Westvaco Gauley Woodyard

National Labor Relations Board - Board Decisions

Apr 28, 1980

249 N.L.R.B. 117 (N.L.R.B. 1980)

WESTVACO GAULEY WOODYARD 117
Westvaco Corporation d/b/a Westvaco Gauley Wood-
yard and United Paperworkers International
Union, AFL-CIO-CLC. Case 9-CA-12808
April 28, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On October 29, 1979, Administrative Law Judge
Julius Cohn issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed limited cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Westvaco Cor-
poration d/b/a Westvaco Gauley Woodyard,
Rupert, West Virginia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
I In view of the finding that Respondent has not engaged in good-faith
bargaining following the Union's certification. the initial certification year
shall be considered to begin when Respondent starts to bargain in good
faith pursuant to the recommended bargaining order. See Rhodes St. Clair
Buick, Inc, 242 NLRB No 181 (1979)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
249 NLRB No. 12
WE WILL NOT refuse to bargain collectively
in good faith with United Paperworkers Inter-
national Union, AFL-CIO-CLC, as the exclu-
sive representative of our employees in the ap-
propriate unit concerning rates of pay, wages,
hours of employment, and other conditions of
employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, meet and bargain
collectively in good faith with a duly author-
ized representative of the Union concerning
rates of pay, wages, hours of employment, and
other conditions of employment and, if an un-
derstanding is reached, embody such an under-
standing in a signed agreement. The unit is:
All heavy equipment operators, woodsmen
and local truckdrivers involved in the Com-
pany's logging department of the Bleach
Board Division in the vicinity of Rupert,
West Virginia, excluding all employees of
the Rupert, West Virginia, woodyard and
the Company's Rupert, West Virginia, me-
chanical maintenance shop, office clerical
employees, professional employees, guards,
and supervisors as defined in the Act.
WESTVACO CORPORATION D/B/A
WESTVACO GAULEY WOODYARD
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This pro-
ceeding was heard in Lewisburg, West Virginia, on
March 21, 1979. Upon a charge filed by United Paper-
workers International Union, AFL-CIO-CLC, herein
called the Union, on July 28, 1978, the Regional Direc-
tor for Region 9 issued a complaint on September 19,
1978, alleging that Westvaco Corporation d/b/a West-
vaco Gauley Woodyard, herein called Respondent or the
Company, violated Section 8(a)(1) and (5) of the Act by
refusing to bargain in good faith with the Union. Re-
spondent filed an answer denying the commission of
unfair labor practices.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. The
General Counsel and Respondent submitted briefs, which
have been carefully considered. On the entire record in
this case, and from my observation of the witnesses and
their demeanor, I make the following:
118 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation engaged in log-
ging, woodcutting, and wood processing at its Rupert,
West Virginia, facilities. During the 12 months preceding
the issuance of the complaint, Respondent purchased and
received goods and materials valued in excess of $50,000,
which were shipped to its Rupert, West Virginia, facili-
ties directly from points outside the State of West Vir-
ginia. The complaint alleges, the answer admits, and I
find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
ll. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
After an election conducted on September 10, 1975,
the Union, on March 2, 1976, was certified by the Board
as the exclusive bargaining representative of the employ-
ees in the following unit: All heavy equipment operators,
woodsmen and local truckdrivers involved in the Com-
pany's logging department of the Bleach Board Division
in the vicinity of Rupert, West Virginia, excluding all
employees of the Rupert, West Virginia, woodyard and
its Rupert, West Virginia, mechanical maintenance shop,
office clerical employees, professional employees, guards
and supervisors as defined in the Act.
The Union has represented employees of Respondent
at various facilities for many years, including those at a
papermill in nearby Covington, Virginia. The bargaining
sessions involved herein were conducted by Robert
Smith, on behalf of the Union, and James Dill, industrial
relations manager of Respondent, no strangers to one an-
other as they performed similar functions at Covington
and other installations of Respondent.
The election leading to the Union's certification was a
close one, eventually being decided by the resolution of
one challenged ballot. Respondent contested this deter-
mination by the unfair labor practice route, but the
Board issued its order granting summary judgment and
directing Respondent to bargain with the Union as the
representative of the employees in the unit.'
