Forrest Industries, Inc.

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Forrest Industries, Inc. and International Wood- workers of America Local Union No. 3-436, AFL-CIO. Case 36-CA-1368 December 7,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On April 6, 1967, Trial Examiner Howard Myers issued his Decision in the above-entitled proceed- ing, 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 attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent con- sistent herewith. The complaint was issued on August 8, 1966. On August 26, 1966, the Respondent filed a motion for its dismissal alleging that no valid charge was pend- ing when the complaint issued. This motion was referred to Trial Examiner Louis Penfield who de- nied it without prejudice to renewal at a subsequent point in the proceeding. The Respondent renewed this motion to dismiss at the hearing herein, and it was denied by Trial Examiner Myers. We find merit in the Respondent's exception to that ruling. On January 28, 1965, the Union filed a charge al- leging that the Respondent had violated Section 8(a)(5) and (1) of the Act by abolishing two jobs on November 22, 1964, without bargaining with the Union. By letter dated May 11, 1965, the Regional Director notified the Union of his decision not to issue a complaint. Thereafter, the Union filed a timely appeal which was denied by the General Counsel on September 27, 1965. The Union then filed a motion for reconsideration, which the General Counsel denied on October 22, 1965. On January 26, 1966, more than 3 months later, the Union filed a second motion for reconsideration with the General Counsel based solely on state- ments made by the Respondent in court briefs sub- mitted in connection with a contract action under section 301. On June 14, 1966, the General Coun- sel reversed his original ruling and remanded the case to the Regional Director with instructions to issue an 8(a)(5) and (1) complaint. Some flexibility of procedure is necessary to achieve the ends of justice under the Act and to af- ford parties full opportunity for submission of all evidence and arguments. But it is also important in the administration of the Act that procedural remedies be deemed exhausted at some point and a case closed. We have considered all the circumstances in this case, including the allegations of the complaint, the nature of the materials offered to support a second motion for reconsideration more than 3 months after the first such motion was denied, and the General Counsel's reversal of action on such basis approximately 6 months after the second motion for reconsideration was filed. It is our view, upon con- sidering all these circumstances, that the General Counsel's rejection of the first motion for recon- sideration was dispositive of this proceeding and, in any event, that it will not effectuate the policies of the Act to proceed further in this matter. Ac- cordingly, and without reaching the merits of the unfair labor practices alleged, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HOWARD MYERS, Trial Examiner: Upon a charge duly filed on January 28, 1965, by International Woodworkers of America Local Union No. 3-436, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel' and the Board, through the Regional Director for Region 19 (Seattle, Washington), issued a complaint, dated August 8, 1966, against Forrest Indus- tries, Inc., herein called Respondent, alleging that Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(5) and (1) of the National Labor Relations Act, as amended, from time to time, 61 Stat. 136, herein called the Act. Copies of the charge and complaint, together with notice of hearing thereon, were duly served upon Re- spondent and copies of the complaint and notice of hearing were duly served upon the Union. More specifically, the complaint, as amended,2 alleges I This term specifically includes counsel for the General Counsel ap- pearing at the hearing 2 On September 14, 1966, the General Counsel served upon the parties an "Amendment to Complaint." 168 NLRB No. 98 FORREST INDUSTRIES, INC. 733 (1) at all times material , the U nion has been recognized by Respondent as the exclusive collective -bargaining representative of Respondent's employees in a certain ap- propriate unit ; (2) on or about November 22, 1964, Respondent unilaterally abolished the jobs of Darrell Hill and John Hattan , two unit employees ; (3) on certain stated dates , Respondent refused to bargain in good faith with the Union regarding the elimination of the Hill and Hattan jobs ; (4) as a consequence of Respondent's refusal to bargain as aforesaid, the Union struck Respond- ent's plant; and (5) by the aforementioned acts and con- duct, Respondent interfered with , restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On September 1, 1966, Respondent duly filed an answer denying the commission of the unfair labor prac- tices alleged. The answer also set up three affirmative defenses.'; Pursuant to due notice, a hearing was held at Roseburg, Oregon, from October 31 through November 4, 1966. Each party was represented by counsel and participated in the hearing. Full and complete opportunity was af- forded the parties to be heard, to examine and cross-ex- amine witnesses , to introduce evidence pertinent to the issues, to argue orally on the record at the conclusion of the taking of the evidence , and to file briefs on or before December 15, 1966.4 Each party filed a brief. Sid briefs have been carefully considered.5 Before the taking of any evidence , Respondent's coun- sel renewed a written motion which he had made to dismiss the complaint . The motion was submitted to the Division of Trial Examiners by the aforementioned Re- gional Director. Trial Examiner Louis S. Penfield, to whom the motion was assigned, "denied [it] without prejudice to its renewal at a subsequent point in the proceeding." At the conclusion of the General Counsel's case-in-chief and again at the conclusion of the taking of the evidence, Respondent's counsel renewed his aforesaid motion to dismiss the complaint. On each occa- sion, I reserved decision. The motion was based on the ground that the proceeding is barred by Section 10(b) of the Act. The motion is hereby denied. At the conclusion of the General Counsel's case-in- chief, Respondent's counsel moved to dismiss the com- plaint, as amended , for lack of proof. Said motion was renewed at the conclusion of the taking of evidence. On each occasion, decision was reserved . The motion is disposed of in accordance with the findings, conclusions, and recommendations hereinafter set forth. Appendedto the General Counsel's brief were certified copies of Trial Brief of Plaintiff Forrest Industries, Inc., and Reply Brief of Plaintiff Forrest Industries , Inc., filed by Respondent herein in the United States District Court for the District of Oregon, in Forrest Industries, Inc. an Oregon Corporation, Plaintiff (Respondent herein) v. Local Union No. 3-436, International Woodworkers of America, AFL-CIO, a Labor Organization (the Charging Party herein), and Western States Regional Council No. 111, International Woodworkers ofAmerica , AFL-CIO, a Labor Organization (Civil No. 65-37), and a copy of Appellant's brief (Respondent herein) filed on appeal