Dierks Forests, Inc.

National Labor Relations Board - Board Decisions

Sep 11, 1964

148 N.L.R.B. 923 (N.L.R.B. 1964)

DIERKS FORESTS, INC., ETC. 923
6. By causing the imposition of a trustee over the affairs of Local 1368 in
reprisal for the filing of the charge in this case and to compel the withdrawal of
the charge the District restrained and, coerced employees in the exercise of rights
guaranteed by Section 7 of the Act and thereby violated Section 8(b)(1)(A) of
the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. The allegation of the complaint that the District and Local 1367 have violated
Section 8 (b) (3) of the Act has not been sustained.
[Recommended Order omitted from publication.]
Dierks Forests, Inc. (Treating Plant, D & E Shop and Mill Sup-
ply) and Lumber and Sawmill Workers Local Union No. 3089,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO. Case No. 26-CA-1521. September 11, 1964
DECISION AND ORDER
On April 6, 1964, Trial Examiner Morton D. Friedman issued his
Decision in the above-entitled proceeding, fi nding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He further found that the Respondent had not engaged in cer-
tain other unfair labor practices alleged in the complaint and rec-
ommended dismissal of the complaint as to them. Thereafter, the
Respondent and the General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
meniber panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, andexceptions briefs, and the entire record in
the case, and finds merit in certain of the exceptions of the Respond-
ent. We therefore adopt the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent that they are consistent
with this Decision and Order.
1. The Trial Examiner found, and we agree, that the Respondent
did not discriminatorily reduce the working hours of certain employees
in its D'& E shop in late 1962 and early 1963, in violation of the Act.
In excepting to the findings of the Trial Examiner, the General Coun-
sel relies on the facts that the hours of these employees were reduced
to 40 hours a week soon after the Union was certified on December 10,
148 NLRB No. 92.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1962; that a 6-day, 48-hour week, which had been the practice at the
r) & E shop for many years prior to December 1962, was resumed after
the unfair labor practice charge herein was filed; and that Foreman
Benson stated to one of the employees that the work hours in the D & E
shop were going to be reduced because the employees were, "now in
the unit with the treating plant." However, except for Benson's state-
ment, which the Trial Examiner found did not necessarily reflect a dis-
criminatory attitude on the part of the Respondent, the General Coun-
sel offered no evidence tending to establish the Respondent's union
animus. Moreover, as indicated by the Trial Examiner, although the
Respondent did not offer any evidence showing that there was less
work available for employees in the D & E shop during the critical
period, neither did the General Counsel offer any evidence tending to
show that there was, in fact, sufficient work available for D & E em-
ployees which the Respondent refused to assign to the D & E shop
for discriminatory reasons. Nor was there any evidence that those
D & E employees who worked less than 48 hours a week were particu-
larly strong union adherents or that those who continued to work more
than 48 hours a week were opposed to the Union. In view of the fore-
going, and despite the fact that certain of the circumstances surround-
ing the reduction of hours are of a suspicious nature, we find, in agree-
ment with the Trial Examiner, that the General Counsel has not
established by a preponderance of the evidence that the reduction in
the work in the D & E shop was discriminatory in nature. We shall
therefore dismiss these allegations of the complaint.
2. The Respondent excepts to the Trial Examiner's finding that the
Respondent violated the Act by discriminatorily reducing the wage
rates of employees Green, Gabbard, Logan, and Todd shortly after
the election and of employee Green in May 1963. We find merit in
this exception.
The Respondent contends that these wage reductions were merely
administrative adjustments which were made when it discovered that
the employees involved were receiving wages at a higher rate than that
to which they were entitled under their respective classifications.' The
Trial Examiner, however, found that this was merely a pretext and
that the reductions were for discriminatory reasons. He relied upon
the facts that three of the reductions occurred almost immediately
after the Union won the election, and that an audit is made of the pay-
roll every 3 months in order to disclose any errors in pay rates. The
Trial Examiner reasoned that in view of the fact that the payment of
the higher wage rates continued through at least three quarterly audits,
'As stated, infra, the Respondent's employees were not permanently assigned to specific
classifications. The Respondent's pay structure was, however, based on a classification
`system, under which employees were to be paid for time worked in a particular job at
the classification rate established for that particular job. .r,
DIERKS FORESTS, INC., ETC. 925
the Respondent must have known at an earlier date that the employees
involved were being paid at a rate higher than that which was alloca-
ble to,their jobs; and, therefore, since the wage reductions did not
take place when the mistakes were originally discovered but only after
the, election,: they were not merely administrative adjustments but, as
contended by ,the General Counsel, a reprisal against the employees
for selecting the Union as their bargaining representative.
We do not agree that this allegation is supported by the record. In
the first place, the record does not support the Trial Examiner's con-
clusion that any errors in pay rates would necessarily have been dis-
covered as a result of the quarterly audits. Thus, the record does
not show that, the audits -conducted by the Respondent would have
disclosed any more than the fact, if it existed, that a particular em-
ployee was not receiving the pay rate for the classification under
which he was listed in the Respondent's records. For example, if a
common laborer was classified- as such, but was being paid the wages
of a truckdriver, this fact could have been discovered during the
audit..,But the situation with respect:to,the our employees whose
wages were allegedly reduced for discriminatory reasons was ,differ-
ent. These employees were being paid the correct wages for the
classifacations,,wnder which they were listed. The, error as to them
was that they were- listed in the Respondent's records upon which the
audit was based under classifications which did not reflect their actual
duties. The, Respondent's payroll records would not have indicated
this,-fact, which would have been revealed only by comparison.of
the actual duties of each of the employees with,the duties of their
assigned-classifications. And there-is no evidence in the record that
the Respondent made any such spot check of employees' duties as part
of its audit, or otherwise.a Accordingly, unlike the Trial Examiner,
we do not believe that the Respondent must have known before the
election that these employees were being paid at a higher rate than
that 'to which they were entitled. In view of the foregoing, the
absence of union animus by the Respondent, and the fact that the
record does not show that these four employees were more active in
the Union than other employees, we find, in disagreement with the
2 In this connection, Neeley, the plant manager of the treating plant, testified that he
did not'know from day-to-day or week-to-week exactly how much each employee was earn-
ing; that the first he knew of the mistaken pay rates was when he learned that Logan
was being paid more than employees he was working with in the same job; and that he
then instructed the foremen to review the records carefully to make certain that em-
ployees were being paid for their proper classification The Trial Examiner found that
Neeley's testimony was "vague " and "evasive." However, in view of the facts that Neeley
was the general manager of an operation employing approximately 200 employees, and
that the Respondent ' s foremen were responsible for placing employees in their proper job
classifications , we do not believe that the General Counsel has established by.a pre-
ponderance of the evidence that Neeley in fact knew prior to the election that the four
employees in question were being paid at a higher rate than that to which they were
entitled.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner, that the Respondent did not violate Section 8 (a) (1)
and (3) by reducing the wage rates of these four employees. Since the
Respondent merely adjusted the wage rates of these employees to
conform to existing levels, we also conclude in the circumstances
that Respondent did not thereby violate Section 8(a) (5) and (1).
3. We find in agreement with the Trial Examiner, and for reasons
set forth in the Trial Examiner's Decision, that the Respondent's
discontinuance of the practice of furnishing free gloves to employee
Goins was not violative of Section 8(a) (1), (3), and (5) of the Act.
4. We also agree with the Trial Examiner that by failing timely to
furnish the Union with appropriate wage data, the Respondent sought
to delay and discourage bargaining and 'thereby failed ' to bargain
in good faith in violation of Section 8(a) (5) of the Act.
As described more fully in the Trial Examiner's Decision, at the
first negotiating meeting on January 17, 1963, the Union asked the
Respondent for the name, the date of hire, job classification, and wage
rates of each employee in the bargaining unit.- At various meetings
between January 25 and April 4, 1-963, the Respondent gave the Union
various documents showing the job classifications and wage rates
for such classifications, seniority lists, and payroll records: However,
none 'of these documents contained, in an intelligible manner, the
names of the employees together with their individual classifications
and starting dates. At the April 4 meeting the Respondent for th'e
first time indicated that it was unable to give the Union the permanent
or iegiular' job classifications of its employees because the employees
did not have regular job assignments.
The Trial Examiner found that the Respondent was obliged to
furnish the union with the information it requested, namely, the names
of employees in the unit, their job classifications, dates of hire,- and
wage rates. He also found, however, that because employees of the
Respondent did not have permanent classifications, the Respondent
ultimately gave to the Union all such information that was in its
possession, but only after unwarranted delay. With respect to his
conclusion as to delay, the Trial Examiner relied on the fact that al-
l hough at the very first bargaining sessions in January the Respond-
ent "must have known" that the information regarding employee
classifications could not be furnished in the form requested by the
Union, it nevertheless did not explain until the bargaining session
in April that such information was unavailable. In this context, the
Trial Examiner found that the Respondent was obligated either
promptly to furnish the requested information or to explain the situa-
tion -regarding the lack of permanent job classifications. Its failure
to do either was, he concluded, a refusal to bargain in good faith in
violation of Section 8 (a)'(5) and (1) of the Act. Although we,agree'
with this conclusion, we do not adopt the statement of the Trial
DIERKS FORESTS, INC., ETC. 927
Examiner that a "misunderstanding" existed between the Respond-
ent and the Union regarding the nature of the data requested by the
Union. Such statement, in our view, is contrary to the evidence in
the record and, indeed, is inconsistent with the Trial Examiner's con-
,clusion, supra, that the Respondent must have known of its inability
to furnish the information in the form requested, and his further
conclusion, stated elsewhere in his Decision, that any "misunderstand-
ing" between the parties was due "in large measure" to the Respond-
ent's failure promptly to furnish the requested information or to
explain its inability to do so. The Union may have misunderstood the
situation, but it is clear that any misunderstanding was not mutual.
5. The Trial Examiner further found, on the basis of the Respond-
ent's overall conduct, that it refused to bargain in good faith in viola-
tion of Section 8 (a) (5) and (1) of the Act. We disagree.
In finding that the totality of the Respondent's conduct constituted
a refusal to bargain in good faith, the Trial Examiner relied on the
following factors: (1) The Respondent's union animus, as evidenced
by its discriminatory reduction of the wage rates of four employees;
(2) the Respondent's delay in supplying a complete set, of wage data
as requested by the Union; (3) the Respondent's refusal to make any
;substantive concessions in contract negotiations except as to clauses
which were reflections of its current practices; and (4) the Respond-
ent's offer to the Union of a 6-cent per hour wage increase which the
Respondent admitted was intended only to bring the wage rates of
unit employees into line with a wage increase which the Respondent
bad given previously to its other employees.
With respect to the first factor relied on by the Trial Examiner, we
have already found that the Respondent'did not violate the Act by re-
-ducing the wage rates of. four employees. Nor does the record other-
wise establish the Respondent's union animus.3 .
