Forest Grove Lumber Co.

FOREST GROVE LUMBER CO. 1007 Forest Grove Lumber Company and Local 2845, Lumber, Production and, Industrial Workers. Cases 36-CA-4559 and 36-CA-4594 8 July 1985 - DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 9 January 1985 Administrative Law Judge Russell L. Stevens issued the attached decision. The Charging Party and the General Counsel each filed exceptions and a supporting brief, and the Re- spondent filed an answering brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recommended Order. I ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Forest Grove Lumber Company, Forest Grove, Oregon, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' The judge concluded, and we agree, that no causal connection has been established between the Respondent's unlawful conduct and the pro- longation of the strike We reject the argument in the exceptions that the -Respondent's direct dealing with its employees necessarily prolonged the Charging Party's economic strike and converted it to an unfair labor practice strike Contrary to the Charging Party and the General Counsel, we find Safeway Trails, Inc, 233 NLRB 1078 (1977), enfd 641 F 2d 930 (D C Cir 1979), cert denied 444 U S 1072 ( 1980), distinguishable from the present case Thus, Safeway Trails involved the factual context of an egregious effort by the employer to obtain the employees' repudiation of their union representative as a precondition to revoking a collective-bar- gaining agreement Consequently, the unlawful conduct in Safeway Trails clearly intruded on the bargaining process and "could not help but" pro- long the strike In contrast, the Respondent's unlawful conduct here in- volved solicitation of employees to urge their representatives to soften the Union's bargaining demands, and there was no effort to repudiate those bargaining representatives The unfair labor practices here did not have any inevitable impact on bargaining that would necessarily cause prolongation of the strike Additionally, in adopting the judge's conclusion, we find it unnecessary to pass on his reliance on Soule Glass & Glazing Co Y NLRB, 652 F 2d 1055 (1st Cir 1981), denying enf in pertinent part to 246 NLRB 792 (1979) DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge. This case was tried in Portland, Oregon,. on October 16, 1984.' The charge in Case 36-CA-4559 was filed on September 23 by Local 2845, Lumber, Production and ' All dates hereinafter are within 1983, unless otherwise stated Industrial Workers (Union).2 The charge in Case 36- CA-4594 was filed by the Union on November 4. By order dated June 22, 1984, the Regional Director for Region 19, National Labor Relations Board , consolidated the two cases for trial , and issued a_ consolidated com- plaint3 ' alleging that Forest Grove' Lumber Company (Respondent) violated Section 8(a)(1) and (5) of the Na- tional Labor Relations Act (Act). - All parties were given full opportunity to participate, to introduce relevant evidence , to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. On the entire record , and from my observation of the witnesses - and their demeanor, I make the following FINDINGS OF FACT - I. JURISDICTION Respondent is an Oregon corporation, with an office and place of business in Forest Grove, Oregon, where it is engaged in the business of operating a sawmill. - During the past 12 months, which period is representa- tive of all times material herein, in the course and con- duct of its business operations, Respondent had gross sales of goods and services' valued at in excess $500,000; sold and shipped goods or provided services from its fa- cilities within the State of Oregon to customers outside the State or sold and shipped goods or provided services to customers within the State, which customers were en- gaged in interstate comnierce by other than indirect means, of a total value in excess of $50,000; and pur- chased and caused to be transferred and delivered to its facilities within the State of Oregon'goods and materials valued at in excess of $50,000 directly from sources out- side the State, or from suppliers within the State which in turn obtained such goods and materials directly from -sources outside the State. I find that Respondent is, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background4 Respondent's mill is a specialty sawmill, established prior to 1957. In that year the mill was purchased by Carl Burnard and Emanuel Link. Carl Burnard has man- aged -the mill since 1957. In 1978 all outstanding corpo- rate stock was purchased by Carl Burnard and his two sons, Tom and Robert (Jack). The mill is an old one, with limited capacity to handle logs. Only one shift is 2 By letter dated November 7, addressed to Respondent's attorney, the 8(a)(3) allegation of this charge -was dismissed 3 The. complaint was amended at trial to add a Sec 7(e), with my leave 4 This background summary is based upon credited testimony and evi- dence not in dispute 275 NLRB No. 144 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD used, from 8 a.m.