Timber Products Co.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 862 (N.L.R.B. 1986)

862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rockwood & Company and W . H. Gonyea Trust No.
1-17 d/b/a Timber Products Co. and Local 3-6
International Woodworkers of America, AFL-
CIO, CLC. Cases 36-CA-4795 and 36-CA-
4826
30 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 27 December 1985 Administrative Law
Judge Burton Litvack issued the attached decision.
The Respondent filed exceptions and a motion to
abate, along with a supporting brief, and the
Charging Party filed cross-exceptions and an an-
swering brief. The General Counsel filed a re-
sponse to the Respondent's motion to abate.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs 1 and
has decided to affirm the judge 's rulings, findings 2
1 The Respondent filed a motion to abate in which it argues that "en-
forcement" in this case ought to be delayed until such time as Case 36-
CA-4576 (277 NLRB 769 ( 1985)), is resolved . The Respondent asserts
that, should a motion for reconsideration that was pending before the
Board in that case at the time of the filing of the motion to abate in the
instant proceeding be denied , it expected to appeal the Board 's decision
to the United States Court of Appeals for the Ninth Circuit. The Re-
spondent argues that a reversal of the Board 's decision in the earlier pro-
ceeding would cast into doubt the validity of the judge's decision in this
case In addition , the Respondent questions whether the present decision
is a nullity because of the merger of the Charging Party , Local 3-6,
International Woodworkers, and Local 3-436, International Woodwork-
ers, subsequent to the hearings in both proceedings. The Respondent had
also raised this union-successorship issue in its motion for reconsideration
in Case 36-CA-4576
On 21 April 1986 the Board issued an unpublished order denying the
Respondent's motion for reconsideration in Case 36-CA-4576 As noted
in that order, the Board has found the issue of union successorship appro-
priate for determination in a backpay proceeding , and the question of
whether Local 3-436, International Woodworkers, is the successor to
Local 3-6, International Woodworkers, was deferred to the compliance
stage of the proceeding . See Sheet Metal Workers Local 13, 266 NLRB
59, 60 (1983) We find that this issue , which arose subsequent to the oc-
currence of the Respondent 's unfair labor practices herein, does not war-
rant abatement of our review of the judge's decision in this proceeding.
Finally, the fact that the Respondent may seek court review of our deci-
sion in the earlier proceeding does not warrant suspending action in this
case Cf Keller Aluminum Chairs Southern , 173 NLRB 947 ( 1968), and
cases cited therein at fn 14 (the pendency of collateral litigation does not
suspend a respondent 's duty to bargain under Sec. 8(a)(5)) Accordingly,
we deny the Respondent's motion to abate.
2 We correct the judge's findings to reflect that David Paxson (rather
than David Paton) and Ralph Southard (rather than Ralph Southam)
were former strikers who were recalled after 13 September 1984 and
were assigned as seniority dates the dates on which they were recalled to
permanent positions.
8 In adopting the judge 's conclusion that the Respondent violated Sec.
8(a)(S) and (1) of the Act by withdrawing recognition from the Union at
a time when it was unlawfully refusing to execute and abide by a previ-
ously agreed -upon, enforceable contract , we find it unnecessary to pass
on his discussion regarding whether employee petitions caused the Re-
spondent to have a good-faith doubt of continuing majority status or
what the Respondent 's rights would be in the absence of a contract
and conclusions3 and to adopt the recommended
Order as modified.4
The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by failing to
recall former strikers Terry Ragan, Gerald Clouse,
and Terry Johnson in late October 1984 and com-
bining them with previously recalled former striker
Tim Smith, who had applied for the position, to
form a newly established swing shift spreader
crew. The unreinstated strikers were entitled to re-
instatement to any available jobs for which they
were qualified, and the Respondent had never
brought in an outside crew to operate the spreader
machines before the strike but had always formed
new crews from its existing employee complement.
Based on his assessment of the credibility of the
witnesses, the judge concluded that the Respondent
had failed to establish that the unreinstated former
strikers and Smith were not qualified to do the
work, as the Respondent claims, and thus found
that the Respondent failed to sustain its burden of
proof that its failures to reinstate former strikers
Ragan, Clouse, and Johnson to the spreader crew
were for legitimate and substantial business reasons.
The evidence further indicated that the Respondent
would not have utilized one, two, or three of the
named individuals and combined them with new
hires to form a speader crew, and considered them
only as a "crew" rather than individually. Thus,
previously reinstated former striker Smith was also
discriminated against by the Respondent's refusal
to utilize the unreinstated former strikers as he
would have made up the fourth member of the
crew.
As found by the judge, the Respondent decided
to bring in an outside crew and then, because of its
obligation to instead form a crew from the unrein-
stated strikers, attempted to justify this action after
the fact by claiming that the unreinstated strikers
and Smith were unqualified. Accordingly, we
agree with the judge, for the reasons stated by him,
that the Respondent discriminated against Ragan,
Clouse, and Johnson in violation of Section 8(a)(3)
and (1) of the Act by failing to reinstate them to
available spreader crew positions for which they
were qualified, and discriminated against reinstated
former striker Smith by failing to transfer him to
fill out the crew of former strikers. We disagree,
however, with the judge's recommended remedy
for these violations.
The judge recommended that Ragan, Clouse,
and Johnson be made whole for any wages and
4 Consistent with his unfair labor practice findings, we have added to
the judge's recommended Order a specific requirement that the Respond-
ent cease and desist from limiting the Union's right of access to its plant
281 NLRB No. 117
ROCKWOOD & CO. 863
benefits lost from 22 October 1984 until the date of
their eventual reinstatements6 and that Ragan,
Clouse , Johnson, and Smith be made whole for any
wages lost as a result of being deprived of the op-
portunity to work on the spreader machine from 22
October 1984 until the date of his decision. The
judge further recommended that the Respondent be
ordered to afford these four employees preferential
consideration for transfer to spreader machine jobs
if they so desire. The Charging Party excepted to
the judge 's recommendation that backpay be cut
off as of the date of his decision , and to his failure
to order the Respondent to offer the discriminatees
immediate offers of transfers to spreader machine
jobs . We find merit to the Charging Party 's excep-
tions.
Backpay to an employee whom an employer has
wrongfully refused to reinstate normally terminates
on the offer of reinstatement to the employee, and
an employee wrongfully denied an opportunity for
promotion is entitled to backpay until he is given
the opportunity for promotion that should have
been accorded him.6 We perceive no reason here
why backpay should be cut off as of the date of the
judge's decision , and do not adopt that recommen-
dation . Rather , we find that backpay for the four
discriminatees, to be computed in the manner set
forth by the judge, should run from 22 October
1984 when they were wrongfully denied the oppor-
tunity to form a spreader crew until the Respond-
ent offers each an opportunity to transfer to a
spreader position . Further, we agree with the
Charging Party that Ragan , Clouse , Johnson, and
Smith are entitled to immediate offers to form a
new spreader crew , displacing, if necessary, any in-
cumbent swing shift spreader machine crew. Only
in this way can the status quo ante be restored.
In addition , in order to remedy unilateral
changes instituted by the Respondent about 13 Sep-
tember 1984 , the judge recommended that the Re-
spondent reinstitute the terms and conditions of
employment of the employees that were in effect
immediately prior to those changes. However, as
we have found in a prior decision that the Re-
spondent was obligated to give retroactive effect to
a collective-bargaining agreement reached by the
parties on 11 October 1983 , which did not expire
until 31 May 1986 , we shall instead require that the
Respondent reinstitute the terms and conditions of
° It would appear from record testimony that Terry Johnson may have
been reinstated to a permanent position on 22 October 1984, and that
Gerald Clouse was placed in a temporary position without full employee
benefits on that date . We leave determinations regarding benefits which
may have been lost by these employees by virtue of their having been
denied the spreader machine jobs to the compliance stage of the proceed-
ing
°
Bralco
Metals, 227 NLRB 973 (1977); Hollywood Brands, 169 NLRB
691 (1968).
employment provided by that contract as ordered
in our prior decision .7 The employees shall be
made whole in a manner consistent with Board
policy as stated in Ogle Protection Service, 183
NLRB 682 (1970), enfd . 444 F.2d 502 (6th Cir.
1971), with interest thereon as prescribed in Florida
Steel Corp., 231 NLRB 651 (1977).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Rockwood & Company and W. H.
Gonyea Trust No. 1-17 d/b/a Timber Products
Company, Medford, Oregon , its officers , agents,
successors, and assigns, shall take the action set
forth in the Order as modified.
1. Insert the following as paragraph 1(b) and re-
letter the subsequent paragraphs.
"(b) Unilaterally, without giving prior notice to
or affording the Union an opportunity to bargain,
limiting the Union's right of access to its plant."
2. Substitute the following for paragraph 2(b).
"(b) Reinstate the terms and conditions of em-
ployment of the employees in the above appropri-
ate unit that are provided in the parties ' collective-
bargaining agreement reached on 11 October 1983,
and make said employees whole for any wages and
benefits lost, in the manner set forth in the deci-
sion, as a result of its unlawful unilateral changes."
3. Substitute the following for paragraph 2(e).
"(e) Reimburse employees Gerald Clouse, Terry
Ragan, and Terry Johnson for any wages or other
benefits lost in the manner set forth in the remedy
section of the judge's decision ; make Clouse,
Ragan, Johnson , and Tim Smith whole for any
wages lost for the period of time each was denied
work on the spreader machine in the manner set
7 In Timber Products Co ., 277 NLRB 769 (1985), we ordered the Re-
spondent, inter alia, to execute and give retroactive effect to the collec-
tive-bargaining agreement reached by the parties on 11 October 1983 on
request of the Union . Our order further provided , should no request be
made by the Union, that the Respondent bargain , on request , with the
Union and embody in a signed agreement any understanding reached.
The Charging Party then filed a motion to amend order , requesting that
the Board add to its order a provision specifically requiring the Respond-
ent to make whole employees for losses incurred as a result of the Re-
spondent's failure to sign and abide by the terms of its agreement with
the Union . Noting that its previous order encompassed within its terms
the requirement that the employees be made whole for losses suffered as
a result of the Respondent's unlawful conduct, the Board, nonetheless,
clarified its order as requested by the Charging Party . Thus, on 21 April
1986, the Board issued an unpublished order clarifying its order by di-
recting that the Respondent execute a collective -bargaining agreement
embodying the terms and conditions to which the parties had agreed on
11 October 1983 , and apply retroactively the terms of that agreement,
making whole employees for losses suffered as a result of its failure to
execute and abide by the agreement In the unpublished order , we noted
that the Charging Party's motion indicated that it sought to have the Re-
spondent execute and give retroactive effect to the parties ' agreement
rather than requesting that the Respondent bargain anew.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in the remedy section of the judge's decision;
offer each of these employees immediate transfer to
the swing shift spreader machine crew, displacing,
if necessary, new employees hired to form a swing
shift spreader crew on 22 October 1984."
4. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT withdraw recognition from and
refuse to recognize and bargain with Local 3-6,
International Woodworkers of America, AFL-
CIO, CLC, as the exclusive representative for col-
lective bargaining of the following appropriate
unit:
All our employees, including temporary and
part time employees; excluding office clerical
employees, professional employees, guards,
and supervisors as defined in the National
Labor Relations Act.
WE WILL NOT unilaterally, and without giving
prior notice to or affording the Union an opportu-
nity to bargain, limit the Union's right of access to
our plant.
WE WILL NOT unilaterally, and without giving
prior notice to and affording the above Union the
opportunity to bargain, change the terms and con-
ditions of employment of our employees in the
above bargaining unit.
WE WILL NOT discriminate against former eco-
nomic strikers, who were reinstated subsequent to
September 13, 1984, by denying them their pres-
trike seniority, treating them as new employees,
and paying them wages below what they earned
prior to the strike.
WE WILL NOT terminate the employment, prefer-
ential reinstatement , and seniority rights of former
economic strikers who were on layoff status at the
time of the 1983 strike, to whom we sent letters so-
liciting their return during the strike, and who en-
gaged in picketing during the strike, manifesting
their intent to join the strike and not return to
work.
WE WILL NOT delay the reinstatement of former
economic strikers and discriminate against them by
not affording them the opportunity of recall to jobs
for which they are qualified to perform.
WE WILL NOT terminate the employment, prefer-
ential reinstatement , or seniority rights of any
former economic strikers.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain
with the above Union as the collective-bargaining
representative of the above bargaining unit employ-
ees.
WE WILL reinstate the terms and conditions of
employment of the above employees that are pro-
vided in our collective-bargaining agreement
reached with the Union on 11 October 1983, and
make these employees whole, with interest, for any
wage and benefits lost as a result of our unlawful
unilateral changes.
WE WILL restore to each former economic strik-
er who was reinstated subsequent to September 13,
1984, his prestrike company seniority and make
him whole, with interest, for any wages and bene-
fits lost as result of our discrimination against him.
WE WILL rescind our termination of the employ-
ment , preferential reinstatement and seniority rights
of the laid-off individuals who were found to have
participated in the 1983 strike; offer immediate and
full reinstatement to those who would have been
recalled since September 13, 1984; and make the
latter employees whole, with interest, for any
wages and benefits lost.
