Willamette Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1975

220 N.L.R.B. 707 (N.L.R.B. 1975)

WILLAMETTE INDUSTRIES, INC.
Willamette Industries, Inc., Lebanon Division and In-
ternational Woodworkers of America, Local Union
No. 3-265, AFL-CIO. Case 36-CA-2624
September 25, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On May 12, 1975, Administrative Law Judge E.
Don Wilson issued the attached Decision in the pro-
ceeding. Thereafter, the Employer filed exceptions
and a supporting brief and the Charging Party filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent they are consistent herewith.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent
Willamette Industries, Inc., Lebanon Division, Leba-
non, Oregon, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) During the existence of a contract between it
and the Union, changing any term of such contract
without the agreement and consent of the Union.
(b) In any other manner interfering with, restrain-
ing, or coercing any employee in his right to join,
assist , or support the Union, or any other labor orga-
nization, or engage in any activity protected by the
Act, or to refrain from so doing.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) At all times, when the Union is the representa-
tive of the majority of the employees in an appropri-
ate unit, bargain with it upon request with respect to
wages, hours, and working conditions of its employ-
ees.
(b) Change any term in an existing collective-bar-
gaining agreement with the Union only after the
Union has agreed and consented to such change.
(c) Make the jitney drivers whole for any loss of
707
wages caused them, together with interest as provid-
ed in the Remedy section of the Administrative Law
Judge's Decision.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Post at its Lebanon, Oregon, facility copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Di-
rector for Region 19, after being duly signed by an
authorized representative of Respondent, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unilaterally, that is, without the
agreement or consent of International Wood-
workers of America, Local Union No. 3-265,
AFL-CIO, change any term or condition or pro-
vision of any contract we may have with the
above-named Union while it is the collective-
bargaining representative of the employees in
the appropriate unit described below unless the
Union agrees therewith or consents thereto. The
appropriate unit is:
All production, maintenance, and transpor-
tation employees employed at the Lebanon,
Oregon, plywood plant, excluding office cleri-
cal employees, guards, professional employ-
ees, and all supervisors as defined in the Act.
WE WILL make our jitney drivers whole for
any wages they may have lost because we unilat-
220 NLRB No. 108
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erally changed our contract terms with the
above-named Union and pay them appropriate
interest on such losses.
WE WILL NOT in any other manner interfere
with, restrain, or coerce any employee in his
right to join, assist, or support the Union, or any
other labor organization, or engage in any activ-
ity protected by the Act, or to refrain from so
doing.
WILLAMETTE INDUSTRIES , INC., LEBANON Di-
VISION
DECISION
STATEMENT OF THE CASE
E. DON WILSON, Administrative Law Judge: Based on a
charge filed by International Woodworkers of America,
Local Union No. 3-265, AFL-CIO, herein the Union, and
thereafter amended on October 18, 1974, the Regional Di-
rector for Subregion 36 of the National Labor Relations
Board, herein the Board, issued a complaint and notice of
hearing dated December 9, 1974, alleging that Willamette
Industries, Inc., Lebanon Division, herein Respondent,
had violated Section 8(a)(1) and (5) of the National Labor
Relations Act, as amended, herein the Act. Respondent
timely denied it had violated the Act in any manner.
Pursuant to due notice, a hearing in this matter was
heard before me in Portland, Oregon, on January 21, 1975.
The parties fully participated. General Counsel and Re-
spondent filed briefs on February 25, 1975. They have
been fully considered.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is an Oregon corporation maintaining a ply-
wood mill located in Lebanon, Oregon, where it is engaged
in the manufacture of plywood and related wood products.
During the past year, it has sold and shipped to purchasers
outside the State of Oregon plywood manufactured at its
Lebanon plant, having a value in excess of $100,000. At all
material times, it has been an employer engaged in com-
merce within the meaning of the Act.
II. THE LABOR ORGANIZATION
At all material times, the Union has been a labor organi-
zation within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
(1) Did Respondent on or about October 26, 1974, uni-
laterally change the scheduling of jitney drivers and has it
created a new job classification of "relief dry end jitney
driver"? I
(2) Did Respondent on or about October 26, 1974, uni-
laterally change the work schedule of the jitney drivers and
unilaterally establish a new job classification, during the
term of an existing collective-bargaining agreement, and
over the objection of the Union, and without agreement of
the Union?
