Timber Products Co.

TIMBER ]PRODUCTS CO. 769 Rockwood & Company and W. H. Gonyea Trust No. 1-17 d/b/a Timber Products Co. and Local 3- 6, International Woodworkers of America, AFL-CIO-CLC. Case 36-CA-4576 26 November 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 3 May 1984 Administrative Law Judge Rus- sell L. Stevens issued the attached decision. The Respondent and the Charging Party filed excep- tions, supporting briefs, and answering briefs, and the General Counsel filed exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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 only to the extent consistent with this Decision and Order. 1. The judge found that the Respondent had made a final contract offer to the Union on 24 August 1983,2 which was not withdrawn before 11 October when the Union accepted the Respond- ent's final offer, but that the Respondent was not obligated to execute a contract embodying the par- ties' agreement because the agreement was silent as to essential terms and did not constitute a fully formed collective-bargaining agreement.3 We dis- agree and find that the Respondent and the Union had reached full and complete agreement on the terms of a collective-bargaining agreement when the Union accepted the Respondent's outstanding final contract offer. The essential facts, as set forth in the judge's de- cision, are not in dispute. Following three bargain- ing sessions between the Respondent and represent- atives of the Union's Regional Council,4 the parties i We note that the judge inadvertently stated at one point in his deci- sion that the Union refused to sign a contract embodying the agreement reached by the parties, whereas the complaint in fact alleges that the Re- spondent has failed and refused to sign a contract 2 Unless otherwise indicated , all dates are 1983. S The judge noted that the Respondent has not challenged the proposi- tion that the Respondent's contract offer, not withdrawn, could be ac- cepted by the Union and a contract formed even after counteroffers had been made if a "full and complete agreement" had been reached Presto Casting Co., 262 NLRB 346 (1982), enfd in relevant part 708 F.2d 495 (9th Cir. 1983); Pepsi-Cola Bottling Co., 251 NLRB 187 (1981), enfd. 659 F.2d 87 (8th Cir. 1981). 4 Local 3-6, International Woodworkers of America, AFL-CIO-CLC, party to successive collective-bargaining agreements with the Respond- ent, delegated its authority to bargain with the Respondent regarding "in- dustry" subjects of regional concern to its Regional Council Agreement was reached concerning "local" matters on 17 August had reached, agreement on all issues except starting wages for new employees, a pension plan,,' and a health and welfare plan. The Respondent wanted lower starting base pay for certain entry level posi- tions than that provided in the industry agreement, and wanted to substitute its own -pension and health and welfare plans and to withdraw from the multiemployer plans included in the industry con- tract. On 24 August the Respondent sent, the Union a letter specifying a final contract offer: The attached benefit levels, together with the attached details of a wage rate change for cer- tain job classifications, together with the indus- try settlement as presented to Timber Products Co., except as modified by these benefit and wage provisions, constitutes Timber Product Co.'s final offer to the union. Attached to this letter were a provision relating to starting wage rates, materials relating to health and welfare benefits, and a document entitled, "Timber Products Company, TOC-IWA Pension Plan, Out- line of Major Plan Provisions, Revised Compara- tive Summary." Because this document is determi- native of the ultimate issue in this alleged unfair labor practice proceeding, a copy is attached as Appendix B. On the same date, 24 August, the Respondent sent a letter to its employees advising them that it had transmitted a final offer to the Union's Region- al Council and that the Company intended to oper- ate its facilities, notwithstanding a strike which had commenced on 19 August. The letter also stated in part: The Company's proposed pension plan pro- vides the same level of benefits as the T.O.C. [multiemployer] plan, but vesting begins earli- er. The Company is offering, past service credit to assure no loss of vesting under the Company's plan for those employees who have not put in their ten years to obtain any vesting under the T.O.C. plan. At the Union's request the parties again met on 8 September, at which time the Respondent provided its proposed health and welfare plan in detail. Al- though the three issues separating the parties were discussed, no agreements were reached. Nor were any agreements reached on 20 September at a sub- sequent meeting, and the Respondent advised the Union at that time that it was terminating the par- ties' current contract, withdrawing from the pen- sion and health and welfare plans included in that contract, and implementing its final offer. By letter of 21 September, the Respondent con- firmed in writing its position as stated at the par- '277 NLRB No. 78 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ties' 20 September negotiating session . The Re- spondent stated in its letter, with respect to the three outstanding issues:5 (1) "the proposal with re- spect to base rate made September 8, 1983, is a final offer as clarified at our meeting of September 20 that the base rate will not include a shift differ- ential," (2) "The Company's final offer with re- spect to the health and welfare package is the package that was presented to you on September 8 in detail," and (3) "As soon as the Company's pen- sion plan document is prepared, we will furnish a copy for your review and be willing to discuss its details. In any event, the level of benefits in that plan will not be less than those levels previously furnished you. Since the Company's plan is on a calendar-year basis, adoption of the plan may take place any time between now and December 31 without loss to the employees." The Union's Regional Council returned the dele- gated authority to bargain on industry and regional matters to Local 3-6 on 29 September, and the Local on 11 October sent the Respondent a letter accepting the Respondent's final offer. Thus, the Union notified the Respondent that "Local Union No. 3-6, International Woodworkers of America, accepts the company's final offer as outlined in your letter of August 24, 1983 and reaffirmed at the meeting of September 20, 1983 and in the Sep- tember 21, 1983 letter of Phil Cass, Jr." The letter further states that the Union will be in contact with the Respondent to put together language reflecting the agreement. On 13 October the Respondent re- plied that the question of handling replacement workers had not been settled, that it would insist that all employees who worked during the strike and those who resigned from the Union be elimi- nated from the union-security provision in the con- tract, and that it would not enter into any future dues-checkoff arrangements with the Union. The Respondent further stated that "[t]he Company is reviewing the terminated contract to determine if there are any other changes it feels are necessary." The judge found that no enforceable contract was formed by the Union's acceptance of the Re- spondent's outstanding final offer because the Re- spondent's proposed" pension and health and wel- fare plans lacked essential terms preventing full and complete agreement on the terms of a contract at that time. We disagree. With respect to the health and welfare proposal, the record indicates that the Respondent provided the Union with a complete health and welfare plan on 8 September; indeed, the Respondent in its 21 September letter to the Union referred to the health and welfare package 5 The Respondent's' 21 September letter is reproduced, in relevant part, in the judge's decision. that was presented to the Union "on September 8 in detail." Nor has the Respondent itself contended that the health and welfare proposal was other