Weyerhaeuser Co.

National Labor Relations Board - Board Decisions

Nov 16, 1965

155 N.L.R.B. 921 (N.L.R.B. 1965)

WEYERHAEUSER CO.; CROWN ZELLERBACH CORP., ETC. 921
Weyerhaeuser Company ; Crown Zellerbach Corporation; Ray-
onier Incorporated; International Paper Company ; and Associ-
ation and Western States Regional Council No. 3, International
Woodworkers of America , AFL-CIO and Western Council of
Lumber and Sawmill Workers , AFL-CIO. Cases Nos. 36-CA-
1261 and 19-CA-2652. November 16, 1965
DECISION AND ORDER
On April 5, 1965, Trial Examiner James R. Hemingway issued his
Decision in the above-entitled proceedings, finding that the Respond-
ents had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Charging Parties filed excep-
tions to the Trial Examiner's Decision and supporting briefs, Re-
spondents filed a brief in support of the Trial Examiner's Decision
and a brief in answer to those of the General Counsel and Charging
Parties, and the Charging Parties filed a brief 1 in reply to Respond-
ents' answering brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the Trial Examiner's findings,2 con-
clusions, and recommendations to the extent consistent herewith.
The Trial Examiner found, for the reasons set forth in his De-
cision, that the six Companies comprising the Association had effec-
tively formed a multiemployer bargaining unit, which unit was
accepted by the Union Charging Parties in the course of bargaining.
He concluded that the lockout engaged in by the four Respondent
Companies, following the Unions' strike against the other two mem-
bers of the Association, was a lawful act sanctioned by the Board's
decision in Buffalo Linen Supply Company, 109 NLRB 447, enfd. sub
nom. N.L.R.B. v. Truck Drivers Local Union No. 449, International
Brotherhood of Teamsters, etc., 353 U.S. 87.
The Trial Examiner's Decision issued after the decisions of the
United States Supreme Court in American Ship Building Company v.
N.L.R.B., 380 U.S. 300, and N.L.R.B. v. Brown et al. d/b/a Brown
Food Store, 380 U.S. 278, which restated the general guidelines appli-
1 The Charging Parties' motion for leave to file such reply brief is hereby granted
2 The Respondents ' request for oral argument is hereby denied , as the record and briefs
adequately present the issues and the positions of the parties.
155 NLRB No. 82.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cable to lockouts, including those occurring in the context of multi-
employer bargaining. The Board finds, for the reasons stated below,
that the principles announced in those cases are controlling herein,
and thus finds it unnecessary to pass on the Trial Examiner's factual
conclusions that the Association existed, functioned, and was accepted
by the Unions as a formal multiemployer bargaining unit.
I Vhatever the precise status of the Association, formed immediately
prior to the start of the 1963 negotiations between the Employers and
the Unions, it is clear that, at the least, it served as the designated
bargaining representative through which its six members bargained
jointly with the Unions during those negotiations. It is also clear that,
by June 5, all six Employers had reached an impasse with the Unions
over certain of the economic items being negotiated. Whether the
lockout engaged in by the four Respondent Companies is viewed as a
direct response to the Unions' strike against the other two members of
the Association, in order to preserve the integrity of the Association,
or as economic action taken to further their own bargaining position,
we find that such action is lawful under the decisions of the Supreme
Court in American Ship Building and Brown Food, supra.
In American Ship Building, a single employer situation, the Court
held that, ". . . an employer violates neither § 8 (a) (1) nor § 8 (a) (3)
when, after a bargaining impasse has been reached, he temporarily
shuts down his plant and lays off his employees for the sole purpose of
bringing economic pressure to bear in support of his legitimate bar-
gaining position." 380 U.S. at 318. The Court noted that an em-
ployer's use of a lockout for such purpose is not inconsistent with
either the right to bargain collectively or the right to strike, that such
a lockout is not inherently destructive of employee rights, and that
the Board may not, therefore, dispense with an inquiry into the em-
ployer's motivation for its use under Section 8 (a) (3). In this regard,
the Court stated as follows :
As this case well shows, use of the lockout does not carry with it
any necessary implication that the employer acted to discourage
union membership or otherwise discriminate against union mem-
bers as such. The purpose and effect of the lockout were only to
bring pressure upon the union to modify its demands. Similarly,
it does not appear that the natural tendency of the lockout is
severely to discourage union membership while serving no sig-
nificant employer interest.3
In Brown, the Court held that members of a multiemployer associ-
ation could lawfully replace their" locked-out employees with tem-
3 American Ship Bui. iding, supra, at 312.
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP ., ETC. 923
porary replacements to remain on an equal footing with the struck
member of the unit who had elected to continue his business with the
help of such replacements. Thus, the Court stated :
Continued operations with the use of temporary replacements
may result in the failure of the whipsaw strike, but this does not
mean that the employers' conduct is demonstrably so destructive
of employee rights and so devoid of significant service to any
legitimate business end that it cannot be tolerated consistently
with the Act. Certainly then, in the absence of evidentiary find-
ings of hostile motive, there is no support for the conclusion that
respondents violated § 8(a) (1). [380 U.S. at 286.]
In the instant cases, the four Respondent Employers, believing
themselves part of a valid multiemployer bargaining unit along with
the two struck Employers, closed their plants for the purpose of pre-
serving the integrity of that unit, and in furtherance of the bargaining
position advanced jointly for all six Employers by the Association.
There is no contention that the Respondents "used the lockout in the
service of designs inimical to the process of collective bargaining.
There was no evidence and no finding that the [Respondents were]
hostile to [their] employees banding together for collective bargaining
or that the lockout was designed to discipline them for doing so." 4
Even assuming, therefore, that the Respondents were mistaken as a
matter of law with respect to either the establishment or the recogni-
tion of the Association as a multiemployer unit,5 we find that the
principles announced by the Supreme Court in American Ship Build-
ing and Brown Food apply to the situation where, as here, two or more
employers bargain jointly with a union, an impasse in negotiations is
reached over a mandatory subject of bargaining, and the union strikes
only some of the employers engaged in such joint bargaining. The
subsequent lockout by the nonstruck employers in that situation
clearly lacks the discriminatory motivation required by the Court's
holdings, while it does serve a "significant employer interest."
For the foregoing reasons,' we shall dismiss the complaint herein.
[The Board dismissed the complaint.]
* American Ship Buil&ing, supra, at 308-309.
6 As previously noted, we do not pass on the correctness of the Trial Examiner's con-
clusions as to the establishment or recognition of such a unit.
e Member Brown would affirm the findings and conclusions of the Trial Examiner and,
on such basis , joins in dismissing the complaint.
TRIAL EXAMINER'S DECISION
HISTORY OF THE PROCEEDINGS
Case No. 36-CA-1261 was initiated by the filing of a charge on June 13, 1963, by
Western States Regional Council No. 3, International Woodworkers of America,
AFL-CIO, herein called IWA, and a group of local unions affiliated therewith,
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against St. Regis Paper Company, United States Plywood Company, Weyerhaeuser
Company, Rayonier Incorporated, International Paper Company, Crown Zellerbach
Corporation, and a Respondent called simply, Association, alleging violations of
Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended,
29 U.S.C. Sec. 151, et seq, herein called the Act. An amended charge was filed by
the same Charging Parties on December 9, 1963, against the four companies named
in the caption hereof and the Association, alleging violations of Section 8(a)(1)
and (3) of the Act.
Case No. 19-CA-2652 was initiated by the filing of a charge on June 14, 1963,
by Western Council of Lumber and Sawmill Workers, AFL-CIO, herein called
LSW, and several district councils affiliated therewith, alleging violations of Section
8(a)(1), (3), and (5) of the Act. An amended charge was filed by the same
Charging Parties on December 2, 1963, against International Paper Company, Weyer-
haeuser Company, Crown Zellerbach Corporation, and the Association, alleging
violations of Section 8 (a) (1) and (3) of the Act.
On December 13, 1963, the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 19, issued an order consolidating cases,
a consolidated complaint, and notice of hearing. The order consolidated the two
cases, Cases Nos. 36-CA-1261 and 19-CA-2652. The consolidated complaint,
naming, as Respondents, the four companies named in the caption hereof and the
Association, alleged in substance that the Respondents joined with United States
Plywood Corporation and St. Regis Paper Company to form Respondent Association
for the purpose of representing the six employers in bargaining with IWA and LSW,
gave notice thereof to IWA and LSW stating their desire to bargain with IWA and'
LSW as a multiemployer group through Respondent Association, and, between
April 24 and June 1, 1963, IWA and LSW each separately met and explored with
Respondent Association and its members the efficacy of negotiating with said mem-
bers on the basis of a multiemployer bargaining unit. Following certain detailed'
allegations concerning the negotiations, the complaint alleged that on or about June 5,
1963, IWA and LSW each struck the operations of United States Plywood Corpora-
tion and St. Regis Paper Company at which its respective local unions were desig-
nated representatives of their employees, and that, in reprisal for the strikes against
the United States Plywood Corporation and St. Regis Paper Company, Respondents
Weyerhaeuser, Crown Zellerbach, Rayonier, and International Paper closed their
plants and operations and locked out their employees at said locations. In conclu-
sion, the complaint alleges that by such lockout "at a time when a valid multi-
employer unit had not been established" Respondents discriminated with respect to
tenure of employment and terms and conditions of employment of employees in
violation of Section 8(a) (3) of the Act and, by the same conduct, interfered with,
restrained, and coerced employees in the exercise of their rights guaranteed in
Section 7 of the Act, in violation of Section 8(a)(1) of the Act.
On January 13, 1964, following an extension of time in which to file an answer,
Respondents filed their answer in which they admitted and denied certain allegations
of the complaint and alleged that their shutdown of operations and locking out of
employees was for the sole purpose of defending against the "whip saw tactics" of
the Charging Unions and was for the purpose of preserving the multiemployer bar-
gaining basis from disintegration.
On March 3, 1964, the General Counsel issued an amendment to the consolidated
complaint in which he deleted various allegations of the original complaint so as
to eliminate any reference to United States Plywood and St. Regis as members of the
Association and to omit all allegations concerning the formation of, or operation of,
the Association. The effect of this amendment was to allege, in effect, that because
the Charging Parties had struck United States Plywood and St. Regis, Respondents
locked out their employees. Respondents did not file an amended answer, and on
April 13, 1964, the General Counsel issued a "reply to Respondents' answer" in
which he admitted so much of the Respondents' answer as alleged that, in response
to the strike against United States Plywood and St. Regis, Weyerhaeuser, Crown
Zellerbach, Rayonier, and International Paper, beginning on about June 7, 1963,
temporarily shut down operations and locked out employees at certain locations. It
denied each and every other affirmative averment in the answer.1
I The General Counsel's formal documents do not indicate how this reply to Respondents'
answer was served upon Respondents. Respondents, however, did not claim that they had
not received the General Counsel's reply to Respondents' answer, and its existence was
recognized in argument of counsel . No question was raised as to the propriety of the use-
of a reply.
WEYERHAEUSER CO.,' CROWN ZELLERBACH CORP., ETC. 925
Pursuant to notice, a hearing was held in Seattle, Washington, before Trial Exam-
iner James R. Hemingway on various days between April 14 and May 25, 1964. At
the opening of the hearing, Respondents renewed a motion previously made to sever
the two consolidated cases.2 The motion was denied.
After the General Counsel had examined the voluminous documents produced by
Respondents in response to subpenas,3 the General Counsel rested his case without
offering any evidence, relying on the undenied allegations in the pleadings, as
amended. Respondents thereupon moved to dismiss. Following a full considera-
tion of arguments made by counsel and a study of briefs submitted by the General
Counsel and the Respondents, I denied the motion.
Respondents thereupon proceeded to adduce evidence designed to show a justifica-
tion for the lockout. At the close of Respondents' case, the General Counsel moved
for "judgment upon the pleadings" or a peremptory decision on the evidence. How-
ever, when I refused to rule on the motion instanter and gave the General Counsel a
choice of proceeding with rebuttal evidence or of having the hearing closed and
having the ruling on his motion reserved and ruled on in my Decision, he chose to
adduce rebuttal testimony.
At the close of the hearing, the parties stated their intention to file briefs with
me, and time was fixed for the filing thereof. This time was later extended upon
request. Within the extended time, briefs were received from all parties and have
been fully considered.
From my observation of the witnesses and upon the entire record in the case,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Respondent Weyerhaeuser is a Washington corporation with its principal office at
Tacoma, Washington. Respondent Crown Zellerbach is a Nevada corporation with
its principal office at Portland, Oregon. Respondent Rayonier is a Delaware cor-
poration with its principal office at Seattle, Washington. Respondent International
Paper is a New York corporation with its principal office at Longview, Washington.
Respondent Association, organized by the aforesaid four Respondents in conjunction
with United States Plywood and St. Regis Paper Company, is an unincorporated
association formed about April 12, 1963, with an object of bargaining collectively
with the two Charging Unions which represent employees at various of their plants.
Respondents Weyerhaeuser, Crown Zellerbach, Rayonier, and International Paper,
each of which is engaged in logging operations and the manufacturing of lumber
products, did individually, during the past 12 months prior to the issuance of the
complaint, which period is representative of all times material herein, sell lumber
products manufactured in the State of Washington to customers outside the State
of Washington, in an amount in excess of $50,000. No issue is raised on jurisdiction
and I find that Respondents are engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
IWA and LSW are now, and at all times material herein have been , labor organiza-
tions within the meaning of Section 2(5) of the Act. Various of their locals repre-
sent employees of said Respondents and have collective -bargaining contracts with
them.
III. THE UNFAIR LABOR PRACTICES
A. Discrimination; interference, restraint, and coercion
1. The issue
The principal question presented for resolution is whether a lockout of employees
by the four corporate Respondents, in 1963 during the progress of a strike by the
2 The Respondents' motion had been made on January 13, 1964, and was referred to
Trial Examiner Maurice M. Miller for ruling. On January 28, 1964, Trial Examiner Miller
issued his ruling, denying Respondents' motion Because of the receipt by said Trial
Examiner of Respondents' reply to General Counsel's response in opposition to Re'pond-
ent's motion to sever the cases on the day following the issuing of his ruling, Trial
Examiner Miller reconsidered his ruling, but, on February 20, 1964, he issued his ruling
again denying Respondent 's motion.
8 A motion to quash the subpenas was made at the hearing but was denied alter full
consideration by me.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charging Unions at two other employers' operations, was an exercise of a legitimate
defensive measure designed to maintain the solidarity of a valid multiemployer bar-
gaining group (as Respondents contend the six-member Association is) or whether
the lockout was unlawfully used as an offensive measure.
2. Background
Collective Bargaining in the Northwest Lumber Industry
The Charging Parties, herein called 1WA and LSW, or merely the unions, are the
principal collective-bargaining representatives for employees at various plants or
branches of the corporate Respondents, of St. Regis, of U. S. Plywood, and various
other lumber companies in California, Oregon, Washington, Idaho, and Montana.
Collective-bargaining contracts as of the years 1961 to 1963 existed between locals
of IWA and LSW, on the one hand, and a corporate subdivision of the various
companies involved here?
Collective bargaining in the northwest lumber industry, as between a company
and a union, has, for sometime, been engaged in on more than one level. Subjects
peculiar to one of the corporate subdivisions or to a local union of IWA or LSW
representing the employees in such subdivision have usually been bargained at the
local level (i.e., by a company manager and the local's bargaining committee).
Matters of more general union and company concern are bargained at a higher level.
This higher level has varied through the years. A local of LSW, for example, might
designate a district council to bargain on its behalf for matters of more general
interest, and the district council, in turn, might redesignate the more inclusive body,
Western Council, as bargaining agent. IWA has bargained on matters of general
concern through its Western States Regional Council No. 3. Bargaining by an
employer at the higher level would be conducted by such as a director of industrial
relations, by a corporate officer, or by an employer association.
Employer associations in the northwest lumber industry have been formed for a
number of years on varying lines of organization and authority. In rare instances,
an association might have a contract, uniform as to all members, signed by the
association itself.5 In most instances, however, the contract, whether reached
through negotiations on the branch or plant level, the company level, or the associa-
tion level, has been a contract between local unions and the particular employer or
subdivision thereof. Association bargaining usually resulted in a settlement agree-
ment or recommended contract, which, if adopted individually by members of the
association, was signed by them as a separate contract.
Although each year's contract might be incorporated in a new document, the
contracts usually were not completely renegotiated. In practice, the local contracts
would continue in part, at least, unchanged from year to year except to the extent
altered as a result of collective bargaining on a local or a higher level. Customarily,
the contracts between the locals and employers either expressly or implicitly provide
that an automatic renewal results at the end of the term unless a party desiring
termination or change gives 60 days' notice before the expiration date. In practice,
although not expressed as a requirement in the conti acts, the party desiring a new or
amended provision specifies the contract provision desired to be amended-that is,
he "opens" on a particular contract topic-when giving his 60-day notice. There-
after, bargaining, at whatever level, in practice, would be limited to those subjects
mentioned in the notice of opening. The remainder of the contract would continue
unaltered. Hence, there would usually be no bargaining on subjects not opened by
proper notice.
After serving notice of opening on an employer, a local union would indicate
whether it would do its own bargaining or whether it would delegate authority to
bargain to a higher union body. IWA locals' delegations would be to their regional
council. LSW locals would delegate, if at all, to their district council, which in
turn could redelegate to the regional council. Subjects for bargaining on an industry
basis have usually been selected at a meeting of union delegates, such as a regional
convention. Local unions would then be supplied with a list of "industry openings,"
or proposed subjects for bargaining on an industrywide basis. When, thereafter, a
local would serve notice of opening on the employer, it would include such subjects
which had been selected at the convention in addition to any sections in its individual
contract in which it desired change It is customary for the local union to delegate
authority to bargain on subjects selected at the convention while reserving authority
4 The subdivision, depending on its character, is called a branch, a division, an operation,
a plant, a mill, or other portion of a company.
5 This was true of the Columbia Basin Loggers Association, which dissolved in the 1950's.
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP., ETC. 927
to itself on subjects limited to amendment of its local union contract only. The notice
of opening served by a plant manager on a local, or a later communication, might
delegate bargaining on certain subjects to a company representative representing all
plants or branches while reserving other subjects for local (divisional or operational)
bargaining, where the plant manager would bargain for the company. At the higher
level, whether that would be the corporate officer in charge or an association of
employers, on the one hand, and the division or region for the union, on the other,
the representatives would bargain only on subjects specifically delegated to them.
In 1960, there was formed an employers' association called Timber Operators
Council, herein called TOC, which conducted bargaining negotiations with unions
on behalf of employers who delegated authority to them for that particular year.
Some of the corporate Respondents were members of TOC and had occasionally
bargained through it. TOC had authority to bargain only on those subjects which,
were opened and on which bargaining was delegated to it. Before 1963, employers
who had delegated such authority to TOC reserved the right to withdraw that author-
ity at any time, before or after settlement was reached, and were then free to carry
on their own negotiations.° The authority which was delegated to TOC was some-
times limited to subjects less than those which had been opened by one or the other
of the negotiating parties. So, for example, an employer might authorize TOC or
another association to bargain for him on such subjects as wages or hours of work,
while reserving to himself or delegating to another representative bargaining on
matters peculiar to a local operation or those on such selected topics as union security,
pensions, or health and welfare.