in the same -proceeding in the United States Court of Ap- peals for the Ninth Circuit. On January 23, 1964, Respondent's counsel filed with me a motion, together with proof of due service of copies thereof on opposing counsel, to strike from the General Counsel's aforementioned brief copies of the three briefs, referred to immediately above , on the ground, inter alia, that said "briefs are not properly before the Trial Ex- aminer or the Board , and are not matters which may be considered by the Trial Examiner herein ."6 The motion is hereby granted. Respondent, and as well as the other parties, is hereby put on notice that I have not read any portion of said three briefs nor have I given any con- sideration whatsoever to any portion of any brief filed with me which in any way refers to, or quotes from, them. Upon the entire record in the case and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS OPERATIONS Forrest Industries , Inc., an Oregon corporation, has its principal offices and place of business at Dillard, Oregon, where it is engaged in the manufacture of plywood. Dur- ing 1964 Respondent's out-of-State sales of manufac- tured plywood exceeded $100,000. Upon the basis of the foregoing facts, I find in line with established Board authority, that Respondent is engaged in, and during all times material was engaged in, a busi- ness affecting commerce within the meaning of Section 2(6) and (7) of the Act and that its business operations meet the standards fixed by the Board for the assertion of jurisdiction. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to mem- bership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Prefatory Statement The threshold question to be decided is whether Respondent's action in eliminating the floorman's job on the swing and graveyard shifts commencing on November 22, 1964, was violative of the Act. Respondent , in the operation of its plywood plant, has for several years prior to 1964 employed three shifts. On the day shift, the lighter panels of plywood - one fourth and three eighths inches thick - are "laid up" and two spreader crews are employed. On the swing and graveyard shifts, the heavier panels - five eighths inches and thicker - are "laid up" by a single spreader crew on each shift.7 The function of the spreader crews in each case is to take the pieces of veneer upon which the adhesive has been applied by the spreader and arrange them into a plywood panel of specified thickness . Following the layup of the veneer by the spreader crews into panels and 3 On September 27, 1966, Respondent duly filed an answer to the "Amendment to Complaint." 4 At the request of counsel, the time to file briefs was extended to January 20, 1967 Except the documents appended to the General Counsel's brief. The said motion papers are hereby received in evidence as TX Exh. ' The swing and graveyard shifts use of but one spreader is occasioned by the longer time necessary to bond the heavier panels A stockrustler, glue mixer , and floorman were employed on those shifts without interrup- tion from approximately April 1961 till November 22, 1964, when Respondent made the changes at issue here. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their stacking into a load, the panels are moved on rollers a short distance into the press where under pressure the veneer is bonded into panels. From the press the panels go to the saw where they are cut to size, sanded, and finally placed in the warehouse prior to sale and ship- ment. Insofar as pertinent here, the spreader crews were im- mediately supported in aforementioned functions by three persons bearing the job classifications of glue mixer, floorman, and stockrustler. The glue mixer works in an area near the spreaders where he mixes the chemicals which make up the adhe- sive that is applied to the veneer by the spreader machine prior to being laid up by the spreader crew. It is his responsibility to see that sufficient glue of the proper type, strength, and vicosity is available to permit the con- tinuous operation of the spreader. The Doorman's primary responsibility is to deliver by jitney a continuous supply of veneer to the spreader crew of appropriate thickness and grade from the various points in the plant where it is stored. The stockrustler operates the plywood press, deter- mines the pressure to be applied, and the amount of time necessary to hold the load under pressure to obtain a proper bond. He tallies the type and number of panels produced and delivers the load by jitney to the saw for cutting into the specified size panels. For more than 3 years prior to November 19, 1964, Respondent employed a glue mixer, a floorman, and a stockrustler on both the swing and graveyard shifts. About that date, Respondent decided to eliminate the floorman on those two shifts and to redistribute his duties between the glue mixer and stockrustler. B. The Pertinent Facts' The Union is, and at all times material was, the exclu- sive collective-bargaining representative of the em- ployees here involved, and Respondent, during said period, recognized and dealt with the Union as such representative. On the morning of Wednesday, November 18, 1964, Respondent, according to the testimony of Harry Clemons, Jr., a Respondent witness, and from January 1962 until March 15, 1965, Respondent's superintendent N In the light of my observation of the conduct and deportment at the hearing of all the persons who testified herein, and after a very careful scrutiny of the entire record, all of which has been carefully read and parts of which have been reread and rechecked several times, and being mindful of the contentions of the parties with respect to the credibility problems here involved, of the fact that in many instances, testimony was given re- garding events which took place many, many months prior to the opening of the hearing, and of the fact that very strong feelings have been generated by the circumstances of this case, coupled with the fact that it would unnecessarily protract this Decision to summarize all the testimony or to spell out fully the confusion and inconsistencies therein, the follow- ing is a composite picture of all the factual issues involved and the conclu- sions based thereon. The parties may be assured that in reaching all resolutions, findings, and conclusions herein, the record as a whole has been carefully considered, relevant cases have been studied, and each contention advanced has been weighed, even though net specifically of its Dillard, Oregon, plywood operations,9 had decided to and had "set up the mechanics to put" into effect the eliminat;9n of the foremen on the swing and graveyard shifts. Ralph DeMoisy, the mill's general manager and vice president and a General Counsel witness , however, testified that Respondent had decided to eliminate the swing and graveyard Doormen's jobs on or about March 12, and the actual carrying out of that decision hinged upon when the maintenance crew would be able to per- form certain necessary preparatory work before the cur- tailment could be put into effect. Shortly before the commencement of the swing shift (3:30 p.m.) on November 19, Charles Lynch, chairman of the Union's plant committee,1° reported for work, but instead of going directly to his