Taylor Lumber & Treating Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1298 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1298
Taylor Lumber and Treating, Inc. and International
Woodworkers of America, U.S. Cases 36–CA–
7123 and 36–CA–7255
September 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On March 2, 1995, Administrative Law Judge Timothy
D. Nelson issued the attached decision. The General
Counsel and the Union filed exceptions and supporting
briefs, the Respondent filed a brief in support of the
judge’s decision and an answering brief, and the Union
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.

1 The General Counsel and the Union have excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 In adopting the judge’s dismissal of the complaint, we find it un-
necessary to rely on the judge’s apparently erroneous statement, in sec.
III,D of his decision, that the Regional Director initially dismissed the
Union’s bad-faith bargaining charge and that it was the Union’s suc-
cessful appeal of the dismissal that caused a complaint to issue on this
charge.
In adopting the judge’s dismissal of the complaint allegation that the
Respondent violated Sec. 8(a)(5) of the Act by failing and refusing to
bargain in good faith, Members Fox and Liebman do not rely on his
alternative rationale, set forth in the paragraph immediately preceding
fn. 25 of his decision, that even were he to credit the General Counsel’s
witnesses, their testimony would not be decisive in determining
whether the Respondent failed to bargain in good faith. Finally, in
adopting the judge’s rejection of the contention that the Respondent’s
implementation of its hours-of-work proposal independently violated
Sec. 8(a)(5), Members Fox and Liebman rely solely on the judge’s
finding that this contention was neither set forth in the complaint nor
fully and fairly litigated. Member Brame would adopt the judge’s find-
ings on both these points.
In finding that the attorney-client privilege as construed in Patrick
Cudahy, Inc., 288 NLRB 968 (1988), applied to confidential communi-
cations between Attorney Kellye Wise and members of the Respon-
dent’s management control group, Members Fox and Liebman rely on
Wise’s testimony to the effect that during the year he served as the
Respondent’s chief negotiator in the negotiations at issue here, he was
also engaged by the Respondent to provide legal services in connection
with other employment relations matters, and that he advised the Re-
spondent to hire additional counsel only when he became concerned
that, given the “tone of negotiations,” an unfair labor practice proceed-
ing might result. (Wise was a witness in this proceeding on negotiation-
related matter for which the privilege was not claimed.)
Member Brame would adopt, without qualification, the judge’s ra-
tionale in finding that the attorney-client privilege applied to confiden-
tial communications between Attorney Wise and the Respondent.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Patrick Dunham, Esq., for the General Counsel.
James B. Ruyle, Esq. (Miller, Nash, Wiener, Hager & Carlsen),
of Portland, Oregan, for the Respondent.
Don S. Willner, Esq. (Willner & Heiling, P.C.), of Portland,
Oregan, for the Charging Party.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge. I con-
ducted the trial of this unfair labor practice prosecution in ses-
sions held in Salem and Portland, Oregon, on July 19, 20, and
21, 1994. Each party was represented by counsel, and each filed
a timely, posttrial brief.
The case emerged from the following events: In April 1993,1
International Woodworkers of America, U.S. (the Union) and
Taylor Lumber and Treating, Inc. (the Respondent) began ne-
gotiations for a labor agreement to replace the current one cov-
ering the Respondent’s sawmill workers, which was due to
expire on June 1. They were still far from agreement on major
issues at the end of their fifth and last session on June 24. On
August 16, faced with the Respondent’s recent announcement
that the terms of its last offer would be implemented that day,
the Union called a strike, and nearly all of the mill’s roughly 74
bargaining unit employees joined in. The Respondent did not
operate the mill during the strike, and the stalemate continued
for several months; but on December 9, after learning that the
General Counsel had authorized a bad-faith bargaining com-
plaint, the Union mailed a letter to the Respondent containing
an “offer” on behalf of the strikers “to immediately and uncon-
ditionally return to work under the contract that was in effect
prior to the strike[,] and to resume negotiations.” The Respon-
dent received this letter, but declined to reinstate the strikers.
On June 20, 1994, the Regional Director for Region 19, act-
ing in the name of the General Counsel, issued the consolidated
complaint against the Respondent that brought us to trial. In
compressed form, these are the complaint’s central allegations:
(1) The Respondent violated Section 8(a)(5) of the National
Labor Relations Act2 by bargaining from April through June in
bad faith, i.e., to “avoid” an agreement, and with a “desire to rid
itself of the Union.”3 (This is a claim accompanied by sub-
counts attacking the content of certain of the Respondent’s
bargaining proposals, and the Respondent’s alleged “fail[ure] to
1 All dates below are in 1993 unless I say otherwise.
2 Sec. 8(a)(5) makes it unlawful for an employer “to refuse to bar-
gain collectively with the representatives of his employees.” This “ob-
ligation to bargain collectively” is given further definition in Sec. 8(d)
of the Act, which imposes on bargaining parties a duty, inter alia, “to
confer in good faith with respect to . . . the negotiation of an agree-
ment.”
3 Thus, the complaint, in several dovetailing paragraphs, alleges
more fully that, “During [bargaining sessions in] the months of April,
May, and June, 1993,” the Respondent engaged in an “overall” pattern
of conduct which showed that “Respondent has ‘bargained’ with a
purpose of avoiding, rather than obtaining, a[n] . . . agreement with the
Union[,] and [with] a desire to rid itself of the Union[,] as previously
expressed by an agent of the Respondent.”
326 NLRB No. 131
TAYLOR LUMBER & TREATING, INC. 1299
offer any meaningful concessions.”)4 (2) The ensuing strike
was “caused” by the Respondent’s bad-faith bargaining con-
duct. (3) The Respondent violated Section 8(a)(3) of the Act5
when it failed to reinstate the strikers on their December 9 offer
to return, which the complaint characterizes as an “uncondi-
tional offer to return to their former positions of employment.”6
The Regional Director further announced in the complaint that,
“as part of the remedy for [the Section 8(a)(3) violation], the
General Counsel seeks [an] order requiring Respondent to rein-
state the [strikers] and to make them whole for any losses they
may have incurred as a result of Respondent’s failure to prop-
erly and timely reinstate them.”7
The complaint was amended in small ways at the trial. In its
amended answer, the Respondent admits that the Board’s juris-
diction is properly invoked, and I so find.8 The Respondent,

4 Thus, in an argumentative bill of particulars (many of whose fact
claims were contradicted by the undisputed evidence presented at trial),
the complaint alleges at par. 10:
During the [April through June] period described above . . .
Respondent engaged in the following conduct:
(a) proposed and insisted upon significant reductions in
wages, health an [sic] welfare benefits, and pension and vaca-
tion benefits.
(b) proposed and insisted upon elimination of the Union’s
right to negotiate over hours of work.
(c) proposed and insisted upon the elimination of seniority
provisions which had been in successive collective-bargaining
agreements.
(d) failed to offer any meaningful concessions in any of the
items detailed above until after the last negotiations session.
Only then, just before implementing its proposal, Respondent
altered its language on vacations and on the Union’s request to
include grandchildren in the provisions of funeral leave.
5 Sec. 8(a)(3) in pertinent part makes it unlawful for an employer to
“discriminat[e] in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in
any labor organization.”
6 The complaint further alleges that, by committing these 8(a)(5) and
(3) violations, the Respondent has also violated Sec. 8(a)(1) of the Act.
Sec. 8(a)(1) more generally outlaws any employer conduct that “inter-
fere[s] with, restrain[s], or coerce[s] employees in the exercise of the
rights guaranteed in section 7. . . .” (Sec. 7 declares pertinently that
“[e]mployees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion[.]”)
7 Although it is uncertain from this announcement when the prosecu-
tion believed it became “proper and timely” for the Respondent to
reinstate the strikers, the General Counsel’s current position is that,
because the strikers were “unfair labor practice strikers,” the Respon-
dent owed a duty to reinstate all strikers immediately after (or at least
“within a reasonable time” after) it received the December 9 offer, and
that the Respondent’s failure to fulfill this duty makes it liable for
backpay to all strikers from on or shortly after December 9.
8 Specifically, the Respondent admits, and I find, as follows: The
Union’s charge in Case 36–CA–7123 was filed on August 25, 1993,
and was served on the Respondent on or about that date. The Union’s
charge in Case 36–CA–7255 was filed on March 11, 1994, and was
served on the Respondent on or about that date. The Respondent is an
Oregon corporation, and maintains a sawmill in Sheridan, Oregon. In
the year before June 20, 1994, a representative period, the Respondent
(a) realized more than $500,000 in gross sales, (b) sold more than
$50,000 worth in goods or services to out-of-state customers, or to in-
state customers who were themselves directly engaged in interstate
commerce, and (c) bought and received more than $50,000 worth in
however, denies key allegations in the complaint, and these
denials define the central issues to be decided in the case. Thus,
the Respondent denies that it bargained in bad faith, and argues
instead that its bargaining conduct was intended solely to
achieve the lawful goal of getting a contract that would lower
labor costs and allow it to operate profitably, and the Respon-
dent thereby puts into issue not just the 8(a)(5) count, but as
well the remainder of the complaint, including its characteriza-
tion of the strikers as “unfair labor practice strikers,” and its
supposition that, by virtue of this status, those strikers were
entitled to immediate reinstatement upon making an uncondi-
tional offer to return. Separately, the Respondent denies that the
Union’s December 9 offer to return the strikers to work was an
“unconditional” one, and it thereby challenges another element
necessary to the prosecution claim that the Respondent violated
a statutory duty to reinstate the strikers. And in the alternative,
as an affirmative defense to any duty to reinstate the strikers on
or after December 9, the Respondent avers that it was “unable”
to reinstate the strikers for “legitimate and substantial business
reasons.”
I have studied and considered the trial record, the parties’
briefs, and the various legal authorities they have invoked.
Guided by those authorities, and based on the findings and
reasoning below, I judge in the end that the General Counsel
has not established by a preponderance of the credible evidence
that the Respondent conducted its bargaining with the pro-
scribed intention of frustrating or avoiding agreement, much
less that its conduct was calculated to satisfy some overriding
“desire to rid itself of the Union.”
Separately, I will conclude that the Union’s December 9 of-
fer to return the strikers to work, conditioned as it was on the
Respondent’s putting them to work “under the contract that was
in effect prior to the strike,” did not in the circumstances trigger
any duty on the Respondent’s part to reinstate any strikers.
Accordingly, I will dismiss the complaint, and I will not reach
the Respondent’s alternative defense to the 8(a)(3) count, that
legitimate business considerations stood in the way of reinstat-
ing the strikers on the terms they demanded.
The Union’s Motion to Reopen the Record: Denied
In its posttrial brief, the Union states its “belie[f] . . . that
proof of Taylor’s unfair labor practice is overwhelming on this
record.” It declares further, however, that, “[i]f, and only if, the
Administrative Law Judge disagrees, then IWA moves to re-
open the record to require the production of the missing [sic]
subpoena documents, and the testimony of Kelly[e] Wise on
what took place at management’s strategy meetings.”9 My
judgment that the credible record does not sustain the complaint
vitalizes the Union’s motion to reopen, which I now address:
The Union’s motion invites me to revisit attorney-client
privilege issues I dealt with at the trial, in the context of ruling
on the Respondent’s petition to revoke the General Counsel’s
trial subpoena to the extent it sought the production of records
reflecting the Respondent’s development or application of its
bargaining strategy. Two categories of strategy records were in
contest: (1) Those constituting or reflecting intramanagement
strategy communications generally, which the Respondent ar-

