Southland Paper Mills, Inc.

SOUTHLAND PAPER MILLS, INC. 1077 Southland Paper Mills, Inc. and Local 401, International Brother- hood of Pulp, Sulphite & Paper Mill Workers, AFL-CIO and Lodge 1808, International Association of Machinists, AFL-CIO and Local 411, United Papermakers and Paperworkers, AFL- CIO. Cases 16-CA-?541-1, 2541-2, and 2541-3. November 16, 1966 DECISION AND ORDER On August 10, 1966, Trial Examiner Morton D. Friedman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recom- mended dismissal of these allegations. Thereafter, the Respondent, the Charging Party, and the General Counsel filed exceptions to the Decision and supporting briefs, and Respondent filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and the briefs, and the entire -record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the 'exceptions noted . ^l below. It is undisputed 'that the,exclusive employee privilege-to hunt at the Respondent's 6,600 acre forest preserve, known as "The Pasture," had ,been.eiijoyed by the employees for approximately- 20 years and was highly valued by them, as is evidenced by the,fact that,75 percent of the employees availed themselves of this exclusive right. It is also undisputed that the Respondent'coi sid"e"redd the7:hunting privilege as a fringe benefit of a substantial value. Thus, on March 22, 1965, the Respondent distributed to its employees, a booklet entitled "Fringe Benefits" which described, among other benefits, the exclusive "Hunt- ing Facilities." During the strike period, the Respondent placed in'a local newspaper a paid advertisement entitled "Fringe Benefits at Southland," which listed, among other benefits, the exclusive employee use of the "The Pasture." In view of the foregoing, and for 161 NLRB No. 101. 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the other reasons cited by the Trial Examiner, we agree that the Respondent violated Section 8(a) (5) and (1) by unilaterally termi- nating the exclusive employee privilege to hunt at "The Pasture" and discontinuing the issuance of permits to employees upon request for that purpose. We also agree with the Trial Examiner that the Respondent violated Section 8(a) (1) of the Act by eliminating the employee privilege of hunting at "The Pasture." We find merit in the exception by the Charging Parties that the Trial Examiner's Recommended Order, insofar as it fails to require the Respondent to reinstate this employee privilege, does not provide for an adequate remedy for the violation found. In circumstances involving violations of Section 8(a) (5) by unilaterally depriving employees of established employment benefits, it is the Board's policy to order restoration of the status quo ante to the extent feasible and in the absence of evidence establishing that to do so would impose an undue or unfair burden upon the respondent. While it is not possible for employees now to enjoy the privilege of preserve hunt- ing on "The Pasture" of which they were deprived during the 1965-66 hunting season, and, therefore, complete restitution is not possible, there is no basis in this record for not requiring immediate reinstitu- tion of the preserve hunting privilege. The Recommended Order shall be amended accordingly. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Substitute the following paragraph as paragraph 2(a) of the Trial Examiner's Recommended Order : [" (a) Immediately reinstate the employee right to exclusive hunt- ing privileges on the pasture and the past practice of issuing employee permits." [2. Substitute the following as the last paragraph of the Appendix : [WE WILL immediately reinstate the employee right to exclusive hunting privileges on "The Pasture" and the past practice of issuing employee permits.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed in Case 16-CA-2541-1 on December 9 ,1965, and amended charge filed on January 13, 1966, by Local 401, International Brotherhood of Pulp, Sulphite & Paper Mill Workers, AFL-CIO, herein called Local 401, and a charge filed in Case 16-CA-2541-2 on December 9, 1965, and amended charge filed January 17, 1966, by Lodge 1808, International Association of Machinist, AFL- CIO, herein called Lodge 1808, and a charge filed in Case 16-CA-2541-3 on December 9, 1965, and amended charge filed January 13, 1966, by Local 411, United Papermakers and Paperworkers, AFL-CIO, herein called Local 411, the Regional Director for Region 16 of the National Labor Relations Board, herein SOUTHLAND PAPER MILLS, INC. 1079 called the Board, issued a consolidated complaint on February 11, 1966, and an amendment thereto on February 14, 1966, on behalf of the General Counsel of the Board against Southland Paper Mills, Inc., herein called the Respondent, alleging violations of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended (20 U.S.C., Sec. 151, et seq.), herein called the Act. In its duly filed answer to the aforesaid complaint and amendment thereto, the Respondent, while admitting certain allegations thereof, denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner Morton D. Fried- man in Lufkin, Texas, on May 3, 1966. All parties were present and represented and afforded full opportunity to be heard, to produce relevant evidence, to present oral argument and to file briefs. Oral argument was waived. Briefs were filed by counsel for the General Counsel and the Respondent. Upon consideration of the entire record in this case, including the briefs of the parties, and upon my observation of the demeanor of each of the witnesses appear- ing before me, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware Corporation, maintains a plant at Lufkin, Texas, where it is engaged in the manufacture of newsprint. During the year immediately preceding the issuance of the complaint herein, a representative period, the Respondent manufactured, sold and distributed at its Lufkin, Texas, plant goods and materials of a value in excess of $50,000, which goods and mtaerials were shipped from said plant directly to States of the United States other than the State of Texas. It is admitted, and I find, that the Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. U. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that Local 401, Lodge 1808, and Local 411 are labor organizations within the meaning of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES A. The issues Did the Respondent unlawfully refuse to bargain when it unilaterally caused the removal of soft drink machines from its plant and discontinued issuing permits to its employees for hunting privileges on one of its forest preserves? B. The background-bargaining history and units As noted above, for approximately the last 25 years, the Respondent has been engaged at Lufkin, Texas, in the manufacture of newsprint. Almost from the beginning of the Respondent's manufacturing processes, the Locals, above-named, together with a local of the International Brotherhood of Electrical Workers have represented the production employees of the Respondent.' The bargaining history between the named Locals and the Respondent was, until recently, at last, charac- terized by peaceful cooperation. There is no history of any unlawful actions of the part of the Respondent either against unionization of its employees or in the Respondent's dealing with its employees' bargaining representatives after recogni- tion. As the Respondent puts it, the history has been "one of successful and profit- able cooperation." However, in 1965 this peaceful relationship began to deteriorate somewhat. On June 30 of that year, the agreements under which the production employees were working expired. By mutual consent, negotiations toward a new agreement were not begun until August. Thereafter, on September 3, 1965, an impasse was reached in negotiations. On September 7, the employees of the three charging Locals herein went on strike. The strike lasted until October 22, 1965. As a result of this strike, all production at Respondent's plant was halted. Soon afer the strike ended the soft drink machines located outside the "stock prep room," a centrally located 'The Electrical Workers is not a party to this proceeding. 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD position in the mill site, were removed, and at the same time the Respondent indi- cated that it would not, at least for the 1965-66 hunting season, issue permits to hunt at a preserve called "The Pasture" for the use of the employees in the produc- tion units . It was the removal of the soft drink machines and the refusal to issue permits which the General Counsel contends constitute the gravamen of the viola- tions alleged in the complaint herein. The units represented by the charging locals, as set forth in the complaint, were admitted in the Respondent's answer to be units appropriate for purposes of col- lective bargaining . They are as follows: All employees of the Respondent at its Lufkin, Texas, plant in the following classifications and departments, namely, Groundwood Department: Stone Sharpener, Head Grinderman #1 & #2, Head Grinderman #3 & #4, Screen Operator, Rejects Operator, Screen 1st Helper, Screen 2nd Helper, Grinderman, Conveyor Man-Bin #1 & Bin #2, Conveyor Man-Bin #3 & Bin #4; Stock Preparation: Beater 1st Helper, Beater 2nd Helper, Broke Beaterman, Tank Farm Man (Day), Tank Farm Man (Night); Finishing & Shipping: Checker, Electric Truck Driver, Car Bracer, Car Cleaner & Dock Man, Scaler # 1-Grades Other Than Newsprint, Scaler, Wrapper, Roll Handler, Wrapper Cutter (When Used), Coreman, Coreman 1st Helper, Coreman 2nd Helper, Utility Man, Laborer; Routine Position in Technical Service Department: Utility Man, Power Plant Tester, Shift Chemist, Bleach Plant Tester, Shift Chemist Helper , Beater Tester, Groundwood Tester, Sample Runner, Newsprint Tester, Kraft Tester, Research Helper, (Up to Dept. Supt.); Kraft Pulp Mill: Cook, 1st Helper, 2nd Helper, 3rd Helper, Washerman, Screen Operator, Screen Room Helper, Recovery Operator, 1st Helper, 2nd Helper, Head Tube Lancer, Tube Lancer, Laborer, Evaporator & Soap Plant Operator, Salt Cake Man, Caustic Operator, Lime Kiln & Rotoclone Operator, Helper-Caustic Room, Lime Roller, Bleach Plant Operator, Bleach Plant 1st Helper, Bleach Plant 2nd Helper, Utility Man (Dead End-Day Job); Wood Handling: Crane Operator, Scaler-Clerk, Drum Operator, Scaler, Turntable Operator, Yard Leaderman, Tractor Driver, Head Wood Sorter, Wood Sorter, No. 47 Conveyorman, Knife Grinder & Chipper Tender, Chip- perman, Clean-up Man & Oiler, Block Stacker, Winch Truck Driver (When Used), Truck Driver, Wood Splitter, Crane Labor, Bark Handler , Laborer; Storeroom: Clerks, Receiving Clerk, Assistant Receiving Clerk (When Used) ; Maintenance: Carpenters-Head Carpenter, Saw Filer, Journeyman, Helper, Furnace Repair & Insulation Man, Helper, Oilers-Head Oiler, Oiler, Train Crew-Engineer, Switchman & Conductor, Assistant Switchman, Spare Gang-' Spare Gang Pusher, Maintenance Winch Truck Operator, Laborer (Relief), Yard Gang-Pusher (When Used), Hyster Operator, Equipment Operator, Truck Driver, Loader, Laborer, Truck Crew-Laborer, Truck Driver (When Used) ; Machines: Machine Tender, Back Tender, Third Hand, Fourth Hand, Fifth Hand, Sixth Hand, Fifth Hand ( new employees ), Sixth Hand (new employ- ees) on Machines #1, #2, #3, #4; Clothing Man, Assistant Clothing Man, Clothing 1st Helper, Clothing Helper, Crane Man, Plugger & Spare-6th Hand, Reminder man, Rewinder Helper; Stock Preparation: Beater Engineer, excluding Departmental Superintend- ents, Assistant Superintendents, Millwright Foremen, Pipefitter Foremen, Gen- eral Maintenance Foremen, Pulp Mill Tour Foremen, Paper Mill Foremen, Groundwood Mill Foremen, Power Plant Foremen, Woodyard Foremen, Finishing and Shipping Foremen, Board Mill Supervisors, Track Foremen, Yard Foremen, Personnel Manager, Safety Engineer, Nurses, Watchmen, Store Keeper, Engineers and Draftsmen, Office Employees, Secretaries, Stenographers and Clerks, Research Chemists, Analytical Chemists, Field Technician, Mainte- nance Engineers, Area Supervisors, Shop Foremen, Chief Planner for Mainte- nance, and employees represented by other labor organizations, All employees of the Respondent at its Lufkin, Texas, plant in the follow. ing classifications and departments, namely, Roll Grinderman & Millwright; Millwrights: Leaderman, Journeyman, Helper; Welders: Leaderman, Journeyman, Helper; Machinists: Leaderman, Journeyman, Helper; SOUTHLAND PAPER MILLS, INC . 