Long Lake Lumber Co.

LONG LAKE LUMBER COMPANY 435 Long Lake Lumber Company and International Wood- workers of America, AFL-CIO, Local 3-10. Case 19-CA-3840 May 15, 1970 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING, BROWN AND JENKINS On November 29, 1968, Trial Examiner E. Don Wilson issued his Decision in the above-entitled proceeding, finding that 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, Respondent filed exceptions to the Trial Examiner's unfair labor practice findings and a supporting brief; General Counsel and the Charging Party filed exceptions to the Trial Examiner's Recom- mended Order with supporting briefs; and Respondent also filed a supplemental brief opposing the exceptions of General Counsel and the Charging Party. The National Labor Relations 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, the briefs, and the entire record in this case, and finds merit in Respondent's exceptions.' Accordingly, the Board adopts the findings of the Trial Examiner only to the extent that they are consistent with the summary and analysis of the case as set out below. The sole issue in this case is whether Respondent engaged in bad-faith bargaining in violation of Section 8(a)(5) in its negotiations with the Union looking toward the making of a collective-bargaining agreement to replace an earlier one between the parties that had expired on June 1, 1966. The negotiations cover a period of more than 2 years beginning about May 5, 1966.2 On July 18, 1966, the Union struck Respondent in support of its bargaining position. Even though the parties there- after continued to meet until June 21, 1968, no agreement resulted. The strike was still in progress as of the date of the hearing, but by that date Respondent was operating with almost a full complement of permanent replacements. ' Respondent's request for oral argument is denied as, in our opinion, the instant record adequately presents the issues and the contentions of the parties S The charge was not filed, however, until October 26, 1967, and the subsequently issued complaint dated the violation as occurring "since on or about December 15, 1967 " Notwithstanding this specific allegation of the complaint, the Trial Examiner dated his finding of a violation from May 25, 1967, a date which has significance only with respect to the limitations proviso of Sec 10(b) of the Act Respond- ent has excepted to the Trial Examiner's use of the May 25, 1967, date, but we find it unnecessary to pass on that exception because of the disposition we make of this case Earlier events dating back to the start of the negotiations are relevant here as background evidence The relevant facts bearing on the issue in this case are for the most part stipulated. Respondent is a lumber manufacturer in Spokane, Washington, engaged primari- ly in fabricating millwork out of prime lumber. It employs about 180 production and maintenance employees who form the bargaining unit in this case. The Charging Union, as the representative of that unit, and Respondent have had a history of continuous bargaining relations going back some 30 years. Since 1938, they have entered into a series of bargaining contracts, the last of which was for a 3-year term expiring June 1, 1966. That contract was still in effect when the parties opened their negotia- tions for a new contract to succeed it. According to their established bargaining practices, both parties framed their initial proposals in the form of revisions or additions they wished to make in the expiring contract, it being mutually understood that all terms of that contract which neither party expressly sought to modify or change would be carried forward as part of any new agreement. Most of the terms of the expiring contract were left unaffected. Included among the more important ones were provisions for union-shop conditions; for a Monday-to-Friday "hours of labor" for production workers; for job-posting and bidding procedures; for departmental seniority applicable to layoff and recall; for a schedule of wage-rated classi- fications; for a comprehensive listing of fringe benefits, along with qualifying standards relating to eligibility therefor; and for a grievance procedure. The contract's grievance provisions, contained in Article 2, set out a broad definition of grievable matters. The definition included "all disputes, grievances, or complaint arising out of or under the contract's terms." The grievance machinery provided for three steps, the last of which was a discussion before a member of the Federal Media- tion and Conciliation Service. Another provision stated it to be the intent of the _parties not to engage in work stoppages or strikes, but to attempt to settle their grievance disputes peaceably, and not to strike or lock out without first using the grievance machinery. Other than as noted, there was no restriction on the right to strike. Throughout the negotiations the aforesaid pro- visions remained on the table as part of Respondent's basic contract offer.' Some 20 official negotiation sessions were held in the 2-year period involved, and, in addition, there were a number of unofficial meetings and an extensive exchange of correspondence. The principal issues divid- ing the parties related to the anniversary date of the contract, wages, contract duration, and the inclusion in the contract of a management prerogative clause. 9 The last is subject to qualification Late in 1967, Respondent proposed that the Union waive application of the union-shop provisions to replace- ments and others who, as Respondent put it, "had braved the picket line to come to work " When the proposal was made, the Union was seeking to explore with Respondent the latter's willingness to return striking employees desiring reinstatement to their former jobs, and had indicated that in the event a contract was concluded, the Union would want "immediate" reinstatement of all striker-applicants Respondent, in turn, expressed its willingness to place strikers "Immedi- ately" in any vacant jobs and to place those for whom it had no immediate openings on a preferential hiring list 182 NLRB No. 65 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to, the contract anniversary date, Respondent suggested that an October I date be substi- tuted for the June I date which had been operative before and which also was the anniversary date of the Union's contracts with other employers in the lumber industry in•that area.; Respondent asserted that because of the then depressed state of the fabricated lumber products industry it could not afford to meet the demands which the Union had framed with an eye towards concur- rent negotiations with