Champion International Corp.

National Labor Relations Board - Board Decisions

Jul 14, 2003

339 N.L.R.B. 672 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 672
Champion International Corporation and Paper, Al-
lied-Industrial, Chemical & Energy Workers In-
ternational Union, Locals 45 & 56 and National
Conference of Firemen & Oilers/SEIU Interna-
tional Union Local 349. Cases 3–CA–21954 and
3–CA–21958
July 14, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On January 5, 2001, Administrative Law Judge Eric
M. Fine issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and Charging Party Paper, Allied-Industrial,
Chemical & Energy Workers International Union, Locals
45 & 56 (PACE) filed answering briefs.1 The Respon-
dent filed a reply brief to PACE’s answering brief.
PACE filed a limited cross-exception to one of the
judge’s factual findings.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exception, and briefs and
has decided to affirm the judge’s rulings, findings,2 and
conclusions as discussed below, and to adopt the recom-
mended Order as modified.3
We agree with the judge, for the reasons set forth in
his decision, that the Respondent violated Section 8(a)(5)
and (1) of the Act by failing to pay employees in the bar-
gaining unit represented by PACE earned vacation pay in
accordance with the collective-bargaining agreement
between the Respondent and PACE. For the reasons set
forth below, we further agree with the judge’s finding
that the Respondent violated Section 8(a)(5) and (1) of
the Act by unilaterally implementing preconditions for
receipt of any severance pay by unit employees repre-
sented by PACE and Firemen & Oilers and by failing to
satisfy its duty to bargain with those unions about the

1 Charging Party National Conference of Firemen & Oilers/SEIU In-
ternational Union Local 349 (Firemen & Oilers) adopted the answering
brief filed by PACE.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We have modified the recommended Order to accord with our de-
cision in Ferguson Electric Co., 335 NLRB 142 (2001). We have
substituted a new notice in accordance with our recent decision in Ishi-
kawa Gasket America, Inc., 337 NLRB 175 (2001).
effects on unit employees of its decision to sell its paper
mill in Deferiet, New York.
As fully discussed in the judge’s decision, on May 11,
1999,4 the Respondent informed union officials at the
Deferiet mill that the mill was being sold. On the eve-
ning of May 11, the Respondent began distributing to
unit employees a letter informing them that “to be eligi-
ble for severance you must complete the application
process” for employment with the purchaser of the De-
feriet mill, which process included undergoing drug test-
ing. Stapled to the letter were the application forms for
employment with the purchaser of the mill, and a sched-
ule for May 12 and 13 directing employees to report to a
local hotel for the application process including drug
testing. The parties’ respective collective-bargaining
agreements did not entitle the Respondent to engage in
across-the-board drug testing of unit employees. The
Respondent required employees to sign for receipt of
both the letter and the employment application forms.
The record shows that the Respondent implemented
these preconditions for employees’ receipt of any sever-
ance pay—applying for employment and undergoing
drug testing—without providing the Unions advance
notice and an opportunity to bargain.5 As the judge
found, “[t]here was no time here for the Unions to effec-
tively consult with employees or to engage in meaningful
bargaining over the Respondent’s implementation of its
preconditions for severance pay.” The record thus fully
supports the judge’s key finding that the Respondent
violated Section 8(a)(5) and (1) of the Act by unilaterally
implementing preconditions for receipt by unit employ-
ees of any severance pay. We thus agree with the judge,
as set forth in his decision, that the Respondent failed to
accord the Unions an opportunity to engage in meaning-
ful effects bargaining in light of its unilateral implemen-
tation of preconditions for receipt of severance pay.6
4 All dates are in 1999.
5 Union officials learned of the implementation of the preconditions
only by the Respondent’s distribution to employees of the letter and
employment application forms on the evening of May 11.
6 In agreeing with the judge that the Respondent failed to satisfy its
obligation to bargain on effects, we do not rely on the judge’s finding
that the Respondent delayed furnishing the Unions with requested
information.
In finding that the Respondent did not cure its unlawful failure to
provide the Unions with a meaningful opportunity to engage in effects
bargaining, we do not pass on the validity of Passavant Memorial Area
Hospital, 237 NLRB 138 (1978). We do, however, agree with the
judge that the Respondent’s June 10, 1999 memo did not cure the Re-
spondent’s unlawful conduct.
PACE filed a cross-exception to the judge’s factual finding that the
Respondent, in its June 8 letter to PACE’s counsel, stated that it had
provided a copy of the purchase and sale agreement for the Deferiet
mill to the NLRB regional office. The record shows that the Respon-
dent only offered to furnish that document to the NLRB Regional Of-
339 NLRB No. 80
CHAMPION INTERNATIONAL CORP. 673
We do not find a separate violation based on the theory
that the Respondent engaged in unlawful direct dealing.
This matter was neither alleged in the consolidated com-
plaint, nor did the General Counsel subsequently amend
the complaint to include this allegation. The complaint
alleged a unilateral change. That change was set forth in
Respondent’s May 11 letter. The complaint does not
allege that the May 11 letter was distributed to employ-
ees or that any such distribution was a “direct dealing”
8(a)(5) allegation.
A unilateral change violation is different from a direct
dealing violation. The former involves a change in terms
and conditions of employment. It does not depend on
whether there was a communication to employees. The
latter involves dealing with employees (bypassing the
Union) about a mandatory subject of bargaining. It does
not depend on whether there has been a change. See
Allied-Signal, Inc., 307 NLRB 752, 754 (1992) (“Direct
dealing with employees goes beyond mere unilateral
employer action.”).
We recognize that the facts concerning the distribution
of the letters were adduced on the record. However, ab-
sent a separate allegation, the Respondent could reasona-
bly believe that those facts were relevant to the unilateral
change allegation. The Respondent would not know that
those facts were intended to prove a separate direct deal-
ing violation. It is axiomatic that a respondent cannot
fully and fairly litigate a matter unless it knows what the
accusation is. Accordingly, there was no full and fair
litigation. See Mine Workers District 29, 308 NLRB
1155, 1158 (1992) (mere presentation of evidence rele-
vant to a possible violation of the Act does not satisfy the
requirement that matter be “fully and fairly litigated”).
Pergament United Sales v. NLRB, 920 F.2d 130, 136
(2d Cir. 1990), is inapposite. In that case, the complaint
alleged an 8(a)(3) discharge, and the Board and court
found that the same discharge violated Section 8(a)(4).
The court noted that both Section 8(a)(3) and (4) turn on
motive. By contrast, in the instant case, as discussed
above, the change itself and the direct dealing are two
different things, and the allegations and defenses are dif-
ferent. As the court recognized, “whether a [matter] has
been fully and fairly litigated is so peculiarly fact bound

fice upon its request. The record does not establish that the document
was actually provided to the Region.
We take administrative notice, at the Respondent’s request, of the
Board’s decision in Deferiet Paper Co., 330 NLRB No. 89 (2000) (not
reported in bound volumes), and of the Employee Retirement Income
Security Act, 29 U.S.C. § 1001 et seq. This does not affect the out-
come of this case. Finally, we find meritless the Respondent’s excep-
tion that the judge, at the hearing, erred in disallowing a question re-
garding the involvement of PACE’s counsel in the preparation of the
Union’s information request letter dated May 25.
as to make every case unique.” Pergament United Sales
v. NLRB, supra, 920 F.2d at 136.
Similarly, Cardinal Home Products, 338 NLRB 1004,
1007 (2003), does not support our colleague. In that
case, the complaint alleged a violation of Section 8(a)(3).
The Board found the violation and an independent
8(a)(1) violation. Although the latter was not pled, it was
based on the very same facts as the 8(a)(3) violation. As
discussed above, that is not the situation here.
For all of the foregoing reasons, we conclude that the
Respondent was not placed on notice of the direct deal-
ing allegation. Accordingly, we will not find such a vio-
lation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Cham-
pion International Corporation, Syracuse, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Delete paragraph 1(c) and reletter the remaining
paragraphs.
2. Substitute the following for paragraph 2(e).
“(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of the records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER WALSH, dissenting in part.
I dissent from my colleagues’ reversal of the judge’s
finding that the Respondent violated Section 8(a)(5) and
(1) of the Act by dealing directly with bargaining unit
employees.1 Although the complaint did not separately
allege a direct dealing violation, the judge’s finding of
such a violation is correct under established Board and
court precedent.
As my colleagues explained in a decision issued earlier
this year, “It is well settled that the Board may find and
remedy a violation even in the absence of a specified
allegation in the complaint if the issue is closely con-
nected to the subject matter of the complaint and has
been fully litigated.” Cardinal Home Products, 338
NLRB at 1007 (quoting Pergament United Sales, 296
1 In all other respects, I agree with my colleagues’ decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 674
NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir.
1990)). Accord, Casino Ready Mix, Inc. v. NLRB, 321
F.3d 1190, 1199–1200 (D.C. Cir. 2003).
Here, the complaint alleges that the Respondent failed
to satisfy its obligation to bargain with two Unions over
the effects of its decision to sell its paper mill located in
Deferiet, New York. Specifically, the complaint alleges,
inter alia, that on about May 11, 1999, the Respondent
violated Section 8(a)(5) and (1) by unilaterally imple-
menting preconditions for obtaining severance pay for
bargaining unit employees. The judge found, and my
colleagues agree, that the record solidly supports this
complaint allegation. Thus, the record shows that on
May 11, 1999, without providing notice to the Unions
and an opportunity to bargain, the Respondent distributed
a letter to employees establishing two preconditions for
employees’ receipt of any severance pay: (1) employees
had to apply for employment with the purchaser of the
mill; and (2) employees had to undergo drug testing.
Stapled to the letter were application forms for employ-
ment with the purchaser and a schedule directing em-
ployees to report to a local hotel for the application proc-
ess including drug testing. The judge concluded, and
again my colleagues agree, that the Respondent violated
Section 8(a)(5) and (1) of the Act as alleged by unilater-
ally instituting these preconditions.
In addition, the judge found that the Respondent’s
conduct constituted unlawful direct dealing because the
Respondent tendered the May 11, 1999 letter directly to
employees, without having first presented it to the Un-
ions. The Respondent thereby interjected itself between
the employees and their bargaining representatives, and
undermined the effects bargaining process with the Un-
ions. Although the complaint did not allege a separate
direct dealing allegation, the judge reasoned that finding
such an additional violation was proper because “the
Respondent’s conduct here was part and parcel of its
unlawful unilateral change[,] . . . was closely related to
that complaint allegation, [and] . . . was fully litigated
. . . .” In support, the judge cited Blue Circle Cement
Co., 319 NLRB 954, 955, 962 fn. 10 (1995), enfd. in
relevant part 106 F.3d 413 (10th Cir. 1997), a case find-
ing an unalleged direct dealing violation under similar
circumstances.
Although my colleagues recognize that the facts con-
cerning the judge’s direct dealing finding were adduced
on the record, they reverse him, asserting that the Re-
spondent was not put on notice that a claim of violation
was based on its May 11 distribution of the letter directly
to unit employees. As the Second Circuit explained in
the Pergament case, however, notice does not mean that
a respondent must be advised of “the legal theory upon
which the General Counsel” relies. 920 F.2d at 135.
“Instead, notice must inform the respondent of the acts
forming the basis” of the unfair labor practice. Id. In
addition, there must be full and fair litigation of the con-
duct in question. Id. at 136.2
Here, these dual requirements were satisfied. First, by
virtue of the unilateral change allegation of the com-
plaint, the Respondent knew from the beginning of the
proceeding that the legality of its May 11, 1999 letter to
employees was in issue. As explained above, it was this
very letter (and its attachments), on which the judge re-
lied in finding direct dealing. Therefore, the Respondent
had clear notice of the “acts forming the basis” of the
direct dealing unfair labor practice. In addition, at the
hearing, the Respondent had a fair and full opportunity to
offer a legitimate justification for its sending of the letter
directly to employees without having first tendered the
documents to the Unions. Indeed, although the Respon-
dent argues in its brief that the direct dealing issue was
not fully litigated, the Respondent does not state how it
would have presented its case differently had the com-
plaint contained a separate direct dealing allegation.
In sum, finding unlawful direct dealing does not vio-
late the Respondent’s right to due process where, as here,
it was at all times on notice of the acts which formed the
basis of the additional unfair labor practice, and the mat-
ter was fully litigated. Accordingly, I would adopt the
judge’s finding of a separate direct dealing violation.
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 vio-
lated the Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

2 My colleagues err in deeming Pergament to be inapposite. Perga-
ment requires that the matter at issue be “closely connected” to the
subject matter of the complaint, not that the two matters be the same, as
the majority suggests.
CHAMPION INTERNATIONAL CORP. 675
WE WILL NOT fail to bargain in good faith with Paper,
Allied-Industrial, Chemical & Energy Workers Interna-
tional Union, Locals 45 & 56 (PACE) and the National
Conference of Firemen & Oilers/S.E.I.U. International
Union Local 349 (Firemen & Oilers), concerning the
effects on employees represented by those Unions at the
Deferiet mill of our decision to sell the Deferiet mill and
terminate our employees.
WE WILL NOT unilaterally implement preconditions for
obtaining severance pay for employees in the collective-
bargaining units represented by PACE and Firemen &
Oilers at the Deferiet mill.
WE WILL NOT fail and refuse to pay employees in the
PACE collective-bargaining unit at the Deferiet mill
earned vacation pay pursuant to Section 17 of our collec-
tive-bargaining agreement with PACE.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, upon request, bargain in good faith with
PACE and Firemen & Oilers about the effects on unit
employees of our decision to sell the Deferiet mill and
terminate our employees.
WE WILL, upon request, rescind the preconditions for
obtaining severance pay we unilaterally implemented on
May 11, 1999.
WE WILL pay employees in the collective-bargaining
units represented by PACE and Firemen & Oilers at the
time we sold the Deferiet mill limited backpay, plus in-
terest, as required by the National Labor Relations
Board.
WE WILL make whole those employees hired by De-
feriet Paper Company who had worked for Champion
International Corporation in the PACE-represented bar-
gaining unit by the payment of interest on the amounts of
vacation pay accrued and owing those employees by
Champion International Corporation as of June 12, 1999,
until the time of the payment of these moneys to the em-
ployees by the Deferiet Paper Company; and by paying
vacation pay and interest to any employees in the PACE-
represented bargaining unit who were not paid vacation
pay by Champion International Corporation or the De-
feriet Paper Company for vacation pay owed by Cham-
pion International Corporation as of June 12, 1999.

CHAMPION INTERNATIONAL CORPORATION

Michael Israel, Esq., for the General Counsel.
Denis E. Cole, Esq., of Garden City, New York, for the Re-
spondent.
James R. LaVaute, Esq. and Stephanie A. Miner, Esq., of Syra-
cuse, New York, for the Charging Party, Paper, Allied-
Industrial, Chemical & Energy Workers International Un-
ion, Locals 45 & 56.
DECISION
STATEMENT OF THE CASE
ERIC M. FINE, Administrative Law Judge. This case was
tried in Syracuse, New York, on June 7 and 8, 2000. The
charge and amended charge in Case 3–CA–21954 were filed by
Paper, Allied-Industrial, Chemical & Energy Workers Interna-
tional Union, Locals 45 & 56 (PACE Local 45 and PACE Lo-
cal 56)1 on May 28 and September 15, 1999, respectively,2 and
the charge in Case 3–CA–21958 was filed by the National Con-
ference of Firemen & Oilers/SEIU International Union Local
349 (Firemen & Oilers Local 349)3 on June 1. A consolidated
complaint issued on December 29 alleging that Champion In-
ternational Corporation (the Respondent) violated Section
8(a)(1) and (5) of the Act by: since about May 11 failing to give
timely notice to PACE and the Firemen & Oilers and an oppor-
tunity to bargain over the effects on employees in the appropri-
ate bargaining units of its decision to sell the Deferiet paper
mill; on about May 11 unilaterally implementing preconditions
for obtaining severance pay for employees in the PACE and
Firemen & Oilers units; and on about June 11 unilaterally fail-
ing and refusing to pay employees in the PACE unit earned
vacation pay pursuant to Section 17 of the PACE collective-
bargaining agreement and that by such conduct the Respondent
has failed and refused to bargain in good faith.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, PACE, and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, was engaged in the manufac-
ture and sale of pulp and paper products at its facility in De-
feriet, New York (the Deferiet mill), where it annually pur-
chased and received goods valued in excess of $50,000 directly
from points outside the State of New York. The Respondent
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that PACE and the Firemen & Oilers are labor organizations
within the meaning of Section 2(5) of the Act.

