Yaquina Bay Mills, Inc.

YAQUINA BAY MILLS, INC. Exhibit A UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD ROBERT K. GIBBS, PATRICK J . BUCKLEY & JOSEPH MIS, A PARTNERSHIP D/B/A TRI STATE MANUFACTURING COMPANY; TRI STATE DIE CASTING CORPORATION; AND TRI STATE and UNITED FURNITURE WORKERS OF AMERICA, CIO STIPULATION 439 Case No. 9-CA-643 WHEREAS, by order duly entered on December 15, 1953, the Trial Examiner or- dered that the record in this matter, Case No. 9-CA-643 be reopened for the sole and only purpose set forth in Paragraph 2 of such order of December 15, Now, THEREFORE, to expedite compliance with that order, and in lieu of taking a deposition pursuant to that order, it is stipulated between the General Counsel and the Respondent as follows: It is stipulated between the General Counsel and the Respondent that the witness, Robert E. Bellew, Serial No. 1386-92, was discharged from the United States Marine Corps on October 23, 1953, in San Diego, as undesirable pursuant to an administrative determination and that at the time Bobby Bellew testified as a witness in this hearing he was not a member of the United States Marine Corps. and that this stipulation may be immediately forwarded to Honorable Louis Plost. Each of the parties while stipulating to the above facts reserves the right to object to the inclusion of this stipulation in the record as evidence, on the ground of com- petency, relevancy and materiality. Harry D. Campodonico Counsel for the General Counsel Eugene B . Cochran Counsel for the Respondent 1. Meyers Counsel for UFW-CIO YAQUINA BAY MILLS, INC. and INTERNATIONAL WOODWORKERS OF AMERICA, LOCAL 5-63, CIO. Case No. 36-CA-425. July 26,1954 Decision and Order On February 11, 1954, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, a copy of which is attached hereto, finding that the Respondent Yaquina Bay Mills, Inc., has not engaged in and is not engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. 109 NLRB No. 68. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. [The Board dismissed the complaint.] MEMBER MURDOCK, dissenting : Upon full consideration of the facts and issues in this case, I am firmly convinced that the dismissal of the complaint by the majority decision is erroneous. The facts, the greater share of which are un- disputed, point unmistakably to the conclusion that the Respondent violated Section 8 (a) (1) and (5) of the Act by its unilateral wage decrease of September 21, and by conditioning signing of a contract upon the withdrawal of the Union's unfair labor practice charges. These actions constitute a clear refusal to bargain in good faith by the Respondent and I must therefore dissent from the majority de- termination to dismiss the complaint. The pertinent facts with which we are concerned are few in number and may be stated briefly. The Union and the Respondent were parties to a collective-bargaining contract covering the terms and con- ditions of employment of employees at this plant. By letter dated January 28, 1953, the Union opened the contract then in force and requested, among other things, a wage increase of substantial propor- tions. Negotiations concerning these demands were carried on for some time; the bargaining being conducted for both the Union and the Respondent through certain larger groups including several em- ployer associations. The negotiators were unable to agree upon the increased wage demands of the Union and, in July 1953, they recom- mended that the local unions and individual employers represented in the group bargaining conferences sign individual agreements con- tinuing the latest contract for another year. Thereafter, in late August and early September, the Respondent, through both its manager and its authorized representative for nego- tiations, notified the Union that the Respondent was willing to sign the new agreement continuing the old contract at any time. A date of September 15 was even set for that purpose. Prior to that date, however, and without advance warning or any negotiation with the Union, the Respondent, on September 11, notified the union shop committee that wages in the plant would be cut as of September 21. The wage cut was immediately rejected by vote of the Union's mem- bership and notice to this effect was promptly tendered the Respond- ent by the Union's business agent on both September 16 and 18. Nevertheless, and without any semblance of bargaining with the YAQUINA BAY MILLS, INC. 441 Union on the subject, the Respondent, on September 21, informed the employees that the wage cuts had gone into effect. The men then went on strike in protest against the action. On the same day, a con- ference between the Union and the Respondent called for the purpose of signing the new contract, ended with Hackenbruck, the Respond- ent's representative, stating that he would review the extension agree- ment submitted by the Union and contact the Union within a few days. The Union thereafter filed unfair labor practice charges based on the wage decreases. Hackenbruck failed to contact the Union as promised, and, on September 29 or 30, when the Union called him, informed the Union's business agent that there would be no further contract discussions until the unfair labor practice charges were "cleared up." In summary, it is clear that the wage decreases of September 21 were put into effect by the Respondent without negotiation or bargaining with the duly authorized representative of the employees. It is also clear, from the decisions of this Board and the courts, that such a uni- lateral change in the wage rates of