than fully complete. We disagree, therefore, with the judge's finding that any essential details were lacking from the health and welfare proposal when the Union accepted it on 11 October. With respect to the Respondent's pension pro- posal, the judge correctly found that a complete pension plan had not been finalized at the time of the Union's acceptance of the offer. We note, how- ever, that the Respondent's final offer was not a pension "plan," but rather specified benefit levels which it would provide. Thus, in its letter of 24 August the Respondent describes its final offer with respect to the pension plan as "the attached benefit levels." As evidenced by Appendix B, the Respondent's offer encompassed such essential ele- ments as the effective date, eligibility requirements, amounts of benefits, early retirement, disability benefits, death benefits, termination benefits and vesting, standard benefit form, and accrued bene- fits. Moreover, the Respondent proposed that many of these items would be the same as that provided in the present TOC-IWA Plan, a readily ascertain- able standard since it refers to the employees' mul- tiemployer plan already in existence. That the Respondent's offer did not contain all the administrative details included in its 51-page pension plan eventually tendered to the Union on 28 December is not fatal. It is clear that, once the Union accepted its stated final offer, the Respond- ent was obligated to provide a pension plan con- taining the enumerated benefits under the terms specified in Appendix B. Any additional details could be resolved by the parties later.6 And, while the judge found that the Respondent's pension offer was defective because it was silent as to the amount and basis of contributions to be made, there was never any issue between the parties as to the funding of the plan. The Union was not affected by how much the plan might cost or how it might be funded, because it was understood that the Re- spondent alone would be obliged to provide the level of benefits specified in Appendix B. Indeed, the plan finally submitted to the Union in Decem- ber after the conclusion of the strike provides, at section 4.1, that "no contributions shall be required under the Plan from any Participant." It is also clear that the Respondent thought that it was offering a complete package susceptible of 6 The Board has previously found that an agreement to defer bargain- ing on identified issues does not preclude a finding that parties have agreed to a contract. Custom Colors Contractors , 226 NLRB 851, 854 (1976). See also Central Plumbing Co, 198 NLRB 925 (1972); Falkowski Grocery, 236 NLRB 473 (1978). TIMBER PRODUCTS CO. 771 resulting in an enforceable contract upon the Union's acceptance, for its final offer contained no contingencies. Nor, ' when it wrote to employees advising them of its final offer to the Union, did it indicate that acceptance of that offer would have to await further bargaining with respect to pension plan details. Rather, it is clear that the Respondent contemplated that the Union's acceptance of its final offer would result in an immediate contract and end the ongoing strike. Only when the strike was unsuccessful and the employees had returned to work did the Respondent raise other matters which it claimed prevented complete contract agreement. We find, therefore, that when the Union un- equivocally accepted the Respondent's final offer on 11 October, an enforceable contract was formed and the Respondent was thereafter obligated to execute and abide by that contract. Its failure to do so violated Section 8(a)(5) and (1) of the Act. Be- cause this collective-bargaining agreement incorpo- rated the union-security provision contained in the parties' previous agreement, the Respondent was also obligated to honor the union-security provi- sion of that contract. Accordingly, we shall require the Respondent to execute and give retroactive effect to the parties' agreement, 7 on request by the Union, and to comply with the dues-checkoff pro- vision of the contract. We shall also require the Respondent to remit to the Union the dues due and owing for each employee who executed a dues-de- duction authorization, together with interest.8 2. The judge also found, and we agree, that the Respondent violated Section 8(a)(l) of the Act by conditioning reinstatement of economic strikers upon their resignation of union membership, and that this unlawful condition delayed reinstatement of some economic strikers. In order to remedy the Respondent's unlawful conduct, the judge recom- nlendied that the Respondent be ordered to make whole all unit employees for any losses they may have incurred as a result of the Respondent's re- quiring that they resign from the Union as a condi- tion of reinstatement, with interest. His recom- mended Order, however, requires the Respondent to make whole all economic strikers who were not 7 The industry settlement incorporated in the Respondent's final offer to the Union does not specify an effective date but does state that "Con- tracts shall be renewed and/or extended for a three-year period ending May 31, 1986 " The previous contract to which the settlement refers ex- pired on 31 May 1983 Whether the effective date of the parties' agree- ment for purposes of giving that agreement retroactive effect should be I June 1983, the date from which the prior agreement would be renewed for a 3-yeas period, or 11 October 1983, the date on which the parties reached agreement on the new contract, we leave to the compliance stage of the proceeding s Stackpole Components Co, 232 NLRB 723 (1977) Interest is to be computed in the manner prescribed in Florida Steel Corp, 231 NLRB 651 (1977), see generally Isis Plumbing Co, 138 NLRB 716 (1962) permanently replaced during the strike for losses suffered by reason of the Respondent's failure to reinstate them on their unconditional offer to return to work, without reference to the unlawful union resignation requirement.9 To the extent that the judge found that economic strikers who were not returned to work for reasons other than refusal to comply with the Respondent's requirement that they resign from the Union in order to return are entitled to backpay, we reject that conclusion. The complaint does not allege, nor does the record reveal, that the Respondent violat- ed the Act by failing or refusing to reinstate eco- nomic strikers immediately upon their uncondition- al offer to return to work. The complaint, instead, alleges that the Respondent violated Section 8(a)(1) of the Act by conditioning reemployment of the strikers on their resignation of union membership, and only this issue was litigated at the hearing. Ac- cordingly, we shall modify the judge's recommend- ed Order in conformance with his recommended remedy by requiring the Respondent to make whole economic strikers only for losses incurred as a result of the Respondent's requirement that they resign from the Union as a condition of reinstate- ment. The issue of which specific strikers are enti- tled to backpay, and the amounts thereof, we leave to the compliance stage of the proceeding. 3. The General Counsel has excepted to the judge's failure to provide a make-whole remedy for all employees who suffered any losses by reason of the Respondent's having unilaterally established a work rule change denying employees working a 4- day week the right to bump less senior employees for a fifth day of work. We find merit to this ex- ception, as the judge found that the Respondent unlawfully implemented that work rule change without prior notice to or bargaining with the Union.' ° Employees who may have suffered losses as a result of the Respondent's unilateral change are entitled to be made whole with interest. Back- pay for any losses resulting from the changing of this work rule is to be computed in a manner con- sistent with Board policy as stated in Ogle Protec- tion Service, 183 NLRB 682 (1970), with interest thereon as set forth in Florida Steel Corp., 231 NLRB 651 (1977)." 