-to 5 p.m. The unit has approximately 55 employees. Jack Burnard is vice president of Re- spondent, and is sales and office manager. He is in charge of Respondent's labor relations. Respondent has had collective-bargaining agreements with the Union since 1957. During that time, until the present controversy, only two or three minor grievances each year have been filed by the Union, and there have been no strikes. In February and March 1983 Jack Bur- nard talked with David Asivido, who is employed by the Timber Operators Council (Council), which- acts as a labor consultant and representative for approximately 450 members, both union and nonunion: The Council principally deals with two unions, i.e., Local 2845 and International Woodworkers of America (IWA). Jack Burnard asked Asivido what the Council could do for Respondent so far as labor matters were concerned. Jack indicated that, although he had negotiated past contracts with the Union, he was not sure he would be able to do so in 1983. In past years Respondent had adopted the in- dustry pattern settlement, but Jack was uncertain as to whether or not he could do the same in 1983. At that time Respondent was experiencing economic difficulties. Respondent joined the Council in April, as a member. In the past, the Union and IWA have negotiated with the major employers in the Union, and reached pattern settlements. Thereafter, those settlement agreements were presented to smaller employers for possible accept- ance and signature. Some smaller plants have executed agreements that ,-have differed somewhat from pattern settlements. The 1983 settlement agreement was reached with the "Big 7" employers on Sunday evening, June 5 and was signed June 6. The.agreement was ratified by all employees in late June. J. L. Perrizo is executive secretary of the Union, and has bargained with Respondent approximately 14 years. In late June he asked Jack if he was aware that the' in- dustry pattern agreement had been reached. Jack said he was, but did not know what the terms and conditions were. Perrizo mailed a copy of the agreement to Jack, who said in mid-July that he needed more time to study it. In late July, Perrizo again talked with Jack and they agreed to meet August 9 to discuss the agreement. They met as scheduled and discussed several matters, including pensions. Sometime prior to August 26, Jack called Perrizo on the telephone and read to him the following proposal: FOREST GROVE LUMBER COMPANY CONTRACT PROPOSAL AUGUST 26, 1983 Forest Grove Lumber Company's objective during contract negotiations is to arrive at a mutual- ly satisfactory contract that will allow the Compa- ny to be more competitive and hopefully, provide greater job security for our employees. We propose the following changes: (1) $1.85/hour wage cut across board. (2) Entry level salary new employees only $6.50. (3) Eliminate 3 floating holidays, Friday after Thanksgiving, December 24 and December 31. (4) Reinstate day before and day after require- ment on holiday eligibility. .(5) Eliminate 2nd sentence Article IX (Promo- tions) Part A. (6) Eliminate vacation increment pay. (7) Vacation benefits to be ^ based on hours work- ed, not compensable,hours (8) Restore 1200 hour requirements for vacation credit. (9) Vacation rate of pay based on rate of pay from May 31 not June 1. - (10) No overtime pay for Sunday if regular shift falls on that day. - Perrizo and Burnard met on August 26 to discuss Re- spondent's proposal, but they reached no agreement. The proposal was not acceptable to the Union. Perrizo told Jack that, if the proposal was Respondent's final one, the Union probably would call a strike. Perrizo called Jack on the telephone again on August 27, but there was no change in the position of either side. On August 28 Per- rizo again talked with Jack, and told him the Union would extend the existing agreement for a year, with the stipulation that the parties would continue to negotiate without a strike until it was mutually agreed that they were at impasse. Respondent did not agree. The employ- ees went out on strike August 30. Respondent and the Union met with a Federal media= tor on September 15, but no agreement was reached. The parties met again with a Federal mediator on Sep- tember 28, and Respondent presented a new proposal, as follows: (1) $1.50/hour wage cut across board. (2) Entry level salary new employees only $7.00. (3) Eliminate 3 floating holidays, Friday after Thanksgiving, December 24 and December 31. . (4) Reinstitute day before and day after require- ment on holiday eligibility. (5) Eliminate 2nd sentence Article IX (Promo- tions) Part A with respect to key jobs. Employer agrees to implement training program key jobs. (6) Eliminate vacation increment pay. (7) Vacation benefits to be based on, hours worked, not compensable hours. (8) Restore 1200 hour requirements for vacation credit. (9) Vacation rate of pay based on rate of pay from May 31 not June 1. (10) No overtime pay for Sunday if regular shift falls on that day. (11) The Company agrees to pay increased con- tributions required to remain a participating em- ployer in the LPIW-TOC Health and Welfare Plan. (12) The Company agrees to pay contributions required to remain a participating employer in the Lumber Employer and LPIW Pension Trust. (13) The Company agrees to discuss implementa- tion of a profit sharing program. (14) The Company guarantees a minimum of 4 days per week employment until, January 1, 1984, except in the case of breakdown or bad weather. FOREST GROVE LUMBER CO. The parties were not able to agree, and on September 29 Respondent wrote to the Union, as