employees, absent a bargaining im- passe, constitutes an illegal refusal to bargain in good faith.' The Trial Examiner, whose findings and conclusions my colleagues accept without comment, nevertheless concludes that no such violation was committed herein. He finds that the evidence does not establish that the Respondent was unwilling to bargain or that the "Union attempted to have the Respondent do so." This conclusion, in turn, is based on two minor facts : first, a statement by the plant manager to the Union's business agent on September 15 to the effect that the former wished to "talk over some wages," and, second, the existence of a 10-day period between the announcement of the wage cuts and their effectuation. I submit that neither of these items supports the conclusion drawn by the Trial Examiner. The Trial Examiner, apparently, would treat the wage cut announce- ment of September 11 as a "proposal" which the plant manager, on the basis of his chance remark of September 15, was willing to bargain about. Yet the invitation of September 15 to "talk over some wages" was an admittedly ambiguous statement. It appears only in the testimony of Kirkpatrick, the Union's business agent, who further testified that he did not know what the manager was talking about. Moreover, the Trial Examiner, himself, finds that the wage cut an- nouncement was in the nature of an "ultimatum" and lacked any "in- 1 See Consolidated Textile Company, Inc. (Ella Division), 106 NLRB 580 ; Tower Hosiery Mills, Inc., 81 NLRB 658, enfd . 180 F. 2d 701 (C . A. 4), cert. denied 340 U. S. 811. The L. L. Mature Transportation Co. case, cited by the Trial Examiner in support of his con- clusion, is completely distinguishable for there , as the Board pointed out, the union com- pletely ignored the employer's notice of impending changes. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dication of a willingness on the part of the Respondent to bargain about the matter." The mortal weakness in the tenuous web of in- ference built by the Trial Examiner, however, is in his finding that "if the Respondent had intended to foreclose bargaining on wages," the Union had a 10-day opportunity to discover if this was so and did not make that attempt. Such a finding runs in complete opposition to the credited and undisputed testimony that the Union on two occasions during his 10-day period told the Respondent that the wage cuts were unacceptable; without receiving any reply whatsoever from the Re- spondent. In short, in the very period during which the Trial Ex- aminer contends that the Union, despite all appearances to the con- trary, should have tested the Respondent's willingness to bargain on its "ultimatum," the Union did precisely that without success. The Respondent, it is clear, did not share the Trial Examiner's doubts as to whether or not it wished to bargain about the wage cuts. Instead the cuts were announced as a unilateral action and were effectuated as a unilateral action-in complete and obvious disregard of the Union's statement that they were unacceptable and of the statutory duty to bargain with the authorized representative of the employees over changes in working conditions, reserving unilateral action until an impasse had been reached after good-faith bargaining. The Trial Examiner also finds that the Respondent did not, as al- leged in the complaint, condition its signing of a contract upon the Union's withdrawal of unfair labor practice charges. As noted here- tofore, on the day the wage cuts were effectuated, the Union and the Respondent met to sign the agreement extending their prior contract. At this meeting, Hackenbruck, for the Respondent, stated that he wished to look over the document submitted by the Union and promised to contact the Union in a few days. This he did not do and in the meantime the unfair labor practice charges concerning the wage de- creases were filed by the Union. On or about September 29, Union Business Agent Kirkpatrick called Hackenbruck. Kirkpatrick testi- fied that Hackenbruck told him that there would be no further nego- tiation until the charges were "cleared up." The Trial Examiner finds Kirkpatrick to have been a truthful witness, but finds that a "mis. understanding" occurred and that Hackenbruck did not predicate further negotiations upon withdrawal of the unfair labor practice charges. Hackenbruck specifically testified that "I mentioned the wage issue and the unfair labor practice charges, saying that we had .to dispose of those before we'd sign the agreement...." Despite this corroboration of Kirkpatrick's testimony and the fact that all the testimony on this point shows without contradiction that the Respond- ent refused to negotiate further unless the charges were withdrawn, my YAQUINA BAY MILLS, INC. 443 colleagues, unaccountably, fail to sustain the complaint on this ground. As it is well established that conditioning negotiation or agreement upon withdrawal of unfair labor practice charges is a refusal to bar- gain in good faith, it is clear that the Respondent's conduct in this re- spect also violated Section 8 (a) (5) of the Act.2 Accordingly, upon the uncontradicted and credible evidence in this case, I would find that the Respondent violated Section 8 (a) (1) and (5) of the Act by the unilateral wage cuts of September 21 and by the refusal to negotiate on and after September 29 unless the Union's charges were withdrawn. 2 See N L. R. B. v. Harris, Morris, et ad, d/b/a/ Union Manufacturing Company, 200 F. 2d 656 (C. A. 5), enforcing 95 NLRB 792. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges duly filed by International Woodworkers of America, Local 5-63, CIO, herein called the Union, the General Counsel for the National Labor Relations Board issued his complaint, dated November 16, 1953, against Yaquina Bay Mills, Inc., 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 Rela- tions Act, as amended, 61 Stat. 136. In respect to unfair labor practices, the complaint alleges, in substance, that the Respondent on or about September 21, 1953, acted unilaterally to reduce wage rates of employees without first consulting and bargaining with the Union, their designated representative, and that thereafter the Respondent refused the request of the Union to meet for the purpose of signing a collective-bargaining agreement, the terms of which had been agreed upon, until and unless the Union's charge in this case was disposed of. Respondent's answer denies the commission of unfair labor practices. Pursuant to notice a hearing was held before the undersigned Trial Examiner in Toledo, Oregon, on January 7, 1954. The General Counsel and the Respondent were repre- sented by counsel and were permitted to examine and cross-examine witnesses and to introduce evidence pertinent to the issues. Time was afforded for the filing of briefs and a brief has been received from counsel for the Respondent. Upon the basis of the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Counsel for the Respondent admitted on the record, and I find, that Yaquina Bay Mills, Inc., is an Oregon corporation having its principal place of business in Newport, Oregon, where it is engaged in remanufacturing lumber. In the course and conduct of its business and at all times material to the issues here, the Respondent has sold and shipped lumber valued in excess of $100,000 annually to customers located outside the State of Oregon. H. THE LABOR ORGANIZATION INVOLVED International Woodworkers of America, Local 5-63, CIO, is a labor organiza- tion admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES The complaint alleges, Respondent's answer admits, and I find that all employees of the Respondent except full-time supervisory and office employees at all times herein alleged was and is an appropriate unit for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint alleges, Respondent's answer admits, and I find that the Union at all times material since July 6, 1951, has been and is the duly designated collective- bargaining representative of Respondent's employees in the appropriate unit for purposes of collective bargaining in respect to rates of pay, wages, hours of em- ployment, and other conditions of employment. On July 5, 1951, the Respondent and the Union entered into a written collective- bargaining agreement covering wages, hours, and other conditions of employment for employees in the appropriate unit. Sometime in May 1952, the agreement was amended and upon appropriate notice in early 1953 negotiations began looking to- ward the execution of a new contract. During the bargaining that then ensued the Union was represented as one of a group of locals by a regional negotiating com- mittee. The Respondent in turn participated in the bargaining through an employers' group known as the Willamette Valley Operators Association. Negotiations con- tinued throughout the spring and early summer without final agreement. In July 1953 the negotiators recommended to their principals that the local unions and the individual employers sign an agreement to continue the latest contract in effect for another year. In late August or early September, O. M. Kirkpatrick, business agent for the Union, asked Erwin R. Bahlburg, Respondent's manager, when the new con- tract could be signed. Bahlburg replied, "Any time." On September 10 Kirkpatrick spoke to John Hackenbruck, a representative of the Williamette Valley Operators Association who was used by the Respondent as a negotiator, asking when the signing might be accomplished and saying that it could be done in a few minutes. Hackenbruck answered that little time would be required for that purpose and a tenta- tive agreement was made to meet on September 15. Some circumstance not of importance here prevented the meeting on that date. In late summer the Respondent, it was testified, came to the conclusion that its wage scale was higher than it should be and after comparing wage rates paid for similar work classifications in 16 other mills where the employees were represented by International Woodworkers of America unions, the Respondent decided upon a wage cut. On September 11 Manager Bahlburg attempted to locate Business Agent Kirkpatrick to tell him of this decision, and, being unable to find him, notified the Union's shop committee at Respondent's mill of the impending development. Bahl- burg handed one of the committeemen a list of the new wage rates, captioned as follows: Effective as of September 21, 1953 Yaquina Bay Mills,, Inc. will pay wages based on the following rates, which will include your health and welfare program. Bahlburg told the committee that if any of the Wages proposed were below the union scale that matter would be corrected. Early in the morning of Tuesday, September 15, Bahlburg telephoned Kirkpatrick and asked him to come to the plant before noon that day in order to "talk over some wages." Kirkpatrick answered that he had other commitments that morning and would be unable to get to the plant in time. That same evening, September 15, at a union meeting the plan for a wage cut was discussed and a vote taken to reject the Company's proposal, if such it was. On the