9 In his discussion of this unfair labor practice , the judge also observed that the Respondent offered no justification for its delay in returning strikers to the job on the basis of business necessity and that, on this record, it failed to meet the requirements of the Act when it did not rein- state the economic strikers immediately on their unconditional offer to return to work 10 No exception has been taken to this finding 11 See generally Isis Plumbing Co, 138 NLRB 716 (1962). 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board orders that the Respondent, Rockwood & Company and W. H. Gonyea Trust No. 1-17 d/b/a Timber Products Company, Medford, Oregon, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain by refusing to execute a contract negotiated and agreed upon with the Union. (b) Conditioning reinstatement of economic strik- ers on, and requiring that employees sign forms for, their resignation of union membership. (c) Implementing work rule changes and a new dental and vision plan covering unit employees without prior notice to, or bargaining with, the Union. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Execute, on request, a collective-bargaining agreement embodying the terms and conditions to which the Respondent and the Union finally agreed on 11 October 1983, to be effective in ac- cordance with the terms of that contract. (b) Apply retroactively, the terms and conditions of the collective-bargaining agreement to which the Respondent and the Union agreed, and make employees whole for any loss of earnings and other benefits suffered as a result of its failure to execute and abide by that agreement in a manner consistent with Board policy as stated in Ogle Protection Serv- ice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). (c) Reimburse the Union for all membership dues which the Respondent has failed to withhold and transmit to the Union pursuant to signed dues de- duction authorizations and in accordance with the checkoff provision of the collective-bargaining agreement, with interest thereon as provided by the Board's decision. (d) Make whole all economic strikers for any losses they may have incurred as a result of the Re- spondent's requiring that they resign from the Union as a condition of reinstatement, in the manner set forth by the judge in that section of his decision entitled "The Remedy." (e) Make whole all unit employees for any losses they may have suffered by reason of the Respond- ent's changing its work rule to deny employees working a 4-day week the right to bump less senior employees for a fifth day of work, with interest, as provided by the Board's decision. (f) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports and all other records necessary to compute the amount of backpay due under the terms of this Order. (g) Post at its facility copies of the attached notice marked "Appendix A."12 Copies of the notice, on forms provided by the Regional Direc- tor for Region 19, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 12 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT do anything that interferes with these rights. WE WILL NOT refuse to bargain by refusing to execute a contract negotiated and agreed on with the Union. TIMBER PRODUCTS CO. WE WILL NOT condition reinstatement of eco- nomic strikers on, or require that they sign forms for, their resignation of union membership. WE WILL NOT implement work rule changes or a new dental and vision plan covering unit employ- ees without prior notice to, or bargaining with, Local 3-6, International Woodworkers of America, AFL--CIO-CLC. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request of the Union, execute a collective-bargaining agreement embodying the terms and conditions to which we and the Union finally agreed on 11 October 1983 , to be effective in accordance with the terms of that contract. WE WILL apply the terms and conditions of the collective-bargaining agreement to which we and the Union agreed retroactively , and WE WILL make you whole with interest for any loss of earnings and other benefits resulting from our failing to exe•- cute and abide by that agreement. WE WILL reimburse the Union for all member- ship dues which were authorized by our employees to be deducted but which we failed to deduct and transmit to the Union. WE WILL make whole all economic strikers for any losses which they may have incurred as a result of our requiring that they resign from the Union as a condition of reinstatement, with inter- est. WE WILL make whole all unit employees for any losses which they may have suffered by reason of our changing our work rule to deny employees working a 4-day week the right to bump less senior employees for a fifth day of work, with interest. 773 OUTLINE OF MAJOR PLAN PROVISIONS- Continued REVISED COMPARATIVE SUMMARY Proposed New Plan Timber Products Present TOC-IWA Plan 3. NORMAL RETIREMENT a) Eligibility Age 65. (Same) Age 65. b) Benefit $17 per month for $15 per month for each Year of each Year of Service Service completed before completed before 1981. $19.50 per month for each Year of Service completed after 1981. 1965. $17 per month for each Year of Service completed after 1965 and before 1981. $19.50 per month for each year of Service completed after 1981. A Year of Service A Year of Service is determined as (for service after follows: 1965) is determined as follows: Hours Credit Less than 600... 0 600-900 ............. 1 /2 900-1200 .. ......... 3 /4 1200 or more.... 1 Hours Credit Less than 600... 0 600-900 ............. 1 /2 900-1200 .......... 3/4 1200 or more.... 1 ROCKWOOD & COMPANY AND W. H. 4. EARLY GONYEA TRUST No. 1-17 D/B/A RETIREMENT a) Eligibility Age 55 and 10 Age 55 and 10 TIMBER PRODUCTS CO. Years of Service. Years of Service. APPENDIX B b) Benefit (Same) Accrued Benefit at Accrued Benefit at TIMBER PRODUCTS COMPANY Early Retirement earned to date, Early Retirement earned to date, TOC-IWA PE14SION PLAN reduced each year retirement reduced each year retirement OUTLINE OF MAJOR PLAN PROVISIONS precedes age 62. (Same) precedes age 62. 5. DISABILITY REVISED COMPARATIVE SUMMARY BENEFITS a) Eligibility Total and Total and Proposed New Plan Present TOC-IWA Permanent Permanent Timber Products Plan Disability after 5 Disability after 5 1 EFFECTIVE Date of 1965 Years of Years of DATE Employment. Employment in Employment in 2 GENERAL After 1000 Hours After 1000 Hours the Timber the Timber Industry (Same) Industry ELIGIBILITY of Service. of Service . . (Same) 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION b) Benefit Accrued Benefit earned to date of disability. (Same) 6. DEATH BENEFIT a) Eligibility Death after 1 year of service. b) Benefit $1000.00 for each year of service. $17,500.00 maximum. 7. TERMINA- TION BENEFITS a) Eligibility b) Benefit Vesting to begin after 7 Years of Service. Accrued Benefit payable at retirement (or lump sum equivalent) determined as follows: Accrued Benefit earned to date of disability. Death after 5 Years of Service. 1/2 Employer contributions. Generally, 10 Years of Service. Accrued Benefit payable at retirement (or lump sum equivalent) determined as follows: STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge. This case was tried in Medford, Oregon, on March 13, 1984.1 The complaint, issued December 12, is based on a charge filed October 13 and an amended charge filed December 7 by Western States Regional Council No. III, Interna- tional Woodworkers of America (International), Local 3-6, International Woodworkers of America (Local or the Union). The complaint alleges that Rockwood & Company and W. H. Gonyea Trust No. 1-17 d/b/a Timber Products Co. (Respondent) violated Section 8(a)(1) and (5) of the National Labor Relations Act (the 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 Respondent and the Union. The General Coun- sel did not file a brief, but made a closing argument at trial. On the entire record, and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT Years of Vested Service Percentage Less than 7...... 0% 7 ..................... 25% 8 ....................... 50% 9 ........................ 