Crown Zellerbach Corp.

CROWN ZELLERBACH :CORPORATION 753 CROWN ZELLERBACH CORPORATIOII^, SILrcoos DIVISION and INTERNA- TIONAL WOODWORKERS OF AMERICA, LOCAL 7-140, CIO. Case No. 36-CA-147. July 30,1951 Decision and Order. On December 26, 1950, Trial Examiner A. Bruce Hunt issued his intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom .and take certain affirmative action, as set forth in the copy of the intermediate. Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a brief in support thereof. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and for the reasons hereinafter stated we find merit in certain of the Respondent's, exceptions. As more fully set forth in the Intermediate Report attached hereto,, the alleged refusal to bargain consisted of the Respondent's action in. establishing a change in a, contract piece rate to compensate for new and improved equipment. The Respondent made the change with the cooperation of Stonelake, the particular employee then affected.. Although Stonelake was a member of the Union's plant committee,, he had not been authorized to act in its behalf in this matter.' Upon: protest, the Respondent met with the Union to discuss the matter. Apparently the only barrier to an amicable settlement of the dispute. was the failure of the parties to agree upon whether the contract piece rate should be reestablished during the period of the discussions. The record discloses that in the past, similar isolated disputes were, in fact amicably settled as a result of collective bargaining after the event. Moreover, the contract established grievance and arbitra- tion machinery to handle matters involving, as this did, interpretation and administration of the contract.. In this instance,. however, the- Union made no attempt to utilize such grievance and arbitration ma- chinery,. but instead filed the charge upon which the complaint herein is based. Under these circumstances, we do not believe that the conduct of the -Respondent was' part of a conscious campaign on its part to I We agree with the Trial Examiner that, under the circumstances here, the rate was not established through bilateral action, nor did Stonelake 's knowledge . of the rate change con- stitute notice thereof to the Union ; • Cf. Union Screw Products, 78 NLRB 1107. 95 NLRB No. 102. 754 DECISIONS"OF NATIONAL LABOR RELATIONS BOARD undermine the authority and prestige of the Union as the collective bargaining representative of the Respondent's employees or to evade the Respondent's obligation to recognize and deal with the Union as such representative. On the contrary, we are convinced that the facts amply support the opposite conclusion. As already noted, the parties' ability to conduct successful collective bargaining in similar situations has been demonstrated in the past 2 Here, the Respondent's willingness to continue that pattern of harmonious bargaining was demonstrated by the fact that the Respondent met with the Union immediately upon receipt of the. Union's protest concerning the action taken.3 That this was not an 'idle gesture is indicated by the Re- spondent's expression of opinion that a properly negotiated rate should be made effective retroactively to the date of the changed conditions 4 Further evidence of the Respondent's acceptance of the collective bargaining principle is the fact that at the time of the hearing on this matter the parties were engaged in negotiating the terms of a new contract. In view of this background of a peaceful and what appears to be a wholly salutary employer-employee relationship, we are reluctant to issue a remedial collective bargaining order as a result of the Respondent's isolated unilateral action. Particularly is this so since the parties have failed to utilize the contractual procedures established for bargaining concerning the interpretation and administration of their contract, and where there is apparently no serious obstacle to an amicable settlement of the issue through bargaining within the framework provided in that contract. Indeed, the Board has fre- quently stated that the stability of labor relations which the statute seeks to accomplish through the encouragement of the collective bar- gaining process ultimately depends upon the channelization of the collective bargaining relationship within the procedures of a collective bargaining agreement. By encouraging the utilization of such pro- cedures in this case, we believe that statutory policy will best be effectuated. Affirmative Board action would on the other hand put the Board in the position of policing collective bargaining agreements, a role we are unwilling to assume.5 Accordingly, we shall dismiss the complaint without determining whether the Respondent's conduct would, under other circumstances, warrant the issuance of a remedial order. ' The importance of this factor was considered in Consolidated Aircraft Corporation,. 