As noted, we agree with the Trial Examiner that the Respondent
violated Section 8(a) (5) by failing in a timely fashion to furnish the
Union with appropriate wage data. Consequently, this is a factor
which may appropriately be considered in evaluating the Respondents
.overall good or bad faith in bargaining negotiations.
As to the Respondent's alleged refusal to grant substantial con-
fcessions, we believe that a brief recapitulation of the bargaining ses-
sions will serve to place the matter in proper context.
As described more fully in the Trial Examiner's Decision, the Re-
spondent and the Union met, 13 times between January 17 and July 25,
1963. At the first bargaining session, the Union presented its pro-
posed contract, consisting of 25 articles, with a total of 61 subsections.
We do not view the statement of ForemanBenson, referred to above, as by itself estab-
lishing union animus on the part of the Respondent.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The second negotiations- session was held on January 25, at which time
the Respondent accepted 21 of the 61 subsections of the Union's pro-
posal; and submitted counterproposals on every subsection with the
exception of the no-discrimination clause, the checkoff clause, and in-
surance 4 At the next session held on February 15, another 10 sub-
sections of the Union's proposal and the Respondent's counterproposal
were agreed to, making a total agreement on 32 out of 61 proposed
clauses. The Union did not submit its wage proposal until May 1,
the at the, May 2 meeting the Respondent made a counterproposal on
wages. Also at the May 2 meeting the Union offered a counter-
proposal in the form of a package encompassing all unresolved issues,
including checkoff and' no-discrimination clauses. The Respondent
refused the Union's package proposal. At the July 16 meeting the
Respondent offered a flat 6-cent per hour overall wage increase. The
Union finally agreed to withdraw its no-discrimination proposal in
exchange for a letter from the Respondent that it would not engage in
d'isc'rimination. The Union also indicated that it would not insist on
the checkoff proposal and that it would accept the 6-cent wage in-
crease, provided certain inequities could be worked out.
'Iii evaluating this course of negotiations, we think it important to
emphasize several factors. The Respondent met with the Union when-
ever requested; the Respondent submitted numerous counterproposals,
discussed at length the Union's various proposals, and where the Re-
spondent remained adamant on an issue, it gave the reasons for its
position; 5 and by the end of the negotiations, of the 62 subsections
which had been submitted for consideration and discussed, 54 were
agreed upon and 3 had been withdrawn. • Despite these facts, which,
in our opinion, clearly evidences the Respondent's good faith in bar-
gaining negotiations, the Trial Examiner found that the totality of
the Respondent's conduct violated 8 (a) (5). He relied essentially on
the fact, as he saw it, that the Respondent refused to accede to the
union position on any matters other than formal matters or those
which reflected its current practices.
We cannot agree with the Trial Examiner's reasoning in this respect.
In the first place, as the Trial Examiner himself found, the Respond-
ent accepted the Union's proposals on seniority, grievance procedure,
and shop stewards and these proposals were "substantively impor-
tant." Further, the Respondent accepted the Union's compromise
* The Trial Examiner found that since many of these counterproposals were the same as
the union proposals with minor variations, they were in effect acceptances of the union
proposals.
5 Thus, for example, the Respondent explained that it would not submit a counter-
proposal respecting checkoff because it believed the collection of dues was the responsi-
bility of the Union and not that of the Employer and because, on another occasion, a
checkoff clause had been the subject of an unfair labor practice proceeding. The Respond-
ent also rejected superseniority for union stewards on the ground that such clause would,
in its view, be discriminatory in nature.
DIERKS FORESTS , INC., ETC. 929
proposal regarding reporting time and, as described more fully below,
the Respondent offered a 6-cent-per-hour across-the-board wage in-
crease for all employees'. Thus, as it is not true that the Respondent,
did not make any significant concessions during the negotiations, we
need not consider the Trial Examiner's reasoning based on an assumed'
absence of concessions. '
Finally, with respect to the last factor relied on by the Trial Ex-
aminer, we fail to see how the Respondent's position respecting wages.
evidenced the Respondent's bad faith. - -As found by the Trial Exam-
iner, the Union submitted its wage proposal at the negotiation meet--
ing on May 1. This proposal provided for an increase in- wage rates-
for employees in- each classification; with, the increase, varying with
the particular job. On'the following day.the Respondent made a,
counterproposal on wages which included an increase in six classifica-
tions and, a ,flat rate for, hazardous work. ''At the last meeting during:
May, the Union made a further proposal of an overall 10-cent-per-
hour wage increase, which-the Respondent rejected. However, at.the
last bargaining session, which was held on July 16, the Respondent
offered to the Union, in addition to certain inequity adjustments, a flat,
6 -cent per hour wage increase: The Respondent stated that this in-
crease, would bring the wages of runit employees into line with the
wages of the Respondent's other -employees.. The,Union ultimately
agreed to the Respondent's wage offer.
Despite the Respondent's, obviously 'substantial wage counteroffer,
which the Union accepted, the Trial Examiner concluded that these
wage ,negotiations were also indicative of the Respondent's bad faith
in bargaining negotiations. He reasoned that the Respondent 's 6-
cent-per-hour offer was not made in an attemptto reach an agreement,but
rather was, an attempt "to force" the proposal on, the Union or to,
place it in an untenable position with unit employees. This was true,
according to the Trial Examiner, since,-in view,of the 6-cent-per-hour
increase for other employees of the Respondent, if the Union rejected;
this offer, the unit employees would have been in a worse,. position
than they would have been if they had selected no bargaining repre-
sentative. However, as the Respondent- points ,out, it could as well,
be argued that if the Respondent had not offered the Union the 6-cent
wage increase , the Union would have been placed in an even more
difficult position since all of the Respondent's other employees had'
already received the 6-cent-an-hour wage increase. Thus, under the
reasoning of the Trial Examiner; once the Respondent had granted
the 6-cent increase to its other employees, any bargaining position it
would have taken respecting the wages of unit employees would have,
indicated its bad faith.
760-577-65-vol. 148-60
'930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Admittedly, the Respondent here engaged in a course of "hard bar-
gaining" and, as noted by the Trial Examiner, the Union was dis-
appointed when it made concessions but failed to receive a quid pro
qwo from the Respondents But the Board has been admonished by
the Supreme Court that it may not, "either directly or indirectly,
compel concessions or otherwise sit in judgment upon the terms of
collective-bargaining agreements."' Relevant to a determination as
to whether Respondent bargained in good faith is our conclusion
that the Respondent unlawfully failed to furnish information in
timely fashion. Also relevant; however, is our conclusion that the
Respondent has otherwise not violated the Act, and the fact that
there is no other evidence to support the complaint as to Respondent's
alleged overall bad faith. As in our opinion the single violation
found is alone insufficient to establish that the Respondent has not
otherwise bargained in good faith, we shall dismiss this allegation of
the complaint.
6. In view of the foregoing we shall modify the Trial Examiner's
Recommended Order to conform the remedy to the violation found.
ORDER
Pursuant to Section 10(c) of the Act, as amended, the National
Labor Relations Board hereby orders' that the Respondent, Dierks
Forests, Inc. (Treating Plant, D & E Shop and Mill Supply), 'its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Lumber and Sawmill
Workers Local Union No. 3089, United Brotherhood of Carpenters
and' Joiners of America, AFL-CIO, by failing timely to furnish in-
formation concerning wage rates and job classifications of employees
in the following appropriate unit : All production, maintenance, and
yard employees at the treating plant in Process City, Arkansas,
and D & E shop and mill supply at De Queen, Arkansas, excluding all
office clerical employees, guards, professional employees, and super-
visors as defined in the Act.
(b) In any like or related manner interfering with the efforts of
the above-named Union to bargain in behalf of the employees in the
said unit. '
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, .furnish Lumber and Sawmill Workers Local
Union No. 3089, United Brotherhood of Carpenters and Joiners of
6 Thus , for example , the Union accepted the Respondent ' s position respecting such mat-
ters as management prerogatives, hours of work, vacations, and night differential wages
7 N L R.B v American National Insurance Co , 343 U S. 395, 404.
DIERKS FORESTS , INC., ETC. 931
America, AFL-CIO, with information to which it is lawfully en-
titled, including information previously requested to the extent that
it had not been heretofore furnished.
(b) Post at the treating plant in Process City, Arkansas, and D & E
shop and mill supply in De Queen, Arkansas, copies of the attached
notice marked "Appendix." 8 Copies of this notice, to be furnished
by the Regional Director for Region 26, shall, after being signed by
the Respondent's representative, be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive days there-
after,,in conspicuous places, including all places were notices to its
employees- are customarily posted. Reasonable steps shall be taken
to insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 26, in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
BIn the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "a Decision and Order" the words "a Decree of
the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a' Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Lumber and
Sawmill Workers Local Union No. 3089, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, by failing to
timely furnish information concerning wage rates and job classifi-
cations of our employees in the unit hereafter set forth.
WE WILL NOT in any like or related manner interfere with the
efforts of the above-named Union to bargaining in behalf of the
employees in the said unit.
WE WILL, upon request, furnish the aforesaid Union with in-
formation to which it is lawfully entitled including information
previously requested to the extent that it has not been heretofore
furnished.
This bargaining unit is:
All production, maintenance, and yard employees at the
treating plant in Process City, Arkansas, and D & E shop
and mill supply at De Queen, Arkansas, excluding all office
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clerical employees, guards , professional employees, and
supervisors as defined in the Act.
DIERKS FOREST,-INC. (TREATING PLANT,
D & E SHOP AND MILL SUPPLY),
Employe''.
Dated-------- -------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 746 Federal Office Building, 167 North Main Street, Mem-
phis, Tennessee, Telephone No. 534-3161, if they have any question,
concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on April 23, 1962 , by Lumber and Sawmill Workers Local
Union No. 3089 , United Brotherhood of Carpenters and Joiners of America, AFL_
CIO, hereinafter referred to as the Union or Charging Party , the Regional Di-
rector for Region 26 of the National Labor Relations Board , herein called the
Board , issued a complaint on behalf of the General Counsel of the Board against
Dierks Forests , Inc., herein called the Respondent , on June 21 and an amended
complaint on July 29, 1963, both complaint and amended complaint alleging viola-
tions of Section 8(a)(1), (3 ), and (5 ) of the National Labor Relations Act, as
amended (29 U.S .C. Sec . 151, et seq.), herein called the Act . In its duly filed
answers to the aforesaid complaints the Respondent , while admitting certain of
the allegations , denied the commission of any unfair labor practice.
Pursuant to notice , a hearing was held before Trial Examiner Morton D. Fried-
man in De Queen , Arkansas , on October 15, 16 , and 17 , 1963. All parties were
represented and afforded full opportunity to be heard , to introduce relevant evi-
dence, to present oral argument , and to file briefs with me. Briefs were filed
by the General Counsel and the Respondent.
Upon consideration of the entire record in this case, including the briefs of the
parties, and upon my observation of the demeanor of each of the witnesses testify-
ing before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Dierks Forests, Inc., is a Delaware corporation with its principal office in Hot
Springs, Arkansas , and with operations and facilities in the States of Oklahoma
and Arkansas, including operations at Process City and De Queen , Arkansas, the
operations involved herein.