No industrywide strike had occurred in the northwest since 1954. Since that date,
strikes in the industry have been limited in scope to what are termed selective strikes
or, in union parlance, "single-shotting." This means that a bargaining union, whether
bargaining with an employers' association or with individual employers, might choose
to strike one or two employers or plants rather than all members of an association or
all plants or operations of individual employers in the area. The first settlement made
by regional representatives of a union with an employer or with an association on
industrywide subjects of negotiations tended to set a pattern for settlements made
thereafter, especially if the employer reaching the early settlement was an association
of employers or a large company in the industry. I infer from all the evidence that,
from a union's point of view, single-shottmg had the advantage not only of bringing
about an early (or precedent) settlement with the struck employer or employers but
also made possible the financing of strikes against individual employers by the assess-
ment of employees still working at unstruck companies or operations to furnish
financial assistance to employees who were on strike.
3. Formation of the Association
Beginning in the spring or early summer of 1962, and from time to time thereafter,
Lowry Wyatt, a vice president for Respondent Weyerhaeuser, conducted informal
discussions with officials of various timber and lumber-processing companies having
operations in the Pacific Northwest with sufficiently common interests to explore the
possibility of forming an association of employers which would bargain collectively
with unions on a basis of being bound from the start of negotiations to carry negotia-
tions through to a common settlement which would be binding on all. In the latter
respect, particularly, this type or organization would differ from TOC and most other
associations in the industry, both past and present, whose settlements were usually
only recommendations for contracts which might or might not be accepted by individ-
ual employers represented. Wyatt testified that in his view, the existing bargaining
format was unable "to come to grips with the real problems of the industry" which
were: increasing competition, increasing costs of labor and other things, and an
insufficient increase in market prices. One of the changes which might, from Weyer-
haeuser's point of view, improve the situation, was an agreement which would grant
employers the privilege of operating on a three-shift day, 7 days a week, with no
employee working more than 40 hours a week, and with no premium pay for Saturday
or Sunday work, as such. This was sometimes called a variable workweek. Wyatt
6In the 1961 negotiations between TOC and IWA, several of the Respondents who were
later members of the Respondent Association, withdrew from TOC bargaining befoic com-
pletion of negotiations, and IWA was then obliged to bargain with each of those com-
panies separately. Those companies did not give TOC authorization to bargain for then
generally on 1963 openings. The form of delegation of authority to TOC which was used
in 1963 stated that the employer was not privileged to withdraw from negotiations before
settlement was reached. However, T'OC still was negotiating to that year for a settle-
ment agreement which was optional with employers.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found some interest in the formation of such an association on the part of repre-
sentatives of other corporations, including (in addition to those who later formed the
Association) Scott Paper Company, Simpson Timber Co., and, to a lesser extent,
Georgia Pacific Corporation and Kimberly-Clark Co.
Investigatory meetings were held beginning in late September 1962, and studies and
reports were made to determine the practicability of forming an employers' association
and of functioning as such, together with the legal technicalities involved, particularly
with reference to the legitimate use of a lockout in the event IWA or LSW should
resoit to selective strikes against less than all members of such an association.?
Participating in such studies and meetings were representatives of the six companies
who later became the Association and two others who later decided not to join. The
representatives of the participating corporations were designated a committee. In
December 1962 the committee made a written report, and during January and Febru-
ary 1963, meetings of this committee were held and tentative drafts of an association
agreement were drawn. In February 1963, the committee requested that Wyatt ascer-
lain the attitude of IWA and LSW toward bargaining with such an association before
proceeding further.
Pursuant to such request, Wyatt, on February 18, 1963, met with Harvey Nelson,
president of Western States Regional Council No. 3 of IWA. Wyatt's and Nelson's
accounts of this conversation differ in only one respect. Wyatt testified that he told
Nelson that the association being contemplated would be a "fully-bound" multi-
employer association, meaning bound by the settlement reached as well as bound
not to withdraw before settlement. Nelson testified that mention of "fully-bound" was
not made at that time. If Wyatt used the quoted adjective, Nelson could have been
thinking in terms of his 1961 experience with TOC when several major employers
withdrew before negotiations had been concluded and he may thus have pictured an
association where this would not happen, missing the added significance of "fully-
bound ." In any event, Wyatt expressed to Nelson his ideas regarding the advantages
to be attained in having an association of major companies in the northwest lumber
industry, mentioning , among other things, that he felt that this kind of association
could best discuss such matters as hours of labor in a situation where new machinery
and equipment work longer hours or more days a week without the penalty of over-
time payment . Nelson asked and was given names of the companies such as might
be included. Wyatt named some of the corporations interested. Nelson named some
companies that he thought should be included in such an association. Wyatt said
that if this association were formed, there would be certain items that they would wish
to reserve for individual company negotiation. He said that he doubted that Weyer-
haeuser would be willing to insert the subject of union security into group bargaining,8
and he said he doubted the wisdom of including in association bargaining such sub-
jects as pensions and health and welfare.9 Wyatt told Nelson that he respected the
latter's opinion and wished to obtain it concerning the formation of such an association
before any further meetings were held with representatives of other companies.
Nelson told Wyatt that he could not see that the reservation of the specific subjects
mentioned would create any undue problem and that he saw nothing basically wrong
or unsound in the ideas expressed by Wyatt. He said that, in view of the changes in
the industry, it could be beneficial for all major companies in the industry to get
together on general negotiations. According to Wyatt, Nelson said that he would
discuss the matter with others to see if there were any objections.'°
On the following day, February 19, 1963, pursuant to previous arrangements,
Wyatt met with Earl Hartley, executive secretary of the Western Council, LSW.
Wyatt described the proposed association as a fully bound group of employers and
outlined the reasons therefor as he had to Nelson. He also said that, during the first
year at least, he felt that pensions, health and welfare, union security, and local issues
4 The results of such a study were incorporated in a subcommittee report which com-
pared the advantages and disadvantages of various cooperative methods of employer
bargaining, including parallel bargaining, joint bargaining, and formal or informal associ-
ation bargaining. Accompanying this study was a draft of legal opinions expressed in
question and answer foim.
BAt that time, most of the interested employers already had union-shop contracts
Weyerhaeusei had an agreement to include an agency-shop provision if found valid by the
United States Supreme Court.
e One reason for such exclusion was that some companies were covered by trust agree-
ments along with other companies, not members of the Association, and any change in the
provisions of such trust would better be negotiated through an agent representing all
such companies.
30 Nelson did not mention this statement in his testimony. It is possible that Wyatt, in
retrospect, confused this conversation with the one he had with Hartley.
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP., ETC. 929
should not be brought to the association table for bargaining . Hartley commented
that Wyatt was setting up an Arlington Club committee with teeth , alluding to a group
of employer representatives who met outside of their companies ' individual bargain-
ing with a union to reach a consensus on the position which each would take in
separate negotiations with the union . Wyatt gave an explanation of what he con-
ceived to be the difference between the contemplated association and an Arlington
Club committee . Hartley said that he, personally , saw no problem in what Wyatt
had outlined but that he wished to talk with others before giving an opinion and that
he would telephone Wyatt to let him know of the LSW reaction . A few days later
Hartley telephoned Wyatt and said that he had been "east of the mountains" ( referring
to the Cascades , each of which the Western Region of LSW had several locals) and
in various parts of his territory and had talked with a number of his people, and he
told Wyatt that he and the people he had spoken with looked with favor upon the
formation of an association such as Wyatt had described . To this time , of course,
only generalities had been discussed , not details of the proposed association 's structure
or extent of authority . One reason for the favorable reaction of LSW toward the
proposed association lay in the fact that in 1962 it had been subjected to a number of
raids by other unions, principally by the Teamsters , and it foresaw a benefit from a
larger bargaining unit which might check raids and piecemeal decertifications. One
of the persons consulted by Hartley was Daniel Johnston , an economic adviser for
LSW. Hartley was unable to give Johnston the details of the proposed association,
but on the basis of the general idea of such an association , Johnston commented that
the idea was "exactly the thing we were trying to accomplish" and that LSW should
do everything it could to help it materialize . He advised Hartley, however, not to
recognize or bargain with the Association until they knew more about the structure
and purpose of the Association.
Wyatt reported to company representatives at a meeting on February 27 that the
reaction of both unions had been favorable and recommended formation of the
Association . Simpson and Scott , among others who had been contemplating forma-
tion of an association , not wishing to be bound to a common result , withdrew at this
meeting leaving six interested companies . The remaining six express concern over
ability to function without a greater number, and they made futile efforts to enlist
other companies , Wyatt personally being assigned to attempt to interest Georgia
Pacific and Kimberly-Clark.
The employers had advance information that IWA and LSW would be requesting
a 3-year contract in the coming bargaining , and the employers anticipated that wage
demands would be high because the unions had failed to procure a wage increase in
the last negotiations as a result of which LSW had never closed those negotiations.
In view of both these expectations , among other things, the employers ' representatives
decided that formation of an informal association was desirable
Contracts between the six companies and the two unions, for the most part, had a
terminal date of June 1, 1963, and in order to prevent an automatic renewal, anyone
wishing changes was required to serve notice of opening on the other contracting
party on or before April 1, 1963 Customarily, notices of opening by the companies
were sent by the individual plant or branch manager to the local union representing
employees at his operation , and, conversely , the local unions sent notice of their
openings to the plant manager. In order to attain uniformity with respect to general
union openings , the regional office (or district council perhaps in the case of LSW)
would notify local unions in their territory of the general subjects on which the
unions wished to negotiate , and the locals as a rule would include those ( along with
local openings they wished to make ) when they notified the plant manager Later,
the locals would serve notice on the plant manager indicating on which of these open-
ings the local was to be represented by district or regional IWA or LSW for bargain-
ing. Normally the company management notified the union of the company open-
ings. Sometimes companies would instruct managers to open on certain subjects. In
an effort to achieve uniformity in openings , the six companies , at a meeting in
March 1963 , approved a form of uniform openings , consisting of the three previously
mentioned topics-hours of labor, overtime , and grievance procedure-with a brief
explanation of the change requested. Apparently , however, the form was either
ignored or was made available too late and after opening notices had already been
sent by some branches of several of the companies , for only Weyerhaeuser and Inter-
national Paper appear to have used the recommended form and opened uniformly on
the aforementioned three topics for all their operations involved. U .S. Plywood failed
to make any openings at one operation , and its openings at other operations varied,
none including all three of the uniform openings used by Weyerhaeuser and Interna-
tional Paper. St. Regis opened all contract articles. Rayonier opened at two of
three operations ( later covered by the Association agreement ) on hours of labor and
standing committees . At the other, it opened on grievances.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The locals of IWA and LSW made timely service of notice of their openings on
the various managers. These included both those subjects peculiar to the contract of
the local and those agreed to at the higher level as industrywide aims. These will be
detailed later under the respective meetings between IWA and LSW, respectively, and
the Association.
During the morning of April 12, 1963, Nelson spoke with Wyatt on the telephone
and asked for dates for contract negotiations between IWA and Weyerhaeuser. When
they had agreed to meeting dates of April 24 to 26, 1963, Wyatt told Nelson that he
would be attending a meeting that afternoon regarding the formation of an associa-
tion, and he asked whether, in the event the association was formed, the foregoing
dates could be used for association bargaining. Nelson agreed that they could.
At the meeting of representatives of the six companies (who were later to form the
Association) that afternoon, it was learned that Kimberly-Clark was definitely not
interested in joining an association and that Georgia Pacific was still undecided.
U.S. Plywood began to exhibit misgivings about joining Wyatt told the other repre-
sentatives that, if U S. Plywood backed out, the group would be too small a segment
of the industry to warrant Weyerhaeuser's participation. U.S. Plywood finally agreed
to participate if the other five did. A final draft of an agreement for organization of
an association was approved and there was tentative agreement on signing it.
Following the afternoon meeting of April 12, Wyatt telephoned Nelson to inform
him that an association had apparently been formed and gave Nelson the names of
the six companies involved.ll Wyatt asked Nelson for a postponement of negotiations
because the Association was just forming. Nelson said that IWA was already meeting
with others in the industry and if there were a postponement of the dates set for the
Weyerhaeuser or association meetings, Nelson might have to set dates for a "second
go-round" with those involved in current meetings and that he would not wish to do
this and he thought this might not be in the best interests of the IWA-association bar-
gaining. Wyatt concurred and withdrew his request for postponement.
Six copies of the association agreement were circulated among the six companies
and they were all signed between April 15 and 22, 1963,12 by each of those companies.,
were returned to Portland on April 23, and were distributed among the members who
assembled there for the meeting with IWA on April 24.
When formation of the Association appeared certain, Wyatt telephoned Hartley of
LSW, informed him of the formation of the Association, and proposed bargaining.
Hartley asked and was given the names of the association members 13 When Hartley
asked for meeting dates, Wyatt referred him to E. Manchester Boddy (pronounced
Bodie), industrial relations director for Crown Zellerbach, who had been elected
secretary of the Association.
At the April 12 meeting, the parties had agreed on a standard letter by which each
was to notify IWA and LSW of its delegation to the Association of its authority to
bargain. This letter read as follows:
This is to advise you that the undersigned Company is a member of a voluntary
multi-employer Association, herein called the "Association" comprised of the
following named employer Companies in the wood products industry:
Crown Zellerbach Corporation
International Paper Company, Long-Bell Div.
Rayonier, Inc.
St. Regis Paper Company
United States Plywood Corporation
Weyerhaeuser Company
We hereby notify you that this Company hereby delegates to the Association
authority to bargain collectively on and with respect to any revisions of the exist-
ing agreements between your Union and this Company at its operation named on
11 The General Counsel points to the less than positive manner in which Wyatt notified
Nelson of formation of the Association I consider this not unusual since the written
agreement had not yet been signed. Wyatt testified that during a recess in the meeting,
representatives of U .S. Plywood, who were present, telephoned their home office and re-
ported back that U.S Plywood would loin if the other five companies did Wyatt's tele-
phone call to Nelson could have taken place during the recess. In any event, I conclude
that Wyatt's indefiniteness was dictated by caution
12 The order of signatures by date was St. Regis, Weyerhaeuser, International Paper, U S.
Plywood, Rayonier, and Crown Zellerbach.
13 There is some evidence indicating that Wyatt may also have read a list of the oper-
ations of the various companies which would be included in group bargaining . In view
of the uncertainty, I make no finding thereon.
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP., ETC. 931
the attached list, pertaining to all matters which involve the wages, hours or
other conditions of employment of employees of this Company represented by
your Union at such locations, other than the subjects of (1) pensions, (2) union
security, (3) health and welfare, and (4) those issues which have been cus-
tomarily subject to local negotiations.
The subjects of pensions, union security, health and welfare, and local issues,
and all matters pertaining thereto have been and are hereby specifically reserved
and expected from the delegation mentioned above, and if properly opened for
bargaining, shall be subject to collective bargaining negotiations between your
Union and this Company, separate and apart from any collective bargaining
conducted between your Union and the Association in accordance with the
delegation aforesaid.
We further notify you that this Company through the Association desires to
change the terms of the said existing agreements with respect to (i) hours of
labor, (ii) overtime, and (iii) grievance procedure, including, without limitation
all matters relevant thereto.
The Association and this Company will be prepared to meet with you for
the purpose indicated at mutually convenient times and places. Please let us
know your desires in such regard. The secretary of the Association bargaining
committee is
Mr. E. M. Boddy
Crown Zellerbach Corporation
1100 Public Service Building
Portland 4, Oregon
All notices and communications from your negotiating committee to the
Association may appropriately be directed to Mr. Boddy. Notices and commu-
nications intended individually to this Company may be forwarded to the
undersigned.
4. Structure and authority of the Association
The Association's agreement covered the following points: its objectives; the
procedure by which additional members might join; the subjects for which the Asso-
ciation would bargain; the right of a company to reserve subjects of bargaining and
the procedure to be used in making such reservations; bargaining procedure (includ-
ing "participation" by each member and a provision for determination of decisions
by a 75-percent vote of the membership, each member, regardless of size, having
one vote); a provision requiring members to amend their respective contracts with
the local unions involved so as to incorporate the agreement resulting from the
bargaining; a provision requiring that, if one or more member companies or subdi-
visions thereof covered by the agreement should be struck by a union with respect
to the subjects before the Association and union for negotiation, all other members
of the Association would thereupon close those of their operations which were listed
in the association agreement; a provision for payment of expenses; and a provision
for withdrawal of members from the Association by giving notice to the others and
the union before March 1 of any year.
Attached to the association agreement was a list of plants, branches, divisions, or
operations of each member intended to be represented by the Association in collec-
tive bargaining, and following the names of each of such company subdivisions was
the number of the local union of IWA or LSW which represented employees at that
location. These subdivisions were not all the subdivisions of the several companies
and were not, in some cases, all those at which a local of IWA or LSW was the
collective-bargaining representative. All those listed, however, were west of the
Cascade Mountains in Washington and Oregon, along with a few plants or opera-
tions in northern California.
The articles of the association agreement made no provision for a name for the
Association. The members simply referred to it as the Association, which it will
hereinafter generally be called. The unions sometimes called it the Big Six, a name
which may appear hereinafter from time to time.
5. Notice to unions of formation of the Association
Following the verbal agreement to form an association and before the last signa-
ture was appended to the association agreement, each of the six companies sent to
IWA and LSW copies of the form letters heretofore quoted giving notice of the
formation of the Association and of the delegation of authority by each. The Gen-
eral Counsel points to the fact that, with respect to three of the companies-U.S.
212-809-66-vol. 15 5-6 0
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plywood, Rayonier, and Crown Zellerbach-these openings, or some one or more of
them, were new, as those companies had not used the uniform opening notice used
by Weyerhaeuser and International Paper, whereas St. Regis had opened all contract
articles; so the three openings listed in the St. Regis letter of delegation of authority
to the Association was a limitation on its previous statement of opening. For rea-
sons hereinafter stated, I find this apparent discrepancy to be unimportant. Each
company attached to the letter of delegation a list of its operations for which the
Association was authorized to bargain.