follows: September 29, 1983 Mr. Jim Bledsoe Western Council of Lumber Production & Industrial Workers 721, S. W. Oak Portland, Oregon 97205 Dear Mr. Bledsoe: Unfortunately, . it is now obvious to us that our negotiations are hopelessly deadlocked. We had sin- cerely hoped that the Company's counter proposal presented to the Union during our meeting of Sep- tember 28, 1983 would provide a basis to reach an agreement. It is our understanding that the Union informed the mediator that our proposal is unac- ceptable and the Union has nothing further to offer. Accordingly, we wish to advise the Union that our proposal of September 28, 1983 is our final offer. Further, we intend to implement this offer ef- fective October 6, 1983: Sincerely, Forest Grove Lumber Company, s/ Jack Burnard Jack Burnard Vice President The Union did.not reply to the letter. On October 1 Re- spondent wrote a letter to all employees, enclosed a copy of Respondent's proposal of September 28, advised 'of the apparent impasse, advised that Respondent would begin operations, and advised that Respondent "will begin hiring replacements." On September 12, 1984, Perrizo wrote a letter to Bur- nard:5 As you know, the Union is the exclusive bargain- ing representative of your employees. On behalf of the Union, I hereby demand that you timely dis- close the precise terms and conditions of employ- ment currently in force and effect for all employees working for Forest Grove Lumber Company. Ac- cordingly, I expect your prompt reply concerning not only the current wage rates being paid to the various employees, but also all other terms and con- ditions of employment which are in effect as well. Respondent sent to Pernzo the information he requested, together with a copy of the parties' expired contract and a copy of Respondent's last proposal for a new contract. A. Alleged Bypassing of the Union and Dealing Directly With Unit Employees Paragraph 7 of the complaint alleges that, on several occasions in September and on one occasion in October, Respondent bypassed the Union and dealt directly with unit employees. 5 Of the unit's approximately 55 employees, all-except 3 presently are out on strike 1009 1. Phillip Vandehey, a striking unit employee who was paid $10. 19 per hour when he went on strike August 30, testified that he talked with Jack Burnard within 2 weeks after the the strike started,. prior to Respondent's second proposal to the Union, at the strike line. He said employ- ee Mike Herrinckx was present and that four strikers were on the line at that time. He said Jack Burnard came from the office to the strike .line, and: Well, Jack Burnard came across from the office and over to the strike line. I asked him how negoti- ations were faring and he said that the negotiations weren't going well. He says the union refused to ne- gotiate with -the company. I mentioned to him that I could see why. I said they were asking for too many things. In particular I I. mentioned . that I thought that I could take a pay cut and it wouldn't actually hurt me so much, but I thought that in reference to a few of the other things that were on there, one was seniority pertain- ing to being able to bid for jobs and also the six paid holidays, I thought that was just too much to take away, you know, from the people. 'Jack came back to me and he said not to worry about this. He says this proposal's not a firm pro- posal. He says everything on this proposal is negoti- able. But, he says, this something that-he says we do and the union does, he says, by asking for more than what you want, he says, we can , come to a mutual agreement, you know, something that both the company and the union can- agree with. He didn't mention anything one way or the other about what the proposals that he was willing to make were, but he did say that the union refused to nego- tiate and they would only go with the industry set- tlement and that was all. He said by the union refus- ing to negotiate, he says , the only people it hurts is you men who are -.out on strike. He says it doesn't hurt Jay Perrizo or Jim Bledsoe. He says they're going to get paid no matter what. He said they have their jobs and no matter if the strike gets over with or not, he said they will get paid. He also told us that he thought that we should get some of the men together and try to get some- thing going as far as settling this strike. I told Jack, I says I don't think we-the union does our negotia- tions for us, I don't think that we actually have a say-so in the matter . You know, we more or less kind of gave them our negotiating power. He says, well, you'd better get together with your union rep- resentatives and tell them that you want them to take some of these proposals. Otherwise, he says, I don't see any end to the strike. A week later, Vandehey stated , Jack Burnard again came to the strike line: ' ... he told us that negotiations were still at a stale- mate, that things haven't - changed too much since the last time that he talked to us . He said that he could not-if we'd ever be going back to work. That was pretty close to the gist of the conversa- 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion. We had a little bit of small talk after that, then he took•off out into the yard. Jack Burnard testified that he talked with picketers almost daily, and, that, on