75% 10 or more. ...... 100% Years of Vested Service Percentage Less than 10.... 0% 10 or more..... 100% ................... ..................... ..................... . 8 STANDARD 5-year Certain and BENEFIT Life Annuity. FORM (Same) 9. ACCRUED Retirement Benefit BENEFIT earned to date of termination of employment (for whatever reason). (Same) 5-year Certain and Life Annuity. Retirement Benefit earned to date of termination of employment (for whatever reason). Dale B. Cubbison, for the General Counsel. Phil Cass, Jr., and Douglas Mitchell (Cass, Scott, Woods & Smith), of Eugene, Oregon, for the Respondent. Lynn-Marie Crider, of Gladstone, Oregon, for the Charg- ing Party. 1. JURISDICTION Respondent is an Oregon partnership with an office and place of business in Medford, Oregon , where it is en- gaged in the business of manufacturing plywood particle- board and other wood products. During the past 12 months, which period is representative of all times mate- rial herein, Respondent, in the course and conduct of its business operations, sold and shipped goods and services from its facilities within the State of Oregon to custom- ers outside that State, or sold and shipped goods or pro- vided services to customers within that State, which cus- tomers were engaged in interstate commerce by other than indirect means, in a total value in excess of $50,000. I find that Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 3-6, International Woodworkers of America, AFL-CIO-CLC is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background2 Respondent and the Local Union had had a collective- bargaining relationship since 1966. Their most recent contract expired by its terms May 31, 1983. The contract i All dates are within 1983 unless otherwise stated 2 This background summary is based on credited testimony and evi- dence not in dispute TIMBER PRODUCTS CO. included, inter alia, a provision for reopening and for automatic extension. Customarily, the International's Re- gional Council negotiates in company with Lumber Pro- duction Industrial Workers of America (LPIW) a region- al contract with Western Wood Products Employers As- sociation (Association). Past practice has been for the Local Union to negotiate certain local subjects independ- ently with Respondent prior to commencement of re- gional negotiation, and thereafter to adopt the regional contract for other provisions. The International negoti- ates both for itself and with Respondent for the Local Union. In the past Respondent has bargained for itself, independently for the Association. The union-security provision of the International agreement was not opened by Respondent for the Local Union during 1983 negotia- tions relative to the independent agreement between Re- spondent and the Local Union. Respondent and representatives of the International and the Local Union held their first negotiation session on May 31 Representing Respondent were Phil Cass (Respondent's attorney in this case), Joe Gonyea, and Alex Austin, Respondent's manager. Representing the International was Rodney Kelty, vice president of the ]International. Representing the Local Union was a com- mittee headed by Dennis Dawson, the Local Union's business agent and financial secretary. Kelty was acting as the Local Union's authorized representative. At the meeting Kelty explained his authority to act for the Local Union as a regional representative, and explained the items that the Local Union had reserved for local ne- gotiations. The Local Union had commenced negotia- tions on May 16, acting separately from the Regional Council and Kelty, relative to local issues. Kelty ex- plained in detail 16 separate issues that had been opened between the International and the Association. Respond- ent made no proposals. The same persons met again on August 2. In the inter- im, the International, LPIW, and the Association had reached agreement on a contract, which fact was related by Kelty to Gonyea. Kelty explained that the contract had been ratified by the membership, and that the union representatives were prepared to talk with Respondent. Kelty presented to- Respondent a copy of the industry contract that had been negotiated, and discussed it in detail. The contract made no change in pay for new em- ployees hired at the bottom of the labor scale. Respond- ent's representatives asked for time to respond, and a later meeting date was scheduled. On August 19 the same persons met again, in Re- spondent's offices as in the past. Respondent generally agreed with the industry contract, but proposed a start- ing base pay for approximately 10 entry level positions, of $7 per hour as opposed to approximately $10 per hour in the industry contract. In addition, Respondent said it wanted to substitute its own pension, health, and welfare plans for those of the industry contract, although no spe- cific written proposal was handed to union representa- tives. There was discussion concerning Respondent's plans, and Kelty asked that Respondent submit written texts of its proposals The requested written proposals then were given to Kelty, who rejected them and insist- ed on the industry contract provisions. Kelty said the 775 Union would do what it had to do. A. strike and picket- ing commenced the evening of August 19. On August 24 Respondent wrote a letter to the Inter- national , stating as follows: Gentlemen: Attached to this letter are the benefit details of Timber Products Co.'s proposal for life and medical coverage and for the Company pension plan. As you were advised at our meeting of August 19, Timber Products Co. will not execute the indus- try settlement presented to it. The attached benefit levels, together with the attached details of a wage rate change for certain job classifications, together with the industry settlement as presented to Timber Products Co., except as modified by these benefit and wage provisions, constitutes Timber Product Co.'s final offer to the Union. We will, of course, be available for any further meetings you desire. Sincerely, /s/ A.J. Austin Resident Manager Kelty asked Respondent for another meeting, which was held on September 8 at a hotel, with the same per- sons present as those who attended the earlier negotia- tion sessions. The strike still was in progress. Kelty pro- posed to Gonyea a starting wage rate of $8 per hour, with upward steps ultimately to arrive at the rates of the expired contract with Respondent, which was a little more than $10 per hour.3 Gonyea advised Kelty that two strikers had been permanently replaced, and Kelty said that matter would have to be taken care of later. Respondent gave Kelty a copy of its proposed health and welfare plan, which did not contain dental and eye benefits. On September 19 Kelty sent a message to Cass, listing seven matters "that need to be addressed if we were to agree to the company's proposals." A meeting was held at Respondent's office on Septem- ber 20, with the same persons attending except Gonyea, who did not attend. Kelty reviewed the various matters listed in his message to Cass, and Respondent offered a counterproposal on wages, of $7.25 per hour starting wage for some positions and $7.10 for others. Union rep- resentatives held a caucus, returned to the meeting, and rejected Respondent's wage offer. Cass asked whether or not the Union would accept Respondent's wage offer, if Respondent accepted the Union's health and welfare plan. The Union again caucused, returned, and counter- offered to accept Respondent's pension, health, and wel- fare plans if Respondent would agree to an $8 wage, gradually increased to the expired contract rate. Cass re- fused that counteroffer, stated that Respondent was ter- minating the contract, and stated that, as of September 23,4 Respondent was going to withdraw from the 3 Kelty testified that base rates are not uniform in the industry, they vary among the various companies 4 Counsel stipulated that no party terminated the contract prior to Sep- tember 20 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's pension, health, and welfare