goods and materials from out-of-state sources, or from in-state suppli-
ers who, in turn, got them directly from out-of-state sources.
9 Union Br., p. 3 fn. 3 (the emphasis is the Union’s). The Union’s
motion is supplemented by arguments set forth in an appendix to its
brief, which I have considered.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1300
gued were entirely shielded from discovery by policies sug-
gested in Berbiglia, Inc., 237 NLRB 102 (1977), and (2) those
sought to be withheld on attorney-client privilege grounds,
more specifically, those strategy records constituting or reflect-
ing confidential communications between members of the Re-
spondent’s management “control group,” and Kellye Wise, an
attorney employed by a management consulting business, not a
law firm.10
Finding no substantial authority for the notion that a bargain-
ing party’s strategy records enjoy some special, categorical
insulation from discovery in an unfair labor practice prosecu-
tion where the party’s strategy is a relevant subject, I denied the
Respondent’s petition to revoke as to records meeting only the
category (1) definition.11 And in conformity with this ruling,
the Respondent disclosed a four-page set of typed notes, cap-
tioned “1993 Contract Negotiation Strategy.”12 But I granted
revocation as to records in category 2, after hearing evidence
and extensive argument, and after reviewing a variety of au-
thorities.
In thus partially granting the Respondent’s petition to re-
voke, I judged specifically that the records of confidential
communications between Wise and members of the Respon-
dent’s management “control group” were shielded by attorney-
client privilege, as the Board defined and found that privilege to
exist in Patrick Cudahy, Inc., 288 NLRB 968 (1988). In this
regard I noted the Board’s emphasis in Cudahy on the

principle that “a matter committed to a professional legal ad-
viser is, prima facie so committed for the sake of the legal ad-
vice . . . for some aspect of the matter, and is therefore within
the privilege unless it clearly appears to be lacking in aspects
requiring legal advice[,]” [and] . . . the presence of business
considerations intertwined with legal advice does not neces-
sarily destroy the privileged nature of communications be-
tween attorney and client.13

I also noted that the Board’s analysis and holding in Cudahy
seemed to preclude inquiry into or dissection of the “legal-
nonlegal” particulars of the attorney’s relationship or commu-

10 On an undisputed record, I find that Wise was at material times an
Oregon-licensed attorney in good standing, but was providing labor
relations counseling and representational services to the Respondent in
his capacity as a full-time employee-representative of Timber Operators
Council, a corporation whose business services to its employer-
members include counseling them on labor relations matters and repre-
senting them in bargaining with unions.
11 In so ruling, I expressed doubts not only about the soundness of
the policy reasoning advanced by the administrative law judge in Ber-
biglia to justify revoking an employer subpoena for a union’s bargain-
ing-strategy records, but about the degree to which the Board itself had
genuinely embraced that reasoning, especially in the light of the
Board’s decision in Patrick Cudahy, infra, where the Board could have,
but did not, simply rely on Berbiglia reasoning to shield any manage-
ment bargaining strategy records, but instead shielded from discovery
only those records involving communications with the employer’s
attorney, and did so solely on the basis an attorney-client privilege.
12 These were notes used as talking papers in a March 25 bargaining
strategy session in which Wise participated, but the Respondent con-
ceded that such notes, and the communications they implied took place
on March 25, were not in this particular instance insulated by attorney-
client privilege, because they were shared with–and the March 25 meet-
ing was attended by–an “outsider” (an independent private consultant
named Gossard), thus destroying the “confidentiality” element neces-
sary to communications shielded by the privilege.
13 288 NLRB at 970, quoting Wigmore. The italics are the Board’s.
nications with the employer-client; for the Board held broadly
(288 NLRB at 971) that,

the attorney-client privilege encompasses the advice rendered
by Krukowski & Costello to Cudahy in the course of helping
it prepare for and conduct negotiations with the Union and in
advising as to legal constraints on the operation of the plant
should a strike ensue. The privilege covers both the commu-
nications which provided that advice and the communications
that flowed from client to attorney as a basis for generating
the advice. Upjohn Co. v. U.S., 449 U.S. [383] at 390 [1981].

Finally, I noted that the Board’s admittedly “broad . . . applica-
tion of the privilege”14 clearly was influenced by policy con-
siderations unique to the labor relations arena.15
Considering all this, I judged that Wise’s relationship with
the Respondent did not “clearly appear to be lacking in aspects
requiring legal advice.” Indeed, I found it striking that Wise’s
counseling and bargaining-representation relationship with the
Respondent during the strategy communications in question did
not appear to have been significantly different from the type of
attorney-client relationship presented in Cudahy, and I further
found unpersuasive the General Counsel’s and the Union’s
attempts to distinguish this case from Cudahy on the basis that
there, the lawyer was working for a law firm, and here, the
lawyer was not. I likewise rejected as irrelevant to the issue of
privilege that Wise was not paying into the Oregon attorneys’
professional liability fund, but was instead claiming a “house
counsel” exemption from such contributions. Finally, on factual
grounds, I rejected the General Counsel’s and the Union’s al-
ternative argument that any privilege that may have existed was
waived when Wise disclosed certain facts (which I judged were
not facts about privileged communications) in an affidavit he
furnished to the Board’s Regional Office during the investiga-
tion.
I have reconsidered my trial rulings and judgments on these
points,16 and I adhere to them essentially for the reasons just
outlined. And with the same reasoning in mind, I must deny the
Union’s motion to reopen the record, for the motion necessarily
calls for the Respondent to disclose and submit to inquiry about
communications that I have judged are shielded by attorney-
client privilege.
Findings and Conclusions on the Merits
Much in this case is undisputed, including most of the impor-
tant facts, many of which I summarized in the statement of the
case and now incorporate here by reference. The rest is a matter
of detail.
I. UNDISPUTED BACKGROUND
For roughly 40 years before the events that concern us, the
Respondent operated a sawmill in Sheridan, Oregon, where it
processed logs into lumber of various dimensions, and then
14 Id. at 971 fn. 12.
15 Thus, the Board, citing “specific labor law reasons,” warned that it
would “not readily or broadly exclude attorney-client communications
from the privilege on the ground that business and economic considera-
tions are also present.” Id. at 971.
16 I take notice that the General Counsel filed an interim appeal to
the Board of my partial granting of the Respondent’s petition to revoke,
and that the Board, while denying the interim appeal, did so without
prejudice to the General Counsel’s right to renew its appeal after I
issued my decision.
TAYLOR LUMBER & TREATING, INC. 1301
shipped the lumber to dealer-customers.17 The Respondent has
always recognized the Union as the bargaining agent for the
employees of the sawmill, excepting only office clerical em-
ployees, guards, and statutory supervisors. Historically, the
Respondent and the Union had always reached successive labor
agreements without a strike. The most recent of those agree-
ments was due to expire on June 1. In the year preceding that
expiration, a controversy had arisen between the parties over
the Respondent’s application of a recently implemented incen-
tive bonus arrangement, and at one time, the Union had threat-
ened to strike. This controversy may not have been fully re-
solved to the Union’s satisfaction when the parties entered their
1993 negotiations, but neither does it appear that it was deemed
by either party to be a “live” issue for bargaining by that time.
In times of normal mill operation, the Respondent gets its
logs mostly by bidding successfully at periodic auctions of
standing timber, which it then cuts and hauls to the mill in log
form; however, it also augments its supply with logs bought
from other sources, including other mills with log inventories to
sell. When it calculates its bids for timber or logs, the Respon-
dent’s uses an industry formula that is not itself challenged to
determine the “break-even” price it can pay, i.e., the price that,
when added to the Respondent’s cost of milling those same
logs into lumber, will yield a total not greater than the current
market price for the lumber.18 For about a year before the par-
ties began their 1993 bargaining, the Respondent had been
getting regularly outbid at timber sales. The Respondent
blamed this on its fixed labor costs during a period of escalating
timber prices, which left it unable to make a “break-even” bid.
But when the Respondent entered bargaining with the Union in
the spring of 1993, the timber/log market price had recently
dropped,19 and the Respondent admittedly had enough logs in
its yard or awaiting harvesting to keep the mill going until
about the end of the year.20
From 1985 until early January 1991, Barney Olberg, then ti-
tled “President,” was in charge of the Respondent’s overall
operations. Under Olberg were Roland Mueller, the sawmill
“plant manager,” and Bruce Summers, who was the “head for-
ester,” in charge of timber acquisition, harvesting, and transport
to the mill’s log yard, but with little responsibility for or in-