WE WILL reimburse, with interest, employees
Gerald Clouse, Terry Ragan, and Terry Johnson
for any wages or benefits lost as a result of delay-
ing their reinstatement; make Clouse, Ragan, John-
son, and Tim Smith whole, with interest, for any
wages lost as a result of not permitting them to
form a spreader machine crew in October 1984;
and offer the individuals immediate transfer to
swing shift spreader machine jobs, displacing, if
necessary, new employees hired to form a swing
shift spreader machine crew on 22 October 1984.
WE WILL rescind our termination of the employ-
ment, preferential reinstatement, and seniority
rights of former striker, Jose Acosta; offer him im-
mediate and full reinstatement if he would have
been recalled to work subsequent to October 4,
1984; and, in the event of such, make him whole,
with interest, for wages lost as a result of our un-
lawful conduct.
ROCKWOOD & COMPANY AND W. H.
GONYEA TRUST No. 1-17 D/B/A
TIMBER PRODUCTS CO.
Richard V Stratton, Esq., for the General Counsel.
Phil Can Esq., of Eugene, Oregon, for the Respondent.
ROCKWOOD & CO. 865
Lynn-Marie Crider, Esq., of Gladstone, Oregon, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. On
September 28 and November 1, 1984, respectively, Local
3-6, International Woodworkers of America, AFL-CIO,
CLC (the Union) filed an original and a first amended
unfair labor practice charge in Case 36-CA-4795 and, on
November 28, 1984, and January 15, 1985, the Union
filed an original and a first amended unfair labor practice
charge in Case 36-CA-4826. Based on the charges, the
Regional Director for Region 19 of the National Labor
Relations Board, issued an amended consolidated com-
plaint on May 23, 1985, alleging that Rockwood Compa-
ny and W. H. Gonyea Trust No. 1-17 d/b/a Timber
Products Co. (Respondent) engaged in conduct violative
of Section 8(a)(1), (3), and (5) of the National Labor Re-
lations Act (the Act). Respondent timely filed an answer,
denying the commission of any unfair labor practices.
Pursuant to a notice of hearing, this proceeding was tried
before me on June 25 and 26, 1985, in Medford, Oregon.
During the trial, all parties were afforded the opportuni-
ty to examine and cross-examine witnesses, to offer into
the record all relevant evidence, to argue their legal po-
sitions orally, and to file posthearing briefs. In fact, all
parties filed such briefs, which were carefully consid-
ered. Accordingly, based on the record as a whole, in-
cluding the posthearing briefs and my observation of the
demeanor of the several witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Oregon partnership with an office
and place of business in Medford, Oregon, where it is en-
gaged in the business of manufacturing plywood, parti-
cleboard, and other wood products. During the 12-
month period immediately preceding the issuance of the
instant amended consolidated complaint, which period is
representative, Respondent, in the course and conduct of
its above-described business operations, sold and shipped
goods and products, valued in excess of $50,000, directly
to customers located outisde the State of Oregon, Re-
spondent admits that, at all times material, it has been an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that the Union has been at all times
material a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. ISSUES
The amended consolidated complaint alleges that Re-
spondent violated Section 8(a)(1), (3), and (5) of the Act
by withdrawing recognition from the Union and by uni-
laterally, without giving notice to the Union or affording
it an opportunity to bargain, implementing changes in
the terms and conditions of employment of its employees
who were, and continue to be, represented by the Union
and changing the status and working conditions of
former economic strikers who had made an uncondition-
al offer to return to work. Respondent, on the other
hand, asserts that the conduct was lawful inasmuch as it
validly withdrew recognition from the Union, as the bar-
gaining representative of certain of its employees, 1 week
prior to the implementation of the changes. The General
Counsel and the Charging Party contest the propriety of
the withdrawal of recognition and allege that, even if the
withdrawal of recognition was proper, Respondent's
aforementioned unilateral changes unlawfully discrimi-
nated against those former economic strikers who had
not as yet been recalled to work. The amended consoli-
dated complaint next alleges that Respondent failed and
refused to recall certain former economic strikers, who
had made unconditional offers to return, to work in vio-
lation of Section 8(a)(1), (3), and (5) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Respondent, whose headquarters office is located in
Springfield, Oregon, operates a plant/mill facility in
Medford , Oregon , at which it manufactures hardwood
plywood, particleboard, and other wood products.
Joseph Gonyea is the general manager of Respondent
and is responsible for its overall operations ; Alex Austin
is the resident manager of the Medford facility and re-
sponsible for its day-to -day operations; and Gary John-
son is the employee relations director for Respondent.
The record establishes that the Union and Respondent
have had a collective -bargaining relationship since 1966,
with the former as the collective-bargaining representa-
tive of all of Respondent's employees ; excluding its
office clerical and professional employees , guards, and
statutory supervisors, and that the most recent collective-
bargaining agreement between the parties expired by its
terms on May 31 , 1983 . Negotiations for a successor con-
tract were unsuccessful and, on August 19, 1983 , the em-
ployees who were represented by the Union engaged in
a concerted work stoppage and strike. The strike, which
was economically motivated, and the accompanying
picketing continued until September 28, 1983 , at which
time the Union , on behalf of the striking employees, in
writing, made an unconditional offer to return to work.
The aforementioned bargaining continued during and
after the strike , with the Union indicating its acceptance
of an outstanding final offer on October 11, 1983.
Whether the parties had in fact reached an enforceable
agreement and whether Respondent was obligated to
execute and abide by it and certain other acts and con-
duct of Respondent during and subsequent to the strike
were the subjects of an original and amended unfair
labor practice charge in Case 36 -CA-4576, of a com-
plaint issued by the Regional Director for Region 19, of
a hearing before Administrative Law Judge Russell L.
Stevens, and of a Decision and Order , reported at 277
NLRB 769, issued by the Board on November 26, 1985.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reversing portions of and affirming other portions of the
judge 's decision, the Board found that Respondent en-
gaged in conduct violative of Section 8(a)(1) and (5) of
the Act by failing and refusing to execute and abide by a
3-year contract, negotiated and agreed on by the Union,
and by implementing work rule changes and new em-
ployee dental and vision plans , covering bargaining unit
employees , without notice to, or bargaining with, the
Union, and of Section 8(a)(1) of the Act by conditioning
reinstatement of economic strikers on their resignation
from the Union.
The record further establishes that the normal comple-
ment at Respondent's Medford facility totals approxi-
mately 160 bargaining unit employees but that, at the
commencement of the aforementioned strike , approxi-
mately 54 production workers were on layoff status due
to the then recessionary state of the wood products in-
dustry. Notwithstanding the work stoppage , Respondent
endeavored to maintain production at the Medford plant
by hiring strike replacements and by soliciting strikers
and those on layoff status to return to work. Thus, on
September 21, 1983 , Respondent sent the following
letter, General Counsel 's Exhibit 5, signed by Alex
Austin, to all such employees:
Dear Timber Products Employees,
You are now aware that talks between Timber
Products Co. and [the Union] regarding contract re-
newal are at an impasse . We made an attempt to
reconcile our differences but unfortunately we
failed.
We are not in a position we must make other
plans for plant operation. We are taking applications
for and will be hiring permanent replacements. We
suggest you contact us about returning , before a re-
placement is hired.
An early decision on your part is in the best in-
terests of all concerned.
Although it is unclear whether such was prior to or sub-
sequent to the sending of the above letter, 57 striking
employees abandoned the strike and returned to work
and two laid-off employees also returned to work. Of
these individuals, 52 former strikers resigned their mem-
bership in the Union and one of those returning from
layoff did likewise. It is also unclear whether each of
these resignations was as a result of Respondent 's unlaw-
ful demands , attributed to Gary Johnson and a supervi-
sor, Doug Knokey , that returning employees resign from
the Union before being permitted to work. Finally with
regard to those employees laid off prior to the com-
mencement of the strike, Dennis Dawson , the Union's
business agent and financial secretary , testified that "over
20" of the individuals engaged in some picketing during
the period of the strike ; however, he failed to identify
any of them to Respondent subsequent to the strike.
As to the unilateral changes in bargaining unit employ-
ees' terms and conditions of employment , found by the
Board to have been violative of Section 8(a)(1) and (5) of
the Act, the record establishes that these occurred short-
ly before and immediately after the end of the strike and
that they entailed changing a work rule so that bargain-
ing unit employees who worked a 4-day week no longer
were permitted to bump less senior employees for a fifth
day of work, implementing new dental and division in-
surance coverage for the employees, and changing an-
other work rule so that employees whose machines were
in need of repair would have to remain at work perform-
ing other tasks rather than having the option of either
doing other work or going home . Respondent admitted
to the initial two violations and failed to deny the record
evidence concerning the latter . However, during surre-
buttal herein , Gary Johnson testified, without contradic-
tion, that , prior to the hearing in Case 36-CA-4576, the
Union and Respondent bargained and reached agreement
over a new employees ' dental insurance plan, which was
implemented and remains in effect. Johnson further testi-
fied that, prior to the hearing, the new bumping rule was
rescinded and that it was not reimplemented until institu-
tion of the new employee handbook in September 1984.
2. The withdrawal of recognition
There is no dispute herein that, in an apparent effort to
settle the unfair labor practice allegations involved in
Administrative Law Judge Stevens' May 3 , 19841 deci-
sion, Respondent submitted "a complete and final agree-
ment," on a nonnegotiable , take-it-or-leave-it basis, to the
Union on August 1.2 Thereafter,3 on August 7, repre-
sentatives of the Union met with officials of Respondent
at the latter's Medford offices, which are located adja-
cent to the plant facility . According to the uncontrovert-
ed testimony of Union President Hicks, the meeting was
"informative," with the Union desiring clarification of
several provisions . Several such articles , including union
security and seniority , were unacceptable to the Union.
Hicks explained the Union's objections to Respondent's
representatives, and Gonyea agreed to alter the seniority
provision, permitting workers who were on layoff status
to retain their company seniority for 1 year . Hicks there-
upon said the entire contract proposal would be submit-
ted to the membership for ratification or rejection.
As promised , the Union scheduled ratification meet-
ings for 1 and 7 p.m. on August 9. Michael Hicks testi-
fied that he was approached by several employees, who
were not members of the Union, in the morning at the
plant and that their common concern was that non-
members were not going to be permitted to participate in
the ratification vote. Of the option that they should be
' Unless otherwise stated, from this point in my decision until the con-
clusion , all dates will be in calendar year 1984.
2 The submission of this contract proposal by the Respondent had, as
its genesis, a question to Dawson by Joseph Gonyea at a July 12 griev-
ance settlement meeting as to whether the Union was ready to resume
contract negotiations . Fearing that Gonyea's question presaged future
unilateral changes in employee working conditions, the Union 's executive
board instructed Michael Hicks , the president of the Union and an em-
ployee of Respondent , to explain to Gonyea that the Union was not re-
fusing to negotiate but felt it necessary to maintain its legal position that
the parties had previously reached a complete agreement on a new con-
tract . Thereafter , Hicks, who had been recalled by Respondent to work,
met twice with Gonyea and , after listening to Hicks ' explanation of the
Union's procedural problem , the latter proposed what resulted in the sub-
mission of Respondent 's August 1 contract offer.
9 The Union had been given a deadline of 5 p.m. on August 10 to
accept the contract proposal-otherwise , "it will be deemed withdrawn."
ROCKWOOD & CO. 867
allowed to vote, Hicks told these individuals that he was
obligated to represent all employees, and "I wouldn't be
doing my job . . . if I didn't allow them to vote." In any
event, the meetings occurred at the scheduled times on
August 9. Both Hicks and Dawson attended the after-
noon session.' Approximately 35 employees attended,
and it began with an extensive discussion of the merits of
the contract proposal. After this, a motion was raised to
permit only members in good standing of the Union to
vote on ratification. A majority voted in favor of the
motion; however, according to Hicks, as a result "there
was mass confusion." Discussion ensued over the need
for an extension of time so that the membership could
properly consider the proposed contract, and a motion
was raised to amend the motion that had been passed
earlier in the session, "to not have any vote at all until
we got an extension of time from the company." While
this motion was also passed by majority vote, the testi-
mony of Dawson makes it clear that the exact meaning
of this latter vote was not understood by those in attend-
ance .5 According to him, the identical motions were pro-
posed and passed by majority vote at the evening ses-
sion.
Whatever may have been the intended result of the
second motion at each ratification session that day, what
was apparently reported to those nonmember employees
at the plant who failed to attend either meeting was that
nonmembers would not be allowed to participate in the
contract ratification process. According to one witness,
"word got around pretty fast." Union President Hicks
believed such to have been the outcome of the afternoon
meeting" as, on leaving it, Hicks returned to the plant
and informed Employee Relations Director Gary John-
son that those at the meeting had voted not to permit
anyone who was not a member in good standing to vote
on ratification and to seek an extension of time. Perhaps
as a result of what transpired at the two union meetings,
later that day, and on August 10 Hicks received approxi-
mately 24 or 25 marked pieces of paper from employees,
with the slips of paper containing the employees' names
and their votes on either accepting or rejecting Respond-
ent's contract proposal. Although unclear, it appears that
these were the ratification votes of employees who were
not members of the Union. Thus, Hicks testified that he
had been given these ballots as "people had come and
asked me about the voting; I had basically stated that I
felt I had to represent everybody and that I would not in
good conscience refuse a vote." Further exacerbating the
fears and concerns of the nonmember employees was the
posting of a notice, signed by Gary Johnson, on a plant
bulletin board on August 10. The document, General
Counsel's Exhibit 14, reads:
* I have utilized the uncontroverted and corroborative testimony of
Dawson and Hicks about what transpired at the ratification meetings.
a President Hicks testified that he left the ratification meeting prior to
the vote on the second motion.