6. Prestrike negotiations
a. Explanation of findings of what transpired at bargaining sessions
Three principal witnesses testified to the substantive facts of the case, including
those concerning bargaining sessions. Lowry Wyatt, chairman of the Association's
negotiating committee and a vice president of Respondent Weyerhaeuser, gave tes-
timony on behalf of the Respondents. Harvey Nelson, president of the Western
States Regional Council of IWA, was called by the General Counsel to testify in
support of his case as to the IWA. On behalf of the LSW case, the General Counsel
called only Daniel Johnston, an economic adviser and consultant of LSW who par-
ticipated on that union's behalf in the contract negotiations between that union and
the Association. In general, the accounts of Wyatt and of the two principal wit-
nesses for the General Counsel coincided to a reasonably to-be-expected degree and
their testimony has in most instances been accepted as fact. However, each of the
three principal witnesses was understandably partisan. Realizing that the memory
of spoken words may be colored by personal interpretations in a recounting of con-
versations, I have compared the testimony of each with the other as well as against
other evidence made available for this purpose. Among the exhibits in evidence are
notes taken by representatives of the Association and by representatives or agents of
the Charging Parties at various negotiating sessions .14 An examination of these
notes and a comparison of their contents with the testimony of the foregoing three
principal witnesses discloses that statements made at bargaining sessions by the fore-
going several witnesses were, in some cases, less favorable to the cause of the party
whose representatives prepared the notes than was the testimony of the witnesses
themselves. In some instances, quite a different flavor is given by the notes. In
making my findings of what transpired at the various meetings between the Asso-
ciation and the respective Charging Parties, I have attempted to make findings of
the actual occurrences to the extent material hereto and to the extent possible. Where
I have relied on the notes of the negotiating meetings, I have done so with a view to
eliminating confusion apparent in the testimony of the witnesses, to modify testimony
that appeared to place a somewhat unbalanced slant on what was said, and to bring
out statements omitted in the testimony which were in the nature of admissions
against interest.
b. Prestrike meetings between IWA and the Association
At the appointed time on April 24, 1963, Nelson, with members of his committee,
met with committee members of the Association. Wyatt introduced the other mem-
bers of the association committee (one for each company) and named the companies
they represented. Present also but in another row of seats were officials of the vari-
ous member companies. Wyatt identified himself as chairman of the association
committee, and Boddy as secretary. He explained that the company officials behind
the committee were present to aid the committee with information and to finalize
any agreement that might be reached. Then Wyatt opened the meeting with a
statement about the formation of the Association, referring to the letters sent to the
IWA by each of the companies giving notice of the formation of the Association
and of their delegation of authority to the Association with the limitations noted in
the letter. Wyatt said that they were present to negotiate with the IWA on those
subject matters on which the Association had authorization, that on those subjects
if Some of the original notes made by Wyatt at bargaining sessions were offered and
were received . Others of Wyatt's notes were available but were not offered by either side.
The original notes of the secretary of the Association were introduced in evidence by the
General Counsel along with the later account of meetings prepared from those notes. Also
in evidence are notes taken by representatives of IWA and LSW at bargaining sessions.
(General Counsel's Exhibits Nos. 50-63, 75, 76; Respondents ' Exhibits Nos. 383-384, 398,
400-406.)
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP., ETC. 933
they were prepared to reach a binding agreement, and that the matters settled would
not be negotiated elsewhere. Nelson asked if Wyatt was saying that if the union
committee were to reach an agreement with the Association on hours of labor, that
would foreclose further negotiations at a local level on the same subject with U.S.
Plywood. Nelson explained his question by going through the various U.S. Plywood
openings on the same subject.15 He also pointed out St. Regis' opening of all con-
tract articles. Nelson said that IWA did not wish to be put in the position in which
they found themselves in 1961 when negotiating with TOC when several employers
had withdrawn and the IWA had to negotiate at different levels Wyatt stated that
he was not familiar with the U.S. Plywood openings and, to discuss that and the St.
Regis openings, he asked a caucus. One was held and, on return to the meeting,
Wyatt reviewed the U.S. Plywood openings and stated that there would be no dupli-
cation of negotiations which took place between the two committees. Apparently
this was not clear enough for the IWA, and Nelson asked for a clarification of each
company's openings so that any reservations for separate company bargaining would
be clearly stated before negotiations commenced. Wyatt agreed that the committee
would study the openings overnight and would report in the morning and that St.
Regis would give its answer direct.'6
Because there was still time to utilize that day, someone suggested that each side
explain its openings. Nelson began by saying that he realized that the subject of
health and welfare would not be bargained with the Association, but he wished to
let some of those present (with whom there would be separate negotiations on health
and welfare) know that he considered the subject as carried over from 1961 nego-
tiations and that the IWA would ask a flat $15 per month per employee for health
and welfare coverage.17 He then outlined the IWA openings:
(1) A 3-year contract.
Nelson said that he thought this would be of benefit to both the IWA and the
employers, and he did not wish the Association to take the position that the
union was asking for this on the basis of sacrificing any wage demand in order
to get it.
(2) Wage increase.
(a) A 40 cent wage increase to be given-20 cents across the board in 1963
and 10 cents each in 1964 and 1965. Nelson reviewed bargaining history in
the industry since 1958 in explaining a need for such increase.
(b) A bracket increase.
This was a special increase desired for skilled workers. Nelson said he had no
specific proposal but that the union had ideas on the subject and would like to
hear the employers' ideas. He suggested setting aside a certain amount of
money to be used locally for skilled groups, with a possibility of holding some
of it in reserve for a time, with a final date for disposition of all bracket money
funds.
(3) A request for a committee to set up machinery to meet problems of auto-
mation (i.e., the effect of automation on employment).
(4) Travel-time pay for loggers.
Nelson said that this was not a new request but that it was up for an actual
settlement that year. His idea was to give the loggers pay for the great amount
of time spent in travel without considering it as time worked, and thus it would
be unrelated to vacation, pension, overtime, or other credits.
Following Nelson's presentation of demands, Wyatt, after a few preliminary state-
ments described the openings of the employers:
1. Hours of labor.
(a) A contract adjustment to give employers the right to run on a 7-day,
3-shift operation without an overtime penalty for Saturday and Sunday as such.
15 There were openings by branches of the company served on the local unions regarding
"hours of labor" which involved a provision for exemption of Saturday as an overtime day
as such and elimination of overtime pay on Saturday for anyone who had missed time
during the Monday through Friday period One local union also had opened on hours of
labor in certain respects . In both instances these openings were treated as local and were
not delegated to higher authority.
16 It did so by letter to Nelson dated April 29, 1963.
14 Although the subject of pensions was another IWA opening which had been delegated
for bargaining to the Regional Council , Nelson did not mention this, presumably because
he agreed to the exclusion of pensions from the association bargaining.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) A right to schedule maintenance employees on a schedule other than
Monday through Friday without Saturday's being an overtime day as such.
2. Overtime.
The employers wished to have a clarification of the subject of the right to refuse
to work overtime. This was not directed at the right of individuals to refuse to
work overtime but at concerted refusal to work overtime where the concerted
refusal was to gain an objective not related to working overtime.
3. Grievance procedure.
The employers desired a provision that employees would continue to perform
the work assigned during the processing of a dispute or grievance. This request
related to the introduction of new equipment or a change in job duties where
the employers sought assurance of the continued performance of the operation
pending settlement of a dispute arising out of such changes.
Following Wyatt's presentation, Nelson commented on the employer openings and
asked questions. Then he requested that the Association prepare a statement of the
employers' proposals in writing. He iterated that he was not satisfied regarding what
was to be handled on a local level and that this would require further talk. At this
point, the meeting adjourned until the following day.
The meeting had been set for 9:30 a.m. on April 25, but the Association asked
for further time, so the meeting did not commence until afternoon. Upon meeting,
Wyatt commenced by saying that the confusion on openings had occurred because
of shortness of preparation time and that in the future any overlapping of openings
would be avoided by the Association. A representative for U.S. Plywood said that
U.S. Plywood would be bound by any agreement reached between the Association
and IWA but that it had certain points on hours of labor reserved for local bar-
gaining. Nelson said that this appeared to be a change in the statement made on
the 24th. He said that all negotiations on the same subject matter had to take place
at a single place.
Nelson then asked the Association for the language of its proposals on its open-
ings. Wyatt read or handed to the IWA the Association's written contract proposals
on hours of labor, overtime, and grievance procedure. After a brief comment on
these, Nelson urged the Association to give consideration to the IWA contract
requests and to define and separate the local issues and authorizations. The meet-
ing adjourned until the following day.
The parties met as scheduled on April 26. Wyatt again apologized for the seem-
ing conflict between general and local openings and promised it would not occur in
future openings. To avoid the difficulty for the current year, Wyatt proposed that
all U.S. Plywood openings on hours of labor and all local unions' openings on the
same subject be brought to the association table for bargaining. Nelson said that
the Regional Council was not authorized to bargain for locals on local openings.
The delegation of authority by locals to the Regional Council gave the latter author-
ity to bargain on IWA's industrywide openings and on all company openings.
Hence, the Regional Council could not negotiate on amendments of contract pro-
visions on hours of labor requested by a local in its openings, but presumably it
would have had authority to bargain concerning U.S Plywood's openings on hours
of labor. Nelson's objection, however, apparently was that company and union
local openings should not be separated and that, because the Regional Council could
not bargain on the local union's opening on hours of labor it should also not bar-
gain about the local openings on hours of labor of the company even though the
Association and the Regional Council were authorized to do so. Nelson said that
because of the seriousness of the matter, the IWA would consider the Association's
proposal in a caucus, but he proposed to postpone the caucus for the time being and
to continue discussion of the IWA's openings (i.e., the delegated industrywide
openings).
The parties then started to discuss the IWA openings. Several of the association
committee members made comments on the travel time opening, the tenor of which
was that this was a complex problem requiring study. Nelson said that further
study would do no good, as the subject was not a new one, and that travel time
could be considered as part of the added cost of logging Nelson raised an objec-
tion to the grievance procedure amendment sought by the Association. Then he
asked if Wyatt had any further comment to make on the IWA wage demand.
Wyatt said that the wage demand was too much and that any increase the employers
gave would have to be related to the entire package.
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP., ETC. 935
The parties recessed for lunch 18 and, when they returned, Nelson rejected Wyatt's
proposed solution to the U.S. Plywood openings and made one of his own. He said
that the Regional Council could not bargain on those subjects reserved by local
unions in their openings but he suggested getting a separate room in which to have a
separate meeting between the local union and the U.S. Plywood plant representa-
tive (assigning, if desirable, a regional and an association representative to sit in),
and, if they were able to reach agreement and report back, then the Regional Coun-
cil could proceed to discuss hours of labor as presented in general terms with U.S.
Plywood. The Association caucused and returned to reject the IWA's proposal.
Nelson testified he was told that U.S. Plywood was unwilling to bring plant man-
agers in to bargain local issues there.19 Instead, the Association proposed that all
hours of labor openings, whether local or general, and whether opened by local
union or by the company, be brought in and be bargained by the association com-
mittee. Wyatt testified that he suggested bringing in "the people that were needed
to discuss them intelligently and reach the conclusions as part of that bargaining."
This suggestion apparently envisioned the Association's committee as doing the
bargaining, instead of the plant managers, but envisioned the local's representatives
as speaking at the association level for the local albeit in session with representatives
of the Regional Council present. Nelson rejected this proposal on the ground that
the Regional Council was unauthorized to bargain for local unions on their local
openings at the association level. Apparently, he either did not understand the
proposal or, for tactical reasons, preferred not to assent. Nelson did not approve of
separate bargaining at the association level on hours of labor openings applicable
differently at different U.S. Plywood plants. Nelson then proposed that the parties
leave the problems of U.S. Plywood's local openings on hours of labor and go on
to a discussion of other subjects that were clearly before them, saying that, in dis-
posing of other matters, they might find a way to handle the hours of labor problems
of U S. Plywood. According to Nelson, they thereupon got into a serious but short
(since it was getting late) discussion of other topics. Negotiations were then
adjourned to April 29, 1963.
During the meeting of April 29, M. A. Roberts, for St. Regis, handed Nelson a
letter explaining the St. Regis openings on all contract clauses. This opening had
been made because, in 1961 negotiations, St. Regis had agreed with IWA for the
formation of a committee to study the various local contracts to determine whether
or not uniformity of standard clauses could be worked out and, if so, to report
back to the two negotiating committees (that of St. Regis and that of IWA). Roberts
stated, in this letter, that St. Regis was willing to postpone discussions on the study
on uniform provisions until after conclusion of the 1963 negotiations between the
Association and IWA. This appeared to be acceptable to Nelson.
The Association opened the meeting on April 29 with a 3-year wage offer broken
down in relation to the present wage scale.2° In addition it offered a bracket adjust-
18 According to Nelson, during a recess or caucus on April 25, Wyatt expressed hope that
a solution could be found for the U.S . Plywood openings on hours of labor and intimated
that a failure to resolve this difficulty might result in a withdrawal by U.S. Plywood, but
that if IWA could go along with them this year, the openings next time would be uniform.
Because the meeting of April 25 began in the afternoon and there were no recorded
caucuses that afternoon , I find it more probably that this occurred on April 26 at the noon
recess.
19 I infer that U.S. Plywood felt it unnecessary to bring in plant managers to bargain
on behalf of the company when the Association had been authorized to bargain on its local
issues on hours of labor.
20 Although testimony concerning what transpired at the meeting of April 29 was sketchy
and Wyatt tended to confuse the meetings of April 29 and 30, the General Counsel intro-
duced in evidence the notes taken at the meetings by Wyatt and by Boddy as well as a
typed account made from these notes. I have referred to these notes to eliminate con-
fusion. The Companies ' wage offer was:
6/1/63 6/1/64 6/1/65
Cents Percent Percent
From base rate to 31 cents above base rate__________________________ 6 1 1
311/ cents above base rate to 52 cents above_________________ 7 1 1
Above 52 cents over base ____________________________________________ 8 1 1
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment (for those employees earning 35 cents or more over base rate) of 1 cent
effective June 1, 1963, with a formula for its application. This offer was made with
the understanding that contracts would remain closed for 3 years and was made sub-
ject to the IWA's acceptance of the employer's openings. After a few comments by
Nelson on this offer, the IWA committee caucused and returned with specific com-
ments. With certain stated limitations, the IWA was willing to accede to the Asso-
ciation's 7-day continuous workweek proposal but were unreceptive to the other
association openings. Nelson criticized the omission of any offer on loggers' travel
time or on automation. He said the wage offer was inadequate and pointed out that
employers had already given wage increases to employees at nonunion operations
greater than was offered the IWA. He said that IWA would gamble on negotiating
wages again in 1964 and 1965 rather than accept 1 percent for each of the last 2
years.
The meeting continued following a noon recess, with Wyatt and Nelson alter-
nately going through the issues with comments and arguments in what appears to
have been a genuine and serious effort to bargain for terms of a contract. In his
testimony, Wyatt quoted Nelson as saying that, if the association offer was supposed
to be an answer to everything before the parties, the Association must intend to
bargain to a strike situation because that is certainly what would occur.
The parties again met in bargaining session on April 30, 1963. After Wyatt had
commented on the employers' openings, he made a new wage offer of 71/2 cents across
the board as of June 1, 1963, 1 percent on June 1, 1964, and 11/2 percent on June 1,
1965, in addition to the same bracket increase previously offered. Nelson made
some observations regarding the difference in existing contracts on treating the sixth
day as a premium day, and on provisions preventing discrimination against a man
for refusing to work overtime. He expressed disappointment at the Association's
failure to include a provision on travel time pay for loggers.
Following a luncheon recess, Nelson again raised the subject of travel time, saying
that a reasonable formula would have to be worked out before the end of the nego-
tiations. Nelson said that the IWA would consider writing language that might clear
up the employers' opening on concerted refusal to work overtime, and he outlined
several points that the IWA insisted would have to go into a provision covering this
subject. Then Nelson made a wage proposal for IWA, asking 15 cents across the
board as of June 1, 1963, 5 cents as of December 1, 1963, 10 cents as of June 1,
1964, and 10 cents as of June 1, 1965, with an allotment of 1 percent of total pay-
roll for bracket adjustments, preference being given to mechanics, but making some
of the money available to those making 25 cents over base pay so as to include
chokesetters. The association committee caucused and returned to say that the par-
ties were too far apart and that there was little more that could be done at ,that time.
Wyatt proposed a recess, with a meeting subject to call by either party. Nelson
said that the IWA wage proposal was not a figure for bargaining with intention to
settle for half, that perhaps there was no value in a 3-year approach, and that the
IWA would be willing to take 1 year at a time. He insisted that travel time be given
consideration. After a few more comments by Wyatt, the meeting was adjourned
subject to call.
Early in May 1963, the local unions affiliated with IWA began to take strike
votes. On May 2, 1963, Nelson made a report, published in the IWA official publi-
cation, reviewing the state of bargaining negotiations in the industry. In it he related
that the negotiating committee of IWA had met separately in 1-day sessions with six
named companies (not in the Association) in which each side had explained their
negotiating demands; that the IWA committee had met with TOC and presented
the union's demands, and that further bargaining sessions were scheduled with TOC
for May 16 and 17; and that meetings were scheduled with two other companies.
Nelson then stated that the committee had met with "the new `association,' composed
of six of the larger lumber companies" in five sessions "over the past 2 weeks."
During these sessions, the report relates, "Much discussion was held relative to the
Union's negotiating demands." It then listed those demands in detail. The report
continued with a detailed list of the demands of "the Employers" (obviously refer-
ring to the Association). The report then gave details of the latest wage offer of
the Association which it described as conditional on acceptance of the other demands
of the Association, and which the IWA committee had rejected. After saying that
no further negotiation meetings had been scheduled other than those previously
listed, Nelson's report noted that the strike votes would be tabulated on May 14
and urged all who had not yet done so to cast a ballot.
The strike votes were tabulated and were reported on May 15 as (roughly) 15,000
for strike as against 2,000 opposed.
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP., ETC. 937
Before the next meeting between the Association and IWA on May 27, 1963, the
Association held meetings with LSW as will hereinafter be related. On May 20,
1963, Nelson wrote a letter to IWA locals thanking them for the strike vote. In
this letter, Nelson mentioned the TOC offer, which had been rejected, and listed
future negotiations with two independent companies. He said that the IWA had
notified the conciliation service of its deadlock with TOC and expected they would
be calling a meeting soon. Then he said that IWA was in the process of contracting
spokesmen for the "Big Six" (as the unions had been referring to the Association)
regarding the setting of a meeting with them. The final paragraph of the letter read:
The purpose of this letter is to alert all Local Unions, if you have not already
done so, to establish strike committees, to have strike banners printed and
things of that nature. You should be ready to establish picket lines on short
notice ....
The letter concluded that the committee hoped to see them all on June 3 (appar-
ently the date for the strike decision).
The association committee again met with the IWA committee on May 27. Dur-
ing the first part of the session, the parties sparred each to induce the other to make
a new offer, the Association exhibiting a reluctance to make any new offer before
the Union had reduced its original wage demand. There was considerable talk by
Nelson about a strike if the Association did not make a better offer. Nelson com-
pared the situation with that which existed in 1954 21 Wyatt disagreed with the
comparison and said that a strike was an outmoded means of settling issues and that
one of the reasons for forming the Association was to make a strike an outmoded
thing. Nelson asked Wyatt for a final offer. Wyatt parried the suggestion. The
Union caucused, asking the Association to review their position, too. Following the
caucus Nelson said that they would drop their request for a 3-year contract, but
kept their demand for a 15-cent-an-hour increase on June 1, 1963, and 5 cents on
December 1, 1963, plus a 5-percent increase for skilled labor to be computed after
adding the general increase, plus a solution to the IWA's demand for travel time for
loggers. Wyatt asked why the Union had dropped the demand for a 3-year con-
tract. Nelson said that the companies were not willing to pay enough, that the
IWA still liked the 3-year approach but dropped it because of the low offer. Nelson
had previously called the Association's offer for the second and third years an insult.
After Wyatt had restated the Union's offer to be sure he understood it correctly, the
parties adjourned until the following day.