B. The Facts
Since about May 1962, and continuing to date, the
Union has been the collective-bargaining representative for
all production, maintenance, and transportation employees
of Respondent employed at its Lebanon, Oregon, Plywood
plant, excluding office clerical employees, guards, profes-
sional employees, and all supervisors as defined in the Act,
which constitute a unit appropriate for the purpose of col-
lective bargaining within the meaning of Section 9(b) of the
Act.
At all times since May, 1962, and continuing to date, the
Union has been the collective-bargaining representative of
a majority of the employees in the unit described above
and, by virtue of Section 9(a) of the Act, has been, and is
now, the exclusive representative of all employees in said
unit for the purposes of collective bargaining with Respon-
dent, with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment.
The current collective-bargaining agreement covering
the employees in the unit described above was executed
December 5, 1973. This agreement was effective June 1,
1972, and remains in effect until June 1, 1975. Such rela-
tionship had existed for years.
The jitney drivers have always worked a "normal work
schedule" as defined in article V of the collective-bargain-
ing agreement described immediately above, and they have
been paid overtime for any Saturday or Sunday work.
Respondent, at various times during the term of the cur-
rent collective-bargaining agreement, requested that the jit-
ney drivers' schedule be adjusted to a variable workweek.
The Union considered the request and uniformly rejected
it, and continues to reject it.
The matter in issue in this case is whether Respondent
unilaterally modified the terms of its contract with the
Union, without the consent of the Union. I cannot find
that Respondent denies the unilateral change, but instead
find merely that it claims it affected the change only after
the Union was given notice of change and full opportunity
to "bargain" with respect to such change?
I find from having read the transcript much more than
once, that the matter concerning which there had been a
unilateral change had been the subject of a clearly "estab-
lished practice" 9 and no situations arose during the term
of the contract which could not have been foreseen before
the parties arrived at agreement. Contract language had
1 As the complaint was amended during the hearing. Perhaps the new job
classification had a different title
2 In the middle of an existing contract
3 Of many years
WILLAMETTE INDUSTRIES, INC. 709
been established for years with respect to hours of employ-
ment and wages including overtime , etc., and other work-
ing conditions , and they had become standard through a
continuing practice over many years.
The record makes clear that jitney drivers for years, un-
der contractual relations , had worked a 5-day week begin-
ning Monday and ending Friday, it being understood that
if they worked on Saturday or Sunday they were to receive
overtime. Respondent, on or about August 26, 1974,
changed the Monday through Friday schedule of the jitney
drivers and directed that they were to work any consecu-
tive 5 days fixed by Respondent without regard to overtime
for Saturday and Sunday. This without the Union's con-
sent.
This case was heard by me in light of a contractual rela-
tionship between the Union and Respondent for a period
of over 10 years and a practice between the parties for a
similar period.
Respondent had well more than 100 employees, of
whom but a few worked at jobs as jitney drivers. Without
respect to other employees, dryers worked what appears to
have been known as a 7-day schedule which means that the
"5-day week" could begin on "any day of the week."
The jitney drivers, as has already been noted, for years
worked Monday through Friday, with Saturday and Sun-
day as overtime days. On September 3, 1974, Respondent
placed the jitney drivers on the same schedule as the
dryers.4 At the time of the hearing such was not taking
place. The jitney drivers were working their usual Monday
through Friday shift, i.e., the 5-day schedule rather than
the 7-day schedule.
Until September 3, 1974 , since 1968, jitney drivers were
not required to work more than the 5-day schedule, viz,
Monday through Friday, with time and a half for Saturday
and Sunday.
Respondent has failed to establish in any manner that
jitney drivers were considered as part of the "dryer crew."
Instead, going back to October 20, 1968, when Respondent
proposed a 7-day week for jitney drivers, like the dryer
crew, such was not accepted by the Union, nor was it ac-
cepted thereafter.