17 The Respondent has also operated a separate, “pole-treating
plant,” which does not figure in this case.
18 The Respondent is not in the business of simply trying to “break
even.” Rather, I infer from the explanations given by the Respondent’s
witnesses (specifically, General Manager Summers and Chief Financial
Officer Doss) that the “break-even” calculation is merely part of a
larger business calculation, which itself is driven by the expectation
that log market prices—and milled lumber market prices in turn—will
steadily rise over time and, therefore, that profit can be derived from
selling lumber in a future market that was produced from logs bought
earlier.
19 Both Summers and Doss testified in substance that the timber and
log market prices had recently dropped largely because many private
timberlot owners were now anxious to get their assets to market, at
lower price if need be, out of fear that the Government, for environ-
mental (e.g., “Spotted Owl”) reasons, might soon impose private-land
logging bans or restrictions.
20 Indeed, the Respondent’s counsel invited Summers and Doss to
assert these facts to support their overall claim that the Respondent
entered into 1993 bargaining with the Union with a wish to continue to
operate, a claim that itself is advanced to contradict the prosecution
claim that the Respondent intended from the outset of bargaining never
to reach agreement, but instead, to provoke a strike that would end in
the “rid[ding] itself of the Union.”
volvement in sawmill operations or labor relations matters af-
fecting the sawmill. In January 1991, however, the Respon-
dent’s owners gave Olberg the choice of signing a prepared
letter of resignation or being fired, and Olberg resigned, and
was replaced by Summers, who took on the title, “General
Manager,” and with it, the responsibility for dealing with the
Union.21
II. DISPUTED BACKGROUND; SUMMERS’ ALLEGED ANTIUNION
STATEMENTS
To support the prosecution claim that the Respondent con-
ducted bargaining so as to “avoid agreement” and with a “de-
sire to rid itself of the Union,” the General Counsel presented
three witnesses, former President Olberg, plus William Pelzer
and Dennis Derum, two former mill supervisors who were
themselves laid off in mid-October 1992, as part of a manage-
ment belt tightening. Olberg and Pelzer testified commonly
(with faint echoes from Derum) that, before they each left the
Respondent’s employ, Summers made repeated and nearly
identical statements to them personally, and/or in management
meetings, amounting to vows that Summers would “get rid of
[or ‘break’] the Union.”22 (Pelzer recalls that Summers would
routinely append such statements with the phrase, “if it was the
last thing [he] did.”) None of these witnesses could recall the
timing or any contextual particulars whatsoever of any of these
alleged instances.
Summers denied ever having made such statements in any
context. He was echoed by Sawmill Manager Mueller, and by
Ed Reid, the Respondent’s longtime timber buyer, both of
whom testified that they had never heard Summers say any
such thing, even though both of them were said by Pelzer to
have been present in management meetings where Summers
supposedly made many such statements. The Respondent called
two other witnesses23 to affirm that they, too, had never heard
Summers make any such statements, and each of them would
appear to have had much opportunity to have heard Summers
make them, if, indeed, he had been as disposed as Pelzer and
Olberg say he was to make them.
When an employer’s “real” bargaining intentions are called
into question in a prosecution like this one, evidence of the
employer’s antiunion disposition based on away-from-
bargaining-table statements or behavior is certainly relevant to
an assessment of those intentions. But such evidence—or the
lack thereof—is only one of many factors that may feed into the
21 Mueller remained as sawmill manager after Summers succeeded
to Olberg’s job.
22 Derum likewise eventually recalled having heard Summers say he
wanted to “break the Union.” But Derum was clearly a reluctant wit-
ness, and the testimony he gave that tended to support the General
Counsel was offered only grudgingly, and with many evasions, self-
contradictions, and disclaimers, including highly implausible claims
that he had been tricked or pressured by the investigating Board agent
into signing an affidavit in which he had not been so cautious as he was
now in his testimony about Summers. For these reasons and others
noted below, I would give no independent weight to Derum’s testi-
mony.
23 These were, John Doss, the Respondent’s chief financial officer
since 1985, who regularly dealt with Summers, and was part of the
management “control group” closely involved in the 1993 bargaining;
and Robert Patterson, a nonstriking log yard worker who had regularly
interacted with Summers over the previous decade, especially when
Summers had responsibility for the log yard as part of his head forester
duties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1302
ultimate judgment, and even where such evidence exists, it may
not be enough, alone, to warrant a finding that the employer
conducted its bargaining with the intention of frustrating the
possibility of an agreement. For example, in O’Reilly Enter-
prises, 314 NLRB 378 (1994), the Board dismissed bad-faith
bargaining allegations against an employer despite the fact that,
only shortly before contract renewal negotiations began, the
employer’s president unlawfully coerced employees in ways
that clearly showed that she wanted to oust the union,24 and
despite the further fact that the employer had unlawfully given
the employees a pay raise unilaterally. In dismissing the bad-
faith bargaining counts, the O’Reilly Board said this (314
NLRB at 378):

[A]lthough O’Reilly’s coercive conduct, together with Re-
spondent’s preimpasse implementation of proposals are part
of the totality of the Respondent’s conduct, they are not suffi-
cient, when weighed against the Respondent’s willingness to
compromise at the bargaining table, to warrant the conclusion
that the Respondent was seeking to avoid agreement.

It is with O’Reilly’s holding particularly in mind that I doubt
that I need to decide the credibility conflicts about Summers’
alleged antiunion statements. For even if I were to substantially
credit the General Counsel’s witnesses, what they disclosed
would not carry decisive weight in my final assessments of the
Respondent’s 1993 bargaining intentions. Thus, I will find that
the Respondent, too, made some “compromises” during bar-
gaining, and that its bargaining table conduct does not other-
wise furnish any substantial support for the prosecution’s bad-
faith claims. In addition, even assuming that the prosecution
witnesses testified truthfully about Summers’ statements, they
were describing statements made during periods quite remote to
the 1993 bargaining period. (If I credit Olberg, Summers made
such statements at uncertain times and in uncertain contexts
before early January 1991, when Summers was Olberg’s subor-
dinate. If I credit Pelzer and/or Derum, Summers also made
such statements at uncertain times and in uncertain contexts
before mid-October 1992.) Moreover, because Summers’ posi-
tion at material times was subordinate to that of the Respon-
dent’s owners, and he was not shown to have been personally
empowered to direct the bargaining behavior of Wise, the man
the Respondent hired to represent it in 1993 bargaining with the
Union, it is not obvious that Summers’ own feelings and wishes
concerning the Union would dominate the Respondent’s 1993
bargaining positions or behavior. Thus, the dispute about
whether or not Summers made antiunion statements prior to
October 1992 diminishes even further in its evidentiary signifi-
cance to this case.25

24 The Board sustained the judge’s finding that Company President
O’Reilly violated Sec. 8(a)(1) when she solicited a driver’s signature on
a “petition to enable the [employer] to sever its relations with the Un-
ion,” and assured the hesitant driver that she would “take good care of
him if he signed it[,]” and when she later coercively questioned the
same driver about his attempts to dissuade employees from signing the
petition. 314 NLRB at 379, 380. (The judge also found that O’Reilly
violated Sec. 8(a)(1) when she told another driver that, “without the
Union . . . it would be family again.” Id. at 379. Without disturbing the
judge’s fact-finding, however, the Board found it “unnecessary to pass
on the judge’s finding that [this statement of O’Reilly] constituted a
violation of Section 8(a)(1), since such a violation would be cumulative
and does not affect the remedy.” Id. at 378.).
25 For these purposes, it is useful to contrast Summer’s position with
the Respondent with that of the company president in O’Reilly, supra.
Against the possibility that a reviewing body might disagree
with this analysis, and remand for credibility findings, however,
I will record the considerations that inform my judgment, in the
alternative, that the General Counsel’s witnesses were not reli-
able:

At the outset, I find that Derum’s testimony deserves
no weight; he was uncomfortable, reckless, self-
contradictory, clearly hostile to the General Counsel, and
clearly more interested in disavowing statements he made
in his pre-trial affidavit than he was in giving a truthful
rendition of underlying events.26 I have also considered a
collateral controversy involving Derum: Harold Hyatt, a
bargaining unit employee and shop steward, testified that
shortly before Derum’s October 1992 layoff, Derum spoke
in an “upset” state to Hyatt about being laid off, during
which he reported that the Respondent’s chief financial of-
ficer, John Doss, had recently told Derum that “they’re
thinking about closing the plant for a little while, and then
opening up as a nonunion plant.”27 Doss convincingly tes-
tified that he never said any such thing to Derum (and
Derum waffled on the point unilluminatingly). I will as-
sume that Hyatt’s account of his conversation with Derum
was truthful. But considering that Derum was the source,
and that Derum was apparently disgruntled at the time,
and that Derum proved himself to be a reckless and unreli-
able witness in this trial, I would give no weight to what-
ever “admission” by Doss might be inferred from Hyatt’s
account of his conversation with Derum.