On May 28, when the committees resumed their bargaining, Wyatt criticized the
change in the Union's position as lateral as compared with the companies' upward
change. He said the companies preferred the 3-year approach and made a new wage
offer For the first year he offered 8 cents and offered to give a list of specific skilled
jobs and the amounts they would receive and proposed 2 cents an hour on the
total payroll as a bracket fund This was a 1-cent increase on the bracket fund.
The companies then increased their second and third year offers to 11/2 percent and
2 percent. This was based on acceptance of the employer's openings. Nelson
expressed approval of the return to a 3-year contract but criticized the companies'
failure to say anything about travel time or automation. A caucus was then held
until 1 p.m. When they returned, Nelson said that the union agreed in principle to
the bracket proposal subject to reviewing the list offered. He asked for the number
of people in each classification Nelson then made a travel-time proposal for a
sum to be paid for travel time computed from an agreed central pickup point and
return on the basis of the excess over 10 hours a day. He also asked for a joint
committee to study problems and make recommendations on automation. Finally,
he made a new wage proposal of a 15-cent-an-hour increase on June 1, 1963, 71/
cents on June 1, 1964, and 31/2 percent on June 1, 1965. The parties caucused and
did not meet again that day.
On May 31, 1963, they met again by agreement. Wyatt said that neither side
wanted a strike, that the companies had reviewed their position and that they were
going to make the last change. He went through the various openings of each side.
In addition to the bracket adjustments, the Association offered 81/a cents an hour
increase as of June 1, 1963; 5 cents on June 1, 1964; and 21/4 percent general increase
on June 1, 1965. The Association agreed to an automation committee, suggested a
1-year study of travel time by the companies with a report in that time to a union
committee with recommendations for a mutual study and a report to the negotiating
committees, dropped its opening on grievances, and reiterated its need for the open-
ings on hours of labor and on concerted refusal to work overtime. Nelson asked
21 It is presumed that this referred to the last industry strike.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questions regarding whether or not certain openings were expected to be closed for
the duration of the contract and then asked if this was the employers' final position,
as a package. Wyatt said that it was but added that he had not said it was "take it
or leave it." The IWA committee asked for a caucus, following which they asked a
recess, with a meeting set for June 4.
On June 4, 1963, as agreed, the IWA representatives met with the association com-
mittee. Nelson informed the Association that its last offer was inadequate. The
IWA had no new proposals to make. There was talk of a strike, each side disfavor-
ing it. When the Association declined to make a new offer, Nelson spoke of an
impasse and said the IWA was breaking off negotiations. On the morning of June 5,
1963, the IWA and LSW struck U.S. Plywood and St. Regis.
Late on June 4 or on the morning of June 5,22 by prearrangement, Wyatt met
with Nelson at the latter's office to discuss the situation, asking where negotiations
had broken down. Nelson told Wyatt in general terms what would have been
needed to avoid a strike and said his only future plan was to negotiate an honorable
settlement. Wyatt testified that he informed Nelson at this time that if (as the
IWA had indicated to its locals) the IWA struck part of the Association, the rest
would certainly close down. Nelson denied that Wyatt told him in this conversa-
tion that the other members of the Association would shut down if part were struck
and I believe he was literally correct. Wyatt did not strike me as the kind of man
to make a positive statement about something that depended on the decision of
others. Wyatt may have stated, in substance, that the members of the Association
were bound by agreement close down if any one member was struck. Nelson testi-
fied that on the morning of June 5, after the commencement of a strike of two
members of the Association, Wyatt informed him that the other members were
meeting that afternoon and that he might have something to report. Nelson testified
that his "first information concerning a lockout" came from a news correspondent
on the afternoon of June 5. Although this may have been the first time when Nelson
was positive that there would be a lockout, I do not believe that Nelson was igno-
rant of the possibility that there might be one. Even if Wyatt had not said as much
to Nelson, the IWA was in close liaison with LSW, and the latter was certainly aware
of that possibility as early as May 9, 1963.
c. Prestrike meetings between LSW and the Association
The LSW, through its local unions, represented employees of, and had contracts
with, five of the six members of the Association, Rayonier being the one having no
employees represented by LSW locals. LSW locals in 1963 duly gave notice of
opening on one or more subjects. In 1963, the only openings on which these locals
were uniform were those of wages and duration of agreement. The subject of
wages, among others, had been opened for negotiations in 1962, and because LSW
did not succeed in effecting an agreement on a wage increase that year, that open-
ing had never been closed. Authority to bargain on wages for a 3-year term had
been delegated by the various locals to the respective district councils, who in turn
had redelegated such authority to the Western Council.
Each of the five members of the Association with whom LSW locals had contracts,
in March, gave notice of openings and, in April, gave notice to LSW representatives
of the respective companies' delegation to the Association of authority to bargain
for them with respect to the operations listed in such notice.23 St. Regis, in this
letter, listed two subdivisions-Ladd Woods Operations, Morton, Washington, and
Northwest Door Division, Tacoma, Washington-where the employees were repre-
sented by LSW Locals 2767 and 2633, respectively. U.S. Plywood listed eight plants
located in California, Oregon, and Washington. In the association agreement, U.S.
Plywood had listed other operations at which LSW locals represented its employees
but in neither had it listed Douglas City, California, or Polson, Montana.
On May 8, 1963, the day before the first meeting between LSW and the Associa-
tion, the Western Council composed a letter to Boddy, as secretary of the bargaining
committee for the Association, notifying the Association that Western Council had
been authorized to represent LSW local unions and district councils in collective
bargaining with "the Multi-Employer Association, referred to as the `Association' in
letters received from" the five companies previously mentioned. The LSW letter
went on to list, by number, its local unions currently representing employees at the
operations of the listed companies. However, this list covered more operations than
had been listed in the companies' letters and even more than had been included in
22 Wyatt put this meeting as late afternoon on June 4; Nelson at 11 a.m., June 5.
23 See, for language , the letter to IWA above quoted, section III, A, 3.
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP., ETC. 939
the association agreement Under St. Regis, this letter listed not only Locals 2633
(Tacoma, Washington) and 2767 (Morton, Washington), which St. Regis, itself, had
listed, but also Local 2581 at Libby, Montana, and 2805 at Klickitat, Washington.
Under U.S Plywood, the LSW letter listed locals representing employees at loca-
tions not listed in U.S. Plywood's letter to LSW. These were Local 1909 (Poison,
Montana) and Local 2882 (Sonoma, California). The Sonoma plant had, however,
been listed in the association agreement. The LSW letter (which was not mailed
but was delivered in person at the first meeting) does not mention any discrepancy
between the locals it listed and those operations listed by St. Regis and U S. Plywood.
On May 9, 1963, by previous arrangement, representatives of the Western Council
of LSW and of the Association met in Portland, Oregon.24 The principal spokesmen
for LSW were Hartley and Johnston (as previously stated, an economic adviser and
consultant to LSW). Wyatt was spokesman for the Association. Johnston, at the
opening of the meeting, stated that LSW was not recognizing the Association as a
bargaining agency until it had answers 25 to certain questions. Johnston asked about
the structure of the Association, and whether or not it was formed on the concept
that a strike against one would be a strike against all. Wyatt explained the structure
and answered the last question in the affirmative. Johnston asked if the Association
had written authority from each company, to which Wyatt answered that it did.
Johnston asked if he could see the association agreement. Wyatt brushed off the
request without a specific reply. Johnston asked if it was the intent to bind all the
companies by the bargaining. Wyatt answered that it was. Johnston asked if the
Association would sign for the companies. Wyatt answered that the Association
would sign a settlement agreement and that each member involved would sign sepa-
rate agreements incorporating the results of the bargaining in their separate contracts.
Johnston asked if the Association could bargain about anything other than what
was in the companies' letters, commenting that nothing was said about the Associa-
tion's authority to bargain about union openings. Wyatt assured Johnston that the
Association could bargain about union openings, with the exceptions mentioned in
the companies' letters to LSW. Johnston said that the Council welcomed associa-
tions but that it had to be able to bargain on any and all issues. It is not clear to
me whether Johnston envisioned bargaining for individual locals on issues not opened
and not delegated to the Western Council for bargaining or whether he was not
familiar with the practice of the LSW with respect to openings and delegation of
authority. From part of his testimony, I infer that he did lack familiarity with such
practice.
Johnston next called attention to the absence of certain operations of St. Regis
and U.S. Plywood from the lists furnished by those companies to the LSW in their
letters, as heretofore related. Wyatt explained, in part, by saying that, traditionally,
bargaining had been separately conducted for plants east of the Cascades. This
referred to the operations of St. Regis at Klickitat, Washington, and at Libby, Mon-
tana, and to the operations of U.S Plywood at Poison, Montana. As for the omit-
ted U.S. Plywood operations in California, U.S. Plywood explained that the omis-
sion of the Sonoma plant, which had been listed in the association agreement, had
been an oversight,26 and U.S. Plywood later agreed with Johnston that the Douglas
City plant, although not listed in the association agreement, should properly be
included in the association bargaining, but it refused to include Poison, Montana.
Johnston said that the Western Council would, in negotiations, be speaking for all
its locals. He explained that the LSW wished to have a unit that would protect it
from raids by other unions or that would prevent siphoning off of individual plants
by decertification. He explained that LSW had had six raids by the Teamsters'
union in 1962. As part of the protection sought, Johnston said that the Council
wanted a master contract.
A recess was taken for lunch and to permit both sides to caucus. Following the
recess and caucus, Wyatt said that the Association was limited in its authority to a
discussion of the subjects before the group exclusively for the plants listed by the
9F The Rayonier representative was present at one of the series of meetings but did not
serve on the Association's committee.
01 Johnston quoted himself as saying "satisfactory answers." The notes of the union
representative do not show the word "satisfactory" and I doubt that this word would be
used because it would permit no alternative decision by LSW if most answers were satis-
factory but one or more others were not.
16LSW introduced no evidence of a contract opening for Sonoma If Sonoma failed to
open, this could have explained the omission thereof from the U S. Plywood letters to
LSW listing the plants to be bargained for. The Douglas City plant had apparently not
been included because it was a new acquisition.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members of the Association. Hartley said that the Association was a new setup
and should at this time bargain for all the plants of the members (i.e., all in the
Western Council area). Wyatt said that the Association had not been empowered
to bargain for all plants. He said that the exclusion of certain plants was no different
from the case of Weyerhaeuser which had plants elsewhere in the United States
where employees were represented by locals affiliated with the same International
union (which were not listed for association bargaining). There was some discus-
sion of the authority or mechanics of bringing in new plants or excluding others.
Wyatt explained that members could not remove plants from association bargaining
but might, after the current year, decide to bring in new ones. Johnston asked if
the Association could bargain on issues, such as a master contract. Wyatt said yes,
that the Association lust could not bargain for the excluded areas and issues. About
this time, according to Johnston's testimony, the LSW committee caucused "because
we had reached a point where the wage committee of the union had explored the
questions and received the answers and there was no use asking them over again so
we took a caucus to decide what to do." 27 It is not clear whether the wage commit-
tee referred to was the same or different from the LSW negotiating committee.
However, when the union committee returned, Johnston announced that the union
committee represented all locals having contracts with the five companies and that
when the committee spoke, it would be for all locals. Wyatt said that the Associa-
tion would not respond for operations other than those listed (i.e., not for those
east of the Cascades). Johnston testified, "I stated that, in effect, each party has
stated its position but perhaps through further discussion positions can be modified."
This statement does not appear in the LSW's notes of the meeting. Because John-
ston's testimony suggests a lack of agreement on the multiemployer unit tendered by
the Association, I find it necessary, by way of testing Johnston's testimony, to make
a comparison thereof with the notes of Ted Prusia, the recording secretary for LSW.
These notes show that, following the caucus of both parties, the ensuing colloquy
took place:
WYATT: . Which brings us to the exclusion of certain plants. We feel
that this has been past practice and past methods of collective bargaining by
these companies and the Western Council to continue to negotiate [sic].
HARTLEY: The fact that this association is a new set up, then this should be a
criteria for bargaining for all the plants on one level.
WYATT: We are not empowered to bargain for these plants that were excluded.
And this association being put together is not the reason for the exclusion.
JOHNSTON: Yes, but we have always dealt with the employers for all plants.
Discussion on plants excluded.
JOHNSTON: Does your association have the right to take out plants or bring
in at will[?]
WYATT: Not the right to withdraw, we might want to bring some in. We have
not taken a position that a company has the right to withdraw or bring in a plant
without permission of the Association, however, companies can drop out or new
companies can come in with permission of the Association.
JOHNSTON: We will help you round up the plants if you will set it up right.
We would have helped TOC do this, but they barred us.
WYATT: We do not see eye to eye on the issue of East-West of the Cascades.
We do not bargain for Sonoma Plywood 28 or Poulson [sic], Montana, but if
U.S. Ply wants them in later, they can. We have the four [operations] exclusions
for this year, but I see no reason for the future why this cannot be changed.
JOHNSTON: Then you can bargain on our issues such as master agreement, etc.
WYATT: Yes. Just not for the exclusions.
JOHNSTON' My only point is that you cannot make us bargain at four levels.
WYATT. I understand your position, but I want it understood that this associa-
tion cannot speak for the plants excluded. And, in agreeing with your fix [?]
points, it does not mean that we are in agreement on all issues at this time.
ROBERTS. (For St. Regis) We will be speaking only for the plants listed and
we will be willing to meet at Klickitat and Libby on the issues at those plants.
This was the last thing recorded as said on the subject of the exclusion of certain
plants. I find that Johnston was mistaken in his testimony that, at the conclusion of
21 Wyatt testified that during a caucus he told Hartley and Johnston that if the inclu-
sion of the St. Regis plants was a make-or-break situation, there was no way to proceed.
He said he was expecting a telegram from New York reconfirming St. Regis' position.
This later came and a copy was furnished to Hartley
28 Wyatt was presumably mistaken about the exclusion of Sonoma Plywood since Sonoma
is listed in the association agreement.
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP., ETC. 941
the discussion about the exclusion of the plants aforementioned, he in any way inti-
mated that LSW was not settling for the bargaining area outlined by the Association,
at least for the 1963 bargaining.
At this point, Hartley delivered to the association committee the letter, previously
described, which bore the date of May 8. This letter concluded with the paragraph:
"As we begin meeting with your Association, it is our hope that you will join us in a
mutual objective of reaching a satisfactory and speedy conclusion of these negotia-
tions." Hartley commented, according to Johnston, "Well, we have got rid of the
technicalities." Johnston then distributed to the association committee copies of a
three-page letter written by Hartley on April 11, 1963, to "Lumber Industry Employers
Holding Contracts with Lumber and Sawmill Workers Unions." This letter discussed
conditions in the industry and covered the problem of automation, health and welfare,
pensions, and the need for a substantial increase in wages. A paragraph near the end
of the letter read:
These changed circumstances in the industry can best be met by certain changes
in collective bargaining approaches. In some cases of multi-plant companies,
we have suggested and you have agreed to company-wide bargaining. We have
in certain cases suggested an approach to multi-plant single company-wide con-
tracts. Joint multi-employer bargaining is a desirable approach to an overall
industry problem, and we welcome an industry association or, in the absence of a
formal association, a joint employer industry committee representing the major
companies with which we hold contracts covering a majority of our members.
Johnston then proceeded to outline the union demands as: A committee on automa-
tion; a committee on classifications; a master contract to be worked out within the first
year of a 3-year contract; a change in pro rata vacations for retired employees; a pro-
vision protecting employees from loss of work for duration of the contract in the event
of subcontracting; bracket adjustments for maintenance men; and a 60-cent increase
in wages over 3 years On the subject of a uniform contract, Johnston said that it was
not a matter of opening all contracts for all subjects and trying to negotiate an entire
contract for five companies within a year, but it was only requested that during the
first year they make uniform and put into a master contract, with all companies, suffi-
cient items to give the union the protection of a unit (i.e., protection against decertifi-
cation of individual plants).
Wyatt asked a number of questions and received answers. Then he outlined the
openings of the Association members, which were the same as were presented to the
IWA. Wyatt argued that automation was not a problem in these companies because
employment for LSW at the companies who were members of the Association had
increased rather than decreased.29 Johnston asked that May 22 and 23 dates be held
open for meetings after the May 10 meeting. Shortly after this, the meeting adjourned
until the next day, May 10.
The same parties met again on May 10, 1963. Wyatt opened the meeting with a
statement of the Association's views regarding the LSW proposals 30 Wyatt then
outlined the Association openings and followed this with a wage offer of 21/z-percent
increase and a fund of 11/2 cents on total hours worked for adjustments of wages of
skilled workers as of June 1, 1963; a general increase of 1 percent as of June 1, 1964;
and another 11/2 percent on June 1, 1965. The evidence is conflicting on whether or
not there was, in the meeting, a further discussion about plants east of the Cascades.
At one point, Wyatt testified that he thought the May 10 meeting opened with a further
discussion of the excluded plants or areas, but he admitted that he was confused about
the two meetings. Johnston testified that Wyatt opened the meeting of May 10 with
answers to the general proposals of LSW, and then made the first wage proposal. But
he went on to testify: "We had a considerable discussion again about the master
contract, our desire for unit protection. We had considerable discussion in connec-
tion with the excluded areas." But in response to a question asking the substance of
those discussions, Johnston testified that he might get "mixed up between the 9th and
10th." The notes of Ted Prusia, recording secretary for the LSW, show no discus-
sion of excluded areas at the meeting on May 10, nor do Boddy's notes made for the
Association. The subject was, indeed, brought up during the caucus taken by the
19 Both LSW and IWA argued during the bargaining meetings that increased employ-
ment had resulted only because of acquisition of new plants and that this did not mean
that automation had not resulted in loss of jobs
30 Notes taken by men for each side at this meeting indicated that Wyatt's comments
were made seriatim on the LSW proposals and that the Association was favorable to some
and critical of others, but Wyatt was unable to remember this portion and Johnston
referred to it in his testimony only in general terms.
942 DECISIONS OF NATIONAL LABuill RELATIONS BOARD
LSW, right after the wage proposal was made by Wyatt, when Wyatt showed Hartley
a St. Regis telegram reaffirming its previous position that the Association had nc
authority to speak for plants east of the Cascades Exactly what Hartley said at this
time is not, however, shown by the evidence. Also, during the recess for this caucus,
Johnston spoke with Frank Doherty, U.S. Plywood's industrial relations manager for
its California division, and came to an agreement on which California plants would
be included in the Association's bargaining. On all the evidence, I am not persuaded
that LSW was, on May 10, 1963, insisting on bargaining with the Association only on
the basis of the inclusion of plants east of the Cascades. It is unlikely that a matter of
this importance would have been completely omitted from notes of each side.
Following the Union's caucus to consider the wage proposal and other positions
taken by the Association, the LSW committee returned and rejected the wage and
other proposals of the Association. The LSW said that the Association was bargain-
ing for a strike if that was the employers' best offer. The meeting ended, to recon-
vene on May 22.