6 Hicks apparently changed his mind on this point , telling the execu-
tive board of the Union that he interpreted the second votes at the meet-
ings as having nullified the initial votes . He admitted , however, not tell-
ing employees at the plant of his new opinion.
We have been advised by Local 3-6 that they
will only allow members in good standing to vote
on the company's offer.
We assume you know that if the offer is not ac-
cepted by August 10 . . . it will be with-
drawn....
We regret that the union, which is obligated by
law to represent all of you, has chosen to deprive
most of you of any say in your own future.
Finally, adding a note of confusion to this situation was a
portion of a letter, dated August 10, from Dennis
Dawson to Alex Austin in which the former, following
the apparent dictates of the second motion that had been
passed at the previous day's meetings, informed the resi-
dent manager of the plant that the Union was not able to
either accept or reject Respondent's contract proposal
due to insufficient time for proper consideration and for
any decision "whether to permit non-member employees
to vote on the agreement." Dawson closed with the fol-
lowing statement: "We . . . are willing to consider the
possibility of permitting [nonmember employees] to vote
on any proposed agreement." A copy of the letter, as
with the Johnson letter, was posted by Dawson at the
plant but not until the following Monday, August 13.
On September 6, Joseph Gonyea wrote a letter to
Dawson, informing the Union's financial secretary that
Respondent "no longer recognizes" the Union as the col-
lective-bargaining representative of its employees and
stating as a basis for the withdrawal of recognition "a
good-faith doubt that Local 3-6 represent[ed] a majority
of its employees." During the time period from August
13 through September 6, despite requests from the Union
for an additional 14 days during which to consider the
proposed contract, Respondent adhered to the estab-
lished terms of its August 1 offer and, by letter dated
August 17, withdrew the contract proposal according to
its terms . Meanwhile, no less than four different employ-
ee petitions were being circulated at the plant among the
bargaining unit workers. One was directed to Union
President Hicks, supporting him to represent those who
executed it. Another, according to employee Clyde
Goble, "had something to do about . . . wanting to be
able to vote on the proposal." A third petition, testified
employee Mario Gonzalez, concerned "dissatisfaction
with the doings of the Union." The fourth petition, the
ultimate and sole source for Respondent's asserted
"good-faith doubt," was distributed by employee Bill
Chase. The petition, Respondent's Exhibit 5, actually
consists of four identical sheets of paper each with a
printed heading as follows:
To: Joe Gonyea, General Manager of Timer Prod-
ucts Co.
Re: IWA 3-6; Labor contract offer
We, the undersigned are Timber Products em-
ployees currently working in the Medford mill and
would like to express our dissatisfaction and disen-
chantment over the so-called "bargaining rights" of
the minority of Timber Products employees belong-
ing to [the Union]. We feel that at no time in the
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
past eighteen months has this union represented us
in a responsible manner and now, in the most recent
contract offer, has totally denied us, the majority of
employees, any voice whatsoever. We must there-
fore insist on a majority rule basis; that [the Union]
not be considered our bargaining agent.
Analysis of the petition reveals that it contains 75 signa-
tures and that approximately 70 of these were obtained
on August 14. With regard to the purpose of the petition,
James Baize, another employee, testified that Chase solic-
ited his signature on three occasions, saying each time
that "he wanted me to sign it ... because he figured
that . . . the people who signed it should have the right
to vote for the contract." Whatever the petition's pur-
pose, on September 4, Chase handed the four-page docu-
ment, with signatures and dates below the printed head-
ing on each page, to Gary Johnson. According to the
latter, who denied any involvement in the petition proc-
ess, "I was just out there in the shop where he worked,
and he approached me and said . . . 'I have something I
would like you to deliver to Mr. Gonyea."' Thereupon,
Johnson took the four-page petition to the plant office,
where Gonyea and Austin were working, and presented
the document to the former. Gonyea testified that he ex-
amined the petition and, in his own words, immediately
formulated a "reasonable doubt as to whether [the
Union] represented the majority of our employees."
Gonyea thereupon gave the petition to Austin for the
latter's examination as he was "much more familiar with
all the employees [sic] names than I am." Next, the two
company officials counted the signatures , estimated that
these represented more than 50 percent of employees on
the payroll, and thereupon telephoned Respondent's at-
torney. Later that day, Austin gave a copy of the peti-
tion to Johnson; he subsequently checked the names rep-
resented by the signatures against Respondent's payroll
list as of September 6.
The parties stipulated that, as of September 4, there
were 136 employees on Respondent's payroll; that there
were 75 employee signatures on the Chase petition; that,
as of September 4, there were 33 unrecalled, former
strikers; that, considering just the employees actually
working, the 75 signatures comprise 55 percent of the
bargaining unit complement; and that, if unrecalled strik-
ers are included in the employee complement, the signa-
tures comprise 44 percent of the total. Regarding how
Respondent calculated the percentages, which are the
basis of the above-described September 6 withdrawal of
recognition letter, Johnson testified, "I don't recall how
we figured out the majority; all I did was provide the
numbers." Neither Gonyea nor Austin testified on this
point. Bearing on Respondent's asserted good-faith doubt
is the matter of its business expansion plans in the fall of
1984. In this regard, Michael Hicks testified that Alex
Austin approached him in the plant about August 17 and
commented that "we should have signed the proposal be-
cause they wanted to bring more people back to work."
That such was, in fact, Respondent's intent is manifest
from the testimony of Joseph Gonyea who, while testify-
ing that the wood products market was "terrible" from
the fall of 1983 until the fall of 1984, stated that Re-
spondent began increasing its hardwood plywood pro-
duction in October 1984 as "part of an overall plan that
had actually started in the spring . . . in an effort, over a
period of time to expand our customer base, and get into
a broader range of hardwood plywood . . . to become a
dominant force in the hardwood plywood market."
Indeed, Respondent's expansion proceeded at such a
rapid pace that, by February 1985, all former strikers had
been recalled to work. However, none of those on layoff
status at the time of strike and who did not work during
the strike has been recalled for work by Respondent.
3. Respondent' s unilateral changes after
September 6, 1984
Besides withdrawing recognition from the Union as
the bargaining representative of its employees on Sep-
tember 6, Respondent also severely restricted Dennis
Dawson's freedom of access to the plant on that date.
Thus, the expired collective-bargaining agreement pro-
vided that union officials, who were not employees of
Respondent, could arrange to enter the plant by contact-
ing the industrial relations manager and by obtaining a
pass. Dawson, who apparently is a full-time employee of
the Union, testified that prior to the 1983 strike, in actual
practice, he enjoyed "pretty free access, anytime I
wanted to enter the plant." He asserted that there were
no restrictions and that he could enter without challenge.
Subsequent to the strike, according to Dawson, "I was
allowed access to the plant by stopping at the company
office and signing . . . an admittance slip," which would
be given to him by a receptionist. Dawson, in turn,
would show this to a security guard. The union official
further stated that at no time was he required to seek the
permission of either Alex Austin or Gary Johnson before
entering the facility. Such free access to the plant was
changed by Joseph Gonyea in a second letter to Dawson
on September 6 where he stated "since [the Union] no
longer represents the employees of Timber Products Co.,
your only access to company property will be by pass
issued by Alex Austin or Gary Johnson." According to
Dawson, he followed Gonyea's new instructions on Sep-
tember 7; however, Austin refused to permit him to enter
the plant.
There is no dispute that, approximately I week after
withdrawing recognition, about September 13, Respond-
ent implemented a new employee handbook, which con-
cededly changed certain of the then existing terms and
conditions of employment of the bargaining unit employ-
ees. There is also no dispute that the handbook and the
new employment policies contained therein were unilat-
erally instituted by Respondent without notice to or bar-
gaining with the Union. Specifically as to the implement-
ed changes,' the handbook, General Counsel's Exhibit
' Inasmuch as Respondent concedes that the handbook was implement-
ed unilaterally and that such was unlawful if the withdrawal of recogni-
tion is deemed not proper, I have not attempted to exhaustively analyze
each and every change in past practice established by the handbook.
Those I have set forth were most obvious to me and to accord with those
highlighted by the parties
ROCKWOOD & CO.
15, sets forth a $7.28-per-hour base rate job wage rate, an
altered grievance procedure (one that provides no repre-
sentation for employees) from that established under the
expired collective-bargaining agreement , a new "solicita-
tion-distribution rule," and a different pension plan. Fur-
ther, the handbook reserves bulletin boards for the exclu-
sive use of Respondent; under the expired contract, the
Union was permitted to erect and to maintain bulletin
boards . The handbook established mandatory overtime
for maintenance workers; under the expired union con-
tract and thereafter , employees were permitted to refuse
overtime without fear of reprisal . Moreover, the new
handbook restricted the primacy of seniority by adding,
as an additional limitation to its effect, "the needs of the
company ." Previously , the only expressed limitation con-
cerned employees' ability to satisfactorily perform work.
Also, curtailments were required to be accomplished
consistent with the principle of seniority ; under the hand-
book, such may be accomplished "without regard to se-
niority ." Finally, as to seniority under the existing condi-
tions of employment , nothing was expressed about how
long laid-off employees retained their seniority rights; the
handbook limited retention of such to a period of "one
year only." As to the vacation eligibility rules, the hand-
book altered the existing definition of "continuous em-
ployment" to "1200 compensable hours during a vaca-
tion base year" from "employment . . . uninterrupted by
voluntary termination . . . retirement or discharge." Re-
garding the designation of "floating holidays," the hand-
book reserved to Respondent the choice of days; where-
as such had previously been the subject of bargaining.
With regard to the effect of the implementation of the
employee handbook on those former strikers not yet re-
called , the impact of its altered terms and conditions of
employment was most severe . Thus, the seniority provi-
sion states that "an employee rehired after a break in
service of more than one year shall be treated as a new
employee." In practice , as the record reveals, 21 former
strikers who were recalled after September 13 and who
had performed no work for Respondent since the con-
clusion of the strikes were assigned , as seniority dates,
the dates they were recalled to permanent positions.
Thus, Gerald Clouse, who had been employed by Re-
spondent for 9 years prior to the strike, was not recalled
to a permanent position until November 5 and was given
that date as his new seniority date . Likewise, Michael
Duro, who was a former striker and who had worked
for Respondent for 8 years prior to the strike , was not
recalled to a permanent position until January 14, 1985,
and was given that date as a seniority date . Further, all
former strikers who were recalled to permanent jobs
after implementation of the employee handbook were
given the new $7 .28 hourly wages and were not entitled
6 These are Jack Dailey , Daniel Deshane , Jimmie Henderson, David
Paton, Bruce Robertson, Ralph Southam, Jerry Wright, Darrell Camp-
bell, Terry Johnson , Michael Olsen , James Risher, Donna Williams,
George Williams, Gerald Clouse, Richard Guches, Earmil Johnson,
Terry Ragan , Michael Duro , Jose Luna , Dionisio Banuelos , and Stephen
Thayer.
9 The wage rate applied to anyone hired after August 19 , 1983, the day
on which the strike began, and to any employee recalled after a more
than 1-year break in service.
869
to shift differential pay. Also, several former strikers
were offered temporary jobs after implementation of the
handbook and were treated as new hires while doing
such work. According to one, Gerald Clouse, who ac-
cepted a temporary laborer job , Gary Johnson told him
on his first day back at work that "we had no bidding
rights, no seniority rights, and no gain of seniority as a
temporary worker ." Also, he was not entitled to health
insurance benefits and had no bumping or seniority privi-
leges . Another former striker , Terry Ragan, testified that
Johnson told him that , as a temporary worker , he would
have no seniority, vacation time , holiday pay, or medical
benefits and no bidding rights . Gary Johnson initially tes-
tified that job bids from temporary workers "were not
disallowed" but later admitted that "we ignore them"
and that temporary employees have no seniority rights to
exercise in the bidding procedure.
4. Respondent 's alleged failure to recall former
economic strikers
a. The White City spreader machine crew
The record establishes that essential to the production
of hardwood plywood is the operation of what is called
the spreader machine . Basically , a panel of hardwood
plywood consists of a core, comprised of layers of wood
panels that are glued together to a specified thickness
(the number of core panels varies with the desired thick-
ness of the plywood), and two "skins" of veneer overlay
material (termed "faces" and "backs"). The two veneer
skins and the wood panels that constitute the core are
initially glued together and then pressed to form a piece
of hardwood plywood. The glue application procedure
involves operation of the spreader machine into which
the wood core panels are fed and glue applied and
spread , covering both surfaces of the panel . The record
further establishes that four-man crews are utilized to op-
erate the machine to work with the core panels. One of
them, the "core feeder," feeds the core panels into the
machine and the other, the "core layer," catches the
panels and stacks core panels to attain the desired thick-
ness (one layer of core panel is necessary for a one-half-
inch thick panel of plywood and two panels constitute
the core of three-fourths-inch thick plywood). The other
two men are responsible for laying the face and back
wood veneer skins against the glue ladened core panels.