Such difference in hours of work for jitney drivers and
the dryer crew was continued, even so far as the part of the
present contract is concerned . As late as a Joint Plant
Committee Meeting held on March 3, 1973, the original
schedule for dry end and green end jitney drivers remained
unchanged . Jitney drivers continued to receive overtime if
they chose to work on a Saturday or Sunday or both.
As I understand the record in this case , the "relief shift
schedule" referred to the so-called 7-day schedule. On May
25, 1973, Respondent stated that when the relief shift was
started, the jitney drivers were not included in the relief
shift schedule. The jitney drivers wanted the overtime
which had always been theirs.5 At no meeting between
Union and Respondent did Respondent do anything but
suggest it was "unhappy" with the "5-day week" of the
° The so-called 7-day week.
jitney drivers. It never suggested that any part of the con-
tract including article V make jitney drivers part of the
dryer crew, and, in fact, at all times jitney drivers received
overtime if they worked Saturday or Sunday or both, as
they chose.
The above is not intended to suggest that Respondent
continued to express itself as pleased or satisfied with the
jitney schedule. In fact, from time to time, it proposed
changes in the schedule for jitney drivers and on June 15,
1973, at a Joint Plant Committee Meeting it found fault
with a situation in which it alleged it could fill the weekend
schedule by going outside the jitney drivers' classification,
and it stated that if the jitney drivers were not going to
work the weekends they would have to establish a relief
shift schedule, and on June 15, 1973, Respondent com-
plained that for some weekends they had to fill several
jitney overtime shifts out of classification. It stated that if
the situation continued, the jitney workweek would be
changed to coincide with the 7-day dryer schedule .6 At this
meeting Respondent did not even suggest that jitney driv-
ers are "necessary to operate the dryer." Thus, we come to
the Joint Plant Committee Meeting of August 6, 1974,
where Respondent proposed changing the dry end and
green end jitney operators' hours of work to correspond
with the dry end crew schedule.7 Respondent proposed an
entirely new schedule for jitney drivers, allegedly because
they had refused weekend work for which they were sched-
uled to work. Respondent told the Union at this meeting
that the swing- and graveyard-shift dry and green jitney
drivers could have their choice of accepting a new work-
week schedule or be curtailed and "follow the curtailment
procedure." It should be noted that Respondent at this
meeting did not suggest that the jitney drivers were part of
the dryer crew, but simply insisted that there be a change
in the hours of work and the pay of the jitney drivers.
Respondent having made its proposal, gave the Union un-
til August 20, 1974, "to contact the company."
The Union reported the Company's plan to the jitney
drivers and they rejected the plan. Not long after August
20, the Union told Respondent that its proposed plan was
rejected by the Union. Almost immediately thereafter, Re-
spondent put its new schedule into effect, i.e., the one
which the Union had rejected, during the existence of a
contract.
Almost immediately thereafter, some of the jitney driv-
ers filed grievances. The Union, at a Joint Plant Committee
Meeting on September 6, 1974, asked Respondent what
could be gained by creating one more job and Respondent
stated that by doing this it could cut out two overtime
shifts per week.
Glenn Colburn testified for Respondent. He was pro-
duction superintendent for Respondent. I have noted that
Respondent complained in negotiations that from time to
time it was without sufficient employees to perform jitney
drivers' work on Saturday or Sunday. Mr. Colburn testified
that, one way or another, they got their full complement of
jitney drivers on Saturday or Sunday.