47 NLRB 694, affirmed ; partially reversed on other grounds , 141 F. 2d 786 (C. A. 9). $ See Massey Gin and Machine Workers, Inc., 78 NLRB 189. ' We fail to see how this approach would in any way prejudice the 'Union 's bargaining -,position In this matter. See Central Metallic Casket, 91 NLRB 572. Timken Roller Rearing, 70 NLRB 500. , See Marlboro Cotton Mills, 53 NLRB 965; Consolidated Aircraft Corporation, supra; also see Midland Broadcasting Company, 93 NLRB 455. . CROWN ZELLERBACH CORPORATION 755 Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the complaint in • this case against the Respondent, Crown Zellerbach Corporation, Siltcoos Division,. Port- land, Oregon, be, and it hereby is, dismissed. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed by International Woodworkers of America, Local 7-140, CIO, Reedsport, Oregon, herein called the Union, the General Counsel of the National Labor Relations Board,' by the Regional Director for the Nineteenth Region (Seattle, Washington), issued a complaint dated June 8, 1950, against Crown Zellerbach Corporation, Portland, Oregon, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the Respondent and the Union, and a copy of the charge was duly served upon the respondent. With respect to the unfair labor practices, the complaint alleged in substance that on or about February 3, 1950, the Respondent bargained directly and indi- vidually with its employees at its Siltcoos Division, Gardiner, Oregon, and refused, and has since continued to refuse, to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, although a majority of said employees had designated the Union' as their repre- sentative for such purposes. On June 20, 1950, the Respondent filed its answer which, as amended at the hearing, admits certain allegations of the complaint concerning its corporate structure and business activities and that the Union is the exclusive representative of employees in an appropriate bargaining unit, but denies that it engaged in unfair labor practices. Pursuant to notice, a hearing was held on October 12, 1950, at Coos Bay, Oregon, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and the Union were represented by counsel, and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the hearing, the General Counsel moved that the pleadings be conformed to the proof as to minor matters, and this motion was granted without objection. The parties waived oral argument, but pursuant to leave granted each of them filed a brief. Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Nevada corporation, is engaged in the business of pulp and paper manufacture in the State of Oregon. At its Siltcoos Division, with which this proceeding is concerned, the Respondent engages in logging operations. 'The General Counsel and the attorney representing him at the hearing are referred to as the General Counsel. The National Labor Relations Board is referred to as the Board. 961974-52-vol. 95-49 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the year 1949, the Respondent's. sales of pulp and paper exceeded $100,000 in value, at least 50 percent of which were shipped to points outside the State of Oregon . There is no dispute, and I find, that the Respondent is engaged in commerce within the meaning of the Act. . II. THE ORGANIZATION INVOLVED International Woodworkers of America, Local 7-140, CIO, is a labor organiza- tion, admitting to membership employees of the Respondent. III. THE REFUSAL TO BARGAIN COLLECTIVELY A. The appropriate unit and the Union's majority states The parties are agreed , and I find, that all of the Respondent 's employees at its Siltcoos Division , except supervisory and office employees , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. The parties also agree , and I find, that at all times since 1941 the Union has been the duly designated representative of a majority of the employees in the appropriate unit and, pursuant to Section 9 (a) of the Act, has been and , is now the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment , and other conditions of employment. B. The issue The basic question is whether certain reductions in the rates of pay for "power saw bucking," to figures below those provided in the contract between the Re- spondent and the Union , were made by the Respondent without bargaining col- lectively with the Union. Although the reductions were made on February 3, 1950, the question requires a recitation of certain facts in earlier years. C. The facts . "Bucking" timber is a term applied to cutting fallen trees into specified log lengths for transportation out of the woods. Bucking may be by hand saw or power saw, and at the Respondent's Siltcoos Division it was principally by hand saw until the latter part of 1949. The employees who perform the bucking operations are called "buckers." They are compensated in either of two ways, at an hourly rate or at piece rates. The hourly rates for bucking and for various other operations are negotiated on an employer -wide basis in bargaining con- ferences between Lumbermen 's Industrial Relations Committee, representing the Respondent, and Northwest Regional Negotiating Committee, representing the Union and other local labor organizations affiliated with International Wood- workers of America. The piece rates are negotiated on the local level of each of the Respondent's operations