All witnesses agreed that teamwork is essential among
the new members . According to David Twedell, a fore-
man in the lay up and finish department in the plant's
plywood production are, "Those four men have to work
together like a machine . . . . If one is out of sinc, the
whole crew is out of sinc [sic]. It is very much a cooper-
ative effort." Twedell explained that speed is of the es-
sence as stacks of specified amounts of glued -together-
pieces of plywood must be placed in the hot presses and
as the applied glue hardens rapidly. t 0 The difficulty in
10 The glue must not harden prior to the glued-together panels being
placed in the hot presses . Depending on the capacity of the press , stacks
of either 27 or 30 pieces are placed in a press.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working quickly is that the core feeder and the core
layer must keep an accurate count of the panels neces-
sary to constitute a core and must make certain that the
wood panels are not damaged during the process. t ' Fi-
nally, spreader crews are awarded bonuses depending on
their daily output . The bonus is computed once a crew
lays a minimum of 60 ,000 feet of core wood a day. Alex
Austin testified that the maximum spreader machine
daily production is approximately 110,000 feet of core
wood and that the average is approximately 85,000 feet.
Substantial bonus money is lost by the crewmembers and
revenue is lost by Respondent if a spreader machine
crew lays only the minimum amount of plywood core
each day.
The record discloses that , pursuant to its plan to
expand production in the fall of 1984, Respondent, in
October , formed and began utilizing two additional
spreader machine crews to operate the machines during
the swing shift . According to Gary Johnson , the decision
to form these crews was made in August by the ply-
wood superintendent , John Rosendahl . Johnson testified
that a decision was made to start one crew by October 8
and that there was "an early posting " of bids in August
"to see how many spreader people were available that
we had working for us." Eventually , the four spreader
crew jobs were given to employees Dave Paxson, Bruce
Robertson , Jerry Wright, and Jack Dailey ; Johnson
stated that each was a former striker who had not, as
yet, been recalled for work.' 2 However , despite the
posting of bids, Johnson was unable to definitely state
whether any of the four former strikers had submitted
bids or whether they had been selected for the jobs off
the recall list . In any event , another decision was made
to start a second swing shift spreader crew on October
22. As before, bids were posted ; however , Rosendahl
deemed all those who bid , not qualified .' 3 Afterward,
according to Johnson , Rosendahl , Austin, and he dis-
cussed the bidding "because there was a big concern of
not having qualified people ," and, as a result, "I made a
list of the people who were either on layoff or were off
and didn't have an opportunity to see the bid, to see that
we weren't overlooking somebody , because they were
saying there weren 't any qualified bidders and so that
would mean we would have to look to the outside." In
compiling this list of employees , the first page of Re-
I I Mistakes in counting the panels constitute the core of a piece of ply-
wood result in pieces of an incorrect thickness . Such mistakes are known
as "mislay§" and apparently are the most common of spreader machine
mistakes . Pieces of plywood that are damaged to any extent are known as
"rejects." If of an improper thickness or damaged to any extent, the
market value of the plywood decreases by as much as 15 percent.
12 This testimony is corroborated by C.P . Exhs. 4 and 5 , which estab-
lish that Paxson , Wright, Robertson , and Jack Dailey were former strik-
ers and that each was given an October 8, 1984 seniority date.
Is Among the bidders was former striker Timothy Smith . The record
discloses that he had been recalled by Respondent shortly after the cessa-
tion of the strike for 3 weeks and that he had again been called back for
work in late September or early October as a forklift driver . Prior to
being recalled on the latter occasion , Smith testified, he became aware
that a spreader crew would be established on the swing shift . After re-
turning to work , having performed such work for a period of 2 months
in March and April 1981 , Smith submitted bids but was rejected . He fur-
ther testified that he spoke to his foreman and was told "there wasn't any
qualified people."
spondent's Exhibit 6(b), Johnson assertedly wrote down
the names of all individuals , including unrecalled strikers
and others , who were either not working or working on
a temporary basis for Respondent as of October 15 and
16,14 noted if the listed individual had no prior experi-
ence on the spreader machine ,' 5 and, if experienced, set
forth the dates on which he worked on the machine. t 6
Johnson further testified that , after compiling the list, "I
went to John Rosendahl to say that these people have
had experience , and John said , no, they are not experi-
enced . . . and I let him make the decision . I just wanted
to make sure if he had considered all the people with ex-
perience at this time ." He further testified that Rosen-
dahl's decison was not instantaneous and that "I think he
may have checked with somebody else." Asked how
much time elapsed before Rosendahl told him that none
of those listed was qualified , Johnson replied, "A short
period of time, either that day or the next."
There is no dispute that Rosendahl , with input from
Foreman Twedell , made the decisions that none of those
on Johnson's list was qualified to be a member of the
about-to-be-formed spreader crew . The position of the
General Counsel is that at least four former strikers (Tim
Smith , Terry Ragan, Gerald Clouse , and Terry John-
son)17 were both available and experienced and should
have been utilized by Respondent to make up the new
spreader machine crew , which was to commence work-
ing on October 22. The crux of the testimony of Rosen-
dahl is that he considered the above-named employees
and decided that they were not qualified to constitute a
spreader crew as "they are not qualified people to put
plys of veneer together to make plywood" based on
prior problems with mislays and rejects .' s Initially, with
14 The name of Terry Ragan, who was an unrecalled former economic
striker as of October 15, does not appear on this list.
This list did not include anyone who was on layoff status at the time of
the strike. Said Gary Johnson , "We didn't consider them employees of
Timber Products" in September when the employee handbook was im-
plemented.
15 Johnson characterized an individual as not experienced if his person-
nel file showed that "he had never received a spreader job and been
awarded it." He asserted the personnel records did not contain informa-
tion that an employee worked on the spreader machine "for a day or
something ." According to the witness, he "wouldn't consider anybody
[who worked sporadically on the spreader] qualified to be spreader."
Terry Ragan testified that, prior to the strike, he had experience on the
machine but such was "limited to two or three weeks of fill -in a day at a
time ." Also, on five or six occasions , on Fridays, he was able to bump
onto a spreader machine crew . Regarding that job , Ragan admitted,
"You do need a minimum amount of experience , and you do need a cer-
tain skill level ." He added , however, that he was qualified inasmuch as
"they don't let you bump onto another job unless you can fulfill their
basic needs." Ragan further testified that, while he had 7 years of prior
work experience for Respondent , his 2 or 3 weeks total experience on the
spreader machine was only during 1982 and 1983 and then not on consec-
utive days. Finally, Ragan stated that while bidding for the job on occa-
sion, he was never awarded that work.
16 Tim Smith, whose name was on the list and who had 2 months' ex-
perience on a spreader crew in 1981 , admitted that he "left" the job at
the time as he was not satisfied with the job 's earning potential and as "I
didn't like swing shift."
17 The names of Clouse and Johnson appear on the list that was pre-
pared by Gary Johnson. Further, as will be discussed below, each is
noted as having worked on the spreader machine.
18 Rosendahl contradicted Gary Johnson about when this decision was
reached . Thus, during cross -examination , Rosendahl asserted that he de-
cided that neither Ragan , Smith, Clouse , nor Terry Johnson was qualified
on the spreader at the time the initial new spreader crew was started.
ROCKWOOD & CO. 871
regard to Ragan , as his name did not even appear on the
employee relations director 's list, it is questionable that
Rosendahl even considered him for a position on the
spreader machine crew . In any event , Rosendahl initially
testified that the former was unqualified for the job as he
had not "worked on there that long." Later , asserting
that he personally had observed Ragan 's work on the
spreader machine, Rosendahl revised his testimony, stat-
ing that the former "just didn 't understand what the job
pertained to" and "he just didn't know what went
where." Concerning Tim Smith , Rosendahl likewise
averred that the employee had not "worked there that
long" and that Smith had no prior experience on a
spreader machine before working for Respondent.19
Concerning Gerald Clouse , who worked on a spreader
machine crew for Respondent from November 1978 until
March 1979 and for a 9-month period, January through
September 1981,20 Rosendahl , after assertedly consulting
with Day-Shift Foreman Twedell, determined that
Clouse was not qualified to be recalled for the spreader
machine crew job. Rosendahl claimed that his decision
was influenced by notations of three verbal warnings (R.
Exhs . 8, 9, and 10) apparently given to Clouse regarding
his work on the spreader machine . 21 With regard to the
alleged warnings , the superintendent admitted that each
is in the handwriting of the swing shift foreman, Rod
Graham , 22 that he relied on what Graham reported to
him concerning the underlying facts, and that he person-
ally never issued a warning to Clouse . 23 However, Ro-
sendahl also testified that he was , in fact, present when
Clouse and his partner caused some of the mislays, re-
ported in Respondent 's Exhibit 8- "they were making
plywood down there . . . normally, all the people try to
count how many layers they have . . . and this wasn't
being done at this time , and I stopped them and made
them tear the panel apart . . . and start it again . . . and
they laid another one, and I stopped them and made
them tear it apart." Clouse specifically denied ever re-
ceiving any such warning from Rosendahl and stated
19 The importance of this factor cited by Rosendahl must be viewed in
light of the comment by Gary Johnson in response to being asked wheth-
er prior experience on the spreader machine is not a prerequisite to being
given such a job by Respondent-"Right, we've trained a lot of them."
He further stated that employees are given the job by supervisors "if it
can be seen that they can do it."
20 Clouse worked on a spreader crew during the swing shift and left
that job as "they shut down a swing shift spreader crew."
21 R. Exh. 8 is a list of seven employees, including Clouse. Beside each
name is the number of mislays caused by each during the time period
July 6 to August 4, 1981. Clouse is listed as causing 20 mislays, an
amount more than twice as much as caused by the remaining 6 employ-
ees. R. Exh. 9 consists of notations of four separate discussions (May 21
and 27 and August 3 and 5, 1981) concerning mislays. R. Exh. 10 is a
warning, dated January 26, 1978, given to Clouse for "failure to perform
job-lay up and absenteeism" and is signed by Rod Graham, the swing-
shift foremen. Oddly, the latter is dated before Clouse was first assigned
to the spreader machine.
48 Rosendahl asserted that some of the notations on R. Exh 8 are his.
83 Testifying during the General Counsel's case-in-chief, Clouse admit-
ted that, in 1981, "I believe at one time [the entire crew was] warned
about our mislays.... There are two men that are accountable for
counting the sheets, and there were two of us that were warned." During
rebuttal, Clouse said that, in 1981, Graham issued just one verbal warning
to him regarding the fact that he and his partner had experienced five or
six mislays in 1 hour.
Clouse denied any knowledge of R Exh. 10.
that the latter would direct only criticisms to Graham
"and then Rod would come over and tell us ."24 Regard-
ing Twedell 's input vis-a-vis Clouse , Rosendahl stated
that the foreman believed Clouse to be not qualified.
Twedell testified that he was the day-shift foreman in
1981 ; that he regularly observed Clouse 's work on the
spreader machine on the swing shift as "every day I
stayed over at least an hour into the second shift"; and
that he evaluated Clouse 's work as "not good ." Twedell
explained that Clouse 's work resulted in numerous mis-
lays caused by his inability to properly count the ply-
wood core layers and said of Clouse and his partner,
"[N]either one of them were confident enough in them-
selves and the mistakes were made very quickly at the
beginning of the shift , that I observed Mr. Clouse ." 28 Fi-
nally, with regard to Terry Johnson , who worked on a
spreader machine crew during swing shift for 30 days in
1981 (after which he "went back to my original job by
my choice . I was not denied the job .") and thereafter on
a fill-in basis no more than once a month , Rosendahl,
with input from Twedell , concluded that Johnson was
not qualified to work on a spreader machine crew.
Asked the basis for his decision , Rosendahl cited as fac-
tors that Johnson had no prior spreader machine experi-
ence before being employed by Respondent and that his
experience with Respondent was "limited to relief . . . if
somebody was off." Twedell corroborated Rosendahl
that the latter asked for his opinion of both Johnson and
Clouse as spreader machine crewmembers prior to the
hiring of anyone for a second spreader machine crew in
October 1984-"and I at that time , told him, in my opin-
ion, they were not qualified as spreadmen for hardwood
plywood."
In assessing the qualifications of Ragan , Smith, Clouse,
and Terry Johnson to be assigned to the spreader ma-
chine , Rosendahl emphasized considering them as a crew
and how they would function together, rather than indi-
vidually, on the machine . In this regard , he testified that
he would not have utilized one, two, or three and com-
bined them with new hires to form a spreader crew as
"four people have to work together . . . and you can't
have three going on [sic] way and one going the
other. . . . All four of them have to all be in unison."