1 Paper, Allied-Industrial, Chemical & Energy Workers International
Union and its Locals 45 and 56 are jointly referred to as PACE.
2 All dates are in 1999 unless otherwise indicated.
3 National Conference of Firemen & Oilers/SEIU International Un-
ion and its Local 349 are jointly referred to as the Firemen & Oilers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 676
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Witnesses
The General Counsel called as witnesses: Michael Bellmore,
an International representative for the PACE International Un-
ion; Frances Plummer and Terry Burto, former long-term em-
ployees of the Respondent and local union officials,4 who were
hired by the Deferiet Paper Company (DPC),5 the purchaser of
the mill; James LaVaute, an attorney for PACE; and Jack
Henry, a former International representative for the Service
Employees International Union assigned to the Firemen & Oil-
ers as a collective-bargaining representative.6 The Respondent
called as witnesses: Michael Culbreth, the Respondent’s direc-
tor of corporate employee relations; William Foster, the Re-
spondent’s senior associate counsel; Katherine Watson, the
Respondent’s former human resources manager at the Deferiet
mill who at the time of her testimony was employed by DPC;
Mushell Robinson, a former employee of the Respondent who
participated in effects bargaining with the Unions as a member
of the Respondent’s bargaining committee; and Steve Ames
and Bruce Pinkham, former employees of the Respondent at the
mill and, respectively, the former president and vice president
of the International Association of Machinists and Aerospace
Workers, AFL–CIO Local Lodge 1009 (IAM Lodge 1009).
Paul Records, the Respondent’s vice president of organizational
development, human resources, and corporate facilities, al-
though not called as a witness signed a letter that plays an im-
portant role in the parties’ dispute.7
B. Evidentiary Findings8
The Respondent owned and operated the Deferiet mill until
its sale to DPC on June 11. At the time of the sale, PACE rep-
resented a bargaining unit of about 420 of the Respondent’s
employees at the mill; the Firemen & Oilers represented a bar-
gaining unit of approximately 19 employees; and IAM Lodge
1009 represented a bargaining unit of approximately 58 em-
ployees. The Respondent’s collective-bargaining agreements
with PACE and the Fireman & Oilers ran through February 1,
1998, and were extended by agreement through June 1. On
April 9, the Firemen & Oilers gave notice to terminate its con-
tract with the Respondent.
On October 8, 1997, the Respondent announced plans to di-
vest itself of several operations, including the Deferiet mill.

4 Plummer was the local union president for the Firemen & Oilers
Local 349 when he testified and at the time DPC purchased the Deferiet
mill. Burto was the treasurer for PACE Local 45 at the time of his
testimony, and prior to DPC’s purchase of the mill he was the recording
secretary for PACE Local 56.
5 DPC is a wholly owned subsidiary of Crabar Paper and Allied
Products Corporation (Crabar).
6 Henry retired on November 1.
7 The Respondent has admitted that Culbreth, Foster, Records, and
Watson are or were while in the Respondent’s employ its supervisors
and agents within the meaning of Sec. 2(11) and (13) of the Act. Cul-
breth, Foster, Records, and Robinson worked out of the Respondent’s
offices in Stamford, Connecticut, during times relevant herein.
8 The findings set forth below are based on the credited testimony
and documentary evidence. The witnesses’ demeanor has been consid-
ered in making these findings.
Thereafter, prospective purchasers periodically toured the mill.
Effective May 11, the Respondent, DPC, and Crabar entered
into an asset purchase agreement (APA) for the sale of the De-
feriet mill by the Respondent to DPC. Article 4.1 of the APA
provides that the closing would take place on June 1, but in no
event later than June 30, unless the agreement was terminated.
The APA contains the following definition at page 8:

“Special Severance Policy(s)” shall mean Champion Interna-
tional Corporation Divested Operations Severance Benefits
Policy #830 and any severance policy(s) to be negotiated with
represented Employees provided that such policies are no
more favorable to the represented employees than Policy
#830 or are approved by the Purchaser.

Section 8.1 of the APA provides, in pertinent part:

Selected Employees. Within 10 days after the execution of
this Agreement, the Seller will permit the Purchaser to meet
with employees of the Groundwood Specialty Business at the
Deferiet mill to introduce the Purchaser and present employ-
ees with applications and a handbook containing the Pur-
chaser’s initial terms and conditions of employment . . . .
Thereafter, and before Closing, the Seller will provide the
Purchaser with space at the Deferiet mill to interview appli-
cants and conduct employment-related testing . . . . The Em-
ployees of the Seller who accept such employment and com-
mence such employment are herein collectively referred to as
the “Selected Employees.

Section 8.3 of the APA provides as to Severance Benefits
that:

To the extent that more than ten percent (10%) of the Em-
ployees become Terminated Employees, the Purchaser shall
be responsible for the following severance and related costs
attributable to such excess over ten percent (10%): (a) cash
severance payments paid to terminated Employees pursuant
to any Special Severance Policy . . . .

“Terminated Employees” are defined at page 8 of the APA
as:

those employees who are not Selected Employees or who be-
come Selected Employees and whose employment is termi-
nated by the Purchaser within ninety (90) days after closing.

Section 8.5 of the APA provides in pertinent part that:

Vacation. The Purchaser shall assume liability for all unpaid
earned and unused, banked and accrued vacation pay of Se-
lected Employees prior to the Closing . . . .

On the evening of May 11, PACE International Representa-
tive Bellmore received phone messages from officials of the
PACE local unions at the Deferiet mill. They informed him
that at approximately 5 p.m. that evening, local union officials
had been called to a meeting with Respondent’s representatives
and told that the mill was being sold to DPC.9 Bellmore met
9 Watson, the then human resource manager of the mill, testified that
the Respondent’s plant manager held a meeting with PACE local union
officials on May 11 and stated that the mill had been sold, that he did
not know the closing date, but it was coming quickly.
CHAMPION INTERNATIONAL CORP. 677
with representatives of the PACE locals and mill employees at
the PACE union hall across the street from the mill at 9 p.m.
that evening. Bellmore was informed that, commencing with
that evening’s workshift, the Respondent was instructing em-
ployees to report to its human relations office to pick up a
folder of documents relating to the application process for em-
ployment with DPC. At that time, Bellmore was shown a letter
on the Respondent’s letterhead, dated May 12, signed by Re-
cords. The May 12 letter was stapled to the top of the DPC
application folder while the folder was distributed to the union
represented employees at the mill.10 The letter read, in perti-
nent part:

Dear Champion Employee:

Champion has agreed to provide space at the Deferiet Mill to
Deferiet Paper Company Inc. personnel to interview appli-
cants and conduct employment related testing.

Enclosed is the Deferiet Paper Company’s employment appli-
cation packet.

Please note that to be eligible for severance you must com-
plete the application process (application, interview, testing,
etc.) and be otherwise eligible in accordance with the terms of
the severance plan.

Inside the employees’ DPC application folder was a docu-
ment directed to all hourly personnel employed at the mill with
the heading “Applications for Employment.” The document
stated that DPC was purchasing the assets and business of
Champion in Deferiet and it was expected that the transaction
would close in mid-May. Champion employees were encour-
aged to apply to DPC. It stated that “[w]e will be requiring
everyone who wishes to be considered for employment to com-
plete an application for employment, complete a paper and
pencil survey, undergo a drug screen, and participate in an in-
terview.” The packet included a document entitled, “Employee
Handbook” which set forth a detailed summary of DPC’s initial
terms of employment and it stated that some of those were not
the same as those in the agreements between the Respondent
and the Unions. The last two pages of the packet consisted of
documents with the heading of “Applications-Testing Sched-
ule.” These pages stated people interested in employment with
DPC should report to a specified Best Western hotel, “turn in
their application, complete a pencil and paper survey, undergo a
drug screen, and be scheduled for an interview according to the
schedule on the reverse side of this page.” It stated in bold
capitalized print that “IT IS IMPERATIVE THAT ALL
THESE STEPS BE COMPLETED AS SCHEDULED.”
The application packet contained a schedule for employees to

10 Watson testified that the May 12 letter was distributed to each em-
ployee on top of their DPC application materials. Plummer credibly
testified that the May 12 letter was stapled to the top of his DPC appli-
cation folder when he picked it up at the office. The employees in
Plummer’s department were instructed to report to the human resources
department to pick up their application folders. Plummer testified that
at human resources he spoke to Watson and he had to identify himself
and sign his name in order to receive the application folder.
participate in this process at the hotel on May 12 and 13, in
alphabetical order based on their shift times.
There were no provisions in the PACE or Firemen & Oilers’
collective-bargaining agreements with the Respondent related
to severance pay and the Unions had not previously negotiated
a severance plan with the Respondent. Bellmore’s credited
testimony was uncontradicted that PACE had previously nego-
tiated a substance abuse policy with the Respondent only giving
the Respondent the right to test for cause based on observation
of an employee engaging in erratic behavior. A union represen-
tative would also have an opportunity to observe the employee
before testing was initiated. Bellmore testified that this was a
written policy, posted to employees, and that it was negotiated
after the 1993 collective-bargaining agreement.11 Bellmore
testified that Record’s May 12 letter created confusion among
the employees and local union officials with whom he met on
the evening of May 11. There was particular concern about the
conditions that the Respondent had established for an employee
to receive severance pay, including the requirements that they
had to apply to DPC and be drug tested by that company in
order to receive severance from the Respondent. Bellmore told
several employees at the union hall that it would be in their
interest to take the drug test in order to secure employment with
DPC and that Bellmore would attempt to find out what was
going on.
Bellmore went to the mill on the morning of May 12 and met
with Watson. He told Watson that he was making a demand for
effects bargaining and that he would try to coordinate some
dates with Henry, the International representative for the Fire-
man & Oilers, and Tom Holl, the business representative for
the Machinists. Bellmore asked Watson to call Culbreth so that
they could coordinate dates for effects bargaining. Bellmore
asked Watson why the employees had not been receiving their
pension read outs and he informed her that PACE wanted the
read outs before they started negotiations.12 Bellmore also
went to the Best Western Hotel on May 12 and he observed that
the Respondent’s employees were there participating in the
DPC application process including drug testing.13
On May 12, Culbreth placed calls to Bellmore, Holl, and
Henry. He was able to reach Holl and Bellmore first and he
asked them to begin effects bargaining immediately. Culbreth
testified that he informed both union officials that he had no
idea when the closing for the sale of the mill would take place.
During the phone calls, Bellmore stated that he could not meet
until May 24, and that he, Bellmore, would also serve as the
spokesman for the Firemen & Oilers on that date since Henry
could not meet on May 24, but would be there on May 25.14
The Unions met with the Respondent at a Best Western Ho-
tel in Watertown, New York, on the morning of May 24. The
meeting began around 9 or 9:30 a.m. and adjourned late that
11 The written drug testing policy was not placed into evidence.
12 The forgoing is based on Bellmore’s credited and uncontradicted
testimony.
13 Plummer, a member of Firemen & Oilers Local 349, testified that
he went to the hotel on May 13, filled out an application, took a drug
test and set up an appointment for his interview with DPC.
14 I have credited Culbreth’s testimony concerning the scheduling of
the initial meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 678
afternoon or early that evening. Present were Bellmore, Burto,
and several other local union officials for PACE. Plummer was
there for the Firemen & Oilers. Holl, Ames, and Pinkham were
in attendance as part of the bargaining representatives for IAM
Lodge 1009. Culbreth, Robinson, Watson, and John Thorpe, a
benefits specialist, represented the Respondent. Culbreth was
the Respondent’s chief spokesperson and Bellmore served in
the same capacity for the Unions.
Bellmore had prepared a one-page agenda, which he distrib-
uted to all the parties during the session. Bellmore’s agenda
was discussed during the meeting, as was a similar document
prepared by the Machinists. Bellmore credibly testified that the
meeting began with a discussion of the payout of earned and
accrued vacation to all employees, which was one of the items
listed in his prepared agenda. Culbreth stated that the Respon-
dent would not pay out accrued vacation. Rather, the Respon-
dent had negotiated an agreement with DPC that the latter
would assume the responsibility for the employees’ vacation
pay. Bellmore testified that the Unions protested stating that
the Respondent could not void the provision in their collective-
bargaining agreements concerning vacation pay.
Bellmore credibly testified as follows concerning the discus-
sion of Records’ May 12 letter at the May 24 meeting. The
May 12 letter was raised by the Unions and they asked how the
Respondent could insist that an employee to apply, interview,
and submit to drug testing with DPC as a condition for receiv-
ing severance pay from the Respondent. There was a lot of
discussion about how the Respondent would be made aware of
whether someone passed a drug test in order to qualify for sev-
erance, since the test was supposed to be confidential. Culbreth
stated that the Respondent would not know if someone passed
the drug test. Rather, DPC would inform the Respondent
whether or not an employee was being hired, or otherwise dis-
qualified from severance pay. During the meeting, the Unions
asked the Respondent to rescind the conditions regarding, “ap-
plication, interviewing, and testing” for an employee to qualify
for severance. Culbreth stated that he was not aware of the
May 12 letter, so Bellmore supplied him with a copy. On read-
ing the document, Culbreth stated that he was not responsible
for Records and that it was unfortunate that Records wrote the
letter. However, Culbreth stated that the Respondent was not
interested in rewriting the severance plan that it was contem-
plating. Watson, a witness for the Respondent, corroborated
many aspects of Bellmore’s testimony about the discussion of
May 12 letter at the meeting. Watson testified that the May 12
letter was raised and the “Union objected to the fact that the
employees had to apply and interview for positions within Cra-
bar, and there was a lengthy discussion around the drug test-
ing.” She testified that there were concerns by all of the union
representatives concerning the drug testing and that “Terry
Burto, from Local 56 at that time, and Roy Calhoun were
quite—from 349—were very concerned about the fact that
Champion—it appeared as though Champion would be able to
have access to the results of the drug screening; and they ob-
jected, and Mike Bellmore agreed . . . .” Watson testified that
Bellmore also asserted that the Respondent did not have the
right to do hair testing for drugs under the collective-bargaining
agreement with PACE.
During the May 24 meeting, Culbreth provided Bellmore
with a proposal entitled, “Effects of Sale Agreement.” It stated
on page 4, paragraph 5, that, “[a]s of the Closing Date, all em-
ployees will be removed from the Company’s payroll and their
employment will be terminated.” There was also a paragraph
in the proposal entitled, “SEVERANCE PAY,” which stated
that employees may be eligible for severance under the terms of
the Respondent’s “Severance Benefits Policy #818.” Culbreth
also gave Bellmore a copy of policy 818. It is stated in policy
818 at page 1, paragraph 2, that this “Policy is an employee
welfare benefit plan under Title I of the Employee Retirement
Income Security Act of 1974 as amended (‘ERISA’).”
Policy 818 provided several basis for an employee to be ex-
cluded from severance coverage, including: failure to timely
submit an application for employment with the purchaser or to
fully participate in the application process; being offered em-
ployment by the purchaser; being terminated by the Respondent
or the purchaser for performance related reasons; and being
terminated by the Respondent or the purchaser, or not hired by
the purchaser, for cause “including the failing of any pre-
employment or employment related drug tests(s).” Policy 818
also set forth a specified severance pay benefit package for
eligible employees.
Bellmore’s credited testimony reveals that: Bellmore told
Culbreth that he disputed the conditions for severance pay con-
tained in policy 818 which were essentially the same as those
provided in the May 12 Records’ letter. Bellmore asked Cul-
breth to rescind the conditions set forth in both the letter and
the policy in that they had not been negotiated with the Unions.
Bellmore told Culbreth that the Respondent’s continued appli-
cation of the policies in the May 12 letter was unlawful. Cul-
breth responded that the Respondent was not interested in re-
writing the policy. He stated that the policy had been submitted
to ERISA, that it would be time consuming to rewrite it, that
they would have to get approval, which could take several
months, and that the Respondent was not going to do it. Bell-
more argued that it could be rewritten and that this was the
purpose of effects bargaining. He testified that “I can tell you
we beat on this for quite some time. Not only myself, but
members of (the) PACE committee, (the) Machinists Commit-
tee, (and) Firemen and Oilers Local 349.” Bellmore testified
that “I think I requested of Mr. Culbreth personally, probably at
least on three or four occasions, where I asked him to rescind
those preconditions regarding (the) severance plan. And I
based that on that May 12th letter.” He explained that he
wanted Culbreth to rescind all the preconditions regarding ap-
plications, interviews, and drug testing.
Bellmore testified that the PACE agenda for the meeting also
contained a request for a copy of the purchase agreement be-
tween DPC and the Respondent for the mill and that he re-
quested that the Respondent furnish PACE a copy of the
agreement during the May 24 meeting. PACE’ request in its
written agenda also required the Respondent to produce “any
accompanying exhibits associated with the sale/purchase
agreement . . . .” During the discussion concerning the request
for the purchase agreement, Culbreth represented that it was a
500- or 600-page document.
CHAMPION INTERNATIONAL CORP. 679
The parties met on May 25 at the same place at around 9:30
a.m. with the same participants with the addition of Firemen &
Oilers Representative Henry. Bellmore remained the Unions’
chief spokesperson, but others spoke at the meeting. Bellmore
credibly testified as follows concerning the events at the May
25 meeting. There was a good deal of argument about the Re-
spondent’s policy 818 and the May 12 letter and Bellmore
again told Culbreth that they were unlawful in that the Respon-
dent had established a severance plan without negotiating with
the Union. Bellmore repeated this assertion around a half
dozen times during the meeting. Both Henry and Holl also
spoke to the issue of the letter. Henry also credibly testified
that on May 25, all of the Unions participated in a discussion
requesting that the Respondent rescind the May 12 letter and all
of its attachments.
Watson in large part corroborated the testimony of the union
officials concerning the discussion of the May 12 letter during
the May 25 meeting. She testified as follows: There was a lot
of discussion about the letter during the meeting, and the parties
discussed the same things that they had on May 24 about the
employees “having to apply, interview, and go through the drug
testing.” Watson remembered Henry speaking and that “he
objected to the fact that the employees had to go through the
interviewing, the application process, and the drug screening.”
Henry explained that the union contract did not permit hair
testing, and there was a concern that the Respondent might be
able to get the results of the drug test. Culbreth responded that
Crabar was conducting the drug screening, not the Respondent;
therefore, it was not in violation of the labor agreement. Wat-
son admitted that the Unions objected to the May 12 letter on
May 24 and 25 because the items in the letter including drug
testing and applying for a job were conditions for employees
receiving severance pay.15
Bellmore testified that the vacation issue was also discussed
at the May 25 meeting and the Unions repeated the argument
that their contracts required that the Respondent pay all the
employees who had earned and accrued vacation credit. They
protested the Respondent’s assertion that it had made a deal
with DPC to make the payments. Bellmore testified that the
Respondent’s assertion that DPC was picking up this liability
and that this was contained in the purchase agreement added to
PACE’ need to receive a copy of this document.
Bellmore testified that the Respondent took a long caucus on
May 25 in that Culbreth informed the Unions that he was call-
ing the Respondent’s headquarters in Stamford to discuss the
vacation issue, the Unions’ request for the asset purchase
agreement (APA), and to discuss policy 818. Bellmore esti-
mated that the Respondent’s caucus lasted 5 or 6 hours.16 Dur-