B. The Negotiations
Smith, service representative of the Union, the sole
witness at the hearing, described in some detail what oc-
curred during the bargaining sessions. The parties had 17
negotiating sessions between August 29, 1977, and May
11, 1978. During the first meeting on August 29, they
agreed principally on ground rules: noneconomic matters
to be discussed before economic, agreement on any
single issue would be predicated on subsequent agree-
ment to a total contract, and the Union to prepare a con-
' 226 NLRB 560 (1976), enfd 562 F.2d 50 (4th Cir. 1977).
tract proposal for the next meeting. On October 20, the
Union submitted its written proposal. Respondent took a
caucus, returned for some explanations, and then ad-
journed the meeting, stating that it would study the
Union's proposal.
The parties met on November 10 when the Company
made a counterproposal in writing. After looking at the
Company's proposal, Smith said he was concerned be-
cause it was not using any of the Union's proposals. Dill
replied that the Company was not interested in the
Union's proposals, that they were too restrictive and
hampered the Company's operations.
At the next meeting, December 8, the Union agreed to
the use of the Company's proposal of November 10 as a
foundation from which to begin work.
The next meeting was on January 31, 1978, and the
principal subject discussed was seniority. The Union had
proposed initially that the Company's actions with re-
spect to promotion, demotion, transfers, layoffs, and
recall be made in accordance with strict seniority. The
Company's proposal was that seniority should be consid-
ered for layoff or promotions only when in its sole dis-
cretion all other factors, including skill, qualification, and
attitude, were equal. The Union now said it would
revamp its seniority clause so as to include consider-
ations of qualifications and abilities along with seniority.
Although the Company had maintained that it was con-
cerned about being able to move the employees on a
day-to-day or hour-to-hour basis, the Union replied that
its position with regard to seniority was limited to a per-
manent vacancy. The Company made no response to the
Union's seniority proposal at this meeting. However,
during the January 31 session, the parties did arrive at an
agreement on a grievance procedure providing for arbi-
tration, and also on a general harmony clause.
The Union repeated its position on seniority at the
next meeting, February 13, further limiting its original
proposal to situations of permanent transfers of employ-
ees. The Company's response at this time was that it
would agree to change from I month to 3 months the
amount of time within which an employee could be re-
called without loss of seniority. Actually this type of re-
sponse throughout this and subsequent meetings was the
Company's proposal on seniority. It never really
changed its original proposal except to gradually in-
crease the recall time until it reached 6 months.
As an additional inducement to the Union on the issue
of seniority, Respondent agreed on February 14 to
extend a funeral leave provision to include additional
members of the employee's family, and to provide the
Union with a copy of the seniority list twice a year.
Also, subject to final agreement on all issues, the parties
had agreed on February 13 to clauses providing for
union recognition, management rights, employer-union
relations, nondiscrimination, grievance procedure, and
term of agreement.
The parties again met on February 21 during which
the Union submitted a new proposal on seniority de-
signed to give Respondent more flexibility. However,
Dill, for the Company, said that this was still too restric-
tive and would hamper its efficiency. The Company then
offered to extend the layoff provision as to loss of senior-
WESTVACO GAULEY WOODYARD 119
ity from 3 to 4 months, and an additional proposal to the
effect that state or Federal law would prevail in the
event of any conflict with the contract; this last being a
matter never requested by the Union, nor had it ever ex-
pressed any interest. The Union also proposed at this
meeting that it would agree to the Company's proposal
giving it the right to have work done by individuals not
in the bargaining unit, if the Company eliminated a
clause to the effect that the work may be done by indi-
viduals who are not employees of the Company. This
was the Company's proposal with the last clause deleted,
and was offered by the Union if the Company would
agree to the Union's last proposal on seniority. Respond-
ent made no direct response to this at the time but did
continue its discussion about needing flexibility.
The next meeting was on February 28 during which
the Company proposed a new article which would pro-
vide for leave of absence to employees for illness or
other reasons at the sole discretion of the Company. This
was tied in to the Union's agreement to the Company's
proposal on seniority and funeral leave. The Union re-
sponded that it could not agree to the Company's senior-
ity proposal without incorporating some language which
would include seniority as a consideration along with
qualifications and abilities. It also required some changes
of language with the funeral leave proposal. With regard
to the Company's proposal concerning leave of absence,
the Union indicated its acceptance if there was provision
for a time period within which an employee could pres-
ent a doctor's supporting certificate for illness. The Com-
pany caucused and returned saying that it could not
agree with the Union's proposal, and at this point the
Company offered to increase the layoff period from 4 to
6 months within which there would be no loss of senior-
ity. The Company also proposed a new article on union
visitations which would permit a union representative to
come on company property at the manager's discretion,
and would be permitted to look into the matters in-
volved in his visit so long as he did not interfere with
the work. The Company coupled this visitation proposal
with total agreement on its offers as to seniority and fu-
neral leave. The Union did not respond to this last pro-
posal.
