Timber Products Co.

1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Rockwood and Company, a Delaware Corporation and WHG Trust Partnership and W. H. Gonyea, Trust Number 18, Co-Partners d/b/a Timber Products Co. and Local Union ' No. 3- 436, International Woodworkers of America, AFL-CIO. Cases 36-CA-5372 and 36-CA- 5373 25 September 1987 DECISION AND ORDER BY CHARIMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 9 June 1987 Administrative Law Judge Jay R. Pollack issued the attached decision. The Re- spondent and the Charging Party filed exceptions and supporting briefs, and the General Counsel, the Respondent, and the Charging Party filed answer- ing briefs. 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, I and conclusions2 and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Rockwood and Company, a Delaware corporation and WHG Trust Partnership and W. H. Gonyea, Trust Number 18, Co-Partners d/b/a Timber Products Co., Medford, Oregon, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(e): i In adopting the judge's finding that the Respondent did not violate the Act by refusing to extend a leave of absence previously granted to Union Business Agent Dennis Dawson, we find it unnecessary, to pass on whether the provision regarding leaves of absence-in the parties' collec- tive-bargaining agreement is lawful, as no issue regarding its legality has been raised in this case 8 The Respondent excepted to the judge's conclusion that it violated Sec. 8(a)(5) and (1) of the Act by reducing the number of dryer off- bearers without prior notice to and bargaining with the Union The Charging Party excepted to the judge's conclusion that the General Counsel did not establish a violation of the Act in the Respondent's refus- al to extend Union Business Agent Dawson's leave of absence in May 1986. We find no merit to these exceptions In the absence of additional exceptions, we adopt pro forma the judge's findings with respect to the remaining allegations of the complaint a The judge included in his remedial Order a visitatorial clause author- izing the Board, for compliance purposes, to obtain discovery from the Respondent under Federal Rules of Civil Procedure under the supervi- sion of the United States Court of Appeals enforcing this Order. Under the circumstances of this case, we find it unnecessary to include such a clause Accordingly, we shall modify the judge's recommended Order by deleting this provision "(e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." James C. Sand, for the General Counsel. Douglass. Mitchell, Esq. (Cass, Scott, Woods & Smith), of Eugene, Oregon, for the Respondent. Monica A. Smith, Esq. (Kulongoski, Durham, Drummonds & Colombo}, of Portland, Oregon, for the Union. DECISION STATEMENT OF THE CASE JAY.R. POLLACK, Administrative Law Judge. I heard this case in trial- at Medford, Oregon, on February 12, 1987. The charges were filed by Local Union No. 3-436, International Woodworkers of America, AFL-CIO (the Union) on September 8, 1986. The consolidated com- plaint, which issued on November 28, 1986, alleges that Rockwood and Company, a Delaware corporation and WHG Trust Partnership and W. H. Gonyea, Trust Number 18, Co-Partners d/b/a Timber Products Co. (Respondent) has violated Section 8(a)(5), (3), and (1) of the National Labor Relations Act (the Act). The complaint alleges that Respondent violated Sec- tion 8(a)(5) and (1) by making certain unilateral changes in wages, hours, or working conditions' without prior notice to and bargaining with the Union. The complaint further alleges that Respondent violated Section 8(a)(5), (3), and (1) of the Act by refusing to grant Dennis Dawson, an employee, an extension of his leave of ab- sence to serve as a union official. The parties were permitted during the hearing to in- troduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Posttrial briefs were filed on behalf of the General Counsel, the Union, and Re- spondent. The General Counsel and Respondent filed reply briefs. On the entire record of the case,' and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. 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, parti- cleboard, and other wood products. During the 12- month period preceding the issuance of the complaint, Respondent sold and shipped goods and products valued in excess of $50,000 directly to customers located outside the State of Oregon. Respondent admits and I find that at all times material it has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. i On March 16, 1987, the General Counsel filed a motion to correct transcript As the motion was unopposed, the corrections contained there are granted and incorporated, sua sponte, into the record as JD Exh I 285 NLRB No. 138 TIMBER PRODUCTS CO. Respondent admits and I find that at all times material the Union has been a labor organization within the mean- ing of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background From 1967 until September 1984, Respondent recog- nized Local 3-6 of the International Woodworkers of America, AFL-CIO as the exclusive bargaining repre- sentative of an appropriate unit of its employees at Med- ford, Oregon.2 In September 1985, Local 3-6 and Local 3-436 merged with the surviving entity bearing the Union's name. In June 1986, the Regional Director for Region 19 of the Board issued a decision and amendment of certification reflecting the proper name of Respondent and the proper name of the Union for the appropriate bargaining, unit, which unit had previously been certified in 1965. Respondent