work area, he, as was his custom as plant committee chairman , went to the plant's bulletin board to remove therefrom the posted "job bids" and take the said postings , again as was his custom, to the foreman's or the superintendent's office and give the foreman or superintendent the bids which the employees had posted. While in the foreman's or superintendent's of- fice that particular day, Clemons came in and asked Lynch to come to his office, explaining that he wanted to discuss certain matters. Lynch did as requested. During the meeting in Clemons' office , referred to im- mediately above, Clemons and Lynch first discussed the curtailment of certain jobs and the eliminating of certain other jobs. These particular jobs, being 11 in number, were discussed "one by one" and Lynch, having previ- ously been informed by Respondent that said jobs, at some future date, would be curtailed or eliminated , stated he had no objection to whatever action Respondent desired to take with respect to them." Clemons then re- marked that the Doormen's jobs on the swing and graveyard shifts were being eliminated. When Lynch stated that he could not understand how a Doorman's job could justifiably be eliminated since the floorman ser- viced all the machines in his department, Clemons said the stockrustler would take over the Doorman's duties and the glue mixer would operate the presses which the stockrustler normally performed. Thereupon, Lynch stated, to quote from his testimony on direct examination by the General Counsel, "This is out of line with our pol- icy, to make a change like this without first sitting down and working the problem out in negotiations," and asked that a meeting be arranged with the full plant commit- discussed. 4 Clemons was first hired by Respondent on June 6, 1961, as a day-shift foreman at Dillard , the following January , he was made superintendent of the plywood operations; from March 15, 1965, until March 2, 1966, he owned and operated a shake mill at Dillard ; since the last stated date, he has been employed as general superintendent for the Menasha firm at North Bend, Oregon. 10 Since July 1, 1961, Lynch has been in Respondent's employ. In November 1964, he worked as a ripper patcher Over a 20-year period, Lynch held practically every office in Local 3-436, including being its business agent from 1956 until 1960 1 With respect to these 11 job curtailments and eliminations , Clemons explained to Lynch the "cost reduction program," which Respondent in- tended to put into immediate effect was due to "adverse market conditions and rising costs of mill operation." FORREST INDUSTRIES, INC. 735 tee.12 Clemons replied, to again quote from Lynch's direct examination, "[A] meeting was not necessary, that he was putting the change into effect anyway."'After Lynch remarked that he, nonetheless, wanted the matter negotiated by and between Respondent and the plant committee before the jobs were actually eliminated, Clemons again stating that a meeting between Respond- ent and the plant committee was unnecessary to effectu- ate the job eliminations, Lynch left Clemons' office.13 While Lynch was passing through the glue department on his way to his work station, a route necessary to take, some glue department employees stopped Lynch and asked him whether Respondent could properly eliminate the floormen's jobs without prior negotiation with the Union. 14 Lynch replied, "I can't give you an answer until the [plant] committee has had a meeting with the com- pany- Lynch, upon leaving the glue department, went directly to the plant lunchroom and, using a public pay telephone, called Verdo Ligon, the Union's assistant business agent.15 Lynch told Ligon that Clemons had informed him that morning that certain jobs, including the floor- men's on the swing and graveyard shifts, were being cur- tailed and/or eliminated that he had asked Clemons for a meeting with the plant committee before the floormen elimination went into effect; that Clemons had said such a meeting was unnecessary and intended to put into effect the elimination without meeting with the Union; and that he wanted Ligon "to take it from there." Ligon, im- mediately upon completion of his aforesaid telephone conversation with Lynch, telephoned Clemons and asked for a meeting with him and the full plant committee to negotiate the floormen job elimination before it was put into effect. Clemons replied that he would call Ligon back a little later. About an hour after the above-referred to Clemons- Ligon telephone conversation, Clemons telephoned Ligon and said that he would meet with the plant commit- tee on Monday, November 23, at 3:30 p.m. Thereupon, Ligon asked Clemons not to eliminate the floormens' jobs until the Union had an opportunity to negotiate the matter with the Company.is Beginning with the graveyard shift, which commenced at midnight or thereabouts on November 22, the swing and graveyard floormen jobs were unilaterally eliminated. 17 12 Regarding this meeting, Clemons testified on direct examination, in part, as follows: We discussed the ramifications of this proposal. Mr Lynch stated to me, he said, "Well, I can't stop you from doing it, or I can't give you permission to do it," but he also stated that we probably would have problems with it. In going back into the cost reduction program, I also stated to Mr. Lynch that, if this thing didn't work, we'd keep a wary eye on it, and if it appeared that these people were burdened to a point where they couldn't handle the job, or if I felt that it was going to in- crease our costs, we would automatically pull back and continue from there. But, anyway, Mr Lynch said, "If we have problems, I'll probably meet with you later." He also asked for a committee meeting. At this particular time, as I recall, in working close with Mr Lynch explain- ing these different problems that had arose, I told Mr. Lynch that, under our past practice, he could explain this to the shop committee, or if this wasn't satisfactory, I would be very glad to meet with them, and he said, "Well I've got to get back to work; I'll see you later." On cross-examination by the General Counsel, he testified. Q I see. Now, on November 19th, 1964, is it not a fact that Mr Lynch asked you for a shop committee meeting then and there" A. On November 19th" Q Yes A He asked for a meeting for me to explain this program to the committee Q. He asked for it then, didn't he' A. He asked if we could have a meeting. He didn't say, "I want it now " Q He asked if he could have a meeting then, did he not? A At that particular time, he asked for a meeting, yes. Q To be held then" A. Not to my understanding, no Q. He didn't ask for it at some indefinite future date did he" A I don't know Q Now, Mr Clemons, he asked for the meeting then, and your response to him was, "No, you go explain it to them, and if they don't buy your explanation, I'll talk to them," is that not so" A This is true. 13 That Lynch in fact had requested Clemons on November 19 not to put the floorman job-elimination plan into effect until the Union and the Company met to discuss the matter finds ample support in DeMoisy's positive testimony that Clemons told him that day, November 19, "he had run into a problem with Mr Lynch" who had said, "The union