During the 12 -month period immediately preceding the complaint herein, a rep-
resentative period , the Respondent purchased goods and materials of a value in
excess of $50,000 directly from outside the State of Arkansas . During the same
period , the Respondent processed , sold, and shipped goods of a value in excess of
$50,000 from the State of Arkansas directly to points outside the State of Arkansas.
It is conceded in the pleadings , and accordingly, I find and conclude that Re-
spondent is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act , and that it will effectuate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Lumber and Sawmill Workers Local Union No. 3089 , United Brotherhood of
Carpenters and Joiners of America , AFL-CIO, is conceded to be a labor orga-
nization within the meaning of Section 2 (5) of the Act and I so conclude and find.
DIERKS FORESTS , INC, ETC
III THE ISSUES
933
I Whether , after certification of the Union , the Respondent unilaterally reduced
the hours of employment of the employees in the D & E shop ( part of the unit)
because the employees sought to bargain collectively through the Union, and in
reprisal because the employees chose the Union to represent them
2 Whether the Respondent unilaterally reduced the wages of several employees
for like season
3 Whether the Respondent unilaterally ceased to furnish work gloves free of
charge to an employee for similar reasons
4 Whether the Respondent unlawfully refused to biigim by failing to furnish
to the Union a list of employees in the unit , including then job classifications, wage
rates, and date first employed
5 Whether the Respondent unlawfully refused to bargain by shifting its position
during the course of negotiations with iegaid to its proposal concerning supervisors
performing the duties of employees in the bargaining unit
6 Whether the Respondent refused unlawfully to baigun by negotiating in bad
faith and with no intention of enteung into any final of binding agreement'
IV THE UNFAIR LABOR PRACTICES
A Indoduction
On October 4, 1962, a Board-conducted election was held among the employees of
the Respondent 's treating plant, D & E shop, and mill supply A majority of the
employees voted for the Union On December 10, 1962, the Union was ceitified as
the bargaining representative of these employees
The Respondent is engaged primarily in the lumber industry Its operations are
rather widespread and the Respondent has facilities in Oklahoma and in the State of
Arkansas In De Queen , Arkansas , is located the D & E shop, which is, in effect, a
maintenance facility where repairs are made to various types of equipment from Re-
spondent's other facilities The treating plant, located at Process City , Arkansas,
near De Queen, is what its name implies , a plant where the various wood products
,processed by the Respondent are chemically treated and otherwise processed The
mill supply is located in De Queen 2
As noted above , the employees involved in this proceeding were employed at the
three foregoing facilities
Shortly after certification of the Union, the Union's representatives and the Re-
spondent's representatives met for the first time on January 17, 1963, for the purposes
of negotiating a contract Thereafter , including the January 17 meeting, there were
13 negotiation meetings lasting through July 25, 1963 As noted above, the General
Counsel contends that the Respondent failed to bargain in good faith and discrimi-
nated against its employees in violation of the Act The events and the activities of
the Respondent which the General Counsel alleges constituted the alleged unfair
labor practices occurred , for the most part, between the dates of election and the last
meeting on July 25, 1963
B The reduction in work hours
1 The evidence
As noted above, the D & E shop is a machine shop where repair and maintenance
work is accomplished for the Respondent 's numerous facilities The workload for
the shop, therefore , depends entirely upon the type and the amount of repair and
maintenance work sent to the shop by the Respondent 's other facilities According
to the credited testimony of Jesse N Benson, shop foreman of the D & E shop, the
work that comes into the shop is determined by the various engineers of the Company
at its various facilities , the number of hours an employee works per week is deter-
mined upon the amount of work that comes in As an example , when there is work
which must be completed in a hurry there would be special men of special skills
who would have to work overtime If a piece of machinery breaks down at one of
the facilities and that facility would be forced therefore to shut down until the said
1 The amended complaint also alleged that the Respondent unlawfully refused to bargain
by unllater,tlly reducing the benefits of its employees ' medical and hospitalization insur-
ance piogiani However after the hearing, the General Counsel withdrew that paragraph
of the complaint Accordingly , I sirtil order its dismissil
The recol d does not show the work done at the mill supply
934 DECISIONS OJ' NATIONAL LABOR RELATIONS BOARD
piece of machinery could be repaired, the employees working in the D & E shop,
whose skills would require them to be called to work on that particular piece of
machinery, would work until the repairs were finished. Thus, because of'the relative
differences in skill and the variations in the amount and type of work coming into the
shop the situation could ensue and does ensue whereby while some employees in the
shop are experiencing a relative slack period in their workload, others might very well
be working far in excess of a normal workweek. The foregoing, then, is a summary
of the manner in which the D & E shop operates.
Employees Darrell Grady Gaston and Louis Brantley, both welders in the D & E
shop,3 testified that before the election, which occurred in October 1963, the work-
week in the shop was approximately 48 hours. Toward the end of that year and at
the beginning of 1963, according to both Gaston and Brantley, the workweek dropped
from approximately 48 hours a week to approximately 40 hours a week for the em-
ployees in the D & E shop. Gaston additionally testified that in the 14 years and
2 months that he had worked for Dierks Forests the workweek had always been
48 hours and more and before the election the normal workweek was 6 days. He did
admit, however, agreeing with Benson, that there was repair work going in the shop
7 days a week, 24 hours a day; that the work came from the various facilities of the
Respondent; and, accordingly, that the amount of work for the men depended upon
the amount and type of repair and maintenance work coming into the shop.
Brantley confirmed Gaston's testimony to the extent that according to Brantley,
during the 6 years he had been employed by the Respondent in the D & E shop, the
workweek had always been a 6-day workweek of approximately 48 hours. Brantley
further testified that around Christmas 1962, Jesse Benson, his foreman, stated that
thereafter the work would be straight time because "they were in the unit with the
Treating Plant." Although Gaston left the Respondent's employ in May 1963,
Brantley was still working for the Respondent at the time of the hearing. He stated
that sometime after the 1st of July 1963 the shop started to work again on a 48-hour
week schedule after a new superintendent, a Harry Slade, was appointed. Brantley
further admitted, on cross-examination, that he might have worked 20 weeks over
40 hours during 1963 and admits that from July 1963 on there was a 3-month period
during which the shop worked 48 hours per week.
Introduced in evidence is a summary which shows that during 1963 many, if not
all, of the employees in the shop did work many weeks in excess of 40 hours and
that 48 hours was, more or less, a normal workweek. Also, the summary shows that
beginning with the last week in December 1962, and continuing on through the month
of May 1963, a number of the employees worked, for the most part, only 40 hours
per week. However, this summary also shows that some of the employees, for in-
stance employees Clay, Hendricks, and Caplinger, worked over 40 hours a week and
in fact over 48 hours a week almost throughout the entire year 1963. The summary
also shows that during 1963 the employees of the D & E shop worked on an average
of 46.5 hours a week and during 1963 the same employees worked on an average of
44.7 hours per week for a difference of 1.8 hours per week less in 1963 than in 1962.
However, it should also be noted that the increase to 48 hours a week and more in
1963 commenced after the charge in the instant proceeding was filed.
2. Concluding findings as to the reduction in hours worked
The General Counsel contends that in the light, first, of the history of work in the
D & E shop during the years preceding the election and the lessening of the hours of
work that occurred soon after the certification of the Union, and second, the fact that
Benson did not specifically testify, nor did the Respondent offer any other testimony,
to the effect that there was a lack of work for the D & E shop during the 1963 period,
the timing was such that the reduction in work hours could only have been dis-
criminatory and the failure of the Respondent to inform,the Union of this reduction
constituted an unlawful refusal to bargain. The Respondent, on the other hand, con-
tends that the uncontroverted testimony of Benson amply establishes that the amount
of work in the D & E shop is entirely dependent upon the work that comes in from
the Respondent's other facilities. Respondent also contends that since the summary
of the workweeks of the employees for 1962 and 1963 does not set any particular
work pattern, therefore, there is no evidence of a discriminatory reduction in work-
week and of course no refusal to bargain thereon.
s Gaston left the Respondent's employ in May 1963.
DIERKS FORESTS, INC., ETC: 935'
I agree. with the Respondent that no definite pattern of discrimination can be dis-
cerned from the evidence presented. While it is true that the Respondent did not
offer proof of the amount of work that was available -for the D & E shop during the
period in question, neither did the General Counsel offer evidence to show, or tend-
ing to show, that there was, in fact, sufficient work available for the employees of the
D & E to render the reduction in work hours discriminatory. Thus there was no,
showing that work which ordinarily would have gone to the D & E shop was directed
elsewhere. Therefore, with regard to that particular facet of the problem the situa-
tion is equivocal.
The only two significant factors which could be utilized feasibly to determine that
the reduction in work hours for the first part of 1963 for a number of the employees
was discriminatory where (1) the statement made by Benson to Brantley, whom I
credit, to the effect that the work hours were going to be reduced because they were
"now in the unit with the Treating Plant," and (2) the fact that the workweek was
increased for most of the employees back to the vicinity of 48 hours shortly after the
charge in the present case was filed. Benson's statement did not necessarily reflect a
discriminatory attitude on the part of the Respondent. Moreover, I conclude that it
was, at most, an opinion of the utterer and not necessarily a true reflection of what
the Respondent's policy was. With regard to the resumption of the 48-hour week
shortly after the charge was filed, I cannot find that this, without more, was anything
but mere coincidence It should be noted that there was no showing that the em-
ployees who did receive less than 48 hours a week work during the early part of
1963 were known to be particularly strong union adherents or that those who re-
ceived more than 48 hours a week work during that period were hostile to the Union.
Accordingly, I do not find that the General Counsel has established by a preponder-
ance of the credible evidence that any reduction in the workweek which did occur
with regard to any of the employees in the D & E shop during the critical period was
discriminatory in nature. I find and conclude, therefore, that such reduction in work
hours as did occur were for reasons other than that alleged in the complaint and shall
recommend dismissal of that allegation of the complaint which pertains thereto.
C. The reductions in wage rates
1. The evidence
It is undisputed that shortly after the election in three cases, and in the following
May in one case, four employees of the Respondent's treating plant had their wage
rates reduced. Thus, Thurmond Y. Green had been a boomtruck operator for ap-
proximately 3 years. Then, about 11/2 or 2 years before May 16, 1963, Green was.
assigned to work as a common laborer. However, Green admitted on cross-
examination that during the period of time that he was working as a common laborer
before May 13, 1963, he was also assigned, at times, to work the boomtruck, so that
actually over the period of time he was performing both jobs. At any rate, up until
May 13, 1963, Green was making $1.33 an hour, the boomtruck operator rate, even
though for most of that period he was spending a substantial part of his working time
as a laborer. On May 13 he was reduced to $1.24 an hour, the laborer rate.