Rosendahl added , "I remembered when they were work-
ing together on the spreader" in 1981 "their footage was
low. . . . Their reject factor was [high] . . . and their
workmanship was far from being up to par." Regarding
the functioning of these individuals on a crew during
1981,26 Foreman Twedell testified that he observed
Smith and Johnson working on one crew and working
with Clouse on another spreader crew , that the crews
appeared to be "unorganized" in their work , and that he
always had to "doublecheck their wood " for purposes of
24 Graham was not called as a witness by Respondent , and counsel of-
fered no explanation for his failure to testify.
as Twedell conceded that Clouse 's work was not so bad as to require
his foreman , Rod Graham, to remove him from the spreader machine
crew.
sa Clouse , Smith , and Terry Johnson worked on the spreader machine
at the same time, March and April 1981 ; however, Smith , while admit-
ting working with Clouse , denied working with Johnson as members of a
spreader crew.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quality control. Further, when the three were together
on one crew, its output "peaked after about three weeks"
and "it went downhill because that's when . . . we start-
ed getting more and more complaints on their work. As
their production peaked, their quality decreased." Ac-
cording to Twedell, after that crew complained about
the quality of the wood they were processing and, as a
result , were given a better grade , "the reject percentage
was three times higher than any other crew we em-
ployed at that time."
There is no dispute that, rather than utilizing any then-
working employees, not-as-yet recalled former strikers,
or employees on layoff status, Respondent hired four in-
dividuals, who had been laid off from its White City,
Oregan plant where they had made up a spreader ma-
chine crew, to make up the other newly established
swing spreader machine crew. The four individuals were
hired by John Rosendahl who testified that, after con-
cluding that none of Respondent's current employees
was qualified for the job, he was informed by a day-shift
spreader machine operator that the four White City em-
ployees had recently been laid off and were seeking
work. Thereafter, on speaking to them, the four were
hired and began working about October 22. In this
regard , Rosendahl testified that it is "a common industry
practice" to hire spreader machine crews on such a basis
rather than individually.27
b. The failure to recall Michael Duro
The record reveals that, prior to the August 19, 1983
strike, Michael Duro had been employed by Respondent
for 8 years during which time he worked on the dryers,
drove heavy equipment, and performed laborer jobs. He
participated in the strike and made an unconditional offer
to return at its conclusion, but had no contact with Re-
spondent until November 1984. Although the sequence
of events and, indeed, what actually occurred was, to
put it charitably, confused by Duro's poor recollection of
them , it appears that, aware that Respondent was in the
midst of expanding production, he telephoned the plant
in order to ascertain his position on the recall list and
spoke to Gary Johnson. The latter told Duro that a tem-
porary job was available but suggested that he not quit
his present job, which was a full-time position. Approxi-
mately a week later , Duro again telephoned Johnson and
said that he would take any type of a job with Respond-
ent. Johnson replied that there might be a temporary job
available and told Duro to call on the following Monday
"to see" if such a position was open.
Pursuant to Johnson's instructions, Duro telephoned
him the next Monday; Johnson said that he had a tempo-
rary job for him and Duro said that he would take it.
Based on what Johnson told him, Duro gave notice to
his employer of his intention to quit. However, a short
time later, Johnson called Duro and told him that the
temporary job no longer existed "because Art Bogart got
released unexpectedly and returned to work." During
III Clouse testified , without contradiction, that never, prior to the
strike , had Respondent ever brought in a crew to operate the spreader
machines and that crews had always been formed from its existing em-
ployee complement.
cross-examination , Duro admitted understanding Johnson
to mean that the temporary job, which he was to have
been given, was filled by the individual who normally
had that position as he unexpectedly returned to work,
having been released by his doctor to do so. Finally,
after having his memory refreshed by counsel for the
General Counsel, Duro recalled that Johnson offered
him a temporary position "for a guy that was off on
medical leave." The parties stipulated that Duro was re-
called and returned to work for Respondent on January
14, 1985.
Gary Johnson testified that Duro did call him and did
say he would take a temporary job, that he told Duro
one such position was available, that Duro said he would
take it, and that "the next day I had to call him back and
tell him the temporary was no longer available, because
Arthur Bogart . . . returned from an illness . . . sooner
than I had anticipated, which filled this temporary posi-
tion." During cross-examination , Johnson conceded that
he might not have told Duro the individual's name but
asserted he did say that "somebody had returned unex-
pectedly from an illness." He further conceded that
Duro would not have been given Bogart's job as a jitney
driver but one created after "you transfer everybody
around." He added that Duro would have been placed in
a "hole," created after another worker bumped up.
c. The refusal to reinstate Jose Acosta
The record established that, prior to the August 19,
1983 strike, Jose Acosta had been employed by Respond-
ent for 10 years, that he performed all type of jobs, and
that, at the commencement of the strike, he was a "drive
feeder" on the day shift. He participated in the concerted
work stoppage, made an unconditional offer to return at
its conclusion, and informed Respondent that, when re-
called, he would be willing to accept "anything"-any
type of job. Subsequently, Acosta had no contact with
Respondent until September 27, 1984. At that time, Gary
Johnson called and offered him a temporary job in the
particle board department for I week on the day shift.
Notwithstanding that it was not a job he had previously
performed, Acosta accepted.
He returned to Respondent's facility and worked at
the temporary job. On the next to the last day for that
job, Johnson came over to him at his work station and
offered him another temporary job, cleaning the tanks on
the glue line. The job would last for 1 week and would
be on the graveyard shift. Johnson further explained that
the job would require climbing, lifting, and bending and
involved washing materials with water. The next day,
Acosta, who 8 months before had hip surgery and had
been advised by his physician to avoid the type of condi-
tions attendant to the proffered job, telephoned Johnson
and said, "I'm sorry, I cannot do that kind of a job, due
to my health." Johnson replied, "Well, I don't believe
you.,,
Acosta completed his last day of work, including
working on the graveyard shift. The next morning, John-
son called him at home and said, "If anybody refuses any
work, we'll terminate him." Acosta replied that physical-
ly he could not do the required work. Johnson respond-
ROCKWOOD & CO. 873
ed that he did not believe Acosta, saying , "You are
going to have to be terminated." A few days later,
Acosta was given a work restriction note by his doctor,
which note stated that Acosta could perform no work
requiring regular stair climbing, lifting more than 20
pounds, and work on the graveyard shift. Despite sub-
mitting this to Respondent's personnel office, another job
offer has not been tendered to him.
Johnson did not dispute Acosta's version of what oc-
curred. However, when asked if he said to Acosta that
he did not believe him, Johnson said, "I don't recall
using those exact words. He told me he had a tumor on
his leg and had had surgery in December, and he
couldn't take the position because he couldn't get enough
rest on graveyard." He added, "[A]t the time I didn't be-
lieve that the physical problem was the problem. It was
that he couldn't . . . get enough sleep working grave-
yard." Johnson conceded that he did not tell this to
Acosta.
B. Analysis
1. The withdrawal of recognition
Notwithstanding the rather labyrinthine and tortuous
analysis espoused by counsel for Respondent in his
posthearing brief, the longstanding Board law in this area
is straightforward and easily expressed. That is, "[T]he
existence of a contract gives rise to a presumption that
the Union was the majority representative at the time the
contract was executed and through the life of the con-
tract." Petroleum Contractors, 250 NLRB 604, 607 (1980);
Shamrock Dairy, 119 NLRB 989 (1957), and 124 NLRB
494 (1959), enfd. 280 F.2d 665 (D.C. Cir. 1960), cert.
denied 364 U.S. 892 (1960). Following the expiration of
the collective-bargaining agreement, this presumption
continues, though rebuttable, and the burden of rebutting
it rests on the party who would do so. Petroleum Con-
tractors, supra; Bartenders Assn. of Pocatello, 213 NLRB
615, 652 (1974). In order to overcome the presumption
and meet its burden of proof, the presenting party must
establish either that the union no longer, in fact, enjoys
majority representative status or that it (the moving
party) has a reasonably based good-faith doubt as to the
continued majority status of the union. NLRB v. Pioneer
Club, 546 F.2d 828 (9th Cir. 1976); Chicago Magnesium
Casting Co., 256 NLRB 668 (1981); Sahara-Tahoe Hotel,
229 NLRB 1094 (1977), enfd. 581 F.2d 767 (9th Cir.
1978). In the former circumstance, "an employer may
not avoid its duty to bargain by relying on any loss of
majority status attributable to its own unfair labor prac-
tices." Master Slack Corp., 271 NLRB 78, 84 (1984).28
Regarding the latter, "such doubt must be raised in a
context free of unfair labor practices." Guerdon Indus-
tries, 218 NLRB 658 , 659 (1975).29 In either circum-
28 While Respondent 's counsel is correct that the cases cited in support
of the quoted principle in the judge 's decision are good-faith doubt cases,
the principle was adopted by the Board and, therefore, is the law of the
Board until modified or reversed , an unlikely occurrence given the logic
of such a holding.,
ss Such unfair labor practices must be "of such a character as to either
affect the union's status , cause employee disaffection , or improperly affect
the bargaining relationship itself." Guerdon Industries, supra at 661. This
stance, the scope of the unlawful conduct has long been
considered by the Board to encompass prior unremedied
unfair labor practices of such a serious nature so as to
have a lasting and detrimental impact upon bargaining
unit employees . Naylor, Type & Mats, 233 NLRB 105 at
fn. 1 (1977); King Radio Corp., 208 NLRB 578, 583
(1974); Olson Bodies, Inc., 206 NLRB 779 (1973). Fur-
ther, contrary to the urging of counsel for Respondent,
"[the Board applied] the standards governing previously
established bargaining relationships rather than those re-
lating to initial organization situations" in considering the
types of unfair labor practices required to nullify a loss
of majority status or render impossible the existence of
the aforementioned good-faith doubt. Nu-Southern
Dyeing & Flinishing, 179 NLRB 573 at fn. 1 (1969). Final-
ly, an employer violates Section 8(a)(1) and (5) of the
Act if it withdraws recognition from a union, which is
the collective-bargaining representative of its employees,
in a context of existing or prior unremedied unfair labor
practices as described above. Robertshaw Controls Co.,
263 NLRB 958 (1982); Chicago Magnesium Castings Co.,
supra.
It is clear to me that, notwithstanding whatever preci-
pitated Respondent's withdrawal of recognition from the
Union on September 6 or the context within which it
was done, the initial, overriding consideration must be
whether the parties reached an enforceable agreement in
October 1983; for, if so, the Union' s presumption of ma-
jority status continues during its lifetime. Petroleum Con-
tractors, supra . On this point, without recitation of the
underlying facts or legal analysis, the Board concluded
"that when the Union unequivocally accepted the Re-
spondent's final offer on 11 October, an enforceable con-
tract was formed and the Respondent was thereafter ob-
ligated to execute and abide by that contract" and or-
dered that Respondent "execute and give retroactive
effect to the parties' agreement , on request by the
Union." 277 NLRB at 769-770. Inasmuch as the Board
required that Respondent give retroactive effect to the
parties' contract and as the agreement is for a period of 3
years, it follows that the Union's presumption of majori-
ty status was in effect at the time Respondent withdrew
recognition of such from the Union on September 6,
1984. Put another way, it would be contrary to the poli-
cies and purposes of the Act and would permit Respond-
ent to profit from its own unfair labor practices if I were
to conclude that the withdrawal of recognition was
lawful, occurring as it did at a time when Respondent
was unlawfully refusing to execute and abide by a previ-
ously agreed-on, enforceable contract. 30 . Accordingly, I
appears to be the identical standard applied to the context of an asserted
loss of majority support . Master Slack Corp., supra at 84.
90 Respondent asserts that the withdrawal of recognition was lawful as
the Union had , in fact, lost its status as the majority representative of the
bargaining unit employees and as , at least, it possessed a good-faith doubt
of the Union's continuing status. Such are predicated solely on the peti-
tion that was submitted to Gary Johnson by employee Clouse on Septem-
ber 4. With regard to the sufficiency of this document as support for Re-
spondent's conduct of withdrawing majority status recognition from the
Union , I note initially that such petitions alone may, indeed , form the
basis for such assertions . Master Slack Corp., supra; Hydro Conduit Corp.,
254 NLRB 433 ( 1981); Guerdon Industries, supra; American Express Reser-
Continued
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that Respondent engaged in conduct violative of
Section 8(a)(1) and (5) of the Act by withdrawing recog-
nition from the Union on September 6.
rations, 209 NLRB 1105 (1974). In the case of an asserted actual loss of
majority support , evidence, in fact, of such must be established ; while in
the case of an asserted good-faith doubt , the employer "does not bear the
burden of proving that an actual numerical majority opposes the Union."