wanted a meeting to discuss this situation. with the plant " 14 It is thus evident that Respondent's decision to eliminate the jobs in question became known to the glue department personnel prior to Lynch's above-related conversation with Clemons 15 Ligon, a former Respondent employee and a one-time vice president of Local 3-436, was the Union's business agent at the time of the hearing. When in Respondent's employ, Ligon worked on various jobs including core layer, drier feeder, clipper operator, press operator, sheet turner, floorman, and edge glue operator 16 Under questioning by counsel for the Union, Clemons testified that, "I can't deny ... or confirm it right now I don't recall," that Ligon had requested him during their aforesaid November 19 telephone conversa- tion "to withhold effectuating [the floorman job elimination] transfers until the union had an opportunity to negotiate with you on it?" Clemons then testified as follows Q (By Mr. Roll) [Union's counsel] I see So that your answer would be the same if the same question was posed to you respecting Mr Lynch, isn't that right? You couldn't deny or confirm it? A. Yes. Q Now, Mr Clemons, it is correct, is it not, that at the time that you talked with both Mister - strike that - that you talked with Mr Ligon, that this decision had already been made? MR. MAXWELL [Respondent's counsel] What decision? Q (By Mr Roll) To transfer the floormen, when you talked to Mr Ligon on the telephone at the time the plant committee meeting was arranged, the decision had already been made at that time, hadn't it? A. We had set - we had made the decision and set up the mechanics to put this program in motion, yes Q And that decision to put the program in effect was made on what date? A As I recall, it would have been the morning of November 18th Q. Yes. Even before you talked with the plant committee chair- man, Charles Lynch, right? A. The program was instituted, yes. Clemons testified that the above-related telephone conversation took place on either November 20 or 23, and not on November 19, as testified to by Ligon Clemons testified that he remembered leaving the plant im- mediately after concluding his conversation with Lynch on November 19, went home, and then took his wife to join another couple in order to be- latedly celebrate his November 18 wedding anniversary Upon the entire record, I am convinced, and find that the aforesaid Clemons-Ligon telephone conversation took place on November 19 1' Between the time of Lynch's and Ligon's November 19 requests or demands upon Clemons that the floormen jobs not be eliminated until the Union had an opportunity to negotiate the matter with Respondent and the beginning of the November 22 graveyard shift, Respondent had sought advice either from an attorney at law or from its labor relations consultant Whoever the party was, he advised Respondent it was not obliged to negotiate the elimination in question with the Union 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clemons, armed with the knowledge that Respondent's attorney or labor relations consultant had advised Respondent that it could eliminate the floormen's jobs without prior negotiation with the Union, met with Mar- vin Williams, the Union's business agent , Ligon, who acted as the Union' s spokesman, Lynch, and the four other plant committeemen about 3:30 p.m. on November 23. Also present were Foreman Mel Baker and John Bingham, Respondent's accountant and the person who also keeps the grievance and personnel records. Ligon opened the meeting, mentioned immediately above, by stating, the union men were there, "to get into this curtailment involving swingshift floorman and graveyard shift floorman, that it was a curtailment of men and not of duties. The job s still existed, and those duties had already been transferred to other employees, and we had requested a meeting prior to any change being made [but] the change had been accomplished." 18 Ligon then stated that the Union wanted to negotiate this elimination and requested that the two floormen be put back on their jobs while the Union surveyed the situation and discussed the matter with the Company. Clemons replied that he did not have the authority to negotiate the matter, that the curtailment19 had been made and if the Union"wished to reverse that decision," the Union "would have to take it up over his head to higher manage- ment." After the Union had requested a conference with "higher management" the meeting concluded. On December 14, the parties again met. In addition to those attending the November 23 meeting, Respondent was also represented by DeMoisy and Jack Gossard, the Willamette Valley regional representative of the Timber Operators Council;20 the Union was, in addition to those attending the November 23 meeting, represented by D. C. Gunvaldson, a representative of the Union's Regional State Council. At this meeting, Gossard was Respondent's spokesman and Gunvaldson was the Union's. In response to Gunvaldson 's opening inquiry as to why the floormen were eliminated without prior negotiation with the Union, Gossard replied that the curtailment was not a bargainable matter but merely a matter of manage- ment preprogative. Gossard then asked Gunvaldson what provision of the existing collective-bargaining agreement the Union claimed had been violated by the curtailment. According to Lynch's testimony, the following then en- sued: Well, the discussion continued for better than an hoot, and we were getting absolutely no place. We weren't even getting to the problem that we came there to discuss, and I got my fill of it. I blew up and said, "Look here, what are we doing? We're sup- posed to be intelligent people. Why can't we get in here and solve this problem? We can't even get to talk about it." I said, "Get it down out of the air and on the table, and I'm sure we can bargain a solution to it" "This is a quote from Lynch s testimony Throughout the record "curtailment" and "elimination" had been used interchangeably '0 An employer-association representing its members for the purpose, among other things, of collective bargaining with representatives of its members' employees Respondent is, and during times material was, a member of the Timber Operators Council After that shortly, there was a caucus called, and after this caucus, the Union stated their position, that they wanted to get down to - Q. (By Mr. Byrholdt) [Counsel for the General Counsel] What was that? A. They wanted to get down to the issue of bar- gaining and proposed that the floormen be put back on their jobs in order that we could survey it and come up with some type of solution. There again, we got the same answer, that it was a management right, how dare us question that right , that it wasn't bar- gainable, and that's as far as we could ever get with it. Q. About how long did that meeting last, Mr. Lynch? A. Oh, approximately three hours, I would say. The meeting concluded with the understanding that "a statement of facts" regarding the situation would be prepared by each party and exchanged at the next meeting.21 The parties met again on January 12, 1965. The same persons were present at this meeting who attended on December 14, except one plant committeeman . Gossard again acted as Respondent's