Independence Lumber & Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Apr 13, 1951

93 N.L.R.B. 1353 (N.L.R.B. 1951)

INDEPENDENCE LUMBER & MANUFACTURING COMPANY, INC. 1353
of the charges in Case No. 9-CA-301 and rejected the appeal from the
settlement agreement.
The Union now contends for the first time that the strike of May 9
was caused by the unfair labor practices remedied by the settlement
agreement.
An initial finding that a strike is caused by unfair labor practices
may be made only in unfair labor practice proceedings.,' No such
proceedings are now before us ; nor have any findings been made in
any other proceedings on the facts here involved that the instant
strike was due to, or prolonged by, unfair labor practices of the Em-
ployer.6 We therefore have no choice but to find, without further
examination of the facts, that the strike was an economic strike, and
that the employees who participated therein are economic strikers.
As they were permanently replaced or their jobs abolished 7 they are
not entitled to reinstatement.
(2) Although, as asserted by the Union, the strikers have been
placed on a preferential hiring list, the record discloses that the Em-
ployer is currently operating with a normal employee complement,
and that the probability of reemployment of the former strikers is
remote. The Board has heretofore held that former employees are
not eligible to vote, even though on preferential hiring lists, where
it does not appear that they have a reasonable expectation of reem-
ployment in the near future.8
In view of the foregoing, we find that the former strikers who have
not yet been reemployed are ineligible to vote in the election directed
herein.
[Text of Direction of Election omitted from publication in this
volume.]
6 Times Square Stores Corporation, 79 NLRB 361.
6 On the contrary, in affirming the dismissal of the charges in Case No . 9-CA-301,
the General Counsel expressed the view that the May 9, 1950 , strike was an economic
strike , and that there was no causal relation between the antecedent unfair labor practices
and the strike.
7 See footnote 2, above.
s The Taylor-BVinfteld Corporation, 90 NLRB 1011; General Motors Corporation, 92
NLRB 1752.
INDEPENDENCE LUMBER & MANUFACTURING COMPANY, INC.' and MILL-
MEN'S LOCAL UNION NO. 1141, UNITED BROTI-IERHOOD OF CARPENTERS
R, JOINERS OF AMERICA, AFL, PETITIONER. Case No. 36-RGi-580.
April 13, 19,51
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Robert J. Wiener, hearing
I The name of Employer appears as amended at the hearing.
93 NLRB No. 235.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed 2
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated it powers in connection with this case to a three-mem-
ber panel [Chairman Herzog and Members Reynolds and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. On December 16,1949, the Employer and the Intervenor executed
a contract terminable on April 1, 1951, which provides for an auto-
matic yearly renewal subject to a 60-day written notice of a desire to
modify or terminate. Although the petition was filed on January 23,
1951, prior to the Mill-B date, the Intervenor contends that Article
X of the contract, taken either by itself or in conjunction with the
whole contract, is a bar to this proceeding.
The pertinent sections of the contract read as follows :
Article X
Upon execution of this agreement in his behalf by the Union,
each employee covered by this agreement authorizes and directs
the employer to deduct from his earnings each month the sum of
not more than 71/2¢ for each hour worked by him and pay said
sum to such insurance carrier or carriers as the Union or its
authorized representative may designate for employee' s social
benefits, such sum shall be paid on the statement of the insurance
carrier or carriers so designated. The employer will cooperate
with the Union and the insurance carrier in securing necessary
information for coverage.
If the foregoing is found to be in conflict with any federal or
state law, the parties hereto agree to amend it so as to conform to
the same. Except for such amendments required by law, employ-
ees' social benefits shall not be re-opened or made a subject of
negotiation prior to April 1, 1952.
Article XV
Except as it may be affected by the Wage Article and Article X,
Health and Welfare, this agreement shall remain in full force and
effect until the 1st day of April, 1951.3.. .
2 Permission to intervene was granted to International Woodworkers of America, Local
5-27, CIO, herein called the Intervenor , upon its showing of a sufficient interest in
the proceedings.
8 The italicized portion of Article XV was not in the contract submitted at the hearing
and the 'Intervenor moved to substitute a corrected copy which would include the words
EVENING NEWS PUBLISHING COMPANY 1355
The Intervenor contends that, because of the above-quoted pro-
visions, the contract continues in effect until April 1, 1952, and is there-
fore a bar.'
Because the petition was timely filed, we find that the over-all con-
tract does not constitute a bar to this proceeding; nor does the health
and welfare provision, considered separately as urged by the Inter-
venor, constitute a bar, as it does not contain other substantive pro-
visions concerning terms and conditions of employment.5
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.'
4. In accordance with the agreement of the parties, we find that all
employees of the Employer at its mill in Independence, Oregon, ex-
cluding office and clerical employees, guards, professional employees,
and supervisors as defined in the Act, constitute a unit appropriate for
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
"and Article X, Health and Welfare . . The Intervenor claims that this alleged
omission was caused by a stenographic error. The Petitioner opposes the motion. We
do not deem it necessary to decide this motion because even if we were to allow the
correction and thus view the contract in a light most favorable to the Intervenor's
position , we would find the contract no bar for the reasons hereinafter discussed.
4 The Intervenor suggests that the whole contract should be treated as having the
termination date of Article X. We find no merit in this contention as the language
plainly indicates that the April 1, 1952 , termination date should only apply to Article X.
6 See New York Butchers Dressed Meat Company, Division of Armour and Company,
81 NLRB 855 ; Texas Telephone Company , 93 NLRB 741 ; Laclede Gas Light Company,
76 NLRB 199 ( and cases cited therein).
BIn determining the contract bar issue iaised in this case , the Board is not passing
on the survival of the health and welfare provision , nor on the rights of the parties
thereunder . See Pratt d Letchworth Co., Inc., 89 NLRB 124, Boston Machine Works
Company, 89 NLRB 59.
EVENING NEWS PUBLISHING COMPANY and DAYTON MAILERS UNION,
LOCAL 137, INTERNATIONAL MAILERS UNION,' PETITIONER. Case
No. 9-RC-1116. April 13, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William A. McGowan, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
' Herein called Local 137.
93 NLRB No. 240.