does not challenge the union merger of 1985 or the amendment to certification of 1986. Rather, Respondent took the position that it lawfully withdrew recognition from the Union in September 1984. This is the third in a series of refusal-to-bargain cases concerning this bargaining unit. In Timber Products Co., 277 NLRB 769 (1985) (Timber Products 1), the Board found that on October 11, 1983, Local 3-6 had unequivo- cally accepted Respondent's final contract offer and that an enforceable contract was formed. The Board then found that Respondent was obligated to execute and give retroactive effect to the collective-bargaining agreement, and to comply with the dues-checkoff provision of the contract. Respondent was also required to remit to the Union the dues owing for each employee who executed a dues-deduction authorization, together wit It interest. The Board also found that Respondent violated Sec- tion 8(a)(1) of the Act by conditioning reinstatement of economic strikers on their resignation of union member- ship and by delaying reinstatement of some economic strikers. The Board ordered Respondent to make whole economic strikers for losses incurred as a result of Re- spondent's requirement that they resign from the Union as a condition of reinstatement. Finally, the Board or- dered that Respondent make whole employees who suf- fered losses as a result of Respondent's having unilateral- ly established a work-rule change denying employees working a 4-day week the right to bump less senior em- ployees for a fifth day of work. In Timber Products Co., 281 NLRB 862 (1986), Timber Products Co. II, the Board found that Respondent unlaw- fully withdrew recognition from the Union on Septem- ber 6, 1984, "at a time when it was unlawfully refusing to execute and abide by a previously agreed-upon en- forceable contract." The Board ordered Respondent to recognize and bargain with the Union and to reinstate 2 The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec. 9(b) of the Act. All employees of Respondent, including temporary and part-time employees, employed at its operation at Medford, Oregon, excluding office clerical employees, professional employees, guards and super- visors as defined in the Act 1115 the terms and conditions of employment in the collec- tive-bargaining agreement reached with the Union on October 11, 1983, and to make the employees whole for any wages and benefits lost as a result of Respondent's unlawful unilateral changes. Respondent was ordered to cease and desist from unilaterally changing terms and conditions of employment of the bargaining unit employ- ees. Further, the Board ordered Respondent to restore to each economic striker who was reinstated subsequent to September 3, 1984, his prestrike company seniority and make each individual whole. Respondent was ordered to rescind the termination of the employment, preferential reinstatement, and seniority rights of former economic strikers who were on layoff status at the time of the 1983 strike. After the hearing in the instant case, on February 23, 1987, the United States Court of Appeals for the Ninth Circuit enforced the Board's Order in Timber Products I in an unpublished memorandum decision. Timber Prod- ucts II is now pending before the court of appeals pursu- ant to a petition for enforcement. The collective-bargaining agreement, which the Board and now the court have ordered Respondent to sign and comply with, had an expiration date of May 31, 1986. The agreement provided for its automatic extension from year-to-year thereafter, absent reopening by one party or the other at least 60 days prior to the expiration date. Neither party reopened the contract. Respondent did not deny the automatic renewal of the contract but rather relied on its positions in Timber Products I and Timber Products H. The court having enforced Timber Products I, it is clear that the bargaining agreement has, by its - terms, been renewed until May 31, 1987, and year-to- year thereafter absent reopening.3 The instant case involves allegations that Respondent unilaterally changed terms and conditions of employment without prior bargaining with the Union. There are four allegations of unilateral changes of the contract and five allegations of changes in past practices that were not spe- cifically incorporated in the contract. Finally, the com- plaint alleges that Respondent violated Section 8 (a)(3) as well as Section 8(a)(5) and (1) of the Act by denying Dennis Dawson, an employee on leave of absence, to perform duties as an elected union official, an extension of his leave of absence originally granted in 1983. B. The Alleged Changes in the Contract 1. The use of temporary employees in unit positions The bargaining agreement provided with respect to the subcontracting of work: The Employer agrees not to contract work out of the bargaining unit that has the effect of depriving regular employees of jobs. This does not prevent the use of contractors in specialized maintenance or a Although the circuit court has enforced the Board's order in Timber Products I, leaving little doubt that it will enforce the Board order in Timber Products II, at least with respect to the bargaining obligation, there has not been, at the time of this decision, compliance with the Board's Order 1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD repair work, the installing of equipment and/or ma- chinery, construction, or any similar work. The parties stipulated that in April 1986, Respondent went from a 5-day to a 7-day week in its particleboard