Sofco, Inc., 268 NLRB 159, 160 (1983). Without regard to numerical
equations, however , the General Counsel and the Union dispute the exist-
ence of any basis for attacking the latter 's majority status, asserting that
the language of the Chase petition is, at best, ambiguous and that Re-
spondent's own conduct fostered and caused the signing employees' disaf-
fection from the Union . After considering the language of the petition, I
am of the view such was not at all concerned with the Union continuing
to be the collective-bargaining representative of Respondent 's employees
in the bargaining unit. Thus, while the concluding words of the petition
are, "We must therefore insist on a majority rule basis; that [the Union]
not be considered our bargaining agent," the circumstances surrounding
the solicitation of signatures and the petition 's language , as a whole, do
not support the meaning attributed to the concluding phrase by Respond-
ent. As to the context within which the petition signatures were solicited,
the record establishes that, during the first 2 weeks in August , of great
concern to the employees of Respondent who were not union members
was that they would not be permitted by the Union to participate in the
ratification vote for Respondent 's new contract proposal . This concern
was exacerbated by what occurred at the two August 9 union meetings at
which union members apparently voted to exclude nonmembers from
voting ; by word of the result of the meetings spreading rapidly among
the employees at the plant; by Union President Hicks not disavowing
what nonmember employees believed was the result of the voting at the
two union meetings ; and, most significantly , by the posting of a notice on
a plant bulletin board by Respondent , the notice not only confirming
what the nonmembers believed but also stating as a fact that the Union
would "only allow members in good standing to vote on the company's
offer." Within 4 days, approximately 70 bargaining unit employees exe-
cuted R. Exh. 5 , the Chase petition . That the petition and the apparent
denial to nonmembers of an opportunity to participate in the ratification
process were intertwined is clearly seen from the uncontroverted testimo-
ny of employee James Baize who stated that Chase , while soliciting his
signature, said that "he wanted me to sign it ... because . . . the people
who signed it should have the right to vote for the contract."
Likewise, when viewed as a whole, the language of the petition sup-
ports the view that it was meant to precipitate an employee ratification
vote on Respondent 's proposed contract. Thus, the petition bears the
heading , "Re: IWA 3-6 labor contract offer" ; states the signers ' "dissatis-
faction and e'isenchantment over the so-called 'bargaining rights' of the
minority of Timber Products employees belonging to [the Union]"; and
complains that the Union "in the most recent contract offer has totally
denied us , the majority of employees, any voice whatsoever." It is in the
foregoing context that the petition concludes with the words, "We must
therefore insist on a majority rule basis ; that [the Union] not be consid-
ered our bargaining agent." In my view, given the circumstances sur-
rounding the solicitation of the signatures and Respondent 's own role in
confirming nonunion members ' concerts, a likely-and correct-interpre-
tation of the final phrase is that an asserted majority of the bargaining
unit employees desired an opportunity to themselves accept or reject Re-
spondent's proposed contract without the participation of the Union in
the process. While concededly the exact meaning of the petition language
is not free from doubt, the issue , in these circumstances, is whether such
privileged Respondent 's reliance on it to withdraw recognition from the
Union as the majority representative of its plant employees . In a differ-
ent, but related , context, the Board concluded that an employer violated
Sec. 8(a)(1) and (5) of the Act when it refused to execute a previously
agreed-on contract and insisted that the contract expire with a union's
certification year . In so finding, the Board rejected, as without merit, the
employer 's defense that the union no longer represented a majority of its
employees. The employer had relied on a letter, executed by a majority
of the employees in the bargaining unit, urging it not to ratify the con-
tract. Noting that the letter did not specifically express the signer's oppo-
sition to continued representation by the Union, the Board found that the
employer "lacked objective evidence of the loss of majority support"
necessary to enable it to lawfully refuse to bargain . Crestline Memorial
Hospital Assn., 250 NLRB 1439, 1440 (1980). Likewise, given what I per-
ceive as the probable intent of the petition and the facts that such repre-
2. The implementation of the employee handbook
There is no dispute that the new handbook, which was
distributed by Respondent to bargaining unit employees
in September 1984, and the changes in the employees'
terms and conditions of employment, which were imple-
mented therein, were accomplished without giving prior
notice to or affording the Union an opportunity to bar-
gain . In accord with the recent holding of the Board, the
imposition of the unilateral changes was done at a time
when Respondent was obligated to execute and abide by
the terms of a collective-bargaining agreement , embody-
ing the terms of a final offer that was accepted by the
Union on October 11, 1983. Respondent 's counsel con-
ceded that , if Respondent 's withdrawal of recognition
from the Union was unlawful , the implementation of the
unilateral changes (including a solicitation-distribution
rule, a new bulletin board policy, new overtime and se-
niority provisions, new vacation eligibility rules, a new
wage rate for certain jobs, and new job bidding proce-
dures) was likewise unlawful . I have previously conclud-
ed that, in view of the Board 's findings and requirement
that Respondent execute and give retroactive effect to its
agreement with the Union, Respondent, in fact, acted un-
lawfully when it withdrew recognition from the Union.
In these circusmtances, at the time Respondent imple-
mented the aforementioned changes in employees' terms
and conditions of employment , it was under an obliga-
tion to recognize and bargain with the Union. Therefore,
Respondent violated Section 8(a)(1) and (5) of the Act
by imposing the changes without giving prior notice to
or affording the Union an opportunity to bargain. NLRB
v. Katz, 369 U.S. 736 (1962).311 Further with regard to
sented the sole basis for Respondent's assertions regarding the Union's
continued majority status and that Respondent , to some extent, precipitat-
ed the petition, I conclude that Respondent lacked the requisite evidence
of employee desire to no longer be represented by the Union to enable it
to withdraw recognition from the Union on any numerical basis.
81 The General Counsel also contends that , by applying the unilateral-
ly implemented changes in the working conditions and other terms and
conditions of employment of the bargaining unit employees to reinstated
former strikers and, in effect, treating them as new employees , Respond-
ent discriminated against them in violation of Sec . 8(a)(1) and (3) of the
Act. In this regard , Respondent concedes that , in applying the newly im-
plemented employee handbook working conditions to former strikers
who were reinstated after September 13, it was guided by the seniority
provision, reading, "An employee rehired after a break in service of more
than one year shall be treated as a new employee under these policies "
Utilizing it, Respondent terminated the seniority rights of 21 former strik-
ers who were reinstated after September 13 and gave each a seniority
date corresponding to the day he was recalled to a permanent position
Also utilizing this seniority rule, Respondent treated former strikers as
new or temporary employees if the individuals were recalled for tempo-
rary work prior to being given full-time positions A similar company
policy was at issue in Brooks Research & Mfg., 202 NLRB 634 (1973).
Although utilized by that employer to deny the reinstatement rights of
former strikers, as herein , that company 's rule similarly terminated senior-
ity rights after layoff for a specified time period . The Board concluded
that application of the rule, either so as to deny them reinstatement or to
terminate their prior company seniority, to the economic strikers dis-
criminated against them in violation of Sec . 8(axl) and (5) of the Act.
Respondent herein utilized its break -in-service rule not to deny former
strikers reinstatement but to deprive them of their prior seniority. Such is
clearly violative of Sec . 8(a)(1) and (3) of the Act. Id; MCC Pacific
Valves , 244 NLRB 931, 935 (1979). Further, treating former strikers as
new employees, as did Respondent, on reinstating them to temporary
jobs discriminated against them in violation of Sec. 8(a)(1) and (3) of the
Continued
ROCKWOOD & CO. 875
Respondent 's unilateral changes, there is no dispute that,
concomitant with withdrawing recognition from the
Union, Respondent severely restricted Union Business
Agent Dawson 's access to the plant by implementing a
previously unenforced requirement that he obtain a pass
issued by Alex Austin or Gary Johnson . While arguably
such a restriction was in accord with the wording of the
parties' expired contract , it clearly represented a change
from Respondent's existing practice , which required only
that Dawson obtain an admittance form from a recep-
tionist and give it to a security guard . Further, inasmuch
as Joseph Gonyea thought it necessary to send a letter,
which detailed Dawson 's new access right, to the Union,
it is clear that Respondent recognized that it was altering
an existing practice . In such circumstances , I find that
Respondent engaged in conduct violative of Section
8(a)(1) and (5) of the Act by altering an existing practice
regarding union officials access to the plant facility with-
out prior notice to or bargaining with the Union.
3. Respondent 's failure to reinstate former strikers
Based on the allegations of the amended consolidated
complaint, the General Counsel contends that Respond-
ent engaged in conduct violative of Section 8(a)(1) and
(3) of the Act by terminating the recall rights of former
strikers pursuant to the unilateral and unlawful imple-
mentation of its new seniority rule in September 1984, by
hiring the four laid -off White City plant employees
rather than recalling qualified former strikers to form a
spreader machine crew in October , by terminating the
recall rights of former striker Jose Acosta , and by refus-
ing to reinstate former striker Michael Duro after he had
accepted an offer of a temporary job. The applicable
principles of law that govern in such circumstances are
well known and of longstanding duration . Thus, it is
clear that economic strikers, such as herein involved,
retain their status as "employees" within the meaning of
Section 2(3) of the Act during a strike and , at its conclu-
sion, have a right to be reinstated to their former posi-
tions . Any employer that refuses or delays the reinstate-
ment of former economic strikers acts in violation of
Section 8(a)(1) and (3) of the Act unless it can establish
"legitimate and substantial business justifications" for its
conduct . NLRB v. Fleetwood Trailer Co ., 389 U .S. 375,
380-381 (1967); NLRB v Great Dane Trailers, 388 U.S.
26, 34 (1967); Laidlaw Corp ., 171 NLRB 1366, 1369
(1986), enfd . 414 F.2d 99 (7th Cir. 1969). Prior to
Fleetwood Trailer Co . and Great Dane Trailers, the Su-
preme Court ruled that a struck employer has a legiti-
mate and substantial right to continue "his" business "by
supplying places left vacant by strikers. And he is not
bound to discharge those hired to fill the places of strik-
ers, upon the election of the latter to resume their em-
ployment." NLRB v. Mackay Radio Co., 304 U . S. 333,
345-346 (1938). However , at the conclusion of a strike,
even if permanent replacements have been hired for the
strikers, on the departure of the replacements , the former
Act. MCC Pacific Valves, supra at 936. Finally, I conclude that Respond-
ent also unlawfully discriminated against reinstated former strikers by as-
signing them a $7.28 hourly wage rate . The employees must be permitted
to earn the same wages and benefits as before the strike . Id. at 935.
strikers are entitled to reinstatement to their former jobs
unless they have acquired substantially equivalent em-
ployment elsewhere or unless their employer is able to
sustain its burden of proof that the failure to recall was
justified by legitimate and substantial business reasons.
Fleetwood Trailer Co., supra; Laidlaw Corp., supra. In
fact, not only are former strikers entitled to vacant, jobs,
"it is incumbent upon [their employer] to seek them out
as positions [are] vacated ." Laidlaw Corp., supra at 1369.
Unless an employer sustains its burden of proof, a refusal
to reinstate employees after an economic strike consti-
tutes an unfair labor practice notwithstanding the ab-
sence of animus or bad faith; for such conduct "discour-
ages employees from exercising their rights to organize
and to strike guaranteed by Sections 7 and 13 of the
Act." Fleetwood Trailers Co., supra at 378.
Turning to the General Counsel's initial contention
that Respondent violated Section 8(a)(1) and (3) of the
Act by terminating the recall rights of former strikers
pursuant to implementation of the employee handbook
seniority provision ("An employee rehired after a break
in service of more than one year shall be treated as a
new employee under these policies ."), it is clear that
such refers to the status of the 52 individuals who were
on layoff status at the commencement of the strike on
August 19 , 1983 . The General Counsel contends that
they became , in effect, economic strikers who were enti-
tled to preferential reinstatement . This assertion is based
on the letter, dated September 21, 1983, and mailed by
Respondent to all employees, including strikers and those
on layoff status when the strike began . The letter in-
formed the recipients that Respondent would be hiring
permanent replacements for the strikers and suggested
..you contact us about returning before a replacement is
hired. An early decision on your part is in the best inter-
ests of all concerned ." It is contended that the solicita-
tion converted all those laid -off individuals, who did not
accept the offer and return to work, to the status of eco-
nomic strikers, entitling them to the same reinstatement
rights had by those employees who actually engaged in
the work stoppage on August 19. In arguing that the
foregoing "is an afterthought makeweight argument,"
counsel for Respondent contends that it is a matter of
speculation whether any of the laid-off employees joined
the strike , that Respondent had no knowledge that any,
in fact, joined the strike , and that the Union never alert-
ed it to the fact that the Union considered the individuals
to have been strikers . As support for their respective po-
sitions, counsel for the Union and counsel for Respond-
ent both cite3 2 Brinkerhoff Signal Drilling Co., 264
NLRB 348 (1982). In that case, several individuals were
on layoff status at the start of an economic strike. Short-
ly after the strike commenced , agents of the employer
placed telephone calls to the individuals in order to offer
as The General Counsel cites only Burner Systems International, 273
NLRB 954 (1984), in support of her contention . Therein, a case involving
a withdrawal of recognition , the Board counted among those who sup-
ported the union and who refrained from working during the strike indi-
viduals who were on layoff status at the time of the strike. Nowhere
therein does the Board state that the laid-off employees should be consid-
ered as strikers , notwithstanding support for the union.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them employment during the strike . Many of the laid-off
employees said they would refuse to return during the
strike , and the employer was unable to speak to others.