according to the particular conditions there' existing. We are concerned here with reductions in the piece rates for power saw bucking from , 79 to 70 cents per 1 ,000 feet, in instances where the trees have been cut down, and from 85 to 75 cents in instances where the trees have been blown down by the wind . The testimony deals primarily with the change from 79 to 70 cents, rather than with the change in the "windfall" rate. . During 1948, the buckers at the Respondent's Siltcoos Division used hand saws, and the contract between the Respondent and the Union did not contain piece rates for power saw bucking. It did contain hourly rates , as negotiated on the higher level, however. During October of that year, Jalmar Stonelake , a bucker,, undertook the use of a power saw which had been acquired by the Respondent CROWN ZELL>JRBACH 'CORRPORATION 757 several months previously. After about 2 days' 'use, Stonelake discarded the saw because of a near accident. Stonelake was paid for this work initially at the hourly rate provided in the contract. He later received supplementary compensation at a piece rate of 79 cents per 1,000 feet, under circumstances described below. Notwithstanding the limited use of the power saw by Stonelake, the Respond- ent undertook a study to determine appropriate' piece rates. James E. Barker, its head checker, made a survey at the Siltcoos Division and other operations, examining the timber, the terrain, the presence of underbrush, and related factors, and decided upon the rate of 79 cents for the Siltcoos operations. Stonelake's output during the period of about 2 days was computed at this rate, which showed larger earnings than at the hourly rate, and he was paid the difference. Stonelake did not again use the saw, but during early 19,49 another bucker, one Smith, used it for a few days and was paid at the 79 cent rate. The saw soon proved unsatisfactory and its use was discontinued. The rate of 79 cents had not been discussed by the Respondent with William L. Harris, the Union' s business agent and principal representative. The 1949 contract is the first agreement between the Respondent and the Union to contain piece rates for power saw bucking. It is dated April 1, 1949, its effective date, but the employer-wide negotiations were not completed until somewhat later. In addition, there were certain negotiations on the local level and the contract was not signed until October 27, 1949. Since piece rates are negotiated at local levels only, there had been no discussion of them at the employer-wide conferences. Nor was there any discussion of the 79-cent rate, with 85 cents for "windfalls," in the local level negotiations. The Respondent included a proposal of them among other matters, and the Union accepted. them without comment. Thus, they became a part of the 1949 contract. During the summer of 1949, before the contract was signed, a new and im- proved power saw was demonstrated at the Siltcoos operations. Sometime thereafter, Stonelake expressed an interest in it, and E. S. Young, logging superintendent, learned of Stonelake's interest and talked with him. Young told Stonelake that the Respondent would not purchase the saw unless assured that it would be given a fair trial and that, because it was of improved manu facture, the piece rate might be lowered. Stonelake agreed to try the saw. Several weeks later the Respondent purchased it. Near the end of October, Stonelake began to use the saw with the understanding, voiced to him by Ted Young, the Respondent's "bull buck," that he would be paid at the hourly rate until a piece rate had been established. Since the contract providing for the 79-cent rate was signed on October 27, as above mentioned, it is apparent that the signing occurred at about the time Stonelake began to use the new saw, and sometime after Superintendent Young had told him that there might be a lower piece rate. A possible controversy arising from a lower rate apnears not to have been contemplated by the Respondent. Its principal representative in negotiations with the Union, Personnel and Safety Supervisor Ted Kepner, testified that the Respondent regarded the 79-cent rate as applicable only to the saw which had been used briefly during 1948 and early 1949 by Stonelake and Smith. The contract itself contains no such limitation. After Stonelake began to use the new saw in late October 1949, there was a delay of several months in the initial steps to,establish a different piece rate. Barker, whose survey was essential, was ill and unable to make the study. Dur ing early February 1950, Barker visited the Siltcoos operations and concluded that a rate of 70 cents, with 75 cents for "windfalls," was appropriate, and he so notified Superintendent Young. On February 3, Young talked with Stone- 758 DECISIONS OP NATIONAL LABOR RELATIONS BOARD lake. At that time Stonelike was the. only power saw bucker. He was also a member of the Union's plant committee, being a representative from the cutting and bucking crew, and, as appears below, the Respondent contends that in establishing the new piece rate it correctly dealt with: Stonelake as the repre- sentative of the Union. Young told Stonelake that Barker had recommended a rate of 70 cents, that "to be fair" the Respondent "figured" that it should pay Stonelake at the rate of 79 cents during his "breaking in" period through November, and that the 70 cent rate would be applicable to work performed on and after December 1. Stonelake replied, "Okay." Nothing was said about Stonelake's official position in the Union, and Stonelake testified. credibly that he was unaware of the 79-cent rate in the contract? Subsequently, Stonelake's earnings were computed on a piece-rate basis for the approximately 3 months he had operated the new saw, and he was paid the difference between his earn- ings on that basis and the amount already paid to him at the hourly rate. Before the payment was made, however, the Union challenged the new rate as not having been negotiated with it and the Respondent agreed to meet with the Union on the issue, as discussed below. Soon after the conversation between Superintendent Young and Stonelake on February 3, the Union held a meeting . Business Agent Harris testified that he had "heard a rumor" that the piece rate for power saw bucking had been changed. He asked Stonelake about it. Stonelake replied that the rate being paid was 70 cents, and Harris said that the contract rate was 79 cents. On February 13, Harris wrote to Kepner that the new rate had not been agreed upon at a "meet- ing" with the Union, and asked for a conference on this and another issue. On February 21, Kepner , who had not been advised by the Respondent that a new piece rate for power saw bucking had become effective at the Siltcoos operations, wrote to Harris that he was agreeable to a conference and that he was "checking on . . . the power sawing bucking rates." On March 16, the conference was held. Present for the Respondent were Kepner, Superintendent Young, and one Hoffman, secretary of the Oregon Coast Operators Association. Present for the Union were Business Agent Harris and members of the Union's plant committee. Harris said that there had been a unilateral reduction in the piece rate. The Respondent denied this, and as- serted that it had dealt correctly with Stonelake, then the only power saw bucker and a member of the plant committee ; that precedents in the relationship between the Respondent and the Union, set out below, warranted the dealing with Stone- lake ; and that, in the words of Young, the Respondent "didn't think it was neces- sary to satisfy everybody."' The discussion on this issue was fruitless. Harris insisted that the Respondent restore the 79-cent rate and thereafter negotiate a change. The Respondent sought to show the basis upon which the rate of 70 cents had been reached and that Stonelake's earnings had not been diminished, but Harris was adamant that the 79-cent rate be restored before there were any discussions looking toward a change. The Respondent, insisting that the new- rate had been negotiated properly, refused to restore the . 79-cent rate. The. negotiators turned to other matters after Harris said that he would carry the issue "further." He did so by filing the charge which initiated the complaint 8 Stonelake's testimony that he did not know of the contract piece rate for power, saw bucking has support in the record. It must be remembered that when the contract was negotiated there had been no discussion of the rate, and that power saws for bucking were not then in use at the Siltcoos operations. 8 As noted above, Stonelake was then the only power saw bucker. After February 3, 1950,. the date the new rate was fixed, other and unidentified employees began using power saws for bucking. - CROWN ZELLERBACH CORPORATION. 759 herein, and, as pointed out below, the Respondent asserts that the grievance procedure of the contract should have been followed. D. The pertinent provisions of the contract The parties call attention to various provisions in the 1949 contract between the Respondent and the, Union. Those which require recitation are quoted below. ARTICLE III-PLANT COMMITTEE : There shall be elected by the employees in the plant of the Employer under the supervision of the Union a committee of three (3) members to be known as the Plant Committee, to be elected from among the employees in said plant . . . It shall be the duty of said committee promptly to meet with the Employer to adjust all grievances, or cases of alleged unjust discharge, arising between the Employer and the Union under this Agreement . If no agreement is reached between the Plant Committee and the management, the question in dispute shall be handled under the provisions of Article IV. ARTICLE IV-METHODS FOR HANDLING DISPUTES AND CASES OF ALLEGED UNJUST DISCHARGE : All disputes, grievances, or complaints arising under or out of this Agreement shall be settled by negotiation between the Employer and the Plant Committee, said committee to have the right to call in the local Union representative to assist in such adjustment, it being the intent of this Article . that all such disputes, grievances, or complaints arising hereunder shall be settled