The parties met again on the latter date but the Association would not make a new
offer, taking the position that the next move was up to the LSW. The latter would not
change its demands and sought to get the Association to make a new offer. Johnston
continued his attempt to get something in the nature of a master contract for unit
protection. Johnston testified that, exclusive of economic issues, they had "discussed
the question of a master contract," that he had "challenged the authority of the
Association to even bargain on the issues of master contracts" and that Wyatt had
said they had the authority but refused to do so. This testimony suggests that
unwillingness or inability to bargain for a master contract connoted a flaw in the
Association's organization. I shall discuss this further hereinafter. At this point it
is sufficient to say that the Association was explained by Wyatt to be bargaining for
a settlement agreement, the terms of which would be incorporated into the contract of
each employer at the plants covered by the Association's agreement and that, over the
years, by successive settlement agreements, the contracts of the several companies
would attain uniformity and that this would bring about a uniform contract by evolu-
tion rather than by revolution.
The meeting was spent mostly in trying to jockey each other into making the next
offer. Prusia's notes of the meetings (for LSW) read very much as though he had
taken down the discourse in shorthand or speedwriting, because it is in direct quota-
tions. An excerpt therefrom illustrates the state of negotiations:
JOHNSTON: Alright [sic]. We are all here, what do you suggest we do now?
WYATT: Well, we expect to bargain.
JOHNSTON: Fine, let's bargain.
WYATT: 0 K., shoot.
JOHNSTON As you know, we could not accept your last offer. We hoped you
would have something more to offer in this meeting.
WYATT: Have you changed your position?
JOHNSTON: We are not final in our demand.
WYATT: Well, let's bargain then. (Discussion)
WYATT: I think that this group is completely unwilling to change its position
at this time.
HARTLEY: Well, we have not changed our position either. I have been bar-
gaining too long to take any other position at this time.
Following a caucus, Hartley said that he had notified the Federal Mediation and
Conciliation Service and was willing to meet at any time. The meeting of May 22
adjourned without a further meeting date set.
The next meeting between LSW and the Association was under the auspices of the
Federal Mediation and Conciliation Service on June 3, 1963. The meeting started in
the morning and ran to mid-afternoon. Each side was asked to, and did, review its
position. In stating the position of LSW, Johnston again proposed a master contract 31
az In testifying about this meeting , Johnston said that the mediator had asked for a
statement of the position of each of the parties and that in making that for the LSW he
had stated (inter alia ) : "We had proposed a classification committee in a master contract
which was flatly rejected, and that we could not recognize the Association as a bargaining
group unless they would give us equal treatment and agree to a master contract at least
with sufficient points in it to provide protection that we wanted in return for giving them
the protection against the unions' previous policy of selective strikes of one company at a
time ." I take Johnston' s testimony to be a report to the mediator of what Johnston be-
lieved had taken place at prior meetings with the Association, including the one on May 9,
and do not take it as a statement that this was the attitude of LSW as of May 22. How-
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP., ETC. 943
As quoted in Prusia's notes, Johnston said, ". . . We think there is value to a big six
association and we would like to solidify this Association by a master agreement ...."
When Johnston's proposal for a master contract was rejected, Johnston asked if it
would make any progress if the employers dropped their request for a variable work-
week on condition that the LSW would drop its request for a master contract. Wyatt
indicated that the members were unwilling at that time to negotiate a master contract.
The Commissioner met with each side separately. On return to the meeting, Wyatt
made a proposal reiterating the employers' demands on their openings, agreeing to
an automation committee, and making a new wage offer of 81/2 cents as of June 1,
1963 (plus a 2-cent bracket adjustment fund); 5 cents on June 1, 1964; and a 2i/-
percent-per-hour increase on June 1, 1965. A discussion of this offer ensued and
then the union took a caucus. Following the caucus, Hartley rejected the offer and
commented that the parties had deadlocked and that the union was going to take
economic action (meaning that it was going to strike). Hartley said that Wyatt and
Johnston had done a good job and thanked them. The meeting adjourned without
plans for another meeting.
After the meeting of June 3, 1963, Hartley and Johnston invited Wyatt to their
hotel for an off-the-record discussion. Wyatt went there that evening. They discussed
the imminence of a strike and the matters on which they were "in a bind," as John-
ston testified. Hartley told Wyatt that the employers would have to make a sub-
stantial increase in their offer in order to avoid a strike (Wyatt quoted Hartley as
using the expression "open up the purse strings"). Johnston asked Wyatt if the rest
of the members of the Association would lock out if the union struck some of the
companies. Wyatt said the members had an agreement to do so but that at that
moment he did not know even what his own company would do. He said, however,
that on June 5 there would be a meeting of the Association, presumably to decide a
course of action. Johnston asked Wyatt if he thought such a lockout would be legal,
and Wyatt, according to Johnston, replied that their attorneys thought so. That same
night Hartley and Johnston went to visit Otis Hallin, vice president of Crown Zeller-
bach. Johnston asked Hallin about the rumors of a possible lockout, saying that he
understood that a lockout was contrary to Crown Zellerbach's policy. Hallin told
them that Crown Zellerbach was committed to the lockout provided that the other
companies did likewise. He also referred to the fact that the Association's members
were having a meeting on the afternoon of June 5.
That Hartley and Johnston were interested in learning as much as they could regard-
ing the intention of the Association's members in the event of a strike of less than all
is evident from their efforts on the night of June 3 to glean this information from
Wyatt and Hallin . But I conclude that the prospect of a lockout was not enough to
turn the LSW away fiom its main objective of using economic force to gain a sub-
stantial wage increase . Johnston, in his testimony before the California Unemploy-
ment Compensation Appeals Board on August 27, 1963, related his efforts to instruct
LSW in the significance of a lockout. He testified: . . I felt it was my job to, as best
I could, to inform not only the negotiating committee but the entire executive board
as to what a lockout is, they never having been in a'lockout before. I discussed it with
them. I might add ... the subject they were more concerned about negotiating to
was a wage increase more than any theoretical information that I was giving them.
They ended up cutting me off ......
Although IWA's strike authorization was not solicited or given until after negotia-
tions had commenced, LSW had laid plans for a strike before the beginning of any
negotiations 32
7. The strike and the lockout
On the morning of June 5, 1963, the IWA and LSW struck the plants of U.S. Ply-
wood and St. Regis.33 Each had plants represented by each union.
ever, whatever Johnston told the mediator on July 3 about the LSW position, I find that a
refusal to recognize the Association was not the position of the LSW after the first part
of the meeting on May 9. Following that date, it is apparent from LSW notes taken at
the negotiating meetings that whenever Johnston spoke for a master contract, he did so
as a bargaining proposal. If the LSW were, on June 3, 1963, not recognizing the Associ-
ation as a bargaining agency, there was no reason for it to be meeting with the Association
on June 3, at all, for the purpose of dealing with economic terms of a contract, which is
what they did at that meeting. It was not until after the strike and lockout that LSW
made any proposal to bargain individually with members of the Association.
12 See Johnston's testimony before the California Unemployment Compensation Appeals
Board (General Counsel's Exhibit No. 42), p. 62, indicating that strike authorizations
were received in the first 3 months of 1963.
as Two small operations of the 16 U.S. Plywood operations covered by the Association's
agreement were not struck by LSW. All those of St. Regis were struck.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 5, 1963, the secretary-treasurer of Western States Regional Council No. 3
of IWA wrote a letter to all local unions in its jurisdiction stating that by the time the
letter was received many of their fellow IWA members would be on strike, that it
might be "your local" or just a part of it. The letter then continued:
In order to make the Strike as effective as possible, the Negotiating Committee
and Executive Board have elected to Strike certain selected Companies at first
and then extend it from time to time as circumstances and good strategy dictates
[sic]. This, we believe, will be the most effective method to obtain an industry
wide settlement, in the shortest time with the least sacrifice to the members.
The remainder of the letter dealt with a proposed per capita contribution to the
regional strike support fund.
Under date of June 5, Hartley for LSW wrote a letter to all locals, stating that the
"negotiations with the Big Six reached an impasse and economic action is the only
method left to achieve your wage demands"; that a strike at "some plants" would
commence at 12:01 a.m. on June 5, 1963; that the six companies had agreed amongst
themselves "to lock us out if we strike any one plant or company"; that the "Western.
Council Committee Member is familiar with the procedure to be followed" and that
the locals should not take any action except as recommended by said members. The
letter reported the final offer of "the companies" and concluded with the statement,
"We know the proposals are totally unsatisfactory and you will see this fight to a
successful conclusion." Because it is contended that the LSW refused to recognize
the Association as a bargaining agent, among other reasons on the ground that the
Association would not bargain with LSW for all locals in the area of the Western
Council, I believe it worthy of note at this point that, in this letter, nothing was said
with regard to such a refusal on the part of LSW to recognize or bargain with the
Association.
IWA and LSW had agreed between themselves that, if a settlement could not be
reached, they would take economic action against U.S. Plywood and St. Regis on,
June 5.34
On the afternoon of June 5, 1963, members of the Association's negotiating coin-
mittee and other representatives of the Association's members met. U.S. Plywood
and St. Regis reported the fact that plants covered by the Association's agreement had
been struck and were being picketed.33 The Association's representatives then dis-
cussed the reason for the strike and decided that it was to gain economic benefits
related to the collective bargaining between the Association and the two unions.-
Having so decided, the four corporate Respondents decided to close their plants
(those that were covered by the Association's agreement) as they had agreed in their
association agreement to do. The Association immediately gave notice of this deci-
sion to the press, and the corporate Respondents followed this announcement on
June 6, 1963, with a notice to all employees and, presumably, to each local union.36
In each, the company stated, in fact or substance, that the reason for the closing of
their plants was to protect their group solidarity against selected strikes.
The shutdown began on June 7, 1963, at varying times of the day, depending on the
operation, and continued until early August as will hereinafter be related.
8. Events after the lockout
As stated before, the unions, on June 13 and 14, respectively, filed charges in these
proceedings. On June 18, 1963, meetings were arranged by the Federal Mediation
and Conciliation Service. A meeting was arranged for early morning of that day
between Nelson and Wyatt and later that morning between Hartley and Wyatt.
In the first meeting, Nelson and Wyatt candidly discussed the issues and differences
that were keeping the parties from agreement, concentrating on wages, travel time,
and the employers' hours of labor proposal, and discussing the possible degrees to,
94 Johnston so testified in a case involving California unemployment compensation
claims, and LSW in its publication, The Union Register, on June 14, 1963, referred to the
strike by the LSW and IWA as a "coordinated move " It stated that the reason for the
strike was " to gain wage increases industry-wide "
ss Two plants of U.S. Plywood, one at Redding and one at Douglas City, both in Cali-
fornia, had not been struck . The reasons for the exclusion of these plants was testified
by Johnston in the California unemployment compensation claims case before the appeals
board, to be because the district council had not voted to take strike action there Other
plants of the two companies covered by the Association's agreement were struck.
' Copies of letters sent by two companies to local unions are in evidence. Wyatt testi-
fied only as to Weyerhaeuser, which was the extent of his knowledge, that each local union
was notified.
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP., ETC. 945
which either might yield. Nelson testified that he also stated that he objected to bar-
gaining U.S. Plywood openings on hours of labor on more than one level. The
mediator suggested a meeting of the full committees on June 21. Both Wyatt and
Nelson thought this might be premature. Nelson indicated that his group was meeting
with Georgia Pacific on June 24 and with Simpson Lumber Company on June 25 and
26. Nelson felt that a settlement with Simpson on that date was a possibility. In the
course of this discussion, Nelson stated that he would prefer to reach a settlement with
the Association, if possible, because that would establish a pattern in the industry for
settlements elsewhere. The date of June 27 as a possible time for a meeting of the
two committees (IWA and Association) was discussed but not finally set. Wyatt
brought up a subject of fire hazard resulting from blown-down trees and the need for
access roads. He asked Nelson if there was any objection to allowing union members
to return to work to build fire access roads. According to Wyatt, Nelson said he had
no objection thereto and would write to the locals not to object. Nelson's testimony
about this subject tended to limit the scope of his reply to employees of the respondent
companies only, for he said he believed he had told Wyatt that "they laid them off
and they could put them back to work." He testified that Wyatt did not ask for an
agreement on the struck companies and he would not have got it if he had.37 I find a
resolution of the conflict to be unnecessary. Even if Wyatt's version were accepted,
the evidence would only be cumulative. Other evidence makes it clear that on
June 18, Nelson gave no indication that his organization was refusing to deal with
the Association as collective-bargaining agent of the member companies and, in fact,
gave every indication to the contrary.
Later that same morning, another mediator conferred with Hartley and Wyatt. The
mediator expressed his concern over the seriousness of the situation and urged the
parties to find an area of agreement. According to Wyatt (Hartley did not testify),
Hartley said that all that was needed was for Wyatt to loosen up the purse strings
and that the problem was to make Wyatt more influential in the soundproof rooms
(meaning boards of directors and top management of the member companies). Wyatt
said that the distance between the LSW wage demand and that of the employers was
too great (60 cents as against the approximately 21 cents offered by the employers) to
warrant a new offer on behalf of the Association. According to the written report of
this meeting made by Wyatt later, Hartley indicated that he wanted 35 cents over the
3-year term. Wyatt said that no employer movement was possible on that basis and
that, if anything, the employer attitude had firmed up since the strike started and that
he thought this could be attributed to the fact that the Association believed the union's
tactics, including the filing of the charge with the Board , indicated an apparent desire
to gang up and clobber the Big Six. Hartley replied, according to Wyatt, whose
testimony is undenied and is credited, that he had no desire to disturb the relationship
or cause the Association to go out of existence and that the filing of the charges was
just a tactic, something for the boys to think about during the strike. After a dis-
cussion of economic matters by Wyatt and Hartley, Wyatt asked Hartley if he would
agree to, and would ask his locals to agree to, permit personnel represented by LSW to
construct fire access roads. Hartley asked if Wyatt had spoken to Nelson about this
and asked what Nelson's reaction had been. Wyatt told Hartley that Nelson had
expressed himself as willing to advise his locals to perform such work. Hartley said
he had no objection and would so advise his locals. The mediator suggested holding
a meeting of the respective committees of the LSW and the Association. Hartley said
that he did not think it would be of much value before a date which Wyatt could not
remember but which he had recorded as July 10 in his memorandum of the meeting
written shortly thereafter. However, Hartley said he would be glad to meet at any
time the mediator wished to call a meeting. Hartley complimented Wyatt for doing
as good a job as he could with what he had to work with and that he was sorry that
Wyatt was ineffective in the soundproof rooms.
On June 27, 1963, pursuant to arrangements made by the Federal Mediation and
Conciliation Service, the Association's committee met with the IWA committee.
Sitting in as observers were Hartley and three other LSW representatives. Each
side was asked to, and did, state its position on the issues. Nelson again raised the
previous objection to U.S. Plywood's conflict of openings on hours of labor. Fol-
lowing a caucus. the U.S. Plywood representative made a statement of its openings,
indicating, as it previously had, that his company would be bound by an association
concluded settlement on all its hours of labor openings that covered the same gen-
eral position as the Association's and that the company would meet with the locals
az No evidence was adduced to show that employees of St. Regis or of U.S. Plywood
worked on access roads for those companies during the strike.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on matters involving hours of labor that were distinct from the Association's open-
ing. Nelson testified, "The union rejected the proposal or idea and again reiterated
our position that we would not negotiate the hours of labor at more than one level."
However, I conclude that this was not a point which induced the IWA later to take
the position that it had not recognized or accepted the Association as a bargaining
agency for the respective members, for in reporting to local unions on the state of
IWA negotiations with Simpson and with the Association, Nelson, in a letter dated
July 1, 1963, stated:
The Union Negotiating Committee also reminded the Employers' Commit-
tee that in the case of U.S. Plywood Corporation, there were Hours of Labor
openings by the Company over and beyond those openings which were being
sought by the Association Committee and at least in one case, the Local Union
likewise had openings on the Hours of Labor provision.
In reply to this, U.S. Plywood suggested that we enter separate negotiations at
the Local Branch Level on the Hours of Labor openings provisions other than
those being discussed by the Association Committee. Time permitting, we
shall attempt to arrange some such meetings.38
The meeting concluded without change of position on the issues and without a day
set for resumption but with the understanding that the mediator might call one.
Under date of June 28, 1963, a Friday, Hartley, on behalf of the Western Coun-
cil of LSW, wrote to Weyerhaeuser Company, to the attention of Wyatt, and to
St. Regis, to the attention of M. A. Roberts, at Tacoma, Washington, stating:
We as the collective bargaining agent for your employees at those plants as
shown below, request that you, as their employer at those plants, fix a date
and place wherein we may bargain, as contemplated by the National Labor
Relations Act, as amended, on all issues open for negotiations between us this
year.
We will, of course, treat with any agent that you may designate for such
bargaining.
Your employees have been and now are ready and willing to work if you
terminate your existing unlawful shutdown at your plants, and your employees
most certainly will continue to work until an impasse has been reached in bar-
gaining with your company as their employer.
Listed at the bottom of these letters, respectively, were four of the plants of Weyer-
haeuser Company in Washington and California and two of the St. Regis plants in
Washington. It is interesting to note that the St. Regis plants listed by the LSW in
the letter to that company did not include those east of the Cascades or, in fact, any
except those plants listed in the Association's organizational agreement. No one
offered in evidence similar letters written to other members of the Association, but it
may be assumed that they were from the replies which were introduced in evidence
and from Respondent's concession of the fact. The foregoing letters, addressed
to the offices of the individual companies, were delivered on July 1, 1963, at a time
when Wyatt, Roberts, and other representatives were in Portland for a meeting
arranged by the Federal Mediation and Conciliation Service between the Associa-
tion and LSW. They did not, therefore, see the letters until their return from this
meeting.
The meeting of July 1 was attended by 16 representatives for the various com-
panies and 15 representatives for the LSW. In addition, Nelson and two IWA
representatives sat in as observers. At the outset of the meeting, Johnston asked the
mediator how he had arranged the meeting. The mediator answered that he had
done so by calling Hartley for the LSW and Wyatt for the Association. Johnston
testified:
I stated, on behalf of the Lumber and Sawmill Workers, that we were now in a
lockout position; that we were not going to meet with the Association as such
while our members were being locked out; that they [sic] were only there to
meet with the five companies as individual companies with whom we had con-
tracts. I stated again our position of desire of negotiating an Association con-
38 In this same letter, Nelson said, "The Committee from the Lumber & Sawmill Workers
and this Committee will meet jointly right after the 4th of July to discuss the advis-
ability of extending the picket lines to other operations." This followed in the same para-
graph in which Nelson spoke of LSW meetings with the Big Six and with Georgia Pacific.
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP., ETC. 947
tract covering all areas and all issues but that we were locked out and we were
not going to continue that exploration ; that there must come an end to that
kind of discussion and the end of that discussion came with a lockout 39
Wyatt, in his testimony, quoted Johnston as saying that he had been representing
the LSW seeking an association contract, that the Association did not have author-
ity to negotiate or to give the union an association contract , and if they were to go
ahead and bargain with an association they would have to ask that they be granted
an association contract. Wyatt replied that the Association could bargain for an
agreement which would be binding on all companies, and they had, in the meetings
to that point, been bargaining as an association, that they were there that day only
as an association , and unless the union was willing to meet with them as an associa-
tion there was nothing to meet about.40 In the notes taken by the LSW representa-
tive at this meeting, Johnston is quoted as saying, later in the discussion, "We do not
take the position that we will not meet with an association for the purposes of nego-
tiating a contract, but we will not negotiate just on certain issues." 41 At this point
the mediator asked for a caucus with the union representatives . Having done so,
the mediator then met with the Association's committee. He informed them that
the union had indicated a willingness to listen to any change of position that the
Association wished to state. Upon return to the meeting, the Association stated a
modified position on some issues and made a new wage proposal, which Hartley
rejected as insufficient. The meeting broke up subject to call.