This leaves for consideration whether Olberg and/or Pelzer
deserve more credence than Summers and/or Mueller or other
witnesses called by the Respondent to directly or indirectly
refute the General Counsel’s evidence. I judge that they do not,
and in reaching that judgment, I am influenced not at all by
“demeanor,”28 but instead by the following considerations:
Potential Bias or Interest: As current management offi-
cials, Summers, Mueller, and others, supra, may be presumed

There, Elizabeth O’Reilly’s obvious wish to get rid of the union not
only manifested itself shortly before bargaining began, but her top
position in the company invited a presumption that she would have had
strong influence over how her company would conduct its bargaining.
And even in those circumstances, the Board found O’Reilly’s nearly
contemporaneous antiunion statements away from the bargaining table
to be “not sufficient . . . to warrant the conclusion” that her company
was “seeking to avoid agreement.”
26 The General Counsel urges me to find that versions given by
Derum in his affidavit were more reliable than versions he advanced
from the witness stand. Given Derum’s singularly poor performance as
a witness, however, including his apparent penchant for shifting his
story, depending on whom he was currently mad at, the only way I
could “credit” his affidavit would be to find that it is consistent with
what Pelzer reported, in which case it would be Pelzer’s credibility that
would carry the day, and Derum’s affidavit would carry no independent
weight. In fact, I have no confidence that Derum ever gave a truthful
account of material events in his various sworn statements in this case.
27 In receiving this testimony over the Respondent’s hearsay-within-
hearsay objection, I judged that Derum, still a supervisor at that time,
was capable of making a nonhearsay “admission” under Rule
801(d)(2)(D), Fed.R.Evid. (And so, too, was Doss, who, under Hyatt’s
version, was the party Derum was purporting to quote.)
28 In their pertinent testimony, Olberg and Pelzer testified with an air
of conviction, but so did Summers and Mueller (and others called on
these points), and nothing about the manner of any of these witnesses
made one more convincing than another.
TAYLOR LUMBER & TREATING, INC. 1303
to have an interest in vindicating the Respondent’s position in
this litigation. By contrast, Olberg and Pelzer, no longer em-
ployed by the Respondent, would superficially appear to have
no stake in the outcome, and their accounts might therefore be
presumed to be the more candid ones. I, however, think these
considerations are largely outweighed by specific indications of
personal bias on both Pelzer’s and Olberg’s part. Thus, Pelzer
was laid off in October 1992 while other supervisors were al-
lowed to stay on, and he admitted, although elliptically, that he
believed that others should have gone before he was asked to
leave. And in Olberg’s case, the record contains clear evidence
that Olberg bitterly resented his own, January 1991 ouster by
the Respondent, and that Summers was the particular target of
this resentment. Thus, in December 1991, nearly a year after
resigning under threat of termination, Olberg filed a defamation
lawsuit in an Oregon court against Summers, personally, nam-
ing also another individual as one who had allegedly published
Summers’ alleged defamations. Olberg’s suit materially alleged
that, “[o]n or about January 1, 1990,” Summers had set the
defamation of Olberg in motion by making “various state-
ments” to the second defendant suggesting that Olberg would
be “removed” from his position with the Respondent “for em-
bezzling money.” He alleged further that the second defen-
dant’s publication of these defamations29 “caused him to be
terminated” by the Respondent, with attendant loss of earnings
and benefits worth no less than “$125,000 per year.” In May
1993, however, Olberg caused this suit to be dismissed before
its merits were heard (in fact, just before depositions were to be
taken), and did so for no palpable consideration.30 Considering
all this, I wonder if both Pelzer’s and Olberg’s testimony does
not trace from a spiteful wish to get last licks in against the
employer who terminated them.
Interestingly, two of the three persons named in Olberg’s
lawsuit complaint as having heard the second defendant’s “pub-
lication” of the alleged defamations were “Willy Peltzer [sic]
and Dennis Durham [sic].”
Quality of Testimony: The most strikingly suspicious com-
mon fact about Olberg’s and Pelzer’s testimony is that, al-
though given repeated opportunities to try to summon up details
of the timing and context in which Summers allegedly made
antiunion statements, they could not (or would not). Invariably,
they dodged these questions with disclaimers to the effect that
Summers had made virtually the same statements so many
times that they could not recall any details about any given
statement. (Indeed, Olberg described Summers as having been
“obsessive[ly]” driven to make such statements, and Pelzer
insisted that in many cases, Summers would merely make such
statements “out of the blue.”) Given the passage of time, and
Olberg’s and Pelzer’s insistence that Summers made antiunion

29 In their pertinent testimony, Olberg and Pelzer testified with an air
of conviction, but so did Summers and Mueller (and others called on
these points), and nothing about the manner of any of these witnesses
made one more convincing than another.
30 Olberg explained that by May 1993, the “noise [had] stopped,”
and that he had thus “accomplished [his] goal” in filing the lawsuit.
Olberg’s lawyer, however, explained the lawsuit dismissal somewhat
differently, in a May 12, 1993 letter to the lawyer representing Sum-
mers and the other individual defendant: There, Olberg’s lawyer said
(my emphasis), “In discussing the matter with Mr. Olberg in prepara-
tion for scheduled depositions, it was apparent that passions have
cooled, and he authorized me to dismiss this matter as to these two
defendants.”
statements repeatedly, it is understandable that these witnesses,
even if truthful, might not be able to recall details of timing and
context in all alleged instances, nor perhaps even in most of
them. But I cannot so easily dismiss Olberg’s and Pelzer’s utter
inability to recall any particulars of any such alleged instance.
Moreover, I judge it wholly improbable that Summers would
have spontaneously blurted out such antiunion statements, as
Pelzer claims, much less that he would have used nearly identi-
cal words each time, as both Olberg and Pelzer also insist. In
the end I suspect that their testimony, although delivered for the
most part with bluff assurance, was artificially contrived, and
that their professed inability to recall any details of timing or
context was likewise a contrivance, intended to limit opportuni-
ties for specific rebuttal by the Respondent.
(Lack of) Corroboration: Olberg and Pelzer (and Derum,
for that matter) do not genuinely corroborate one another’s
versions, except in the quite trivial sense that each claims to
have heard Summers make antiunion statements more than
once. (It’s worth recalling in this regard that Olberg was talking
about pre-1991 events, whereas Pelzer and Derum were asked
to focus on statements by Summers after Olberg’s departure
and prior to their own departures in mid-October 1992.) In any
case, because their versions were so vague as to timing and
context, it is impossible to ascertain if they were describing
incidents that they commonly witnessed, or entirely separate
ones.
Accordingly, apart from questions of weight, discussed at the
outset, I treat the General Counsel’s evidence in this area as too
unreliable to properly figure at all in my assessment of the in-
tentions underlying the Respondent’s 1993 bargaining behav-
ior.
III. CENTRAL EVENTS
A. 1993 Bargaining Preparations
On March 8, Dean Killion, the financial secretary of the Un-
ion’s “Local 3-1,” mailed a four-page letter to the Respondent,
giving “notice . . . that this Local Union requests opening of our
labor agreement and negotiation of revisions and amendments
thereto[,]” and authorizing the IWA (the Union) to represent it
in negotiations for that purpose. The letter also outlined the
revisions and amendments the Union was seeking; these in-
cluded nonspecific demands for “substantial increases” in pay
and in employer contributions to existing health and welfare
and pension benefit plans, other “improvements” to those bene-
fit plans, and “improvements,” as well, to existing provisions in
the contract dealing with such items as vacations, holidays, and
funeral leave.
On March 25, 1993, Summers, together with other officials
of the Respondent and a third-party consultant named Gossard,
met in a strategy session with Kellye Wise, who, as previously
noted, is an attorney employed by Timber Operators Council
(TOC). (TOC and the Union have for years dealt with one an-
other in negotiations for labor agreements covering various
employer bargaining units in the timber products industry in the
Pacific Northwest, and they are cotrustees of industry health
and welfare and pension trusts, commonly referred to as the
“TOC-IWA” trusts.) Also as I have noted, the Respondent
eventually disclosed in response to the General Counsel’s trial
subpoena a four-page set of typed notes, captioned “1993 Con-
tract Negotiation Strategy,” and the General Counsel eventually
introduced these notes into evidence. The notes were made by
Summers in preparation for this March 25 session with Wise,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1304
and were apparently used as talking papers during that session.
Under the heading “Contract Issues” were listed the following
items, reflecting the Respondent’s preliminary wishes:

(1) “Maintain the same wage rate as our last contract
with the option of an increase based on an incentive plan.”
(2) “Terminate the existing [TOC-IWA] health and
welfare plan and incorporate the same plan as nonunion
(possibly include co-pay).”
(3) “Freeze the existing union [TOC-IWA] pension
plan and merge sawmill employees with existing company
401-k plan.”
(4) “Reduce maximum vacation to 3 weeks.”
(5) “Reduce number of paid holidays to 6 or 7.”
(6) “Eliminate the checkoff and union shop articles.”
(7) “Change the seniority system in order to integrate
competency as the determining factor.”
(8) “Implement random and blanket drug testing.”
(9) “Flexible work hours (i.e.: weekend work schedule
for maintenance).”

Most of the items on this management wish list were in-
cluded in one form or another in the Respondent’s eventual
proposals to the Union. There are, however, at least two distinct
exceptions: First, the company’s wish to “[e]liminate the
checkoff and union shop articles” was scrapped immediately,
on Wise’s advice that this demand did not relate to the Respon-
dent’s stated goal in negotiations, which was to achieve enough
reductions in “labor costs” to allow it to bid successfully on
logs and still operate the sawmill profitably. Second, the Re-
spondent’s wish to “[t]erminate the existing health and welfare
plan,” became transmuted into a proposal to “cap” the Respon-
dent’s contributions to the TOC-IWA health and welfare trust
at current levels of $1.65 per hour per worker.
Summers’ March 25 notes also suggest that the Respondent
at least doubted that an agreement could be reached with the
Union, for they are mostly devoted to various “Operations
Plan” scenarios that “assume” a strike would begin on June 1.31
And, while the notes alone do not show that the Respondent
envisioned a strike as inevitable, Summers’ testimony makes it
clear that the prospect of a strike was distinct enough to cause
the Respondent to invest early on in certain “strike security”
measures, most notably, the purchase and installation—in
March—of a chain-link fence that still surrounds the sawmill,
leaving only an opening on railroad right-of-way through which
freight cars might pass to and from the mill’s lumber loading
bays.32