15 Respondent witnesses Culbreth, Watson, and Robinson testified
that there was never a request by the union officials, during the May 24
and 25 meetings, for the Respondent to rescind the May 12 letter. For
reasons set forth in more detail in the section of this decision discussing
the testimony of the Respondent’s witnesses, including consideration of
the witnesses’ demeanor, I have not credited the Respondent’s wit-
nesses on this point. I have concluded that the union officials did re-
quest that the Respondent rescind the May 12 letter as they testified.
16 Culbreth also testified that, as Bellmore had described in his testi-
mony, there was a lengthy caucus on May 25. During the caucus,
ing the caucus, Bellmore, Henry, and Holl met Culbreth in the
hotel lobby. Culbreth stated that something could be worked
out regarding the Unions’ request for the APA if the Unions
entered a confidentiality agreement. Culbreth stated that he had
some concerns about disclosing the sales price to the news
media or to competitors. Bellmore responded that they were
not going to insist on the sales price and that it would not be
disclosed to the news media or competitors. Culbreth stated
that the APA could not be faxed because it was 500 to 600
pages and the best that they could do was overnight it. Bell-
more responded that he had never seen a purchase agreement of
that length and that the Unions needed it as soon as possible to
expedite negotiations. At that time, Bellmore tendered to Cul-
breth a one-page typewritten document dated May 25 signed by
the three lead union officials. The letter requested that the Un-
ions be provided within 3 days, “copies of all agreements, cor-
respondence or other written memoranda between your com-
pany” and DPC relating to “the sale of the mill and the possible
or agreed to terms of that transaction.” The letter stated that,
“[w]e need these documents in order to negotiate . . .” over the
sale transaction and its effect on unit employees, and we re-
serve the right to engage in such bargaining after we receive the
documents.”17 The May 25 meeting ended late that afternoon
or in that early evening.
The parties met on May 26 at the same place at about 9:30
a.m. Culbreth called Bellmore, Henry, and Holl to the hallway
and stated that Foster was preparing a proposed confidentiality
agreement pertaining the Unions’ request for the APA and that
it would be forthcoming sometime that day. Culbreth stated
that the Unions had to sign the confidentiality agreement to
receive the APA. Bellmore testified that the union committees
decided that it was in their interest to acquire the APA before
proceeding with negotiations and the parties did not meet any
further that day. Bellmore testified that there was discussion
about the possibility of meeting again the following week.
However, Henry was on vacation that week and Bellmore had
to attend PACE’s first staff meeting after the Union’s merger
and that the meeting was in Atlantic City, New Jersey. Bell-
more testified that he also felt that the PACE needed time to
review the APA before meeting. Bellmore testified that in
response to the Unions’ inquiries Culbreth was not able to pro-
vide a specific closing date for the sale.
In the late afternoon on May 26, Bellmore received a pro-
posed confidentiality agreement from Foster. He also received
the next day, by overnight mail, another copy of the confidenti-
ality agreement and an index to and selected portions of the
APA. Bellmore reviewed the sections of the APA that were
provided to him. He testified that he noticed that section 8.6,
entitled “Continuation of Administrative Services” provided for
the provision of such services by the Respondent for employees
hired by DPC on request of DPC for a period of 12 months
after the closing date of the sale. The services were to be pro-

Culbreth called his supervisor, Scott Lapinski, the Respondent’s vice
president of human resources and organization development and Cul-
breth had several conversations with Lapinski and Foster.
17 Bellmore gave Culbreth the same request on a PACE letterhead
under Bellmore’s signature on May 26.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 680
vided pursuant to a document entitled “Transition Services
Agreement” (TSA). Bellmore testified that this information
made him think that there was a possibility of a joint relation-
ship between DPC and the Respondent and that, as a result, he
subsequently requested a copy of the TSA from the Respon-
dent.
On May 27, Bellmore faxed Foster a letter reflecting that
they spoke the day before and that Bellmore had informed Fos-
ter that the Respondent’s proposed confidentiality agreement
was unacceptable. The letter read as follows as to the reasons
that PACE needed the requested information:

Depending on the nature of the transaction between your
company and the purchaser, and the identity of the principals
involved, and the provisions of the sale documents(s), there is
a possibility that Champion would have an obligation to bar-
gain over the decision to “sell” the mill, or there may even be
an argument that because of the nature of the transaction and
the legal relationship between the seller and the buyer, the ex-
isting labor agreement continues to be applicable.

Bellmore’s letter went on to state that a review of the requested
documents might convince PACE that the only issue between
PACE and the Respondent was effects bargaining. However,
PACE needed to review the documents to determine if they had
an impact on effects bargaining. The letter stated that the Re-
spondent’s proposed confidentiality agreement would require
PACE to give up any right to engage in decision bargaining,
and would require PACE to agree not to use the documents in
litigation. It stated that PACE could not agree to give up its
right to take legitimate action concerning the transaction if
necessary, including possible NLRB and Federal court litiga-
tion. It stated that as soon as the Respondent provided the in-
formation, PACE could begin to engage in bargaining.
Foster responded by fax dated May 27, stating that virtually
all provisions of the APA have no relevance to effects bargain-
ing and were highly confidential. He stated that “[t]hus far,
Champion has assumed the burden of facilitating effects of sale
bargaining. It is the union which should be actively pursuing
such bargaining, instead of seeking to delay the same.” Foster
stated that the Respondent had no intention of bargaining over
the decision to sell the mill, and that there was legal precedent
that a union could waive its right to engage in effects bargain-
ing. Foster stated that Culbreth was in the process of advising
Bellmore of his availability to meet, and that hopefully Bell-
more would take advantage of the opportunity to engage in
effects bargaining.18

18 On May 27, Culbreth overnighted a letter to Bellmore, Henry, and
Holl. Culbreth spoke of phone conversations that he had had with each
of the union officials on that date where he told them that the APA was
available for them to pick up at the Deferiet mill. However, the union
officials had stated that they would not pick up the APA until they had
an opportunity to review the Respondent’s proposed confidentiality
agreement. Culbreth stated that, as he had told the Unions on May 26,
meetings were scheduled with the Respondent and DPC towards the
end of the week of May 31, at which time a closing date of the sale
might be finalized. Culbreth stated that it was critical to resume bar-
gaining prior to those meetings. Culbreth stated that he was available
to meet any day the following week.
Bellmore responded by fax to Foster dated May 28, stating,
in pertinent part that:

Champion on May 12, unilaterally imposed conditions
for unit employees that it should have given the union an
opportunity to bargain over. No such opportunity was
presented, and those conditions were communicated di-
rectly to employees. As I told your representative at a ses-
sion on May 24, 1999, that action by the company was
unlawful, and it must be rescinded. You cannot be engag-
ing in good faith bargaining now over effects where you
have already unilaterally imposed conditions relating to
items you are obligated to bargain over with the Union.
Section 8.6 of the Assets Purchase Agreement pro-
vides for continued involvement by Champion in the bar-
gaining unit after the Closing Date. Please provide a copy
of the Transition Services Agreement, so we can see what
the relationship between Champion and the Deferiet Paper
Company is before and during the closing periods and the
1-year period after the closing. We need to see if Cham-
pion has really “divest[ed]” itself of the mill, or whether
there might be a joint employer relationship, and what the
true nature of the transaction is. That is also why we need
the entire Sale Agreement(s). We also need any docu-
ments, correspondence and analysis showing Champion’s
reasons for the transaction or matters it considered in mak-
ing decisions about the transaction. We need this to de-
termine the nature of the transaction, which may bear on
Champion’s continuing legal obligations to the union and
the employees in the unit.
The Union reserves the right to bargain over the deci-
sion and the effects of it, relative to the transaction with
Deferiet Paper Company. We also reserve the right to
proceed with claims of labor agreement violations against
Champion because of the transaction and Champion’s con-
templated continued involvement in the mill. Your pro-
viding the above information expeditiously will help move
this along.

Foster responded to Bellmore by fax dated June 1. The letter
stated that enclosed was a copy of the TSA agreement. It noted
that, under the TSA, administrative services were only to be
provided by the Respondent to DPC for a period not to exceed
180 days, and Foster contended that it was an arms length
transaction where the Respondent would be compensated for its
services. The letter stated that the Respondent had been ad-
vised by DPC that it would not be seeking transitional services
with respect to payroll or employee benefits. Foster stated that
he had enclosed a copy of article II of the APA, which Foster
claimed would show that the transaction was a true asset sale
and that the Respondent was divesting itself of the mill. Foster
stated that the information provided should “fully resolve any
purported questions you may have had over the nature of the
transaction, . . . .” The letter went on to state:

Lastly, I dispute your allegations relative to the unilateral in-
stitution of ‘conditions of employment’ by Champion relative
to bargaining unit employees. Any item concerning the ef-
fects of sale upon bargaining unit employees continues to be
fully negotiable from Champion’s perspective. I would again
CHAMPION INTERNATIONAL CORP. 681
urge that you move that process forward and present any pro-
posal you may have to Mr. Culbreth at your earliest opportu-
nity.

I trust that the enclosures address your alleged concerns and
that, if you truly intend to engage in good faith bargaining you
will do so without any further delay.

Bellmore responded to Foster via fax dated June 4. Bellmore
stated that:

We have previously demanded that you rescind the conditions
imposed on May 12, 1999, and bargain in good faith with the
Union. Your June 1, 1999, letter does not state that you will
rescind the changes. The Union is not obligated or willing to
negotiate from your unlawfully altered bargaining position,
which would be the case unless you rescind the May 12th
conditions. Kindly notify me of your decision in that respect.

Bellmore went on to repeat his request for the complete “sale
agreements(s),” and he stated that the PACE could not accept
Foster’s representations about what was in those documents.
Bellmore also asked for the correspondence where DPC stated
that it was not seeking certain transitional services.
By fax dated June 4, from Culbreth to Bellmore and Henry,
Culbreth stated that he was writing to apprise the Unions of
some recent developments, and to remind the Unions of the
importance of meeting and bargaining, “if, in fact, the union
does intend to bargain.” Culbreth stated that while Henry was
on vacation and Bellmore was in Atlantic City, “an Effects of
Sale Agreement was reached with Local 1009 of the IAM &
AW. You should be aware that the IAM counter proposed a
confidentiality agreement for the release of the” APA, “which
Champion deemed acceptable. This is in sharp contrast to your
position, which has been to refuse to bargain entirely, either on
effects of sale issues or about the confidentiality of the non-
employee related provisions of the APA.” Culbreth stated that
in a phone conversation the night of June 3 with Bellmore, he
requested that the parties meet on June 4, and stated that he was
willing to remain in Watertown to do so, but that Bellmore told
Culbreth to go home.19 Culbreth finished by stating that:

This letter is intended to remind you that the company will
consider your continued refusal to bargain to be a waiver of
the unions’ right to do so. The ball is in your court.

Be aware, however, that any proposal which the company has
placed on the table will be withdrawn, effective June 11,
1999, absent good faith bargaining by the unions or an agree-
ment prior to that date.20

19 Bellmore credibly testified that, during this phone conversation
with Culbreth, he told Culbreth that he had not been provided the APA.
He also told Culbreth that the Respondent had unlawfully imposed
conditions on the Union, including the requirements of application,
interviewing and testing, and that since the Respondent had not re-
scinded the conditions it imposed on May 12, that Culbreth might as
well go home.
20 Culbreth had met with representatives of IAM Lodge 1009 on
June 3 and they reached an agreement concerning effects bargaining.
The agreement, with a couple of modifications, was in large part identi-
cal to the Respondent’s effects agreement proposal tendered to the

On June 7, PACE Attorney LaVaute faxed a letter to Foster.
The letter stated, in pertinent part:

Contrary to your June 4 letter, the Union is not refusing to en-
gage in bargaining. In the interest of expediting the matter,
the Union is ready to engage in effects negotiations as soon as
you rescind the May 12, 1999, conditions that Champion
unlawfully implemented.

LaVaute went on to state:

Without waiving our right to the information requested, we
are willing to engage in negotiations at the same time as we
attempt to resolve the information demand issues. We reserve
the right to undertake negotiations as to the decision to im-
plement the transaction, and any negotiations now are not a
waiver of that position.

LaVaute explained the relevance of PACE’s information re-
quest for “memoranda, communications, and analysis related to
the transaction.” He stated that it would help PACE learn the
reasons for the transaction, the intentions of the parties con-
cerning the workforce and PACE, and whether DPC was exer-
cising employer like influence over the conditions of employ-
ment of the unit employees prior to the closing date. LaVaute
also asserted that PACE had been engaging in negotiations over
the requested information and he tendered along with his letter
a proposed confidentiality agreement relating to PACE’s re-
quest for the APA.
On June 8, Foster faxed a response to LaVaute stating:

I will reiterate for you, as I have for Mr. Bellmore, that
Champion has not implemented anything, much less illegally
so. My letters of June 1 and June 4, 1999 have stated that “. . .
Champion’s position that all items concerning the effects of
sale upon bargaining unit employees, including severance
pay, remain fully negotiable.” [Emphasis supplied.] That be-
ing the case, I am at a loss to understand what you mean by
“rescind.” Severance pay, under any conditions, does not ex-
ist for PACE-represented employees. Perhaps you could ex-
plain what “rescind” means, given that fact and Champion’s
position.

Foster, in his June 8 letter, also issued a counterproposal con-
cerning LaVaute’s proposed confidentiality agreement for the
APA. There, Foster stated that since the Respondent had al-
ready furnished the APA to Region 3 in response to PACE’s
unfair labor practice charge, he requested that PACE rescind
paragraph 5 from its proposed confidentiality agreement. Para-
graph 5 allowed PACE to use the APA in NLRB or court litiga-
tion pertaining to the Respondent or DPC.
LaVaute responded by fax on June 9, stating:

What I meant by “rescind” is that Champion has unilaterally
implemented a proposal that conditions the receipt of any sev-
erance pay upon employees meeting certain requirements as
to application with Deferiet Paper Company. The proposal,
which set these conditions, was communicated in writing

Unions on May 24. Under the IAM’s effects agreement, severance pay
and eligibility were governed by the Respondent’s policy 818.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 682
ing directly to the employees, which is a violation of the
NLRA. Champion should advise the employees, in the same
manner as they were given the conditions, that the conditions
set out in the May 12 letter are withdrawn, and bargain in
good faith with the Union.