Of this latter group, several learned of the offer but did
not return to work . I the administrative law judge found
that, before any alleged discriminatee would be consid-
ered a striker and thereby eligible for preferential em-
ployment rights, he must "engage in conduct which was
reasonably calculated to alert" the employer he was, in
fact , a striker . Utilizing this test , the judge found that
those individuals who verbally refused the offer mani-
fested an intent to join the strike and were , in fact, strik-
ers but that laid-off employees who did not speak to the
employer's agents were not strikers even though they
may not have returned to work. The Board concluded
that, under the circumstances , "given the ambiguity
caused by the employees ' inactive status at the time the
strike began ," it was reasonable to require the General
Counsel to establish that the individuals engaged in some
sort of overt conduct sufficient to give the respondent
"reasonable notice" of their strike activity . Id. at 349 fn.
5.
At the outset , the substance of Respondent 's letter in-
dicates that, by design , it was intended for those who ac-
tually concertedly ceased working on August 19, 1983,
and that it was meant as a solicitation to them to aban-
don the strike rather than be permanently replaced. Nev-
ertheless , as it was also sent to individuals who were on
layoff status at the time of the strike, it is reasonable to
conclude-and I do-that Respondent meant its solicita-
tion to cross the picket line and work during the strike to
include such individuals . In these circumstances, al-
though communication with the laid -off individuals was
in writing rather than verbal as in Brinkerhoff Signal
Drilling, I find the same rationale to be applicable to the
instant factual context . That is, given to layoff status of
the 52 individuals herein , there is obvious ambiguity as
to the status of each during the strike and on receipt,
which I presume , of Respondent's solicitation to return.
None of the 52 individuals were called as witnesses and
none testified regarding their willingness to work during
the strike . In these circumstances , I believe it was incum-
bent on the General Counsel to have established that
each of the individuals engaged in some sort of overt
action, signifying to Respondent that, rather than accept-
ing the solicitation to work during the strike, he was
joining it and withholding his services . As to this, the
uncontroverted-and credited-testimony of Dennis
Dawson was that "over 20" of the individuals engaged
in picketing during the strike , and I find that such was
sufficient to constitute the requisite notice to Respondent
to make it reasonably aware that these individuals sup-
ported and joined the strike . Further, it would make no
difference , in my view , whether such picketing occurred
prior to or subsequent to receipt of Respondent's solicita-
tion to return ; for, in either circumstance , the individual
was signifying his intent to join the strike . In Connecticut
Distributors, 255 NLRB 1255 ( 1981), an individual re-
ceived employment simply by reporting to work. While
he was on vacation, the employer's workers engaged in a
strike . While not supporting the strike , the individual
nevertheless did not cross the picket line to work during
the strike as he did not want to violate a picket line. The
Board found him to be a striker as, given the nature of
the work, his failure to report was such that "[the com-
pany] reasonably was aware that [he ] was striking and
withholding his services ." Id. at 1267. Clearly, given the
solicitation herein to all laid -off employees to return to
work and the fact that "over 20" engaged in actual pick-
eting , the same conclusion is mandated . That Respondent
may not, in fact , have been aware of the individuals'
picketing does not, I think , detract from my finding that
such constituted reasonable notice to Respondent that
each was, in fact, striking . This is so inasmuch as the em-
phasis of Brinkerhoff Signal Drilling, supra, is on the em-
ployees' overt actions, which reasonably would make the
employer aware , and not on the employer 's actual
knowledge . Respondent next contends that none of these
individuals unconditionally offered to return at the cessa-
tion of the strike and , therefore , none are yet entitled to
preferential reinstatement . This assertion is without merit
as Business Agent Dawson 's offer to return was on
behalf of "each and every employee . . . who has par-
ticipated in the strike ." He specified no particular indi-
viduals . Based on the foregoing, I conclude that the in
excess of 20 individuals, who were on layoff status prior
to the strike , were recipients of Respondent's solicitation
to return to work during the strike , and manifested their
intent to join the strike by engaging in picketing during
it, assumed the status of economic strikers.
It follows, then , that, on cessation of the strike, each
was entitled to reinstatement to any available job for
which he was qualified. Fleetwood Trailers Co., supra at
381. Further , there are no time limits on the reinstate-
ment rights. Brooks Research Mfg., supra. Nevertheless,
pursuant to implementation of the new seniority regula-
tions in September 1984 , Respondent expurgated the em-
ployment rights of all individuals who had been laid off
for at least 12 months , including those who, I have
found, were former economic strikers . In this regard, it
was conceded by Respondent that, while all the ac-
knowledged former strikers had been reinstated to per-
manent jobs by February 1985 , none of those employees
on layoff status at the time of the strike , including those
who, I believe , assumed the status of economic strikers,
was ever recalled to a permanent job. In these circum-
stances, by terminating the reinstatement rights of these
approximately 20 individuals in September 1984 and by
treating them as merely laid -off employees, Respondent
engaged in conduct violative of Section 8(a)(1) and (3) of
the Act. Brinkerhoff Signal Drilling , supra; Brooks Re-
search & Mfg., supra.33
Turning to Respondent 's alleged unlawful failure and
refusal to recall former strikers Ragan , Clouse, and
Terry Johnson in late October for work on the newly es-
tablished swing shift spreader machine crew , Respondent
asserts, in effect, that it possessed legitimate and substan-
tial business reasons for bypassing them and hiring four
individuals who had been laid off from its White City
plant, where they had constituted a spreader machine
crew . In assessing the validity of Respondent's defense, I
33 Respondent offered no business justification for this conduct.
ROCKWOOD & CO. 877
am guided by my understanding that its burden of proof
in this regard is substantial inasmuch as the failure to re-
instate economic strikers inherently adversely impacts on
employee rights under the Act. Fleetwood Trailers Co.,
supra. At the outset, I note that Ragan , Terry Johnson,
and Tim Smith, who had previously been recalled by
Respondent, are the former strikers, who, it is contend-
ed, could have been utilized by Respondent as the new
spreader machine crew ; that each had prior experience
working on the machine ; and that each apparently was
ready and willing to perform that work in October. The
crux of Respondent's business justifications for not rein-
stating Ragan , Clouse, and Johnson and combining them
with Smith, who had applied for the job, was that none
were qualified, on an individual or group basis , to do the
work; however, analysis of the record evidence has con-
vinced me of the fallaciousness of such assertions. Thus,
with regard to Tim Smith and Terry Johnson, Plywood
Superintendent Rosendahl , who failed to impress me as
being a particularly candid and forthright witness, stated
that each, in effect, had had limited experience working
on the spreader machine . I fail to understand the signifi-
cance of their admitted limited experience on the spread-
er machine inasmuch as Respondent heretofore had
always formed spreader machine crews from within the
bargaining unit, presumably utilizing individuals with
limited experience on the machine , and trained the men
in the work. As to Terry Ragan, Rosendahl 's testimony
was contradictory-he initially stated that Ragan was
unqualified as he had not "worked on there that long"
but later asserted he "just didn't understand what the job
pertained to" and "he just didn't know what went
where." Indeed , as Ragan's name was left off Gary John-
son's list of unrecalled strikers and others not working as
of October 15, I do not believe Rosendahl considered
him for the spreader crew at all . Concerning Gerald
Clouse, I note that Rosendahl and Foreman David Twe-
dell generally were corroborative as to the former strik-
er's liabilities on the spreader machine when he per-
formed that job for a 9-month period in 1981. However,
the fact remains that, despite what appears to be prob-
lems with mislays and warnings regarding the quality of
his work, Clouse was never removed from the spreader
job by Respondent, ceasing to perform that work only
because "they shut down a swing shift spreader crew."
Moreover, the record is clear that Rosendahl had limited
personal knowledge of the three verbal warnings alleged-
ly given to Clouse by his supervisor Rod Graham. In
fact, I give no credence to these as all are in the hand-
writing of Graham and as Respondent neither called
Graham as a witness nor explained the reason for his fail-
ure to testify.34 This was of critical importance as both
34 While Twedell otherwise appeared to be testifying in an honest and
straightforward manner , I do not credit his testimony regarding the work
of Clouse on the spreader machine . I found it hard to believe that he ob-
served the work of Clouse, Smith , and Johnson as often and as closely as
he claimed given his other duties, the fact that they were not even work-
ing on his own shift, and as Graham , Clouse's immediate supervisor,
would have been the one to be scrutinizing that crew 's work. In short, I
do not place any reliance on Twedell 's corroborative testimony of that of
Rosendahl . Further , even assuming the truthfulness of his recollections
regarding Clouse's work on the spreader , the fact cannot be stressed
Rosendahl and Twedell testified that Graham was
Clouse's immediate supervisor while he worked on the
spreader machine; in these circumstances , Graham would
have been the foreman most knowledgeable about any of
Clouse's asserted deficiencies in performing that job.36
Further, the manner of selection of the White City em-
ployees to fill the positions on the new spreader crew
convinces me of Respondent 's perfidy toward the eligi-
ble former strikers . Thus, Rosendahl admitted that he did
so merely on being informed of their availability and
after speaking to them . There is no indication that he
ever evaluated their abilities to perform the work or
compared the abilities and qualifications to those of the
four former strikers . In short, I am convinced that Re-
spondent has failed to sustain its burden of proof that its
failures to reinstate former strikers Ragan , Clouse, and
Terry Johnson for work on the new spreader crew were
for legitimate and substantial business reasons and that
the asserted rationale was but an afterthought , designed
to avoid the finding of unfair labor practices relating to
Respondent 's hiring of the former White City spreader
machine crew to staff its new swing shift spreader crew
without considering the availability of former strikers.
Aluminum Cruisers , 234 NLRB 1027, 1030-1033 (1978).
I, therefore , find the conduct toward Clouse, Ragan,
Johnson , and Smith violative of Section 8(a)(1) and (3) of
the Act.
Regarding the amended consolidated complaint allega-
tions as to former striker Jose Acosta, Respondent's
counsel asserts that the employee placed "numerous and
highly-limiting conditions upon his offer to return" and
that "the termination was motivated solely by the severe
limitations imposed by Mr. Acosta on the type of work
he was doing." The record establishes that, at the time of
the August 19, 1983 strike, Acosta was a dry feeder on
the day shift; that, when he was reinstated on September
27, 1984, he was given a temporary job on the day shift;
and that the job that Acosta refused, due to medical rea-
sons resulting from prior surgery, and which act precipi-
tated his termination , was another temporary job-on the
graveyard shift. Contrary to the reason advanced by
counsel , in his posthearing brief, as Acosta 's termination,
I credit the former striker, who was a most candid and
straightforward witness, that Gary Johnson told him that
the sole basis for his discharge was his refusal to perform
the offered job-"If anybody refuses any work, we'll ter-
minate him."36 In accord with my factual finding, it is
well settled that a former economic striker is entitled to
wait for reinstatement to a position "substantially equiva-
lent" to his prestrike position and that an employer vio-
enough that the latter was allowed to continue working on the spreader
notwithstanding his asserted problems.
as Rosendahl asserted that he , in fact, on one occasion made Clouse
and his partner twice tear apart plywood panels as they were mislaid.
Clouse denied this , and, as in contrast to Rosendahl , I found Clouse to be
a candid witness, his denial is credited . Further, his explanation that Ro-
sendahl would direct any criticisms of Clouse's crew to Graham who, in
turn, would inform Clouse and the others of Rosendahl 's criticism ap-
pears to be a logical one and is likewise credited.
SB 1 further credit Acosta that Johnson told him he did not believe the
former striker 's medical excuse for refusing the proffered job. Johnson
conceded that such was, indeed, his feeling at the time.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lates Section 8(a)(1) and (3) of the Act by terminating
such an individual's employment status, thereby ending
his preferential reinstatement rights, for having refused
an offer of a job that is not substantially equivalent. Prov-
idence Medical Center, 243 NLRB 714, 744 (1979); Burton
Parsons & Co., 242 NLRB 487, 490 (1979). Herein, both
counsel for the General Counsel and counsel for the
Union contend that the proffered offer of a job cleaning
tanks on the graveyard shift to Acosta was not an offer
of a substantially equivalent job. I agree that the offer
was not to a substantially equivalent job as it involved
temporary work on a shift different from that which
Acosta worked prior to the strike. Thus, the Board has
held that the offer of work on a different shift is not sub-
stantially equivalent. Harvey Engineering & Mfg. Corp.,
270 NLRB 1290, 1292 (1984); MCC Pacific Valves, supra
at 944-945. Also, when Acosta was recalled to a tempo-
rary position, he was not given the same benefits as full-
time employees, and the Board has held that a job is not
substantially equivalent if such position does not permit
employees to earn the same wages and benefits as before
the strike. MCC Pacific Valves, supra at 935. In the fore-
going circumstances, I find the termination of Acosta to
have been violative of Section 8(a)(1) and (3) of the Act.
Providence Medical Center, supra.
Turning to the matter of Respondent's conduct vis-a-
vis former striker Michael Duro, the record establishes
that Duro informed Gary Johnson that he would accept
any job with Respondent, including a temporary one;
that Johnson subsequently offered and Duro accepted a
temporary job; that, as a result , Duro gave his employer
notice of his intention to quit; that Johnson later rescind-
ed the job offer, explaining that the temporary position
no longer existed as "Art Bogart got released unexpect-
edly and returned to work"; and that Duro admitted un-
derstanding Johnson to mean that the temporary job,
which the former striker was to have been given, was
filled by the individual who normally had that position.