plans and implement Respondent's final offer. On September 21 Cass wrote a letter to Kelty, stating in part: Dear Mr. Kealty: This letter confirms the Company's position as it stood at the close of the negotiating session con- ducted on September 20, 1983. First, the Company is extremely disappointed in the outcome of the negotiations. It appears obvious to us that despite the dancing around with respect to the pension and health and welfare matters that the International will not allow Timber Products to enter into a collective bargaining agreement con- taining a change in the base rate. This is particularly disturbing to us because, while the International is willing to make adjustments in base rate jobs wages, the concept of the base rate at the current level must remain inviolate because of other disputes in which the International is involved. We have a dif- ficult time understanding this position in light of the fact that it has been made clear throughout the process of negotiations that the change in the base rate will have no dollar impact on any current em- ployee of the Company. Be that as it may, the Company's position as of the close of the bargaining meeting on the 20th is that the proposal with respect to base rate made September 8, 1983, is a final offer as clarified at our meeting of September 20 that the base rate will not include a shift differential. Our new proposal pre- sented on the 20th, preserving some historical spreads in base rate positions, having been rejected, was withdrawn. The Company's final offer with re- spect to the health and welfare package is the pack- age that was presented to you on September 8 in detail. In this respect, we were also disappointed that the analysis of the health and welfare package proposed by the Company, which you were to have reviewed by your analyst, resulted in a paraphrased letter to the Company containing what the Compa- ny considers to be a list of minor variances from the current plan and did not include the complete anal- ysis. It is obvious to us that in some respects the plan proposed by the employer is superior, particu- larly with respect to the co-insurance level and the maximum level of benefits as two examples. We advised you at the nieeting of September 20 that it appeared that the parties were at loggerheads over the base rate and that no proposal made by the Company which included its base rate offer would be acceptable to the International, nor would a con- tract containing such a proposal be executed by the union. The Company felt that under the circum- stances it had no alternative but to exercise its right to terminate the existing collective bargaining agreement effective Friday, September 23, and im- plement its health and welfare package and base rate proposal. We also advised you at that time that the Company was implementing its withdrawal from the TOC-IWA Pension Trust. As soon as the Company's pension plan document is prepared, we will furnish a copy for your review and be willing to discuss its details. In any event, the level of bene- fits in that plan will not be less than those levels previously furnished you. Since the Company's plan is on a calendar-year basis, adoption of the plan may take place any time between now and Decem- ber 31 without loss to the employees. We of course stand willing to meet with the rep- resentatives of our employees at mutually conven- ient times and places to continue negotiations. The letter also stated Respondent's determination to hire permanent striker replacements. In a memorandum to Respondent's employees, dated September 21, Austin stated that Respondent and the Union were at impasse, and that employees should "con- tact us about returning, before a replacement is hired." Although most union members initially refused to cross the picket line, many of them began crossing it commencing approximately September 23. Gary John- son, Respondent's personnel safety director, talked with 50 or 60 employees who came to his office to inquire about returning to work, between September 23 and Sep- tember 26. He told the employees they would be re- turned to work on a seniority basis, as jobs were avail- able. There was some discussion with each employee concerning resignation from the Union, and each em- ployee was given union resignation forms prepared by Respondent's counsel and typed by Johnson, as more fully discussed below. Approximately 62 union members resigned their membership, of which approximately 50 used Respondent's forms. Several members went to the union hall and discussed the possibility of resigning. Prestrike union membership totalled approximately 160 of Respondent's employees. By letter to Dawson dated September 29, the president of the International's Regional Council No. III stated "Regional Council No. III has returned the authority as requested by IWA Local Union No. 3-6 on industry, re- gional bargaining between IWA Local Union No. 3-6 and Timber Products Corporation." On October 11 Dawson wrote a letter to Austin, stat- ing: Local Union No. 3-6, International Woodworkers of America, accepts the company's final offer as outlined in your letter of August 24, 1983 and reaf- firmed at the meeting of September 20, 1983 and in the September 21, 1983 letter of Phil Cass Jr. On October 13 Cass replied to Dawson: I am responding to your letter of October 11, 1983 addressed to Mr. Austin. The tenor of that letter is the acceptance of the company's final offer as outlined at the meeting of September 20, 1983, and as affirmed by letter of September 21, 1983. If you will review your notes of the meeting of September 20 and the letter of September 21, you will note that in addition to notice of implementa- tion of its final offer the company terminated its current collective bargaining agreement with Local TIMBER PRODUCTS CO. 777 3.6. You will also note that the company left open the question of handling , replacement workers. The company is reviewing the terminated contract to determine if there are any other changes it feels are necessary. You should be advised,, though, that the company has no intention of requiring any employ- ee; who has previously resigned from the Union or employee who worked during the strike to rejoin the Union. Consequently, the company will insist that all employees who worked during the strike and those who resigned from the Union will be eliminated from any Union security provisions in the contract. In light of that fact, the company has no desire to enter into any future dues checkoff ar- rangements with the Union. The Company will, of course, meet with you to discuss these matters in more detail. In its answer to the complaint, Respondent admitted the appropriate unit and the fact that the Union is recog- nized by Respondent as its employees ' exclusive collec- tive-bargaining representative. A. Alleged Changes in Work Rules and Benefits It is alleged in the complaint that the following changes unilaterally were made by Respondent without prior notice to, or bargaining with, the Union in viola- tion of Section 8(a)(5) and (1) of the Act: (a) On or about September 26, a workrule change - was initiated, denying unit employees working a 4- day week, the right to bump less senior employees for a fifth day of work. Respondent initially, in its answer, denied this allega- tion , but changed its answer at trial, and admitted the change of the rule . Respondent admitted in its answer, the fact that the Union is the exclusive bargaining repre- sentative of its employees. Such a rule is a work condi- tion subject to mandatory bargaining, and its unilateral change by Respondent was a violation of the Act, as al- leged. The violation does not depend on whether or not Respondent's offer of a contract was accepted by the Union, since the work rule was not encompassed by the contract offer. Unilateral change of past work practice was involved. (b) On or about September 29, Respondent unilater- ally implemented a new dental and vision plan cov- ering its unit employees. The situation relative to this allegation is the same as