LaVaute also stated that PACE refused to delete paragraph 5
from its proposed confidentiality agreement.
On June 10, Foster faxed a response to LaVaute. He stated
that the Respondent was willing to accept PACE’s proposed
confidentiality agreement for the APA, to allow bargaining to
resume “on or before June 11.” LaVaute was informed that the
APA was at the Deferiet mill in a sealed envelope and that
Bellmore could pick it up for LaVaute’s review. The letter
stated, “For your information, also attached is a memo posted at
the Deferiet Mill addressing the concerns relative to the May
12, 1999 letter.” The attached memo was dated June 10, signed
by Records, and on the Respondent’s letterhead. It read as
follows:

This letter is intended to clarify apparent misunderstandings
that have arisen concerning severance pay in connection with
the sale of the Deferiet mill.

There is in place a severance pay policy for salaried employ-
ees. In addition, Local 1009 of the IAM & AW and Cham-
pion have reached an agreement over the effects of the sale
which contains severance pay provisions.

With reference to employees represented by Local 45 and 56
of the PACE International Union and by Local 349 of the
NCF&O, it is important to understand that there are no sever-
ance pay provisions with regard to these employees. This
would include severance pay and any conditions for the re-
ceipt of severance pay. Any provisions relative to the receipt
of severance pay, including conditions for the receipt of such
pay, must be negotiated and agreed to by the respective un-
ions. There have been no agreements reached and, accord-
ingly, there are no severance provisions in effect. If and when
agreements are reached, severance pay, if any, will be admin-
istered in accordance with these agreements.

Effects of sale negotiations between Champion and PACE
Locals 45 and 56 and NCF&O Local 349 took place from
May 24–26, 1999 and have been in recess since. Champion is
hopeful that effects bargaining will resume, and has been
available to do so from May 26th until the present. It is our
sincere desire to resume bargaining and to conclude agree-
ments relative to the effects of the sale upon those bargaining
unit employees.21

On June 11, Bellmore went to the mill and picked up
PACE’s copy of the APA. Under the terms of the confidential-
ity agreement, Bellmore was precluded from personally review-
ing the document, rather he was required to deliver it to
LaVaute to have it inspected. Bellmore spoke to Watson while

21 Plummer credibly testified that Records’ June 10 memo was
posted in his work area where the Respondent typically posted notices
to employees. He testified that the memo was not distributed individu-
ally to employees, nor did he sign for the memo as he had for the Re-
cords’ May 12 letter and the accompanying DPC employment packet.
he was at the mill. Watson told Bellmore that DPC was going
to take over the mill at about 3 p.m. that day. Bellmore credi-
bly testified that he had no prior knowledge that the closing was
going to take place on that date.22
The next bargaining session occurred on June 14, and Bell-
more believed that he initiated the meeting. The meeting took
place at the Ramada Inn in Watertown, New York. In atten-
dance were Bellmore, members of his committee, Henry and
Plummer for the Firemen & Oilers, and Culbreth, Robinson,
and Thorpe for the Respondent. During the meeting, Bellmore
tendered a letter to Culbreth citing the APA and asserting that
the APA provided that the Respondent could not negotiate a
severance policy with PACE that was more favorable to the
employees than policy 830, without approval of DPC. The
letter requested a copy of policy 830, and stated that “we de-
mand that” DPC “representatives with authority participate in
these negotiations.” The parties discussed Bellmore’s request
for policy 830, during the meeting and they also discussed
some pending grievances. Following the grievance discussion,
Culbreth caucused for about 2 or 3 hours. Bellmore and Henry
then looked for and found Culbreth. At that time, Culbreth
stated that he did not see the necessity of having DPC represen-
tatives attend the negotiations and that it was unlikely that they
would participate in effects bargaining. Culbreth stated that
perhaps policy 830 would be forwarded to PACE and the meet-
ing ended.
The parties met again on June 15 at the same location. Cul-
breth stated that DPC would not participate in negotiations and
that policy 830 would be forwarded to the Unions. The meet-
ing lasted around 30 minutes. This was the last effects bargain-
ing session.
Bellmore received policy 830 on June 16 or 17. The cover
letter from Culbreth reiterated that DPC representatives would
not attend negotiations and that the Respondent would not re-
quest DPC to release PACE committee members from work to
allow them to attend effects bargaining. This was in response
to another request that Bellmore had made during the June 14
and 15 sessions, which Culbreth had also denied at that time.
Culbreth’s letter stated that LaVaute had stated in his June 7
letter that PACE was willing to engage in negotiations while
the parties attempted to resolve the information request issues.
It accused Bellmore and Henry of refusing to meet since May
26, and stated that “now Champion’s last offer has been with-
drawn as of June 11, 1999. I am at a loss to understand your
22 I credit this aspect of Bellmore’s testimony. Culbreth testified that
he thought that he called Bellmore on about June 10, and told Bellmore
that it was essential that they meet to bargain because it appeared that
the closing was taking place. However, on further questioning, Cul-
breth stated that he did not tell Bellmore to a certainty that closing
would take place on June 11. Rather, he claimed to have told Bellmore
that based on what he, Culbreth, knew closing would take place on June
11. Culbreth testified that, during the conversation, Bellmore agreed to
meet on June14. I do not find that this conversation occurred as Cul-
breth claimed. First, I note that Culbreth had memorialized other phone
calls to Bellmore with follow up letters, which did not occur here.
Moreover, Foster had written to LaVaute on June 10, but did not see fit
to inform him of the closing date.
CHAMPION INTERNATIONAL CORP. 683
failure to negotiate the effects of sale.” Culbreth stated that he
remained available to bargain over the effects of the sale.
LaVaute responded to Culbreth by letter dated June 17.
There LaVaute accused the Respondent of failing to rescind its
unlawfully implemented conditions of the Records’ May 12
letter. LaVaute stated that he had explained to Foster in a prior
letter that “rescind meant to communicate in writing directly to
the employees that the conditions set out in the May 12 letter
were withdrawn.” LaVaute cited the Respondent’s June 10
posting to employees and went on to state:

the claim in your letter that the unions have failed to meet
with the company since May 26, 1999, erroneously implies
that the unions are at fault, whereas Champion’s intransigence
and unlawful unilateral acts which it refused to rescind kept
the parties from meeting.
As Mr. Bellmore has advised you this week, it is clear
that we need to have Deferiet Paper Company at the bar-
gaining table for effects bargaining, and your June 16 let-
ter established that you are refusing to arrange for that.
And you state in your June 16 letter that Champion’s last
offer has been withdrawn as of June 11, 1999. PACE will
pursue its remedies with the National Labor Relations
Board.
C. The Testimony of the Respondent’s Witnesses
Respondent witnesses Culbreth, Watson, Robinson, and
Ames attempted to downplay the extent of the Unions’ protest
over Records’ May 12 letter during the May 24 and 25 bargain-
ing sessions. This was highlighted by Culbreth, Watson, and
Robinson’s claim that the Unions did not ask that the letter be
rescinded during either of the meetings, and Ames’ claim that
the letter was dropped after the Unions brought it up during the
morning of May 24. However, I have found the testimony of
the Respondent’s witnesses concerning the discussions around
the May 12 letter to be inconsistent between witnesses, and
internally inconsistent. Taking into consideration the wit-
nesses’ demeanor, I have found the Respondent’s witnesses’
testimony to be not as reliable as the credited testimony of the
General Counsel’s witnesses set forth above, which was cor-
roborated by certain admissions by the Respondent’s witnesses.
Mushell Robinson held the position as the Respondent’s or-
ganizational development human resources specialist during the
May and June negotiations. She was working for Culbreth at
that time and was a member of the Respondent’s bargaining
committee. Robinson no longer worked for the Respondent at
the time of the hearing and her recollection of the May and
June negotiation sessions was hazy at best even though she was
allowed to review her notes during her testimony. For instance,
Robinson testified that Henry attended the May 25 meeting, but
she could not recall what Henry said at the meeting. However,
Robinson incredibly claimed that she knew to a certainty that
nothing was said about rescinding the May 12 letter during the
meeting. Taking into consideration Robinson’s demeanor, as
well as her selective memory, I have concluded that she re-
mained aligned with the Respondent when she testified. I do
not find Robinson’s claim that there was no request by the Un-
ions that the Records’ letter be rescinded on May 24 and 25 to
be worthy of belief. Rather, Robinson’s response appeared to
be rehearsed and in my view it served to undercut the testimony
of the Respondent’s other witnesses. Watson, although she was
fairly specific about most of her testimony, when she was asked
if anyone said anything about rescinding the May 12 letter at
the May 24 meeting, replied, “Not that I recall; no.” Moreover,
as set forth in detail below, I have concluded that Culbreth had
a tendency to shade testimony. I have therefore not credited the
claims of the Respondent’s witnesses that the union representa-
tives failed to ask that the May 12 letter be rescinded during the
May 24 and 25 meetings.
Culbreth testified as follows concerning the discussion of
May 12 letter at the May 24 session: Following the Unions’
presentation of their agendas for negotiations, Culbreth pre-
sented the Respondent’s written proposal to the Unions which
took place in the afternoon. It was during the discussion of the
Respondent’s proposal that most of the Unions’ complaints
about the severance issues arose. There were complaints by
several union officials about employees having to go through
drug testing in that the Respondent had only theretofore bar-
gained for drug testing for cause. The Unions’ complaint was
that “this somehow ended up being a random testing, using hair
samples and things the Company hadn’t bargained.” Culbreth
responded that this was DPC’s drug testing plan not the Re-
spondent’s, which generated the question of how the Respon-
dent would exclude employees from severance pay based on
the drug testing. Culbreth explained that there were 10 or 12
issues that could exclude an employee from severance. He
stated that a process would be set up where DPC would notify
the Respondent that an employee was not eligible and that the
employee could appeal the decision through the appeals proce-
dures governed by ERISA guidelines. Culbreth stated that the
Respondent would not find out that an employee failed a drug
test unless the employee in the appeal process released that
information to the Respondent. Culbreth testified that the par-
ties talked about the whole application process, and that it was
in this context that, in his words, there was a “brief” discussion
about the May 12 letter. However, Culbreth’s claim that the
May 12 letter and complaints about drug testing were not dis-
cussed until the afternoon on May 24, was undercut by a state-
ment contained his prehearing affidavit. He stated in the affi-
davit that during the early portion of the meeting the union
representatives complained of the May 12 letter. Moreover,
Respondent witness Ames testified that the Unions brought up
the May 12 letter during the morning on May 24.23

23 While Ames was the IAM Lodge 1009 president during the events
in question, he was called to testify as the Respondent’s witness. Based
on his demeanor and testimony as a whole, I have concluded that, al-
though Ames had been a union official, his interests here were more in
line with that of the Respondent than the Charging Party Unions. In
this regard, IAM Lodge 1009 split with the other two Unions and ac-
cepted the Respondent’s proposal for effects bargaining. Based on my
observation of former IAM Lodge 1009 officials Ames and Pinkham
during their testimony, I sensed that there was a rivalry between Ma-
chinists and the charging parties. Moreover, I have concluded that
there was a general unreliability about Ames and Pinkham’s testimony,
which is more fully discussed below. Nevertheless, I credit Ames’
testimony that the May 12 letter was first discussed during the morning
of May 24, over Culbreth’s claim that it was not brought up until later
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 684
Culbreth testified that Bellmore brought up the May 12 letter
as to the employees having to go through the application proc-
ess, including drug testing. Culbreth looked at the letter at the
meeting and told Bellmore that he did not have anything to do
with the letter. Culbreth testified that he stated that the Re-
spondent had a great concern for employee benefits, and that he
felt that the letter was to insure that employees were employed
by the new employer. He testified that it was at that point that
they basically stopped talking about the letter.
While Culbreth claimed that the May 12 letter was not spe-
cifically mentioned again during the parties’ meetings, he testi-
fied as follows in reference to the letter:

JUDGE FINE: But the topic of the letter—what was in-
cluded in the letter was discussed?
WITNESS: At length; and there were many, many com-
plaints about drug testing, about application.

Culbreth later denied that he was asked to rescind the letter
during the negotiation sessions, stating that the “[o]nly time I
ever saw about rescinding the letter was in a letter that Mr.
Bellmore sent to Company Counsel.” “We talked about that
letter just purely from the merits of the letter. The testing was
done. I don’t even understand what you mean about rescinding
the letter.” Culbreth then testified that the Records’ May 12
letter did not talk about drug testing. He also incredibly
claimed in contradiction to his prior testimony that he did not
know that the term testing in the letter referred to drug testing.
When asked what the word testing in the letter referred to, Cul-
breth testified while looking at the letter that, “[i]t says
‘Application, interview, testing.’ I know they took written tests.
I had absolutely nothing to do with either the letter or the
testing process.”

Culbreth testified that the Respondent maintained the follow-
ing positions in its negotiations with the Unions:

JUDGE FINE: All right. So it was a condition that you
had to apply to the purchaser in order—and be rejected—
the Company’s view, . . . was that if you applied to the
purchaser and got hired, you wouldn’t get severance. If
you didn’t apply to the purchaser, you wouldn’t get sever-
ance. It was only those who applied to the purchaser and
were not hired that would get severance.
WITNESS: That’s correct.
JUDGE FINE: And you informed the Union of that?
WITNESS: Yes, sir.
JUDGE FINE: Well, I think of one more point and ask
one question here. If somebody applied to the Com-
pany—to the new Company—to the new Employer, took a
drug test and failed, so they were not hired; what was
Champion’s position? Would that person be entitled to
severance or not?
WITNESS: Well, Champion’s position was: In the first
place, we wouldn’t know if that person flunked the drug
test; that they would be told—Champion would be told by
Deferiet Paper that they were not an eligible employee.

in the day. In this regard, Ames had no reason to misstate this point,
while Culbreth was intentionally attempting to downplay the Unions’
protest concerning the letter.
JUDGE FINE: Eligible for what?
WITNESS: For severance.
JUDGE FINE: So in other words, in order to get sever-
ance, you not only had to apply, but you had to pass the
drug test?
WITNESS: Right . . . .

Culbreth testified that the parties did reconvene the morning
of May 25, and that they got back into some of the same issues.
He testified that “Mr. Henry made several comments, reiterat-
ing some of the same criticisms and complaints from the day
before, and . . . .” Henry’s comments were that “what we were
doing was unfair and unreasonable, and he thought that this was
illegal and that there were—we weren’t bargaining in good
faith, . . . .” Culbreth testified that he responded that Henry
needed to be more specific concerning allegations that Culbreth
was not bargaining in good faith.
While Culbreth testified that the May 12 letter was only
briefly discussed on May 24, and that it was not mentioned
thereafter. Respondent witness Watson testified as follows:
The May 12 letter was discussed during the May 24 bargaining
session and the “Union objected to the fact that the employees
had to apply and interview for positions within Crabar, and
there was a lengthy discussion around the drug testing.” Wat-
son testified that, during the May 25 negotiation session,
“There was again a lot of discussion about the letter itself,
. . . .” Watson testified that the parties discussed the same
things about the letter on May 25 that they had on May 24
about the employees “having to apply, interview, and go
through the drug testing.” Watson testified that she specifically
remembered Henry speaking and that “he objected to the fact
that the employees had to go through the interviewing, the ap-
plication process, and the drug screening.” Henry explained
that the union contract did not permit hair testing, and there was
a concern that the Respondent might be able to get the results
of the drug test. Watson admitted that the Unions objected to
the May 12 letter on May 24 and 25 because the items in the
letter including drug testing and applying for a job were a con-
dition for getting severance. Thus, Culbreth’s claims that the
letter was not discussed on May 25, or that Henry’s assertion
on that date that Respondent was engaged in unlawful conduct
was not specific is plainly undercut by Watson’s testimony.
The credited testimony of Bellmore, Henry, and Watson es-
tablishes that the Unions’ protest over the May 12 letter related
to DPC’s application process, and in particular that the employ-
ees had to be drug tested by hair testing in order to qualify for
severance. In sum, I have concluded that the May 12 letter
directed the employees to apply to DPC, and undergo testing as
part of the application process in order to qualify for severance
from the Respondent. The accompanying DPC employment
packet required the employees to be drug tested, and I conclude
that Culbreth, at a minimum, was informed and knew this to be
the case during the May 24 meeting. Moreover, I conclude that
Bellmore repeatedly asked the Respondent to rescind the May
12 letter on May 24 and 25, and that Henry joined this request
on May 25 when he first attended negotiations.
William Foster, the senior associate counsel for the Respon-
dent, testified that he drafted the May 12 letter baring Records’
CHAMPION INTERNATIONAL CORP. 685
signature. Foster claimed that the letter was only supposed to
be distributed to salaried employees at the Deferiet mill, along
with their DPC application folder. However, at some point
which he could not specify, Foster became aware that the letter
was also distributed to bargaining unit employees. Foster testi-
fied that, “I know that at some point, Mike Culbreth mentioned
that the Unions at the first meeting were not happy with their
members getting the letter; and I just reaffirmed to Mike to tell
them that everything was negotiable; this doesn’t do anything.”
Foster testified that he “had many, many discussions with re-
spect to” the May 12 letter, as well as correspondence with
PACE’s attorney about the letter. Foster testified as follows
about what he contended was an inadvertent distribution of the
May 12 letter to bargaining unit employees:

Q. Now once you heard of this more wide dissemina-
tion, did you—you put a stop to any distribution? Did you
put out any further memo immediately upon hearing about
this more wide distribution, saying that that was improper?
A. Okay, Number one, no; I didn’t put a stop because
it was already out.
Q .So you heard about it after . . . .
A. It had already been distributed.
A. Number two, did I send out something explaining it
immediately? Answer: no.24

Part of PACE and the Firemen & Oilers’ dispute with the
Respondent during negotiations was the Unions’ request for a
copy of the APA and the Respondent’s refusal to provide it
absent the Unions agreeing to a confidentiality agreement con-
cerning the document. The dispute over the APA was a factor
contributing to the delay in scheduling negotiation sessions
after May 26. Culbreth testified that he called Bellmore on
June 3, in an effort to set up a meeting on June 4, and Bellmore
declined. Culbreth was attempting by this testimony to place
the blame on PACE for the breakdown in negotiations. Cul-
breth, concerning his June 3 call to Bellmore, incredibly testi-
fied that he thought that the APA was provided to PACE on
May 27 or 28. Yet, the evidence revealed that PACE was not
provided with a copy of the APA until June 11. Culbreth de-
nied, at the hearing, that he was aware that PACE had not re-
ceived the APA as of his June 3 phone call to Bellmore. Cul-
breth’s testimony was undercut by his June 4 letter to Bellmore
accusing PACE of refusing to bargain about the confidentiality
of “the nonemployee related provisions of the APA.” Culbreth
had previously conditioned PACE’s receipt of the APA on its
entering a confidentiality agreement. Culbreth’s statement in
his June 4 letter clearly reveals that, at that the time of his June
3 call to Bellmore, Culbreth was aware that PACE had not yet
received the APA. Culbreth also acknowledged on cross-exam,
that he had been copied a letter from Foster to Bellmore, dated
June 10, showing that the APA was actually made available to

24 This line in the transcript appearing at p. 359 actually reads, “Q.
Number two, did I send out something explaining it immediately?
Answer: no.” However, this was not a question posed to Foster, rather
both sentences were in fact his testimony in response to a prior ques-
tion, so I have corrected the transcript as set forth above.
Bellmore at the mill on June 11. Despite being copied the let-
ter, Culbreth testified as follows:

JUDGE FINE: Do you remember if you received a copy
of this document?
WITNESS: I don’t remember. I must have. It was cop-
ied to me; but he asked me to verify from a June 10th let-
ter whether it affected a conversation that took place on
June 3rd.
JUDGE FINE: Not the—right. Was it your understand-
ing that the Union received the Asset Purchase Agreement
after June 10th?
WITNESS: I think PACE received it, but I don’t even
think Mr. Henry ever signed the Confidentiality Agree-
ment.
JUDGE FINE: All right. But PACE received it after
June 10th; is that—does that make sense from what you
. . . .
WITNESS: It makes sense. Was I involved in it?
JUDGE FINE: Do you know?
WITNESS: No.

Culbreth testified that the Charging Party Unions maintained
the position throughout negotiations that the Respondent should
pay 2 weeks severance pay for all employees regardless of
whether they were hired by DPC. Culbreth also testified that
the Respondent maintained the position throughout the negotia-
tions that the Respondent would not pay severance pay to per-
sons who resigned from the Respondent’s employ or who were
hired by DPC following the sale at the same job with the same
rate of pay.
The Respondent called as witnesses Steve Ames and Bruce
Pinkham the former president and vice president of IAM Lodge
1009, who were former employees of the Respondent at the
mill. I did not find their testimony concerning an alleged con-
versation with Bellmore during a break in negotiations on May
25 to be credible. First, Bellmore credibly testified that his
brief May 25 conversation with Ames occurred at the end of a
long caucus with the caucus lasting 5 to 6 hours. He testified
that the caucus began around noon and that his conversation
with Ames did not occur until after 5 p.m. Bellmore’s testi-
mony as to the length of the caucus was confirmed by Culbreth,
who while on the witness stand, cited Bellmore’s testimony as
to the length of the caucus with approval. On the other hand,
Ames estimated that the caucus was only around an hour in
duration with Pinkham stating that it was only 10 or 15 min-
utes. The length of the caucus is important because Bellmore
credibly testified that he saw both Ames and Pinkham in the
hotel bar drinking beer during the course of the caucus. Both
Bellmore and Henry credibly testified that Ames showed signs
of intoxication during the brief conversation at issue. Ames
admitted that he was drinking beer during the caucus. When
asked how many beers he had, Ames stated, “I didn’t count
them. Probably a couple of beers.” When he was later asked if
that was all he had Ames stated, “I can’t remember, sir; it’s a
year ago.” When asked if other IAM committee members were
drinking at the bar, Ames stated that Lyle Clark and Tom Holl
did not. I therefore credit Ames and Bellmore’s testimony that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 686
Pinkham was drinking during the caucus, and I discredit his
claim to the contrary.
Ames testified that, during the caucus, he along with the
IAM committee were having a hard time in that “we didn’t
know why we needed 600 pages of the APA, . . . .”25 Ames
testified that this concern lead to a conversation with Bellmore
outside the hotel. Ames testified as follows:

WITNESS: When he walked out the door, I asked him,
“Why are you insisting on the purchase agreement?” He
said, “I want to get it in my attorney’s—our attorney’s
hands.” And they’re going to file an unfair labor charge.
And he said, “We are going to block the sale of this mill.”
JUDGE FINE: Was that the whole conversation; as you
can recall it?
WITNESS: As I can recall it.

Ames testified that he did not ask any followup questions, nor
did any members of the Machinists group, who were present for
the conversation. However, Ames also testified that, during
this time period in and out of negotiations, Bellmore stated that
he needed the requested information to examine the nature of
the sale as to whether it was a stock transfer, asset transfer,
whether there was a joint employer relationship between the
two companies, and for effects bargaining.
Pinkham, who testified that he was present for the conversa-
tion, gave a different account of what was said than did Ames.
According to Pinkham, Ames asked Bellmore what he was
going to do with the APA, and Bellmore responded, “[T]hat he
thought he could delay these proceedings and—and possibly
block the sale.” Contrary to Ames, Pinkham claimed that he
asked a followup question by inquiring to Bellmore, “Do you
really think you can do this?” and Bellmore said, “Yes.” On
cross-examination, Pinkham’s testimony changed. He then
testified that the general theme of the conversation with Bell-
more was that PACE was going to insist on getting the re-
quested information, that there might be unfair labor practice
charges filed, and that this might delay or block the sale. Based
on the forgoing, as well as considerations of demeanor, I did
not find Ames and Pinkhams’ versions of the May 25 conversa-
tion with Bellmore to be worthy of belief.
Bellmore testified that he did have a conversation with Ames
on May 25, where Ames inquired about the need for the APA.
Bellmore responded that APA was relevant to negotiations and
that the PACE was not going to negotiate in the dark. Bellmore
mentioned that the vacation issue was tied to the APA, and it
was important to learn if there was any joint employer relation-
ship, because Ames, along with his committee had raised the
issue of whether the Respondent continued to have a relation-
ship with Crabar at the Deferiet mill. Bellmore stated that one
way to find that out was through the APA. Bellmore credibly
denied telling Ames that he was requesting the APA to try to
block the sale and he denied using the word delay during the
conversation. Henry, who was present for the conversation,

25 Ames testimony here confirmed that of Bellmore that Culbreth
had stated that the APA was 500 to 600 pages long in response to the
Unions’ information request. In fact, the APA was submitted into
evidence and it is a 65-page document.
also credibly denied that Bellmore said anything about delaying
or blocking the sale of the mill.
D. Analysis and Conclusions
1. Severance pay
a. Legal principles
In Holly Farms Corp. v. NLRB, 48 F.3d 1360, 1368 (4th Cir.
1995), cert. granted in nonpertinent part 515 U.S. 963 (1995),
affd. 517 U.S. 392 (1996), the Fourth Circuit stated the follow-
ing in enforcing a Board order:

An employer’s duty to bargain with its union encompasses the
obligation to bargain over the following mandatory subjects—
“wages, hours, and other terms and conditions of employ-
ment.” 29 U.S.C. § 158(d); see id. § 158(a)(5). That obliga-
tion includes a duty to bargain about the “effects” on employ-
ees of a management decision that is not itself subject to the
bargaining obligation. See First Nat’l Maintenance Corp. v.
NLRB, 452 U.S. 666, 679–[6]82, 101 S.Ct. 2573, 2581–
[25]83, 69 L.Ed.2d 318 (1981); NLRB v. Litton Fin. Printing
Div., 893 F.2d 1128, 1133–[11]34 (9th Cir.1990), rev’d in
part on other grounds, 501 U.S. 190, 111 S.Ct. 2215, 115
L.Ed.2d 177 (1991). Where changes in employee working
conditions constitute such a bargainable effect, an employer
violates § 8(a)(5) and (1) of the Act by implementing those
changes without bargaining with the union. See Litton, 893
F.2d at 1133–[11]34. The employer also violates § 8(a)(5)
and (1) if it negotiates directly with its employees, rather than
with their union representative, about such changes. See
EPE, 845 F.2d at 491.

In Holly Farms, supra, the respondent was found to have
violated Section 8(a)(5) of the Act when it announced that bar-
gaining unit employees would be offered jobs in a merged op-
eration under the working conditions of Tyson Food, Inc., the
other entity involved in the merger. The court concluded that,
“[t]hat announcement plainly changed a wide range of mat-
ters—including wages, hours, work rules, work schedules, and
work locations—that go to the heart of the bargaining obliga-
tion under Section 8 of the Act.” Id. at 1368. The court noted
that following these announcements, the company sent letters to
the employees offering them jobs as Tyson employees under
Tyson’s working conditions, and it met with groups of employ-
ees to discuss those working conditions. The court held that by
its actions the company bypassed the union and negotiated
directly with employees. The court also stated that “the Board
reasonably concluded that the changes unilaterally established
by Tyson concerned mandatory subjects of bargaining—
‘effects’ of the nonbargainable decision to integrate Tyson’s
and Holly Farms’ transportation departments. Accordingly, we
enforce the Board’s order to the extent that it found Tyson’s
refusal to bargain with the Union to be a violation of the Act.”
Id. at 1369.
In NLRB v. Roll & Hold Warehouse & Distribution Corp.,
162 F.3d 513 (7th Cir. 1998), a case involving the respondent
employer’s unlawful unilateral implementation of an atten-
dance policy, the court held concerning notice by an employer
of a new policy that:
CHAMPION INTERNATIONAL CORP. 687

Notice will not be deemed adequate unless it permits a union
to meaningfully negotiate over a new policy, NLRB v. Em-
sing’s Supermarket, 872 F.2d 1279, 1286–[12]87 (7th Cir.
1989), and the determination of the adequacy of notice is es-
sentially one of fact reviewed for substantial evidence. Id.
Similarly, a union’s demand to negotiate will be considered
futile when an employer presents a new policy as a fait ac-
compli, indicating that it is unwilling to deal with the union in
good faith. Ciba-Geigy Pharmaceuticals [Division], 264
NLRB 1013 (1982). The Board concluded that the Union did
not need to make a bargaining demand because the attendance
plan was presented as a fait accompli and additionally, be-
cause the Union’s negotiating position had been seriously un-
dermined when Roll dealt directly with its employees, thereby
precluding meaningful negotiations. Id. at 519.

The court enforced the Board order finding a violation, al-
though it indicated its skepticism that the policy was presented
to the union there as a fait accompli. However, the court went
on to state at pages 519 to 520 that:

We find more convincing the Board’s second reason for find-
ing that no opportunity for meaningful negotiation existed
here: that by presenting the plan directly to employees before
notifying the Union, the Union’s negotiating role was signifi-
cantly undermined. Detroit Edison Co., 310 NLRB 564,
565–[5]66 (1993). One of the purposes of early notification is
to allow a union the opportunity to discuss a new policy with
unit employees so it can determine whether to support, op-
pose or modify the proposed change. When an employer first
presents a policy to its employees without going through the
Union, the Union’s role as the exclusive bargaining agent of
the employees is undermined. See Inland Tugs v. NLRB, 918
F.2d 1299, 1311 (7th Cir. 1990). Under these circumstances
it is more difficult for the Union to present a unified front dur-
ing negotiations. See Friederich Truck Service, 259 NLRB
1294, 1299 (1982). Also, if the change proves popular among
employees, direct dealing may convince them that union rep-
resentation is unnecessary. See Detroit Edison Co., 310
NLRB at 565–[5]66 (employer’s direct dealing over working
conditions “convey[ed] to employees the notion that they
would benefit more, or receive greater consideration, without
union representation”).

The ALJ found, and Roll does not dispute, that the Union
only learned of the proposed attendance policy change during
the process of Becker explaining it to the general workforce.
The NLRB has previously held that this does not satisfy the
special notice requirement. Ciba-Geigy Pharmaceuticals,
264 NLRB at 1017 (union not given proper notice where its
representatives “became aware of [the policy] merely because
they themselves were employees”). Additionally, Roll admit-
ted that the small group meeting with employees involved
“full blown discussions” of the new policy. The Board could
reasonably infer from this that Roll was engaged in negotia-
tions directly with employees before the Union learned of the
new policy change. The Board concluded that at that point,
damage had already been done to the Union’s role as the em-
ployees’ exclusive bargaining representative. In these cir-
cumstances, the Board has previously said that failure by the
Union to demand bargaining does not waive their right to bar-
gain. Detroit Edison Co., 310 NLRB at 565–[5]66; see Ciba-
Geigy Pharmaceuticals [Division], 264 NLRB at 1017; see
also Gratiot Community Hosp., 312 NLRB 1075 (1993),
enforced, 51 F.3d 1255, 1259–[12]60 (6th Cir.1995); Inter-
mountain Rural Elec. Ass’n v. NLRB, 984 F.2d 1562, 1567–
[15]68 (10th Cir. 1993); Southwest Forest Industries v. NLRB,
841 F.2d 270, 273–[2]74 (9th Cir. 1988).
b. Conclusions
In the instant case, the Respondent entered into the APA
with Crabar and DPC for the sale of the Deferiet mill. The
APA by its terms had an effective date of May 11, with a pro-
jected closing date of the sale to take place between June 1 and
June 30. The APA also provided that the Respondent was to
allow the purchaser to meet with the employees at the mill to
present the employees with applications and a handbook. The
Respondent, under the APA, was also supposed to provide the
purchaser with space at the mill to “interview applicants and
conduct employment-related testing.”
On May 11, the Respondent’s bargaining unit employees
were told to report to the mill’s human resources department.
Once there they were given an application folder for employ-
ment with DPC, the purchaser of the mill, with a letter dated
May 12 stapled to the top. The May 12 letter was signed by
Records, the Respondent’s vice president of organizational
development, human resources, and corporate facilities. The
May 12 letter and folder were distributed under the supervision
of Watson, the Respondent’s human resource manager of the
mill. In order to receive the Records’ letter and DPC applica-
tion folder employees had to identify themselves and sign for
the packet. Former Respondent employee Plummer’s credited
testimony reveals that he had to speak to Watson in order to
obtain the packet.
The May 12 letter informed employees that the Respondent
had agreed to provide space at the mill for DPC to interview
applicants and conduct employee related testing. It stated that
enclosed was a copy of DPC’s employment application packet.
It also stated that, “to be eligible for severance you must com-
plete the application process (application, interview, testing,
etc.) and be otherwise eligible in accordance with the terms of
the severance plan.” The DPC application folder contained a
document that informed employees that anyone wishing to be
considered for employment was required to “complete an ap-
plication for employment, complete a paper an[d] pencil sur-
vey, undergo a drug screen, and participate in an interview.”
The DPC packet contained a document entitled, “Applications-
Testing Schedule.” This document included a schedule for
May 12 and 13, when the Respondent’s employees were di-
rected to report to a nearby hotel to participate in the applica-
tion process. The evidence revealed that the vast majority of
bargaining unit employees participated in the DPC application
process on those dates, including being subjected to hair testing
for drug use. The credited testimony revealed that prior to that
time, the Respondent had only negotiated a for cause drug test-
ing policy with PACE, not an across the board testing program
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 688
as the employees were required to undergo as part of the DPC
application process.26
I have concluded that by its actions on May 11, in distribut-
ing the Records’ letter and the DPC application packet that the
Respondent unilaterally instituted preconditions for severance
pay, including applying for employment with DPC and under-
going drug testing as part of the application process, and that by
engaging in such conduct the Respondent violated Section
8(a)(5) and (1) of the Act. Severance pay as a form of wages
constitutes a mandatory subject of bargaining. See Your Host,
Inc., 315 NLRB 295 (1994); Waddell Engineering Co., 305
NLRB 279 (1991); and Continental Insurance Co. v. NLRB,
495 F.2d 44, 49 (2d Cir. 1974). Implicit in a union’s right to
engage in effects bargaining is its right to bargain over sever-
ance pay. See Los Angeles Soap Co., 300 NLRB 289, 295
(1990). Therefore, an employer violates Section 8(a)(5) and (1)
of the Act when it engages in unilateral changes or direct deal-
ing with employees concerning severance pay. The Respon-
dent here unilaterally conditioned its employees’ eligibility for
severance pay on applying to and undergoing drug testing by
another employer. Drug testing is a mandatory subject of bar-
gaining and unilateral changes in drug testing policies violate
Section 8(a)(1) and (5) of the Act. See Tocco, Inc., 323 NLRB
480 (1997) (a change in drug testing policy to across the board
testing violated Section 8(a)(5) of the Act); and Sivells, Inc.,
307 NLRB 986 (1992); Seiler Tank Truck Service, 307 NLRB
1090, 1100 (1992); Mistletoe Express Service, 300 NLRB 942
(1990); and Johnson-Bateman Co., 295 NLRB 180 (1989).
The Respondent announced the sale of the Deferiet mill on
May 11, and on that same date it distributed the Records’ letter
along with the DPC application instructions to approximately
440 employees in the combined PACE and Firemen and Oilers
collective-bargaining units. The employees had to sign for
application materials on May 11, and the application and drug
testing process took place on May 12 and 13. There was no
time here for the Unions to effectively consult with employees
or to engage in meaningful bargaining over the Respondent’s
implementation of its preconditions for severance pay. As
such, the Respondent’s unilateral action constituted a fait ac-
compli under Board law, and there was no requirement for the
Unions to request bargaining over the Respondent’s unilateral
change. See NLRB v. Roll & Hold Warehouse & Distribution
Corp., supra; NLRB v. Emsing’s Supermarket, supra; Ciba-
Geigy Pharmaceuticals Division, 264 NLRB 1013 (1982),
enfd. 722 F.2d 1120 (3d Cir. 1983); and Gratiot Community
Hospital, 312 NLRB 1075, 1080 (1993), enfd. 51 F.3d 1255
(6th Cir. 1995) pertaining to a unilateral termination of the
hospital’s scrub practice. See also S & I Transportation, Inc.,
311 NLRB 1388 fn. 1 (1993), where the Board affirmed the
judge’s conclusions that the respondent’s changes in its payroll
administration was presented as a fait accompli, and the union