At the end of the meeting on July 1, Johnston distributed to the representatives of
the several companies, enclosed in sealed envelopes, letters dated July 1. These
letters read:
We meet with you today, as we have during the course of our past meetings,
solely on the basis that your Association is not an appropriate unit for bargain-
ing as a multi-employer unit, and we do not consent to the exclusion of subject
matter, geographical areas and plants heretofore suggested by you. We desire
to make it clear that we treat the Association as nothing more or less than the
agent of each of the respective employers present, with whom it is our duty
to bargain, as required by the National Labor Relations Act.
It is our view that each employer present is required to bargain on all those
issues opened by each of the employers or by the Union in their opening letters
to their respective employers.
This letter was signed by Hartley. Wyatt did not read this letter until after the
meeting broke up. The respective companies answered the letters of the LSW of
June 28 and July 1 at a subsequent date. The replies were not uniform, but each
company took the position that the LSW had agreed to bargain with the Associa-
tion and that the employers were agreeable to continue to meet on the same basis.
In Wyatt's reply letter, he stated, "Your volunteered statements constitute a belated
attempt to negative specific prior acceptance on your part of the appropriateness of
said multi-employer group and bargaining-in-fact on such basis and are obviously
made in a self-serving effort to support unfair labor practice charges recently filed
by your Union in the Regional NLRB Office against member companies of this
Association."
sa Ted Prusia, LSW recording secretary, took down Johnston's statement in these words:
"We are here and willing to meet. We are here at your request to meet with the com-
panies with whom we have contracts . . . . We are not, however, willing to meet for
bargaining purposes with an association that refuses to settle on all issues for all of
our plants on a contract. This group of employers has refused to bargain on a [master]
contract. Some of these employers have locked us out . Unless the companies are willing
to negotiate on a contract then we refuse to recognize them as an association but we will
meet with them as separate companies." The word "exploration" does not appear in this
quotation. The use of that word in his testimony suggests that Johnston was familiar by
that time with The Great Atlantic & Pacific Tea Company, Inc., 145 NLRB 361, decided
in December 1963. The Board there affirmed the decision of Trial Examiner Funke which
had been issued on August 28, 1962. The foregoing notes also quote Johnston as saying,
"We have been advised by each separate company that this association does not have the
authority to negotiate on health and welfare-and other local issues."
4o The complaint does not allege a refusal to bargain.
41The notes taken by the Association's secretary at this meeting quote Johnston as
saying, "Not saying do not want to bargain with Association. Do want to get contract
with Association."
212_809-6(- -vol. 155-61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 9, Nelson telephoned Wyatt to say that the committees of the IWA and
LSW had been meeting the day before to discuss what he called a "revised minimum
position" of the unions and he asked if he could meet with Wyatt. Wyatt said that
he would like to do so and would like to bring some members of the Association's
committee along. That evening, Wyatt, accompanied by George Kelsey, of Inter-
national Paper, and by Frank Doherty, of U S. Plywood, met with Nelson and
Hartley at a hotel in Portland. Wyatt explained that the negotiating committee of
the Association had met that afternoon and decided that, because there were only
two representatives of the unions, only two committee members should accompany
Wyatt. According to Wyatt, either Nelson or Hartly began by making a statement
of the revision which the union wished to mention. Wyatt then commented that he
thought the change in the unions' position was lateral only, and that he did not
think the Association would be interested in it. Doherty said that it looked to him
like the unions were working to prevent the Association from succeeding as an
entity. Wyatt quoted Nelson as replying to this that he did not consider this to be
the case and that, as he had previously said, "We think this was a desirable move"
and that it was too bad the Association had got into trouble the first year.42 There
was some talk at this time about the desirability of scheduling another meeting. I
deduce that the parties agreed to a meeting on July 15 but that the meeting that was
held that day was actually arranged by the Federal Mediation and Conciliation
Service.
At the meeting held on July 15, representatives of both unions met with the
Association. At the opening of the meeting, Nelson handed to Wyatt a written
statement reading as follows-
In view of developments which have transpired since these negotiations
commenced, I think it desirable to make a statement to you concerning the
relationships of this Union with the 6 companies comprising your "Association."
While we recognize that each one of the Companies here have the right to
delegate their bargaining authority to any one or any organization of their
choice and we have met with you and will continue to meet with you as a result
of each one of the Companies here having previously delegated its bargaining
authority to the "Association" on a specified listed number of items but in doing
so, we wish it clearly understood we have not from the beginning considered,
nor do we now consider, the "Association" as an association constituting a
multi-employer bargaining unit.
In addition, we are also prepared to meet with those of you who have con-
tract openings for which the "Association" does not have bargaining authority.
Following this, Hartley read the statement from his letter of July 1, previously
quoted Accompanying Nelson and Hartley were representatives of the IWA and
LSW, but Johnston was not at this meeting. In addition to the Association's com-
mittee, a number of lawyers for the respective companies were present Following
the reading of the statement by Hartley, Wyatt commented that he guessed the meet-
ing was over. However, the Association's committee and the attorneys left the
room in a caucus and when they returned, Wyatt handed to Nelson and Hartley the
following written statement:
This Association is here today to negotiate in good faith on the same basis
[on] which the parties have negotiated from the beginning. The IWA & LSW
apparently now condition further negotiations upon a change in the bargaining
relationship The Association desires to reach an agreement and has prepared
a proposal with this in mind. The Association regrets this decision on the part
of the unions and views it as a most unfortunate lack of awareness of employee
& public interest The Association is unable to accept these conditions but is
willing to continue meeting on the only basis upon which this Association has
authority to meet with you.
Wyatt hesitated to proceed without a further statement by the unions. Nelson com-
mented that the written statements made by the several parties were self-serving
statements and that there was nothing in them to require anybody on the other side
to agree with them, and suggested that they "get on with the show." 43 Wyatt asked
for another caucus and when he and the committee returned, Wyatt began to make
a bargaining proposal with respect to all of the issues between the parties. In doing
m Nelson was not questioned about this meeting. I accept Wyatt's account of the
meeting.
13 The IWA's notes of this meeting quote Nelson as saying, "We did not bring our attor.
neys here. We're here to bargain not litigate legal proceedings."
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP., ETC. 949
so, he read from a written statement entitled "Settlement Agreement." After read-
ing from this, he handed a copy to each of the unions. It is unnecessary to detail
the terms of this offer. It is sufficient to say that the wage offer (the subject the
unions were most interested in) was somewhat increased. The unions took a caucus
and returned to reject the offer That ended the meeting.
A July 19, 1963, letter to IWA members, over the signature of Nelson, gave an
account of the proposal made by the Big Six on July 15 and the rejection thereof by
the IWA committee. Nothing in Nelson's letter indicated a breaking off of negoti-
ations with the Association in an effort to bargain separately with individual mem-
bers thereof. The letter mentioned a meeting, to be held on July 28, of the IWA
negotiating committee, executive committee, and advisory board, at which one of
the items of business was to consider the sentiments of the employees regarding the
negotiations to date.
On August 2, 1963, the executive committee of the Association met and reached
a decision on a course of action regarding the lockout. This resulted in the sending
by the Association of letters dated August 4, 1963, to IWA and LSW. These let-
ters, identical in content, informed the respective unions that, beginning on August 7,
work would be resumed at all plants shut down on or after June 7 and that work
would then be available for employees of all members of the Association. The
letters stated that employees would be paid on the basis of their wages on May 31
as modified by the offer made to the unions on July 15, 1963. The letters requested
notification of the position of the unions on this within 10 days and stated that the
contents of the respective letters, except for announcement of the resumption of
work would not be made public or revealed to employees until after the unions had
had an opportunity to consider the offer "between now and the close of business on
August 15 " The letters also offered to meet and bargain with each union regarding
"the implementation of our entire offer of July 15, 1963."
On or about August 5, 1963, the Association released to the press an announce-
ment of resumption of operations on August 7 by the Respondent Companies. The
statement explained that the step was taken "upon review of recent developments
involving other lumber industry firms and the two unions " Wyatt testified that the
"recent developments" included a recommendation by TOC that its members uni-
laterally put into effect the terms of their last offer, the tact that three other large
independent companies were on strike, and the fact that a settlement had been
reached by IWA with Simpson. Another announcement was made to all supervi-
sory personnel instructing them to answer any inquiries by saying that wages, hours,
and working conditions, upon resumption of work, would be those in effect before
the shutdown. Each company, through the various managers, gave notice to the
employees of the hour of resumption of work on August 7. U.S. Plywood, which
had closed two unstruck operations on June 7, announced, under date of August 6,
resumption of operations there on August 7 and announced that work had always
been and still was available at the struck operations to any employees who wanted
to work
Between August 2 and 13, 1963, the negotiating committee of the Association had
meetings with Nelson and Hartley, without their committees, but made no progress
toward settlement. On August 12, 1963, however, under the auspices of the Fed-
eral Mediation and Conciliation Service, the negotiating committees of the Associa-
tion and the two unions met. The union spokesmen announced that they were meet-
ing subject to the same statements (verbal or in letter form) that they had made on
July 15. Wyatt again questioned the significance of this. One of the two mediators
present said that they had been all through that before and that no one was being
asked to agree with anyone else's position. Nelson confirmed this Wyatt said that
there was only one basis on which his committee could be there and that was as an
association composed of six members and not as six individual companies. After
both sides had expressed willingness to proceed, Wyatt, following a few remarks
about settlements reached elsewhere, asked for a recess to the following day. This
was agreed to.
On the following day, when the meeting resumed, Wyatt made a new settlement
proposal which included a 301/2-cent wage increase over 3 years, a provision iegard-
ing concerted refusal of employees to work overtime, a provision for automation
and classification committees, and an agreement to close out all local issues The
Unions asked about the omission of a provision for pro rata vacation pay in event
of early retirement and other questions The Association retired and returned to
include in its offer the pro rata vacation pay and other minor matters. The unions
then caucused and returned with suggestions for a few minor modifications which
were agreeable to the Association After ironing out a few more problems, the par-
ties got busy on drafting the final settlement agreement. Wyatt sought a statement
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therein that would have committed the unions to an extinguishment of the basis
for their unfair labor practice charges, but the unions refused to include it The
settlement, in its final form, was signed by the chairmen of each of the negotiating
committees, Hartley, Nelson, and Wyatt on behalf of their organizations. A separate
list of subjects remaining open between individual companies and the unions on
excluded subjects was signed by Wyatt to avoid any question that they might have
been closed out of separate bargaining by the settlement agreement.44 The unions
submitted the settlement agreement to their locals for ratification and, in due time,
notified the secretary of the Association of their ratification.
9. Conclusions
The General Council attacks the Respondents' use of the lockout by arguing (1)
that no valid multiemployer group had been established which could justify the
defensive use of the lockout, and (2) that, even if such an organization came
into existence, it could not justify use of a lockout because an "established
bargaining practice on the basis of the multiemployer unit" was lacking. These
contentions are then broken down by the General Counsel into subdivisions corre-
sponding to evidentiary facts. Most of these will be considered.45
The General Counsel's argument regarding the validity of the multiemployer group
deals mostly with the topic of lack of solidarity. However, his argument frequently
refers to evidentiary items which, he appeais to argue, impugns the good faith of the
corporate Respondents and even the fact of their organizing as a gioup. I find the
evidence of the Respondents regarding the creation of the Association to be con-
vincing on its face, and the evidentiary facts with which the General Counsel seeks
to cast doubt upon the reality of the Association's organization merit little attention
except insofar as they relate to the question of the solidarity of the multlemployer
group. Even in this connection, however, the arguments of the General Counsel
and of the Charging Parties often relate more to the genuineness of the Association
than to its solidarity. For example, the General Counsel argues that the members
of the Association were so obsessed with the desire to gain a right to treat a strike
against one as a strike against all, that they set up a sticks-and-straw facade without
earning the lockout privilege by a good-faith commitment to the responsibilities of
association bargaining. Between the General Counsel and the Charging Pasties,
they either argue or assume that the Association lacked genuineness for the following
reasons: because it failed to show the unions its formation agreement; because,
instead of requiring a simple majority to decide bargaining positions among them-
selves, the formation agreement required a decision by a majority of 75 percent:
because the Association was never given authority to bind its members on many
major issues (i.e., those excluded from association bargaining); because the Asso-
ciation's formation agreement was "not binding"; and because the Association was a
`'one-shot sham " Other contentions also are implicit in their arguments.
To say that the corporate Respondents were motivated by selfish interests in form-
ing an association is not to say that the resulting association was a sham. Self
serving reasons, to a large degree, probably influence the formation of many, if not
all, employer bargaining associations, and among employers' reasons for forming
associations for the purposes of bargaining undoubtedly are (1) a desire to reduce
cost differences affecting competition in business and (2) a desire to gain an advan-
tage in bargaining with labor organizations both through the ability to take firmer
positions in bargaining and the ability to resist the use by unions of economic force
in an effort to soften that firmness. Unions likewise are motivated by private inter-
ests when they favor creation of a multiemployer unit, as was noticeably demon-
strated by LSW's expressed desires, in this case, to protect its locals from raids by
other unions.
The General Counsel has not alleged a violation of Section 8(a)(5) of the Act
but has nevertheless questioned the good faith of the Respondents not only in organiz-
ing an association but also in the bargaining itself. The General Counsel sees the
44 This list covered pensions at both Weyerhaeuser and St Regis, an agency-shop agree-
ment at Weyerhaeuser, and the unclosed 1961-62 bargaining between Weyerhaeuser and
LSW at one branch.
45 Some of the General Counsel's contentions strike me as so obviously lacking in merit
that they require no comment As an example, but not the only one to be tound in his
brief, is the contention that the word "voluntary" when used in the Association's orga-
nizing agreement in describing the Association as a "voluntary multiemployer associ-
ation" by any legal definition means "not binding" I find that "voluntary" signifies
"willingly" ; i.e., without compulsion.
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP. , ETC. 951
members of the Association as lacking a genuine intent to bargain jointly and reach
a common settlement agreement binding on all members . I find no cogent evidence
of lack of good faith in either formation or in bargaining . If the members had
intended that the Association would be actually only the designated bargaining agent
for each company individually , the Association could have bargained for a separate
settlement for U .S. Plywood on its hours -of-labor openings which would have been
different from the amendments sought by other members , and it could have excluded
U.S. Plywood from the amendment on hours of labor sought by others . This was
not the Association 's objective . To the extent that contract subjects were open and
did not concern the excluded subjects, the Association was bargaining for, and ulti-
mately reached , a settlement uniform as to all members . Collective bargaining fre-
quently takes place in a poker game atmosphere , with some bluff, with high cards
kept strictly secret, and with calculated bidding. Such techniques were used here
by both sides in their 1963 bargaining , but each understood it and thought none the
less of the opposing bargainers for it Not only do I find no evidence of bad-faith
bargaining , but I seriously doubt that either Charging Party thought there was bad-
faith bargaining . The attitude of the unions was rather one of disappointment that
the Association could not be induced to increase its wage increase offer more sub-
stantially before the strike.
At one point in his brief , the General Counsel speaks of the Association as a
"one-shot deal ." In arguing this allegation , he points to an interoffice memorandum
prepared by a Weyerhaeuser manager under date of June 6, 1963, which contains the
statement : "The agreement which was signed [by Weyerhaeuser] with these six
companies only covers the 1963 bargaining sessions at present ." The writer of this
memorandum was not called as a witness to be questioned about this statement, but I
interpret it to be a reference to the written association agreement signed by the six
companies on various dates between April 15 and 22, 1963 , and specifically to the
last paragraph thereof which permitted any member to withdraw from the Associa-
tion and terminate its membership by giving notice to all other members and to the
appropriate unions prior to March 1 of any year . A change of membership in multi-
employer associations is not an unusual practice and, as long as the withdrawal
occurs at an appropriate time and is with notice to the other parties involved, the
right to withdraw has always been recognized as proper and as not affecting the
remainder of the multiemployer group 46 Consequently the provision in the Asso-
ciation's agreement which permits withdrawal of members does not derogate from
the Association 's validity or authority to speak for its members. Obviously, with-
drawal of membership after a contract has been entered into does not affect the
binding force of that contract and, in this case, where the agreement reached was
for a 3-year term, withdrawal of membership before the expiration of that term
would not affect the binding force of that contract . I find no merit, therefore, in the
General Counsel 's contention that the Association was a one-shot deal.
The General Counsel, in arguing lack of solidarity , seems to question the fact of
organization of the Association by pointing to evidence that, even after an oral
agreement for an association had been reached on April 12, 1962 , Wyatt, in com-
municating this fact to other parties , had mentioned the formation cautiously, in
less than positive words. I do not interpret those expressions of Wyatt's as incon-
sistent with his testimony of the formation of the Association . Wyatt, at the hearing,
demonstrated that he was disposed to be careful in his choice of language . It does
not impress me as out of keeping with such a disposition for him to be cautious in
his assertion of the formation of the Association before the written agreement had
been signed.
The General Counsel also attempts to cast doubt on the very existence of the
Association 's written organizational agreement ( presumably suggesting that that
document was prepared for the first time after the charges were filed ) by pointing to
the fact that when Johnston , at the first meeting of LSW with the Association asked
to see the agreement , Wyatt, in effect , declined to show it and to the fact that, in the
California unemployment compensation claims hearing , at one point Wyatt testified
that one member of the Association could veto any action by the Association (this
being inconsistent with the provision of the Association 's written agreement, which
provided for decision by 75 percent of the members ). With regard to failure to
se Seattle Automotive Wholesalers Association , et at , 140 NLRB 1393 ; Cooks , Wattet,o,
and Waitresses Union, Local 327, et at , Hotel and Restaurant Employees International
Union; at at . (Greater Peoria Restaurant Association ), 131 NLRB 198, Cosmopolitan
Studios, Inc , 127 NLRB 788 ; Detroit Window Cleaners Union , Local 139 of the Building
Service Employees' International Union, AFL-C10 ( Duelyte Service Company), 126
NLRB 63.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
produce the agreement for Johnston's inspection, I find that this falls short of proving
the nonexistence of the agreement. Wyatt was not pushed by Johnston to the point
of being required to show the agreement or to suffer the consequences of a refusal
by LSW to enter into an association-unit course or bargaining; and, again, Wyatt,
as the General Counsel appears to concede, might have believed it more in the inter-
est of the aims of the Association-to induce bargaining by LSW-if disclosure of
the 75-percent rule were not made unless a specific question about the number of
votes of members necessary to carry a decision were asked. I note that Wyatt
'truthfully answered the direct questions put to him by Johnston concerning the
nature of the Association and specifically the one about whether the Association's
agreement contained a provision giving it the right to look upon a strike against one
as a strike against all. Regarding Wyatt's mistaken testimony at the California
Unemployment Compensation Claims hearing, I find that, later in Wyatt's testimony
at that hearing, he corrected himself by stating that two negative votes would be
needed to bar an action by the Association. Furthermore, it is not difficult, when
one is thinking of the number of affirmative votes needed to carry a decision-five
out of six (or, in the case of LSW, four out of five-to confuse this difference of
one with the negative number of votes required to defeat an action-actually two.