larger and more diversified mem- bers of the lumber industry, and -it therefore wanted to dissociate its future negotiations from those the Union had with the others. At various times during the negotia- tions Respondent indicated that it was not inflexible as to the October 1 date and expressed a willingness to consider any-other contract anniversary date so long as the date was one falling either somewhat earlier or somewhat later than June 1. The Union, however, flatly rejected Respondent's proposals in this regard and indicated no disposition to yield on this issue until long after the strike,began, and then only on, condition that Respondent accept its bargaining position on all other matters in issue. With respect to contract duration and wages, the Union initially proposed a wage and fringe-benefit increase amounting as a package to about 55-cent-per- hour to be spread over a 3-year term.4 In response, Respondent offered the Union a 16-cent-per-hour wage- benefit package on the basis of a 1-year contract term. At- a meeting held July 16, 1966, Respondent, under union threat of strike, raised its offer to 21 cents, 'still on a 1-year contract basis, but the Union rejected this offer, declared that an impasse had been reached on this and other issues, and 2 days later it struck. In late January 1967, at meetings held with the aid of Federal mediators, Respondent alternatively offered either a 21-cent wage-benefit package on the basis of a 1-year contract, or; on the basis 'of a contract term longer than 1 year but less than 2 years, a 20-cent package for the • first year plus a 12th-cent package for the remaining period, and suggested a terminal date of November 1, 1968.' The Union countered with two alternatives, both conditioned on Respondent's dropping its demand for a management rights clause, either: (1) a contract for a 2-year term ending June 1, 1968, with a 22-cent package for the 'first year and a, 12th-cent package for the second; or (2) less than a 2-year contract ending April 1,_ 1968, with a 34-cent package spread throughout its term. This was' unacceptable to Respond- ent. No final meeting of the minds was ever reached between the parties on the issue of wages and contract duration, although it appears that, at least after December, 15, 1967, this issue, would have presented no obstacle to full contract settlement but for the differences which then existed between the parties on the management rights clause and on the return to work of strikers.5 " The Union's prenegotiation letter specified a package in excess of 70 cents per hour, but this demand was modified soon after negotiations opened ' With respect to striker reinstatement, Respondent's position on December 15, 1967, as before, was that it would immediately return With respect to "management rights," Respondent in its initial proposal requested, and throughout the negotiations insisted upon, the inclusion in the contract of a provision which would insure to it the right to take unilateral action-without first reaching an agree- ment or an impasse with the Union-as to matters not specifically controlled by- the collective- bargaining contract. Towards that end, Respondent proposed at the beginning of negotiations, the "management rights" clause which is set out at length in the Trial Examiner's Decision, and at various times in the negotiations certain variants of that clause, the last of which is set forth in the margin.5 None of the earlier contracts between Respondent and the Union had contained a "management rights clause." Respondent told the Union that certain events occurring during operative terms of their past contracts had impelled it to decide that the inclusion of such a clause was desirable. Among the reasons Respondent gave were:,(I) in 1962 the Union had served strikers to jobs where it had vacancies, place the rest on a preferential list, and have a "dialogue" with the Union about the application of the union-shop provisions to striker replacements The Union at this time, however, insisted as a condition to settlement that all strikers who wanted to come back be reinstated to their jobs, and stated that if jobs then remained for any of the replacements, the Union "would consider" giving the replacements 90 or 120 days to meet the union-shop requirements, but would not guarantee giving any of them membership At the formal meeting on June 20, 1968, the Union stated it would then be willing to require displacement only of replace- ments hired after December 15, 1967, and that it would not require remaining replacements hired after December 15 to comply with the union-shop provisions of the contract But Respondent was unwilling at this time to accept the December 15 cutoff date For example MANAGEMENT RIGHTS A The Union has the rights which are specifically spelled out in this Agreement as well as such rights as are given it by statute unless these rights are limited by any provisionof this Agreement B All rights customarily and traditionally exercised by the Com- pany to operate -its business and direct its employees are hereby expressly reserved by and to the' Company unless the terms of this Agreement specifically limit said rights, in which event the terms of this Agreement shall control Except to the extent specifical- ly limited by some other term of this Agreement, these rights include, but are not limited to, the right to determine prices of products,, volume of production and methods of financing, to drop or add a product line, to sell, merge, consolidate or lease the business, or any part thereof, free of the liabilities of this Agreement, to establish, revise or continue policies, practices and procedures for the conduct of the' business, and, from time to time, to change or abolish such policies, practices, or procedures, the right to determine and from time to time redetermine, the number, location, relocation and types of its operations, and the methods, processes and materials to be employed, to discontinue processes or operations or to discontinue their performance by employees of the Company and/or to subcontract same, to determine the number of hours per day and per week operations shall be carried on, to select and assign work to such employees in accordance with the require- ments determined-by management , to determine the existence or the lack of work, to make and enforce reasonable rules for the maintenance of discipline or efficiency; to suspend, discharge or otherwise discipline employees, and to take such measures as man- agement may determine to be necessary for the orderly, efficient and profitable operation of its business-all to the best regard of its employees and the