26 There was no record evidence as to what if any drug testing pro-
gram had been in effect for Firemen’s & Oilers’ employees. However,
I would note that there was no claim by the Respondent that it was
theretofore entitled to engage in across the board testing of the employ-
ees in that bargaining unit.
did not waive its right to bargain by failing to request it. The
Board stated:

Specifically, the Respondent’s announcement directly to em-
ployees of unilateral action (the change in pay periods from
weekly to biweekly) indicates its intent to make changes with-
out bargaining with the Union.

I have also concluded that the Respondent engaged in unlaw-
ful direct dealing with bargaining unit employees by tendering
to them the Records’ letter conditioning severance on compli-
ance with the DPC application process, without having first
tendered these documents to the Unions. See Detroit Edison
Co., 310 NLRB 564 (1993), where the Board found the em-
ployer engaged in direct dealing by tendering a memo contain-
ing a sweetened proposal for phasing out a job classification
directly to employees, since the employer had failed to first
adequately present the proposal to their collective-bargaining
representative. Here the Respondent not only informed em-
ployees via the Records’ letter that completing the DPC appli-
cation process including testing was a condition for receiving
severance, it required the employees to sign for receipt of both
the letter and the DPC application folder. The Respondent
unilaterally instituted a process requiring employees to take
affirmative actions in order to qualify for a benefit that was a
mandatory subject of bargaining. Thus, the Respondent inter-
jected itself between the employees and their collective-
bargaining representatives thereby undermining the effects
bargaining process with the Unions. See Bridge-
stone/Firestone, Inc., 332 NLRB 575 (2000), where an em-
ployer was found to have engaged in unlawful direct dealing by
requiring employees to sign forms as a condition for the em-
ployer releasing the employees’ home addresses to a union.
While the consolidated complaint here did not specifically al-
lege a direct dealing allegation, I find that the Respondent’s
conduct here was part and parcel of its unlawful unilateral
change and that it was closely related to that complaint allega-
tion. I also find that it was fully litigated, and therefore it is
appropriate and warranted in the circumstances here to find this
additional violation of the Act. See Blue Circle Cement Co.,
319 NLRB 954, 962 fn. 10 (1995), enfd. in relevant part 106
F.3d 413 (10th Cir. 1997).
The Respondent’s subsequent conduct during negotiations
with the Unions confirms that it had no interest in bargaining
over the implementation of its severance program. Despite the
Respondent’s conduct set forth above, Bellmore went to the
mill on May 12, and asked Watson to have Culbreth call him to
conduct effects bargaining. Thereafter, the Respondent, PACE,
Firemen & Oilers, and Machinists Lodge 1009 met on May 24,
25, and 26, for effects bargaining. The credited evidence re-
veals that, during the May 24 meeting, officials of all three
Unions protested the Respondent’s unilateral implementation of
preconditions for severance including drug testing citing Re-
cords’ May 12 letter. Bellmore requested on several occasions
during the meeting that the Respondent rescind the conditions
set forth in the letter, but was rebuffed by Culbreth. Moreover,
during the meeting, Culbreth provided Bellmore with a pro-
posed “Effects of Sale Agreement” which included a severance
plan that incorporated the aspects of Records’ letter that the
CHAMPION INTERNATIONAL CORP. 689
Unions were protesting. That is in order for an employee to be
eligible for severance benefits they had to apply to DPC, fully
participate in the application process, and pass a drug test ad-
ministered by DPC. Bellmore protested that Respondent’s
severance proposal was a continuation of the unlawful policies
the Respondent had implemented in its May 12 letter. How-
ever, Culbreth stated that the plan had been submitted to
ERISA, and that he was not interested in rewriting the policy,
which would require approval and take several months. The
Unions’ protests and requests that the Respondent rescind the
severance preconditions continued on May 25. At that point
Henry joined in, with Culbreth admitting that Henry accused
the Respondent of engaging in unlawful conduct, and Watson
testifying that Henry’s protest centered on the conditions im-
posed by the May 12 letter and the severance policy. However,
the Respondent continued to refuse to rescind its pre-
conditions.
During the May 24 to 26 meetings, the Unions made infor-
mation requests centering on receiving a copy of the APA.
Following those meetings a chain of correspondence issued
between the parties concerning the Unions’ continuing protests
over the Respondent’s unilateral implementation of its sever-
ance policies, as well as the Unions’ information requests. By
letters dated May 28, June 4, 7, and 9, PACE repeated its re-
quests that the Respondent rescind the severance preconditions
it had implemented by its May 12 letter. In the June 9 letter,
PACE Attorney LaVaute told Respondent Attorney Foster that
the Respondent “should advise the employees, in the same
manner as they were given the conditions, that the conditions
set out in the May 12 letter are withdrawn, and bargain in good
faith with the Union.”
On June 10, Foster faxed a response to LaVaute stating that
Respondent was willing to accept PACE’ proposed confidenti-
ality agreement for the provision of the APA, to allow bargain-
ing to resume “on or before June 11.” Foster also attached a
memo dated June 10, which he stated was posted at the Deferiet
mill in “addressing the concerns relative to the May 12, 1999
letter.”27
The Respondent’s June 10 memo to employees did not cite
the May 12 letter, rather it stated that it was written to “clarify
apparent misunderstandings that have arisen concerning sever-

27 Culbreth had previously faxed Bellmore a letter on June 4 stating
that the Respondent’s effects bargaining proposal would be withdrawn
on June 11 absent good-faith bargaining by the Unions or an agreement
prior to that date. The General Counsel asserts in his brief that I should
conclude that these June 11 deadlines proffered by the Respondent’s
representatives were not fortuitous, and that the Respondent was aware
that June 11 was the scheduled closing date of the sale at the time these
letters issued. I have concluded that the General Counsel is correct in
this assertion and that the Respondent failed to inform the Unions of the
scheduled closing date at the time that it became aware of it and that the
Unions were not so informed until the date of the closing. I have also
concluded that the Respondent engaged in dilatory negotiations with
the Unions over the provision of the APA and relented in terms of
posting its June 10 memo to employees as close to the closing date as
possible in an effort to prevent bargaining prior to that date. In this
regard, the Respondent was aware that the Unions would lose a good
deal of their negotiating power after the closing date for the sale of the
mill.
ance pay . . . .” The memo pointed out that there was a sever-
ance pay policy for salaried employees and that IAM Lodge
1009 had reached agreement with the Respondent concerning
severance pay. The memo stated that there were no severance
pay provisions in effect for employees represented by the
Charging Party Unions and that any severance pay and condi-
tions for the receipt thereof had to be negotiated with the re-
spective unions. The memo stated that negotiations between
the Respondent and the Charging Party Unions took place dur-
ing May 24 to 26, and had been in recess since. It stated that
the Respondent had been available to meet since May 26 to the
present.
The Respondent’s June 10 memo neither met the PACE’s
repeated request that the Respondent rescind its May 12 letter,
nor did it meet the Board’s requirements to absolve a respon-
dent from liability for the commission of unfair labor practices.
In order to escape liability, a respondent’s disavowal of unlaw-
ful conduct must be timely, unambiguous, specific in nature to
the coercive conduct, and free from other proscribed illegal
conduct. Furthermore, there must be adequate publication and
assurances given to employees that the respondent will not
violate the Act. See Passavant Memorial Area Hospital, 237
NLRB 138, 138–139 (1978). Accord: Sam’s Club, 322 NLRB
8, 9 (1996), enfd. 141 F.3d 653 (6th Cir, 1998). The Respon-
dent’s June 10 memo does not acknowledge that it engaged in
direct dealing or that it failed to bargain with the Unions prior
to its unilateral implementation of its preconditions for sever-
ance pay, including across the board drug testing. The Respon-
dent’s June 10 memo was untimely in that it issued the day
before closing of the sale despite numerous requests by the
Unions for prior action. The Respondent’s premise of the letter
that there was a misunderstanding clearly does not meet the
Board’s requirement of repudiation of its unfair labor practices.
See Branch International Services, 310 NLRB 1092, 1105
(1193), enfd. 12 F.3d 213 (6th Cir. 1993). The Respondent also
did not inform employees that it would not engage in further
unfair labor practices. Rather, by the memo the Respondent
continued in its course of conduct of attempting to drive a
wedge between the Unions and their members by casting the
blame on the Unions for the lack of a severance program for
their membership. The Respondent also implied that the Un-
ions were at fault for the breakdown in negotiations while at the
same time pointing out that its other employees had a severance
program in effect.
c. The Respondent’s defenses
The Respondent contends that the Charging Party Unions
were afforded adequate notice of the impending sale of the
Deferiet mill and the opportunity to bargain over the effects on
bargaining unit employees. The Respondent asserts that the
evidence shows that the Unions learned of the sale on May 11,
and that Culbreth called Bellmore and Henry on May 12 in an
effort to initiate bargaining. However, despite Culbreth’s re-
quests to meet earlier the Unions were not able to meet until
May 24. Moreover, although the Unions were made aware of
the sale on May 11, the sale did not close for another 30 days
until June 11. I have concluded that the Respondent having
informed the Unions of the sale a month before closing did
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 690
provide the Unions with timely notice of the sale. Therefore
the allegation of the consolidated complaint contending that the
Respondent failed to give the Unions timely notice of the sale is
dismissed. See Associated Constructors, 325 NLRB 998, 1010
(1998), enfd. 193 F.3d 532 (D.C. Cir. 1999).
However, I have also concluded that the Respondent failed
to provide the Unions with an opportunity to engage in effects
bargaining as alleged in the complaint. In this regard, the same
day it announced the sale the Respondent unilaterally imple-
mented preconditions to the receipt of severance pay including
across the board drug testing by the purchaser and the Respon-
dent engaged in direct dealing with employees as part of its
implementation of these preconditions. As such the Respon-
dent’s actions undercut the Unions’ ability to bargain. Associ-
ated Constructors, id. at 1010. The Respondent’s claims that
the Unions’ failed to inform the Respondent of problems con-
cerning the issuance of the May 12 letter until May 24, or that
the Unions declined Culbreth’s invitation to meet at an earlier
date miss the mark. The May 12 letter was issued by the Re-
spondent’s officials who were its admitted agents and supervi-
sors, and therefore the Respondent had full responsibility for its
unlawful conduct. Moreover, since the letter and its pre-
conditions for severance were issued as a fait accompli, under
the case law set forth above, the Unions were under no obliga-
tion to request bargaining with respect to the Respondent’s
unlawful conduct. Finally, the Unions repeated requests begin-
ning on May 24 that the Respondent rescind the conditions set
forth in the May 12 letter were met with stiff resistance by the
Respondent signifying that any prior requests by the Unions
would have been futile acts. Accordingly, I have concluded
that the Respondent failed to accord the Unions an opportunity
to engage in effects bargaining in violation of Section 8(a)(5)
and (1) of the Act.
I do not credit the Respondent’s claims that the May 12 letter
was issued by inadvertence to the bargaining unit employees.
The Respondent asserts that Foster’s testimony reveals that the
letter was intended only for distribution to salaried personnel
with their DPC application folders. It asserts that, at the time of
the distribution of the May 12 letter, Respondent policy 830, a
severance plan for salaried employees, was the only plan in
effect and that was the severance plan referenced in the letter.
The Respondent points out that Watson’s testimony reveals that
she did not receive any instructions for distribution with the
May 12 Records’ letter, which was faxed to her the morning of
May 11 and she received the DPC application materials 2 or 3
days earlier. The Respondent states that on May 11, Watson
and her staff began distributing the May 12 letter and the DPC
application materials to all mill employees including those
represented by the Unions.
There are several factors, in addition to demeanor, that have
made me discredit Foster’s testimony that the May 12 letter
was mistakenly delivered to the bargaining unit employees.
First, I find the repeated claims by the Respondent’s officials of
lack of knowledge of what was occurring to be disingenuous.
For instance, Culbreth testified that he was unaware of the May
12 letter when negotiations began, and then altered his prior
testimony to assert that after he was shown the letter that he did
not know that testing referenced in the letter referred to drug
testing. He testified that he never read the APA and that he had
not seen the DPC application materials until he took the witness
stand, which was a year after these materials were distributed to
the unit employees. Culbreth also testified that when he made
the June 3 phone call to Bellmore seeking to meet the next day
that he did not know that PACE had not received the APA.
Yet, Culbreth authored a letter to Bellmore on June 4 blaming
PACE for the failure to negotiate a confidentiality agreement
which he had previously informed the Unions they had to sign
to receive the APA. Second, the APA at section 8.1 provides
that the Respondent was supposed to facilitate DPC’s applica-
tion process among its employees. The Respondent obligated
itself to permit DPC to meet with employees at the mill and
present employees with applications and a handbook and the
Respondent was to provide DPC with space at the mill to inter-
view applicants and conduct employment-related testing. The
APA did not limit these responsibilities to salaried employees
and the requirements of the May 12 letter were very similar to
those set forth in the APA. Foster also admittedly took no ac-
tion in explaining to bargaining unit employees that the May 12
letter had been improperly distributed to them when he learned
that they had received it. Finally, regardless of the Respon-
dent’s intent concerning the letter’s distribution, Records, the
signer of the letter, Foster its author, and Watson its distributor
were high level management officials and admitted statutory
supervisors and agents for the Respondent when it was distrib-
uted. The Respondent was clearly responsible for their distri-
bution of the May 12 letter and it refused to disavow the letter’s
content to unit employees despite repeated requests by the Un-
ions that it do so. Accordingly, I do not credit Foster’s self-
serving testimony that the letter was distributed to the bargain-
ing unit employees by mere inadvertence, and find that the
Respondent was responsible for its distribution even if it was
done as a result of mistake as the Respondent contends.
I also reject the Respondent’s contention that the May 12 let-
ter did not impose conditions of employment. The Respondent
asserts that it could not impose preconditions to a severance
plan for bargaining unit employees when there was no sever-
ance plan in effect. The employees were told by the May 12
letter that to be eligible for severance you must complete the
DPC application process including testing, which the letter’s
accompanying materials revealed was drug testing. The appli-
cation process and the drug testing began the next day. The
Respondent distributed the letter to over 400 bargaining unit
employees, who would not have had time to parse such fine
distinctions such as the existence of severance plan, before they
were obligated to participate in the application process or for-
feit any future severance pay. Moreover, the Respondent’s
assertion that it did not have a severance plan in effect for bar-
gaining unit employees does not eliminate the import of the
letter. In this regard, the letter stated that the employees had to
participate in the applications process in order to be “eligible
for severance.” Thus, the letter did not state that employees
would receive severance if they completed the application
process. Rather, it stated that they would not receive severance
if they failed to complete the process. Thus, the Respondent
had unilaterally set preconditions for severance pay, whether it
had a plan in effect or intended to negotiate a plan with the
CHAMPION INTERNATIONAL CORP. 691
Unions. Finally, the severance plan that the Respondent pro-
posed and steadfastly adhered to during negotiations contained
the same preconditions set forth in the May 12 letter.28
The Respondent contends in its brief that its efforts to bar-
gain over the effects of the sale on its employees were hindered
by the “Charging Parties’ delaying and evasive tactics.” The
Respondent asserts that the Unions failed to raise complaints
about the May 12 letter prior to May 24, and Bellmore failed to
raise his information request pertaining effects bargaining until
the very last item on his agenda at the May 24 meeting. Bell-
more’s May 24 agenda states that he was requesting the pur-
chase agreement and “any accompanying exhibits.” The Re-
spondent asserts the Unions’ information request expanded by a
letter tendered to the Respondent on May 25. The letter re-
quested that the Respondent provide the Unions in 3 days,
“copies of all agreements, correspondence or other written
memoranda between your company” and DPC “relating to the
sale of the mill and the possible or agreed to terms of that trans-
action.” The letter stated that the Unions needed the documents
to negotiate with the Respondent “over the sale transaction and
its effects on unit employees . . . .” The Respondent contends
that the Unions’ intention was to engage in decision bargaining
and cites Bellmore’s May 27 fax to Culbreth where Bellmore in
discussing the Unions’ information request states:

Depending on the nature of the transaction between your
company and the purchaser, and the identity of the principals
involved, and the provisions of the sale documents(s), there is
a possibility that Champion would have an obligation to bar-
gain over the decision to “sell” the mill, or there may even be
an argument that because of the nature of the transaction and
the legal relationship between the seller and the buyer, the ex-
isting labor agreement continues to be applicable.