department. Shortly thereafter, Respondent made a simi- lar change in its plywood department. In April 1986, based on anticipated strong market for its particleboard and a belief that the strong market would last only through the end of 1986, Respondent, without notice to or bargaining with the Union, decided to contract out fill-in work in the lowest paying, unskilled positions. To this end, Respondent contracted work to the Southern Oregon Temporary Services. These temporary employees are not carried on Respondent's payroll, but rather on the payroll of Southern Oregon Temporary Services. The employees are utilized to substitute for Re- spondent's employees who are absent because of illness, injury, or the like. Alex Austin, Respondent's resident manager, testified that no regular employees have been displaced or reclassified as a result of this subcontracting. However, as the General Counsel correctly points out, there were unreinstated strikers entitled to reinstatement under the Board's Order in Timber Products II who were deprived of work during this time period. Further, as the General Counsel correctly points out, the bargaining unit includes temporary and part-time employees as well as regular full-time employees. Based on the unremedied unfair labor practices, the bargaining unit description and the lack of any past prac- tice of using employment services, I find that the bar- gaining agreement bars Respondent from the instant sub- contracting for temporary services without agreement of the Union. Next, Respondent argues that its decision to subcon- tract this work turned on a change in the scope of its business and is, therefore, privileged under the Board case Otis Elevator Co., 269 NLRB 891 (1984), and its progeny. In Otis Elevator, the Board held that management deci- sions that affect the "scope, direction or nature of an en- terprise" are excluded from the mandatory bargaining obligation of Section 8(d) of the Act. However, where there is specific language contained in the contract, which the employer's decision modified, the Board will find a violation of Section 8(a)(5) and Section 8(d). In the instant case, whether or not Respondent's subcon- tracting of work to the temporary services was a manda- tory subject of bargaining within the meaning of Otis El- evator, Respondent had agreed not to deprive employees of, jobs during the term of its contract and cannot, in midterm, modify that contract. The unreinstated strikers were employees within the meaning of the Act and within the meaning of the collective-bargaining agree- ment. 2. Plywood department variable workweek The contract provides that employees, other than those in certain departments, shall work a regular 5-day week beginning on Monday. The parties stipulated that in August 1986, the plywood drying operation converted from a 5- to a 7-day week with schedule changes necessi- tated thereby. The Union was given no notice or oppor- tunity to bargain about this change. In the particleboard department the parties had an agreed-on procedure for coping with an extended schedule. However, no agree- ment or past practice was applied in the plywood drying operation. Respondent offered no defense to this allegation other than its contention that it was not obligated to bargain with the Union; contentions that have been rejected by the Board in Timber Products I and II. Accordingly, I find that Respondent has unilaterally changed the work- week in the plywood department, without prior notice to and bargaining with the Union, in violation of Section 8(a)(5) and (1) of the Act. 3. Sunday overtime pay The parties stipulated that Respondent has not paid time and a half for regular Sunday work in the particle- board department since it returned to a 7-day schedule in April 1986. Similarly, the same procedure has been fol- lowed in the plywood department since August 1986. The bargaining agreement provides for Respondent to pay time and a half for all Sunday work. Here, again, Respondent offered no defense other than those previously rejected in Timber Products I and II. Accordingly, I find that Respondent has unilaterally changed the contract regarding Sunday overtime pay in violation of Section 8(a)(5) and (1) of the Act. 4. Bump back procedure The contract provides an employee whose position has been curtailed to return to that position when it reopens. This right is separate and apart from the bidding proce- dure for jobs that become vacant when an incumbent leaves the position. The parties stipulated that this bump back procedure was not used either for the restaffing of the particleboard return to a 7-day schedule, or "for other independent opportunities to return to positions during 1986." Here, again, Respondent offered no defense to this al- legation other than those already rejected by the Board. Accordingly, I find that Respondent has unilaterally changed the contract in violation of Section 8(a)(5) and (1) of the Act. C. The Alleged Changes in Past Practice 1. Drug and alcohol testing program Effective June 12, 1986, Respondent implemented a mandatory drug and alcohol testing program for certain classifications of new employees and for existing employ- ees whenever suspected by management to be under the influence of alcohol or other drugs. In this case, Re- spondent argues that the portions of its drug and alcohol testing program, which apply to preemployment physi- cals, are not subject to bargaining. In support of its argument, Respondent points out that the right to hire is vested solely in the Employer accord- ing to