Murray N. Neeley, the plant manager of the treating plant, testified that when he
found out that Green was getting truck operators' pay when working as a common
laborer he ordered that Green be given laborers' pay only. However, there were
weeks when Green made more than $1.24 an hour and those were the weeks during
which he worked part time as a truckdriver. Green was hurt on the job driving a
truck in June 1963, and after that he no longer worked as a truckdriver. Thereafter
his rate of $1.24 an hour applied at all times.
Talbert Gabbard worked as a checker at the rate of $1.42 an hour until February
1961. At that time, he was transferred to position of post-tram-out man. However,
he continued to make the $1.42 rate even though he was a post-tram-out man, which
carried the rate of only $1.24 an hour, until 2 or 3 days after the election when his
rate was reduced to $1.24 an hour.
Another employee of the treating plant, Homer Logan, had been a checker until
about a year and a half before the hearing. At that time his position was changed
to post loading as a cable hooker, which carried the rate of $1.38, but continued to
receive the $1.42 checker rate until approximately 2 to 3 weeks after the election
when his rate was reduced to $1.38 He was then making the same rate as other
hookers doing the same work that he was.
'936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lonnie Henry Todd had been working as a hooker at the rate of $1.32 an hour or
'$1.29 an hour, depending upon the type of material he was handling, until approxi-
mately 2 years before the date of the hearing herein, when he was transferred to the
_job of tagging. Tagging carried a rate of $1.24 an hour. However, Todd was paid
at the rate of $1.32 an hour until shortly after election when his rate was reduced to
$1.24 an hour. As in the case of the other employees, the lower rate that he was
changed to was the proper rate for the job he was doing.
Neeley, the plant manager, testified that be had heard that Homer Logan had told
another employee that he, Logan, was drawing a higher rate than the men he was
working with on the same job in the same classification. Thereafter, in the course
of business, Neeley had a meeting with the foremen in the plant and instructed them
to go over their records carefully to be sure that all men were being paid for their
proper classification of work. He instructed the foremen if they were being paid at
a rate other than their classification called for to correct it. It was under these cir-
cumstances that it was discovered that employees Green, Gabbard, Logan, and Todd
were found to have been receiving rates higher than they actually should have been
receiving and the corrections were made to eliminate this administrative error.
On cross-examination Neeley stated that he did not know from day to day or week
to week just how much the employees were making because this was not his problem;
it was a payroll department's problem. However, he did admit that reports came to
him with regard to wages made by the employees in the plant which he managed.
He finally admitted that the wage records of his department are checked by auditors
-but stated that he did not know the frequency of these audits. In connection with
.this, Respondent's counsel stated for the record that Respondent checked its wage
rates through an audit every 3 months.
2. Conclusions with regard to the wage rate reductions
The General Counsel contends that the wage reductions above noted were uni-
lateral changes in working conditions for which the Respondent should have nego-
tiated with the Union and, moreover, that the wage reductions were discriminatory
in that they were reprisals against employees for selecting the Union as their bargain-
ing representative. The Respondent contends that the wage reductions were merely
administrative readjustments which were made when it was ascertained that the four
-employees involved were receiving wages at a rate higher than that to which they
were entitled by their classifications.
There is no evidence, nor does the General Counsel contend, that there was any
individual discrimination as such. It is uncontroverted that none of these individuals
were more active in the union drive than any other employees and, therefore, could
not have been and would not have been singled out for discrimination therefor.
Moreover, even if they were more active, there is no evidence of employer knowledge
,of such activity. Additionally, as admitted by their testimony, these employees,
after their reduction in wage rates, began to receive the proper wage rate for the
classification in which they were then working. Admittedly the other employees in
-the same classification were getting the lower rate to which they had just been re-
duced. Therefore, it would seem , in view of the foregoing, that the reduction in
salary was exactly what the Respondent contends that it was, namely, merely an ad-
justment made for administrative purposes of the wage rates of the four individuals
involved.
However, I am struck by three factors which induce me to conclude that the re-
duction in salary was other than a mere administrative move on the part of the Re-
spondent. First, I am impressed from the rather vague, evasive answers of Neeley
and his later admissions, when pressed by the General Counsel, that the situation
was other than he contended. Second, I am impressed by the timing of the reduc-
tions which in the cases of all these individuals, with the exception of Thurmond
Green, occurred almost immediately after it was learned by the Respondent that the
Union had won the October election. Last, and in my opinion the most persuasive,
is the admission by Neeley and Respondent's counsel that an audit was made of the
-Respondent's payroll every 3 months and that in such audit errors in pay rates were
discovered and the proper individuals thereafter notified. In the case of each of the
four employees here involved, the payments at a rate higher than that of the classifi-
-cations each was in continued through at least three of these quarterly audits. Under
-the Respondent's own admission it could not help but have known that these in-
dividuals were being pad at a rate higher than that which was allocable to the jobs
%which they performed. Inasmuch as there is no other explanation offered by the
DIERKS FORESTS, INC., ETC. 937
Respondent, I am constrained to conclude that the Respondent knew of the continu-
ance of the higher rate and that Neeley was less than candid when he said that he
learned of this matter only by coincidence after the election.
Accordingly, I find that by reason of Neeley's evasiveness, by reason of the timing.
of the reduction in wage rates, and by the fact that the Respondent knew of the
continuous payment to these employees of the higher pay rates for such a long period
of time, that the reduction came not as a mere administrative matter but, as con-
tended by the General Counsel, as a reprisal against the employees in the unit for
selecting the Union as their bargaining representative. Such a reduction in wage.
rates constitutes a violation of Section 8(a)(3) and (1) of the Act, and I so find.
There remains for disposal in regard to this particular allegation, the contention of
the General Counsel that the reduction in pay rates also constituted changes in work-
ing conditions concerning which the Respondent was obligated to bargain with the
Union. I find merit in this contention. The General Counsel argues that the reduc-
tion of a wage rate without notification to employees' bargaining representative and a
failure to bargain and negotiate thereon constitutes an unlawful refusal to bargain
and is violative of the Act. On the other' hand, a change which would constitute an
adjustment of wage rates to conform to existing levels would ordinarily not con-
stitute a change in working conditions, but would be merely an administrative opera-
tion on the part of an employer? Therefore, absent circumstances presented by this
record, the Respondent could have made these salary reductions without consultation
with the Union. But here the higher wage rates were paid for so long a period of
time that they became a part of the working conditions of the employees involved.
By reason of the protracted period, the Respondent must be considered to have as-
sented to the higher rates, especially when the quarterly audits are considered. Ac-
cordingly, I find that the Respondent's failure to notify the Union and bargain with
it about the lowering of the wage rates of these employees constitutes a refusal to,
bargain within the meaning of Section 8 (a) (5) and (1) of the Act.
D. Discontinuance of work gloves
It was stipulated at the hearing that work gloves were issued to employee Clermont
Goins averaging two to three pairs a month for the period beginning March 6, 1962,
and ending February 13, 1963. On or immediately after February 13, 1963, this.
practice was discontinued by the Respondent.
According to the Respondent, the reason for the discontinuance was that the Re-
spondent had a policy of not furnishing free gloves to any of its employees but did'
sell the gloves to the employees at the Respondent's cost. Goins had an assistant
and there were 10 other employees, all of whom were doing the same work generally
and all of whom were exposed to the same normal work risks. Yet, they were not
issued free work gloves. The record does not explain how Goins started to receive
free gloves. He was not called to the stand by the General Counsel and did not
testify. Nor did the General Counsel offer testimony to dispute the fact that Goins
was not authorized to have free company-supplied gloves.
According to Neeley's uncontroverted testimony, when he heard of this unauthor-
ized practice he corrected it. The manner in which he heard of the practice was
that the Union submitted to the Respondent as one of its proposed contract clauses
a clause entitled, "safety," which included the supplying of free work gloves. When
the Respondent replied that it would not supply free work gloves, the Union stated'
that this was merely a continuation of the practice of supplying work gloves and'
cited the case of Goins. This, according to Neeley, was the first knowledge the.
Employer had that Goins was receiving free work gloves. Neeley thereafter had
the gloves discontinued to conform to the Respondent's long-established policy and'
practice of not furnishing free work gloves to its employees.
Although I have heretofore found that Murray Neeley, the plant manager of the
treating plant, was not reliable with respect to his professed lack of knowledge as to
the wage rates of the employees whose rates were ultimately reduced, I do not find'
that this lack of reliability extends to his testimony with regard to the circumstances
surrounding the discontinuance of gloves to Goins. His testimony stands uncon-
troverted to the effect that when the matter of Goins' gloves was discovered by
management he ordered them discontinued to bring Goins into line with other em-
ployees with regard to the Respondent's longstanding policy of not supplying free
gloves to any employee. Moreover. I find entirely plausible the manner in which
this matter was discovered by the Respondent. In addition, this explanation is not
in any way altered by any testimony or any evidence offered by the General Counsel.
N.L.R.B. v. Superior Fireproof Door d Sash. Company , Incorporated, 289 F. 2d 713
(C.A. 2).
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel seeks to base a finding that the withdrawal of the gloves was
discriminatory in that, as in the case of the salaries, the Respondent must have known
of the gloves being given to Goins because of the fact that it was able to make a
record of the numbers of pairs of gloves given to Goins when requested to do so by
the General Counsel. From this, the General Counsel would infer that the Respond-
ent knew of the gloves given to Goins and only withdrew them after the Union won
the election. However, I do not find in this incident the element so apparent in the
incident with regard to the lowering of the wage rates, namely, the timing. It was
not until after the Union in its negotiations told the Respondent that Goins was
receiving gloves that the gloves were withdrawn. Thus, with regard to the time
when the gloves were withdrawn, I find that Neeley's version of what occurred is
at least as plausible and believable. The General Counsel would have me infer
that the knowledge on the part of someone in the Respondent's plant that Goins was
being issued free gloves is sufficient to establish that there was a discriminatory
motive. But, the situation is not the same as that of the reduction in wage rates.
There, Plant Superintendent Neeley was directly chargeable with this knowledge
and he, in relation to that incident, sought to evade questions with regard to his
knowledge. Here there is no claim by the General Counsel, nor is there any evidence,
that Neeley himself or anyone in higher authority was aware that Goins was being
given gloves contrary to the Respondent's longstanding policy. Thus I find that the
issuance of the gloves cannot be treated as a condition of employment. Accord-
ingly, I find that the withdrawal of the gloves to Goins was undertaken by the em-
ployer only to conform with the employer's longstanding policy. Moreover, it is
perfectly understandable that in these circumstances an employer would stop the
supplying of free gloves.
With regard to whether or not the employer could do what it did about the
gloves without discussing it with the Union, the same rationale is applicable as
that which would be applicable to the nondiscriminatory lowering of the wage scale
of an employee to conform with the Company's established wage rate. Certainly
if the Company had an established policy and found that someone was working
in a manner which was not in conformity with the policy it would not be neces-
sary to bargain to bring that individual's working conditions in conformity with
the Respondent's established policy. I do not consider this and do not find it to be
a bargainable matter.