The General Counsel argues, however, that, even if the agreement had been in
existence, the Association's 75-percent rule casts doubt on the Association's binding
authority, arguing that such a condition was more obstructive of industrywide indus-
trial peace than single-employer bargaining Since the overriding policy of the Act,
he argues, is to promote industrial peace, "it would thus seem that any multiemployer
bargaining group requiring considerably more than a simple majority for activities
is no more possessive of lockout-legalizing solidarity than is an independently bar-
gaining employer." A reading of the decisions of the Board leads me to the con-
clusion that the degree to which an employer forfeits individual freedom of bargain-
ing is not a good test of the requisite solidarity of a multiemployer group. In
instances where only two employes are joined together for bargaining purposes, a
unit rule-100 percent-would be required to carry a decision about a bargaining
position; yet the right of one of the two to resort to a defensive lockout in the event
of a strike of the other has not been negated because of that fact 47 Conceivably, in
practical operation, a single strong employer might succeed in bending the will of
all other members to his thinking, in which case even a provision for a bare majority
would be of no consequence. A reduced degree of flexibility is one of the recog-
nized consequences of multiemployer association bargaining. Unions know this,
but when they can gain an advantage themselves through bargaining on a multi-
employer basis, they may decide that the value of the larger unit protection out-
weighs the value of the flexibility in individual bargaining. If a labor organization
is actually concerned about the number of votes required by an association to carry
a decision , it has only to ask. The LSW did not do so.
The brief of LSW appears to argue that bargaining for a common settlement on
only a few subjects is not enough to create a multiemployer unit. The companies
had opened only a few subjects and so had the unions. Had the unions opened
their entire contracts for revision, there might perhaps have been more force to such
a contention. But the fact is that the openings of each union were limited and the
two regional councils had been delegated authority by their locals to bargain only
as to such union openings. In considering the degree of contract uniformity which
might be the basis for a multiemployer bargaining unit here, we must not ignore the
bargaining practices in the northwest lumber industry. These practices differ from
those to be found in other cases in this respect, that the bargaining and resultant
agreements here are looked upon as effecting amendments to local contracts which
otherwise continue undisturbed. This is evident from the delegations of authority
to bargain. The delegations of authority by local unions to regional councils is not
a delegation of authority to negotiate a new contract, but is an authority to reach
agreement on certain specific amendments desired by the locals in their contracts, as
well as an authority to bargain on all amendments sought by employers. So too,
members of employers' associations delegate to such associations authority to bar-
gain about all changes sought by the unions, but, on the other side, limit authority
of the association to bargain for amendments sought by the employers to specific
contract clauses. Before a certain date, each side gives the other notice of specific
contract clauses which they wish to open. Whether or not the locals or the com-
panies, having given such notice of opening, could insist upon bargaining concerning
amendments to other clauses in their contracts not mentioned in their opening
47 See Safeway Stores, Incorporated , 148 NLRB 660.
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP., ETC . 953
notices is not the important question here,48 because, insofar as either delegates
authority to bargain to an agent, such agent is limited by the scope of the delegation.
Neither the fact that the employers involved do not have completely uniform con-
tracts, nor the fact that joint bargaining in any 1 year would not result in uniform
contracts, should bar the parties (employers and unions) from entering into a con-
sensual arrangement in advance for a multiemployer unit in which to engage in
collective bargaining on major subjects concerning which the employers intend to
,be bound as a group 49 Not only is the limitation on bargaining imposed by custom
or agreement no obstacle to bargaining in a multiemployer unit but it is likewise no
obstacle that the parties sign separate contracts. The Board said, in Balaban & Katz
(Princess Theatre), 87 NLRB 1071 at 1073, "We have held that neither the lack of a
formal association of employers, nor the fact that the results of joint negotiation
have been incorporated in separate uniform contracts, precludes the establishment
of a multiple-employer unit." It is not contended that the employers here did not
all uniformly incorporate the terms of the association-bargained settlement agree-
ment in their separate contracts.
A closely allied topic is the express reservation of specific and relatively impor-
tant subjects of collective bargaining for individual bargaining. The General Coun-
sel refers to the reservation of the subjects of union security, pensions, health and
welfare, and strictly local openings which were customarily bargained at the local
level as another indication of alleged lack of solidarity. The General Counsel con-
tends that the Board's decision in The Kroger Co., 148 NLRB 569, where the Board
found that exclusion of pensions by one company did not destroy the solidarity of
an employer association, is not controlling here, because, the General Counsel
argues, here the exclusions were unilateral whereas in the Kroger case, the privilege
to bargain individually on limited matters was mutually recognized.50 I see little or
no distinction between that case and this. In fact that case was a closer one, because
only one employer refused to include pensions in bargaining. The union there actu-
ally demanded, and succeeded in getting from the remaining employers, as a result
of association bargaining, a pension provision in the contract which the association
negotiated, but it was unable to reach agreement on pensions with the objecting
employer. The Board there said:
The problems of each member of a multiemployer group are understandably
not always identical. While it may be to the best interest of the employers and
labor organizations involved to bargain as a group about all matters of general
concern-the obvious reason for the formation and continuation of any multi-
employer unit-it may likewise be in the best interest of all concerned not to
burden the group negotiations with the limited problems of an individual
employer. Hence, we do not believe that the exercise of a mutually recognized
privilege to bargain individually on limited matters . . . is inconsistent with the
concept of collective bargaining in a multiemployer unit.51
It may well be that the unions here could initially have refused to bargain col-
lectively with the Association unless the excluded subjects were included, or they
could, perhaps, have placed the Association in a position of having refused to bar-
gain in violation of the Act,52 if the Association had refused on request to bargain
on such excluded subjects. But the unions took neither of those two courses. In
fact, Nelson made it quite clear in advance, that the exclusion of union security,
pensions , and health and welfare was not objectionable as far as IWA was con-
cerned. Furthermore, IWA did not change its mind about this-it made no attempt
481 note that the parties never protested additional openings, once notice of desire to
open had been given. By contract, only notice of desire to open must be given 60 days
before contract expiration date. The amendments desired are not required specifically to
be given. Notice of the type of amendment desired appears to be more a matter of
practice than of legal requirement
49 See The Kroger Co., 148 NLRB 569
60 Here the unions had advance notice of the exclusions In the Kroger case no advance
notice was given, and the objecting employer walked out of the meeting when the union
and the other employers began to bargain on pensions. No action could have been more
unilateral than that, at least not before the union had made the best of the situation and
had attempted, through individual bargaining with the single employer, to reach a separate
pension agreement.
11 See also Carnation Company, 90 NLRB 1808
sa See Pacific Coast Association of Pulp and Paper Manufacturers, 133 NLRB 690, enfd.
304 F. 2d 760 (C.A. 9).
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to bargain with the Association on those subjects . It merely made certain, after
settlement had been reached , that the settlement did not close out individual bar-
gaining on excluded subjects . As for LSW , Hartley had told Wyatt , when Wyatt
consulted with him in February 1963, that he personally saw no problem in the
exclusion of those subjects . Johnston , for LSW , testified , it is true , that he stated at
the opening meeting with the Association that LSW could not recognize and bargain
with the Association unless they could bargain for all areas and all issues. How-
ever, I find no evidence that LSW at any point in the 1963 negotiations sought to
bargain with the Association on any of the excluded subjects . Although Johnston
testified that he outlined the problems of LSW in connection with health and wel-
fare, he did not include health and welfare in any of the LSW demands made on the
Association . In fact, the Western Council, LSW's bargaining agent for industrywide
demands, had not, so far as appears , been authorized by its locals to bargain in 1963
negotiations about any subject other than wages, a 3-year contract , and employer
openings . Furthermore , LSW was bargaining with TOC on the health and welfare
trust previously established through that association . 53 Johnston professed not to
know that his bargaining authority was limited in bargaining with the Association.
In any event , Johnston 's statement about bargaining on all issues amounted, under
the circumstances , to no more than a statement that LSW was not permanently
waiving the right to bargain about health and welfare or other subjects if LSW should
recognize and bargain with the Association on a multiemployer unit basis. It is
apparent , therefore , that the excluded subjects in no way diminished the solidarity
expressed in the Association 's agreement of an intention of the members of the
Association to bargain jointly and be bound by the result of their joint bargaining.
The General Counsel also attacks the Association as not a valid multiemployer
bargaining group by asserting that the Association was unable to bind its members
because of the exclusion of several operations-that is, plants . Each one of the
members of the Association had operations at different locations . The evidence
does not disclose the existence of member-company plants other than in the three
Pacific Coast States and Montana, although there is a suggestion in the record that
Weyerhaeuser might have plants or operations elsewhere . No objection was raised
concerning the exclusion of any plants ( if there were exclusions ) by any except those
of St. Regis and U.S. Plywood. If any others were excluded , the unions con-
curred in the reason therefore. However, at the outset of the LSW meetings with
the Association , there was some question about the exclusion of certain plants by
U.S Plywood and St. Regis. Because the operations intended by the members to be
covered by the association agreement were all west of the Cascade Mountains in the
three Pacific Coast States and because some of the operations of United States Ply-
wood not listed in that company 's letters to LSW were in California , a valid ques-
tion was raised . However , before bargaining proceeded between the Association
and LSW, U . S Plywood came to agreement with LSW on the inclusion or exclusion
of those plants in California . Still, LSW did not like the exclusion of operations
of member companies east of the Cascades from the bargaining format established
by the Association 's members , because LSW was attempting to include in an asso-
ciation unit all locals in its Western Council region in order to protect all its locals
from raids by other unions or from piecemeal decertification But since it failed
to convince the affected members of the Association that they should include plants
or operations east of the Cascades , LSW was placed in a position of making a choice
either of refusing to bargain on a multiemployer basis and insisting on individual
company bargaining or of accepting the bargaining unit offered . It could not compel
acceptance of its proposed unit and it could not accept multiemployer bargaining
with the Association except on the terms of the offer made to it I am unable to
see any merit to the argument that failure to include some plants in the format
offered to the unions by the members of the Association in any way affected the
validity of the Association or affected the solidarity of the group covered by the
Association 's agreement if LSW accepted the unit offered as an appropriate one.
Whether or not LSW, in fact, accepted the unit offered by the Association is a ques-
tion to be dealt with later.
°Although three LSW local unions had opened their contracts on health and welfare,
one had withdrawn its requests before the first meeting between LSW and the Association.
The amendment requested by a second local was merely to get a list of employees for whom
the employer had made contributions , a matter conceded to be unnecessary to be taken up
at the Western Council -Association level. The third local to open on health and wel-
fare-a belated opening after the 60-day notice date-specifically stated that it wished to
negotiate thereon on a local level . None of these three locals , therefore, delegated any
authority, mediately through district councils , to the Western Council
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP., ETC. 955
Another attack by the General Counsel on the validity or solidarity of the Associa-
tion is based on "inability to bind a single one of its members without that member's
specific consent regardless of the collective will of 51 percent, or 75 percent, or
99 44/100 percent, of the other members." This argument intentionally ignores the
expressed agreement of the members of the Association to be bound by the results of
the collective bargaining and takes its ammunition from the fact that the Association,
because of hasty organization, had some apparent overlapping of local and industry
openings. Both U.S Plywood and an IWA local union had made local openings on
hours of labor, one of the subjects for proposed bargaining by the Association. These
local changes were not sought by U.S. Plywood at all its plants represented by IWA
locals, and, before authorizing the Association to bargain for it on the three industry
openings, U.S. Plywood had not opened generally on hours of labor.,54 However,
because changes in hours of labor was one of the topics on which members of the
Association wished to bargain, Nelson raised a question as to what would be settled by
an association settlement agreement on this subject. Following the Association's
assurance (with the approval of U.S. Plywood) that any U.S. Plywood openings even
arguably conflicting with the industry-sought provisions on hours of labor would be
controlled by any association negotiated agreement, any objection the IWA would
have would not be based on lack of authority by the Association to bind its members.
The objection would go more to the mechanics of bargaining. Neither Nelson nor
Hartley had expressed any criticism of the exclusion of local issues from association
bargaining when such exclusions were first mentioned to them by Wyatt in Febru-
ary 1963. And even in April, Nelson never actually did disagree with the proposed
exclusion of local issues from association bargaining. He merely sought to avoid a
possible conflict in provisions negotiated at two levels. For example, the Association
desired two changes in the hours of labor provisions of all contracts. One was a
change to permit a Tuesday to Saturday schedule for maintenance employees without
premium pay for Saturday work; the other was an amendment which would give
members the right, for periods of time determined by them, to establish around-the-
clock three-shift operations without incurring an obligation to pay premium pay for
Saturday or Sunday work as such (meaning premium pay for working on those days
even though the employee working on those days had not exceeded or would not
exceed 40 hours a week) One IWA local at a Seattle operation of U.S. Plywood had
opened on hours of labor with regard to "the assignment and duration of work shifts."
Conceivably, an agreement based on the Association's proposal for changes in hours
of labor might conflict with the amendment desired by the local union, and Nelson
apparently did not wish to foreclose the local from gaining its objective. He, himself,
would not have been involved in the local's bargaining on its own opening. The diffi-
culty, from the IWA point of view, could have been worked out either by the
mechanical device of bringing local bargaining into the Association's negotiations 55
as proposed by the Association, or by bargaining at one or the other level on that sub-
ject first and then leaving the other level (i.e., the local or the Regional Council) free
to bargain regarding any amendment not in conflict with the first one to be settled.
From the suggestions which were made by Nelson and Wyatt for handling this prob-
lem, I infer that the IWA wished to limit the scope of any association-sought amend-
ment by settling the local's desired amendment on the local level first and then
requiring that the association-sought amendment not be in conflict therewith, whereas
the Association sought a contrary order of negotiation and limitation, or at least a
concurrent settlement, in either event controlling the local settlement so as not to
conflict with the amendment sought by the Association for all contracts. None of
the mechanical details of settling this problem, however, in any way, derogated from
the Association's authority to bargain for, and bind, its members on the amendment
sought on hours of labor by the Association-and certainly not after the Association
had announced U.S. Plywood's agreement, and the Association's proposal, to bargain
si The fact that U.S. Plywood did not specify in its original openings and before the
sending of its letters to the unions notifying the unions of delegation of bargaining
authority to the Association that it wished to bargain through the Association on the
industry opening of hours of labor was not, in itself, objected to by the IWA or LSW
1-5 Nelson's objection that the Regional Council was not authorized to speak for the local
would have no basis in this event because the local would be speaking for itself. IWA
was authorized to bargain local employer openings for local unions and could have done
so at the association level. Nelson's proposals to bring the local's representative and the
plant manager to Portland to bargain on the local's opening, separate from the Associ-
ation, before the IWA and the Association began to bargain about hours of labor makes it
rather obvious that Nelson did not wish the local to be limited by the result of the
Association's bargaining.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the local openings with the local representatives at the Association's table in the
presence of the higher-level union representatives. This is not to say that a union
could not require agreement on the mechanics of bargaining as a prerequisite to
acceptance of the multiemployer bargaining unit, but, in the instant case, that would
be separate and apart from the question of the Association's authority to bargain.
A portion of the General Counsel's brief reads • "The association's lack of solidarity
was yet more dramatically shown during the April 25 recess conversation between
Wyatt and Nelson, when Wyatt, revealing that he `did not know if U.S. Plywood was
going to stay in or get out,' beseeched Nelson to `find a way to go along' with the
association's lack of authority concerning U.S. Plywood." As of that date, perhaps
IWA could have taken the position that, because agreement had not been reached on
the mechanics of bargaining, the IWA had not yet agreed to bargain within the multi-
employer unit offered by the Association. If there was yet a lack of agreement on the
creation of a multiemployer bargaining unit, U.S. Plywood no less than IWA could
probably have withdrawn. Restrictions on withdrawals from multiemployer bargain-
ing cannot be imposed before a multiemployer unit is established by agreement
between employers and union or by some other recognized way. It appears to me
that all that Wyatt was saying to Nelson in that off-the-record conversation was that,
if Nelson pushed too hard to eliminate U.S. Plywood local openings, not conflicting
with the Association's hours-of-labor objectives, as a condition to recognition of the
Association as a multiemployer bargaining unit, U.S. Plywood might withdraw and
bargain on the previously established company basis. Any lack of solidarity would
have been produced by IWA's refusal to accept the unit rather than by any organiza-
tional deficiency on the part of the Association.
The LSW brief argues bad faith on the part of Respondents and lack of power,
both, in criticizing the Association for its unwillingness to agree to Johnston's concept
of a master contract. Johnston was apparently of the opinion that nothing less than
a master contract would give the LSW the protection it desired for its locals from raids
and piecemeal decertifications, because he appeared to believe that it was insufficient
that the Association had been given the power to negotiate on all union openings.
Actually, a master contract was neither a topic of opening by anyone in advance of
the first IWA-Association meeting nor was the Western Council of LSW given specific
authorization to bargain about such subject by its locals. Insofar as the Western
Council and the Association could discuss various phases of a master contract without
amending a local's contract to conform with that of another local, perhaps the Western
Council needed no specific authority from its locals, but such discussion would merely
settle a frame of mind about an ultimate aim for a master contract. It could not
result in a genuine master contract. In any event, however, the unwillingness of the
Association to accede to the Union's request (at least in the first year of bargaining)
for a master contract does not prove that the Association lacked adequate bargaining
power to constitute a basis for a multiemployer unit. The Association did not refuse
to bargain about a master contract. It was merely unconvinced that a master con-
tract was needed or desirable and so refused to agree to one.
The main thrust of the General Counsel's argument is that, even if the Association
was validly organized and had the requisite authority to bind its members, it failed to
achieve the status of a multiemployer bargaining unit, first, because bargaining for "a
substantial period of time" was alleged to be essential to the establishment of such
a unit and, second, because, even if a multiemployer bargaining unit could be estab-
lished in a first-time bargaining situation, it could only be established according to
the General Counsel, if the unions waived their statutory right to bargain on the
preexisting single-plant or single-company basis is clear and unmistakable language.
I do not regard waiver, as a term of art, to be involved here. Rather this case
involves a question of a deliberate choice between mutually exclusive rights. With
regard to the contention that the Association failed to achieve the status of a multi-
employer bargaining unit because bargaining had not continued for a substantial
period of time, more must be said. As a matter of policy, the Board has not, without
the concurrence of a union and a group of employers, seen fit to initiate a multi-
employer bargaining unit. But the Board does not oppose the establishment of a
multiemployer bargaining unit by agreement of the parties, and, if they do so agree,
and no other labor organization seeks to represent a small appropriate unit, the Board
will recognize such multiemployer unit as appropriate, and will, in a proper case,
direct an election on such basis.56 Reference by the Board to "bargaining history" or
to bargaining on a multiemployer basis for "a substantial period of time" usually
appears in cases where a claim is made by a labor organization to represent employees
se The Rose Exterminator Company of Northern California , Inc., 143 NLRB 59, 60-61.