amicably without strikes, lockouts, or other stoppages of work. In the event, however, that the local management of the Employer and the Plant Committee with the assistance of the local Union representa- tives are unable to reach a satisfactory settlement of any' such matters, the local Union shall within seven (7) days of such final disagreement notify the logging manager of the Crown Zellerbach Corporation at 1400 Public Service Building, Portland 4, Oregon, of such disagreement in writing and shall wait seven (7) days in which to get a satisfactory response or a meeting to discuss and adjust such gievances. If the latter parties fail to reach an agreement, the matter shall then be submitted to the Federal Mediation and Conciliation Service. ARTICLE XIV-WAGES : (b) Falling and bucking shall be continued under the system and con- ditions now being followed in the camps which are parties to this Agree- ment. In order to take care of unusual conditions, adjustments may be made by agreement between the Plant Committee and the Employer. It is agreed that there shall be no extension of piecework into departments where work was formerly and customarily paid for on an hourly basis. This provision shall in no way be construed to mean that a bona fide contract cannot be entered into,, provided such contract is conducted-in conformity with the provisions of this Agreement. [Emphasis supplied.] (f) The wage schedule in effect as of April 1, 1949 is attached to this agreement and marked "Exhibit C". Should there be any subsequent changes during the life 'of this Agreement, copies of any such wage change shall be certified by the Employer and forwarded to the local Union to be attached to the Agreement. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ARTICLE XXIII-REVISION AND TERMINATION : (d) This Agreement may' be amended or revised at any time during the existence of the Agreement, provided such amendments or revisions are mutually approved by the parties hereto. "Exhibit C", the wage schedule, fixes the hourly rate for power saw bucking at $2.05. The piece rates, based- upon maximum log lengths of 38 feet, were fixed at 79 cents, with 85 cents for "windfalls," per 1,000 feet. E. Conclusions .As provided in the contract, the bargaining representatives of the em- ployees, in matters involving alterations in piece rates by reason of "un- usual conditions," were the members of the plant committee. In practice, these members insisted upon being accompanied by Business Agent Harris in all their negotiations with the Respondent. Our first question is whether the decrease in the piece rates was by agree- ment between the Respondent and the plant committee. The Respondent argues that it dealt with Stonelake, a plant committeeman, as the representative of the Union in conformity with the contract. On the other hand, the General Counsel and the Union argue that Stonelake was not empowered to act on behalf. of the Union in this instance, that he was only one of the plant com- mitteemen, and that the Respondent really dealt. with him as 'the sole power saw bucker rather than in his capacity as a committeeman.' I do not believe that the Respondent's action in decreasing the piece rates was in accord with the provisions of the contract. The action, in my view, was unilateral and not the result of collective bargaining with the representatives of the employees. Superintendent Young, a witness for the Respondent, testified that he "did not think that the union or the union committee was interested" at the time of his initial conversation with Stonelake about the use of the improved 'saw and that he talked with Stonelake then in the latter's capacity as a bucker. His con- versation with Stonelake when the new rates were fixed on February 3, 1950, appears to have been on the same basis. ' There was no reference to Stonelake's position as a plant committeeman or to the requirement that the Respondent deal with the committee. Young simply explained the new rate and its appli- cation to work already done by Stonelake, and the latter replied, "Okay." -Stonelake was not empowered to act for the Union in the matter, and the Respond- ent did not seek to deal with the plant committee. Our next question is whether the Respondent's conduct, in establishing the new piece rates and dealing with Stonelake alone, was consistent with the con- struction placed by the Respondent and the Union upon pertinent provisions of the 1949 contract and like provisions of earlier agreements.. More specifically, was the Respondent warranted by its past relationships with the Union in dealing directly with a single committeeman, who was then the only employee whose earnings would be affected by changes in the contractual rates of pay? Several instances are advanced by the Respondent to support an affirmative answer. First, during 1946 the Respondent and the Union discussed the matter of changing employees from one job to another, which sometimes resulted in an employee's working in a new job at a rate of pay differing from that which he had earned in the former job. Business Agent Harris asked that the plant committee