welfare of the operation C ' It is also understood and agreed that the foregoing provisions shall in no manner prevent the utilization of the grievance procedure as provided in Article 2 of this Agreement LONG LAKE LUMBER COMPANY it with a membership resolution that Respondent fire its production manager ; (2) in 1965 , the Union initiated a Section 8(a)(5) unfair labor practice proceeding before the Board after Respondent-acting under the belief that where the contract was silent it had a right to change work schedules unilaterally-had rescheduled the Monday-to-Friday workweek of a unit maintenance employee to a Tuesday -to-Saturday workweek ;' and (3) more recently , the Board and the courts had issued certain decisions which had placed in question Respond- ent's former belief that rights not specifically abridged by contract were reserved to management . Because of these considerations , Respondent stated in effect that it now considered it important to add a management rights clause which would insure it the freedom it had theretofore understood it had without such a clause to take unilateral action in cases when the contract remained silent. Respondent make it clear during the negotiations that in presenting its management rights proposals it was not seeking to override thereby any specific provision in the contract which might , in one way or another, nullify the management right involved . It also made it clear that the reserved management rights it wanted were meant to apply only to initial decisions and actions under that clause , and that following such initial actions or decisions it was willing to have them subjected to review and reconsideration under the contract ' s griev- ance procedures . These procedures , as noted above, would have left the Union free to take economic action if it wished , after processing its grievances . Additionally, Respondent advised the Union that it was not "wedded': to the specific language of any of its proposals, and that it was willing to accept any language the Union wished , provided only that under the definition of man- agement 's reserved rights and the enumerated examples, Respondent would be free initially to act unilaterally where the contract was silent . Respondent also expressed its willingness to bargain with the Union about the elimination of any of the specific rights enumerated in its proposals. At all meetings held for many months after the negotia- tions began , the Union ' s position was, in brief, that it did not want any management rights clause in the contract . However , at a meeting held on April 14, 1967, the Union offered to accept a management rights clause similar to the one included in the Union ' s contracts ' The Union filed the 8(a)(5) charge after its grievance that Respondent had violated its contract had been rejected The Board 's Decision, reported at 160 NLRB 1479, issued on September 29, 1966, a few months after these negotiations were opened The Board found that while the "right" of rescheduling was neither granted nor restricted by the parties ' contract , Respondent was nonetheless legally obligated to bargain about the change in the absence of the Union's clear and unmistakable grant to management of authority to make this change in employment conditions unilaterally It held , however, that Respondent had in effect fulfilled the obligations which a bargaining order would compel by discussing the matter with the Union at subsequent grievance meetings ( 160 NLRB at 1480) Upon review , the D C Court of Appeals reinstated the complaint and remanded the case to the Board with directions to frame a remedy for the violation found See 380 F 2d 628 On remand , the Board ordered Respondent to reinstate the grievant's original workweek 169 NLRB 148 437 with lumber and other manufacturers in the area. That clause , referred to by the parties as the "bob-tailed" form , simply recited that "except as specifically limited by express provisions of this agreement, all rights, power and authority customarily exercised by mangement in the direction of the work force and the operation of the business are retained by the Company ." The Union's proffer of this clause was tied , however , to Respondent's acceptance of the Union 's simultaneous demands: (1) that a package of about 55 cents-the approximate amount demanded in 1966 for a 3-year contract-now be compressed into a 2-year contract with a May 31 terminal date ; (2) that Respondent immediately reinstate all strikers displacing , if necessary , any post-strike hires; and (3) that Respondent pay to each striking employee who returned to work under the proposed settlement, a one-time stipend of $20 . Respondent rejected these conditions . Then , as well as later , it also stated with specific reference to the proffered "bob-tailed" clause, that it found it unacceptable , in part because it did not want to be bound by any established pattern of interpretation that might have been developed under other conditions, and also because it did not consider the clause to be the kind of clear and unmistakable waiver required under Board standards to meet the purposes Respondent had in mind . At a meeting held on July 21 , 1967, a new union spokesman appeared and after Respondent explained its position on the anni- versary date and management rights issue at length, the Union made a new counterproposal . At that time, as well as at a later meeting held August 31, 1967, the Union offered , in addition to the previously rejected "bob-tailed " management rights clause , a provision explicitly excluding maintenance employees from the normal work , or "hours of labor " schedule of other employees . But the Union also tied this proposal to its simultaneous demands for a wage -benefit package only slightly less than that above -described , but now compressed into a 20-month contract ending February 1, 1968, and for the "immediate " reinstatement of all striker-applicants . Respondent indicated its willingness to accept the offered provision with respect to the mainte- nance employees, but reiterated that it preferred a man- agement clause "somewhat on the order" of those it had theretofore presented , rather than one "taken from another's contract." Respondent also made a new wage offer slightly above its previous ones, but on the basis of a contract ending October 1, 1968. The Union then asserted that every concession and offer it had thereto- fore made was "off the table ." Meetings were not resumed again until December 5, 1967. Thereafter, the parties continued to meet until June 21 , 1968. When they broke off negotiations on the latter date, they seemed near agreement on a number of disputed