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP., ETC. 957
in a smaller unit .57 If the multiemployer bargaining unit has not been established
through certification of a union and if another labor organization is seeking a certifica-
tion in a small unit, the Board may refuse to recognize the larger unit as a bar to a
finding of a smaller appropriate unit where the bargaining history in the multi-
employer unit covers less than 1 year.58 When, however, no party is seeking a smaller
unit, bargaining history is not a prerequisite to finding a jointly agreed multiemployer
unit appropriate . 59 In such a case , the agreement of the affected parties, alone, to
create a multiemployer unit suffices , even on a first-time basis, to create such a unit 60
In this case there was no history of bargaining in the unit proposed by the Associa-
tion . But if the Association and the respective unions chose to agree to its appro-
priateness , they were free to do so since no other union was claiming to represent
employees in a smaller unit . The General Counsel contends that IWA and LSW did
not choose so to agree . The Respondents , on the other hand, claim that there was
a tacit agreement evidenced by actual bargaining . In the law of contracts , an agree-
ment may, of course, be either expressed or implied . Since the unions in this case did
not expressly state that they were agreeing to the establishment of the multiemployer
bargaining unit tendered by the Association , such an agreement may be found only if
the words and actions of the representatives of the labor organizations concerned
demonstrate an intent to bargain on the multiemployer basis offered by the
Association.
The General Counsel and the Charging Parties rely on the Board's decision in The
Great Atlantic and Pacific Tea Company, 145 NLRB 361 ( herein for convenience
referred to as the A & P case ), where the Board held that the use of a lockout by an
association of employers after one of the members was struck was not a valid
defensive use of the lockout because the union there had not accepted the multi-
employer unit as appropriate , although it had met with the employers several times
and had exchanged bargaining demands. The Board held that the union , in meeting
with that association , was just exploring the possibility of bargaining on a multi-
employer unit basis.
The General Counsel 's case here was presented with an apparent view toward bring-
ing it within the mold of the A & P decision . Similarities between that case and this
do exist, but so do differences . In any event , the decision in any other case, based
on its unique facts , can only serve in the instant case as a direction pointer where the
controlling facts are not identical . The Board recently has reinterated that:
the Board in resolving an issue of whether or not a lockout is of a justifiably
defensive character , will make its determination only upon full consideration of
all surrounding facts and circumstances in the particular case before it.61
I do not read the decision of the Board in the A & P case as saying that a union and
an association of employers fail to bind themselves to a multiemployer unit, although
they mutually agree to do so, where such mutual agreement is not express but is
implied from the fact that they engage in collective bargaining . Rather, in that case,
the Board found that the "negotiations " between the union and the employers ' associa-
tion were insufficient to evidence a clear agreement by the union to bind itself to the
multiemployer unit format . At the first meeting in that case , the association indicated
that the uniformity desired by the union in all agreements with the members might run
into difficulties , particularly with respect to a uniform wage scale . At the second
meeting, the association spokesman said that the association was in "general" agree-
ment on the union 's prerequisites to bargaining on a multiemployer unit basis, and
the union thereupon submitted written contract proposals , which the association
needed to study; so no actual bargaining took place then. At the third meeting, the
question of recognition of the association and the problems needed first to be
straightened out began to appear . For some time after that , the union had no meet-
ings with the association except such as were arranged through the Federal Mediation
and Conciliation Service at the request of the association . But even at these meetings,
no bargaining took place for some time because the union refused to recognize the
association as representing the employers . Although agreement was ultimately
" Donaldson Sales, Inc ., 141 NLRB 1303; Carbondale Retail Druggists ' Association, 131
NLRB 1021; Arden Farms, et al., 117 NLRB 318
"For a full discussion of the various situations where bargaining history is a factor
to be considered , see U S. Pillow Corporation, 137 NLRB 584.
fie Western Association of Engineers, Architects, and Surveyors, 101 NLRB 64 ; Browa, d
County Launderers & Cleaners Association, Inc, 125 NLRB 256, Safeway Stores, Incor-
porated, 148 NLRB 660
80 See Safeway Stores , Incorporated , supra.
01 Natksn & Co., 150 NLRB 1542.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reached by the union in the A & P case, the union was, the Board held, entitled to,
and did, bargain about recognition as well as about substantive issues, and recognition
apparently continued to be a subject bargained about up to the point of agreement
on all issues. Meanwhile, the strike and lockout had taken place while the union was
still persisting in its refusal to recognize the association on a multiemployer unit basis.
Thus, the lockout was used in an attempt to compel the union to accept the multi-
employer unit.
In the case at hand, both labor organizations approved of the idea of bargaining
through employer associations. LSW was even eager to establish bargaining on a
multiemployer unit basis. This general attitude alone, of course, even though
expressed to Wyatt in advance, did not constitute acceptance of the particular multi-
employer unit tendered by the Association, but it may be said to characterize some
of the later conduct of the unions. Because the two unions expressed themselves in
separate meetings, I shall consider the effect of their conduct separately.
Nelson commenced at the IWA meetings with the Association by showing no con-
cern for the size or shape of the bargaining unit and showing no special concern over
the terms of the Association's enabling agreement He was concerned (1) that mem-
bers of the Association could not withdraw during negotiations, (2) that excluded
subjects would still be bargainable with individual companies, and (3) that the IWA
would not have to bargain about the same matter on more than one level. He was
satisfied on points (1) and (2) at the outset of the April 24 meeting. On point (3) he
was not immediately convinced. Because U.S. Plywood had local openings on hours
of labor, Nelson was concerned that there might be duplication of bargaining on more
than one level. It is not clear whether or not Nelson, at the outset, had before him a
specific statement of the amendments desired by U.S Plywood and by a local union
for local bargaining. In evidence is a chart which he had had prepared that he used
at bargaining negotiations. This chart stated only in general terms the fact that one
local's opening referred to article VII (hours of labor) of the U.S. Plywood contract.
Until Nelson had been able to study these openings in detail, he would, of course,
have been unable to assure himself that there was no duplication. There is no evi-
dence to establish when he saw these local openings in greater detail, but by April 26
he gave evidence of being less apprehensive that there would be a conflict which could
not be worked out in bargaining with the Association On that day he agreed to set
aside the question of U.S. Plywood openings, agreed to bargain about the employers'
opening on hours of labor, and suggested that any conflict could be taken care of later
if a conflict appeared as a result of the bargaining with the Association. He was
apparently satisfied at this point that a conflict was not inevitable In his report to
TWA locals on the status of bargaining he indicated that the problem of the U.S
Plywood hours of labor openings would not pose any difficulty If Nelson's setting
aside of the U.S. Plywood hours of labor openings as a problem did not in itself indi-
cate an intent to accept the multiemployer bargaining unit offered by association
bargaining, what followed clearly did.
From April 26, 1963, on, IWA got down to the serious business of bargaining with
the Association. Its proposals were made to the Association as such and it dealt with
the Association's offers as joint offers. It discussed and argued differences and sought
to induce a settlement satisfactory to it Its indication of acceptance of the multi-
employer unit as the agreed bargaining format after that was as clear as it was in the
Safeway case.62 IWA continued to meet with the Association's representatives with
no intimation that it was not recognizing the Association as a multiemployer agent for
group bargaining, and with no request to bargain individually until well after the
strike began and well after the time the charges were filed herein. All the evidence
indicates that the strike, itself, was resorted to, not to induce separate company bar-
gaining, but as a means of forcing a better settlement on wages. At the beginning
of the strike the IWA and LSW did not even pretend that two of the members of the
Association were struck to induce separate bargaining by them. They made no
request for separate bargaining and their publicity clearly indicated that the strike
against the two members of the Association was a selective strike designed to get
industrywide economic benefits Hence, the lockout, used in defense of this economic
strike, did not have as its purpose coercion of the unions to accept the multiemployer
bargaining unit.
On July 9, 1963, Nelson, at the informal meeting with representatives of the
Association, expressed approval of the Association as a method of bargaining Not
only had the IWA up to this time given the Association every reason to believe that
it was bargaining for a joint settlement, but its communications with its own locals
likewise spoke of bargaining with the Big Six or with the Association in terms that
raised no doubt of the intent of IWA to bargain on a multiemployer basis.
es Safeway Stores, Incorporated, supra.
WEYERHAEUSER CO.; CROWN ZELLERBACH CORP., ETC. 959
Even after the filing of the charge, the IWA gave no genuine indication of any
desire to bargain with individual companies or to bargain other than with the Associ-
ation as an employer group. It was not until July 15, when Nelson handed Wyatt a
prepared written statement saying, in effect, that, from the beginning, IWA had been
bargaining with the Association only as a representative of individual companies and
not on a multiemployer unit basis, that IWA even claimed that it had not accepted
that unit as appropriate. Coming as late as it did, this statement must be construed
to be an attempt to repair a broken bridge in an effort to bolster a legal case and,
perhaps, to induce a quicker settlement, because even after serving that statement, the
IWA did not withdraw from meeting with the Association's committee but treated
its statement as a legal technicality which had to be used but which could then be dis-
regarded so that the parties could continue, as before, with collective bargaining.
Furthermore, even after this written statement had been served on the Association,
IWA gave no indication to its locals or their members that it was seeking bargaining
on an individual company basis but merely reported on the state of negotiations with
the Association. On all the evidence, I conclude and find that IWA did accept the
multiemployer bargaining unit by its words and conduct and that its later attempt to
portray a different situation was ineffectual.
It is not claimed that IWA was privileged to withdraw from such unit after an
impasse had been reached in bargaining. I assume that this argument was inten-
tionally withheld. Such an argument, even if it had merit, which, absent consent of
the Association, it presumably does not,E3 would have conflicted with the position
taken by the General Counsel and the Charging Parties that the IWA and LSW had
never recognized the Association on the basis of a multiemployer unit. Only by
taking the position that recognition had never been accorded, could either IWA or
LSW attempt to justify a strike of less than all members of the Association, without
giving the Association a correlative right to resort to a defensive lockout under the
Buffalo Linen doctrine.64
In evaluating the contention of LSW that it never recognized the Association or
agreed to a multiemployer bargaining unit, one cannot overlook the attitude of LSW
toward association bargaining It is not difficult to see that, in 1963, LSW felt that
its very existence might depend on stemming the loss of its locals. From all the evi-
dence, I deduce that the LSW felt a need to approach its problem from two directions,
first, by eliminating any desire on the part of members to change representation-an
objective which might be attained by getting a substantial wage increase for its mem-
bers to bring their wage scale up to or above that of employees in other industries-
and, second , by rendering it difficult or impossible for other unions to pirate LSW
locals and gain recognition-a purpose that could be accomplished by having a larger
bargaining unit which could not be nibbled off by unions seeking only a plantwide or
companywide unit.
When Hartley and Johnston learned of the formation of the Association, the second
objective appeared within reach. The first could be reached only through hard bar-
gaining and, most probably, a strike. The probability of a strike was so strong that
LSW began early in 1963 to get strike authorizations LSW had heard that the
Association might wish to use a defensive lockout as a countermeasure to any strike.
If this were to be the case, it was, to LSW, one of the drawbacks of association
bargaining but one that might have to be tolerated in order to gain one of the prin-
cipal objectives of the LSW.
Obviously, the Association would appeal to the LSW as a means for accomplishing
its objectives only if the Association were to set up that an associationwide unit would
be legally assured. As I see it, it was to this end that Johnston prepared his questions
to be asked before LSW recognized the Association for group bargaining The opti-
mum situation for LSW would, of course, exist where the unit proposed by the Associ-
ation coincided with the territorial coverage of the Western Council and, in an effort
to get the best deal, LSW made a determined effort to produce such coincidence.
However, when it realized that the Association would not change the composition
of the unit on which it was formed, it also realized that the unit offered was more to
its advantage than a number of smaller units. After all, when the omission of two
California plants of U.S. Plywood had been settled to the satisfaction of LSW, the
unit offered by bargaining with the Association was not geographically too far from
the one sought by LSW. It was still good enough to appeal to LSW as a means to
its end.
03 Ice Cream, Frozen Custard Industry Employees, Drivers, Vendors and Allied Workers
Union, Local 717, International Brotherhood of Teamsters, etc., et al (Ice Cream Council,
Inc ), 145 NLRB 865.
s} Buffalo Linen Supply Company, 109 NLRB 447, affd. sub nom. N L.R B v Truck
Drivers Local Union No. 449, International Brotherhood of Teamsters, etc., 353 U.S. 87.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnston , however, was still concerned about the question of whether or not the
protection of an associationwide unit would legally be attained when bargaining was
confined to the few subjects before the parties-a 3-year contract and a wage raise
asked by LSW , two changes in hours of labor, one on overtime, and one on grievance
procedure asked by the Association . As I view the case, LSW, in insisting on being
able to bargain on all subjects , was not objecting to bargaining with the Association.
On the contrary , it was trying to bargain in such a way as to strengthen its claim to
the protection of an associationwide unit. To do this, Johnston sought reassurance
that the Association could bargain about all mandatory subjects of bargaining and
sought to gain some kind of group agreement distinct from amendments to individual
contracts . To get this reassurance , Johnston felt obliged to exceed LSW's bargaining
authority from its locals-authority merely to bargain for a wage increase over 3
years. This, I am satisfied , explains Johnston 's effort to establish a joint committee to
study automation and classifications and to seek some form, no matter how skeletal,
of a master contract.
From all the evidence , however, I conclude that the concessions sought by Johnston
were not conditions precedent to LSW 's acceptance of the group bargaining format.
When it became certain that the Association would not include plants east of the
Cascades , the LSW held a caucus . From what occurred after that caucus, it is
deducible that the LSW committee decided to accept the unit tendered by the Associa-
tion 65 but to attempt , through bargaining for items that would result in an association
agreement rather than merely an association settlement , to solidify the bargaining unit
for the firmer protection of LSW locals.
The breakdown in negotiations just prior to the strike resulted, not from any
reluctance on the part of LSW to bargain with the Association in a multiemployer
bargaining unit, but from its failure to induce a more attractive wage offer by the
Association . At the time of the strike , LSW was accepting , as inevitable , the pros-
pect of a lockout . It made no pretense at the time of the strike , any more than IWA
had, that the strike was to induce separate bargaining It is clear from the evidence
that the strike was intended by LSW no less than IWA to be a selective strike
designed to produce the least economic suffering by its members Working members
were encouraged to finance strikers . This financing could only be accomplished if
a substantial portion of the LSW members continued to work. Hence, the limited
scope of the strike.
Until after the filing of the charge , LSW made no pretense that it sought separate
bargaining with individual members of the Association. And after the filing of its
charge it did not request individual bargaining until June 28, 1963 But even then it
did not discourage association bai gaining by refusing to bargain otherwise than with
individual companies . Granted that the LSW sought to cooperate as much as pos-
sible with the Federal mediator , nevertheless , a union actually sure of its position
that it had never agreed to bargain on a multiemployer unit basis could have
declined to bargain except on an individual basis , as did the union in the A & P
case , supra. So long as the Association was willing to improve its offer, LSW, no
less than IWA, was willing to continue to meet with the Association . I am not
impressed by the argument that on and after July 1, 1963, the LSW was dealing with
the Association only as the designated representative of individual companies. LSW
knew that the Association had been formed to bargain jointly, and it never pretended
to believe , before July 1, 1963 , that the Association was a bargaining representative
for any company separately from the other members The Association had never
been designed to bargain as agent for individual employers , and LSW had no reason
to believe that it had been. Even after having been informed by the Association that
it was not the designated representative of separate companies for individual bar-
gaining, and could only bargain as a group,68 LSW continued to meet with the
representatives of the Association in bargaining sessions. It is apparent , therefore,
that the statements made at the July 1 and subsequent meetings that LSW was bar-
gaining with the representative of separate employers were made for legal effect
only and were made with no serious intent of disturbing the possibility of an agree-
ment with the Association . I view the asserted legal position of LSW as an attempt,
ex post facto , to discredit the Association in its claim to have used the lockout
defensively for the purpose of maintaining its solidarity.
65 This is particularly evident from the letter distributed by Hartley following the
caucus, from Hartley's remark about having got rid of the technicalities , and from the
fact that the LSW began to outline its demands
66 The refusal by the several members of the Association to bargain separately was not
alleged in the complaint to be a refusal to bargain.
THE TOPEKA GROCERS MANAGEMENT ASSN., ETC. 961
The General Counsel (presumably granting , for the sake of argument , that the
Association was so organized as to have the right to use a lockout) contends that
the lockout was used unnecessarily (and therefore not within the scope of the Buf-
falo Linen doctrine) and that this is demonstrated by the fact that the lockout was
terminated on August 7, 1963, before the end of the strike. I have not seen any
authority which holds that the use of a defensive lockout is illegal if there is any
other pressure tactic to which members of an employers' association might legally
resort in combatting a selective strike. Even if the Association might, at the outset
of the lockout, have instead threatened unilateral institution of the Association's last
offer, such threat, at that time, might have been of little effect. Conditions in bar-
gaining had changed by August 4. The Association had offered enough higher
increases by that time to make the threat unilaterally to put such increases into effect
more potent. I find that the termination of the lockout before the end of the strike
does not prove that the Association resorted unnecessarily, or other than defensively,
to the use of a lockout at the outset.
The entire picture presented by the evidence in this case is one of two colossi (the
Association on one side, the two unions on the other) engaged in a great tug of war,
with each using as much weight and force as was available but with each cognizant
of the rules of the game and attempting to stay within them. On the entire evidence,
I conclude and find that the Respondents did not make illegal use of a lockout but
confined its use to that sanctioned by the Board in its decision in Buffalo Linen Sup-
ply Company, et al., 109 NLRB 447, 448, where the Board said:
... we think the more reasonable inference is that, although not specifically
announced by the Union, the strike against the one employer necessarily car-
ried with it an implicit threat of future strike action against any or all of the
other members of the Association. For, the Union's action represents a simi-
lar technique of exerting economic pressure to atomize the employer solidarity
which is the fundamental aim of the multiemployer bargaining relationship.
The calculated purpose of maintaining a strike against one employer and threat-
ening to strike others in the employer group at future times is to cause succes-
sive and individual employer capitulations. Therefore, and in the absence of
any independent evidence of antiunion motivation, we find that the Respond-
ents' action in shutting their plants until termination of the strike at Frontier
was defensive and privileged in nature, rather than retaliatory and unlawful.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, I recommend that the
complaint be dismissed in its entirety.
The Topeka Grocers Management Association , Harry's IGA Food
Center, Butner IGA Foodliner , Falley's Market , Inc., Russ's
Market, Dibble's Grocery Co., Dibble 's Fairlawn Plaza, and Dib-
ble's Holiday Square Supermarket and Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO,
Local Union 576. Case No. 17-CA-391. November 16, 1965
SUPPLEMENTAL DECISION AND ORDER
On January 13, 1965, the National Labor Relations Board issued
its Decision and Order in this case.' The Board adopted the Trial
Examiner's findings, conclusions, and recommendations, but disav-;,w-d
any reliance upon the Trial Examiner's rationale based upon ,lohtr.
Brown, et al. d b %a Brown Food Store 2 at that time pending in the
1150 NLRL 938.
2137 NLRB 73, enforcement denied 319 F. 2d 7 (C.A. 10), affd. 380 U.S. 278.
155 NLRB No. 79.