1081 Pipe fitters: Leaderman, Journeyman, Helper; Blacksmith, Helper; Slitter Grinder & Second Helper; Painters: Leaderman, Journeyman, Helper; Ga,age Mechanic: Head, Helper; Saw Filer for Wood Procurement, excluding Departmental Superintendents, Assistant Superintendents, Millwright Foremen, Pipefitter Foremen, General Maintenance Foremen, Pulp Mill Tour Foremen, Paper Mill Foremen, Groundwood Mill Foremen, Power Plant Foremen, Woodyard Foremen, Fin- ishing and Shipping Foremen, Board Mill Supervisors, Track Foremen, Yard Foremen, Personnel Manager, Safety Engineer, Nurses, Watchmen, Store Keeper, Engineers and Draftsmen, Office Employees , Secretaries, Stenog- raphers and Clerks, Research Chemists, Analytical Chemists, Field Techni- cian, Maintenance Engineers, Area Supervisors, Shop Foremen, Chief Plan- ner for Maintenance, and employees represented by other labor organizations, It is admitted and I find that the foregoing constitute separate units appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. It is further admitted and I find that Local 401, Lodge 1808, and Local 411, respectively, are, and have been at all times material herein , the representatives for the purposes of collective bargaining of the employees in the units described above and, by virtue of Section 9(a) of the Act, have been and are now the exclusive representatives of all the employees in said units for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. C. The events 1. The removal of the soft drink machines For some years until December 1, 1964 , the Respondent provided cafeteria space and facilities to its employees. The cafeteria, however, was operated by an asso- ciation of employees of the Respondent. However , during the period of approxi- mately a year prior to December 1, 1964 , patronage of the cafeteria fell off so that it became impossible for the association to continue operating it and on Decem- ber 1, 1964, as aforesaid, the cafeteria closed down. Several months before the closing of the cafeteria, the Respondent realized that patronage of the cafeteria was falling off and that it would eventually be forced to close. Accordingly, on or about October 6, 1965, through arrangement with the local Coca Cola Bottling Company, the Respondent had installed at the stock prepa- ration department soft drink machines which dispensed beverages in paper cups. Respondent announced this installation in a message to its employees dated Octo- ber 6, 1964, in which it stated that the drinks were to be dispensed in paper cups but that the machines were being placed in the stock preparation department "on a trial basis." The notice stated, among other things, that it was imperative that none of the cups be allowed to get into the stock system or the other manufacturing sys- tems in the mill. Because the machines were installed in cool weather, the service from the machines was satisfactory until the following spring and summer. The employees began to use the machines more in the warm weather and, at that time, the cups were strewn about the plant and not placed in the receptacles provided therefor. Additionally, the machines themselves did not give good service. The change mechanisms did not work properly, there was created an unsanitary condi- tion by reason of the syrup attracting insects and the machines frequently ran out of beverages. This presented a problem to the management of the Respondent before the strike began on September 7, 1965, as related above. Shortly after the strike commenced, the machines ran out of beverages completely and no deliveries were made during the strike. The unsanitary condition heretofore described became so bad that when the strike ended Respondent, without consulting the charging Locals, notified the supplier to remove the machines. This decision was reached, not only by reason of the unsanitary condition caused by the neglect of the supplier, but also because of the failure of the supplier to live up to his contract to supply the machines at least three times weekly and to service them whenever needed.2 2 From the credited testimony of Roy E. Richardson and George L Clarke, Respondent's personnel manager and executive vice president, respectfully. This testimony was uncontroverted. 1082 DECISIONS OI,' NATIONAL LABOR RELATIONS BOARD In connection with the removal of the beverage machines, it should be noted that none of the Locals protested when the cafeteria closed down or when the Respond- ent, without consultation of the Locals, installed the soft drink machines. Nor was the matter of beverages or food service brought up at the negotiations for the new contract which was marked by the strike. However, on October 27, 1965, the Locals protested the removal of the beverage machines to the Respondent's management along with the discontinuance of hunting permits, as hereinafter set forth. At the October 27 meeting, Respondent's representatives explained to the union represent- atives the basis for the removal of the machine. However, the Respondent would not negotiate with regard thereto. Also, in connection with the removal of the soft drink machines, none of the contracts submitted in evidence reveals any reference to the supplying of beverage or food facilities by the Respondent, to its employees represented by the Charging Locals. At the end of the negotiating sessions leading to the new contract, Clarke, Respondent's executive vice president, stated that he hoped that the relations between the Unions and the Respondent would be the same as it had been before the bitter- ness engendered by the long negotiations and the strike. To put it more accurately, in Clarke's own words he stated to the union representatives "I hoped that our rela- tions would be the same." 3 In addition to all of the foregoing, both Clarke and Richardson testified, without contradiction, that Respondent was negotiating for the purchase of food and bever- age by the employees in the mill by means of a' rolling steam table to be supplied by an outside contractor. This, they stated, would be accomplished in the very near future. 