At the next meeting, March 9, the Company made
some new proposals. It offered to schedule 40 hours for
each employee as much as possible, and to give an em-
ployee 4 hours of pay if he was not notified otherwise
and showed up for work, and also changed its position
with regard to eligibility for holiday pay. Respondent
connected these proposals with the Union's acceptance
of its definition of the bargaining unit, and the Compa-
ny's right to have other individuals not in the bargaining
unit performing bargaining unit work. The Union cau-
cused and reported it could not agree with these propos-
als, but counterproposed that work be scheduled for 5
consecutive days with a workday from 8 a.m. until 4:30
p.m. Finally the Union offered to agree to some of the
Company's language and proposals, provided that the
Company would agree to the union offers on holiday
and seniority. The Company would not agree to this.
The meeting ended with the Company's announcement
that it would be prepared at the next session to talk
about wages and benefits.
At the next meeting, March 15, the Company present-
ed a written proposal which included items agreed upon
on February 14, and contained other unsettled proposals
such as leave of absence, union visitations, and hours of
work. In addition, the Company included a wage and
benefit proposal. The group insurance and pension por-
tions of this proposal were the same as the employees
had been receiving at the time. The Union responded to
this latter proposal by stating that the group insurance on
basic Blue Cross and Blue Shield was acceptable, as was
the life insurance. However, the Union wanted to in-
crease sickness and accident insurance and also the pen-
sion. The present pension rate of unit employees was
$6.50 per month for each year of service, and the Union
wanted to increase this to $11 per month per year effec-
tive April 1, 1978, which was the level being given by
the Company to the papermill unit. The Company re-
sponded to this demand by proposing that the pension be
raised to $7 per month, and that the starting wage rate
for employees be $3.85 an hour. Smith testified that com-
pany documents reflect that no one in the bargaining
unit was making less than $3.85 an hour at the time.
The Company's wage proposal was simply to incorpo-
rate its established procedures to the effect that wage in-
creases shall be made on the basis of merit at the discre-
tion of management. It provided that in determining
merit, the following factors should be considered: "Qual-
ity of work, quantity of work, attendance, initiative, re-
sponsibility, and overall job performance." The starting
rate of $3.85 an hour would be guaranteed. The Union
initially counterproposed for a wage increase for each
classification and an additional increase 6 months thereaf-
ter, which the Company rejected as being unacceptable
and unreasonable. After a lengthy caucus, the Union fi-
nally told the Company that it would agree with their
wage administration program if it were jointly adminis-
tered. When that was rejected, the Union urged that if a
wage agreement could not jointly be reached, a disinter-
ested third party should make the determination. The
Company took this under advisement.
The next meeting was on March 30, at which time the
Company said that it could not agree to the Union's
wage administration proposal, because too many prob-
lems would be raised by an arbitrator setting a wage pat-
tern at this division of the Company. The Union then
submitted its own written proposal on wages and fringe
benefits, in which it agreed to the sickness and accident
benefits proposed by the Company, and then cut in half
its own proposal of March 15 for wage increases. The
Company made no further proposal about wages at this
meeting, and the discussion ended with the Company
stating, at the Union's request, that it would look again
at the seniority proposals.
On April 6, the next meeting, Smith handed Dill a re-
vised written proposal. After a caucus, the Company said
that they had looked at the last proposal, did not feel
that they were any further along, and therefore had
nothing more to offer, and that "the Union had the Com-
pany's best offer." Smith replied if that was the Compa-
ny's best offer, it was unacceptable, and if the Company
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was going to leave it as it was, then no complete agree-
ment had been reached. Smith asked Dill if he would
consider using Federal Mediation and Dill responded
whatever was the Union's pleasure. As the meeting
broke up, Smith again asked Dill about Federal Media-
tion and the reply was that they had the Company's best
offer.