the express terms of the agreement. Further, new hires do not become members of the Union until the 31st day after they are employed. Finally, it has required pre- TIMBER PRODUCTS CO ' 1117 hire physical exams for the past 10 years and has `never bargained with the Union over prehire physicals. First, it is questionable whether Respondent should be able to argue severability regarding its drug testing plan. Respondent was subject to a broad order requiring it to bargain with the Union prior to changing any term or condition of employment. Its institution of a drug testing plan clearly violates that order. To argue that part of its plan could be lawful seems contrary to general principles of law. The plan was not initiated in separate and distinct parts. Further, it is a generally accepted principle of law that ambiguities should be resolved against the wrongdo- er who caused or created the uncertainties. See, e.g., East Wind Enterprises, 268 NLRB 655 (1984); Rikal West, Inc., 274 NLRB 1136 (1985). For purposes of analysis, I assume that the drug test- ing of applicants is severable from the testing of employ- ees. The General Counsel argues that an Employer's ob- ligation, to bargain with the Union that represents actual employees includes the right to bargain about the terms on which employees will enter the unit, i.e., the condi- tions that must ' be met before the employees will be hired. Further, the General Counsel argues that unit em- ployees have "vital" concerns about changes in the workplace and the means the Employer will use for screening out drug users. Thus, the General Counsel argues that drug testing, even if, restricted to applicants, "vitally affects" bargaining unit employees. The Supreme Court has held that an employer is re- quired to bargain with the union about a proposal that "settles, [a] term or condition of employment" or "regu- lates the relations between employers and employees." NLRB v. Borg-Warner Corp., 356 U.S. 342, 350 (1958). See Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 178 (1971). ("In general terms [Section 8(d)] in- cludes only issues that settle an aspect of the relationship between the employer and employees.") Applying this formula, the Board has held, with court approval, that "proposal cover[ing] the obtainment of employment" are mandatory subjects of bargaining. Houston, Associated General Contractors, 143 NLRB 409, 411 (1963), enfd. 349 F.2d 449 (5th Cir. 1965). See also Tom Joyce Floors, 149 NLRB 896 (1964), enfd. 353 F.2d 768 (9th Cir. 1965); Broadway Motor Truck v. NLRB, 582 F.2d 720, 726 (1980); S. S. Kresge Co. v. NLRB, 416 F.2d 1125, 1230 fn, 7 (6th Cir. 1969). In Houston, AGC, supra, the Board held that a union's demand for a hiring hall was a mandatory subject of bargaining, rejecting the employ- er's contention that mandatory subjects are limited to those that arise after an actual employment relationship is established. The Board reasoned supra at 412: [s]ince "employment" connotes the initial act of em- ploying as well as the consequent state of being em- ployed, that the hiring hall relates to the conditions of employment. . . . Certainly, the matter of what standards are to be applied in determining priorities for employment must of necessity regulate relations between the employer and employees. In this regard, we do not deem the Supreme Court [in the Borg-Warner case] to have limited its definition of "employees" to those individuals already working for the employer. Rather, the, Court contemplated prospective employees as also within the definition. Subsequently, the Board made it clear that specific as- pects of the hiring process in a hiring hall operation are also mandatory subjects of bargaining. Pattern Makers (Michigan Pattern Mfrs. Assn.), 233 NLRB 430, 435-436 (1977), enfd. in pertinent part 622 F.2d 267 (6th Cir. 1980). In Lockheed Shipbuilding Co., 273 NLRB 171 (1984), the Board found that an employer violated Section 8(a)(5) by unilaterally implementing new medical screen- ing tests "for the purpose of terminating new employees or refusing to hire applicants for employment." Under the contractual hiring procedure, "Lockheed" was obli- gated to pay at least 4 hours' pay to any employee who reported for work. Apparently as an accommodation to that contractual requirement, employees dispatched to Lockheed ordinarily were considered as being hired and then if problems arose 'during the application process those employees were terminated, being paid at least the minimum reporting pay called for by the contract. Thus for purposes of the Lockheed case, there was no distinc- tion of significance between an employee who was dis- patched but never hired and, on the other hand, a dis- patched employee who was hired but then terminated as a result of events occurring during the application proc- ess. See Lockheed Shipbuilding Co., 278 NLRB 18, 19 fn. 3 (1986). Based on Houston, AGC and Lockheed, the General Counsel argues that if a demand for a hiring hall is a mandatory subject of bargaining, then a demand to bar- gain over drug testing of applicants, in the absence of a hiring hall, should likewise be a mandatory subject. In both situations, the union seeks to bargain about the con- ditions for hiring into the bargaining unit. Respondent seeks to distinguish Lockheed and other hiring hall cases on the ground that the Lockheed's prehire screening would deprive union members of employment. First, that argument assumes that applicants using hiring halls are union members. That assumption simply cannot be