spokesman and Gunvaldson again acted for the Union. After the Union had presented its statement of fact to Respondent's representatives and after they had an opportunity to study it, Gossard an- nounced that the Union's statement was untrue and a distortment of the facts. Gunvaldson replied that the Union was not there to defend its statement of fact but was there for the purpose of negotiating the floormen cur- tailment. Gossard replied that the curtailment was not a bargainable issue and that management was within its rights to unilaterally curtail the floormen in question. Gossard then insisted upon discussing the Union's state- ment of fact. The meeting bore no favorable results. The next meeting took place on January 15, at which a Federal mediator was present at the Company's request. Despite the presence of the mediator, the meet- ing bore no fruit. Respondent refused the Union's request to negotiate the elimination of the swing and graveyard shifts floormen, maintaining that the curtailment was a matter within the prerogative of management. gossard again consumed most of the time in discussing the Union's statement of fact. Under date of January 22, the Union wrote Respond- ent as follows: This supplements our letter of January 21, 1965, concerning the labor dispute caused by your arbitra- ry unilateral action in removal and transfer of Darrell Hill and John Hatton from their floorman jobs. To insure that there can be no misunderstanding, we insist that you meet with this organization with an open mind and negotiate. We are ready to bargain with you in good faith immediately upon this matter and demand that you do the same. 21 Pursuant to the bargaining agreement then in effect, when an impasse on a problem was reached, the next step was the preparation of a state- ment of facts to be prepared by each party, and then "a stop-work meeting of the crew would be called that necessitated shutting down the plant for two or three hours, and each statement of fact would be read to the mem- bership " FORREST INDUSTRIES , INC. 737 Please advise the earliest possible date and time that you will bargain with us on this issue and par- ticularly whether you will meet with us today , Janua- ry 23rd or 24th before our meeting presumably scheduled for Monday, January 25th. On January 25, the parties again met. Respondent was represented by R. W. Maxwell, Esq., its legal counsel, Gossard, DeMoisy, Clemons, and Bigham and the Union by A. C. Roll, Esq., its legal counsel , Gunvaldson, Wil- liams, Ligon, Lynch, and four plant committeemen. The meeting lasted about 7 hours but nothing was settled. The Union stated that it was there to negotiate the elimination question, adding that the curtailed floormen need not be returned to their jobs prior to negotiations. Respondent, on the other hand, remained adamant in its stand that the floormen curtailment was not a bargaining issue but a management prerogative. Due solely to Respondent's refusal to bargain relative to the curtailment of Hill and Hattan, the two floormen here involved, the Union, about 5 a.m . on January 26, struck Respondent's mill and placed pickets around it. The strike was still in progress at the time of the hear- ing. C. Concluding Findings Section 8(a)(5) of the Act, read together with Section 8(d), requires an employer to bargain collectively with the representative of his employees "with respect to wages, hours, and other terms and conditions of employment." Accordingly, an employer violates his statutory bargain- ing duty by altering employee working conditions without affording the bargaining representative prior notice and opportunity to bargain.22 As the Supreme Court stated in Katz, supra, 369 U.S. at 743: We hold that an employer's unilateral change in con- ditions of employment under negotiation is similarly a violation of § 8(a)(5), for it is a circumvention of the duty to negotiate which frustrates the objectives of § 8(a)(5) much as does a flat refusal. There is no dispute about the facts which establish the prima facie violation of Section 8(a)(5) and (1) of the Act here. It is undisputed that the Union now is, and during all times material was, the collective-bargaining repre- sentative of the employees here involved, including the two floormen in question. Commencing with the Novem- ber 22 graveyard shift, Hill and Hattan, the floormen in- volved, were curtailed by Respondent, admittedly, without any prior negotiations with the Union. And the law is clear that this change was adopted with respect to a matter which constitutes a mandatory bargaining sub- ject within the meaning of the Act.23 Respondent defends by raising several arguments, the main ones stressed are:24 (1) The parties hereto had bar- gained on the subject during negotiations which cul- minated in the bargaining agreement now in effect;25 (2) past practice of the parties hereto permitted the unilateral curtailment action; and (3) economic reasons compelled the curtailment. As to (1) I am not unmindful of the fact that a labor or- ganization may waive the statutory rights granted to it and to the employees it represents, but the Board has said that it will not lightly infer such a waiver. The waiver, the Board has said, must be in clear and unmistakable terms. Tide Water Associated Oil Company, 85 NLRB 1096; Hekman Furniture Company, 101 NLRB 631; California Portland Cement Co., 101 NLRB 1436. Ac- cord: International Union, United Automobile Workers v. N.L.R.B., supra. Article XI, paragraph (b)(4) and article XXI, paragraph (d) of the 1963-1966 bargaining agreement on which, ac- cording to its brief, Respondent relies in support of its contention that the Union and Respondent "bargained on the subject of curtailment and had reached an agree- ment," read as follows: XI (b) (4) Demotion caused by plant or job curtail- ment, or when an employee returns from an absence, shall be by job seniority in line with qualifications through each job classification previously held. XXI (d) The subjects of general wage adjustments and individual classification adjustments are closed until June 1, 1966, except that such closure will not bar negotiations at any time on rates of pay for newly-established classifications, or in regard to clas- sifications wherein there has been a substantial change in job content. The above-quoted paragraphs do not, nor does any other provision in said bargaining agreement, spell out a waiver of negotiations over Respondent's decision to cur- tail Hill and Hattan. In any event, the paragraphs of the agreement relied on by Respondent do not clearly and unmistakenly waive bargaining about the application and implementation of the agreement which is a continuing duty.211 In other words, whether the Union waived its right to make proposals and negotiate on the general sub- ject of curtailment is not here in issue. What is in issue is the Union's right to negotiate on a specific decision to curtail Hill and Hattan and the above-quoted provisions of the bargaining agreement do not waive that right .27 it thus follows that this contention is without merit or sub- stance. As to (2), Respondent's contention that the putting into effect the curtailments in question without prior negotia- 22 Fibreboard Paper Products Corp. v N.L R B , 379 U S 203; N L R B v Katz, 369 U S 736, Great Southern Trucking Co. v. N.L R B , 127 F 2d 180 (C A. 4), N L R B v Winn-Dixie Stores, Inc, 361 F 2d 512 (C.A. 5), N L.R B v. Central Illinois Public Service Co, 324 F 2d 916 (C A 7) Accord International Union, United Automobile, Aerospace and Agricultural Implement Workers of America [General Motors] v NL.RB,381 F 2d 265 (C A.D C). 