2. The discontinuance of the issuance of hunting permits In its business of manufacturing newsprint, the Respondent has acquired, over the years, timberland totaling approximately 365,000 acres. For a period of at least 20 years, the Respondent has exclusively permitted its employees to hunt on a tract of the Respondent's timberland located some 25 miles from Lufkin, Texas, known as the "Pasture." This property, consisting of some 6,600 acres has been patrolled by the Respondent's security force during this period. Permission to hunt has been by special permit to each employee who applied, and the permit was good only for a particular hunting trip. The permit in each individual case could, theoretically, at least, be withheld by the Respondent for any reason whatsoever. However, no case was cited by the Respondent in which such permit was withheld prior to the 1965 hunting season which began about the time the strike ended in October 1965. Over the years, some of the employees had built hunting shacks on the property, but for approximately the last 10 years preceding 1965, no more shacks were permitted to be built and those that had been built in the past are now in a state of disrepair. The Respondent permitted no hunting on any of its other timberland in order to avoid liability on its part for possible injuries suffered by hunters coming on to the land. This prohibition extended not only to the employees but to the general public. In 1965 the Texas legislature passed a bill4 relieving landowners of liability for injuries to invitees who hunt and fish on the lands in the absence of payment for the privilege. This bill became affective on August 30, 1965, only 7 days before the beginning of the strike herein. The passage of this statute made it possible for the Respondent to open up some 200,000 acres for hunting, fishing, and recreation by their employees and members of the general public. Because of the strike begun on September 7, 1965, the Respondent was unable to deliver newsprint to its customers many of whom normally depended upon the Respondent for their supply of newsprint. Thus, the strike seriously jeopardized the Respondent's relations with its customers by a loss of confidence in ability to deliver. As a result, the Respondent's management decided to use the Pasture for the pur- pose of inviting its customer's officials to hunt on the Pasture as guests of the 8 Benjamin F. Herring, Bobby R Cheatham, and Charles E Emmons, former president of Local 401, president of 411, and president of Lodge 1808, respectively, testified, in effect, that Clarke told them at the end of the discussions that things would he the same as before. However Herring's testimony was to the effect that Clarke said there would be no penalties against the men. Cheatham did not directly testify as to what Clarke said Emmons testified that Clarke said "Let us bury the hatchet and let bygones be bygones " Thus, it would seem that the testimony of these witnesses, in this respect at least, was somewhat contradictory. Accordingly, I accept the version testified to by Clarke ^Vernon's Annotated Cevtil Statutes, Article 1(b), Sections 1-6. SOUTHLAND PAPER MILLS, INC. 1083 Respondent. This, obviously, was an attempt to improve customer relations. In order to reserve the Pasture exclusively for the use of its customers, the Respond- ent determined, without consulting the Locals, to refuse to issue any employee hunting permits for the Pasture during the 1965 hunting season. However, it did not make a formal announcement of this decision, and the first indication that the Respondent had decided to pursue this course came during one of the bargaining sessions when one of the Local's representatives asked for a permit to go hunting and either Clarke or Richardson answered "I can't do that." 5 Aside from the foregoing, the decision to close the Pasture to employees for the 1965 hunting season was conveyed to individual employees when they applied for permits to hunt at the Pasture. In any event, as heretofore set forth, the three Locals involved herein protested the decision of management in this respect and, as noted above, a meeting was held between representatives of the Locals and Clarke and Richardson on October 27, 1965. At that meeting, Clarke explained the reason for closing the Pasture to employees and pointed out the damage done by the strike to Respondent's customer relations . He also informed the Locals ' representatives that there were over 200,000 other acres of company woodland available to the employees for hunting and suggested that the Local 's representatives make contact with the Respondent's woodland department for further details on the availability of these additional hunting lands. The only further demand for bargaining by the Union with regard to the close down of the Pasture was at a January 18, 1966, meeting. During that meeting Clarke refused to negotiate "on advice of counsel" based upon the fact that by this time the Locals, herein involved, had filed unfair labor practice charges. In connection with all of the foregoing, Clarke testified at the hearing that the decision to close the Pasture to employees' use was not an indefinite one which would necessarily extend into the 1966-67 hunting season or other seasons there- after but that management was reserving the right to decide what course it would take for the ensuing seasons The importance of the hunting privileges on the Pasture is established by the Respondent's own publications. For instance, distributed to employees of the Respondent on March 22, 1965, before the expiration of the old contracts, was a booklet entitled "Fringe Benefits" in which were detailed the various fringe benefits given by the Respondent to its employees and, in turn, enjoyed by all the employees. Among these benefits is one called "Hunting Facilities" which reads as follows: Southland employees have exclusive use of a 6600 acre hunting preserve located on company land in Polk and Tyler Counties. A permit system, admin- istered by the, Personnel Department Security Office, is used to prevent over- crowding. The considerable cost of maintaining the preserve for employee hunting is borne entnely by the company. Moreover, during the strike, on September. 