made. Exclusive hiring halls are prohibited from discriminating in favor of union membership, just as employers are pro- hibited from discriminating for or against union member- ship. It should be obvious that unit employees have vital concerns about drugs in the workplace and the means by which the employer will use for screening out drug users. Based on the Lockheed cases, it would appear that drug testing or screening of applicants would be a man- datory subject of bargaining. The issues for bargaining are not simply whether testing should take place but in- clude significant issues of privacy and confidentiality. Thus, the question presented is whether the Union has waived the right to bargain over screening of job appli- cants. The only evidence on this point is that the Union has not previously bargained over preemployment physicals. However, these physicals have never before included drug testing which raises serious technical problems and legal complications. Thus, no waiver can be implied from the prior inaction. Waiver must be clear and unmis- 1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD takeable. See, e.g., NLRB v. Item Co., 220,17.2d 956, 958- 959 (5th Cir. 1956), cert. denied 352 U.S. 917 (1956); C & C Plywood Corp., 148 NLRB 414, 416-417 (1964), enf. denied 351 F.2d 224 (9th Cir. 1965), revd. 385 U.S. 421 (1967). Silence in the bargaining agreement does not -meet that test. The contract language is far too vague to imply the waiver argued by the Employer. Although the Employer has the right to hire, its rights are not limitless. It goes without saying the Employer cannot discriminate regard- ing race, sex, age, or union affiliation. The Union has clearly not waived the statutory rights of applicants and the Union has not waived the rights of employees re- garding the technical and legal questions raised by drug testing. To the extent that employees have individual constitutional rights, state and Federal, the Union cannot waive such rights. Thus, I would find no waiver here sufficient to permit drug testing of applicants without prior notice to and bargaining with the Union. Cf. Loco- motive Engineers v. Burlington Northern RR Co., 117 LRRM 2739 (D. Mont. 1984). Additionally, imposition of a drug testing program would be subject to the griev- ance and arbitration clause of the collective-bargaining agreement, if Respondent were honoring the agreement as required by the Board and court. 2. Reduction in number of offbearers One phase of Respondent's plywood operation in- volves drying panels of veneer that are ultimately glued and pressed together to form finished plywood. After the panels pass through a dryer, they emerge on a lathe. The offbearer slides each panel off the lathe and onto a par- ticular cast, depending on the, grade of the panel. The offbearing and grading functions thus occur simulta- neously. The rate at which the panels must be removed from the lathe depends on the speed of drying and the width of the panels being dried. Since July 1986 Respondent has reduced the number of offbearers from two to one when wide slow-drying panels are run. This decison was not based on union con- siderations, but rather on a business decision that when the dryer was running at its slowest speed, only one off- bearer was necessary. Business Agent Dennis Dawson testified that parallel job content changes had been recognized and bargained in the past. Gerald Clouse, Dawson's predecessor as business agent, testified that Respondent had negotiated about this specific job in relation to a previous reduction of staffing on the dryer, with the result being a pay raise_ in recognition of greater job responsibilities. I - The question here is not whether this was a valid deci- sion or whether the resulting burden on an employee was oppressive. Rather, the question is whether Re- spondent was obligated to bargain before making such a change. The uncontradicted testimony that such changes were bargained in the past resulting in agreements over job content and wages establishes a sufficient basis for finding that Respondent, if it was recognizing the Union as required by law, would have been obligated to bar- gain about the change in job content for the offbearers. Respondent cites Western Publishing Co, 269 NLRB 355, 357 (1984), for the proposition that there is insuffi- cient evidence of a change in its past practice. However, I find the case distinguishable on the facts. In, the West- ern Publishing case, the General Counsel alleged a change in manning a particular press but the respondent's president testified that the company had for the past sev- eral ' years run the press with only one employee as the need arose. The president's testimony was not rebutted. In the instant case, the parties bargained about this pre- cise issue in the past and the Employer, not the Union, abandoned its position.Thus, the facts here establish that an actual change took place and that the parties have a history of bargaining before such changes take place. 