21 See for example Local Union No 189, Amalgamated Meat Cutters & Butcher Workmen of North America v Jewel Tea Co , 381 U S 676, N L R B v Katz, supra, N L R B v. Rapid Bindery Inc , 293 F 2d 170 (C A 2), N L R.B v Brown-Dunkin Company, Inc , 287 F 2d 17 (C.A 10), N L R B v American Manufacturing Company of Texas, 351 F 2d 74 (C A 5), Oider of Raihoad Telegraphers v Chicago & Northwestern Railway Co., 362 U S 330 , International Union, UAW v. N L R B , supra 24 It is significant to note at the juncture that in its brief Respondent (at p 13) states The Respondent does not now nor has it ever contended that the sub- ject of change of assignment of job duties is not a bargainable subject within the broad language of the Act and under Board rules 2' In this respect , Respondent points to articles XI, XXI,and XXI I I 26 Rapid Roller Co , 33 NLRB 557, enfd in part and remanded in part 126 F.2d 452, 459 (C A 7), Inteinational Union , UAW v N L.R B , supra 27 Square D Company, 142 NLRB 332; International Union, UAW v N L R B , supra, and cases cited 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion was merely a procedure it had followed with union acquiescence over a long period of time is belied not only by the record but especially by DeMoisy's testimony on cross-examination on this point: Q. It was a routine practice, was it not, to consult with the union in advance and to work out a solution, particularly with regard to curtailments that involved the reassignment of some duties where they were not automated out, was it not? I'm talking about the practice and policy of the company. A. Yes. As to (3), Respondent's contention that the curtail- ments were made in good faith for legitimate economic reasons and not because of any intention to frustrate col- lective bargaining is likewise without merit. It is immaterial as a matter of law whether an employer acted, in circumstances here presented, in good faith or not. The fact that an employer takes unilateral action with respect to working conditions solely for legitimate busi- ness conditions raises no defense to an 8(a)(5) charge. As the Supreme Court explained in Katz, 369 U.S. 736, 743: Clearly, the duty [to bargain collectively] may be violated without a general failure of subjective good faith; for there is no occasion to consider the issue of good faith if a party had refused even to negotiate in fact - "to meet ... and confer" - about any of the mandatory subjects. A refusal to negotiate in fact ... violates § 8(a)(5) though the employer has every desire to reach agreement with the union upon an over-all collective agreement and earnestly and in all good faith bargains to that end. [Footnotes omitted.] Respondent further contends that it had been absolved of any conduct proscribed by the Act because, to quote from page 10 of Respondent's brief, "the union treated the change in job duty assignments (the curtailments in question) as a grievance, invoked and followed the grievance procedure through all steps including a stop- work meeting and a strike." This contention is without merit. The grievance procedure set up by the existing bar- gaining agreement does not constitute a waiver or bar of any sort .28 A collective-bargaining agreement grievance procedure is not a proper forum in which to determine what constitutes a waiver of rights established by the Act. Further, the processing of a grievance, after the fact, as here, is not an adequate substitute for full, and open negotiations prior to the final decision and effectuation of the charge. It is this factor of anticipatory negotiation that the Board and courts emphasized in Town & Country29 and Fibreboard 30 decisions as being necessary for meaningful collective bargaining.31 Apparently, it is Respondent's contention, as stated on page 15 of its brief, that because the Union "consistently rejected the company's offers (1) to arbitrate, (2) to sub- mit to fact finding procedure and (3) to consider if a wage rate adjustment was appropriate because of `substantial change in the job content"' it is relieved of its statutory duty to bargain. In the first place, all the arbitrator, if one was selected, was to decide, according to the record, was whether Respondent wrongfully curtailed Hill and Hat- tan; the arbitrator was not to decide whether Respondent violated the Act by unilaterally curtailing said men. Secondly, even if the arbitrator did decide in Respond- ent's favor, that would not relieve Respondent of its statutory duty to bargain. Thirdly, the Union was not complaining about the wage scale. What it was complain- ing about was Respondent's unilateral action with respect to Hill and Hattan. Again, Respondent apparently feels it has been re- lieved of all responsibility of bargaining over the curtail- ments because the Union demanded that Hill and Hattan be put back on their jobs and at the same time, Respond- ent should bargain about their curtailments. The Union in so proposing only sought the restoration of the status quo as of time of the curtailments. It goes without saying, as Respondent points out at page 14 of its brief, "the law [does not] impose upon the Respondent, and especially under the facts of this case, the obligation of first securing the consent of the union to a change in job duties or job curtailment." The controlling law in this respect is basically as the Tenth Circuit pointed out in N.L.R.B. v. Brown-Dunkin Company, Inc., 287 F.2d 17, 20: The contention is also made that the respondent did not deny the Union the right to bargain concern- ing the terms and conditions of employment in viola- tion of Section 8(a)(5). The unassailed facts are, how- ever, to the contrary. While the Union appears to have some intimation of the impending Anderson- Rooney contract, it was not until the morning of the effective date of the contract that the Union learned it had been consummated. And this information was obtained through the employees, not the employer. Under no stretch of the imagination can it be said that these circumstances gave the Union a fair op- portunity to bargain with respondent about not sub- contracting the work, or with Anderson-Rooney con- cerning the conditions of the new employment. This is not to say that the Union must first approve before an employer may contract out work, but it is to say that reasonable notice and a chance to bargain must be afforded before an employer enters into a contract affecting the hire or tenure of its Union workers' em- ployment. This is so because "Such unilateral action minimizes the influence of organized bargaining. It interferes with the right of self-organization by emphasizing to the employees that there is no neces- sity for a collective bargaining agent." May Dept. Stores v. N.L.R.B., 326 U.S. 376, 385 ... See also N.L.R.B. v. Crompton-Highland Mills, 337 U.S. 217 ... N.L.R.B. v. Burton-Dixie Corp., ... 