15, 1965, the local newspaper in Luf- kin published a paid advertisement by the Respondent entitled "Fringe Benefits at Southland " Among the benefits listed were hunting facilities and a description of the exclusive use of the 6,600 acre Pasture was set forth in that advertisement. Moreover, that the employees understood the exclusive use of the hunting pre- serve to be an important fringe benefit is related in the testimony of Cheatham who estimated that about 75 percent of the hourly paid employees hunted down at the Pasture, which was considered a prime, protected hunting area. In addition to all of the foregoing, Cheatham further credibly testified , supported by Herring and Emmons, that at the negotiating sessions during the strike period Respondent's representatives reminded the Locals of what Respondent had done for the members; and was doing for them, and mentioned among the benefits of work- ing for the Respondent the exclusive hunting privileges at the Pasture. However, it should also be noted in connection therewith that the hunting privileges at the Pas- ture were not the subject of negotiations and were not suggested as a subject for 6 This latter incident from the uncontroverted, credited testimony of Bobby R. Cheatham. 6 The Respondent contends that a fair interpretation of Clarke''s comment at the Jan- uary 18 meeting would simply be that the discussion should take place when all parties and their, counsel were present. Respondent further contends that there was no indication in the record that any issue was made of this position inasmuch as there is no evidence that any further request to negotiate was ever made However, neither Clarke nor Rich- ardson in their testimony controverted the statement by witness Cheatham , president of Local 411 , that Clarke refused to negotiate "on advice of counsel" because an unfair labor practice charge was pending. 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiations by any of the parties. Neither were hunting privileges made a part of the current contracts which were signed by the parties at the end of the strike, nor were they mentioned in any of the earlier contracts. D. Concluding findings The General Counsel contends that by unilaterally removing the soft drink machines and terminating the exclusive hunting privileges of its employees, the Respondent has violated and is violating its obligation to bargain in good faith with the charging Locals and thereby violating Section 8(a)(5) and (1) of the Act. The Respondent, on the other hand, contends, in substance, that in the case removal of the soft drink machines, it was justified in its action under all of the cir- cumstances, among them the fact that the machines were not properly serviced and constituted an unsanitary condition. In the case of the refusal to issue permits to hunt on the Pasture, the business necessities caused by the strike constituted justifi- cation. Moreover, in both cases, the bargaining agreements signed at the end of the strike period constituted the entire agreements between the parties and the Respond- ent was, therefore, under no obligation to bargain as to matters which could have been bargained for during negotiations but concerning which the agreements are silent. I shall treat each of the Respondent's actions separately. In the case of the removal of the soft drink machines, as noted above, the machines were originally installed on a trial basis only when the plant cafeteria, operated by an employee association, was forced to cease operations by reason of lack of patronage by plant employees. At the time of installation, there was no dis- cussion with or protest from the charging Locals that the installation was on a trial basis. Accordingly, it would seem that the locals were satisfied that the Respondent would have the ultimate decision of whether to keep or reject the machines. Then, came the period prior to the strike when the machines were proving unsat- isfactory for lack of servicing, failure to make change, and creating an unsanitary condition. Finally, during the strike, the machines were not serviced at all causing an invasion of insects and other unsatisfactory conditions. As a result, and in an effort to rectify a steadily deteriorating situation, the Respondent ordered removal of the machines at the end of the strike period. It could not do so before because the supplier's employees refused to cross the picket line. Thus, although the timing of the removal would indicate, at first blush, that perhaps the removal of the soft drink machines was retaliatory, I do not find the timing significant in view of the circumstances. I conclude, therefore, that the removal was in the interest of good housekeeping by the Respondent. Further retention of the machines in the light of the unsatis- factory performance history was unwarranted. Finally, noting that the machines were installed on a trial basis, with the silence of the Locals if not their affirma- tive consent, I conclude that consultation with the Locals was not required as this had not become, a term or condition of employment about which the Respondent was obligated