3. The change in job bidding procedures The contract provides for a bidding procedure but does not distinguish between permanent and temporary bidding except in that there are different provisions for an employee who takes a job temporarily and one who, bids on a permanent situation in terms of what happens when the job for which he has bid subsequently ends. In April 1986, the Employer expanded its schedule in the particleboard department from a 5- to a 7-day week. The Company anticipated a strong particleboard market through the summer of 1986, but was uncertain that the market would remain strong through the fall of 1986. In an effort not to mislead any employees who might bid into the job, the company posted the provisions as "tem- porary" with the proviso that on September 1, 1986, it would decide whether to make the positions permanent. If the job became permanent, the employee filling the temporary position would assume the permanent posi- tion. I The General Counsel does not dispute that Respond- ent had the authority to decide whether to post the new positions as temporary or permanent. Apparently, the General Counsel contends that the jobs should have been bid as permanent or temporary but not temporary with the possibility of becoming permanent. Respondent con- tends that even if this was considered a change, the change was not material, substantial , or significant, citing Rust Craft Broadcasting of New York, 225 NLRB 327 (1976). This particular allegation reveals the difficulty in this case raised by the continuing refusal to bargain and con- tinuing litigation . The judge is now placed in the position of an arbitrator. I am called on to decide whether the contract, which permits the Employer to bid jobs as tem- porary or permanent, bars the Employer from posting a job as temporary and later making it permanent, without reposting. The parties have given me no evidence as to the intent of their collective-bargaining agreement. Rather, the Union argues this was never done before. On the other hand, Respondent argues it has the authority to do it, was only being fair to its employees, and, in any event, the alleged change is so insignificant that it cannot be a violation of the Act. Although I believe it is not the Board's province to sit as an arbitrator for such minor al- leged breaches of contract, the circumstances of this case have-placed me in that position. I reluctantly find that the posting by Respondent was not barred by the con- tract and that even if viewed as a change was not so ma- TIMBER ^ PRODUCTS _CO. terial, substantial, nor significant to warrant a finding of a violation of the Act. This appears to be a problem that Respondent and the Union can resolve themselves. If the Union cannot resolve the matter, it can utilize the griev- ance and arbitration procedures of its contract, which the Ninth Circuit has now ordered Respondent to exe- cute and comply with. Although I find no violation of the Act, it does not follow that an arbitrator will find no violation of the contract. 4. The assignment of overtime by seniority The General Counsel alleges that Respondent had a past practice of assigning overtime to the most senior employee,on a full-shift basis. The General Counsel of- fered three witnesses, Dennis Dawson, Gerald Clouse, and Mario Gonzales, to testify that the past practice was the first offer of overtime for a full shift to the senior op- erator and then to offer a split shift to two operators after the senior operator had declined a full shift. These witnesses admitted that in most instances the shift was split between two operators. Gonzales was shown a writ- ten policy statement in October 1986, which revealed that the policy was to first offer a split shift. He testified that he had never seen this policy until an October 1986 dispute including employee Nicho Banuelos. In my opin- ion, the General Counsel's witnesses testified concerning their understanding of the past practice, but did not have actual knowledge of the past practice. On the other hand, Respondent offered more credible testimony that the past practice was to offer a split shift to the two operators and to give an operator a full shift if a split shift was declined. In most instances, the shift was split between two operators. Production Superin- tendent Fred Johnson credibly testified that since 1971 the practice has been to attempt to split overtime shifts in order to avoid having one employee work a 16-hour shift. A policy to this effect has been posted in the fore- man's office since 1971. It was a copy of this policy statement that was shown to Gonzales in October 1986. The posting place is not usually frequented by employ- ees, but is regularly seen by the foremen, the persons who must fill the overtime positions. I credit the testimo- ny of Johnson concerning the past practice, consistent with the posted document and, therefore, discredit the testimony in conflict therewith. 1 therefore find no viola- tion of the Act. D. The Refusal to Extend Dennis Dawson's Leave of Absence The collective-bargaining agreement provides: In the event an employee is elected to bona fide Union office requiring his or' her absence from work in order to perform the duties of such office, he or she shall be granted leave of absence without loss of seniority, provided such leave of absence shall not exceed one term of office. This may be extended by mutual agreement between the Union and Employ- er. On June 1, 1983, Dennis Dawson assumed the elective office of financial secretary of the Union's predecessor, 1119 Local 3-6. By a letter dated May 24, 1983, he personally requested a leave of absence through June 1, 1986, in ac- cordance with the collective-bargaining agreement. Re- spondent granted the leave without qualification. In 1985, as mentioned earlier, Local 3-6 merged with Local 3-436, and Local 3-436, the Union here, succeeded to the bargaining rights and obligations with Respondent. As a result, Dawson lost his position as financial secre- tary. On September 12, 1985, Dawson was elected to the executive committee of the