following day, Wednesday, September 16, Kirkpatrick went to the plant and delivered to Bahlburg a letter signifying the willingness of the Union to sign an agreement embodying the terms and conditions of the last contract between the Union and the Respondent and proposing a meeting for Friday, September 18, in that connection. Kirkpatrick also told Bahlburg that the Union had refused the Company's proposal for a wage cut. Sometime between the 16th and 18th, Bahl- burg notified Kirkpatrick that Hackenbruck was unable to be in Newport on the 18th and the meeting date was postponed to September 21. On September 18 Kirk- patrick delivered another letter to Bahlburg which said in effect that the wage re- duction violated the most recent contract between the Respondent and the Union and that employees upon reporting for work September 21 would expect to be paid the old rates without reduction. On Monday morning, September 21, Kirkpatrick accompanied the employees to the mill and told Bahlburg that they were reporting ready to work at the old wage scale. Bahlburg answered that the new rates were effective that morning. Kirk- patrick answered that it was the position of the Union that a wage reduction was a violation of the 1952 contract and, in effect, that the men would not work for the lower wages. Bahlburg answered that if they would not agree to the new wages they could go home. The men left and the plant has not operated since. On the afternoon of that day Hackenbruck and Kirkpatrick met in connection with signing the new contract. Kirkpatrick offered a written agreement which he YAQUINA BAY MILLS, INC. 445 asserted incorporated the features of the 1951 and 1952 contracts. Hackenbruck answered that he believed he had some question about a few words or phrases in the proposal; that he would review it and give his comments to Kirkpatrick in writ- ing within a few days. Neither of the men mentioned the wage cut at the mill. Hackenbruck and Kirkpatrick did meet again on Thursday of that week on matters involving another employer and neither mentioned the problem of the collective- bargaining agreement for the employees of the Respondent. On September 29 or 30 Kirkpatrick telephoned Hackenbruck and asked him to send whatever comment or proposal he had in respect to a new contract. According to Kirkpatrick, Hacken- bruck said that there would be no further negotiation until the charges that the Union had filed with the Board were "cleared up." Hackenbruck denied that he conditioned negotiations upon the withdrawal of charges. According to Hacken- bruck he was of the opinion that the 1951 and 1952 contracts permitted the Re- spondent to make changes in wage rates after notification to the Union, but he recognized that the Union found language in the contract from which it argued that such changes could be made only on specified dates and after 60 days' notice. In substance, Hackenbruck testified that the Respondent was willing to sign the new contract if the Union agreed to his interpretation of how wage rates could be changed, but was unwilling to do so otherwise. According to Hackenbruck, on September 29 or 30 he told Kirkpatrick that the Respondent would not sign the new agreement until the issues raised by the wage changes were determined. No at- tempt has been made by the Union since that telephone call to meet with the Re- spondent and no meetings have been held. I do not concern myself with the question of contract violation, for the com- plaint is not bottomed on any such theory and at the hearing the General Counsel expressly disclaimed any purpose of proving an unfair labor practice upon a re- fusal by the Respondent to accord to the Union any contractual right. The theory of the case, from the standpoint of the General Counsel is (1) that the Respondent reduced wages without bargaining with the Union; (2) that the Respondent by refusing to sign an agreement which had already been negotiated unless the Union withdrew its charges, thereby refused to bargain. As to point one, it is obvious enough that there was no bargaining in respect to the wage decrease, and I will assume for the purpose of reaching a decision here that an employer may not lawfully announce with finality a change in wage struc- ture in a situation where his employees have a collective-bargaining representative. Here the announcement of wage changes made to the shop committee on Septem- ber 11 has the flavor of ultimatum and nowhere in the writing given to that com- mittee is there an indication of a willingness on the part of the Respondent to bar- gain about the matter. It is true that on this occasion Bahlburg said that if any of the rates were below union scale appropriate adjustment would be made, but nothing he said then indicated to the recipients that the Respondent was in any way willing to bargain about the whole question of reduction. But opportunity for bargaining was not foreclosed. On September 15 Bahlburg invited Kirkpatrick to come to the plant to discuss wages and on September 16 and 18 Kirkpatrick although speaking with Bahlburg made no effort to discuss the wage program. Whether on any of these occasions Bahlburg or any representative of the Respond- ent would have been willing to bargain in good faith with the Union on the whole question of whether wage rates should be reduced at all, is a question to which the record does not supply an answer. There is little reason for me to assume that the Respondent would not have done so. It is often said that an employer and the representative of his employees sit down to the bargaining