to bargain. In coming to this conclusion, I have also considered the Respondent's plan, nearing completion, to furnish food and beverages by rolling steam table in a manner which, it hopes, will satisfy the requirements of the Locals' membership. By reason of all the foregoing, I find that the Respondent did not fail to bargain in good faith with the charging Locals insofar as the removal of the soft drink machines is concerned.? The Respondent's decision to withhold hunting permits, however, cannot like- wise be regarded as the exercise of employer prerogative divorced from necessity to consult with the Locals. The privilege of hunting at the Pasture has been a fringe benefit of employment at the Respondent's plant established by over 20 years of precedent and custom. Moreover, its importance and value has been acknowledged by the Respondent in its own publication and in newspaper advertis- ing. That this likewise has been considered an important benefit to the employees is demonstrated by the fact that over 75 percent of the employees have hunted, and regularly do seek to hunt, at the Pasture. Additionally, although the Respondent has now opened over 200,000 acres of forest land to the public and employees alike, the use of the Pasture as a hunting preserve was always reserved for the exclusive use of the employees. Thus, the lands now open do not constitute an adequate sub- stitute and the withdrawal of the hunting permits for the Pasture constitutes a det- 7 For a somewhat similar situation in which the Board refused to find a refusal to bargain see Funkhouser Mills, Division of the Ruberowd Company, 135 NLRB 518, 523, 539. SOUTHLAND PAPER MILLS, INC. 1085 riment to the employees. Accordingly, I find and conclude that the privilege of hunting by permit on the Pasture has been a valuable fringe benefit , held out as such by the Respondent, and is thus a term and condition of employment which could not ,lawfully be changed or eliminated by unilateral action of the Respondent absent some unusual circumstance. . The Respondent argues, however, that the case does present circumstances that make the unilateral elimination of the hunting permits the exclusive prerogative of the Respondent . It points first to the fact that it always retained the right to refuse to issue permits. But, it is clear from the record that any withholding of permits was to have been based on safety considerations so as to protect the reserve from overcrowding which could endanger the lives and health of the hunters . Moreover, the record does not present a single instance of withholding during the past history and certainly not any instance where permits have been refused to all employees for an entire season. Secondly, the Respondent seeks to justify its unilateral action on the basis that it has given to the employees a substitue as a result of the passage of a bill by the Texas Legislature eliminating the liability of property owners of hunting land for accidents occurring to invitees . This new land now opened by this act encompasses some 200,000 acres of the Respondent's land. But, as heretofore set forth , this is not a true substitute as the Pasture was set aside as a preserve for the exclusive use of the employees whereas the other 200,000 acres are open to the general pub- lic as well as employees. Thirdly, the Respondent maintains that the Locals had an opportunity to discuss both the hunting rights (and, incidentally the beverage machines ) during the nego- tiations for the new contracts , yet, they did not bring this subject to the bargaining table. Moreover, the contracts eventually signed did not mention either hunting rights or the continuation of existing benefits. Thus, argues the Respondent, those matters not mentioned in the contract were left to the discretion of the Respondent so that it could freely and lawfully take unilateral action in connection therewith. In support of this position, Respondent relies upon N.L.R.B. v. Nash-Finch Company, 211 F.2d 622 (C.A. 8), where the court of appeals reversed the Board's holding 8 that unilateral termination of an annual Christmas bonus constituted an unlawful refusal to bargain . The circuit court reasoned that the parties , not having mentioned Christmas bonus in their collective -bargaining agreement, the employer was free to make unilateral determination with regard thereto. However, the Board has not deemed itself bound by this court of appeals deci- sion and has, since then , held that a unilateral change in a working condition not covered by a collective -bargaining contract between the employer and the bargain- ing representative may, nevertheless , consitute a violation .9 Accordingly, on the basis of current Board precedent, I reject the Respondent's contention and find that the failure of the Locals to raise the subject of hunting permits at the bargaining table prior to the most recent contract signing and the silence of the contracts with regard thereto does not bestow upon the Respondent the right to unilaterally termine a fringe benefit which is a term and condition of employment. . The Respondent may have had a good business reason for discontinuing its employees' hunting privileges at the Pasture by reason of the fact that the strike which preceded the most recent contracts undoubtedly hurt the Respondent in its relations with its newsprint customers . Inviting the customers to hunt on the Pas- ture might very well have been a wise move from a business standpoint . Neverthe- less, the vice in Respondent's action is not that it did not have a good business reason for doing what it did but, rather, that it unilaterally terminated a fringe benefit without consulting' or bargaining with the Union. In this context, the bona fides of the Respondent's motivation is not determinative. Accordingly, on the basis of all the foregoing, I find that by unilaterally termi- nating the issuance of permits to its employees to hunt on the -Pasture, the Respondent failed to bargain in good faith and thereby violated Section 8(a) (5) of the Act. I further find- that this activity interfered with the employees' Section 7 rights and thereby violated ,Section 8 (a) (1) of the Act. 103 NLRB 1695. . „ For a recent case on this subject see New Orleans Board of,Trade, Ltd ., 152'NLRB 1258. For a court of appeals decision holding contra to the Nash-Finch decision cited by Respondent see General Telephone Company, of Florida v. N L.R.B.,, 337 F 2d 452 (C.A. 5), enfg. as modified 144 NLRB 311. 