Union. However, that posi- tion is not a full-time position and does not require ab- sence from work in order to perform the duties of execu- tive committeeman. Dawson was also appointed a busi- ness agent of the Union (not an elected position). In a letter dated May 28, 1986, on the Union's letter- head, Dawson requested an extension of his leave of ab- sence for another 3 years. Respondent did not respond to this request. Austin, Respondent's resident manager, testi- fied that Respondent did not respond to the request be- cause Respondent did not recognize the Union. Accord- ing to Austin, Respondent would have answered the letter had Dawson made the request on his own behalf. In any event, according to Austin, Respondent would have denied the request because the purpose of the leave had changed, i.e., Dawson no longer was a full-time elected union official but rather a paid employee of the Union. Dawson has never requested to return to work.4 Again, if Respondent were complying with the contract, this dispute would be subject to the grievance and arbi- tration provisions of the agreement. In support of her argument that Respondent violated the Act in refusing to grant Dawson another 3 years' leave, the General Counsel presented, evidence that Re- spondent harbored animus against Dawson because of the 1983 and 1984 negotiations. However, that evidence was so weak that it does not bear repeating, here. Suffice it to say that the evidence amounted to' no more than some discourtesy towards Dawson _ by Rtespondent's agents. More important, the evidence establishes that Re- spondent was merely acting to avoid any equivocation in its stand that it had no agreement with the Union and had lawfully withdrawn recognition in 1984. The General Counsel further argues than Respondent has never in the past even questioned a leave-of-absence extension or a leave of absence for a replacement' busi- ness agent, even though not elected. However, the evi- dence does not establish that such a request such as Dawson's was ever made or granted in, the past. Re- spondent had granted extensions for financial managers in the past, but that position is the full-time: elected posi- tion contemplated by the bargaining agreement. Re- spondent has also granted leaves of absences for employ- ees to work as organizers, not an elected position, but these leaves of absences were for short periods of time. 4 The General Counsel seeks an order requiring Respondent to return Dawson to its employ at the end of Dawson's leave of absence. Dawson has never asked to return to work and there has been no refusal by Re- spondent to properly return Dawson to employment I refuse to antici- pate that a violation of the Act may occur and do not address those issues Rather, the only question presented here is whether Respondent violated the Act in not granting Dawson an extension of his leave of ab- sence. 1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent argues that its position is completely con- sistent with the collective-bargaining agreement. The Union concedes that an extension of the leave of absence was in the Respondent's discretion. There is no evidence to establish that Respondent refused to grant the exten- sion for any reason other than the fact that Dawson was no longer occupying the full-tune elected position for which the leave of absence was provided for in the con- tract. Accordingly, I find that the General Counsel has not established a violation of the Act in Respondent's re- fusal to -extend Dawson's leave of absence in May 1986. On the foregoing findings of fact and on the entire record, I make the following CONCLUSIONS OF LAW 1. The Respondent, Rockwood and Company , a Dela- ware corporation and WHG Trust Partnership and W. H. Gonyea, Trust Number 18, Co-Partners d/b/a Timber Products Co., is an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act. 2. Local Union No. 3-436, International Woodworkers of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(5) and (1) of the Act by using temporary employees in unit positions, con- verting from a 5- to a 7-day week in its plywood depart- ment, changing its Sunday overtime pay, changing its bump back procedure, instituting a drug and alcohol test- ing program, and reducing the number of offbearers, without prior notice to, and bargaining with, the Union. 4. Respondent did not violate the Act except as specif- ically found above. THE REMEDY Having found that Respondent has engaged in unfair labor practices, it is recommended that Respondent be ordered to cease and desist,therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. As mentioned earlier, this is the third case before the Board arising from the dispute in 1983. Although' previ- ously ordered to cease making unilateral changes and to reinstate the terms and conditions of employees provided for in the October 11, 1983 agreement, Respondent has continued to violate the Act. Accordingly, in addition to a broad cease-and-desist order, my order provides -that Respondent shall honor the existing bargaining agree- ment unless and until that agreement shall cease to be le- gally effective. In this regard, there appears to be no dis- pute that the agreement has itself automatically been re- newed, and is therefore now effective until May 31, 1-987, and will thereafter automatically be renewed for an additional year, absent timely prior notice. To remedy Respondent's refusal to honor the contract and its unilateral changes, Respondent must make whole all unit employees, for any losses they may have suffered as a consequence thereof,5 with appropriate interest. 