial of recall rights therein was based on the employer's unilateral defi-
nition of employment policy, rather than anything negotiated with the
union See 202 NLRB at 637 Cf Bio-Science Laboratories, 209 NLRB 796
(1974)
11 Contrary to Respondent, the difference between contractual rights
and remedies conferred by Congress is more than just a matter of seman-
tics An assertion of a contract right might be refuted by reasonable inter-
pretation, whereas statutory rights may only be relinquished by a clear,
unequivocal, conscious yielding
Respondent would decline to honor any rights that the
strikers may have retained under Fleetwood, supra Con-
sistent therewith, in accordance with established Board
policy, the 10(b) period begins to run when the party
filing the charge "knows or has reason to know that an
unfair labor practice has occurred " See, e.g., Stone Boat
Yard v. NLRB, 715 F.2d 441 (9th Cir 1983), Al Bryant
Inc., 260 NLRB 128 (1982), ACF Industries, 234 NLRB
1063 (1978) The Board has also held that "notice,
whether actual or constructive, must be clear and un-
equivocal, and . . the burden of showing such notice is
on the party raising the affirmative defense of Section
10(b)." See, e g, Strick Corp, 241 NLRB 210 fn. 1
(1979).
Recently, a Board majority (Chairman Dotson, Mem-
bers Hunter and Dennis, with Member Zimmerman dis-
senting) in Postal Service, 271 NLRB 397 (1984), modified
established policy concerning application of Section
10(b) in 8(a)(3) cases By virtue of that ruling, the limita-
tions period was deemed to commence on the date that
an employee received unequivocal notice of a decision to
terminate, rather than the date on which such a decision
was implemented through actual severance from payroll.
There, the alleged discriminatee was informed on Febru-
ary 27 that a decision had been made to terminate him,
effective March 2. On March 3 he was placed in a
nonpay/nonduty status while appealing the discharge de-
cision to the Merit Systems Protection Board. That proc-
ess was finally exhausted and the alleged discriminatee's
name removed from Respondent's employment rolls on
August 21. The unfair labor practice charge was not
filed until January 6 of the following year. The Board
majority held that the complaint was time-barred as the
limitations period began to run on February 27 when the
alleged discrinmatee received notification of the intend-
ed termination It is noted that the intent to discharge in
Postal Service was unambiguously conveyed and pos-
sessed a sufficient quality of definiteness to provide assur-
ance that the employer's declared action would take
place.
At the threshold of the 10(b) defense herein is the as-
sertion that effective September 11, 1982, the entire work
force, including strikers and nonstrikers, was terminated
under the recall forfeiture clause, r 2 a provision contin-
ued in the agreement reached upon termination of the
strike on September 10, 1981.13 This latter agreement
was scheduled to expire on October 6, 1982. In August
1982, the Union served notice of an intention to modify.
According to the credited testimony of Respondent's re-
gional labor relations manager Waters the parties met
pursuant thereto that same month. On behalf of the
Union, the Company was asked to agree to extend the
recall rights for an additional 12 months. When Waters
responded in the negative, the Union inquired as to
whether the Company would consider 6 months, and Re-
spondent again indicated that it would not. The parties
again met in October 1982. During the October meet-
ings, the Union again requested an extension of recall
12 See Jt Exh 3, art VI, sec 5
13 See Jt Exh 3, art VI, sec 5
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protection Waters responded that he "would not guaran-
tee that," whereupon the Union inquired as to whether
the former employees would be considered if qualified.
Waters responded, "[W]e would consider them the same
way as any other applicant "14 Consistent with this ex-
change the agreement reached in consequence of the
1982 negotiations specifically stated as follows-
Recall rights for employees on layoff are not ex-
tended beyond those recall rights provided in the
prior collective bargaining agreement
In the event operations are resumed during this
contract extension, the Company shall have the
right to make any changes in existing work rules
and methods of production including staffing using
a team and/or crew concept Prior to implementing
these changes, Weyerhaeuser Company will advise
the Union of the intended changes, discuss these
changes with the Union and consider alternatives
suggested by the Union 15
Based on the foregoing, Respondent contends the
Union was fully aware that the strikers were subject to
termination by virtue of the seniority cutoff provision as
of September 11, 1982. This, as the argument goes, plain-
ly signaled that Respondent would not honor statutory
rights of reinstatement. Moreover, according to Re-
spondent, if such rights existed, the terminations in Sep-
tember 1982 were "wrongful," and this constituted the
operative unfair labor practice. This view is lacking in
merit. Though the rights of strikers by way of contract
were the subject of considerable discussion between
August and October 1982, the Union was never informed
by Respondent that the strikers had been discharged, nor
was any intention to do so on Respondent's part suscepti-
ble to proof at that stage Conjecture as to whether Re-
spondent might have been engaged in a form of negotiat-
ing posturing or was seriously disposed to interpret and
apply the contract one way or the other at some uncer-
tain date in the future is not the equivalent of an unfair
labor practice, and, in terms of clarity, certainly does not
measure up to the anticipatory action taken by the em-
ployer in Postal Service, supra.