By letter dated April 7, the Company informed the
Union that it considered negotiations as having reached
an impasse. It advised that, effective April 10, the Com-
pany would implement the benefits as contained in its
wage and benefit proposal of April 6. The Union re-
sponded on April 14 indicating it had no objection to the
implementation of the Company's wage proposal insofar
as it was in fulfillment of law, and so long as previously
existing benefits were not taken away, but the Union still
expected to negotiate a wage and fringe benefit package.
In the interim the Union had arranged for meetings
with a Federal Mediator which occurred on April 26
and May 11. The Union through the Mediator made a
proposal on the four or five outstanding items including
its offer of a modified union shop clause with checkoff, a
demand that the Company pay time and a half after 8
hours, permit vacations to be taken by seniority with cer-
tain exceptions, and to apply seniority to permanent
transfers. The Union also would agree to the Company's
proposal as to the performance of bargaining unit work
by nonbargaining unit employees, provided that the
Company would agree to eliminate the clause that such
individuals may not necessarily be employees of the Em-
ployer. After a caucus the Company returned and stated
that they could not go along with the Union's proposal.
There were no more meetings with the Mediator.
Although there were some contacts between Smith
and Dill, no direct meetings took place thereafter. Smith
asked Dill about getting a contract during the course of
a nonrelated meeting and the latter indicated that the
Company's offer was still there if the Union wanted to
take it. In July, Smith received the same response. On
October 26 during negotiations at the Company's two
nearby papermills, the Union requested including the unit
herein, in multiple bargaining, with the other units, and
the Company stated it was not interested. By letter dated
February 16, 1979, the Union wrote Respondent to the
effect that as the strike and negotiations at the papermill
were completed, it would like to proceed with negotia-
tions and requested dates. The Company responded on
February 23 suggesting availability on either of two
dates in March. However, the hearing in this case inter-
vened and no negotiations occurred.
C. Analysis and Conclusions
The General Counsel contends that despite the number
of bargaining sessions, Respondent made no concessions
in critical areas such as wages, benefits, seniority, union
security, and the right of the employer to subcontract. It
is urged that Respondent engaged in a premeditated plan
not to enter into an agreement with the Union, and en-
gaged merely in surface bargaining. Respondent on the
other hand relies on the statute which does not require
agreement or concessions to the proposals of other par-
ties, and that the obligation of an employer to bargain in
good faith does not require the yielding of positions
"fairly maintained."
The Board has put the bargaining obligation in the fol-
lowing perspective: "It is a fundamental precept of labor
relations that 'the obligation to bargain collectively does
not compel either party to agree to a proposal or require
the making of a concession.' However . . . the Board
can and does consider the totality of the employer's ac-
tions to assess its motivation in determining whether it
was really engaging in surface bargaining with no genu-
ine intention to reach agreement." 2
I find in the total context of the circumstances herein,
as detailed in the testimony of Union Representative
Smith, the sole witness at this hearing, that Respondent
did indeed engage in surface bargaining as a predeter-
mined plan to avoid reaching a collective-bargaining
agreement with the Union.3
The strategy of Respondent was to parry a substantive
proposal by the Union with an offer to give something to
the employees in an unrelated and rather insignificant
area far removed from that in which the Union was
making its proposal. Thus in connection with union pro-
posals made at various times relating to seniority or
wages, the Company would suddenly offer to increase
the breadth of a proposal having to do with funeral
leave, or offer some language to the effect that conflicts
between the collective-bargaining agreement and existing
state or Federal law should be resolved in favor of ad-
herence to the law.
The Union was seeking a broad seniority provision,
which it finally reduced to a mere request that the Com-
pany just consider length of service as one of the factors
utilized in making permanent transfers or promotions.
Respondent kept rejecting any of the Union's offers on
the basis of required "flexibility" in handling its oper-
ations. The uncontradicted testimony of Smith is to the
effect that the Company was referring to its need to ma-
neuver people in the day-to-day operations. The Union
acceded to this and, as noted, agreed to confine its se-
niority proposal to permanent transfers and promotions,
giving the Company free range in its manipulation of
personnel during the day. At that point Respondent no
longer addressed itself to the issue of flexibility, but
countered by offering to increase the length of time
within which an employee could be recalled without loss
of seniority. Thus, at one meeting it had agreed to extend
that period for 3 or 4 months and finally to 4 to 6
months.