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE ,The activities of the Respondent set forth above, occurring in connection with the 'oper`ations of 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall rec- ommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As found above, the Respondent in 1965 unilaterally terminated the issuance of hunting permits to its employees for hunting on the Pasture without notifying or consulting with the Locals here involved, thus violating Section 8(a)(5) and (1) of the Act. In connection therewith, it should be noted that the Respondent has stated that it has not yet determined whether it will open the Pasture to its employ- ees for hunting purposes for the seasons to come. Clearly, it is, at this date, too late to order, restitution of hunting rights to the unit employees for- the 1965-66 hunt- ing season.. Nor, in the light of the Respondent's total activities is it recommended that, restitution of ,hunting rights be automatically made. Restitution is not an auto- matic or inflexible remedy to be imposed whenever the employee's unlawful unilat- eral action has resulted in a detriment to the employees.' The unilateral change involved .herein was a failure by the Respondent, acting for good business reasons, to discuss the single question of discontinuing the hunting permits for the 1965-66 hunting season. The record discloses no other unfair labor, practice or other failure or refusal by Respondent to bargain with the Union. To the contrary, it shows that the, Respondent, in, all other respects, accorded of the unions the full recognition required by law.- ,In fact,, agreements were executed as the result of good faith bar- gaining, Under -these circumstances, it is believed that ordering the Respondent to bargain on the use or discontinuance of.the use of the Pasture by the unit employ- ees for future reasons will effectively assure to the Locals involved the full enjoy- ment, of 'their. rights to collective bargaining.10 It will- therefore be recommended that Respondent bargain with the Locals, as should- have been done earlier, concerning the use of the Pasture for, the year 1966-67 and for the years following. Upon the basis of the foregoing findings of fact and upon the entire-record in this case , I make the following: ' CONCLUSIONS OF LAW 1., Respo'ndent is engaged in commerce within the 'meaning of Section 2(6) and (7) of',the Act. - 2. The, Locals are labor organizations within the meaning of Section 2(5) of the Act. 3. The u , nits set 'forth in section III, B, above, of this Decision constitute units appropriate, for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. Local 401; Local 1808, ;and Local 411, have been at all times material herein the exclusive' representatives of the employees in the aforesaid appropriate units for the purposes of collective bargaining within the meaning of Section 9(a) of the Act, - , 5. By unilaterally discontinuing the issuance of permits to hunt at the Pasture to all employees in the above units during 1965-66 hunting season, without bar- gaining collectively with the Locals above-named, the Respondent has engaged in and is engaging , in unfair labor practices within the meaning of , Section 8(a) (5) and (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 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that the Respondent, South- 10 See New Orleans Board of Trade Limited, 152 NLRB 1258. ' ' SOUTHLAND PAPER MILLS, INC . 1087 land Paper Mills, Inc., Lufkin, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing or failing to bargain collectively with the Locals by unilaterally discontinuing the issuance of hunting permits for the Pasture to the employees within the appropriate units. (b) In any like or related manner interfering with the rights of employees guar- anteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Locals concerning the use of the Pasture for hunting purposes by the employees in the appropriate units for the 1966-67 hunting season and on the subject of hunting at the Pasture generally. (b) Post at its plant in Lufkin, Texas, copies of the attached notice marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for Region 16, after being duly signed by the Respondent's authorized representative, shall be posted by it upon receipt thereof, and be maintained by it for 60 consec- utive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.12 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges any unfair labor practices other than as herein specifically found. n In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "a Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals" shall be substituted for the words "a Decision and Order" "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith" APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT unilaterally discontinue the issuance of permits to our em- ployees in the appropriate units to hunt at the Pasture without bargaining with Local 401, International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, and Lodge 1808, International Association of Machinists, AFL-CIO and Local 411, United Papermakers and Paperworkers, AFL-CIO. The appropriate units are: All employees of the Respondent at its Lufkin, Texas, plant in the following classifications and departments, namely, Groundwood Department: Stone Sharpener, Head Grinderman #1 & #2, Head Grinderman #3 & #4, Screen Operator, Rejects Operator, Screen 1st Helper, Screen 2nd