Indeed, at conclusion of the 1982 negotiations, the
plant had been closed for more than a year, the employ-
er had made no decision as to when it would reopen, and
it remained within the realm of possibility that this
would never occur. Unlike the advance notification of
individual discharge in Postal Service, supra, any illegality
considered at that time was too speculative to warrant
invocation of statutory remedies. To hold otherwise is to
view Section 10(b) as a catalyst for senseless litigation as
to the hypothetical, and possibly unprovable. For these
reasons, Respondent's claim that the 10(b) period began
running in the fall of 1982 is rejected as nonmeritorious.
In the alternative Respondent argued that the Union
acquired the requisite notice, prior to the commencement
14 The foregoing is based on a composite of the mutually consistent
testimony of Waters and Carroll Brown, the Union's spokesman during
all negotiations at the Livingston plant
15 On February 3, 1983, a supplemental agreement pertaining to the
crew concept was executed by the parties See Jt Exh 4(b)
of the 10(b) period on January 14, 1983, when the Com-
pany began advertising in area newspapers for "skilled
workers in general maintenance, electrical work and ply-
wood production with experience" for Respondent's ply-
wood mill in Livingston where jobs were to be orga-
nized around a "team concept " Respondent observes
that some or all the strikers answered by filing applica-
tions prior to January 29, 1983 Respondent began testing
and interviewing those who submitted job applications,
on January 31, 1983 However, as of February 1, 1983, it
does not appear that any of the strikers were informed
that they would be denied employment, nor had any va-
cancies been filled.
The issue of whether these acts "unambiguously" con-
firmed that the alleged unfair labor practice would take
place is not free from doubt. Here, the reopening of the
plant occurred within the 10(b) period, and there is no
evidence that a single striker was informed more than 6
months prior to the filing of the charge that he would
not be awarded his former job with full benefits. Nor
does it appear that the Employer, prior to the 10(b)
period, formally notified the Union when, and under
what circumstances, the plant would reopen Finally, it is
a fact that Fleetwood rights do not arise until vacancies
become available.
On the other hand, in accordance with the Board's
present policy under Postal Service, supra, where the em-
ployee is notified of an employer's intent to take adverse
action; "the particular date set for termination to take
effect is of little importance." This view reenforces the
argument herein that the refiling of applications and test-
ing requirements had become manifest prior to the 10(b)
cutoff date of February 1, 1983, and that these conditions
plainly disclosed that the former strikers would be treat-
ed as new employees, rather than reinstated to "substan-
tially equivalent employment." There is also basis for ar-
guing on the instant record that the Union acquired in-
formal, but reliable, information of (1) Respondent's in-
tention to reopen the plant prior to the 10(b) cutoff date
in January 1983, and (2) that through the application and
testing requirements in that month, at least procedurally,
Respondent would not conform to technical require-
ments of the Act.
Nevertheless, on balance, here again it is my impres-
sion that the information available to the Union and em-
ployees here was a step beyond the unambiguous, antici-
patory declaration considered by the Board in Postal
Service, supra. Moreover, the majority in that case ap-
peared to limit the holding to the facts before it, indicat-
ing that it was not inclined to pass on implications its
reasoning "may have in a context not before us " Ac-
cordingly, it is included that an earlier holding by the
Board approved by the Seventh Circuit Court of Ap-
peals in Giddings & Lewis, Inc. v. NLRB, 675 F.2d 926
(1982), enfg. 264 NLRB 561 (1982), remains viable prece-
dent. In that case, more than 2 years after termination of
a strike, the employer invoked a procedure, whereby at
6-month intervals unreinstated economic strikers were
notified that they would be removed from a preferential
hiring list unless they provided written notification
within 30 days of their interest in reinstatement. Those
WEYERHAEUSER CO 977
who did not respond were removed from the list. The
Board, with court approval, held that removal' from the
list was an independent unfair labor practice, and the
10(b) period commenced at that stage, rejecting the em-
ployer's contention that the date the new system was in-
stituted should control. For the above reasons, were it
necessary to consider the issue, I would consider Gid-
dings v. Lewis diapositive and, on authority thereof, find
that the statutory limitations period failed to bar process-
ing of the instant complaint
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed16
ORDER
It is ordered that the complaint is dismissed in its en-
tirety.
16 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