31 “Plan A” contemplated operating only the mill’s “log yard, quad
mill, and planer with salaried and temp personnel.” “Plan B” proposed
idling the mill entirely for up to 6 months, while the Respondent con-
tinued to buy and sell unmilled logs. “Plan C” envisioned operating the
mill by “hir[ing] replacements immediately thorough [sic] temp organi-
zations[,]” but with “the goal” being “to get as many [of the current unit
employees] as possible to cross the picket lines.” (And in this latter
regard, Summers had noted, “We must inform them that they would
have to withdraw from the union before crossing the pickets to keep
from incurring fines.”) Finally, “Plan D” contemplated, simply, “Shut
down mill and liquidate after a period of time.”
32 “Plan A” contemplated operating only the mill’s “log yard, quad
mill, and planer with salaried and temp personnel.” “Plan B” proposed
idling the mill entirely for up to 6 months, while the Respondent con-
tinued to buy and sell unmilled logs. “Plan C” envisioned operating the
mill by “hir[ing] replacements immediately thorough [sic] temp organi-
zations[,]” but with “the goal” being “to get as many [of the current unit
I rely on Summers’ eventual admissions, following some
preliminary weaseling, that the fence was purchased and in-
stalled in or about “March,” and was for a “strike-security”
purpose.
On March 30, Summers wrote to Chuck Macrae, an IWA
vice president who would be the Union’s chief bargaining rep-
resentative. Summers advised Macrae that the Respondent was
“elect[ing] to terminate the labor agreement,” which, as Sum-
mers further explained, was intended to mean that “each and
every term and condition of the labor agreement [would be]
open for negotiation.” Summers promised to “present a pro-
posal outlining our specific opening [demands].” He also an-
nounced that Kelly Wise would “assist us in these negotia-
tions,” and confirmed his “understanding [that] an initial meet-
ing has been tentatively set for Monday, April 12, 1993.”
B. The Bargaining Sessions
Having exchanged formal opener letters in March, the parties
met thereafter for bargaining purposes on five occasions, on
April 12 and 29, May 10, and June 17 and 24. Throughout these
negotiations, the Union’s bargaining team was headed by Mac-
rae, and included Local 3-1 Business Agent Killion, when his
health permitted. Wise headed the Respondent’s team, which
also included Summers. Macrae and Wise had agreed in their
first meeting that each would be deemed the “spokesman” for
his respective team. Wise and Macrae appear to disagree con-
cerning only a few details of what happened during this period,
and they are ones not significant enough in my view to require
a credibility resolution.33 Their testimony is otherwise harmo-
nious with these additional findings, which are also informed
by the documentary evidence:
In the first session, the discussions focused on the now-
fleshed-out details of the Union’s opening proposals, which
included a 3-year term, hourly pay increases totaling 16 percent
over that term (6 percent in the first year; 5 percent in succeed-
ing years), the “elimination” of (special, lower) “new hire
rates,” plus a 2-percent “signing bonus.”34 In the second, the
Respondent submitted an “outline” of its own proposals, which
were somewhat more detailed than previously outlined in
Summers’ March 25 “Contract Issues” notes, supra, and had
been changed, as previously noted, by dropping a wish to
eliminate the “checkoff and union shop articles,” and by pro-
posing to stay within the TOC-IWA health and welfare plan,
but with a cap on the Respondent’s contribution rates. The third
session was mainly argumentative in tone, and the last two
sessions were held, by agreement of both parties, under the
auspices of a Federal mediator. In the final session, the Re-
spondent presented a yet more comprehensive and specific
listing of proposals as its “last and best offer,” which the Union

employees] as possible to cross the picket lines.” (And in this latter
regard, Summers had noted, “We must inform them that they would
have to withdraw from the union before crossing the pickets to keep
from incurring fines.”) Finally, “Plan D” contemplated, simply, “Shut
down mill and liquidate after a period of time.”
33 For example, Macrae asserts—and Wise denies—that Wise told
Macrae in an informal conversation prior to June 17 that the Respon-
dent was not following his “advice,” but was getting it from elsewhere.
34 Macrae conceded from the witness stand, in substance, that the
Union’s opening proposal was intended to get pay and benefit increases
and other enhancements from the Respondent that matched what the
Union had tried in 1992, albeit unsuccessfully, to get from the larger
employer-players in “the industry.”
TAYLOR LUMBER & TREATING, INC. 1305
agreed to take back to the sawmill crew, but with a recommen-
dation for “strike authorization,” not acceptance.
The parties never got very close to an agreement during the
negotiations. Throughout, the Union sought hourly pay in-
creases (although it eventually trimmed back from its initial
demands in this regard35); it also sought continuing company
participation in the TOC-IWA trusts (with increasing company
levels of contributions to the trusts), plus health and welfare
benefit enhancements and other “improvements” that implied
still higher costs to the Respondent (which latter demands were
never discussed very specifically, apparently due to the parties’
more fundamental differences).
For its part, the Respondent claimed throughout negotiations
that competitive pressures–especially its competitors’ ability in
recent timber sales to make higher bids than the Respondent
could make–required it to reduce, not increase, its labor costs.36
The Respondent, however, did not argue current inability to pay
what the Union was asking for, rather, its emphasis was on its
longer-term needs for a predictable log supply.37 Thus, the Re-
spondent, although willing to maintain current hourly wage
levels38 (and eventually, to “sweeten” its incentive pay scheme
and to broaden existing funeral leave options) wanted to cap its
contributions to the existing TOC-IWA health and welfare trust
at $1.65 per compensable hour, even though both parties knew
that the trust was now or soon would be calling for $2-per-hour
contributions. (The Respondent proposed to bridge the gap by
having the employees contribute the difference.) Moreover, the
Respondent sought throughout negotiations to achieve overall
labor cost savings by a variety of other devices, including by
substituting a (never fully explored) 401(k) plan for the current
“Union pension plan,” and by obtaining various “language”
changes, most notably, changes calculated to give the Respon-

35 In the June 17 meeting, following a union caucus, Macrae
trimmed the Union’s hourly pay increase demands to 4 percent in year
one, 3 percent in year two, and a flat 40-cent-per-hour raise in year
three. He also dropped the “signing bonus” demand, but adhered to the
demand for elimination of “new hire rates.” Macrae conceded in this
regard that these reduced demands had been calculated to match the
1992 “industry settlement.”
36 In the April 29 meeting, when the Respondent first presented in
outline form its own proposals for a new agreement, it also furnished
the Union with a document captioned, “Recorded 1992 Timber Sale
Results for Taylor Lumber & Treating,” which showed that the Re-
spondent had been substantially outbid at eight timber sales in 1992,
including three in December 1992.
37 Macrae conceded as follows during cross-examination:
Q. Hadn’t the company explained to you in negotiations that
their financial condition was not the problem, that it was not an
inability to pay, but rather an inability to obtain logs to run the
sawmill?
A. The Employer, through Mr. Wise and Mr. Summers had
indicated during bargaining that they, number one, were not
pleading inability to meet our demands, and that number two,
that that operation up to that point was in fact a profitable op-
eration, yes, they did.
Q. And that the problem was the inability to obtain logs?
A. I don’t know that they–in response to those questions,
they continued to reiterate that their problem was inability to
buy logs. They–they made a strong point in bargaining that log
supply for that mill was a big issue, yes, they did.
38 Thus, that subcount within the complaint which alleges that the
Respondent “proposed and insisted upon significant reductions in
wages” is clearly contradicted by the universally conceded fact that the
Respondent was willing from the start to continue to pay the then-
current hourly rates.
dent the right to subordinate “seniority” to “competency as
determined by the Company” when it came to job-bidding or
other personnel changes, and the right to “require” overtime
work, and the right, upon 10 days’ prior notice to the Union, to
change established work schedules “to fit production and main-
tenance needs[.]”
The obvious disparity in the parties’ respective bargaining
goals had caused Wise to comment in a letter to Macrae on
May 13, just after their third session, that the parties were still
“far apart,” in that the “company” was still asserting “the need
for labor cost savings in order to be competitive,” whereas “the
union remained insistent on a package which would include
significant cost increases.”39 Wise added, however, that he and
Summers had met on May 12 with “the management group,”
and that “the company’s hope continues to be that a mutually
agreeable resolution can be reached.” And to this end, Wise
proposed that a Federal mediator attend the next meeting, to
which the Union agreed.
In the last meeting on June 24, after the Union had previ-
ously trimmed its wage increase demands, the Respondent
submitted a detailed, written “Employer Proposal.” This pro-
posal also reflected some movement. Thus, although it held
firm on capping of hourly pay at current rates, the Respondent
sweetened its existing production incentive bonus plan (25
cents per hour in any month where production averaged
200,000 or more board feet) with an offer of an “additional” 10
cents per hour in any month where the production averaged
215,000 or more board feet. The Respondent also “agree[d] to
[the] Union proposal” on funeral leave (in effect, agreeing to
extend funeral leave to include deaths of grandchildren). Also
reflecting movement, the Respondent abandoned its proposal to
trim the number of paid holidays and proposed instead to
“maintain [the] present number of paid holidays.” But these
movements still left the parties far from agreement on pay rates,
vacations, scope of health and welfare benefits and employer
contribution levels, 401(k) versus “Union pension plan,” the
proper weight to be given seniority, and the scheduling of hours
of work and overtime.40
39 Macrae conceded in testimony that he told Wise—apparently in
the May 10 meeting, and perhaps others—that the Union did not “in-
tend to agree to wage and benefit reductions,” and further concedes that
he told Wise on May 10 and/or other dates that” “we didn’t intend to
bargain concessions, that we had had our bout with this Employer and
the industry with concession bargaining, and it didn’t–it didn’t work
then and we didn’t intend to do it again.” More grudgingly, Macrae
conceded that he “may have” also said that “the crew will not buy into
a concession package,” and that “the crew expects us to agree to the
same type of settlement as the balance of the other companies.” I find it
probable, given the Union’s admitted overall wish to get wage and
benefit increases for the workers consistent with the 1992 “industry
settlement,” that he also made statements to the latter effect, as Wise
testified.
40 In addition, although the Respondent’s June 24 last offer con-
tained a specific proposal on substance abuse and testing, the parties
had not come close to agreement on that subject. Unlike the issues
summarized above, however, the drug-testing controversy does not
appear to have been seen by either party as having an economic impact,
and does not appear to have been explored to any great extent before
the June 24 session ended, seemingly because both parties were more
concerned about the economic issues (including those characterized as
“language” issues, such as the Respondent’s wish to have language
allowing it to change “hours of work” on 10 days’ advance notice to the
Union).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1306
Toward the end of the June 24 meeting, following a caucus
of the union team, Macrae told Wise that the Respondent’s
proposal “seemed to be designed to be rejected.”41 Wise told
Macrae that, under the Respondent’s calculations, its own pro-
posals would achieve roughly $400,000 in labor cost savings
over the life of the contract, whereas the Union’s proposals
would increase costs by about $350,000 over the same term.
After Wise confirmed that the Respondent had presented its
best and final offer, Macrae told Wise that he would take the
proposal back to the crew, but would seek “strike authoriza-
tion” from them.
C. Followup Correspondence; Immediate Prestrike Events
Wise wrote to Macrae on June 29 to clear up what he be-
lieved, “[u]pon reviewing my notes of the June 24th bargaining
session,” was a “misunderstanding regarding the Company’s
health and welfare proposal . . . of June 24, 1993.” Specifically,
Wise recalled that Macrae had “indicated that our proposal
precluded participation in the TOC-IWA Trust because co-pay
of premium was not provided for by the trust.” Disagreeing
with this, Wise stated that he “believe[d] that our proposal
would still comply with the participation terms of the trust[,]”
and went on to explain why he thought so. Wise further stated,
moreover, that “[s]hould there be some other reason which
would prohibit Taylor Lumber from participation, we would
immediately meet with you to investigate alternative health and
welfare coverage within the Employer’s $1.65 per compensable
hour cap.” Finally, noting that the “Unions committee” had
expressed fears that, under the Respondent’s proposal, “the
employees could be left with no health coverage[,]” Wise
closed by reaffirming that such an outcome “has not, nor ever
has been, the Company’s proposal or intent.”
On July 8, Macrae called Wise and told him that, in a union
meeting held the night before, the crew had unanimously re-
jected the company proposals and had authorized a strike. As
Wise agrees, however, Macrae explained that the workers had
been “especially incensed by the language issues that [the Re-
spondent] had put on the table, and . . . that if we got rid of the
. . . ‘bullshit in the language,’ he would be willing to discuss the
economics, if they were justified[, but that] . . . the ball was in
our court, [and] that if we declared impasse, he wouldn’t ar-
gue.”42
On July 15, in a letter to Macrae, Wise opened by declaring
his own and the Respondent’s belief that “we are at an im-
passe,” and summarized why they had reached this belief. He
mentioned prominently the Union’s consistent “disagree[ment]
with and refus[al] to accept the Company’s position that [it]
needed certain cost savings to increase its competitiveness,” the
Union’s refusal to accept “the company’s proposed language
changes,” despite the Respondent’s having “stressed that . . .
flexibility of operations was a primary concern,” and the em-
ployees’ July 7 rejection of the Respondent’s proposals and
strike authorization vote. After further reviewing the parties’
bargaining history to date, Wise repeated that “it is apparent . . .
that we are at an impasse[,]” and that he had so notified the
Federal mediator, who “has indicated that she will continue
communications with both parties should something change.”