that for the work rule change discussed in (a) next pre- ceding. Respondent unilaterally changed a condition of work without notifying or bargaining with the Union, and at trial Respondent changed its plea to admit those facts. A violation of the Act as alleged is found. (c) On or about September 29, a workrule change was established , requiring; unit employees to remain at work performing other tasks during machine breakdowns instead of allowing them the option of going home or remaining at work. Dawson testified that this unilateral change wasmade by Respondent, and that a grievance concerning,it was filed and resolved , but a copy of the grievance was not offered into evidence. Keith Scheytt, who has been employed by Respondent since 1966, testified that, prior to the strike, employees had the option to go - home or remain at work if they were not able to run their machines because of break- down or lack of material to work on. Scheytt testified that such an occasion arose within 2 clays after he re- turned to work after ' the strike, but that his foremen, Calvin Hill,5 refused to give him the option of going home and insisted that he remain at work. Hill stated "it was a whole new program, and, we would just go by the way they were doing it now . . . it wasn't the same as it was before." Hill said the rule has been changed again since that incident, and now is the same as it was before the strike. Michael Hicks, president of, the Union and an employ- ee since 1970, corroborated Scheytt and related two poststrike incidents similar to the one related by Scheytt, but which involved Hicks' foreman Art Lancaster.6 Scheytt and Hicks were credible witnesses , and their testimony is accepted as accurate . Their testimony was not denied by Respondent. By unilaterally changing the workrule, Respondent violated Section 8(a)(5) and (1) of the Act as alleged in the complaint .? Whether or not any member of Respondent's management authorized, rati- fied, or knew about the .actions of Hill and Lancaster is irrelevant." Respondent argues that the incidents were isolated and did not reflect any change in company policy, but that, too is irrelevant. B. Alleged Refusal to Sign an Agreed-Upon Contract The complaint alleges that Respondent and the Union reached full agreement on a contract October 11, but that the Union has refused to sign the contract. As noted above, the fact that the Union now repre- sents, and at all , times material herein has represented, Respondent's unit employees is not in dispute. Respondent and the Union commenced negotiations for a new contract on May 31,9 the date of expiration of the then most recent contract of the parties . Negotiations continued on August 2 and 19, with agreement on most issues but with failure to agree on starting wages for new employees, a pension plan, and a health and welfare plan. On August 24 Respondent gave the Union its "final offer," but the parties met again on September 8 and ne- gotiated relative to the three remaining issues. An agree- ment was not reached then, nor on Sept ember 20, when the parties met again in' an attempt to settle the three issues. 5 Counsel stipulated that Hill is a Supervisor' within the meaning of the Act 6 Counsel stipulated that-Lancaster is a supervisor within the meaning of the Act 7 NLRB v. Katz, 369 U.S. 736 (1962). 8 Appalachian Power Co, 250 NLRB 228 (1980). 9 The fact that negotiations on local issues commenced May 16 does not affect any finding or conclusion. Those issues were of manor nature. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The September 20 meeting was a critical one. Kelty was the only witness who testified relative to events at that meeting, but it was apparent that, although he was a credible witness, he did not remember all the events of the day. Kelty testified that, after much maneuvering be- tween the parties, Respondent withdrew its offer on Sep- tember 8 to raise the base wage offer from $7 to $7.25, and the parties thereupon were back to Respondent's offer of August 24. Kelty,testified: JUDGE STEVENS: Q. Well, this last exchange- Mr. Kelty, it was my understanding from your ear- lier testimony that when you went into this with the employer, you said that we may be able to go along with your pension and trust fund agreements if you will back up on your $7 base wage proposal. A. That's correct. Q. This is what it was? A. Uh-huh. Q. And was there ever any indication that they were willing to change their approach on the base wage proposal? A. On the meeting of September 8 in one of my many conversations out in the hallway, I was led to believe from Mr. Joe Gonyea that there was some movement there. When I come back two weeks later, the meeting on the 20th, the conversation was no, that there was no movement at all with that; that I was left with the impression the company's position was in concrete over that issue, and they [sic] wasn't going to move at all. Q. All right. Well, in your earlier discussion you said that you understood that Mr. Gonyea indicated that there may be some movement. A. That's correct. Q. There was no agreement, as I take it. A. That's right, no agreement. Kelty earlier had testified relative to this matter: Q. So, basically you were back to what the em- ployer had offered you August 24? A. That's correct. Respondent's version of events is somewhat different. In his letter of September 21, quoted above, Cass stated to the Union that Respondent's position during the meet- ing of September 20 was that Respondent's proposal of September 8, as clarified September 20 relative to a shift differential, was Respondent's "final offer." Cass further stated in the letter that the "new proposal" of September 20, "having been rejected, was withdrawn," and that, further, Respondent's "final offer with respect to the health and welfare package is the package that was pre- sented to you on September 8 in detail." 10 Whichever version is accepted, it is clear that, as of the close of the meeting of September 20, Respondent in- sisted on a reduction in starting wage rates, and the 30 Although some clarifying statements and additional details were submitted to the Union and discussed by Respondent, it is 'clear that Re- spondent's offer of August 24 relative to pension, health, and welfare plans remained essentially the same throughout negotiations . The core ar- gument involved starting wages. Union insisted on a reduction only if those rates, what- ever they were, would be graduated up to the level of the expired contract. The parties were at impasse. A question is presented as to what Cass meant when he stated in his letter, "Our new proposal presented on the 20th preserving some historical spreads in base rate positions, having been rejected, was withdrawn." That letter was admitted into evidence without objection, and it was not challenged or contradicted by the Union. It must be accepted at its face value. Counsel for the Gen- eral Counsel argued in his closing statement that Re- spondent's offer of August 24 and its offer of September 20 were the same, and that Respondent's contractual agreement consisted of a $7 starting wage rate, Respond- ent's own pension, health, and welfare plans, and indus- try provisions relative to all other items Kelty's testimo- ny was ambiguous, but he appeared to say, as quoted above, that whatever Respondent offered on September 20, it was the same as the offer of August 24. It seems obvious that Respondent's basic hope for a contract at all times has been the same as it was on August 24, i.e., a $7 wage rate, and Respondent's own pension, health, and welfare plans. Respondent never has objected to the pro- visions of the industry agreement, other than those relat- ing to starting wages and the stated benefit plans, and Respondent agreed to accept the industry provisions. Cass' letter is not clear, but in view of what Respondent has hoped to obtain from the outset, and of the record, it seems that Cass' referral to something having been "withdrawn" was a referral to shift differentials, which never presented a real