table as equals. In many respects this is an accurate description-but not in all. It is the employer, finally, who establishes the wages, hours, and other conditions of employment. It is the function of the bargaining representative to attempt to persuade the employer to act in those matters in such a way as to give satisfaction to the employees. As I view it, it was the Respondent's right to decide what wage rates it would pay in the various classifications and the right of the Union to be heard in respect to that decision and to be heard by one open to persuasion. Although the announcement of September 11 was couched in terms of finality, I consider the invitation to Kirk- patrick of September 15, coupled with the 10-day period within which no changes were made, to have provided the Union with opportunity to bargain with the Re- spondent in connection with wage rates. If the Respondent had intended to fore- close bargaining on wages, the Union had an opportunity to discover if this was so. I do not consider the evidence to establish that the Respondent was unwilling to bargain in that connection or that the Union attempted to have the Respondent do 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so. I find no unfair labor practice in connection with the wage decrease effected September 21.1 To decide whether the Respondent through Hackenbruck on September 29 or 30 refused further to negotiate with the Union unless charges were dropped, is a matter of more difficulty. A literal reading of Kirkpatrick's testimony certainly supports that allegation of the complaint and I regard Kirkpatrick as a truthful witness. But I make the same appraisal of Hackenbruck. I do not believe that either of these men deliberately colored his testimony to establish or to avoid a finding of unfair labor practice. On the date of the telephone conversation, no complaint had been issued in this case. Hackenbruck knew then, by virtue of the Union's charge, of the Union's contention that the wage reduction amounted to a contract violation. It was Hackenbruck's opinion, he testified, that the contract permitted the action taken. It seems to me not unlikely that Hackenbruck then intended to tell Kirkpatrick that the stumbling block to negotiations was the Union's interpretation of the old contract clauses, and in substance that if the Union's inter- pretation was the correct one any new agreement would have to be changed to permit the freedom of action that the Respondent claimed it had. I am convinced that a fundamental misunderstanding on this point exists, or did exist, between Kirkpatrick and Hackenbruck, and I am persuaded to this conclusion in part by the entire lack of union animus on the part of the Respondent appearing in the record. I am convinced that the Union believed the Respondent to have committed an unfair labor practice by failing to give a 60-day notice of intention to change wage rates as a clause in the latest contract provided. I am equally convinced that the Respondent, through Hackenbruck, was determined not to sign the contract offered by the Union until a controlling decision was reached either by a disposition of the charge filed in this proceeding, or otherwise, as to the meaning of that contract clause. The effect of the positions of the parties has been to terminate negotia- tions and bargaining between them, but I do not consider that this result has been reached by a commission of any unfair labor practice. I believe it to be true, as Hackenbruck stated at the hearing, that the Respondent is willing now and has been to sign a new contract with the Union if the Union is willing to accept the Respondent's interpretation of the wage change clause. I do not believe that the evidence, considered against the background of the past bargaining relationship between the Union and the Respondent, establishes that the Respondent refuses now or has refused to bargain with the Union unless the charges are dropped. The complaint is phrased in such a manner as to assert that on September 29 or 30 the Respondent refused to sign an agreement which already had been negotiated and to which, inferentially, it had given its approval. The evidence is, however, that even though the Respondent seems to have approved of the negotiated agree- ment in all major respects, there still remained some area, slight perhaps, of dis- agreement which probably required further negotiation. The Respondent is now, of course, required to bargain with the Union on any question of wages or other conditions. I do not understand the Respondent to contest this. I find that there has been no refusal to bargain by the Respondent within the meaning of Section 8 (a) (5) of the Act and that the conduct of the Respondent has not been such as to interfere with, restrain, or coerce employees within the meaning of Section 8 (a) (1) of the Act. The strike of September 21 was not an unfair labor practice strike. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: Conclusions of Law 1. International Woodworkers of America, Local 5-63, CIO, is a labor organi- zation within the meaning of Section 2 (5) of the Act. 2. The operations of the Respondent , described herein, are in commerce and affect commerce within the meaning of Section 2 (6) and (7) of the Act. 3. The Respondent has not refused to bargain with the Union in violation of Section 8 (a) (5) of the Act and has not interfered with, restrained, and coerced employees in violation of Section 8 (a) (1) of the Act. [Recommendations omitted from publication.] 1 L L Ma)u? a Transport Company, 95 NLRB 311, 316