Accordingly, I shall recommend the dismissal of those paragraphs in the complaint
which allege that the Respondent discriminatorily withdrew free gloves to Goins
and thereby violated Section 8(a) (1), (3), and (5) of the Act.
E. The refusal to furnish appropriate wage data
1. The events
As heretofore related, the Union and the Respondent held 13 bargaining sessions.
The chief negotiator for the Respondent at all of these sessions was Carl E. Enggas,
counsel for the Respondent. The negotiators for the Union were either Harvey L.
Wilkins, International representative of the Carpenters Union, or James A. Parker,
the southern director of organization for the Carpenters. Sometimes both Wilkins
and Parker were present.
At the first bargaining session held on January 17, 1963, Parker asked the
Respondent's negotiators for the names, date of hire, job classification, and wage
rates of the employees in the bargaining unit. At the next bargaining session, which
was held on January 25, the Company furnished to the Union a list entitled "Job
classifications and wage rates" which is a listing of job classifications by description
together with the wage rates paid for each classification. This document does not
have any names or starting dates for any employees. When the parties began to
discuss the contract article on wages, Wilkins, who was acting for the Union at that
meeting, repeated the earlier request for information pertinent to the names, classi-
fication, wage rates, and date of hire of unit employees. Enggas said that he would
give them the information as soon as possible, but offered no explanation for the
failure of the Respondent to furnish names of employees in the unit or starting dates.
At the next meeting, which was held on February 15, the Respondent gave to the
Union a document entitled "Seniority list of Treating Plant, Mill Supply and D & E
Shop." This was dated February 15, 1963. It contained the names of approximately
176 employees together with the dates on which each was first hired by the
Respondent and a code number after each name denoting the classification but with-
out a description of the classification. This list, however, did not furnish classifica-
tion 'of any of these employees and did not give any clue as to the meaning of the
DIERKS FORESTS , INC., ETC. 939
code numbers with regard to descriptions of classifications . There is no testimony
that the Respondent 's negotiators in any way sought to explain why the code numbers
were not tied into the classification descriptions . At any rate, at this meeting the
Union again repeated its request.
At the following meeting, which was held on February 20, the Respondent's
negotiators submitted to the Union a document entitled "Job Classification and Wage
Rates, Treating Plant," dated February 20, which gave the code number , the job
description , and the rates of all of the classifications of employees . This document
.did not contain the names of the employees employed in these classifications or their
starting dates . At this meeting, also , the Respondent proffered to the union negoti-
ators a list of names of the employees on the second shift. This list did not contain
either the code number, job classification description , or wage rates of any of these
employees . However, Wilkins admitted on cross-examination that he told Enggas
at the February 20 meeting that the information that had been given up to that point
"ought to do it." At that time Wilkins also explained that the reason the Union
had not submitted to the employer a detailed wage proposal with regard to rates
was because up to that point they had not had sufficient information . Wilkins
testified , however, that the information given to the Union proved to be inadequate
when the Union attempted to correlate the various documents containing the in-
'formation supplied by the Respondent . He testified that it became apparent to
'them as they worked that it was impossible , in a number of instances, to correlate
names with classifications and that, in fact, a number of classifications appeared to
be wrong. Additionally , there were job classifications without code numbers and
there appeared to be improper job classifications for certain employees . Further-
more, in certain instances job descriptions which were given by employees to the
Union were not found listed on the job classification sheets describing the job classifi-
cations. In some instances the code numbers could not be found . It is thus
apparent , because Wilkins' testimony remains uncontradicted , that there were de-
ficiencies , to a certain extent at least, in the information which was finally supplied
by the Respondent.
However, when the Union had finally prepared its compilation of the wage
material and submitted it to the Respondent at the next meeting, which was March
14, the Respondent produced payroll records so that the Union could check its lists
against the records to discover inaccuracies and make corrections . In fact, the
March 14 meeting was devoted completely to this end.
However, apparently the Union was still unable to make a wage demand to go into
its proposed contract and, accordingly, at the next meeting, which was held on April
4, the Union again made request for the wage rates and job classifications for each
employee. At that time , Enggas, the chief negotiator for the Company, asked the
period for which it was wanted . Parker, the Union 's negotiator at that meeting,
stated that he did not care what period it was for so long as the Union would get it.
Then Enggas repeated that he would give it to the Union for any period the Union
desired and suggested the payroll period ending March 31 to which Parker assented.
Then Enggas told Parker that it would only reflect the job classifications and the job
the unit employees worked at during that payroll period. At that point Parker
said that that was not what he wanted , what he wanted was the names of those people,
the classification, the wage rates, and starting dates of these employees . Enggas
told him that the Company could only give it to him for any period he requested, but
it would only reflect what jobs and job descriptions the men were performing at that
particular time. In other words , what Enggas was attempting to state was that the
jobs of the men were changed around and that they did not have permanent job
classifications . As far as the record is concerned , this was the first time since the
bargaining sessions had begun that Enggas informed the Union that the Respondent
was unable to give the Union the permanent or regular job classifications of Re-
spondent's employees, inasmuch as the employees did not have regular job assign-
ments. At each succeeding bargaining session from that point the Respondent
repeated continuously that the employees did not have regular job classifications.
The Union , of course , contends to the contrary.
With regard to this argument as to whether or not the men had regular job classi-
fications, there is presented by testimony in the record four examples . As hereto-
fore noted , employees Gabbard , Logan, and Todd all worked at the same job with
the same classification for a period of approximately 2 years. On the other hand,
Thurmond Y. Green admitted that he worked as a laborer and as a truck operator
over a period of 2 years . Although his classification was laborer , he did work also
as a truck operator and was paid for work done in each classification.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In contrast to Enggas' asserted'argunient that the employees did not have perma-
nent job classifications, are, aside from the employees' testimony, (1) the admission
by Neeley that he knew of some employees who had the same job classifications for
over 2 years, and (2) a Respondent-submitted proposal dealing with the overtime and
premium pay which read:
5. In the event overtime is required of any production operation, the em-
ployee regularly assigned to that job shall have first preference at the overtime.5
With regard to what could be considered evidence of attitude, when Parker was
told by Enggas that any wage information supplied would reflect only the classifi-
cation and rate during the payroll period covered, Parker rejoined with a request for
the information for each payroll period from before the election to the date of the
request. Cook, an attorney for the Respondent and a member of the negotiating
team, answered that the Respondent would not furnish such information unless
ordered. Enggas, the chief negotiator, did not contradict Cook.
2. Conclusions as to wage data
The Respondent and the Union agree, and the Board has held consistently, that in
approaching the bargaining table an employer must furnish to the Union data neces-
sary for bargaining concerning wages, hours, and working conditions .6 Within this
generally accepted principle it can be further stated that a Union is entitled to the
names of employees in the bargaining unit, their job classification, dates of hire, and
wage rates? The General Counsel contends that under the foregoing principles
the Respondent failed to furnish the necessary data and thereby refused to bargain
in two different senses in that: (1) it sought to delay the bargaining by feeding the
material to the Union in piecemeal, and (2) the Respondent failed to give sufficient
information and also that the information given by the Respondent was unintelligible
and unsuitable for the purpose for which it was required. The Respondent, on the
other hand, contends that it furnished the requested data when the Union asked for
it and also that Respondent furnished complete data and as much data as was neces-
sary for the Union to formulate its wage and other proposals which depended on
that information.
Underlying the Respondent's contention that it timely furnished the Union with all
necessary data, the Respondent submits that the Union's requests for data in addition
to that given to the Union in the first document submitted by the Respondent to the
Union at the January 25 meeting, were generated by a misconception of the Com-
pany's operations and, inferentially, by idle curiosity on the part of the Union. In
other words the Respondent contends that because of the manner in which the Re-
spondent operated its plant, no employee having a specific permanent classification,
all that the Union really needed to complete its wage proposals were the classifica-
tions by description and the wage rate paid by the Respondent for each such classifica-
tion; that it really did not matter whether an employee's name appeared alongside
each classification or that the employees' classification appeared alongside his name.
There is record support for the contentions of both the General Counsel and the
Respondent. Thus, it was on January 17 that the request for the names, classifica-
tions, starting date, and wage rates of the employees was first made. At the first
meeting thereafter, which was approximately a week later, the Respondent supplied
only a list of the classifications and the wage rates. This list omitted any names or
starting dates. Almost a month later, at the February 15 meeting, in reply to a
repetition of the request, the Respondent supplied the Union with the list of names
and the starting dates but did not affix to this list the classifications of the employees
or the wage rates. Thus at the end of almost 2 months of negotiations the Union
had not received the information requested, at least in the form that it was re-
quested. Then, when the Union attempted to draw up a compilation of the informa-
tion that had been given to it by the Respondent, it was discovered that in many in-
stances it was impossible because a number of the job classifications that appeared
on one list did not have code numbers. In other cases, the code number and the
job classification for that code was not a job classification which was listed in the list
of job classifications. Also a number of code numbers appearing beside the em-
ployees' names did not necessarily match the classifications because a number of the
classifications bore the same code number. Thus the Union could not be certain of
determining in what classification an employee was employed.
5 Emphasis supplied
6 Oates Bros , Inc, 135 NLRB 1295.
7 Kit Manufacturing Company, Inc., 142 NLRB 957.
DIERKS FORESTS, INC., ETC. 941
On the other hand, when confronted with this, the Employer, at the March 14
meeting, brought its payroll data books so that comparisons could be made. Then
finally, at the April 4 meeting, the Respondent, through its negotiator, explained
that no employee had a definite job classification and that this was the reason why
specific job classifications could not be given along with wage rates for each individual
employee. However, in the case of employees Gaston, Brantley, Gabbard, and
Green there was testimony to support the fact that these employees had been em-
ployed in the single classification for a period of 11/2 to 2 years which would indicate
a somewhat permanent classification. On the other hand, there is no evidence in
the record of how many employees had permanent or semipermanent classifications
and how many only were classified on the payroll records according to the classifi-
cation of the job which they performed during the payroll immediately preceding
the making of such record. The Respondent contends that these were numerous
and in fact constituted the bulk of the employee personnel but itself submitted no
testimony to bear this out beyond the mere statement that this was so.
Nevertheles, if what the Respondent contends is true and the employees, or at
least the greater number of the employees, do not have permanent job classifications,
then it would, indeed, be impossible for the Respondent to supply the type of in-
formation that the Union desired. In this event, the Respondent's contention that
the Union was under a misconception as to how the Respondent operated would
have a basis and, perhaps, some merit. The Respondent contends that the code
number appearing beside the names of the employees submitted to the Union was
merely the code number referring to job classifications in which the employees
happened to be working during the payroll period preceding the day the list was
made up. The Union, erroneously assuming that this referred to a permanent job
classification, could not, therefore, trace through normal channels the permanent
classification of the employees. Thus when the Union checked the material sub-
mitted, it found out that certain employees were working in job classifications differ-
ent from those listed in the Company's material. This would explain and would
bear out the Respondent's contention that there were no permanent job classifications.