matters, but remained deadlocked on the management rights issue. CONCLUDING FINDINGS The complaint alleges generally that Respondent vio- lated Section 8(a)(5) by negotiating with the Union "in bad faith and with no intent of entering a binding collec- 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive-bargaining agreement ." The Trial Examiner, in upholding this allegation , relied entirely upon Respond- ent's insistent demand for the inclusion in the contract of management rights provisions , such as are described above. In his , view , these provisions , if accepted by the Union , would have had the effect of divesting the Union "of the right to represent the employees in new and old matters which might or would arise during the contract term ." On that premise , and relying also on the Board ' s decision in Stuart Radiator Core Mfg. Co., 173 NLRB 125, the Trial Examiner concluded that "by adamantly insisting upon these [management rights] clauses , Respondent demonstrated a predetermi- nation not to achieve agreement with the Union." We do not agree with the Trial Examiner ' s analysis of Respondent ' s proposals , or with the conclusion he reached. We are guided in our view of the case by the Supreme Court' s holding in American National Insurance Co., 343 U.S. 395. That case holds that management function clauses like those here involved , are mandatory subjects of collective bargaining ; that it is not, per se, an unfair labor practice for an employer to insist upon such claus- es; and that in evaluating an employer ' s bargaining con- duct in a proceeding where such clauses are involved, the Board , just as in any other 8(a)(5) case, is required to apply the usual good -faith bargaining standards to the facts of the particular case. On the facts of the instant case , we perceive no sufficient basis for inferring bad faith . Respondent was willing to agree , as it had in the past , to have embodied in a written contract a comprehensive code governing the employees ' wages, hours, and conditions of employ- ment , and at no time sought to foreclose or impede the Union from bargaining about any specific provision the Union might wish to have added thereto . The "man- agement" authority which Respondent sought to reserve unto itself related only to matters on which the contract was left silent . But even as to such matters , Respondent's management rights proposals would not have precluded future bargaining . The management authority Respond- ent demanded was only to take initial action without consulting the Union in advance . Once such action was taken , the Union would have the right, and Respond- ent the correlative obligation , to subject the action taken to post hoc review under the grievance procedures where the Union would be afforded the opportunity through give and take discussion to obtain a change in manage- ment 's action . Nor can it be said on the facts of this case that the opportunity for post hoc discussion could be no more than a ' preordained exercise in futility. For, under the contract , the Union would be left free to strike once the grievance procedures were exhausted, and thus would be in a position to press its grievances with Respondent under conditions in which , as Respond- ent would be aware , the Union held in reserve a possible use of economic power . Viewed in this light , the Trial Examiner ' s premise that the Union could not have accepted Respondent ' s management rights proposals without relinquishing its representative capacity for the contract term is revealed as an overstatement. The considerations discussed above plainly distinguish this case from the Stuart Radiator case relied on by the Trial Examiner. The contractual provision upon which the employer in that case insisted, not only con- tained "reserved rights" clauses much broader then those in the instant case, but also embodied a waiver by the union of any employer obligation to bargain with it at any time about management decisions as there defined, while at the same time shackling the union with a tight no-strike clause. Moreover, as the Board-adopted Trial Examiner's findings in that case disclose, there was also independent evidence pointing to the employer's bad faith approach to its statutory duty to bargain with the employees' representative. In this case, we find no independent evidence from which an inference of bad faith may be drawn. General Counsel conceded at the hearing that, except as linked to Respondent's insistence on its management rights proposals, he was making no contention that any particu- lar position or act of Respondent was in derogation of its good-faith bargaining obligations. From our own review of Respondent's bargaining conduct, particularly when considered in the light of its 30-year history of contractual relations with the Union, we find no adequate basis for concluding that because Respondent pressed hard for its management rights clauses its aim must have been to avoid reaching agreement with the Union. We therefore conclude, contrary to the Trial Examin- er, that the record does not justify a finding that Respond- ent violated Section 8(a)(5) and (1) of the Act as alleged. We shall, accordingly, dismiss the complaint. ORDER Pursuant to the provisions of 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. MEMBER BROWN, dissenting: For the reasons stated by the Trial Examiner, I would sustain his findings and Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE E. DON WILSON, Trial Examiner: Upon a charge filed October 26, 1967, and amended on March 22, 1968, by International Woodworkers of America, AFL-CIO, Local 3-10, herein the,Union, the General Counsel of the National Labor Relations Board, herein the Board, issued a complaint dated March 25, 1968, alleging that Long Lake Lumber Company, herein Respondent, violated Section 8(a)(5) and (1) of the National Labor Relations Act, herein the Act. Pursuant to due notice a hearing in this matter was held before me at Spokane, Washington, on June 25-27, 1968. The parties fully participated and entered into lengthy stipulations with many exhibits. The parties' briefs have been received and considered. LONG LAKE LUMBER COMPANY Upon the entire record in the, case and from my observation of the witnesses , I make the following: FINDINGS OF FACT I. RESPONDENT 'S BUSINESS At all times material , Respondent has been a Washing- ton corporation , with its principal place of business located in Spokane , Washington , where it is engaged in the business of processing lumber products , including timber laminated beams. During the past 12 months, Respondent purchased from points outside the State of Washington