In addition to those who bore the regular classification
3 The minutes of the May 25, 1973, Joint Plant Committee Meeting indi - 6 This, during the existence of a contracts
cated that Respondent was at least unhappy with this condition which had 7 This would have been contrary to years of prevailing practice within the
existed for a long period of time. plant.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of "jitney drivers" there were from 12 to 14 experienced
drivers who could perform jitney driver work . Failure of
"jitney drivers" to show up for work on Saturday or Sun-
day as they previously may have volunteered to do, re-
quired Respondent to make alot of phone calls , etc., from
time to time . However , Respondent always had somebody
to operate the jitneys on Saturday and/or Sunday. This
was simply by following the contractual procedure. It was
the system that had been followed for years. For years
jitney drivers volunteered for jobs on Monday and on
Thursday morning they were assigned Saturday or Sunday
jobs . They had complete freedom prior to the time they
were supposed to report for work on Saturday or Sunday,
to get in touch with Respondent , and ask to be excused
from the Saturday or Sunday work for which they had
volunteered , for almost any reason , having a hint of legiti-
macy , such as hunting. This traditional practice according
to Colburn stemmed from the collective bargaining be-
tween the Company and the Union . The system of Mon-
day through Friday work for jitney drivers with the privi-
lege of volunteering for Saturday and/or Sunday work at
time and a half came about through collective bargaining
between the Union and Respondent , testified Colburn. As
Colburn said , the system had been followed for years. He
testified such system developed from the labor agreement
between Union and Respondent.
Colburn continued , testifying that in early 1973 Respon-
dent became dissatisfied with the "practice" 8 which I find
to have been part and parcel of the collective -bargaining
contract over a period of years . He testified that the con-
tractually sanctioned practice occasioned a lot of problems
for Respondent . He continued , testifying that Respondent
after many years found overtime to be unneeded , and they
"found a way around by which you could eliminate over-
time and stop spinning wheels trying to get people to come
and fill in for people who did not show ." He continued,
stating "that as profits got squeezed, [he] commenced to
look around for a place to save money ." He had been dis-
satisfied with paying jitney overtime for Saturday and Sun-
day assignments for about a year . He wondered why Re-
spondent should pay overtime for Saturday and Sunday
work when all Respondent had to do was to rearrange the
work schedules , which had existed for years. He began to
analyze the problem and found that such a procedure un-
der the contractual arrangements for years was costing Re-
spondent money and Respondent ought to reorganize its
work schedules so that it would not be faced with a need-
less payment of overtime as they had been paying, for
years . Please remember, this is during the term of the con-
tract.
Mr. Colburn stated it was pretty much true that for years
Respondent had had a bargaining relationship with the
Union, and , whether the contract in writing said so or not,
the parties lived and operated under that contract so that
there was overtime work on Saturdays and Sundays for
jitney drivers , and Mr. Colburn wanted to change that
practice which had existed for a period of years so that
there would be no overtime pay, and Respondent in the
8 Pursuant to the contract
middle of a contract period went to the Union and said in
effect that they had been going along now for years with
these contracts and Respondent wanted then and there to
stop doing what they had been doing , and they proposed
that the cessation be in August . Respondent asked the
Union to agree to its proposal . Respondent explained to
the Union that it had a lot of reasons including the cost of
overtime , unit stability , absenteeism , etc., and Respondent
asked the Union to agree to its proposal . The Union re-
fused and stated that they wanted the overtime that the jitney
drivers had been getting over the years . As Mr . Colburn testi-
fied, Respondent did not agree with the Union and pointed
out to the Union that the practice under the contract was
costing the Respondent money and they were having their
absenteeism problems and having a variety of economic
problems . Respondent wanted the Union to agree with Re-
spondent to cut out overtime for Saturday and Sunday and
to change the work schedules so that jitney drivers would
work different hours than provided by the contract. Mr.
Colburn stated that this proposal of Respondent was made
"in the middle of a contract period ." The Union did not
agree with the proposal , and as Mr. Colburn testified Re-
spondent changed the work hours , etc., without the agree-
ment of the Union.
Article V of the contract through the years appeared to
have provided in the second paragraph thereof, substan-
tially, as follows:
When dryer or press are maintaining seven (7) day
schedule , work schedules for those employees only
who are necessary to operate the dryer or press may
be adjusted so long as such employees have two con-
secutive days off.
Colburn testified , as would be obvious , that a jitney driv-
er does not operate a press . Without respect to the exact
words of the contract , the practice of years makes it clear
that the parties did not consider jitney drivers as the ones
who were "necessary to operate the dryer or press."
While Union and Respondent , from time to time, have
had their differences , there never has been occasion for a
strike or lockout.