That the Union was persisting in an attempt to assign permanent job classifications
to each individual is borne out to a certain extent by the conversation at the April 4
bargaining session between Enggas, the chief negotiator for the Respondent, and
Parker, the chief negotiator for the Union at that meeting. When Enggas asked
for what period the information was desired, Parker said that he did not care so
long as he got such information. Enggas replied that the Respondent could give it
for the March 31 period but it would only reflect the job classification in which the
man worked during that payroll period. Parker said that was not what he wanted;
that he wanted the names, the wage rates, the classifications, and the starting dates.
Following this, on April 14, the Company supplied the Union with an alphabetical
list of names, the classification, and wage rates for everybody who worked in the
unit, but this only reflected such job classifications as the men worked in the period
immediately preceding March 31, the date the list was compiled.
On the basis of all of the foregoing, I conclude that there did indeed exist a mis-
understanding between the Union and the Respondent. This unfortunate situation
gave rise to the frequent demands by the Union for the information it desired and
the frequent and repeated submissions of information by the Respondent. I cannot
conclude from the fact given that there was a deliberate intent on the part of the
Respondent to ultimately withhold information. While the situation within the
Respondent's plant of at least some employees not having permanent classifications
would seem to be somewhat unusual. I do not find sufficient evidence in the record
to show that this situation did not exist. I believe that the evidence, on the whole,
when balanced in one direction and then again in the other, shows that at least there
was some question as to whether the Respondent could supply the Union with the
information in the form the latter desired I also find that the Union was somewhat
confused by the unusualness of the situation and insisted upon what would normally
be its rights, whereas the Respondent could not supply it with sufficient information
of the type the Union wanted. Accordingly, therefore, I find and conclude that the
Respondent ultimately gave to the Union all of the information that it could give.
I do not overlook the fact, in so concluding, that there were undoubtedly some
employees who were in semipermanent classifications. I would presume that for
those purposes the Respondent could have supplied the names of these employees
who did have somewhat permanent classifications, but the Respondent's employment
records being set up on a payroll period basis, I find that such a task would have
been most difficult and perhaps even impossible. I also find that this accounts for
the numerous "inaccuracies" of which the Union complains.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I find that on the record as a whole the Respondent did ultimately
supply all the information that it could to the Union. It would seem to me that
under these circumstances the Union could have negotiated the wage rates for the
classification rather than for the individual. This being so, the Union then would
merely have been confronted, after a contract had been reached, with the problems
of policing the contract under what might be somewhat difficult conditions.
Nevertheless, despite the foregoing conclusions, I cannot ignore the failure of the
Respondent to supply the information in a timely fashion. The wage data was first
requested about the middle of January. At that time, the Respondent's representa-
tives must have known that the information could not have been given in the form
the Union requested. Yet, no explanation was offered to this effect until the meeting
of April 4 or 5, almost 3 months from the date of the original request. Additionally,
I note that the first data supplied on January 25 contained only the classifications
and the wage rates for those classifications. Then, later, names were supplied with
code numbers, but no collation was made between these code numbers and the
classifications by job descriptions. And so it went, each meeting a little more infor-
mation was furnished , and not until April did the Respondent explain its situation.
This despite the fact that Respondent's representatives knew the Union's wage pro-
posals depended on the submissions by the Respondent of necessary wage data.
Thus I conclude that the existence of a misunderstanding was due in large measure
to the Respondent's failure to furnish information promptly and the failure of its
representatives to forthrightly come forward and explain the situation with regard
to the lack of permanent job classifications. The silence of Respondent's representa-
tives in this respect could, I find, only have been deliberate and lent to the confusion
which caused delay in bargaining negotiations and, thereby, thwarted the Union's
efforts to negotiate a satisfactory agreement.
In connection with the foregoing, and as additional evidence of this attitude, is
the refusal by Cook, one of the Respondent's counsels and negotiators, to furnish,
unless ordered, the information requested by Parker showing the jobs held and the
rates paid to the employees in the unit for the 6-month period preceding the date
of the meeting on which this request was made. In view of the Respondent's asser-
tion that the employees had no permanent classifications and in view of the fact that
both the Union and Respondent knew this was not entirely true, the request was
reasonable in that the Union had the right to know which employees did have per-
manent classifications and which did not. It certainly had the right to investigate
the basis for Respondent's claim. Yet, this information was refused. I can but
conclude that this refusal constitutes a further attempt to thwart the Union's bargain-
ing efforts.
Accordingly, I find, that by the foregoing conduct, the Respondent did seek to delay
and discourage bargaining and thereby failed to bargain in good faith as required
by the Act.
F. The bargaining
1. The sequence
As set forth heretofore, there were 13 bargaining sessions . The first meeting took
place on January 17, 1963. This meeting was of short duration. The Union
presented its proposed contract consisting of a preamble and 25 articles with a total
of 61 subsections and requested the wage and employment data herein above dis-
cussed. The Respondent promised to study the proposals and to begin negotiations
on January 25.
The parties met as scheduled on January 25, 1963. Enggas represented the Re-
spondent as chief negotiator, and Harvey L. Wilkins, the Carpenters International
representative, was chief spokesman for the Union. At this meeting, the Company
gave to the Union, as heretofore related, a list of job classifications and wage rates
for those classifications. The Company also presented to the Union its counter-
proposals. The parties discussed in detail each and every item contained in the
Union's proposal and the Respondent's counterproposal. To repeat here the details
of the discussion as to each article and subarticle would unduly lengthen this De-
cision and burden the reader. Suffice it to say, that by the end of the session the
Company had accepted 21 of 61 subsections in the Union's proposal. In addition
thereto, the Company submitted counterproposals on almost every article and sub-
section with the exception of article II, no-discrimination clause; ,article XIV, check-
off clause; and ' article XVI, insurance. Many of the counterproposals were the
same as the union proposals with minor variations and thus, in effect, were accept-
ances of the Union's proposals. It should be noted, however, that with regard to^
wages, overtime, and other articles depending upon the eventual wage structure,
there was no submission by the Union or Respondent or, for that matter, any agree
DIERKS FORESTS , INC., ETC. 943
ment reached except for preliminary matters with regard thereto . The Union did not
submit a wage proposal in its original submission for the reason that it did not have
the necessary data from Respondent from which a wage proposal could be drawn.
Outstanding in regard to the areas on which there was no progress whatsoever were
article II, discrimination ; article VI, subsection 3, daily overtime ; article VII, sub-
section 5 , paid holidays ; article XX, subsection 4, superseniority for stewards; and
article XIV , checkoff. With regard to the discrimination ( or no-discrimination)
clause, the Respondent cited to the Union 's representatives a 1962 Supreme Court
decision wherein an employee was held liable beyond what the employer felt was,
the intent of the law in this respect . In so citing , Enggas pointed out that in view
of this, the Act was sufficient in definition to set out the terms of discrimination
and assured the Respondent's negotiators that the Company would comply with the
Act. Howevei , he refused to accept any type of no-discrimination clause in the
contract . This position the Company maintained without change through the entire
course of negotiations.
With regard to the proposal on checkoff , the Company did not submit a counter-
proposal because, as Enggas stated , it believed that the collection of union dues was
the responsibility of the Union and not the Company. Enggas recited to Wilkins
that a checkoff clause had been the subject of an unfair labor practice in another
experience the Company had. With regard to article XX, which referred to super-
seniority for union stewards , the Company refused to accede in any manner and
refused to have such a clause in the agreement because it was the opinion of Enggas
that such a clause was , in fact, discriminatory in nature.
Another area in which there was basic disagreement and to which the Company
refused to give its assent involved subsection 3, article VI, daily overtime . The Re-
spondent stated that it was willing to pay weekly overtime, that is, overtime in excess
of 40 hours per week, but would not pay in excess of 8 hours in any 1 day. This,
Enggas admitted , was no more than was required by law and the Company was not
willing to go beyond that point.
With regard to article VII, subsection 5, paid holidays, the Company maintained
that it would not go beyond its present practice of allowing six holidays a year and
would not pay for ,any holidays . With regard to the article of the contract involving.
insurance , article XVI, the Respondent 's negotiators pointed out that the Respondent
has an insurance trust set up which was administered not by the Company but by a
group of trustees . The Respondent claimed it was sufficient to take care of the em-
ployees' needs and maintained that it would not enter into any insurance plan for
them which would involve payments by the Respondent . The current insurance.
plan was one to which the employees themselves contributed . However, with regard
to this article , the Respondent throughout the period of negotiation supplied to the
Union information with regard to its present plan, submitted data to the Union's own,
insurance broker, and , in fact, never refused to discuss the matter although it re-_
mained adamant in its position.
The next bargaining session was held on February 15. At this meeting, although
the Respondent remained adamant with regard to the items immediately above dis-
cussed, another 10 subsections of the Union 's proposal and the Respondent 's counter-
proposal were agreed to , making a total in agreement of 32 out of the 62 proposals.
However, a new area of disagreement arose with regard to subsection 3, article XXI,_
safety. The Union proposed that the Respondent furnish certain safety equipment,
including work gloves , to the employees . The Respondent countered that it did not
furnish such material except in certain instances and the question with regard to
Goins' gloves arose. The Company maintained thereafter that only its present prat-.
tice would be agreeable with regard to the furnishing of safety equipment and work
clothes.
Another item which plagued the negotiators at the February 15 bargaining session.
was the definition of the term "foreman" contained in article XXII of the proposed
agreement . This article provided that the Company would not assign supervisors
to displace any employees or perform production or maintenance work. The Re-
spondent had two classes of supervisors who were actually working supervisors and
desired to make certain that these supervisors were not excluded from performing-
their daily tasks by reason of this article. It was, in fact, this article which later on
led to the General Counsel's contention that the Respondent agreed, and then reneged,
on its agreement as to the wording of this article , constituting a change of position
which the General Counsel contended constituted a separate refusal to bargain. This
will be discussed infra. Suffice it to say that several changes were made by the
Company and by the Union and several stages of agreement reached and the parties
found themselves in agreement on this item finally on the last bargaining session,,
which was July 25.
,944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
So the bargaining sessions went, and at almost each one further small areas of
agreement were reached. However, there were three areas of bargaining into which
the parties did not get until the Union submitted its wage proposal on May 1, 1963,
after the Respondent finally submitted to it at the April 30 meeting, following much
discussion, enough wage data to provide the Union with at least partial basis for a
wage proposal. With regard to this wage proposal, the Union submitted the list of
job classifications as submitted to it by the Respondent with the Union's proposed
wage rate for each employee in each classification. This was not as a general overall
wage increase but varied in the amount of increase over the current wages depending
upon the job. When the Union submitted its wage proposal on May 1, the Company
also offered a proposal on shift differential and hazardous work. At the May 2
meeting the Respondent made a counterproposal on wages which included an in-
crease in six classifications and a flat rate for hazardous work. The Respondent
maintained, however, that this was merely for the purpose of equalizing and
eliminating inequities and that it would not raise its pay rates because of its position
in the lumber industry. As a matter of fact, the Respondent remained adamant on
any money items which would increase labor costs.