Having announced at the prior meeting that it would
proceed to submit and discuss a wage proposal, Re-
spondent, on March 15, presented the Union with a so-
called wage and benefit proposal. The wage proposal
provided for Respondent to administer wage increases to
be made on the basis of merit at its sole discretion, set-
ting forth six factors it would use in determining merit.
2 Tomco Communications, Inc., 220 NLRB 636, 637 (1975).
' The fact that Respoindent has a longstanding collective-bargaining re-
lationship with this Union covering other units and facilities is of no avail
to Respondent herein, as I am obliged to consider the facts on this
record, from which it appears to me that, for reasons best known to
itself, Respondent was determined not to reach an agreement with the
Union in this unit despite its relatively small size.
WESTVACO GAULEY WOODYARD 121
The Union made a counterproposal to adjust all the clas-
sifications with a percentage increase for each and an ad-
ditional amount 6 months later, which was rejected by
the Company. After a caucus, the Union met the Compa-
ny's proposal on wage administration by offering to
accept it if it were jointly administered. This again was
rejected by Respondent, and the Union then countered
with a proposal for joint administration, but with a disin-
terested third party to be the decisive factor. At the next
meeting, on March 30, Respondent replied that it could
not agree with the Union's wage administration proposal
because it would not have an arbitrator in effect setting
the wage pattern. The Union then submitted a new writ-
ten wage proposal which in effect substantially reduced
its proposal of March 15. Again Respondent rejected the
Union's proposal, not moving from its original wage ad-
ministration proposal. As to the benefit proposal consid-
ered together with the wage program, the Union had in
effect accepted most of the benefit program proposed by
the Company which actually involved no change in cur-
rent conditions. However, the Union wanted an increase
in pension to be equal to that of the mill employees. The
Company then agreed to increase its pension proposal by
50 cents per month, per year, per employment, still total-
ing $7 as against $11 received by mill employees.
Respondent relies on Atlantic Research Corporation,
Desamatic Products Division, 144 NLRB 285 (1963),
where the Board adopted a finding by Administrative
Law Judge Paul Bisgyer that Respondent's insistence on
reserving to itself as a management prerogative the right
to grant individual merit increases was not in derogation
of its bargaining obligation. However, in that case Ad-
ministrative Law Judge Bisgyer went on to note that
"there is no question that there was full negotiation and
a complete change of views regarding this subject." He
also found that Respondent had modified its original pro-
posal and had offered to discuss in advance with the
Union any contemplated increase, its reasons and
amount, and to furnish it with necessary information,
proposals rejected by the Union in that case. None of
these factors are present in the instant case. There was
no "full negotiation" on this proposal. Respondent out of
hand rejected any union proposal or modified proposal
for a percentage increase, and rejected any attempt by
the Union to discuss or modify the Company's proposal
for the awarding of merit increases. Curiously, at the
final meeting before the Mediator, the Union actually ac-
cepted Respondent's proposal on wages but was met by
Respondent's often repeated statement that the Union
had its final offer.
Respondent rejected the Union's proposal for a union-
security provision in the agreement. In its brief, Re-
spondent explains that it held out against a union shop
because the election vote had been split and that, accord-
ingly, it was unreasonable to require new employees to
join the Union when its support was split at the jobsite.
Board cases such as S & L Co., of Billings, and Associated
Industries of Billings, Montana, 159 NLRB 903 (1966),
and Furr's Cafeteria. Inc., Cafeteria NVo. 16, 179 NLRB
240 (1969), would seem to support the proposition that a
union-security clause would not be fair to all employees
because of the Union's close margin of victory. Howev-
er, I do not believe that Respondent can avail itself of
such a finding in the circumstances in the case herein. In
Billings, it was found that there had been a turnover in
personnel since the date of the election, and in Furr's, the
Board found that respondent therein had expressed a
good-faith doubt of the majority status, a contention it
found "not so frivolous as to compel the conclusion that
it was engaging in a pattern of surface bargaining .... "
Moreover, in both cases the respondents had offered a
maintenance of membership clause which the unions had
rejected. None of those elements are present in this case.
Moreover, this record is devoid of any meaningful bar-
gaining on the part of Respondent to the Union's propos-
al of a union-security provision. Finally, before the Me-
diator, the Union modified its original proposal and re-
quested merely maintenance-of-membership. At this
point the Company did not respond but merely reiterated
that the Union had its best offer.