In 1973 , Respondent stated that contrary to the so-called
5-day week and 7 -day week Respondent was going to pre-
pare a new work schedule, where everybody in the plant
would work 5 days a week , with no overtime and it would
try and prepare a list of employees who would begin their
work on one day or another and would finish 5 days later.
There were to be 5 days worked in succession whether they
began on Saturday or Sunday or any other day.
Bert Fanning testified that he was the industrial relations
manager for Respondent in its Oregon division . His work
entailed contract negotiation and administration, etc.
In evaluating the testimony of Mr . Fanning , at least in
part, it must be noted that the changes herein took place in
the middle of a contract period , without the consent of the
Union and solely as determined by Respondent.
Mr. Fanning testified that he did not notify the Union
with regard to the change in hours for jitney drivers that
Respondent had made the change.
He testified that, with respect to the change in schedule
for jitney drivers, he did not tell the Union that they could
WILLAMETTE INDUSTRIES, INC.
take it or leave it, that the change was going to be made. As
he put it, they spent a lengthy period of time trying to
discuss the issue and work out their mutual problems and
come to a meeting of the minds . He admitted that the
Union never came to any agreement with Respondent as to the
change in schedules for the jitney drivers . Mr. Fanning stated
that the reasons for Respondent making its unilateral
change with respect to the work schedules of jitney drivers
included "crew stability," and the problem getting the right
people in the right jobs to work overtime, etc. Pursuant to
my question he admitted that another reason they wanted
to change the work schedules of the jitney drivers was to
eliminate "the necessity for overtime ." 9 He emphasized it
was important , since Respondent was a very competitive
business , to cut its costs . These matters were mentioned to
the Union in February or March. It was as early as March
that Respondent was put on notice by th jitney drivers that
they were not going to agree to any change in the Monday
through Friday work shift. Mr Fanning admitted that the
contract language had not changed since 1969 at the latest.
It is clear that the practice for jitney drivers continued for
years thereafter.
Mr. Fanning testified that , after Respondent exhausted
everybody in the dry end and green end classification, Re-
spondent had an agreement with the Union that to pacify
the utility drivers, the utility drivers would be next in line
to fill Saturday and Sunday vacancies before Respondent
went to the "plant qualified list." According to Fanning,
while they hoped such arrangement would provide two ad-
ditional drivers whom they could reach immediately, in
1974 Respondent's problem was not solved.
It is clear from Mr. Fanning 's testimony that one of the
major reasons for Respondent's unilateral change in the
work schedules 10 was to save money for Respondent.
According to Mr. Fanning, the decision to make the
change was irrevocable when it was announced to the
Union late in August. So far as Respondent was concerned
its solution to the problem was the only way it feasibly
could be solved.".
C. Concluding Findings
The writer has most carefully studied the Board's deci-
sion in American Cyanamide Company, 185 NLRB 981
(1970). Here, of course, there is the most strong contention
by General Counsel that Respondent could not change
work schedules without the consent of the Union. I could
pursue an analysis of the above decision at great length. I
have analyzed it extensively in my mind. I find that it
would most unduly prolong this decision were Ito set forth
such analysis.
Unlike the American Cyanamide case , the dryer crew,
referred to in the contract, did not include jitney drivers as
shown by many years of past practice. The contract could
be examined only in light of what was the practice under
which the parties jointly operated. For years it was the
joint practice that jitney drivers would work Monday
9 Save money.
10 With resulting overtim pay.
11 Repudiation of contract obligations and collective bargaining.
711
through Friday and they had first crack at jitney driver
work on Saturday and/or Sunday at time and a half or
premium time . These many years of effectuating the terms
of the contract make clear that jitney drivers were not con-
sidered as being among "those employees only who are
necessary to operate the dryer." Obviously, at least to me,
the operator of a jitney was not an operator of the dryer.
The contract as effectuated by the parties thereto make it
clear that there were paid work schedules for the jitney
drivers and such schedules may not be changed by Re-
spondent without the consent of the Union. Obviously, the
Union never had so agreed to a change.