5 See generally, Ogle Protection Service, 183 NLRB 682 (1970), enfd 444 F 2d 502 (6th Cir 1971) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER The Respondent, Rockwood and Company, a Dela- ware corporation and WHG Trust Partnership and W. H. Gonyea, Trust Number 18, Co-Partners d/b/a Timber Products Co., Medford, Oregon, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Withdrawing recognition from and refusing to rec- ognize and bargain with Local 3-436, International Woodworkers of America, AFL-CIO as the exclusive bargaining representative of its employees in the follow- ing appropriate unit: All employees, including temporary and part-time employees; excluding office clerical em- ployees, professional employees, guards and' supervisors as defined in the Act. (b) Refusing to honor and apply the current agreement or any future collective-bargaining agreement to which it may be bound. (c) Unilaterally, without giving prior notice to or af- fording the Union an opportunity to bargain, changing any term or condition of employment of employees in the appropriate unit. (d) In any manner interfering with, restraining or co- ercing employees in the exercise of rights guaranteed by Section 7 of the Act (e) In any manner refusing to,comply with the Board's remedial orders in Timber Products 1 (277 NLRB 769) and Timber Products II (281 NLRB 862), as enforced by the United States court of appeals. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Immediately recognize the Union as the exclusive representative of Respondent's employees in the appro- priate ' unit, and bargain collectively with the Union in good faith with respect to all mandatory subjects affect- ing those employees' wages, hours of work, and other terms and conditions of employment. (b) Reinstate the terms and conditions of employment of the employees in the above appropriate unit which are provided for in the parties' collective-bargaining agree- ment reached on October 11, 1983, and make the em- ployees whole for any wages and benefits lost, in the manner set forth in this decision, as a result of all its un- lawful unilateral changes. (c) Preserve and, on request of the Board or its agents, make available all payroll and other records necessary or helpful in determining the amounts necessary to make employees whole under the terms of this Order. (d) Post at its Medford, Oregon facility copies of the attached notice marked "Appendix."7 Copies of said 6 All motions inconsistent with this recommended Order are denied 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 purposes 7 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- Continued TIMBER PRODUCTS, CO. notice on forms provided by the Regional Director for Region 19, after being duly signed by its authorized rep- resentative, shall be posted immediately upon receipt and be maintained for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 19, in writing, within-20 days from the date of this Order what steps Respondent has taken to comply. For the purpose of determining or securing compliance with this Order, the Board, or any of its duly authorized agents, may obtain discovery from Respondent, its officers, agents, successors or assigns, in the manner provided by the Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervision of the United States court of appeals enforcing this Order, as enforced by the court. a] 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 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 or- dered 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 representatives of their own choice To act together for other mutual aid or protec- tion 1121 To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT withdraw recognition from and refuse to recognize and bargain with Local 3-436, International Woodworkers of America, AFL-CIO as the exclusive bargaining representative of our employees in the follow- ing appropriate unit: All employees, including temporary and part-time employees; excluding office clerical em- ployees, professional employees, guards and supervisors as defined in the Act. WE WILL NOT refuse to honor and apply the current agreement or any future collective-bargaining agreement to which we may be bound. WE WILL NOT unilaterally, without giving prior notice to or affording the Union an opportunity to bargain, change any term or condition of employment of employ- ees in the appropriate unit. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of rights guaran- teed by Section 7 of the National Labor Relations Act. WE WILL NOT in any manner refuse to comply with the Board's remedial orders in Timber Products I and Timber Products II, as enforced by the United States court of appeals. WE WILL immediately recognize the Union as the ex- clusive representative of our employees in the appropri- ate unit, and bargain collectively with the Union in good faith with respect to all mandatory subjects affecting those employees' wages, hours of work, and other terms and conditions of employment. WE WILL reinstate the terms and conditions of em- ployment of the employees in the above appropriate unit, which are provided for in the parties' collective-bargain- ing agreement reached on October 11, 1983, and make said employees whole for any wages and benefits lost, with interest, as a result of all our unlawful unilateral changes. ROCKWOOD AND COMPANY, A DELAWARE CORPORATION AND WHG TRUST PART- NERSHIP AND W. H. GONYEA, TRUST NUMBER 18, CO-PARTNERS D/B/A TIMBER PRODUCTS CO.