for use at its Spokane plant goods valued in excess of $75,000 and sold and shipped lumber prod- ucts valued in excess of $75,000 from its Spokane plant to customers located outside the State of Washington. At all times material , Respondent has been an employ- er engaged in commerce within- the meaning of the Act. II. THE LABOR ORGANIZATION At all times material , the Union has been a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issue At issue is whether Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith with the Union. B. The Facts Respondent and the Union have had a bargaining relationship for many years. Their last contract expired in early 1966 , and between May 5 , 1966, and June 21, 1968 , they had 21 bargaining meetings . At each of these meetings , Respondent insisted upon and the Union resisted various substantially similar versions of a stringent and generally extremely detailed management rights clause. Its first management functions clause was proposed on May 5 , 1966, and reads: Except to the extent expressly abridged by a specific provision of this Agreement , the Company reserves and retains , solely and exclusively , all of its Com- mon Law rights to manage the business , as such rights existed prior to the execution of this or any other previous agreement with the Union or any other union . The sole and exclusive rights of management which are not abridged by this Agreement , shall include but ^ are not limited to its right to determine the existence or non-existence of facts which are the basis of a management decision to determine prices of products , volume of production and methods of financing, to drop a product line, to sell or lease the business, or any part thereof , free of the liabilities of this Agree- 439 ment , to establish or continue 'policies, practices and procedures for the conduct of the business and, from time to time , to change or abolish such policies, practices , or procedures ; the right to deter- mine and from time to time redetermine , the num- ber, location , and relocation and types of its opera- tions, and the methods , processes , and materials to be employed ; to discontinue processes or opera- tions or to discontinue their performance by employ- ees of the Company; to determine the number of hours per day or per week operations shall be carried on; to select and to determine the number and types of employees required ; to assign work to such employees in accordance with the require- ments determined by management ; to establish and change work schedules and assignments ; to transfer, promote , or demote employees , or to lay off , termi- nate , or otherwise relieve employees from duty for lack of work or other legitimate reasons, to determine the fact of lack of work , to make and enforce reasonable rules for the maintenance of discipline ; to suspend , discharge , or otherwise disci- pline employees for cause and otherwise to take such measures as management may determine to be necessary for the orderly , efficient and profitable operations of its business-all to the best regard of its employees and the welfare of the operation. In its brief , Respondent claims that one of the reasons for this demand and its substantial repetition for over 2 years, was that some years ago the Union 's local passed a resolution that Respondent should discharge its production manager . Another reason was that in a prior Board case the Board and court of appeals. had found Respondent had violated Section 8 (a)(5) of the Act by unilaterally rescheduling the workweek of maintenance employees . Respondent felt "that the por- tion of the contract involved had been intentionally negotiated so that the [Respondent] was free to resche- dule maintenance employees as it saw fit ."' A third reason was that because of alleged changes in the atti- tudes of the Board and the courts , Respondent's counsel believed "a management rights clause of some type permitting the [Respondent] to `fill in the gaps' where a labor contract was silent might be desirable ." Another reason for insisting on a stringent and detailed manage- ment rights clause was that Respondent obtained and presumably read "Protecting Management ' s Rights Under a Union Contract", published by the Research Institute of America. Respondent relied upon clauses recommended in this book in formulating its own clauses. These reasons have been advanced by Respondent in its brief. Before and after the issue of a scheduled workweek for maintenance employees had been settled by the Union's acquiescence , Respondent insisted on the sub- stance of its management prerogatives clause. Respond- ent did not ask the Union for agreement concerning ' During the long negotiations herein the Union acceded to Respond- ent's contention that it should be allowed to reschedule the workweek 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the workweek ; hours, or terms of employment of any other classification of employee. Respondent , not long after its original proposal, did put forward a much shorter clause for consideration by the Union . It reads: Except to the extent expressly abridged by a specific provision of, this Agreement , the company reserves and retains , solely and exclusively , all of its Com- mon Law or any other rights to manage business, as such rights existed prior to the execution of this or any other previous agreement with' this Union or any other union. It is plain that Respondent was demanding that the Union , excepting as the contract spelled out to the contrary , was to have no more than pre-Wagner Act rights with no right to represent the employees as day to day problems arose. As these management rights' proposals were being advanced , it is clear that the Union was not adamantly opposed to all management rights clauses. It had con- tracts containing such clauses , but not as restrictive as Respondent's, with other employers. By August 24, 1966 , Respondent proposed a more restrictive clause . In this clause , Respondent reserved to itself all "other rights " as well as its common law rights and the new proposal eliminated "cause" as a reason for suspension , discharge or discipline . In this demand Respondent eliminated any' provision about "the best regard of its employees." While the record herein was almost completely stipu- lated , the stipulations and exhibits are voluminous and it is not practical to set forth herein anything approximat - ing all the discussions or all the proposals and counterpro- posals. In any event ,, at the ninth negotiation session on January 16, 1967 , Respondent made two so-called new management rights proposals which made clear that past practice was to be ignored and the Union's participation as the employees ' representative was to be restricted . At the end of this meeting , these proposals were withdrawn. On April 14 , 1967, the Union2 counterproposed as a management rights clause , the following: Except as specifically limited by express provision of-this agreement ,' all rights, power , and authority customarily excerised by management in the direction of the work force and the operation of the business are retained - by the Company. This was a so-called area bobtailed clause which Respondent had previously rejected . The Union was seeking recognition of past practices and the common law of the shop , while conceding management rights. With the union proposal it would not be necessary to -write into the contract every past practice and every nuance which had made a shop common law . Respondent rejected the Union 's proposal and repeated its manage- ment 'rights demands. 