I do not find the Respondent’s argument persuasive. Bell-
more’s letter went on to state that a review of the requested
documents might lead to the conclusion that the only remaining
issue between PACE and the Respondent was effects bargain-
ing and that PACE needed to review the documents to deter-
mine if that was the case. The Unions’ efforts to fully explore
their rights pertaining to the representation of bargaining unit
employees does not demonstrate that they engaged in bad-faith
bargaining over effects of the sale, or that they sought to delay
that process. Additionally, I do not find the Unions’ inability to
meet until May 24, or their failure to make their initial informa-
tion request until that date sufficient to establish that the infor-

28 The case National Family Opinion, Inc., 246 NLRB 521, 530
(1979), cited by the Respondent does not require a different result. The
judge found there, with Board approval, that the respondent’s proposal
of an improved severance package on condition that the union waive
further employment and future bargaining rights did not violate the Act.
The judge noted that the respondent did not condition effects bargain-
ing on the union’s agreement to those terms. In the present case, the
Respondent unilaterally implemented preconditions to severance pay
and engaged in direct dealing with employees prior to meeting with the
Unions. The Respondent here went beyond conditioning further bar-
gaining on the Unions’ acceptance of its preconditions to severance.
Rather, it implemented them as a fait accompli and thereafter refused
the Unions’ requests to rescind them.
mation requests were made in bad faith or that the Unions were
intentionally seeking to delay negotiations. In this regard,
Bellmore met with Watson on May 12 in an effort start negotia-
tions. While in his discussions with Culbreth that evening,
Bellmore stated that he could not meet until May 24, the Re-
spondent was also not able to provide the Unions with a defi-
nite closing date for the sale at that time or thereafter. I also
note that while the Unions’ information requests changed dur-
ing the negotiations, the relevance of the requested materials
was explained to the Respondent and the additional requests
were in large part based on information the Unions obtained
during negotiations.
The initial unfair labor practice charges filed by the Charging
Party Unions on May 28 and June 1, alleged, in part, that the
Respondent violated Section 8(a)(5) of the Act by “failing to
provide notice and to bargain over an alleged divestiture trans-
action of the Deferiet Mill,” and by “refusing to provided rele-
vant information requested by the Union.” By letter dated
January 6, 2000, the Region Director informed the Respondent
that she had approved PACE’ request to withdraw these aspects
of its charge.29 There is no allegation in the consolidated com-
plaint that the Respondent failed to supply or delayed in sup-
plying the Unions with requested information. I also advised
counsel for the General Counsel during the course of the hear-
ing that I would not find such a violation unless the General
Counsel moved to amend the complaint and such motion was
approved. Counsel for the General Counsel never made such a
motion. Since the General Counsel controls the scope of the
complaint it is not necessary for me to reach PACE’ contention
in its post-hearing brief that the Respondent violated the Act by
delaying or refusing to provide the Unions with requested in-
formation. See West Virginia Baking Co., 299 NLRB 306 fn. 2
(1990), affd. 946 F.2d 1563 (D.C. Cir. 1991); and Winn-Dixie
Stores, 224 NLRB 1418, 1420 (1976), affd. in pertinent part
567 F.2d 1342, 1350 (5th Cir. 1978).
The General Counsel asserts that the Respondent’s refusal to
rescind the preconditions for severance was coupled with other
conduct which, while not alleged in the consolidated complaint
as independent violations of the Act, indicates that Respondent
did not act in good faith in the effects negotiations. The Gen-
eral Counsel asserts that the Respondent refused to furnish the
Unions with the APA, initially stating that the document could
not easily be obtained from corporate headquarters because it
was 500 to 600 pages long, although the document was in fact
only 65 pages. It is contended that the Respondent also raised
disingenuous confidentiality concerns about the disclosure of
information contained in the APA.30 It is contended that the
Respondent also informed the Union that the APA was not
relevant, but that it was clear that it was relevant to negotiations
once it was provided to PACE as it contained provisions di-
rectly bearing on severance benefits, the severance pre-
29 The record contains no evidence as to the disposition of these alle-
gations pertaining to the Firemen & Oilers’ charge.
30 Counsel for the General Counsel cites R Exh. 13 in his brief in
support of this argument. However, this exhibit was not admitted into
evidence based on an objection by PACE’s attorney and therefore I
have not considered its contents in rendering this decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 692
conditions, and other mandatory terms for effects bargaining.
Counsel for the General Counsel cites the following provisions
of the APA at page 16 of his brief wherein he states that:

Specifically, page 8 of APA refers to “Special Sever-
ance Policy(s),” and states that Respondent cannot negoti-
ate any severance policy with Unions more favorable than
“Policy #830” without approval of DPC. APA Section 8.3
(page 50) states that DPC will be responsible for severance
costs if more than 10 percent of Respondent’s employees
do not apply for employment with, or are not hired by,
DPC. The APA includes other terms relevant to effects
bargaining, including Section 8.5 (page 51), in which Re-
spondent and DPC had agreed that DPC would be respon-
sible for employees’ accrued unpaid vacation pay. [GC
Exh. 26.]

As set forth above, I do not find that the Respondent has es-
tablished that the Unions’ made their information requests in
bad faith here. The Board has held that an employer has an
obligation to furnish a union information relating to a proposed
or completed sale, including sales agreements. See Compact
Video Services, 319 NLRB 131, 142–143 (1995), enfd. 121
F.3d 478 (9th Cir. 1997); Live Oak Skilled Care & Manor, 300
NLRB 1040, 1049 fn. 20 (1990); Westwood Import Co., 251
NLRB 1213, 1226–1227 (1980), enfd. 681 F.2d 664 (9th Cir.
1982); Washington Star Co., 273 NLRB 391, 396 (1984); and
RBH Dispersions, 286 NLRB 1185 (1987). Here, as counsel
for the General Counsel points out there were several provi-
sions of the APA that related to effects bargaining. The Re-
spondent also denied Bellmore’s request during the May 24
session to pay the employees’ accrued unpaid vacation pay with
the contention that DPC had agreed to assume that liability.
The Unions informed the Respondent that they needed the re-
quested information to engage in effects bargaining, to see if
there was a joint employer relationship between the Respondent
and DPC, and to determine if the Respondent was obligated to
engage in decisional bargaining. The fact that the Unions did
not prevail on the decisional bargaining aspect of their charges
before the Region does not establish that the reasons advanced
for the requested information including its usage for effects
bargaining were made in bad faith. For the Unions were enti-
tled to obtain the documents to determine whether the Respon-
dent had more of an obligation than to just bargain over the
effects of the sale.31
I have also concluded that the Respondent does not come
with clean hands as to any delay resulting from the Unions’
information requests. The credited evidence reveals that when
Bellmore initially requested the APA, Culbreth misinformed

31 I do not find that the cases cited by the Respondent require a dif-
ferent result. For example, in Desoto Inc., 273 NLRB 788 (1986), the
Board held that the respondent satisfied its obligations to bargain about
effects of its sale. The Board noted that the respondent engaged in and
was ready and willing to engage in effects bargaining. However, the
union there chose to discuss the decision to close, not the effects, and
requested information related to the decision to close. In the instant
case the Unions’ information request related to effects bargaining al-
though the Unions’ maintained that it could also be helpful to deter-
mine if they had a right to bargain over the sale decision.
him by stating that a 65-page document was 500 or 600 pages.
While the Respondent contends in its brief that Culbreth was
also referring to the attachments to the APA, which its asserts
were covered by the Unions’ initial information requests, it
never submitted the attachments into evidence to verify the
claim of their length. The Respondent also failed to establish
that the referenced attachments were ever provided to the Un-
ions.
The Respondent claimed confidentiality as to its initial re-
fusal to provide the Unions with the APA. While the Unions
requested the document on May 24, it was not provided to
PACE until June 11, the closing date of the sale of the mill.32
The delay in furnishing PACE with a copy of the APA was
caused by the Respondent’s conditioning the Unions’ receipt of
the document on their entering a confidentiality agreement.
Yet, I have my doubts as to the bona fides of the Respondent’s
confidentiality claim. For, its attorney drafted a proposed con-
fidentiality agreement limiting the Unions’ use of the APA
solely to effects bargaining, thereby precluding them from us-
ing it in any litigation including Board proceedings related to
the sale. PACE protested these limitations, and by letter dated
June 8 Foster stated that the Respondent had turned a copy of
the APA over to the Board’s Regional office in response to the
Unions’ unfair labor practice charge. However, he continued to
insist that PACE withdraw paragraph 5 from its proposed con-
fidentiality agreement which would have allowed PACE to use
the APA in furtherance of NLRB and court litigation. While
the Respondent eventually relented and allowed PACE to retain
paragraph 5 of its proposed agreement, the Respondent only
provided the APA to PACE on June 11, the day the sale closed.
The Respondent’s actions including its willingness to tender the
APA to the Region when it was in its interest to do so render its
confidentiality claim as suspect. Rather, the Respondent’s
confidentiality claim appears to be pretextual and part of an
effort to prevent the Unions from initiating lawsuits against the
Respondent based on the APA. The confidentiality claim also
served as a means of legitimizing the Respondent’s failure to
provide the Unions with the APA prior to the date of the sale.
See NLRB v. Compact Video Services, 121 F.3d 478 (9th Cir.
1997), where the court held that the respondent’s bare assertion
that a sales agreement contained confidential information was
insufficient to overcome the Board’s conclusion that the infor-
mation contained in the document was relevant to the union and
must be provided.
I have concluded that the Respondent’s delay in furnishing the
Unions here with a copy of the APA was part and parcel of its
refusal to bargain in good faith. The General Counsel failed to
amend the complaint to allege that this action by the Respondent
independently violated Section 8(a)(5) of the Act. I am therefore
constrained not to issue an affirmative finding of a violation on
this aspect of the Respondent’s conduct. However, the Respon-
dent placed the Unions’ information request at issue here as part
of its defense, and the matter was fully litigated. I have therefore
concluded that the Respondent’s delay in providing the requested
information, as well as its refusal to rescind its unilateral institu-
32 The record fails to establish that the APA was ever provided to the
Firemen & Oilers.
CHAMPION INTERNATIONAL CORP. 693
tion of its preconditions for severance were part and parcel of its
determination not to engage in good faith bargaining with the
Unions over the effects of the sale.
In sum, the Respondent engaged in unilateral conduct and di-
rect dealing with employees concerning severance pay on the
day it announced the sale. This conduct undermined the Un-
ions’ ability to effectively bargain over the effects of the sale.
The Unions repeatedly protested the Respondent’s actions dur-
ing the course of bargaining and the Respondent refused to
remedy or rescind its prior unlawful unilateral actions. The
Respondent has failed to establish that the Unions’ information
requests were made in bad faith, and I have concluded that it
was the Respondent’s unremedied unfair labor practices that
undercut the Unions’ effectiveness and caused the breakdown
in negotiations. Accordingly, I reject the Respondent’s claims
that it was the Unions and not the Respondent that engaged in
bad faith bargaining here, and I conclude that the Respondent
violated Section 8(a)(5) and (1) of the Act as set forth above.
2. The Respondent’s failure to pay employees earned
vacation pay at the time of the sale
Section 17 of the PACE collective-bargaining agreement
contains terms governing vacation pay for employees. Section
17.1 of the agreement states that the vacation period for em-
ployees is from May 1 to May 1 each year. Under the agree-
ment, the length of an employee’s vacation is based on con-
tinuous years of service, ranging from 2 to 6 weeks of vacation.
Section 17. 8 states that employees receive vacation pay for
each week of vacation equal to 2 percent of the previous calen-
dar year’s earnings.
Section 17.10 of the collective-bargaining agreement states:

Employees who retire, resign from the Company, die or are
terminated will be granted vacation pay for the current vaca-
tion period pro-rated on the basis of one-twelfth (1/12) normal
vacation pay for each full month completed on the active pay-
roll by the employee figured on the employee’s last W-2
statement of earnings prior to the employee’s official date of
termination.

Burto, a PACE local union officer and a former employee of
Respondent, was employed by DPC at the time of his testi-
mony. Burto’s credited testimony revealed that, at the time of
DPC’s takeover of the mill in June 1999, he had 3 days of ac-
crued unused paid vacation time remaining with the Respon-
dent. Burto received payment for the 3 days vacation pay on
May 18, 2000, from DPC, not the Respondent. Burto also re-
ceived on May 18, 2000, from DPC payment of the pro-rata
share of the vacation pay that was owed him for one month of
work under section 17.10 of the PACE collective-bargaining
agreement with the Respondent.
Burto’s credited uncontradicted testimony revealed that the
approximately 70 PACE unit employees who were not hired by
DPC were paid by Respondent for all of their accrued vacation
pay at the time of their termination from Respondent’s em-
ployment in June 1999. Burto testified that in the past when
employees were terminated from the Respondent’s employ they
would receive their vacation pay at the time of their termina-
tion. However, Respondent unit employees hired by DPC did
not receive their accrued vacation pay owed them by Respon-
dent, including the section 17.10 pro-rata share of the current
year’s vacation pay, until May 18, 2000, when they were paid
by DPC. Burto testified that employees had scheduled vacation
with the Respondent were allowed to take those vacations with
DPC up to 4 weeks, and that the employees were paid for the
unused vacation time with the Respondent by DPC at the rates
established by PACE’s collective-bargaining agreement with
the Respondent. Burto testified that in the past employees who
did not take their scheduled vacation with the Respondent were
paid back at the end of the vacation year, which also would
have been in May. He testified that DPC’s vacation policy was
different from that under the Respondent’s collective-
bargaining agreement. For example, while working at DPC an
employee could only earn a maximum of 4 weeks vacation.
Bellmore’s credited testimony reveals that during the May
24 and 25 bargaining sessions he requested that Respondent
cash out and pay all employees for earned and accrued vacation
at the time of the sale citing the parties’ collective-bargaining
agreement. This was one of the items on Bellmore’s typewrit-
ten agenda that he presented at the May 24 meeting. However,
Culbreth refused stating that the Respondent had negotiated an
agreement with DPC that the latter would assume the responsi-
bility for the employees’ vacation pay. Bellmore protested the
Respondent’s position on both May 24 and 25, stating that the
Respondent could not void the provision in the collective-
bargaining agreement concerning vacation pay.
The Respondent contends that PACE’s failure to file a griev-
ance as to the failure to pay vacation pay indicates acquies-
cence with the Respondent’s interpretation of the contractual
vacation pay provisions. It also contends that since PACE did
not file the charge over the vacation pay issue until September
15, it had accepted the benefits of the prepurchase scheduled
vacations that were taken until that time. The Respondent ar-
gues that any disagreement “could, and should have been grist
for the grievance and arbitration mill.” The Respondent con-
tends that it would not effectuate the purposes of the Act for the
Board to get involved in the “belated interpretation of collec-
tive-bargaining agreement provisions, particularly where, as
here all vacations has [sic] been taken and/or paid for.”
In Resco Products, 331 NLRB 1546 (2000), the Board held
that a respondent employer violated Section 8(a)(5) of the Act
by failing to make contractually required payments of accrued
vacation pay to employees when it sold its plant. The Board
held that:

We agree with the judge that Resco violated Section
8(a)(5) by failing to pay accrued vacation pay to employ-
ees who accepted employment with VMPC. As the judge
noted, Resco could not avoid its obligations under the col-
lective-bargaining agreement, without the Union’s assent,
simply by contracting with VMPC to assume them.
Resco’s failure to make the payments, especially after the
Union explicitly demanded payment by filing a grievance,
amounts to a complete abrogation of its contractual obliga-
tions in this regard. [Id. 1547.]