At that session which took place on May 2, the Union offered a counterproposal
in the form of a package which would encompass all unresolved issues including
checkoff and nondiscrimination. The latter two items the Company had refused
from the beginning to include in the contract. For this reason the Company refused
.the package proposal. Thereafter, on July 16, which was the next bargaining date
after May 2, the parties continued to discuss wage inequities and the Union proposed
certain increases. At the end of that session the Union was still adhering to its
package wage proposal which included the checkoff and nondiscrimination clauses
which the Company stated from the very outset that it could not and would not
agree to. However, also at the July 16 session, the Company stated to the Union
that it desired, aside from the inequity adjustments, to give a flat 6-cent overall wage
increase. This was for the purpose of bringing the wages of the employees in the
unit covered by the Union's certification into line with the Respondent's other nu-
merous employees located in all of its facilities.
In toto, at the end of 13 bargaining sessions, of the 62 subsections which had
been submitted and discussed, the submissions being either by the Union or the
Respondent, 54 were agreed upon and 3 had been withdrawn. The Union had
finally agreed to withdraw its nondiscrimination proposal in exchange for a letter
from the Company to the effect that it would not engage in any discrimination, and
had agreed to accept the Company's 6-cent wage proposal provided certain inequities
-could be worked out. ` Also, the Union indicated that it would not insist on the
checkoff proposal Percentagewise this meant that the parties had disposed of and
reached agreement on approximately 95 percent of the proposals.
However, while quantitatively there was much progress, a qualitative analysis
indicates a somewhat different situation. For example, of the 18 articles upon which
there was a least partial agreement at the end of all the bargaining, there were in-
cluded items such as preamble and recognition which were no more then the recita-
tions of what the Respondent was obliged to do under the Union's certification.
Other clauses merely set forth duration and other miscellaneous items which had
very little substantive weight. It should also be noted that in drawing up its proposed
contract, the Union submitted a number of articles which contained matter which
the Union found to be satisfactory in the Respondent's current practices. Therefore,
Respondent's adoption of these proposals in its counterproposal, submitted on
January 25, 'constituted for the most part consent to its own practices which were
in effect prior to the advent of the Union. Items which fell in this category were
certain portions of the article relating to layoff, recalls, and promotions, the article
relating to transfers, and portions of the article relating to safety.
On the other hand the Respondent did accept the Union's proposal on article IX,
seniority; article XII, grievance procedure without however finally agreeing to an
arbitration clause (and to which the Union finally consented); and article XX, shop
stewards. These articles were substantively important
With regard to the items on which agreement was reached, with regard to manage-
ment rights, the Respondent rejected the Union's proposal and the Union thereafter
accepted the Company's proposal. With regard to the article on hours of work, the
Union had proposed a change in Respondent's current practice which the Respondent
rejected and the Union finally agreed to Respondent's counterprposal which was the
Respondent's current practice. The same is true of vacation with regard to which
the Union finally consented to accept at the final session, with the Respondent's
proposals as to qualifying hours. The Union had attempted to persuade Respondent
to agree to grant vacation without qualifying hours and later finally proposed a
DIERKS FORESTS, INC, ETC 945
certain number of qualifying hours, but the Respondent consistently refused to alter
its proposal of 1,600 qualifying hours which was the Respondent 's current practice
and the Union finally consented to Another, similar item on which final agreement
was reached was the grievance procedure which, as noted above, was finally
consented to by the Union without any provision for arbitration With regard to still
another article, nightshift differential, agreement was finally reached after the Re-
spondent had rejected the Union' s first proposal and then the Union 's counterproposal
Finally, the wage differential then in effect for night -shift employees was ultimately
settled upon The same was true with regard to company-owned houses where
the Union finally agreed to a limited clause which merely stated that the Company
would not raise the rent for the duration of the agreement However, the provision
that the Union desired with regard to maintenance of the housing and sanitary con-
ditions and the supplying of materials to make the houses more livable was rejected
by the Company The same was true with regard to leaves of absence , where the
Respondent refused to give leave of absence for funerals in the family or jury duty
The Company maintained its policy that it would grant leave of absence but only
without pay
With regard to the article concerning reporting time, the Respondent did com-
promise and finaly accepted the Union 's compromise proposal of 3 hours reporting
time whereas the Respondent had proposed 2 hours and the Union had proposed 4
hours Again with regard to the article on supervisors, the real bone of contention
was actually the definition of who would be the supervisors who could not displace
employees in the unit The Company agreed to a definition finally on April 30, but
at the next 'bargaining session stated that it could not agree to the definition accepted
by it Upon further consideration an agreement was reached on July 15, which was
next to the last session
With regard to the bargaining and negotiations on wages, no wage proposal was
offered by the Union, as noted above , until May I When the Union finally did make
a wage proposal , which was only partial in nature because the Union contended that
it could not make a complete proposal on the material that the Respondent had sub-
mitted , the Respondent merely countered with a few small raises in several categories
After the May I and 2 negotiations , negotiations were not held again until July 15,
1963, at which time , as noted above, the Respondent announced that it wished to give
a general 6-cent wage increase to all its employees at its various facilities The
Respondent then asked the Union if it might put this into effect in the bargaining unit
When this announcement was made, Enggas stated that whether or not a contract
was ultimately agreed upon , Respondent wanted to put the 6-cent wage increase into
effect as stated above The Respondent 's reason for rejecting the pay raise originally
(which also extended into overtime , premium pay, and paid holidays) was its desire
not to raise its labor cost This was true at the April 30 bargaining session, at the
May 1 bargaining session , and at the May 2 bargaining session As noted above,
Respondent stated that its reason was that its wages were comparable to that of its
competitors and no increase was justified However, on July 15, a month and a half
later, the Respondent was not only willing but urging that a 6-cent general wage
increase be given
With regard further to the wage proposal , in the May 2 session the Union made a
counterproposal of a 10-cent across-the -board wage increase in lieu of its previous
wage proposal The Respondent rejected this overall wage increase but made no
counterproposal It was in this context that the reason for its refusal to give a wage
increase was given Then on July 15 the Respondent came forward with the 6-
cent overall increase to bring the unit employees' wages into line with the rest of
the Respondent 's employees
2 Analysis and concluding findings with regard to the bargaining
The General Counsel contends , generally , that the Respondent , by failing to con-
cede on most of the Union 's proposals except those which represented the Respond-
ent's present practices, by submitting counterproposals which for the most part repre-
sented only current Respondent practice , by remaining adamant on most of the im-
portant matters in contention , and by forcing the Union to concede on most of the
items in contention on which agreement was ultimately reached, has demonstrated
an intention to bargain in form only and to negotiate in such a manner as to thwart
the Union 's efforts to arrive at an agreement This pattern of bargaining , argues
the General Counsel, is a classical one, which in similar cases, the Board has found
to constitute failure to bargain in good faith as defined by Section 8(a)(5) and
8(d) of the Act
760-577-65-vol 148-61
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent, on its part, contends that it did bargain in good faith in that it
never refused to sit down and discuss the items in contention even though it,did not
necessarily concede and even though on some few of the clauses it stood by its refusal
to submit counterproposals. As to those matters, it explained fully its position to
show that such position was reasonable and had legal foundation. To demonstrate
that it indulged in proper give-and-take bargaining which indicated good faith,'Re-
spondent points to the fact that better than 90 percent of all the subsections of the
contract were ultimately agreed upon.
It would.seem to be readily apparent from a review of the foregoing section (F, 1)
that there is `some basic support for the contentions of both ' of the parties. , Thus,
at the 13 meetings in which the Company and Union participated, much discussion
took place, all of the topics pertinent to the Union' s original proposed contract
were explored and in many cases adopted,, and considerable' numbers of proposals and
counterproposals were exchanged between the pa'rtie's. 'This' would lend- support to
the Respondent's contention that it satisfied the requirement of the Act with respect
to collective-bargaining requirements .8 In this respect, it is apparent; without attempt-
ing to repeat here what has previously been set forth, that many terms and condi-
tions of employment were seriously considered, with concessions being made on
many itemsiand'adamancy being registered in'other areas. - '
And indeed; the Board has said that the failure to grant concessions would not
ordinarily be considered indicative in any way of bad-faith bargaining 9 However,
although an employer is not obligated to make any particular concession , it is clear
that he is "obligated to make some reasonable effort in some 'direction to compose
his differences with the Union if Section 8(a)(5) is to be read as imposing any sub-
stantial obligation at all " 10 Moreover, "collective bargaining, then, is not simply
an occasion for purely formal meetings between management' and labor, in which
each maintains an attitude of `take it or leave it'; it presupposes a desire to reach ulti-
mate agreement to enter into a collective-bargaining contract." 11
Applying the foregoing principles to the' case at bar, I find merit in the General
Counsel"s contention that-the record' as a+ whole establishes' that the Respondent's
course of conduct falls short of compliance with its statutory obligation to'bargain
in good faith. In so concluding, I do not find that the record is totally. devoid of
any factors tending to indicate good-faith bargaining on the part of the Respondent.
Thus, as stated above, on the surface, at least, the record shows,that the Respondent
did meet with the Union on 13 occasions over a 7-month period, submitted a number
of counterproposals, and made some compromises. Moreover, I find that the Re-
spondent's rather adamant attitude with regard to .its unwillingness to include in the
agreement a "no-discrimination" clause, under the- circumstances here, was justified
in that the Respondent felt sincerely that such a clause . could result in unjustified
liability at some future date. - , ..r .
Nevertheless, after careful consideration of the 'factors militating for, and against,
a finding of good-faith bargaining, I am convinced from the totality of the Respond-
ent's conduct set forth in the record in this proceeding that the Respondent did not
entertain a sincere desire or make a genuine effort to conclude an agreement with
the Union. This is not to say that the Respondent would not have entered.into
,an agreement with the Union if the Union had agreed to enter into an agreement
completely on the Respondent's terms. But, I conclude that the terms upon ;which
the Respondent would have entered into an agreement were such that it knew at
the time that it made its proposals that the Union could not possibly have agreed
to all of the Respondent's terms and have justified its position ,as bargaining repre-
sentative of the Respondent's employees. Thus, by the Respondent's presenting what
to the Union was an impossible situation, the Union was prodded' into a refusal so
deliberately that the Respondent knew that no agreement could possibly be reached.
8 See Section 8(d) of the Act which provides, in pertinent part as follows* .
For the purposes of this section, to bargain collectively is the performance of the
mutual obligation of the employer and the representative of the employees to meet at
reasonable times and confer in good faith with respect td' wages, hours, and other
terms and conditions of employment, or the, negotiation' of an agreement, or any
question irising thereunder,' and the execution 'of a written 'contract incorporating
any agreement reached if, requested by either party, but such obligation does not com-
pel either party to agree to a proposal or require the making of a'condesston . [ Empha-
sis supplied.]