In the posthearing brief, the General Counsel argues that
Duro "was entitled to reinstatement after being . . . told
to report for work or at least entitled to a full explana-
tion of why he was not being reinstated." Concerning
the latter point, of course, Duro admitted being aware of
the stated reason for the rescission of Respondent's offer,
and there is no evidence to controvert the testimony of
Gary Johnson in that regard. Regarding the former
point, the General Counsel cites no case support for this
contention. I have been able to locate none, and the
Board has not as yet (nor is it likely to do so) required
an employer to provide another job for a former striker
if, through no fault of the employer, a proffered positon
no longer exists. Further, the record establishes that Re-
spondent recognized its legal obligations by reinstating
Duro in mid-January 1985, and there is no evidence that
the reinstatement was unlawfully delayed. While it is not
difficult to sympathize with the plight of Duro, there is
not a scintilla of record evidence that Respondent dis-
criminated against the former striker in violation of Sec-
tion 8(a)(1) and (3) of the Act. I shall, therefore, recom-
mend that the allegation of the amended consolidated
complaint, concerning Duro, be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All employees of Respondent, including temporary
and part-time employees; excluding office clerical em-
ployees, professional employees, guards and supervisors
as defined in the Act constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since at least 1977, the Union has been, and is now,
the exclusive representative of employees in the above
appropriate unit for purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By withdrawing recognition from and refusing to
bargain with the Union since September 6, 1984, Re-
spondent has refused to bargain in violation of Section
8(aXl) and (5) of the Act.
6. By, since about September 6, 1984, unilaterally,
without giving prior notice to or affording the Union an
opportunity to bargain, limiting the Union's right of
access to its plant , Respondent refused to bargain in vio-
lation of Section 8(a)(1) and (5) of the Act.
7. By, about September 13, 1984, unilaterally, without
giving prior notice to or affording the Union an opportu-
nity to bargain , changing the terms and conditions of em-
ployment of the employees in the above-described appro-
priate unit through implementation of new employee
working conditions, set forth in an employee handbook,
the changed working conditions including , but not limit-
ed to, a new solicitation-distribution rule; a new griev-
ance procedure; a new bulletin board policy; mandatory
overtime for certain employees; new seniority provisions,
including the loss of employee status and company se-
niority after a break in service of more than 1 year; new
vacation eligibility standards; a new policy for the desig-
nation of floating holidays; and a new $7.28 wage rate
for individuals who were hired after August 19, 1983, or
who were recalled after a break in service for more than
a year, Respondent refused to bargain in violation of
Section 8(a)(1) and (5) of the Act.
8. By, since about September 13, 1984, denying rein-
stated former strikers their prestrike company seniority,
by reinstating them at wage rates lower than what they
earned prior to the strike, and by treating these individ-
uals as new hires, Respondent refused to bargain in vio-
lation of Section 8(a)(1) and (3) of the Act.
9. By terminating, about September 13, 1984, the em-
ployment, seniority, and preferential reinstatement rights
of more than 20 unreinstated employees who had been
on layoff status at the start of the August 19, 1983 strike,
were recipients of Respondent's offer of reemployment
dated September 21, and manifested an intent to, and did,
in fact, join the strike by picketing during it and who
had unconditionally applied for reinstatement at the ces-
sation of the strike, Respondent discriminated against
these former strikers in violation of Section 8(a)(1) and
(3) of the Act.
ROCKWOOD & CO.
10. By failing and refusing to reinstate former econom-
ic strikers Gerald Clouse, Terry Ragan , and Terry John-
son, each of whom had unconditionally applied for rein-
statement to positions on a swing shift spreader machine
crew, thereby delaying their eventual reinstatement, and
by failing and refusing to transfer recalled former striker
Timothy Smith to a position on the crew, Respondent
discriminated against the individuals in violation of Sec-
tion 8(a)(1) and (3) of the Act.
11. By terminating the reinstatement rights of, and fail-
ing and refusing to reinstate , former striker Jose Acosta
who had unconditionally applied for reinstatement to his
former position or a substantially equivalent one as such
became available, Respondent discriminated against the
individual in violation of Section 8(a)(1) and (3) of the
Act.
12. Unless otherwise stated , Respondent committed no
other unfair labor practices.
THE REMEDY
Having found that the Respondent, Rockwood &
Company and W. H. Gonyea Trust No. 1-17 d/b/a
Timber Products Co., has engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
I have found that Respondent violated Section 8(a)(1)
and (5) of the Act by withdrawing recognition from the
Union as the collective-bargaining representative of cer-
tain of its employees . The Board has recently ordered
Respondent to, on request, execute and give retroactive
effect to a collective-bargaining agreement as to which
agreement was reached on October 11, 1983. The agree-
ment was for a term of 3 years. Accordingly, I shall rec-
ommend that Respondent rescind the withdrawal of rec-
ognition and recognize and bargain with the Union as
the exclusive representative for purposes of collective
bargaining of its employees in the above-described ap-
propriate unit . I have found that Respondent further en-
gaged in conduct violative of Section 8(a)(1) and (5) of
the Act by unilaterally limiting the right of union offi-
cials to have access to the plant and by unilaterally im-
plementing the above-described new and changed bar-
gaining unit employees ' terms and conditions of employ-
ment , as set forth in its employee handbook. According-
ly, I shall recommend that Respondent be ordered to
cease and desist from giving effect to any of the unlaw-
ful, unilateral changes and reinstitute the terms and con-
ditions of employment of the employees that were in
effect about September 13, 1984. In addition, I shall rec-
ommend that Respondent be ordered to make its em-
ployees whole for any , and all, wages and benefits lost as
a result of the unlawful, unilateral changes, with such
computed in the manner set forth in F. W. Woolworth, 90
NLRB 289 (1950), with interest thereon as calculated
and explicated by the Board in Isis Plumbing Co., 138
NLRB 716 (1962), and Florida Steel Corp., 231 NLRB
651 (1977). Next, I have found that Respondent, since
September 13, 1984, unlawfully discriminated against re-
instated former economic strikers , in violation of Section
8(a)(1) and (3) of the Act, by denying to these individ-
uals their prestrike seniority , by treating them as new
879
employees in certain circumstances , and by paying them
at a reduced wage rate , established at the time of the
aforementioned unilateral changes . As a remedy for such
unlawful conduct, I shall recommend that Respondent
restore to all former economic strikers , who were re-
called subsequent to September 13, 1984 , their prestrike
company seniority dates, reimburse them , in the manner
set forth above, for any out-of-pocket losses incurred as a
result of being treated as new hires while performing
temporary assignments and, to the extent not done above
and in the manner set forth above, make them whole for
any wages lost as a result of the discrimination against
them. I have found that , in excess of 20 of those individ-
uals on layoff status at the commencement of the August
19, 1983 strike assumed the status of strikers during it;
that the Union's unconditional offer to return to work
encompassed them ; that they , therefore, were entitled to
the preferential reinstatement rights of former economic
strikers; and that Respondent violated Section 8(a)(1) and
(3) of the Act by terminating their employee and rein-
statement rights on institution of its unlawfully imple-
mented loss of seniority and employee status policy in
September 1984 . As a remedy for this conduct, I have
already recommended that Respondent be ordered to re-
scind its unilaterally implemented seniority rules. I fur-
ther shall recommend that Respondent be ordered to
place each individuals ' on a preferential hiring list; that
the reinstatement rights of each continue in accordance
with the applicable principles of law set forth in
Fleetwood Trailers Co., supra , and Laidlaw Corp., supra;
and that, as vacancies occur, whether due to the depar-
ture of employees , increases in the work force, or other-
wise, those of the individuals who are qualified for rein-
statement be offered such positions unless they have ob-
tained regular and substantially equivalent employment.
Further, it shall be recommended that , for any of the in-
dividuals who would have been reinstated between Sep-
tember 1984 and the date of this decision , Respondent be
ordered to reinstate the former striker to the position in
which he would have been placed, had he been recalled,
without prejudice to his seniority and other rights and
privileges and made whole for any loss of earnings, in
the manner set forth above , he may have suffered by
reason of Respondent 's failure to reinstate him. More-
over, I have found that Respondent unlawfully delayed
the eventual reinstatement of former strikers Gerald
Clouse, Terry Ragan , and Terry Johnson by denying
them, and former striker Tim Smith, the opportunity to
form a new spreader machine crew on October 22. I,
therefore, recommend that Clouse, Ragan, and Johnson
be made whole for any wages or benefits lost, in the
manner set forth above , from that date until their respec-
tive eventual reinstatements and that Clouse, Ragan,
Johnson, and Smith be made whole for any wages lost as
a result of being deprived of an opportunity to work on
the spreader machine from October 22 , 1984, until the
date of this decision . I further recommend that Respond-
ent be ordered to afford these individuals preferential
97 These individuals were not identified in this record I leave it to the
compliance stage of this proceeding to identify which laid -off employees
engaged in picketing dung the strike.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consideration for transfer to spreader machine jobs if
they so desire. Next, as to Jose Acosta. I found that Re-
spondent unlawfully terminated his status as an employee
and former economic striker about October 4, 1984. Ac-
cordingly, it shall be recommended that Respondent
treat him in the same manner as the other unlawfully ter-
minated former economic strikers and make him whole
for any losses that he may have incurred as a result of
the discrimination against him in the manner set forth
above. Finally, given the Board's prior finding of unfair
labor practices, I shall recommend a broad cease-and-
desist order herein.38
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed39
ORDER
The Respondent, Rockwood & Company and W. H.
Gonyea Trust No. 1-17 d/b/a Timber Products Co.,
Medford, Oregon, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Withdrawing recognition from and refusing to rec-
ognize and bargain with Local 3-6, International Wood-
workers of America, AFL-CIO, CLC as the exclusive
bargaining representative of its employees in the follow-
ing appropriate unit:
All employees, including temporary and part time
employees; excluding office clerical employees, pro-
fessional employees, guards and supervisors as de-
fined in the Act.
(b) Unilaterally, without giving prior notice to or af-
fording the Union, on behalf of the above employees, an
opportunity to bargain, changing the terms and condi-
tions of employment of employees in the above appropri-
ate unit.
(c) Discriminating against former economic strikers
who were reinstated subsequent to September 13, 1984,
by denying to them their prestrike seniority, treating
them as new employees, and paying them wages below
what they earned prior to the strike.
(d) Terminating the employment, preferential reinstate-
ment, and seniority rights of former economic strikers
who were on layoff status at the time of the 1983 strike
to whom it sent letters soliciting their return to work
during the strike, and who engaged in picketing during
the strike, thereby manifesting their intent to join the
strike and not return to work.
(e) Delaying the reinstatement of former economic
strikers Gerald Clouse, Terry Ragan, and Terry Johnson
and discriminating against them and former economic
striker Tim Smith by not affording the above-named em-
ployees the opportunity to form a swing shift spreader
machine crew.
39 Hickmott Foods, 242 NLRB 1357 (1979)
39 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(f) Terminating the employment, preferential reinstate-
ment, and seniority rights of former economic striker
Jose Acosta.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively with the Union as
the exclusive representative of Respondent's employees
in the above appropriate unit.
(b) Reinstate the terms and conditions of employment
of the employees in the above appropriate unit, which
were in effect as of September 13, 1984, and make the
employees whole for any wages and benefits lost, in the
manner set forth in the remedy section of the decision as
a result of its unlawful unilateral changes.
(c) Restore to each former economic striker who was
reinstated subsequent to September 13, 1984, his prestrike
company seniority and make each individual whole, in
the manner set forth in the remedy section of the deci-
sion for any wages and benefits lost as a result of its dis-
crimination against them.
(d) Rescind its termination of the employment, prefer-
ential reinstatement, and senority rights of the in excess
of 20 laid-off individuals whom I have found to be
former economic strikers; offer immediate and full rein-
statement to any of the individuals who would have been
recalled since September 13, 1984; and reimburse any of
the latter employees for wages and benefits lost in the
manner set forth in the remedy section of the decision.
(e) Reimburse employees Gerald Clouse, Terry Ragan,
and Terry Johnson for any wages or other benefits lost
in the manner set forth in the remedy section of the deci-
sion; make Clouse, Ragan, Johnson, and Tim Smith
whole for any wages lost for the period of time each was
denied work on the spreader machine in the manner set
forth in the remedy section of the decision; and permit
the employees preference in consideration for any avail-
able spreader machine jobs.
(f) Rescind its termination of the employment, prefer-
ential reinstatement, and seniority rights of former eco-
nomic striker Jose Acosta; offer him immediate and full
reinstatement if he would have been reinstated subse-
quent to about October 4, 1984; and in the latter eventu-
ality make him whole in the manner set forth in the
remedy section of the decision.
(g) Remove from its files any reference to the failure
to reinstate and the reasons therefor, for each of the
above employees and notify each in writing that this has
been done and that evidence of the failure to reinstate or
the reasons therefor will not be used as a basis for future
personnel actions against them.
(h) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
ROCKWOOD & CO. 881
(i) Post at its plant in Medford , Oregon, copies of the
attached notice marked "Appendix."40 Copies of the
notice, on forms provided by the Regional Director for
Region 19 , after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
40 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
secutive days in conspicuous places , including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced , or covered by
any other material.
(j) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found.