It is entirely unimportant that Respondent had econom-
ic reasons for changing the work schedule unilaterally. Un-
der Section 8(d) of the Act Respondent was explicitly for-
bidden to modify the terms of the contract without the
consent of the Union and, of course, the Union had the
privilege of withholding its consent . Section 8(d) does not
excuse unilateral changes in the contract by either party
thereto because either party had a compelling economic
reason or that such unilateral change may have served an
apparently desirable economic objective.
... "[t]he law is its own measure of right and wrong,
of what it permits, or forbids, and the judgment of the
courts [and of the Board] cannot be set up against it in
the supposed accommodation of its policy with the
good intention of parties, and it may be, of some good
results." Standard Sanitary Mfg. Co. v. U.S., 226 U.S.
2049.
I cannot find other than that Respondent' s unconcerned
and deliberate unilateral change in the schedules of work,
hours of work, and pay for work of the jitney drivers was
anything but a violation of Section 8(a)(5) and (1).
There is no question but that prior to September 3, 1974,
when Respondent put into effect its illegal unilateral
change, jitney drivers received overtime for Saturday work
and premium time for Sunday's and that they had been
scheduled to work only Monday through Friday, excepting
to the extent that they volunteered for Saturday and/or
Sunday overtime work.
There can be no question that without respect to the
exact words of paragraph 5 of the contract and indeed
without regard to whether or not there be any inherent
ambiguity in the second paragraph thereof, the parties by
their practices of many years have made it clear that jitney
drivers are not included within the coverage of article V, of
the contract. While sympathy may be felt and indeed ex-
pressed for Respondent's economic problems, it may not
unilaterally change horses in midstream. Should there have
been any violation by jitney drivers of the contractual pro-
visions between Respondent and the Union, Respondent
was entirely free to exercise its disciplinary prerogatives.
Respondent must realize that in a labor contract, as is true
of all but pro forma contracts, a quid pro quo. The Union
and its jitney drivers have been treated almost as men with-
out a country. Their contractual rights of many years have
been eliminated by the mere "say-so" of Respondent. It
dealt with the Union by its mere ipse dixit.
The economic problems presented in argument by Re-
spondent appear to be arguments alone, with no factual
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis . It must not be forgotten that Production Superinten-
dent Glen Colburn testified Respondent always had a full
complement of jitney drivers on Saturday and Sunday.
The drivers testified , and I credit their testimony in Coto,
established in this record , that Respondent was never with-
out a jitney driver on the weekend , and Respondent lost no
production because of the contract and the years of prac-
tice under it.
Respondent in its brief refers to its unilateral change in
the contracted -for working conditions as being merely "in-
significant."
I disagree entirely with Respondent 's claim in its brief
that the working schedules of the jitney drivers were not a
subject of mandatory bargaining . They not only had been
bargained for but had been fixed and had become "com-
mon law of the shop."
It is not to be ignored that the jitney drivers were de-
praved of pay be the elimination of their primary right to
seek Saturday and/or Sunday work , at overtime . In no way
can I look upon this unilateral change , after many years of
practice , as a "slight procedural change ." The entire record
makes unmistakably clear that the workweek of Monday
through Friday , with Saturday and/or Sunday being over-
time , was a practice of many years and one which Respon-
dent had sought to change for a number of years . This is
not a situation involving merely "the details and the minu-
tiae of employer-employee relationships ." This change ef-
fected the jitney workers not only in their hours of employ-
ment and in their working conditions but also in the
amount of wages they were entitled to receive.
I am completely unconcerned with Respondent 's claim
that they attempted to bargain about the change in work-
ing hours of the jitney drivers . Such "bargaining" was in
the very midst of a contractual period.
So, too , am I most unimpressed by Respondent 's conten-
tion in its brief that its unilateral change in terms of the
contract , as evidence by many years of practice , did not
constitute a "modification " of the contract within the
meaning of Section 8(d).
There is no question but that Respondent attempted to
bargain during the existence of a contract, about a change
in the contract . So, too , there is no question but that the
Union legally refused to accept the proposals of Respon-
dent which were contrary to years of practice pursuant to
contracts.