2 Employees had been on strike since July 18, 1966, and the strike was still in progress at the time of the hearing The' 10(b) date was April 26 , 1967. On May 25, 1967, the Union , stating it wished to settle the strike , nonethe- less stated it could not accept Respondent 's management rights proposals . Respondent renewed its demands for detailed and very stringent management rights clauses. Between January 26, 1967 , and December 15, 1967, the parties held eight bargaining meetings, during the course of which the Union varied its management rights proposal in an effort to meet Respondent 's demands and still continue as' bargaining representative. The Union 's proposals were reje cted by Respondent which continued to insist on its detailed demands. Respondent was willing that the Union come up with language of its own, if it "contained the substance - or sense of [Respondent's] proposal on Management Rights." On December 5, 1967, the Union proposed another version of the management rights clause acceptable to it but Respondent rejected it , insisting , "the Management Rights clause agreed tupon should essentially be the sense of the [Respondent 's] proposal." On I December 15, 1967 ,' at their 18th session, when agreement was near on all issues except ' management rights, the Union renewed its December 5 proposal and Respondent rejected it . Respondent insisted that the substance of its management rights proposal was essential (non bargainable) to any agreement . Respondent insisted it wanted the Union to'spell out in any contract "all of the rights it wanted to protect or, in which it had an interest and anything else to be left to the [Respondent] to be able to proceed without fear of an unfair labor practice or a lawsuit." Respondent took the position "( 1) where the contract was silent manage- ment should be free to proceed to a decision without being put in peril thereby ; (2) and to illustrate , specific examples of the management rights should be set forth." Respondent then reproposed that "the ultimate language of the management rights should state that if contract is silent management may proceed and then set out some examples by way of illustration ." The Union declined this reprosposal. Respondent then insisted that any management rights clause should "say (1) where the contract is silent [Respondent ] is free to proceed unilaterally without peril and (2) to clarify that by specific examples which should be set forth." The Union rejected this. But for management rights and return of strikers to work the parties were near agreement. On March 18, 1968, Respondent , by letter, made another detailed and stringent management rights propos- al. In this proposal, Respondent sought the right to make changes in employment conditions unless speci- fically taken care of by the contract and without regard to many years of past practice. After almost two years of bargaining , Respondent sought a 7-month contract. On June 20 , 1968, the parties exchanged proposals on management rights and the union representative indi- cated that 'on the basis of the proposals , agreement ' seemed near and he was prepared to recommend settle- ment . The parties agreed to meet June 21 , 1968, to discuss their proposals. On June 21 , 1968, the parties ' again met and far from Respondent's proposal of the day before , Respond- LONG LAKE LUMBER COMPANY ent offered a 3' month contract providing the following management rights clause: A. The Union has the rights which are specifically spelled out in this Agreement as well as such rights as are given it by statute unless these rights are limited by any provision of this Agreement. B. All rights customarily and traditionally exercised by the Company to operate its business and direct its employees are hereby expressly reserved by and to the Company unless the terms of this Agree- ment specifically limit said rights, in which event the terms of this Agreement shall control. Except to the extent specifically limited by some other term of this Agreement, these rights include, but are not limited to, the right to determine pricesi of products, volume of production and methods of financing, to drop or add a ' product line, to sell, merge, consolidate or lease the business, or any part thereof, free of the liabilities of this Agree- ment, to establish, revise or continue policies, prac- tices and procedures for the conduct of the business, and, from time to time, to change or abolish such policies, practices or procedures; the right to'deter- mine and from time to time redetermine, the num- ber, location, relocation and types of operations, and the methods, processes and materials to be employed; to discontinue processes or operations or to discontinue their performance by employees of the Company and/or to subcontract same; to determine the number of hours per day or per week operations shall be carried on; to select and to determine the number, types and' competence of employees required; to assign work to such employees in accordance with the requirements determined by management; to determine the exist- ence of the lack of work; to make and enforce reasonable rules for the maintenance of discipline or efficiency;' to suspend, discharge or otherwise discipline employees; and, to take such measures as management may determine to be necessary for the orderly, efficient and profitable operation of its business-all to the best regard of its employ- ees and the welfare of the operation. Obviously, Respondent was again insisting on agree- ment by the Union with Respondent's demands for merely permissive bargaining matters and nonbargainable matters along with legitimate subjects of collective bar- gaining . The Union rejected Respondent's June 21, 