most occasions, the picketers initiated the conversations. He said picketers asked him about specific items in Respondent's proposal and he ex- plained them, but said- he' never tried--to deal directly with employees, nor did he solicit any bargaining ideas from them, nor did he offer employees any terms differ- ent from those in Respondent's proposal. He said he had been instructed by Asivido to be very careful in his con- versations, with, strikers, and that he -was careful. Jack denied: ever telling employees that if they listened to the Union they would have to remain out on strike;. or that the Union was not helping the employees; or that he so- licited employees for contract changes; or. that he told Vandehey to get employees together and try to settle the dispute; or that he told Vandehey that if the Union did not change its position there would be no work avail- able; or asking -employees why they listened only to the Union. Relative to Vandehey, Jack Burnard testified: I- remember Phil Vandehey was one. I remember on ne specific occasion he was one that asked me, well, how about a dollar, you know, would a dollar be enough. David had warned me-that I might have a striker or somebody else try and entrap me in a situation where I would say, well, okay, $1.35 would be better, or something like that. So, I was very careful about responding to that and said our figures have"'shown that $1.85 is about where we need to be, but we've indicated to the-union that these matters are negotiable; and, basically, "in each instance tried to get them, if they were interested in doing something, to steer those kind of comments to the union. 2. Clifford Christensen, a striking unit `employee, paid $10.59 per hour when 'the 'strike started , testified that he talked with Jack Burnard seven - or eight times in Sep- tember concerning contract negotiations.; During the first conversation , Christensen testified , some windows of the mill had been broken and: - Jack said, well, if we'd settle this, we wouldn't- this kind of 'Stuff wouldn't happen . I told him, no, if we settled it,'it probably wouldn't. Jack `says, well, you- ought ` to listen a little more to the' company and less to 'the- union ' and maybe we ,can get this thing settled. - Carl, standing there, said, yeah,- if you'd listen to'meand the company a little more in- stead of the union , we could get this settled.6 At the second conversation , on September 13: Jack ^ came walking ) over"there and 'he walks up and says,' Cliff, what would you ,take, what would `you accept to go back to work . - I, told him, well, you know what -it'd take`to,•get me„back to work. Jack said, well, why don't you talk with the men and see 1 -1 e "Carl" referred to Carl Burnard what they'd accept to go to back to work. I told him you already know what it's going to take to get us back to work. I told him I didn't want to talk to you no more and drove off. On seven or eight occasions, Christensen testified, Jack Burnard asked him what he would accept to return to work. On one occasion they discussed the number of holidays Respondent was willing to give employees. Jack Burnard testified as summarized supra, and denied all of Christensen's testimony about his alleged statements to Christensen concerning negotiations. Bur- nard -denied trying to deal with unit employees, but testi- fied employees asked him what they could do to resolve the problem, to which he replied that they should get to- gether, make proposals to the Union, and let the Union talk with Respondent. 3. Russell Anderson, who was being paid $10.01 per hour at the time he went on strike August 30, testified that he. talked with Jack Burnard the second week of September, when some replacement employees came to work. Also present were Ed Gray, Juan Moreno, and Ted Anderson. Russell Anderson testified that Jack Bur- nard stated: Then it got around to the contract talks and he said he was going to sign the contract. I said, well, I'd taken a cut already, I figured, because I'd been working short-handed. He said that he could have as many people in there as he wanted to to take our place and that he had to compete-with non-union mills. I told him I didn't support the mills being non-union. Then it got around to the talk of the paper that was the proposals that they gave out and he said he didn't have to have everything, but he had to have a lot of it. A week or so earlier, Anderson testified, Jack Burnard told him "don't listen to Jay Perrizo or Jim Bledsoe, that they'll lead you down a road that's somewhere negative, and that the Union doesn't care about you." Jack Burnard denied the latter piece of testimony by Anderson, and relative to the former, stated: People would ask me, well, how are we going to live with' this type of thing, you know, you're taking away too much. I indicated that these weren't written in stone, that we needed some kind of a concession-that amounted to this type of area, you know, this type of ballpark in terms of dollars. But, that was all. 4. Edward Gray, who was being paid $10.01 per hour at the time he-went out on strike August 30, corroborat- .ed the testimony of - Russell Anderson concerning the conversation with Jack Burnard in September, but elabo- rated on Anderson's testimony to a considerable degree. Gray said they discussed the old contract, the wages being proposed by Respondent, the fact that Carl Bur- nard did not like or trust union representatives, the possi- bility of "talking about" employees working short- handed,-and related working. conditions. Gray concluded FOREST GROVE LUMBER CO. his testimony by saying, "Jack said he didn't have to have everything on the proposal paper that he'd given us, but that he did have to have some relief. Jack also said that we'd have to get together with the rest of the men and discuss it and see what it would take to get the crew back." He said Jack Burnard initiated the conversa- tion. Jack Burnard denied Gray's testimony, and Gray's conclusions stated above, and added, "Basically, when- ever anyone asked me that, I would refer them to the Union." 