be consulted in advance of a transfer. The, Respondent opposed this request, and Harris agreed that it would be sufficient for the Respondent to confer 'initially -.4 Although the contract provides for only three committeemen, the Union at times has elected a larger number. CROWN ZELLERBACH CORPORATION 761 with the member of the committee from the particular crew in which the employee was working or, in the alternative, with the shop steward. I do not believe that this incident is apposite. The Union's willingness that the Respondent confer with a plant committeeman or the shop stew ard' before transferring an employee from one job to another, although the transfer might involve a lowering of the. employee's rate of pay because the contract rate for the new job classification might be less than that for the former job classification, does not connote a willingness. on the, part of the Union that the rates of pay fixed by the contract for particular job classifications . be altered -by-the -Respondent after consultation with a single committeeman. Second, there are several instances where, following the negotiation of hourly wage increases on an em- ployer-wide basis, new piece rates to be representative of the new hourly rates were formulated and submitted by the Respondent to the employees for their acceptance.or rejection in certain situations. In these instances, however, the Respondent did not deal originally with the employees themselves. The practice was for the Respondent to submit the new piece-rate proposals to Harris and the plant committee and, after obtaining the approval of the Union's repre- sentatives on new piece rates, to submit to the employees the question whether they preferred to work at the new hourly rates or piece rates under conditions then existing in the woods. I do not regard these instances as supporting the Respondent's position. The new piece rates had been established on the local level after conferences between the Respondent and the Union. Thereafter, the Respondent dealt with the men themselves on the application of the rates. That is quite different from our situation, where the contract piece rate had been fixed by negotiations, and the Respondent changed it during the contract period without consultation with the Union. Third, during November 1948, the Respondent found it necessary -to change the cutting lengths of logs because of transportation requirements. Since the piece rates for the fallers, who cut down the trees, and the buckers are based in part upon long lengths, a change in the lengths warranted changes in the piece rates of pay. In this instance, the Respondent dealt directly with the falling and bucking crew and Stonelake, the plant committeeman from that crew. Agreement was reached, with the piece, rates for the buckers being increased and those for the fallers being lowered. When the matter came to Harris' attention, he protested promptly on behalf of the Union. A meeting was held with the Respondent, Harris and the plant committee attending, and Harris complained that the changes had,been made without the Union's knowledge.. The Respondent explained the cause of the change in the log lengths and the mathematical calculations by which the adjusted piece rates were arrived at, and the matter terminated in agreement. In my opinion, this instance also is inapposite. The Union's protest, 'instead of in- dicating its willingness to have changes in the piece rates of pay negotiated with a single committeeman and the workers in the field, supports the Union's position that such matters should be negotiated with it in the first instance. Fourth, another instance is the establishment of the 79-cent rate for power saw bucking in late 1948, before its inclusion in the 1949 contract. As related above, that rate was established by the Respondent and Stonelake and Smith were compensated accordingly for the few days in which they operated the first power saw. In fixing that rate, the Respondent did not deal with the plant committee and Business Agent Harris. There is no showing that either Harris or. the committee knew the basis of compensation of Stonelake and Smith for their few days' work with the saw ; indeed, Harris testified that he had no knowledge of the matter and had thought that all bucking at those times had been by hand saw. I do not believe that the establishment of a piece rate under the circum- stances related, where there was no contractual piece rate, can furnish a basis for 762, DECISIONS OF NATIONAL LABOR RELATIONS BOARD later dealing with Stonelike to establish a new piece rate at variance with that in the contract. Moreover, the fact that Stonelake was the only employee whose earnings were affected at that time does not make the Respondent' s conduct lawful. The subject matter was the rate of pay for a particular job classification, not the earnings of an individual employee, and, as pointed out in footnote 3, there later were additional power saw buckers. The Respondent argues next that its action in lowering the piece rates was taken in good faith, that it has had _"a long history-of satisfactory