1968, proposal. In its brief, Respondent states, `In one sense, the original proposal of [Respondent] remained the [Respondent's] `formal' or 'on the table' position at the bargaining table throughout." It further states, in its brief, that, "It believed that with respect to any matter which was not specifically, controlled by the labor contract, it would be free to act with respect to wages, hours and working conditions without first reaching an agreement or impasse with. the labor union. To insure that this right was not destroyed by judicial interpretation and that the terms of the Union's waiver of its right to bargain was sufficiently clear and unmistak- 441 able [Respondent] sought an itemization by specific examples of this reserved right." Further in its brief Respondent makes clear that at the December 15, 1967, meeting Respondent required, "where the labor contract is silent [Respondent] is free to proceed unilaterally without peril." C. Concluding Findings as to Bad-Faith Bargaining As stated by the Union in its brief, Respondent, "demanded as a condition precedent to negotiating a contract to finality that, the Union agree to language that would waive past, present, and future Act violations involving unilateral action respecting terms and condi- tions of employment after its contract was concluded." It is plain that by its insistent and adamant demands, Respondent sought to abrogate the common law of the shop. It is noted that while later management rights proposals contemplated resort to the grievance procedure, arbitra- tion was not considered by either, Respondent or the Union. I find it would be virtually impossible to write a contract which would cover every contingency which might arise during a contract term covering wages, hours, and conditions of employment. This is what Respondent was demanding of the Union or else the Respondent was free to act unilaterally without peril so far as the Board and the courts were concerned. ' It is noted that after many years of contractual (rela- tions, this was the first time Respondent had demanded any management rights clause, let alone one as stringent as those proposed by Respondent. That some years ago the Union passed a resolution seeking the discharge of a production manager , which never became a subject of bargaining, seems poor occasion for Respondent's demands. The same way he said of the fact that the Board and the court of appeals had found that Respond- ent had violated Section 8(a)(5) of the Act by unilateral action in one instance, especially when in the course of bargaining herein, the Union agreed with Respondent's position. Respondent's belief that a management rights clause was necessary to "fill in the gaps" was poor reason, indeed, for insisting on a clause that foreclosed bargaining during the contract term . It is impossible to write a labor contract which eliminates all gaps except- ing upon Respondent's basis which is that the contract, here and now, covers everything, even the unforeseea- ble. That Respondent read a book on management rights and relied on it does not relieve it of its obligation to approach the Union at the bargaining table in good faith with a desire 'to reach a mutually satisfactory agreement. Respondent sought to have every past practice and all the common law of the shop written into a contract. As previously noted, this is substantially impossible. Respondent did not approach the bargaining table "with an open mind and purpose to reach an agreement consistent with the respective rights of the parties. "3 9 Mature v NLRB , 198 F 2d 735, 739 (C A 5, 1952) 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Good faith has meaning only in its application to the particular facts of a particular case. N.L.R.B. v. American National Insurance Company, 343 U.S. 395. The particular facts of this case negate any claim of good faith by Respondent. I find Respondent at all times was determined not to reach an agreement with the Union. After many years of bargaining, Respondent injected proposals in such fashion that they were predict- ably unacceptable to the Union. By adamantly insisting upon these clauses Respondent demonstrated a predeter- mination not to achieve an agreement with the Union. "While it is well established that an employer' s insist- ence upon a management rights clause does not itself violate Section 8(a)(5), the nature of an employer's proposals on management rights and other subjects are material factors in assessing its motivation in approaching negotiations. Thus, rigid adherence to proposals which are predictably unacceptable to the Union, may indicate a predetermination not to reach agreement, or a desire to produce a stalemate, in order to frustrate bargaining and undermine the statutory representative. "4 Had the Union accepted Respondent's proposals it would have waived most of its • rights under the Act. Had the Union accepted Respondent's management rights proposals, it would have divested itself of the right to represent the employees in new and old matters which might and would arise during the term of the contract. Respondent's positions have not been reasonable and its proffered advanced reasons for adamant insistence on most stringent and detailed management rights clauses are nothing more than "excuses." The management rights proposals, it knew, would remove the Union from its statutory part as bargaining representative during the contract term. Respondent professedly had nothing specific in mind which it sought to accomplish by its detailed management rights clauses. It is obvious it sought particularly to rid itself of the obligation to bargain with the Union during the term of the contract. It is, "difficult to believe that the company with a straight face and in good faith could have supposed that this proposal had the slightest chance of acceptance by a self-respecting union, or that it might advance the negotiations by affording a basis of discussion; rather it looks more like a stalling tactic by a party bent upon maintaining the pretense of bargaining."5 Respondent knew what Justice Douglas knew in Steel- workers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960), "One cannot reduce the rules governing a community like an industrial plant to fifteen or even fifty pages." He continued, "Within the sphere of collec- tive bargaining, the institutional characteristics and the governmental nature of the collective-bargaining process demand a common law of the shop which implements and furnishes the context of the agreement." Respondent was not in good faith in adamantly insisting upon what it knew the Union could not accept, that it divest itself Stuart Radiator