Helper, Grinderman, Conveyor Man- Bin # & Bin #2, Conveyor Man-Bin #3 & Bin #4; Stock Preparation: Beater 1st Helper, Beater 2nd Helper, Broke Beat- erman, Tank Farm Man (Day), Tank Farm Man (Night); Finishing & Shipping: Checker, Electric Truck Driver, Car Bracer, Car Cleaner & Dock Man, Scaler #I-Grades Other Than Newsprint, Scaler, Wrapper, Roll Handler, Wrapper Cutter (When Used), Coreman, Coreman 1st Helper, Coreman 2nd Helper, Utility Man, Laborer; Routine Position in Technical Service Department: Utility Man, Power Plant Tester, Shift Chemist, Bleach Plant Tester, Shift Chemist Helper, Beater Tester, Groundwood Tester, Sample Runner, Newsprint Tester, Kraft Tester, Research Helper (Up to Dept. Supt.) ; 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kraft Pulp Mill: Cook, 1st Helper, 2nd Helper, 3rd Helper, Washer- man, Screen Operator, Screen Room Helper, Recovery Operator, 1st Helper, 2nd Helper, Head Tube Lancer, Tube Lancer, Laborer, Evapo- rator, Salk Cake Man, Caustic Operator Lime Kiln & Rotoclone Oper- ator, Helper-Caustic Room, Lime Roller, Bleach Plant Operator, Bleach Plant 1st Helper, Bleach Plant 2nd Helper Utility Man (Dead End- Day Job); Wood Handling: Crane Operator, Scaler-Clerk, Drum Operator, Scaler, Turntable Operator, Yard Leaderman, Tractor Driver, Head Wood Sorter, Wood Sorter, No. 47 Conveyorman, Knife Grinder & Chipper Tender, Chipperman, Clean-up & Oiler, Block Stacker, Winch Truck Driver (When Used), Truck Driver, Wood Splitter, Crane Labor, Bark Handler, Laborer; Storeroom: Clerks, Receiving Clerk, Assistant Receiving Clerk (When Used); Maintenance: Carpenters-Head Carpenter, Saw Filer, Journeyman, Helper, Furnace Repair & Insulation Man, Helper, Oilers-Head Oiler, Oiler; Train Crew-Engineer, Switchman & Conductor, Assistant Switchman, Spare Gang-Spare Gang Pusher, Maintenance Winch Truck Operator, Laborer (Relief), Yard Gang-Pusher (When Used), Hyster Operator, Equipment Operator, Truck Driver, Loader, Laborer, Track Crew- Laborer, Truck Driver (When Used); Machines: Machine Tender, Back Tender, Third Hand, Fourth Hand, Fifth Hand, Sixth Hand Fifth Hand (new employees), Sixth Hand (new employees) on Machines #1, #2, #3, #4; Clothing Man, Assistant Clothing Man, Clothing 1st Helper Clothing Helper, Crane Man, Plug- ger & Spare-6th Hand, Rewinder Man, Rewinder Helper; Stock Preparation: Beater Engineer, excluding Departmental Superin- tendents, Assistant Superintendents, Millwright Foreman, Pipefitter Fore- men, General Maintenance Foremen, Pulp Mill Tour Foremen, Paper Mill Foremen, Groundwood Mill Foreman, Power Plant Foremen, Wood- yard Foreman, Finishing and Shipping Foremen, Board Mill Supervisors, Track Foreman, Yard Foremen, Personnel Manager, Safety Engineer, Nurses, Watchmen, Store Keeper, Engineers and Draftsmen , Office Em- ployees, Secretaries, Stenographers and Clerks, Research Chemists, Ana- lytical Chemists, Field Technician, Maintenance Engineers, Area Super- visors, Shop Foremen, Chief Planner for Maintenance, and employees represented by other labor organizations. All employees of the Respondent at its Lufkin, Texas, plant in the fol- lowing classifications and departments, namely, Roll Grinderman & Millwright; Millwrights: Leaderman, Journeyman, Helper; Welders: Leaderman, Journeyman, Helper; Machinists: Leaderman, Journeyman, Helper; Pipe fitters: Leaderman, Journeyman , Helper; Blacksmith, Helper; Slitter Grinder & Second Helper; Painters: Leaderman, Journeyman, Helper; Garage Mechanic: Head, Helper; Saw Filer for Wood Procurement, excluding Departmental Superintendents, Assistant Superintendents, Mill- wright Foremen, Pipefitter Foremen, General Maintenance Foremen, Pulp Mill Tour Foremen, Paper Mill Foremen, Groundwood Mill Fore- men, Power Plant Foremen, Board Mill Supervisors, Track Foremen, Yard Foremen, Personnel Manager, Safety Engineer, Nurses, Watchmen, Store Keeper, Engineers and Draftsmen, Office Employees, Secretaries, Stenographers and Clerks, Research Chemists, Analytical Chemists, Field Technician, Maintenance Engineers, Area Supervisors, Shop Foremen, Chief Planner for Maintenance, and employees represented by other labor organizations. WE WILL NOT in any like or related manner interfere with our employees' rights guaranteed in the Act. WE WILL, upon request, bargain collectively with Local 401 , International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, and Lodge 1808, International Association of Machinists AFL-CIO, and Local 411, FRICK COMPANY 1089 United Papermakers and Paperworkers, AFL-CIO, concerning the issuance of hunting permits for the use of employees in the appropriate units for hunt- ing at the Pasture for the hunting season of 1966-67, and on the subject of the use of the Pasture for hunting by employees generally. SOUTHLAND PAPER MILLS, INC., Employer. Dated------------------- By------------------------------------------ (Representative (Title) This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Tel- ephone 334-2941. Frick Company and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. Case 6-CA-3379. November 16, 1966 DECISION AND ORDER On May 12, 1966, Trial Examiner Harry H. Luskin issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. He also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dis- missal of these allegations of the complaint. Thereafter, the Respond- ent, the General Counsel, and the Charging Union filed exceptions to the Trial Examiner's Decision and supporting briefs. The Charg- ing Party filed a reply to Respondent's exceptions while the Respond- ent filed a reply brief to the brief filed by the General Counsel.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, briefs and reply briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 1 Respondent has requested oral argument . As the record, the Trial Examiner's Decision, and the exceptions and briefs adequately set forth the issues and the positions of the parties, this request is hereby denied. 161 NLRB No. 99. 264-188-67-vol. 161-70