relations" with the Union, and that there was no, intent to act unlawfully. Both the General Counsel and the Union challenge. the Respondent's assertion of good faith, but I think it unnecessary to resolve the question. Good faith does not excuse unfair labor practices' The Respondent also asserts that the Board should not exercise jurisdiction here because the Union failed to utilize the grievance machinery of the contract for a determination of the issue. This de- fense also appears not to be meritorious.' Finally, the Respondent argues that after receiving the Union's protest, it met promptly with the Union and attempted to negotiate on the "adequacy" of-the new rates and whether they had been established in accordance with the provisions of the contract, but that the Union insisted upon the restoration of the contract rates. I do not believe that the Respondent's failure to bargain collectively concerning adjustments in the con- tractual rates of pay, before instituting changes in those rates, is excused by its later willingness to justify its action in conference with the Union. Nor do I believe that the Union's insistence upon restoration of the contract rates, in advance of negotiating changes, can operate to excuse the Respondent's conduct. For the reasons related, I find that on February 3, 1950, and thereafter, the Respondent refused to bargain collectively with the Union as the exclusive repre- sentative of its employees in an appropriate unit, and that the Respondent has thereby interfered with, restrained, and coerced, and is interfering with, re- straining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce. among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, I shall recommend that it cease and desist therefrom and that it take cer- tain affirmative action designed to effectuate the policies of the Act and to re- store the status quo. I have found that the Respondent, in violation of the Act, established piece rates of pay for power saw buckers. The Respondent contends that the appropriate remedy at most would be a requirement that it bargain col- ' N. L. R. B. v. Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241, 251, 60 S. CL 203, 208; John W. Bolton & Sons, Inc., 91 NLRB 989; cf. N. L. R. B. v. Don Juan Co., Inc., et at., 185 F. 2d 393 (C. A. 2). . e The Standard Oil Company (An Ohio Corporation), 92 NLRB 227. ' In its brief, the Respondent cites a number of cases on the question whether a unilateral change in rates of pay by an employer constitutes a violation of Section 8 (a) (1) of the Act. , There is no allegation here of an independent violation of Section 8 (a) (1). The violation of that section is derivative from the refusal to bargain. See May Department Stores Co. v. N. L. R. B., 326 U. S. 376, 66 S. Ct. 203. CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE, WORKS) 763 lectively with the Union in an effort to agree upon new piece rates. On the other hand, the General Counsel and the Union contend that, in addition to the usual cease-and-desist requirements, the Respondent should be required to restore immediately the contract piece rates of 79 cents, with 85 cents for "windfalls," and to appropriately reimburse Stonelake and other power saw buckers who have been compensated improperly under the lower rates. The Bolton case, cited in footnote 5, is dispositive of the issue in part. Upon authority of that case, I shall recommend that the Respondent immediately restore the contract rates. I believe also that in order to restore the status quo and to effectuate the policies of the Act by assuring that the Respondent not retain the fruits of its unfair labor practices, the Respondent should be required to reimburse each power saw bucker for the difference in pay between the amount he earned under the piece rates set forth in the contract and the amount he was paid, from the date the unilateral rates of pay were instituted by the Respondent to the date of restdra- tion of the contract rates. I shall recommend accordingly. Except for the unlawful conduct of the Respondent herein described, the. record does not disclose that a danger exists that the Respondent may commit unfair labor practices unrelated in kind. Accordingly, I shall not recommend that the Board issue a broad cease and desist order. Upon the basis of the above findings of fact and the entire record in the case, I .make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. All of the Respondent's employees at its Siltcoos Division, except supervisory and office employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. The Union, at all times since 1941, has been the exclusive representative of all employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing.to bargain collectively with the Union as the exclusive repre- sentative of its employees in an appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) and FRANK BORIO, ET AL. Case No. 13-C-2798. July 31, 1951 Decision and Order . STATEMENT OF THE CASE Upon a charge filed on February 21, 1946, by Arthur J. Goldberg, on behalf of Frank G. Borio and other individuals, hereinafter called 95 NLRB No. 92.