problem, so far as the record shows. The rate, not shift differentials, was the problem. It is clear, and it is found, that Respondent never with- drew its offer of August 24, expressly or impliedly. The fact that Respondent and the Union still were willing to negotiate with each other after September 20 is shown by the record. In his letter of September 21, Cass stated to Kelty, inter alia, "We of course stand will- ing to meet with the representatives of our employees at mutually convenient times and places to continue negoti- ations." The General Counsel's closing argument was limited to the question of law as to whether or not a bargaining contract offer, not withdrawn, can be accepted , after counteroffers have been made. Under the ordinary con- tract law, of course, an offer is extinguished by a coun- teroffer. However, the Board and courts, including the United States Court of Appeals for the Ninth Circuit, have established that usual contract law is not applicable under the circumstances of cases such as the one now being considered. Under those decisions and opinions, an offer to enter into a collective-bargaining agreement may be accepted within a reasonable time unless (1) it was ex- pressly withdrawn; (2) it was made expressly contingent on a condition subsequent; or (3) circumstances interven- ing between offer and purported acceptance would char- acterize the latter as simply unfair. I" However, Respond- " Presto Casting Co., 262 NLRB 346 (1982), enfd in relevant part 708 F 2d 495 (1983); NLRB Y Donkin 's Inn, 532 F 2d 138, 141-142 (9th Cir 1976), cert. denied 429 U S 895; Pepsi-Cola Bottling Co., 251 NLRB 187 (1981), enfd 659 F 2d (8th Or. 1981). TIMBER PRODUCTS CO. ent does not challenge that proposition. Rather, Re- spondent contends that Presto Casting and Pepsi-Cola do not control this case. That argument has merit. It is noted at the outset that as pointed out by Re- spondent's counsel, the complaint is narrowly drawn. Ilad-faith bargaining is not alleged. The complaint is lim- ited (other than the 8(a)(1) allegations discussed else- where) to an allegation that Respondent failed and re- fused to execute a "full and complete agreement" reached by Respondent and the Union. Pepsi-Cola and Presto Casting each involved a "full and complete agreement." The question here is whether or not Respondent and the Umon had reached full accord. Only if the parties arrived at an enforceable agreement would there arise a duty to sign the contract involved.12 Counsel for the Union argues, in effect, that the Union delegated its authority to Respondent to create pension, health, and welfare plans, Y 3 which the Union would accept in advance even though many important details were unknown at the time, as discussed infra. Authority for that proposition was given as Sumner Home,14 and counsel for the Union stated in her brief that in Sumner Home, "a union agreed to be bound by a contract includ- ing any language the employer wished respecting unre- solved issues." Sumner Home does not stand for the con- clusion urged by counsel for the Union. There, the Board stated, inter alia: Absent any proposals on the table on the several major open issues between the parties we fail to see how the promises exchanged on September 18, on the Union's part to accept any proposals that might be made and on the Respondent's part to make such proposals, can be taken as having created a com- plete bargaining agreement requiring only that the parties reduce their agreement to writing and sign it. Simply put, until the Respondent submitted its proposals to the Union there could be no agreement on the substantive terms of a collective-bargaining contract. Hence there could be no finding of a vio- lation predicated solely on a failure to reduce to writing and execute an agreed-upon contract. A delegation of authority is equivalent to a waiver of the right to negotiate on a mandatory subject of bargain- ing.15 A waiver of the right to negotiate a mandatory subject of bargaining may not be lightly inferred, and must be expressly stated in clear and unmistakable lan- guage.16 The evidence in this case does not disclose an express waiver of the Union's right to negotiate the spe- cific details of the pension, health, and welfare plans of- fered by Respondent. 12 H J Heintz Co v. NLRB, 311 U.S. 514 (1941), Orion Tool, Die Co, 195 NLRB 1080 (1972), Mercedes-Benz, 258 NLRB 803 (1981). See See 8(d), NLRA. 13 There is no ambiguity in Respondent's offer, so far as wages are concerned 14 Sumner Home for the Aged, 226 NLRB 876 (1976), enf denied 579 F 2d 762 (6th Cir. 1979) 15 Terms and provisions of a pension plan are a mandatory subject of bargaining Inland Steel Co, 77 NLRB 1 (1948), enfd 170 F.2d 247 (7th Cu. 1948) 16 Keller Crescent Co, 217 NLRB 685 (1975) 779 A comparison of'Respondent's proposals and the pen- sion, health, and welfare provision of the prior, con- tract17 indicates the skeletal nature of the proposals sub- mitted by Respondent on August 24. The provisions of the 1980-1983 contract incorporated by reference the Union's established plans. The health and welfare clauses specify the basis and amount of employer contributions. The pensions clause describes monetary increases in con- tributions, the amount per year of service to be paid as retirement benefits, and the options available to employ- ees who are terminated by plant closure. In contrast, the health and welfare proposals attached to Respondent's final offer described the amount of coverage employees and dependents would receive, but make no reference to the source of funding or the procedure for collection of benefits. The attachment concerning the proposed pen- sion plan change is a comparison of benefits under the union pension plan and the new plan, but it is silent as to the amount and basis of contributions to be made. Since funding and collection procedures would be of substan- tial significance to employees and their representatives, an agreement which is silent as to these, and other essen- tial terms, cannot be said to constitute a fully formed col- lective-bargaining agreement. At most, it was an agree- ment to make a contract.18 The record shows that Respondent had not created any pension plan as of August 24, and that the offer of that date was no more than what Dawson called it, i.e., an "outline." Much remains to be done to present a com- plete proposal, and to incorporate that proposal into a contract after both sides have reached agreement. Re- spondent's letter of September 21 to the Union states that, when the proposal plans were complete, they would be sent to the Union for review and discussion, and in fact they later were sent, but the Union never has commented upon, or discussed, the plains with Respond- ent. Certainly the Union never has waived its right to bargain concerning pension, health, and welfare plans. In view of the foregoing, it is clear that the premise of Pepsi-Cola and Presto Casting, i.e., full and complete agreement on the terms of a contract, is not present in this case. Respondent did not violate the Act by failing and re- fusing, as alleged, to execute a contract, since the parties had not reached full and complete agreement on a con- tract. 19 Verbally on September 20, and in writing on Septem- ber 21, Respondent advised the Union that it was termi- nating the expired bargaining agreement, effective Sep- tember 23. Thereafter, as the Union acknowledges in its brief on the basis of Bethlehem Steel C'o.,20 Respondent no longer was obligated to maintain the union-security 17 Arts XXIII and XXIV. Ss See Sumner Home, supra at 977 fn 5 is Pacific Coast Metal Trades District Council, 260 NLRB 117 (1982); Computer Services Corp., 258 NLRB 641 (1981); Mercedes-Benz, supra; Automatic Plastic Molding Co., 234 NLRB 681 (1978). 