The Board stated that, “[i]t is well settled that the Board may
interpret the terms of a collective-bargaining agreement in or-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 694
der to determine whether an unfair labor practice has been
committed.” Id. at 1548. The contract language at issue there
read that “any employee quitting or discharged shall be paid the
pro-rata part of his earned vacation.” The Board noted that the
respondent posited no reasonable interpretation of the contract
language that the employees were not due their vacation pay at
the time that their employment with the Respondent ceased. In
this regard, the Board stated that “‘Discharged’ and ‘termi-
nated’ are widely used synonymously.” Id.
The Respondent here has posited no reasonable interpreta-
tion of its collective-bargaining agreement with PACE other
than it owed its employees accrued vacation pay at the time of
the sale when it terminated their employment. In fact the re-
cord shows that it paid bargaining unit employees, not hired by
DPC, accrued vacation at the time of the sale. The Respondent
had also paid employees in the past their vacation pay at the
time of their termination.
The Respondent’s contention that the PACE waived its statu-
tory right pertaining to this unilateral change by its failure to
file a grievance lacks merit. The credited testimony established
that Bellmore vigorously protested the Respondent’s conduct
regarding vacation pay during the May 24 and 25 bargaining
sessions. The Union filed a timely charge on the issue, and its
failure to file a grievance did not clearly and unmistakably
waive its statutory right to come to the Board with respect to
this unilateral change. I would note that the parties’ collective-
bargaining agreement expired on June 1 and the Respondent’s
employees were not terminated until June 11. Whether or not
the collective-bargaining agreement was automatically renewed
by its terms, the Board has repeatedly held that, with except for
limited exceptions not applicable here, a party is not free to
make unilateral changes in terms and conditions of employment
following the expiration of a collective bargaining agreement.
See Hacienda Resort Hotel & Casino, 331 NLRB 665, 666
(2000). The Respondent has also not raised deferral as an af-
firmative defense and it has not offered to arbitrate the dispute
over vacation pay. Moreover, the contract language that the
employees were entitled to their vacation pay is clear and the
Respondent engaged in a series of unilateral changes undermin-
ing the bargaining relationship at the time of the sale. I have
concluded that under the facts here, PACE was entitled to pur-
sue the matter concerning vacation pay by the filing of an un-
fair labor practice charge.
I do not agree with the Respondent’s assertion that since the
employees were ultimately paid by DPC for all vacation pay
that it renders this matter moot. First, the employees were con-
tractually entitled to payment at the time of the sale and the
Respondent’s unilateral change in failing to pay them was part
and parcel of its conduct serving to undercut PACE in the eyes
of its membership. Moreover, the employees lost the immedi-
ate use of the money in that DPC did not pay them until a year
after it was due. The General Counsel and PACE assert that the
employees should be made whole by being paid the interest
owed them for the time lost by the Respondent’s failure to pay
the employees in a timely fashion. I concur with this position
and find that the Respondent violated Section 8(a)(5) and (1) of
the Act by its failure to pay employees accrued vacation bene-
fits at the time of the June 11 sale.
THE REMEDY
I find, as the General Counsel and PACE request in their
post-hearing briefs, that the Board’s remedy in Transmarine
Navigation Corp., 170 NLRB 389 (1968), is warranted here
because that is the traditional remedy when a Respondent fails
to lawfully engage in effects bargaining. The Respondent uni-
laterally implemented preconditions for the receipt of severance
pay the day it announced the sale. The preconditions included
the requirement that employees apply to the purchaser and fully
participate in the application process, which included across the
board drug testing. The Respondent implemented these poli-
cies by engaging in direct dealing with employees and schedul-
ing them to undergo this application process beginning the day
following its announcement. The Unions, through Bellmore,
requested effects bargaining the day after learning of the sale,
and when the parties met the Unions vigorously protested the
Respondent’s unlawful conduct.
I have considered and rejected the Respondent’s contention
in its brief that a Transmarine remedy should only apply in
circumstances where an employer fails to give a union timely
notice of a sale or closure thereby precluding effects bargain-
ing. To hold as such would allow an employer to use timely
notice to a union as a shield while it engaged in unlawful con-
duct such as what was done here that effectively undercuts
effects bargaining. Accordingly, I find that the Board’s tradi-
tional Transmarine remedy is warranted in the circumstances of
this case.
In finding a Transmarine remedy warranted, I note that the
Respondent’s bargaining unit employees were impacted by the
sale in that DPC did not extend employment offers to all of the
Respondent’s employees. Moreover, as to those employees
that it did offer employment, DPC announced in advance that it
was not adopting the Respondent’s collective-bargaining
agreements with the Unions. In Sea-Jet Trucking Corp., 327
NLRB 540, 548 (1999), rev. denied mem. 221 F.3d 196 (D.C.
Cir. 2000), the following rationale was stated for the require-
ment of a Transmarine remedy:

Furthermore, as a result of the Respondent’s unlawful
failure to bargain in good faith with the Union about the
effects of its decision to relocate, the unit employees have
been denied an opportunity to bargain through their collec-
tive-bargaining representative. Meaningful bargaining
cannot be assured until some measure of economic
strength is restored to the Union. A bargaining order
alone, therefore, cannot serve as an adequate remedy for
the unfair labor practices committed.
Accordingly, it is necessary, in order to effectuate the
purposes of the Act, to require the Respondent to bargain
with the Union concerning the effects of the relocation of
its facility on its employees, and to accompany the order
with a limited backpay requirement designed both to make
whole the employees for losses suffered as a result of the
violations and to re-create in some practicable manner a
situation in which the parties’ bargaining position is not
entirely devoid of economic consequences for the Respon-
dent. The Respondent should therefore be required to pay
CHAMPION INTERNATIONAL CORP. 695
backpay to employees in a manner similar to that required
in Transmarine Navigation Corp., supra.

In affirming the judge’s conclusion that a Transmarine remedy
was warranted, the Board stated as part of the remedy pertain-
ing to backpay that “in no event shall this sum be less than
these employees would have earned for a 2-week period at the
rate of their normal wages when last in the Respondent’s em-
ploy, with interest.” Id. The Board provided for this minimum
2-week backpay remedy with no deductions for interim earn-
ings, although all of the respondent’s employees had been of-
fered the right to relocate to the respondent’s new facility.33
The judge in Sea Jet, supra, specifically rejected the Respon-
dent’s contention that a Transmarine remedy was not appropri-
ate because it offered all its employees jobs. The judge stated
that the “Respondent’s argument is premised upon the errone-
ous assumption that the purpose of the Transmarine remedy is
to compensate employees for lost earnings. However, as the
Board made clear in Transmarine the purpose of the remedy is
not only to compensate the employees but to restore to the Un-
ion the bargaining leverage it would have enjoyed in the ab-
sence of the employer’s unfair labor practices. 327 NLRB at
550.
The judge went on to state:

Also, the Respondent argues that in awarding the
Transmarine remedy in Live Oak Skilled Care & Manor,
supra, the Board stated that it was not deciding “whether
the remedy providing for a minimum of 2 weeks’ backpay
in Transmarine is warranted for all effects bargaining vio-
lations, regardless of loss.” 300 NLRB at 1040. However,
the Board has consistently followed Live Oak Skilled Care
& Manor[,] in subsequent cases involving the sale by an
employer, where the successor retained the bargaining unit
employees.

I reject the Respondent’s claim that interim earnings should
be deducted from the 2-week minimum backpay period the
Board has repeatedly provided for in instances where it has
applied the Transmarine remedy. In Willamette Tug & Barge
Co., 300 NLRB 282, 287 (1990), cited by the Respondent, the
judge with Board approval, ordered the traditional 2-week
backpay minimum as part of the Transmarine remedy. Raskin
Packing Co., 246 NLRB 78, 80 (1979), cited in Willamette is
distinguishable from the facts here because the respondent there
closed in somewhat of an emergency situation which the Board
concluded legitimized its inability to give the union prior notice
of the closure.
Accordingly, I find that the Respondent should pay limited
backpay in accordance with the Board’s remedy in Transma-
rine Navigation Corp., 170 NLRB 389 (1968), as amended by
the Board in Melody Toyota, 325 NLRB 846 (1998), by requir-
ing that the Respondent pay employees in the PACE and Fire-
men & Oilers bargaining units at their normal rate of pay be-
ginning 5 days after the Board’s decision until the first of four
events: (1) the date Respondent bargains to agreement with the

33 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 fn. 2
(1990); and J.P. Murray Food Service, Inc., 327 NLRB No. 149 fn. 1
(1999) (not reported in Board volumes).
Unions on those subjects pertaining to the effects of the sale of
its Deferiet mill; (2) a bona fide impasse in bargaining; (3) the
Unions’ failure to request bargaining within 5 days after receipt
of this Decision and Order, or to commence negotiations within
5 days of Respondent’s notice of desire to bargain with the
Unions; (4) the Unions’ subsequent failure to bargain in good
faith; but in no event shall the sum paid to these employees
exceed the amount they would have earned as wages from the
June 11, 1999, takeover of the facility by Deferiet Paper Com-
pany to the time they secured equivalent employment else-
where, or the date on which Respondent shall have offered to
bargain in good faith, whichever occurs sooner, provided, how-
ever, that in no event, shall this sum be less than the employees
would have earned for a 2-week period at the rate of their nor-
mal wages when last in Respondent’s employ. Backpay shall
be based on earnings which the employees would have nor-
mally received during the applicable period, less any net in-
terim earnings, and shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987). Additionally, I find that the Respondent shall make
whole any of its employees in the PACE bargaining unit who
were not paid accrued or other contractual vacation pay by the
Respondent or DPC due and owing as a result from their June
11, 1999 termination from the Respondent’s employ. I also
find that all employees in the PACE bargaining unit who were
paid said vacation pay by DPC for sums owed them by the
Respondent shall be made whole by the Respondent for the
delay in payment by the payment of interest as computed in
New Horizons for the Retarded, supra.
CONCLUSIONS OF LAW
1. Champion International Corporation (the Respondent) at
all times material is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Paper, Allied-Industrial, Chemical & Energy Workers In-
ternational Union, and its affiliated Locals 45 and 56 (PACE),
and the National Conference of Firemen & Oilers/SEIU Inter-
national Union and its affiliated Local 349 (Firemen & Oilers)
are each labor organizations within the meaning of Section 2(5)
of the Act.
3. (a) At all times material until around June 11, 1999, the
following employees of the Respondent (called the PACE unit)
constituted a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.

Certain employees at the Deferiet Paper Mill as described in
Section 4.1 of the collective-bargaining agreement between
the Respondent and PACE, effective from August 13, 1993 to
February 1, 1998, and extended by written agreement of the
parties until June 1, 1999.

(b) At all times material herein until around June 11, 1999,
the following employees of the Respondent, herein called the
Firemen & Oilers unit, constituted a unit appropriate for the
purposes of collective bargaining within the meaning of Section
9(b) of the Act:

Certain employees at the Deferiet Paper Mill as described in
Section 4.1 of the collective-bargaining agreement between
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 696
Respondent and the Firemen and Oilers, effective from Au-
gust 13, 1993 to February 1, 1998, and extended by written
agreement of the parties until June 1, 1999.

4. The Respondent has violated Section 8(a)(5) and (1) of
the Act by: since about May 11, 1999, failing to give PACE
and the Firemen & Oilers an opportunity to bargain over the
effects on employees in the PACE and Firemen & Oilers units
of its decision to sell the Deferiet paper mill; on about May 11
unilaterally implementing preconditions for obtaining sever-
ance pay for employees in the PACE and Firemen & Oilers
units; on about May 11 engaging in direct dealing concerning
reconditions for obtaining severance pay with employees in the
PACE and Firemen & Oilers units; and on about June 11 uni-
laterally failing and refusing to pay employees in the PACE
unit earned vacation pay pursuant to Section 17 of the PACE
collective-bargaining agreement.
5. The unfair labor practices described above are unfair la-
bor practices within the meaning of Section 2(6) and (7) of the
Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended34
ORDER
The Respondent, Champion International Corporation, Stam-
ford, Connecticut, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with Paper,
Allied-Industrial, Chemical & Energy Workers International
Union, and its affiliated Locals 45 & 56 (PACE), and National
Conference of Firemen & Oilers/S.E.I.U. International Union
and its affiliated Local 349 (Firemen & Oilers), concerning the
effects on employees represented by PACE and Firemen &
Oilers of its decision to sell the Deferiet mill and terminate its
employees.
(b) Unilaterally implementing preconditions for obtaining
severance pay for employees in the PACE and the Firemen &
Oilers bargaining units.
(c) Engaging in direct dealing concerning preconditions for
obtaining severance pay for employees in the PACE and the
Firemen & Oilers bargaining units.
(d) Failing and refusing to pay employees in the PACE bar-
gaining unit earned vacation pay pursuant to Section 17 of the
PACE collective-bargaining agreement.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain collectively in good faith with PACE
and Firemen & Oilers as to the employees represented by these
unions in the collective-bargaining units described in their most

34 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
recent contracts with the Respondent at the Deferiet mill con-
cerning the effects on those employees of its decision to sell the
Deferiet mill and to terminate its employees, and, if an under-
standing is reached, embody it in a signed document.
(b) Pay the former employees in the PACE and Firemen &
Oilers units their normal wages when in the Respondent’s em-
ploy from 5 days after the date of this decision until the occur-
rence of the earliest of the following conditions: (1) the date the
Respondent bargains to agreement with the Unions on those
subjects pertaining to the effects of the sale of its Deferiet mill;
(2) the date a bona fide impasse in bargaining occurs; (3) the
Unions’ failure to request bargaining within 5-business days
after receipt of this Decision, or to commence negotiations
within 5-business days after receipt of the Respondent’s notice
of desire to bargain with the Unions; (4) the Unions’ subse-
quent failure to bargain in good faith; but in no event shall the
sum paid to any of the employees exceed the amount he or she
would have earned as wages from the June 11, 1999, when the
employee was terminated by the Respondent as a result of its
sale of the Deferiet mill and the cessation of its operations, to
the time he or she secured equivalent employment elsewhere;
provided, however, that in no event, shall this sum be less than
these employees would have earned for a 2-week period at the
rate of their normal wages when last in the Respondent’s em-
ploy, with interest, as set forth in the remedy portion of this
decision.
(c) On request by the Unions, rescind the preconditions for
obtaining severance pay unilaterally instituted on May 11,
1999.
(d) Make whole those employees hired by Deferiet Paper
Company who had worked for the Respondent in the PACE
unit by the payment of interest, as set forth in the remedy por-
tion of this decision, on the amounts of vacation pay accrued
and owing those employees by the Respondent as of June 12,
1999, until the time of the payment of the moneys to the em-
ployees by the Deferiet Paper Company, and make whole as
specified in the remedy section of this decision any employee
who was not paid vacation pay by the Respondent or the De-
feriet Paper Company for vacation pay owed by the Respondent
as of June 12, 1999.
(e) Preserve and, within 14 days of a request, provide at the
office designated by the Board or its agents, a copy of all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under the
terms of this Order. If requested, the originals of such records
shall be provided to the Board or its agents in the same manner.
(f) Within 14 days after service by the Region sign and mail
copies, at the Respondent’s expense, of the attached notice
marked “Appendix”35 to all employees represented by PACE
and Firemen & Oilers who were in the Respondent’s employ in
35 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
CHAMPION INTERNATIONAL CORP. 697
the month of June 1999, to their last known address; and simi-
larly sign and mail copies of the notice to the PACE and its
affiliated Locals 45 and 56 and to the Firemen and Oilers Union
and its affiliated Local 349 at their business addresses.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.