5. Dennis Waibel, who was being paid $10.36 per hour at the time he went on strike August 30, testified that he had a conversation near the picket line- with Jack Bur- nard in September, a couple of days after the strike start- ed. Waibel testified that Jack Burnard approached a van where he, Jerry Johnson, and Roger Adams were play- ing cards, and: He said you know, you could be working. Jerry said yeah, if you'd sign the contract we would be working. Jack said we can't sign the contract with- out some pay cuts. Jerry says well, he says, if you don't sign the contract, we can't go to work for you. Jerry asked him, he said what would it take to get the contract signed. Jack said $1.85 an hour pay cut. Jerry said, well, we just can't give that to you because he says people are on the standard that they work for, and he says I'm living at that stand- ard, and he says if I had to take a cut, he says, we just couldn't make it. Then I asked him, I says, what else could you take besides the $1.85? He says, well, we might be able to take $1.50 and some of the other proposals on the table. Then he turned around and walked off. The following week, Waibel testified, he, Johnson, and Adams were sitting near the picket line when a replace- ment employee walked nearby. Johnson and Jack Bur- nard yelled at each other about the replacement employ- ee, after Johnson started the yelling match, and Jack stated, "[W]ell, why don't you guys get together, talk it over and take the cuts, and we can get back to work." Burnard then left. Jack Burnard categorically and emphatically denied Waibel's testimony. Discussion Jack Burnard testified that he told Asivido about em- ployees questioning him concerning negotiations and re- lated matters, and Asivido corroborated that testimony. Also, Burnard and Asivido testified that the latter in- structed Burnard concerning what he could and could not say to employees. Further, Respondent wrote letters to employees outlining Respondent's position. The testi- mony of Jack Burnard and Asivido relative to this matter is credited, and the letters are in evidence. How- ever, those facts do not settle this issue, since the ques- 1011 tion involves what Jack Burnard allegedly said to em- ployees. 7- Jack Burnard and Respondent's employees are not strangers. Respondent is a small company, and the mill is a small one. Burnard has known some of Respondent's employees many years, and has associated with some of them outside work. Conversations testified to by General Counsel's witnesses sometimes were initiated by employ- ees, and sometimes by Jack Burnard. All of.the conver- sations, so far as the record shows, were friendly ones. No threats, promises, pressure, or intimidation are appar- ent. Clearly, Burnard and the employees sincerely wanted to settle the quarrel. However, those facts, too, do not settle the issue. If the statements attributed to Jack Burnard by the General Counsel's witnesses are accepted as accurate, they would be violations of the Act. Patently, if true, they constituted attempts to bypass the Union and deal directly with employees. The question is whether or not the General Counsel's witnesses are to be credited over Jack Burnard's denials. Based on appearance and de- meanor of those witnesses, and the record as a whole, the General Counsel's witnesses are credited, and it is found that the allegations of the complaint relative to this issue were proved. B. Paragraph 7(e) of the Complaint This paragraph is an amendment to the complaint, per- mitted by me over Respondent's objection, only after statement by the General Counsel that the allegation was offered solely as evidence of Respondent's individual dealing with employees, and not as an independent alle- gation of a change in work conditions. The amendment reads: On or about October, 1983, and thereafter, re- spondent offered terms and, in fact, conferred terms on employees that were different from the terms that it offered to the union at the bargaining table. General Counsel's Exhibit 5 shows Respondent's wage rates in effect after implementation of its final offer to the Union, which included a wage reduction across the board of $1.50 per hour. Since the newly implemented wages in some instances exceed formerly negotiated wages less than $1.50 per hour, the General Counsel con- tends that the final offer was not adhered to. Setting aside any argument that an employer is not always required to implement an offer identically as pro- posed, it is clear that Respondent's implemention in this instance was in accord with past practice of the