41 Macrae further admits that he “may have” referred to the Respon-
dent’s proposal as a “chicken shit offer.”
42 Here I rely on the credibly stated and plausible recollection of
Wise. Macrae did not concede having made such an “impasse” state-
ment in this conversation, but neither did he deny having done so.
Wise closed by advising Macrae that “our intent is to evaluate
Taylor Lumber Company’s position in light of the union’s re-
jection, and the present business environment[,]” and by sug-
gesting that Macrae contact him if he should have any “further
questions.”
In a reply letter to Wise on July 19, Macrae did not challenge
the notion that the parties were at impasse, but he challenged
the Respondent’s good faith in the bargaining that had led to
that impasse, and made several complaints about the Respon-
dent’s conduct. These included assertions that the Respondent’s
bargaining agents had not adequately responded to the Union’s
various requests during bargaining for “information to support
the need for [labor cost] reduction,”43 and had not “ask[ed]” the
Union for ideas about “how they might get these labor cost
reductions,” but rather, had “dictated where they must come
from[,]” and had given no “example of not being able to get
people to cover their overtime needs . . . [nor] of the Union not
agreeing to change shift schedules during the contract term[,]”
and had given “no reason as to why the substance abuse pro-
gram used by the bulk of the industry would not work for
them.” Macrae closed by expressing his “hope that Taylor
Lumber Company will re-evaluate it’s [sic] position and make a
good faith effort to resolve our difference before the chain of
events are set in motion that will not be pleasant for the Com-
pany or for the Union.”
In a reply letter to Macrae on July 28, Wise repeated familiar
general themes, and disputed the Union’s complaints about the
Respondent’s bargaining behavior. In this latter regard, he as-
serted (consistent with Macrae’s testimonial admissions about
the bargaining sessions) that the Respondent had “explained the
present status of our log supply, as well as the long-term out-
look on raw materials,” and had provided “documentation” of
its failure to bid successfully on timber sales, and had explained
its proposal on health, welfare, and pension in terms of the
Respondent’s need for a “known, stable, cost for a period of
time.” Concerning other complaints, Wise turned the table:
Thus, he averred that “[a]t no time has the Union Committee
suggested any alternative means for reducing labor costs.” And
as to substance abuse policy, Wise stated that the policy had
been discussed with the “local Union Committee” in the past,
and had “not met with strong opposition[,]” and in any case,
that it was not “reasonable” for the Union to “reject [the Re-
spondent’s proposal] out of hand,” just because “the policy is
not the same as other companies[‘].” Wise also took issue with
the Union’s “position” that the Respondent “should agree to
terms similar to those agreed to by companies that are generally
much larger, and not in the same situation as Taylor Lumber.”
Instead, wrote Wise, the Respondent’s “competition for log
supply is with independent mills, most of whom are fighting for
survival just like us.”44 And in his closing paragraph, Wise
43 Nothing in the record shows that the Union made any specific re-
quest for information bearing on the Respondent’s claimed need to
lower labor costs that was refused by the Respondent. Moreover, the
complaint makes no claim that the Respondent unlawfully refused to
furnish information. It appears, in fact, that Macrae was not persuaded
by the information the Respondent did furnish on this subject (such as
its chart of unsuccessful 1992 timber bids), and simply argued in the
bargaining sessions that the Respondent should not expect the unit
employees to “pay” for shortcomings in the Respondent’s own man-
agement, such as “incompetence” on the part of its timber buyer.
44 Macrae agreed as a witness that the Respondent had taken this po-
sition early on in the negotiations, and had named a number of compa-
TAYLOR LUMBER & TREATING, INC. 1307
echoed the theme that the Respondent saw its very “survival” at
stake, and for this reason had made “improving our capability
to purchase logs” its main “objective.”
When these exchanges failed to cause either party to make
any further movement,45 Wise wrote to Macrae on August 9,
announcing in material part as follows:

[T]he Company has discontinued negotiations for the pur-
poses of terminating the present collective bargaining agree-
ment. We have been at impasse for several weeks. This is to
inform you that we will be implementing our final offer effec-
tive August 16, 1993. A copy of that final proposal, presented
to the Union Committee on June 24, 1993, is enclosed.

On August 12, the Respondent mailed identical, three-page
letters to each of its bargaining unit employees, announcing the
bargaining impasse and the Company’s intention to implement
its last offer on August 16. The largest part of the letter pur-
ported to give “answers” to “questions” about employees’
rights “in the event some form of strike action is actually called
by the IWA.” The questions and answers focused on employ-
ees’ rights to continue working during a strike, and on how to
do so without being vulnerable to union fines.46 Among other
things, the Respondent said to each recipient that it “hoped”
there would be no strike, and “hope[d]” also that “you will
choose to work,” but would in any case “give serious consid-
eration to whatever decision you make on these matters.”
D. August 16 Strike; More Correspondence; December 9 Offer
to Return; Company Operations in Between
At about 6 a.m. on the morning of August 16, apparently
shortly before shift start, the Union’s Local 3-1 convened a
meeting of the bargaining unit employees, attended by about 64
of them. Killion, the Local’s soon-to-retire business agent, read
aloud from the Respondent’s August 12 letter to employees.
Various voices were heard from the floor, protesting that the
Company was “out to break the Union.” Killion counseled that
the employees had options to striking, such as staying on the
job under the Respondent’s terms, but making it “the safest
sawmill in the industry,”47 and suggested further that the Union
would file bad-faith bargaining charges with the Board. When
the vote came, however, the employees unanimously chose to
strike, recorded in the minutes of the meeting as a strike to
protest the Company’s “unfair tactics.” The strike began imme-
diately.
On August 25, the Union filed its first unfair labor practice
charges with the Board, alleging bad-faith bargaining by the
Respondent. Macrae and Wise conferred by telephone the same
morning, and on September 2, Wise wrote to Macrae, enclosing
a packet of documents “pertain[ing] to both the company’s
labor costs, and their raw material situation.” Wise said in his

nies whom it judged were its competitors (most or all of which names,
incidentally, were companies that Macrae knew to be nonunion opera-
tions).
45 Clearly these exchanges did not in themselves suggest movement
by either party, and I give them little independent weight, for I largely
regard them as mutual jockeying for legal position.
46 The prosecution does not attack these questions and answers as
involving any threats, coercive misstatements of employee rights, or
any other kind of violation.
47 Testimony of now Local 3-1 Business Agent Lloyd Carver, sup-
plemented by Killion, who recalls telling the assembled workers in this
regard that they could “report every safety violation and every EPA or
environmental violation.”
cover letter that these documents were being “provided with the
hope that the workers may better understand the company’s
position and proposal.” The documents he enclosed included
summaries of the Respondent’s “direct labor costs vs. total
operating costs” in the period March 1, 1992, through July 31,
1993, plus figures showing “daily average production” for
months from November 1991 through July 1993, plus excerpts
from industry trade publications charting swings in log prices
from 1990 through July 1993.
The Regional Director initially dismissed the Union’s bad-
faith bargaining charges on an uncertain date, but the Union
successfully appealed to the Office of the General Counsel,
who authorized a complaint sometime in early December. Thus
it was that Macrae transmitted the following letter to the Re-
spondent, addressed specifically to Summers, on December 9:

In light of the National Labor Relations Board issuing
the complaint and declaring this to be an unfair labor prac-
tice strike, the Union, on behalf of your employees, makes
the following offer:
The employees offer to immediately and uncondition-
ally return to work under the contract that was in effect
prior to the strike and to resume contract negotiations.