2° Bethlehem Steel Co., 136 NLRB 1500 (1962), enf in part sub nom Shipbuilders v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert denied 375 U S. 984 (1964) 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provisions of the contract.21 The fact that Respondent terminated the contract prior to the Union's acceptance of Respondent's August 24 offer did not, as noted by counsel for the Union, constitute withdrawal of the offer. However, it did extinguish the contract itself. The union- security provisions of the terminated contract could find their way into a new contract based on the offer and ac- ceptance, but until a new contract is signed, Respondent is not obligated to adhere to the former union-security provisions. D. Alleged Conditional Reinstatement The complaint alleges that since about September 23 Respondent has conditioned replacement reemployment of strikers on their resignation of union membership. Orville Nichols, who has been employed by Respond- ent approximately 26 years, testified he visited Johnson at the latter's office September 23 because he heard that Respondent was hiring employees, and Johnson offered him, a job on a shift different from the one he had been working, but that "it would be to my best interest to resign from the Union to avoid problems with the Union." Johnson stated that he could not return to work if he did not resign from the Union, and handed Nichols a union resignation form with copies for the Union and for Respondent. Nichols did as instructed, and returned to his job, which in the meantime became one on his' reg- ular shift. Scheytt testified he visited with Johnson in the latter's office on September 19, and Johnson gave him a union resignation form, stating that Scheytt must resign from the Union in order to return to work. Scheytt did not resign from the Union. John Adams, who has been employed by Respondent approximately 28 years, testified he talked with Johnson on the telephone 2 or 3 weeks prior to September 27 about returning to work, and Johnson said, "If I wanted my job back I'd have to resign [from the Union]." Adams said no thanks, and hung up the telephone. On September 27 he went to the plant, and talked with Johnson and the plant superintendent about returning to work. Johnson' asked if he would resign from the Union, and Adams replied no. Johnson said "it [a resignation] was for my own protection." Johnson asked if Adams would cross the picket line and Adams said no. Adams returned to work September 29. Daryl Campbell, a unit employee, testified he talked on September 23 with Doug Khokey,22 a supervisor, 21 On several occasions, Respondent raised with the Union the matter of replacement employees, and argues that since the subject was an out- standing one between the parties , it precluded a finding that there was a complete agreement between the parties for a bargaining agreement There is no convincing indication that agreement concerning replacement employees was intended as a contract item . Certainly, raising that ques- tion did not serve as a withdrawal of Respondent's offer of August 24. The matter was one that could be resolved outside the contract It had no effect on the union-security provision of the. expired contract, since as earlier noted, that contract was terminated on September 20 and 21. Re- spondent's right to retain permanent replacements is not contested by the Union, and is not in issue 22 Counsel stipulated that Knokey is a supervisor within the meaning of the Act about returning to work. Knokey said "if you want to come back . . . " and handed Campbell two forms, 'saying they were resignations from the Union, "They have nothing to do with the company. This is for your protection." Knokey then told Campbell to see Johnson, and sign a list. Campbell did not go to see Johnson. Johnson testified that several of the many employees he talked with about returning to work, including Andy Miller, told him they were threatened by the Union with fines if they crossed the picket line, and following con- sultation with the company attorney, he told employees, including Nicholas, Adams, and Scheytt, "for their own protection that they resign from the Union." Johnson denied telling any employee that he must resign from the Union in order to return to work. Two employees who refused to resign from the Union were reinstated before the strike ended. He did not refuse to reinstate any em- ployee, whether or not he resigned from the Union. He gave two copies of resignation forms to employees who told him they wanted to resign from the Union, one copy of the employee's own records, and one for the Union. Some employees returned one copy to Respond- ent. Knokey did not testify. Discussion Nichols, Scheytt, Adams, and Campbell were impres- sive witnesses, and their testimony is credited. It is found that Johnson and Knokey stated to them that they must resign from the Union in order to return to work. Such a statement is a violation of the Act.23 The strike commenced August 19 was an economic strike, not an unfair labor practice strike, as discussed above. The strikers therefore were entitled to reinstate- ment unless they had been permanently replaced while they were on strike. Many returning strikers were rein- stated, but not all of them were reinstated immediately on their reporting for work.24 It was Respondent's burden to show that returning strikers were not immedi- ately reinstated because they had been permanently re- placed, and that burden was not met. Respondent offered no evidence to justify its delay in returning strikers to their jobs, on the basis of business necessity.26 On this record, Respondent failed to meet the requirements of the Act when it did not reinstate the economic strikers immediately upon their unconditional offer to return to work. A remedial order therefore will issue, regardless of the fact that an 8(a)(3) allegation of failure or refusal to reinstate economic strikers is not alleged in the com- plaint. It is clear and I find that Respondent told employees their reinstatement was conditional upon their signing the form discussed supra. Whether or not fewer than all employees so were told is-immaterial. 23 Mark Twain Marine Industries, 254 NLRB 1095 (1981); NLRB V. Mar-Len Cabinets, 659 F.2d 995 (9th Cit. 1981). 24 This matter was not fully litigated, but appears that Adams' return to work was delayed because of Johnson 's requirement that he resign from the Union Possibly others also were delayed, but that is a matter that can be settled at the compliance stage of these proceedings 25 Laidlaw Corp, 171 NLRB 1366 (1968). TIMBER PRODUCTS CO. Respondent violated Section 8(a)(1) of the Act in re- quiring employees to sign the form it had prepared for them.26 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with their operations de- scribed in section I, above, have a close, intimate, and substantial relationship to tirade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent, Rockwood & Company and W. H. Gonyea Trust No. 1-17 d/b/a Timber Products Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 3-6, International Woodworkers of America, AFL-CIO-CLC is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by conditioning reinstatement of economic strikers upon, 26 Presto Casting Co, supra. 781 and by requiring that employees sign forms for, their res- ignation of union membership. 4. Respondent violated Section 8(a)(5) and (1) of the Act by implementing work rule changes and a new dental and vision plan covering unit employees without prior notice to or bargaining with the Union. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I recommend that Respondent be or- dered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. I recommend that Respondent be ordered to make whole all unit employees for any losses they may have incurred as a result of Respondent's requiring that they resign from the Union as a condition of reinstatement, with interest thereon to be computed in the manner pre- scribed in F W. Woolworth Co., 90 NLRB 289 (1950), plus interest as set forth in Isis Plumbing Co., 138 NLRB 716 (1962), and see generally Florida Steel Corp., 231 NLRB 651 (1977). It is recommended that all allegations of the complaint not found to have been proved be dismissed in their en- tirety. [Recommended Order omitted from publication.]