parties, and was proper. The question is whether or not rates negotiated by Re- spondent and the Union in the past have. included mini- mum rates that could be, and regularly were, exceeded for good reason.' Jack Burnard credibly testified that the minimum rates often were exceeded, with knowledge of the Union, on the basis of employee merit, or to meet industry stand- ' Respondent's letters to employees are not alleged to be, or to contain statements alleged to constitute , violations of the Act 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ards, or -to obtain employees otherwise not to be had at going rates, or to retain an employee in a certain posi- tion. That practice has been a regular one since at least 1968. Respondent's records for 1968 show the Union's then - financial secretary, Lloyd Morton, - as receiving more than the- negotiated minimum .- Records for 1981 show ` that Waibel, the Union's president, and John Begert, the Union's-strike captain, were receiving pay in excess of the negotiated - minimum. Records for 1976 show the same for Begert. Records for 1983 show the same for Waibel and Roger Nipp, -the Union's recording secretary. Jack Burnard further credibly testified that, al- though deviations from minimum rates never were de- scribed in contracts with the Union, he has discussed - that matter in the past with Perrizo and Bledsoe. Also, he said, several union officers have received 'higher than minimum rates, and those facts were common knowledge among employees of the mill. Jack Burnard testified that, 2 or 3 years ago on -a date he cannot remember, he talked about the matter with Perrizo in Carl Burnard's office, -and Perrizo "said although the union could not recognize it openly, it was something that was acknowl- edged and there was no problem with it." Perrizo -denied ever having any knowledge of wages being paid in excess of negotiated minimum rates, prior to May 1984. That denial is given no credence. It is found that this allegation of the complaint is not supported by the record. C. Nature of the Strike The complaint alleges that the strike was caused, and prolonged, by Respondent's unfair labor practices alleged in paragraph 7 of the complaint. Obviously the strike was not caused by the alleged unfair labor practices, since all of them occurred after the strike cohimenced. There is--no allegation, or evidence; that Respondent negotiated at the table in bad faith, or at any. time re- fused to negotiate with the Union. Jack Burnard testified at -length, and credibly, concerning Respondent's finan- cial difficulties. That testimony was not challenged or contradicted -The- Union insisted that Respondent sign the pattern agreement, which provided for increased wages and benefits, and Respondent insisted that, in order to survive, it had to reduce wages and some bene- fits. After negotiation sessions and after meeting with a Federal mediator, the. parties remained at impasse, entire- ly because of the wages and benefits issues. The impasse resulted in a strike. There, is no allegation, or evidence, that the,impasseitself was caused, wholly or, partially, by any factor other than 'economic disagreement. The matter of Jack Burnard's efforts to deal with em- ployees outside the Union was mentioned on a few occa- sions, and was-the subject of an NLRB charge filed by the Union on .September 23 and' again `on November 4,. 1983, but it is- clear that the matter of economics was the cause of the. impasse, the strike,- and • the continuation' of the strike. Had'Respondent signed the pattern agreement, or had'the'Union'agreed to wage and benefit reductions sought by Respondent, the strike would have been set- tled forthwith, so far as the record shows. The Union met with employees on September 20 solely to discuss the Union's meeting with Respondent held September 15, and at that meeting there was some confusion, and argument, occasioned by what employees believed to be differences between Respondent's offer and what Jack Burnard had told some employees. However, at no place in the record is- there any indication that the strike was prolonged by anything other than economic differences of the parties. Indicative of the Union's intransigence, in- sofar as settlement of the controversy was concerned, is Perrizo's adopted and acknowledged position of the Union, stated to a newspaper reporter on October 19, 1983, and again on November 2, 1983. "The membership of Forest Grove believe they're entitled to the same treatment as the rest- of the the industry," Perrizo said. "We're not prepared to make any counterproposals now. Our proposal is firm. We have made them a reasonable offer," Per- rizo said. "They're [the strikers] holding up well. There's no slippage. They feel strong they need to strike." Burnard and the Union are "locked in" to their positions, Perrizo said.8 The matter of individual dealing with employees was not pressed during that stated union position, or in formal negotiation sessions, or during meetings with the Federal mediator, or at a discussion of the parties on May 11, 1984, concerning possible profit 'sharing, or in the Union's meetings or conversations with Asivido, or at any other time except possibly on one occasion when Perrizo allegedly mentioned the matter casually to Bur- nard at the picket line. It is apparent that, even had