210 F.2d 199. I have carefully considered the other contentions ad- vanced by Respondent at the hearing and in its brief and find each to be without merit or substance. Upon the entire record in the case, I conclude and find that Respondent did not bargain with the Union as the ex- clusive representative of its employees in the appropriate unit with respect to Hill and Hattan and thus it has en- 11 Hekman Furniture Company, supra 29 Town & Countiy Mfg Co, 136 NLRB 846, enfd 316 F.2d 846 (C A 5) 30 Fibreboard Paper Products Corp., 138 NLRB 550, enfd 379 U.S 203 31 See Adams Dairy, Inc, 137 NLRB 815, enfd 379 U S 644, Renton News Record, 136 NLRB 1294 , American Manufacturing Company of Texas, 139 NLRB 815, Hawaii Meat Company, Limited, 139 NLRB 966, Esti Neiderman et al. d/b/a Star Baby Co., 140 NLRB 678, Brown Transport Corp., 140 NLRB 954, National Food Stores , Inc, 142 NLRB 340, enfd as modified 332 F 2d 249 (C.A 7), Northwestern Publishing Co., 146 NLRB 457, enfd 343 F 2d 521 (C A 7) FORREST INDUSTRIES, INC. 739 gaged in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act. I further find, that by the forego- ing, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaran- teed by Section 7 of the Act, within the meaning of Sec- tion 8(a)(1) thereof. I further find that Respondent's conduct and activities, as epitomized above, caused the employees here involved to engage in a strike commencing on January 26, 1965. Accordingly, I find that the strike, since its inception, was an unfair labor practice strike. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's busi- ness operations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent failed and refused to fulfill its statutory bargaining obligations within the mean- ing of Section 8(a)(5) and (1) of the Act when, without prior bargaining negotiations with the Union, it curtailed the jobs of Hill and Hattan, I shall recommend that Respondent be ordered to bargain with the Union respecting such curtailment. Having also found that Respondent transferred the aforementioned two men to other jobs without prior notice to or consultation with their collective-bargaining representative, I shall recom- mend that Respondent be ordered and directed to take appropriate steps to reinstate Hill and Hattan and assign them to the jobs each held immediately prior to November 23, 1964, at the same wages and working con- ditions, without prejudice to their seniority or other rights and privileges, and make each whole for any loss of earnings. It is important to note in this connection that an order reinstating Hill and Hattan by Respondent making them whole for loss of earnings is warranted on the basis of the 8(a)(5) violations of the Act found above. The transfer of these two employees to other jobs flowed directly from Respondent's unilateral action. In order, therefore, to adapt the remedy to the situation which calls for redress and to give substance to the remedial order to bargain, it is necessary to restore the status quo ante without which effective bargaining in behalf of the said two employees here involved cannot be conducted. The broad remedial powers vested in the Board by the Act af- ford ample authority in the Board to order Respondent to reinstate said Hill and Hattan to the jobs they held im- mediately prior to November 23, 1964, and to give them backpay, with interest at the rate of 6 percent per annum, where deprivation of employment status is a consequence of an 8(a)(5) violation. Backpay and interest to be com- puted and paid in accordance and in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and in Isis Plumbing & Heating Co., 138 NLRB 716. Having found that the strike, commencing on January 26, 1965, was and is an unfair labor practice strike, I shall recommend that Respondent be ordered to offer to each unfair labor practice striker, who makes unconditional ap- plication for reinstatement, immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, discharging, if necessary, any replacements in order to provide work for such strikers. If, after such dismissals or other disposition of such replacements, there are insufficient positions available for the strikers, the available positions shall be distributed among them, on the basis of seniority or such other nondiscriminatory practice as may have heretofore been applied in reduction of force in Respondent's plant. Thereafter, the employees for whom no employment is immediately available shall be placed on a preferential hiring list and recalled as soon as work becomes available on the basis of seniority or other such nondiscriminatory manner as Respondent may apply. I further recommend that Respondent reimburse the strikers for any loss of pay they may have suffered by reason of Respondent's discrimination against them, by payment to each of them a sum of money equal to the amount each normally would have earned as wages for a period beginning 5 days after the date of his unconditional application for reinstatement to the date of Respondent's offer of reinstatement or of preferential hiring status, together with interest thereon at the rate of 6 percent per annum. The amount of backpay due shall be computed and paid according to the manner set forth in F. W. Wool- worth Co., 90 NLRB 289, and in Isis Plumbing & Heat- ing Co., 138 NLRB 716, less his net earnings during the aforesaid period. Payroll and other records in Respond- ent's possession are to be made available to the Board, or its agents, to assist in such computation and in deter- mining the right to reinstatement. In the light of the entire situation, caused by the Respondent's intransigent refusal to comply with the mandates of the Act and because of the lapse of time since the commencement of the strike, I recommend that Respondent be required to send to each person who was employed by Respondent at any time on and since mid- night November 22, 1964, to his last known home ad- dress, a copy of the attached "Notice to All Employees" marked, "Appendix." Copies of said "Appendix" to be supplied by the Regional Director for Region 19.32 I further recommend that Respondent be ordered to notify Hill and Hattan, as well as all of the strikers, if presently serving in the Armed Forces of the United States of their right to full reinstatement, under the condi- tions here prescribed, upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. The unfair labor practices found to have been engaged in by Respondent are of such a character and scope that in order to insure Respondent's employees of their full 32 Cf. H W Elson Bottling Company, 155 N LRB 714. 336-845 0 - 70 - 48 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights guaranteed them by the Act, it will be recom- mended that Respondent cease and desist from in any manner interfering with, restraining, and coercing its em- ployees in the exercise of their rights to self-organization. Upon the basis of the foregoing findings of fact and upon the record as a whole, I make the following: CONCLUSIONS OF LAW 1. Respondent is, and during all times material has been, an employer engaged in commerce and in a busi- ness affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is, and during all times material was, a labor organization within the meaning of Section 2(5) of the Act. 3. All employees covered by the collective-bargaining agreement between the Union and Respondent, dated September 23, 1963, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material the Union has represented a majority of Respondent's employees in the appropriate unit and, by virtue of Section 9(a) of the Act, has been and now is the exclusive representative of all employees in said unit for the purposes of collective bargaining with respect to grievances, rates of pay, wages, hours of em- ployment, and other terms and conditions of employment. 