9 Cf Sunbeam Plastic Corporation, 144 NLRB 1010.
iu N L.R B v. Reed d Prince Manufacturing Company, 205 F. 2d '131, 134-135.
n N L R B v' Insurance Agents' International Union, AFL-CIO (Prudential Ins. Co.),
301 U S 477, 485.
1 -
DIERKS FORESTS, INC., ETC. 947
Thus, I am led to the conclusion that the Respondent merely went through the
motions of negotiation to cloak its objective to undermine the Union at the bar-
gaining table.
In support of these conclusions I have considered the factors outlined below.
(a) While it is true that the Respondent at no time, as shown by this record at
least, expressed any outward animus toward the Union , and that therefore the ele-
ment so often found in these cases is not readily apparent - here, namely , that the
employer from the beginning expressed its antiunion sentiments , nevertheless,- I be-
lieve that subtly underlying the reduction in the wage rates ' of the- four employees
as heretofore set forth was an expression of union animus. Thus , there was in fact
an unexpressed demonstration of hostility to the Union and interference with em-
ployees' rights which would negate the claim that the Respondent entered into negotia-
tions, and continued negotiations , with a sincere desire to find a mutually satisfactory
basis for an accord.
(b) A further indication of the Respondent 's lack of good faith in the negotiations
is, as heretofore set forth , the Respondent 's reluctance and delay to give a complete
set of data with regard to wages as requested by the Union . As noted above, there
remains unexplained on the record why the Respondent ' could,'not have given the
information which it ultimately did give at the very next meeting following the de=
mand of the Union for this information. Then, in addition, there is the failure 'by
the Respondent to offer any real evidence that, indeed , most of its employees were
employed in a specific classification only on a pay-period -to-pay-period basis. Lastly,
there was 3 months' delay in explaining to the Union why the Respondent could
not give to the Union the wage data the Union desired and needed As noted it was
not until the May 1 meeting that the Union was able to submit a wage proposal be-
cause the Respondent had not given it sufficient data upon which to make such a
proposal. Thus there was a delay of 3 '/2 months as a result of the Respondent's ac-
tion This, in itself, was a dilatory tactic indicative of the fact that the Respondent
did not desire to ultimately reach a solution to the problems which existed as between
the Respondent and the Union.
(c) As set forth above, almost every item , upon which ultimate accord was
reached was the result of either the fact that the Union originally submitted, in its
proposed contract , clauses which were mere reflections of the Respondent's current
practices at that time or the Union's ultimate conceding to the Respondent the con-
tinuing of the Respondent 's current practice with regard to the particular matters in
question . Most of these concessions came toward the end of the bargaining period
when the Union hoped that if it conceded , the Respondent would be willing to
compromise on some issues and give the Union some quid pro quo for its concession.
These compromises did not come nor did the Union receive a quid pro quo . Indica-
tive of this attitude of the Respondent were, among other things, the fact that the
Respondent ultimately assented to the grievance procedure only after the Union
conceded and agreed to delete the provision for arbitration . The same was true with
regard to the article on night-shift differential where agreement was reached only
after the Union ultimately accepted the Respondent 's offer which was the wage
differential then in effect for the night -shift employees .,. It would serve no purpose
here to repeat the items seriatim with relation to which ="this, sort of bargaining
occurred.
(d) With regard to wage negotiations ,' upon which were based the other economic
aspects of the proposals and counterproposals, when, after the lengthy Company
caused delay , the Union ultimately submitted its partial wage proposal , the Respond-
ent adhered to the attitude that it could not give consideration to the wage rates sub-
mitted by the Respondent inasmuch as it could not be competitive and still submit
to an increase in its labor costs. Thus, the Respondent counterproposed with a few
minor wage increases in certain classifications which would have been 'no more than
a partial correction of certain inequities then existing. The Respondent 's negotiators
were experienced individuals and must have known at that time that , such a wage
offer would be impossible of acceptance by the Union without the Union losing its
position of respect in relation to its membership among the Respondent 's employees.
This occurred on May ' l and 2 . There were no further meetings until July 16 and
25, the last meeting . On July 16, after the Union at the last meeting in May had
come back with a counterproposal , of an overall 10-cent per hour increase which the
Employer flatly rejected because it claimed it did not want to increase its labor cost,
the Respondent brought to the Union on a take-it -or-leave-it basis a wage offer of
6 cents per hour. Admittedly, this offer did not arise out of negotiations or the
willingness of the Respondent to comprise at a figure somewhere 'between the Union's
10-cent proposal and the employer 's original no-cent proposal .' The Respondent's
negotiators admitted that this was being done to'bring the wage ' rates of the em-
ployees in the unit represented by the Union in line with an overall wage increase
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the Respondent had given to its other employees. Unexplained on the record
in this regard was the Respondent's willingness to give a wage increase and still be
competitive in the lumber industry only 11h months after it had adamantly, insisted
that any wage increase could not be made. I believe that it is clear from the facts
that this 10-cent offer was not made in any sense of the word as an attempt to reach
an agreement with the Union but was, rather, an attempt to force this upon the Union
or place the Union in a position with the employees which the Union could never
have explained. This is so because if the Union had rejected the 6-cent wage increase
the unit employees would have been worse off than if they had never chosen a bar-
gaining representative at all.
I have discussed the bargaining positions taken by the Respondent on the various
clauses not for the purpose of sitting "in judgment on the substantive terms of col-
lective bargaining" 12 because it is certainly not the function of the Board or me to
pass upon the desirability or lack of desirability of bargaining proposals. "But at
the same time it seems clear that if the Board is not to be blinded by empty talk
and by mere surface motions of collective bargaining, it must take some cognizance
of the reasonableness of the positions to be taken by an employer in the course of
bargaining negotiations." 13 Thus, the Board, in determining whether an employer
made a bona fide attempt to come to terms with the Union, is not precluded from
,considering whether the employer failed to do little more than reject the Union's de-
mands; 14 or whether he was merely maintaining a take-it-or-leave-it attitude; 15
whether his offers were merely nominal and illusory concessions; 16 whether his
offers had "had the slightest chance of acceptance by a self respecting union." 17 In
short, as the Supreme Court has pointed out, "the Board has been afforded flexibility
to determine . . . whether a party's conduct at the bargaining table evidences a
real desire to come into an agreement." 18
Therefore, in conclusion, I find on the basis of the totality of the Respondent's
conduct that the Respondent failed and refused to bargain in good faith with the
Union, the duly certified bargaining representative of its employees, thereby violating
Section 8 (a) (5) and (1) of the Act 19
G. The appropriate unit
It is admitted , and I find, that in accordance with the certification of the Board, all
production , maintenance , and yard employees of Respondent's mill supply and D & E
shop at De Queen , Arkansas , and its treating plant at Process City, Arkansas, exclud-
ing all office clerical employees, supervisors , professional employees, and guards as
defined in the Act, constitute an appropriate unit for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act. I further find that the Union
1s the exclusive bargaining representative of all of the employees in the said unit as
certified by the Regional Director for Region 26 of the Board on or about Decem-
ber 10, 1962.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The operations of the Respondent described in section I, above, occurring in con-
nection with the unfair labor practices described in section N, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
12 N.L.R.B v. American National Insurance Co., 343 U.S. 395, 404.
is N L.R.B. v Reed & Prince Manufacturing Company, supra, at 134.
14 N.L.R.B. v. Century Cement Mfg. Co , Inc., 208 F. 2d 84, 86 (C.A. 2).
15N.L.RB. v. Insurance Agents' International Union, AFL-CIO (Prudential Ins. Co.),
supra at 485.
'O N L.R B. v. Marion G. Denton and Valedia W. Denton, d/b/a Marden Mfg. Co., 217
F. 2d 567, 570 (C.A. 5), cert. denied 348 U.S. 981.
17 Vanderbilt Products, Inc. v. N.L.R B., 297 F. 2d 833, 834 (C.A. 2).
19 N.L.R B. v. Insurance Agents' International Union, AFL-CIO (Prudential Ins. Co.),
supra. See also N.L.R B. v. Fitzgerald Mills Corporation, 313 F. 2d 260, 265-266
(C.A 2).
19I do not find that the Respondent's change of position after it agreed to the "super-
visor" clause constituted a separate refusal to bargain. I find that its change of position
as to the definition of the term "supervisor" after it had agreed to the same was the re-
sult of careful consideration and realization that it had erred in the acceptance. I shall,
therefore, recommend dismissal of the portion, of the complaint relevant thereto. -
ATKINS SAW DIVISION, BORG-WARNER CORPORATION
VI. THE REMEDY
949
Having found that the Respondent has discriminatorily reduced the wage rates
of employees Thurmond Y. Green, Talbert Gabbard, Homer H. Logan, and Lonnie
Henry Todd, in violation of Section 8(a)(3) of the Act, I shall recommend that the
Respondent cease and desist from the foregoing conduct and that it reinstate the rate
of pay paid to these employees prior to the discrimination or the adjusted pay which
may have resulted from any general pay raises since that time without any limitation,
however, upon the Respondent to reduce these employees in a nondiscriminatory
fashion to pay rates equal to and consistent of other employees doing the same work.
I shall also order that the Respondent make whole these individuals for any losses
they may have suffered because of the discrimination against them commencing with
the day they had their wage rates reduced up to and including the dates that they
are reinstated to their former wage rates, such reimbursement to be computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth Company,
90 NLRB 289, 291-294, with interest added thereto at the rate of 6 percent per
annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716.
In view of the seriousness of the unfair labor practices committed by the Re-
spondent as heretofore found , I shall recommend that the Respondent be ordered to
cease and desist from in any manner infringing upon the rights guaranteed its em-
ployees by Section 7 of the Act.
CONCLUSIONS OF LAW
1. Dierks Forest , Inc., is an employer engaged in commerce within the meaning
of the Act.
2. Lumber and Sawmill Workers Local Union No. 3089 , United Brotherhood of
Carpenters and Jointers of America , AFL-CIO, is a labor organization within the
meaning of the Act.
3. By discriminatorily reducing the wage rates for its employees , the Respondent
violated Section 8 (a) (3) and (1) of the Act.
4. By failing to notify the Union and bargain with it with regard to the reduction
of the wage rates of the aforesaid employees , the Respondent violated Section
8(a)(5) and (1) of the Act.
5. By failing timely to furnish the Union with a complete set of wage data as
requested by the Union the Respondent violated its obligation to bargain as set forth
in Section 8(d) and Section 8(a) (5) and ( 1) of the Act.
6. By failing and refusing to bargain in good faith with the Union as the exclusive
bargaining representative of its production , maintenance , and yard employees at the
mill supply and D & E shop at De Queen, Arkansas, and its treating plant at Process
City, Arkansas, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (5) and ( I) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Atkins Saw Division , Borg-Warner Corporation and United
Steelworkers of America, AFL-CIO. Cases Nos. 26-CA110
and 26-CA-1699. September 11, 1964
DECISION AND ORDER
On June 3, 1964, Trial Examiner W. Edwin Youngblood issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief.
148 NLRB No. 98.