In a letter to Macrae mailed on December 14, Summers replied,
“We respectfully decline your offer.”
The Respondent kept the mill idle during the strike, and sold
off a good part of its log yard inventory, in part to improve its
cash flow, and in part to avoid a roughly $500,000 tax bite it
faced if it held onto certain logs in its inventory any longer. It
also bought small lots of logs at different times, mainly to
maintain relations with suppliers who might otherwise form
new customer relationships and become unavailable to the Re-
spondent in the future. One bargaining unit log yard worker
who had not joined the strike, Robert Patterson, remained on
the Respondent’s payroll, apparently full time, although it also
appears that his performance of bargaining unit work was lim-
ited to shipping and receiving tasks associated with the Re-
spondent’s sporadic selling and buying of logs. Patterson con-
tinued to receive the same pay rate as before the strike, and was
now being covered by the medical benefits plan covering the
Respondent’s unrepresented employees in its pole treatment
plant.
IV. CONCLUDING DISCUSSION; ORDER
A. The 8(a)(5) Counts in the Complaint
When I judge the merits of the pivotal, bad-faith bargaining
count in the complaint, I am required first to operate within the
mandate of Section 8(d) of the Act, which instructs pertinently
that the duty to bargain in good faith “does not compel either
party to agree to a proposal or require the making of a conces-
sion.” I am further required by the authorities to focus on the
Respondent’s bargaining intentions, and particularly on the
question whether the Respondent conducted its bargaining with
the intention of “avoiding,” or “frustrating” an agreement.48
This question surely invites an examination into the “totality”
of the Respondent’s conduct, and such an examination may
even require attention to the content of the Respondent’s bar-
48 E.g., Reichhold Chemicals, 288 NLRB 69 (1988); 88 Transit
Lines, 300 NLRB 177, 179 (1990); O’Reilly Enterprises, supra, 314
NLRB at 378.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1308
gaining proposals and/or its failure to make concessions.49 But
while the content of an employer’s proposals may be taken into
account in this analysis, I am adjured by the Board not to judge
the employer’s proposals simply in terms of their “‘ac-
ceptab[ility]’ or ‘unacceptab[ility]’ to a party,” and moreover,
to “strive to avoid making purely subjective judgments con-
cerning the substance of proposals.”50 Indeed, I am instructed
that in judging any attack on the content of an employer’s pro-
posal, the ultimate test is “whether, on the basis of objective
factors, a demand is clearly designed to frustrate agreement on
a collective-bargaining contract.”51
I don’t think the record convincingly shows that the Respon-
dent’s bargaining conduct was clearly designed to frustrate
agreement. Rather, I think the record shows that the Respon-
dent’s bargaining proposals and bargaining conduct were con-
sistent with those of an employer willing and trying to reach an
agreement that would satisfy its claimed economic needs.
Moreover, this record contains no reasonable basis for suppos-
ing that the Respondent’s claim of economic need was itself
false, much less that the bargaining proposals it developed and
advanced in aid of those needs were themselves adopted purely
to serve as obstacles to agreement. Indeed, the Respondent’s
claimed reasons for advancing its new contract proposals–to
reduce overall labor costs to a point that would improve the
Respondent’s ability to make a break-even bid for timber and
logs–were never seriously challenged in this litigation, and they
were supported by documentation and circumstantial evidence.
These two main points weigh most heavily in my ultimate con-
clusion that the Respondent engaged in no more than lawful,
“hard” bargaining in aid of legitimate economic goals. But I did
not reach this conclusion without first considering other fea-
tures of the Respondent’s conduct in its totality. Thus, I have
also considered the following arguments and points made by
the General Counsel and the Union, but have found them want-
ing for the following reasons:
Throughout his brief, the General Counsel rides hard on the
discredited testimony of Olberg, Pelzer, and Derum about al-
leged pre-October 1992 statements by Summers. For reasons I
have already thoroughly discussed, their testimony, even if true,
would deserve little weight, and none at all given my finding
that each was an unreliable witness.
The General Counsel sees evidence that the Respondent did
not really intend to reach an agreement in the Respondent’s
having planned on March 25 for various strike eventualities,
and especially in having built a fence for strike-security pur-
poses even before the parties began bargaining. I think this
evidence is, at best, equivocal in its implications. Certainly, if
the Respondent did not intend to reach agreement with the Un-
ion, it would anticipate the likelihood of a strike, and therefore
its strike planning would be consistent with such unlawful in-
tent, but just as surely, the fact that the Respondent engaged in
strike planning does not necessarily mean that it wanted no
agreement. Rather, such planning in late March would be
equally consistent with the Respondent’s realistic belief, in the
light of the Union’s initial, albeit vaguely couched demands for
“substantial increases” in pay and “improvements” in other
areas as well, that the Union would not likely agree on the

49 E.g., Reichhold Chemicals, supra at 69–70.
50 Reichhold Chemicals, supra at 69.
51 Id.; my emphasis. See also, e.g., Litton Microwave Cooking Prod-
ucts, 300 NLRB 324, 326–327 (1990).
terms the Respondent found important without first conducting
a strike to test the Respondent’s resolve. Moreover, the fact that
the Respondent was evidently prepared to undergo a strike
hardly proves that it welcomed one.52
The General Counsel’s remaining attacks are directed almost
exclusively against the content of the Respondent’s own bar-
gaining proposals, and its alleged refusal to make “meaningful
concessions.” To adequately address these types of attacks
requires me first to do some deadwood clearing, that is, to iden-
tify the more obvious discrepancies between complaint and
proof as to the Respondent’s alleged “insistence” on certain
“proposals,” and its alleged “failure” to “offer meaningful con-
cessions”:

The complaint alleges that the Respondent “proposed
and insisted upon significant reductions in wages.” In fact,
the Respondent did no such thing; it proposed to freeze
hourly pay at current levels, and eventually offered to
sweeten its production-linked incentive pay premium. The
complaint further alleges that the only “concessions” the
Respondent made were to “alter its language [sic] on vaca-
tions53 and on the Union’s request to include grandchil-
dren in . . . funeral leave.” This set of claims ignores the
Respondent’s incentive-pay sweetener offer, and it ignores
that the Respondent did not just “alter its language” on fu-
neral leave, but actually “agreed” with the Union’s pro-
posal. Moreover, the complaint alleges that these admitted
concessions were not offered by the Respondent “until af-
ter the last negotiations session,” and only “just before im-
plementing its proposal.” It is clear from the General
Counsel’s own evidence that all of the Respondent’s
movement occurred before the close of the June 24 ses-
sion; it is equally clear that the Respondent’s concessions
did not occur “just before” the Respondent “imple-
ment[ed] its proposal,” for everyone has always agreed
that it was not until nearly two months later, on August 16,
that the Respondent planned to or did “implement” any
changes contemplated by its last offer.

The complaint also avers in its attacks on the content of the
Respondent’s proposals that the Respondent “proposed and
insisted upon significant reductions in health an[d] welfare
benefits and pension . . . benefits.” The record shows instead
that the Respondent sought to “cap” its contributions to the
existing health and welfare plan at current levels (but not to
“reduce” them), and that it also sought to substitute a 401(k)
plan for the existing pension plan. In fact, however, the General
Counsel never sought to prove the particulars alleged in the
complaint, that the Respondent’s proposals in the areas of
health and welfare and pension would have yielded reductions,
“significant” or otherwise, in “benefits.” And in fact, the record
52 Further in this regard, the Respondent’s installation of the security
fence, seen by the prosecution as darkly significant evidence of the
Respondent’s unwillingness to reach any agreement with the Union,
can just as easily be interpreted as a signal to the Union that the Re-
spondent was prepared for a strike, made in the hope of persuading the
Union to moderate its own demands rather than play the strike card.
53 The complaint’s suggestion that the Respondent made some “con-
cession” when it “altered its language on vacations” involves inaccura-
cies of a different kind. The record unmistakably shows that the Re-
spondent’s June 24 proposal concerning vacation involved neither
movement nor “altered . . . language,” but instead was virtually identi-
cal in wording, and actually identical in substance, with its original,
April 29 proposal.
TAYLOR LUMBER & TREATING, INC. 1309
affords no basis for judging how the Respondent’s proposals
might have affected the scope of benefits available to employ-
ees under the existing TOC-IWA plans. Thus, although the
General Counsel still attacks the Respondent’s proposals on
health and welfare and pension, his attack has devolved to a
challenge to the Respondent’s right to seek any limits or
changes at all in its own costs of providing such benefit cover-
age.54 And so understood, I think the prosecution’s lingering
challenges in this area can be dismissed as being grounded in
the “unacceptability” to the Union of any departure from the
health and welfare and pension status quo (as established in the
1992 industry settlement) and as involving the kinds of “purely
subjective judgments concerning the substance of proposals”
that we are instructed to avoid making. Thus, in all the circum-
stances, I cannot see in the Respondent’s benefit plan proposals
anything “clearly designed to frustrate agreement.”
The complaint also charges that the Respondent’s bad faith
was evidenced by its “propos[ing] and insist[ing] upon the
elimination of seniority provisions [and] . . . upon elimination
of the Union’s right to negotiate over hours of work.” In these
respects, I think, the complaint has its facts basically right.
Thus, it is true, at least, that the Respondent at all times wanted
the right to subordinate “seniority” to “competency as deter-
mined by the Company” when it came to job bidding or other
personnel changes, and the right to require overtime, and the
right, upon 10 days’ prior notice to the Union, to change estab-
lished work schedules “to fit production and maintenance
needs[.]” As to all such issues, however, it is clear that the Re-
spondent rationalized these proposals at the bargaining table as
a way to give it greater operational flexibility, and thereby to
achieve further labor cost reductions. And, therefore, the mere
fact that the Respondent wanted changes in these areas does not
itself betoken a clear design on its part to frustrate agreement.
The General Counsel’s attack on the Respondent’s hours-of-
work proposal deserves additional attention, for several rea-
sons. The General Counsel now attacks that proposal not only
because it allegedly demonstrates the Respondent’s bad faith,
but he further devotes a distinct section of his brief to the head-
line proposition that the “Respondent’s Unilateral Implementa-
tion of its ‘Hours of Labor’ Proposal Is Independently Violative
of Section 8(a)(5) of the Act.” As I discuss next, the former
allegation ignores the Board’s decision in Colorado-Ute Elec-
tric Assn., 295 NLRB 607 (1989), enf. denied 939 F.2d 1392
(10th Cir. 1991). And as I discuss in the next section, the latter
proposition, although inspired by the same case, is clearly the
product of afterthought, and constitutes an untimely attempt,
sub silentio, to amend the complaint, an amendment which, in
any case, remains essentially unproved on this record.
In Colorado-Ute, the Board found (id. at 609) that the re-
spondent-employer’s bargaining demand for the right unilater-
ally to grant “merit” pay increases on a highly discretionary
basis necessarily was a demand that “[sought] the Union’s
waiver of its statutory rights [to bargain over any such particu-
lar increases] under Section 8(a)(5) of the Act.” Critically,