Core Manufacturing Co , Inc , supra NLRB v Reed & Prince Mfg Co , 205 F 2d 131 of the right to bargain as to future matters which "may be unknown, except in hazy form," to the parties. The words of the Board in Stuart Radiator Core Manufacturing Co. Inc., supra, make evident that since May 25, 1967, Respondent has violated Section 8(a)(5) and (1) of the Act: An evaluation of all Respondent's proposals here- in indicate that Respondent was determined to force the Union to abandon its right to be consulted regarding, practically all disputes that might arise during the term of the contract relating to terms and conditions of employment; i.e., to waive its statutory right to bargain collectively. Such propos- als indicate more than hard bargaining. Since the Respondent could not have offered them with any reasonable expectation that they would be accepta- ble to the Union, we can only conclude that Respondent did not approach the negotiations in good faith and with the intent of reaching an agree- ment. We thus find that Respondent's approach to negotiations was superficial, and completely inconsistent with the principle of good-faith bargain- ing. " D. The Appropriate Unit The appropriate unit includes all production and main- tenance employees of Respondent working in its lumber manufacturing plant, and the Spokane Pine Products Company, located at Spokane, Washington, excluding all office and clerical employees and plant guards, and professional and supervisory employees as defined in the Labor Management Relations Act of 1947. E. The Union's Majority Status For many years, the Union has been the collective- bargaining representative of Respondent's employees in the above unit. There is a presumption that its majority status continues and although some (how many?) strikers have crossed the picket line, there is insufficient proba- tive evidence to rebut the presumption. F. The Strikers The Union seeks a finding that the strike was and is an unfair labor practice strike and a remedy that Respondent be ordered to reinstate all strikers upon their unconditional application and make them whole upon Respondent's failure so to do. On the other hand, General Counsel, while alleging that a strike is still in progress and has been since July 18, 1966, does not allege it is or was an unfair labor practice strike or that the strikers are eligible for reinstatement upon request. I find this matter was not placed in issue by the pleadings and has not been litigated and the Union's requests are denied. It is noted that General Counsel makes no reference to unfair labor practice strikers in his brief and particularly does not seek an order of reinstatement or backpay. I am unable to make a finding that the strike was in fact caused or prolonged LONG LAKE LUMBER COMPANY by Respondent's unfair labor practices at the bargaining table. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the mean- ing of the Act. 3. All production and maintenance employees of Respondent working in its lumber manufacturing plant, and the Spokane Pine Products 'Company, located at Spokane, Washington, excluding all office and clerical employees and plant guards, and professional and super- visory employees as defined in the Labor Management Relations Act of 1947, have at all material times constitut- ed a unit appropriate for the purposes of collective bargaining within the meaning of the Act. 4. The Union was on May 25, 1967, and has been at all times material, the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining. 5. By refusing on and after May 25, 1967, to bargain collectively with the Union as the exclusive representa- tive of the employees in the appropriate unit, 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 commerce within the meaning of the Act. RECOMMENDED ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the Act, it is hereby 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 representative of all its employees in the above described appropriate unit. (b) In any like or related manner, interfering with, restraining, or coercing its employees in the right to self-organization, to form labor organizations, to join or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in protected activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from 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 authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: 443 (a) Upon request bargain collectively with the Union as the exclusive representative of its employees in the above-described appropriate unit, with respect to wages, hours of work, and other conditions of employment and, if an understanding is reached, embody same in a signed agreement. (b) Post at its plants in Spokane, Washington, copies of the notice attached marked "Appendix."" Copies of said notice on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 days, thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply herewith.' 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 Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" 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 the Regional Director for Region 19, in writing, within 10 days from the date of this Order, what steps it 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 employ- ees that: WE WILL NOT refuse, upon request, to bargain collectively with International Woodworkers of America, AFL-CIO, Local 3-10, as the exclusive representative of all our employees in the unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to bargain collectively through representation of their own choosing , to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condi- tion of employment as authorized in Section 8(a)(3) of the Act. WE WILL, upon request, bargain collectively with the above-named labor organization as the exclusive 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining reflresentative of all employees in the following unit with respect to wages, union security, hours of work , and other conditions of employment and if an understanding is reached embody such understanding in a signed agreement The bargaining unit is All production and maintenance employees of ours working in our lumber manufacturing plant , and the Spokane Pine Products Compa ny, located at Spokane , Washington , excluding all office and clerical employees and plant guards, and professional and supervisory employees as defined in the Labor Management Relations Act of 1947 LONG LAKE LUMBER COMPANY (Employer) Dated By (Representative) (Title) 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, Republic Build- ing, 10th Floor , 1511 Third Avenue , Seattle, Washington 98101 Telephone 206-585-7473