5. By unilaterally curtailing the jobs of Darrell Hill and John Hattan commencing with the November 23, 1964, graveyard shift, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 6. By refusing to negotiate with the Union since November 19, 1964, regarding its intentions to eliminate the swing and graveyard shift floorman jobs, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 7. The strike which started on January 26, 1965, was and still is an unfair labor practice strike. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of facts and conclusions of law, it is recommended that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from. (a) Refusing to bargain collectively with the Union as the exclusive bargaining representative of Respondent's employees in the appropriate unit and from unilaterally changing any terms or conditions of employment of unit employees without prior collective bargaining with the Union, (b). In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist International Woodworkers of America Local SS In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the 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 Union No. 3-436, AFL-CIO, or any other labor or- ganization, to bargain collectively through representa- tives of their own choosing and to engage in other con- certed activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from en- gaging in any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Darrell Hill and John Hattan full reinstate- ment to the floorman jobs without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by them in the manner and to the degree set forth in the section above entitled "The Remedy." (b) Upon request, bargain collectively with the Union as the exclusive bargaining representative of all the em- ployees in the appropriate unit with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of employment, including the curtailment of any unit employee job. (c) Offer to all strikers, upon their unconditional appli- cation, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any seniority, privileges, or other rights previously en- joyed, dismissing, if necessary, any individual hired on and after January 26, 1965. If, after such dismissals, suf- ficient positions are not available, place the aforemen- tioned remaining striking employees on a preferential hir- ing list and make them whole for any loss of earnings suf- fered by them by reason of any refusal or failure to rein- state them or to give them preferential hiring status. Backpay and interest are to be computed and paid in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and in Isis Plumbing & Heating Co., 138 NLRB 716, less their net earnings during the aforesaid period. (d) Notify the strikers if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. (e) Preserve and, upon request, make available to the Board or to its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to an analysis of the amount of backpay due and in determining the right to reinstate- ment. (f) Post at its Dillard, Oregon, plant, copies of the at- tached notice marked "Appendix."33 Copies of said notice, to be furnished by the Regional Director for Re- gion 19, after being duly signed by an authorized representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " FORREST INDUSTRIES, INC. 741 including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Mail or deliver to the Regional Director for Region 19 signed copies of the attached notice marked "Appen- dix" for posting at the premises of the Union, Roseburg, Oregon, the latter being willing, for 60 consecutive days, at all locations where notices to its members are customarily posted. Copies of said notice shall be furnished by the aforesaid Regional Director. (h) Mail copies of the attached notice marked "Ap- pendix" to each person employed by Respondent since midnight November 22, 1964, whether those persons are still in Respondent's payroll or not, to the last known address of the employee or former employee. (i) Notify the Regional Director for Region 19, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.34 IT IS FURTHER RECOMMENDED that, unless on or before 20 days from the date of the receipt of this Decision, Respondent notify the said Regional Director that it will comply with the foregoing recommendations, the Na- tional Labor Relations Board issue an order requiring said Respondent to take the action aforesaid. 44 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 Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT unilaterally change conditions of employment of the persons within the appropriate unit without notice to or consultation with Interna- tional Woodworkers of America Local Union No. 3-436, AFL-CIO. WE WILL NOT discourage membership or activities in behalf of the above-named Union, or in any other labor organization, by transferring any of our em- ployees to other jobs. WE WILL bargain collectively, upon request, with the above-named Union concerning the curtailment of the swing and graveyard shifts floorman's jobs. WE WILL offer immediate and full reinstatement to Darrell Hill and John Hattan to their floormen posi- tions, without prejudice to their seniority or other rights and privileges, whom we discriminatorily transferred on November 23, 1964. WE WILL make whole the aforementioned Darrell Hill and John Hattan for the discrimination practiced against them by their transfer in the manner and to the degree recommended by the Trial Examiner of the National Labor Relations Board. WE WILL offer to all strikers, upon their uncondi- tional application, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any seniority, privileges, or other rights previously enjoyed, dismissing, if neces- sary, any individuals hired on and after January 26, 1965. If, after such dismissals, sufficient positions are not available, we will place the aforementioned striking employees on a preferential hiring list and make them whole for any loss of earnings suffered by them by reason of our refusal or failure to reinstate them or to give them preferential hiring status. WE WILL NOT in any manner interfere with, restrain, or coerce our respective employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collective- ly through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activi- ties, except to the extent that such right may be af- fected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization. FORREST INDUSTRIES, INC. (Employer) Dated By (Representative) (Title) Note: We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting 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, 612 Lincoln Building, 208 SW. Fifth Avenue, Portland, Oregon 97204, Telephone 226-3361, Extension 1431.