In its brief, Respondent concedes that after the Union
membership rejected Respondent's proposal for a change,
further talks would have been of no avail . Respondent de-
scribes the Union as "the immovable rock." 12
Respondent concedes in its brief that every offer it made
to have the contract terms , as put into practice over a peri-
od of many years , changed , was refused.
I reject , out of hand, Respondent 's contention that be-
cause it bargained extensively with the Union about jitney
drivers in 1973 and 1974, it did not violate Section 8(a)(5)
of the Act.
I am not at all impressed with Respondent 's contention
that the Board does not have authority to interpret a con-
12 Petrol!
tract where the parties do not have an arbitration clause to
resolve disputes between them . The fact is that the demon-
strated practice of years with respect to jitney drivers clear-
ly interprets their series of contracts.
Respondent in its brief refers to the contract provision
upon which it relied as "something of a `sleeping dog'." I
find , unfortunately , that it was a "dead dog."
I am not at all moved by Respondent's contention in its
brief that the current bargaining agreement will terminate
in a few months and the parties will then be in a position to
clear up any "misunderstandings" as to the meaning of
article V . I reject the idea that I should find it would not
effectuate the policies of the Act to attempt to resolve the
meaning of article V , especially in light of the years during
which article V has been effectuated.
There is no question that for years Respondent and the
Union lived under a contract with no question as to the
working hours , overtime , etc., and with such a solid agree-
ment there could be no question that Respondent had no
right to modify the terms of the existing contract without
consent of the Union . Section 8 (d) makes this abundantly
clear , and Respondent's claim of economic problems is ir-
relevant . Oak Cliff-Colman Packing Company, 207 NLRB
1063 (1973).
Respondent ceased to place the jitney drivers on a 7-day
schedule about December 15, 1974. In essence, it suggests
that the issue is now moot , that for such reasons no Board
remedy should be issued. I cannot ignore that the Board
must correct past violations and thereby prevent further
violations.
There is no doubt in my mind that Respondent has
shown contempt for the National Labor Relations Act by
making a unilateral change in an existing contract. It is
manifest to me that Respondent by unilaterally changing
the work schedules of the jitney drivers as spelled out here-
inabove , and by depriving the jitney drivers of their con-
tractually guaranteed right to have the opportunity to re-
ceive overtime pay, violated Section 8(a)(1) and (5).
The jitney drivers must be made whole by Respondent
for loss of pay with interest.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above , occurring in connection with Respondent's opera-
tions described in section I, above , have a close , intimate,
and substantial relation to trade , traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , it will be recommended that it cease
and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
I shall recommend that Respondent , at no time, unilater-
ally change the scheduling of jitney drivers and that it take
no unilateral action with respect to any jitney drivers while
WILLAMETTE INDUSTRIES , INC. 713
such matters are the subject of and are covered by a con-
tract between Respondent and the Union and particularly
over the objections of the Union.
At no time during the existence of a collective -bargain-
ing agreement betwen Respondent and the Union shall Re-
spondent make any unilateral change of any kind with
respect to matters which are covered by said
collective-bargaining agreement.
I shall further recommend an Order that Respondent
leave inviolate the terms of any collective -bargaining
agreement between it and the Union, unless the Union
agrees to any changes.
Since wages , hours, and working conditions are manda-
tory subjects of collective bargaining , Respondent shall
take no action with respect to the same without the agree-
ment of the Union which is the collective -bargaining repre-
sentative of a majority of the employees in an appropriate
unit . It shall make the jitney drivers whole for any loss of
wages they may have sustained by reason of Respondent's
unilateral changes in the collective -bargaining agreement
with the Union , with respect to hours and other terms of
their employment , as provided in F. W. Woolworth Compa-
ny, 90 NLRB 289 (1950), with interest as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
The jitney drivers are to be made whole for loss of wages
together with interest. Such shall be done in accord with
prior Board decisions.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. By treating its existing contract with the Union as a
nullity, and unilaterally changing terms and conditions
thereof, Respondent has violated Section 8(a)(5) and (1) of
the Act.
4. By unilaterally changing the hours and other condi-
tions of employment of the jitney drivers, Respondent vio-
lated Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
[Recommended Order omitted from publication.]