54 In this regard, it’s worth recalling that the Respondent explained at
the bargaining table that it needed caps on its costs for health and wel-
fare and pension programs, and that the Union did not voice any will-
ingness to consider departing from the existing TOC-IWA plans (which
were vulnerable to midterm changes in employer contribution levels),
but rather systematically ruled out “concession” bargaining. And as a
consequence, not only did this leave the Respondent’s proposals largely
unexplored, but it left its good faith in making them quite untested.
however, the Board found (id.) that the employer did not vio-
late its duty “to bargain in good faith by insisting on its merit
wage proposal,” and held further that “the parties’ impasse after
the rejection of the Respondent’s . . . offer was a lawful im-
passe[,]” because the employer “was free to insist to impasse as
a condition to agreement on any wage terms that the Union
agree to waive the statutory rights at issue here.” Assuming,
arguendo, that this Respondent’s hours-of-work proposal may
be similarly understood as implicitly requiring the Union to
waive statutory rights to bargain,55 these holdings dispose of
the General Counsel’s contention that the Respondent’s insis-
tence to impasse on that proposal is significant evidence that
the Respondent was bargaining in bad faith.
B. “Independent” 8(a)(5) Claims not in the Complaint
In portions of the Colorado-Ute decision that the General
Counsel now emphasizes, the Board noted further (id. at 609–
610) that “the [employer’s] freedom to pursue [its merit wage
proposal] and to exert this bargaining pressure to obtain this
end does not carry with it a right, once having failed and
reached impasse, to proceed with implementation of the final
offer as if the Respondent had successfully secured the Union’s
waiver.” More specifically, the Board held that when the em-
ployer thereafter “implemented” its merit-pay program in the
concrete sense of actually “grant[ing]” merit pay raises on a
unilateral basis, that feature of its implementation was unlaw-
ful, in that, absent the union’s actual waiver, the Respondent
was “not free to grant increases without consulting with the
Union about these matters.” And It is this latter holding that
now inspires the General Counsel to attack the Respondent’s
supposed August 16 “implementation” of its hours-of-work
proposal as an “independent violation of Section 8(a)(5).”
I reject this claim for three main reasons, the first two of
which are interrelated, and the last of which is sufficient in any
case. First, the complaint contains no hint, much less fair no-
tice, that the General Counsel would seek a finding that the
Respondent’s “implementation” of the hours-of-work feature in
its last offer was “independently” unlawful. Thus, the 8(a)(5)
counts allege in the aggregate only that the Respondent’s bar-
gaining in the “period” April through June was conducted in
bad faith, i.e., to “avoid” an agreement, and with a “desire to rid
itself of the Union”; they nowhere suggest that even if these
“surface bargaining” counts were found meritless, the Respon-
dent still had no right to “implement” the hours-of-work feature
after impasse was reached. Second, where the Respondent had
no fair notice that it might still be in legal jeopardy under Sec-
tion 8(a)(5) even if the surfacing bargaining counts were dis-
missed, I would be loath to find that the facts relevant to the
General Counsel’s afterthought theory were fully and fairly
litigated. Third, even if the General Counsel’s “independent”
theory of violation were not barred by constitutional due-
55 The General Counsel rather summarily and confusingly argues
(Br. 12) that “[a]lthough Colorado-Ute dealt with merit-pay increases[,]
there is no conceptual difference [raised by the Respondent’s hours-of-
work proposal]. It [the Colorado-Ute holding, apparently] should apply
to all cases involving mandatory [sic] subjects of bargaining[.]” I as-
sume that the General Counsel means by this that the Respondent’s
insistence on its hours-of-work proposal required the waiver of a statu-
tory right akin to that presented in Colorado-Ute. On this narrow point
there is ground for doubt. See Litton Microwave Cooking Products,
supra, 300 NLRB at 326 fn. 6; see also the judge’s discussion of under-
lying facts and citation of authorities. Id. at 409.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1310
process considerations, and even if it could be found that the
relevant facts were fully and fairly litigated, I remain pro-
foundly doubtful that the record would establish that the Re-
spondent ever actually “implemented” its hours-of-work pro-
posal in any concrete way. Thus, where it is undisputed that the
strike began before the Respondent fulfilled its vow to imple-
ment its last offer, and that the sawmill remained idle during
the strike, it would be strange to start with to imagine that the
Respondent could “implement” a proposal to alter established
hours of work in an empty mill. Moreover, although the record
incidentally shows that one employee, Patterson, continued to
do log yard work after the strike began, nothing in his testi-
mony or elsewhere in the record shows that his customary
hours of work before the strike were in any way changed after
the strike began.
Separately, as I discuss next, my disposition of the 8(a)(3)
count in the complaint does not require me to reach the ques-
tion of the lawfulness under Colorado-Ute of the Respondent’s
supposed implementation of the hours-of-work feature of its
last offer.
C. The 8(a)(3) Count
The General Counsel’s theory of 8(a)(3) violation necessar-
ily assumes that he will prevail on the surface bargaining count
in the complaint, for it is on this basis that he characterized the
strikers in the complaint as unfair labor practice strikers, enti-
tled under familiar principles to immediate reinstatement on
their unconditional offer to return. But even if I had found merit
to the surface bargaining count in the complaint, the next obsta-
cle the General Counsel must overcome in claiming that the
Respondent violated Section 8(a)(3) by failing immediately to
reinstate strikers on and after the Union’s December 9 offer to
return is that this offer imposed a plain “condition,” that the
strikers be returned “to work under the contract that was in
effect prior to the strike.” To meet this point, the prosecutor’s
8(a)(3) theory posits, moreover, the proposition (never alleged
in the complaint) that the Respondent was not free to “imple-
ment” any terms of its last offer under circumstances where, by
virtue of its unlawful surface bargaining, the impasse that was
clearly reached was not a good-faith impasse (or, to use the
Board’s terminology in Colorado-Ute, was not a “lawful im-
passe”). And it is on the basis of these dual premises, finally,
that the General Counsel feels free to characterize the Union’s
eventual offer to return as an “unconditional” one, despite its
plainly “conditional” features, for he reasons that the Union’s
offer only sought to put the strikers back into the same position
they occupied before the Respondent’s unlawful implementa-
tion of its last offer.
On a different record, the General Counsel’s theory of
8(a)(3) violation might be received more sympathetically, de-
spite its resort to exotic definitions of the word “unconditional.”
But I need not reach that theory, finally, because I have found,
in substance, that the impasse reached was a lawful one, and
not the product of any alleged design on the Respondent’s part
to frustrate an agreement and, therefore, the Respondent was
free under established principles to implement its last offer,
subject only to the arguable exception of its hours-of-work
proposal under the narrow exception defined in Colorado-Ute.
That the Respondent was generally free after arriving at a law-
ful impasse to implement its last offer dooms the General
Counsel’s 8(a)(3) theory. For in McAllister Bros., 312 NLRB
1121, 1122 (1993), where the employer lawfully implemented
changes consistent with its last offer after lawful impasse, the
Board clearly held that “the Union’s . . . offer to return to work
. . . conditioned on implementation of the terms that existed
under the expired agreement” was not an “unconditional offer”
and “[a]ccordingly . . . the Respondent did not violate Section
8(a)(3) and (1) when it refused to reinstate the striking employ-
ees.” Clearly the Union’s offer here was similarly conditioned
on the Respondent’s restoration of old contract terms that the
Respondent had no duty to restore, given the lawful impasse
that had been reached months earlier. Moreover, under the rea-
soning of McAllister Bros., it could not make a difference here
that the Respondent might not have been free under Colorado-
Ute to implement the hours-of-work feature of its last offer, for
the Union’s offer to return was not “conditioned” merely on the
Respondent’s agreement to withdraw implementation of that
feature, but required the Respondent to restore the entire pano-
ply of terms and conditions established by the old contract.
Accordingly, any violation that the Respondent might have
committed if it had genuinely implemented its hours-of-work
proposal could not have operated to convert the Union’s more
broadly conditional offer into one that gave rise to statutory
rights to reinstatement.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended56
ORDER
The complaint is dismissed.

56 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”