the charge of individual dealing not been filed or had been settled, the parties would have remained at impasse, absent agreement on economic issues, and the strike would have continued. The General Counsel principally relied on Safeway Trails9 in support of its argument that Respondent's indi- vidual dealing with employees prolonged the strike in violation of Section 8(a)(5) of the Act. However, Safeway Trails clearly is different from the case herein, and is not controlling. In Safeway Trails, the employer strongly was opposed to the union negotiator, and left no stone unturned in its effort to get nd of the negotiator, including direct attacks on him in dealing with employ- ees. At one time the employer stated, inter alia, in a writ- ten internal resume: At this time I see no possibility of settling a con- tract with Lantz and it appears to me that we have but three possibilities. (1) Inform the membership and the employees of the absolute responsibility of their representation in an effort to get them to boot Lantz out.._ s R Exhs 2(a) and (b) Safeway Trails, Inc, 233 NLRB 1078 (1977), enfd 641 F 2d 930 (D C Cir 1979) - FOREST GROVE LUMBER CO (2) The UTU. International taking over these negoti- ations and " putting in someone who can intelligent- ly negotiate and reach an agreement. (3) Failing-to achieve Nos. I and 2, it appears that this will be a long work stoppage with the definite possibilities'of having to put this company back to work without a settlement with the UTU. The Board stated, inter alia (id. at 1081), "It is well set- tled that, while an employer may communicate its offer to employees, an employer has no responsibility for de- termining or selecting who should bargain on behalf of employees." The Board concluded (id. at 1082)" Accordingly, having concluded that the Re- spondent's away-from-the-bargaining-table activities constituted a campaign to employees directed toward undermining the status and authority of John Lantz, the chosen bargaining representative of the employees, we find that bad faith and an 8(a)(5) violation have been established Further, we find that the Respondent's unfair labor practices aggravated and prolonged the strike, thereby converting the economic strike herein into an unfair labor practice strike. - It is well settled that "an unfair labor practice does not convert an economic strike to an unfair labor practice strike unless a causal connection is established between the unlawful conduct and the prolongation of the strike."i o In Anchor Rome Mills, i t cited by the Board in Robbins Co., supra, the Board stated, "It is clear in the present case that the inability of the parties to agree on the terms of a new contract, and not the Respondent's letters of April 9, 1984, or its other unfair labor practice committed during the strike, was responsible for the pro- longation of the strike " That is the situation in the case at hand An economic deadlock, not attempts to deal with employees individually, prolonged the strike 12 This allegation of the complaint is not supported by the record. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with Respondent's oper- ations described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. On the basis of the foregoing findings of fact and the entire record, I make the following CONCLUSIONS OF LAW 1. The Union is the exclusive bargaining representative of Respondent's employees in the following appropriate unit: - 10 Robbins Co, 233 NLRB 549 (1977), and cases cited therein 11 86 NLRB 1120, 1122 (1949) 12 See also Soule Glass & Glazing Co v NLRB, 652 F 2d 1055 (1st Car 1981) 1013 All production and maintenance employees, exclud- ing employees engaged in administration, actual su- pervision, research and technical" occupations, ac- counting, clerical, stenographic and other office work - 2 By disregarding and bypassing the Union and bar- gaining and dealing directly with -its employees covering their wages, hours, and other terms and conditions of employment, Respondent violated Section 8(a)(5) and (1) of the Act. THE REMEDY Having found that Respondent violated Section 8(a)(5) and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirma- tive action designed to effectuate the policies of the Act. On these findings, of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Forest Grove Lumber Company, Forest Grove, Oregon, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Disregarding and bypassing the Union and bargain- ing and dealing directly with its employees concerning their wages, hours, and other terms and conditions of employment in violation of Section 8(a)(5) and (1) of the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its place of business in Forest Grove, Oregon, copies of the attached notice marked "Appen- dix."14 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. 13 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 14 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had an opportunity to present evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT disregard and bypass the Union and bargain and deal directly with our employees concerning their wages, hours, and other terms and conditions of employment in violation of Section 8(a)(5) and (1) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them in Section 7 of the Act. FOREST GROVE LUMBER COMPANY