The remaining subject of bargaining upon which the
parties were apart is with regard to the Company's pro-
posal as to subcontracting of work. The Union would
agree to Respondent's proposed article I, section III, en-
titled "Nonbargaining unit personnel" which read "noth-
ing in this agreement shall, in anyway, limit the rights of
individuals who are not in the bargaining unit from
doing work done by bargaining unit employees, whether
or not such individuals are employees of the employer,"
if the Company dropped the last clause "whether or not
such individuals are employees of the employer." Again
Respondent rejected the Union's offer. Looking at Re-
spondent's proposal without the last clause, it would
appear that the Company in any case would have, with
union approval, the right to unlimited subcontracting of
bargaining unit work particularly as the word used in the
provision is "individuals" and not "employees."
In sum, I find that Respondent did not engage in
meaningful bargaining with respect to very substantial
subjects of bargaining. While it is true that Respondent
did rather early agree to a grievance procedure including
arbitration, a very important subject, I find, in my own
attempt to assess Respondent's motivation, that this con-
cession was only a pawn in its plan to engage in surface
bargaining with no genuine intention to reach agreement.
As the Board indicated in Tomco, supra, Respondent's in-
sistence on its last and best offer was nothing more than
a demand on its part that the Union abdicate the most
substantial rights it would normally possess to represent
the employees involved. I find, therefore, that in the cir-
cumstances of this case Respondent engaged in bad-faith
bargaining and thereby violated Section 8(a)(5) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occur-
ring in connection with its operations described above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(5) and (1) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom, and to take appropriate affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent had engaged in bad-
faith bargaining over a lengthy period of time without
intention of reaching an agreement with the Union, I
shall recommend a general bargaining order, with the
understanding that, inasmuch as unit employees have
been deprived of the benefits of the certification year,
said year shall be deemed to begin on the date that Re-
spondent commenced to bargain in good faith.
As to the unilateral changes in wages as a result of Re-
spondent's implementation of its wage offer, the Union
had to some extent acquiesced in this action as it ap-
peared to be no more than the carrying out by Respond-
ent of its usual policy of granting merit increases. How-
ever, the Union did reserve its rights with respect to bar-
gaining concerning wages. Accordingly, I shall not rec-
ommend that Respondent roll back any increases in
wages or other benefits received by employees since its
implementation on April 10, 1978, of its so called wage
offer to the Union. However, in connection with the
general bargaining order to be issued, the Union shall of
course have the right to bargain concerning wages,
among other things.
CONCLUSIONS OF LAW
I. Respondent is, and at all times material herein has
been, engaged in commerce within the meaning of Sec-
tion 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 heavy equipment operators, woodsmen, and
local truckdrivers involved in the Company's logging de-
partment of the Bleach Board Division, in the vicinity of
Rupert, West Virginia, excluding all employees of the
Rupert, WestVirginia, woodyard and its Rupert, West
Virginia, mechanical shop, office clerical employees, pro-
fessional 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 on or about January 31, 1978, and continuing
thereafter to date, Respondent has, by its overall course
of conduct in the contract negotiations, refused to bar-
gain collectively in good faith concerning wages, hours
of employment, and other terms and conditions of em-
ployment in violation of Section 8(a)(5) and (1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, and conclusions of
law, and the entire record i this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER4
The Respondent, Westvaco Corporation d/b/a West-
vaco Gauley Woodyard, Rupert, West Virginia, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
United Paperworkers International Union, AFL-CIO-
CLC, as the exclusive representative of the employees in
the unit described below, concerning rates of pay, wages,
hours of employment, and other conditions of employ-
ment: All heavy equipment operators, woodsmen, and
local truckdrivers involved in Respondent's logging de-
partment of the Bleach Board Division, in the vicinity of
Rupert, West Virginia, excluding all employees of the
Rupert, West Virginia, woodyard, mechanical mainte-
nance shop, office clerical employees, professional em-
ployees, guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights protected under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith
with the above-named Union as the exclusive representa-
tive of all employees in the unit described above, con-
cerning rates of pay, wages, hours of employment, and
other conditions of employment, and, if an understanding
is reached, embody such understanding in a signed agree-
ment.
(b) Post at its place of business in Rupert, West Vir-
ginia, copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by an au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
4 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."