J. P. O'Neil Lumber Co.

National Labor Relations Board - Board Decisions

Jun 18, 1951

94 N.L.R.B. 1299 (N.L.R.B. 1951)

J. P. O'NEIL LUMBER COMPANY 1299-
in 'the record contradicts the inference to be drawn from the exhibit,
we shall exclude them from the unit.Q
We find that all office and clerical employees in the office of the Em-
ployer's Gadsden, Alabama, plant, including, but not limited to, all
employees listed in Schedule A; excluding all employees listed in,
Schedule B, employees in the invoice, industrial engineering, indus-
trial relations,. and combustion departments, plant clerical employ
ees, employees of the Truscon Steel Company, guards, professional
employees, confidential employees, and all supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.] .
' The Texas Company, 90 NLRB No. 121.
J. P. & KATHLEEN O'NEIL AND GORDON D. AND CATHERINE ORPUT,
D/B/A J. P. O'NEIL LUMBER COMPANY,' PETITIONER and INTERNA-
TIONAL WOODWORKERS OF AMERICA, LOCAL 5-246, CIO . Case No.
36-RM-66. June 18, 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 R. J. Wiener, hear-
ing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
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 organization involved claims to represent certain em-
ployees of the Employer.
3. The question concerning representation :
The Employer and the Union have had contractual relations since
1943.2 On June 1, 1949, the parties executed a collective bargaining
agreement which.was to remain in, effect until April .1, .1950, and'
thereafter for annual periods absent 60 days' notice. The contract
contained a clause providing for reopening with respect to general
wage changes upon 60 days' written notice preceding September 1 Or
April 1 of any contract year. On April 1, 1950, the contract was au-
tomatically renewed.
I The Employer 's name appears . as amended at the bearing.
2 The Union has 'never been certified as 'bargaining representative of the Employer's
employees , but in 1948 it won a union -authorization election.
94 NLRB No. 190.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the reopening clause, the Union notified the Employer
by letter dated January 26, 1951, that it desired to negotiate with
regard to wages, vacations, and paid holidays. On January 30,
1951, the Employer addressed. a letter to the Union in which it
expressed its willingness to bargain over these matters, and stated
that the Willamette Valley Lumber Operators Association was au-
thorized to represent it in such negotiations .3 During the course of
these negotiations, on February 27, 1951, the Employer filed the in-
stant petition, challenging the Union's majority status. The Union
has moved to dismiss the petition on the grounds : (1) that no ques-
tion concerning representation exists inasmuch as the Employer is
at present negotiating with the Union as the exclusive bargaining
agent of its employees in the appropriate unit; and (2) that as neither
party gave timely notice of termination, the contract was automatically
renewed .4
The Act as amended provides, in Section 9 (c) (1) (b), a method
whereby an employer who doubts the continuing majority status of
his employees' bargaining representative may resolve such doubt by
filing a petition, and no limitation was imposed with regard to
whether or not the parties were currently engaged in collective bar-
gaining. Where, as here, an employer, after years of bargaining rela-
tions with a labor organization, questions its continuing majority
status,5 the most reasonable and expeditious method of resolving such
question is to petition for an election while maintaining the status quo
by continuing to recognize the incumbent union. To require that an
3 Although the Association was authorized to negotiate with respect to the proposed
revisions on behalf of the Employer, it was not authorized to bind the Employer to any
agreement . None of the contracts between the Employer and the Union was executed
by the Association. Contrary to the Union's contention , the evidence is insufficient to
establish that the Employer is part of an association -wide unit . Strickler Motors, et al.,
87 NLRB 1313.
4 The Union further contends that a supplemental agreement entered into on August 4,
1950, for a 2-year period, which contained health and welfare provisions, bars this
proceeding. We do not agree. This supplemental agreement does not sufficiently contain
other substantive provisions concerning terms and conditions of employment, and is thus
not a collective bargaining agreement of a type which can operate as a bar to an election.
Independence Lumber & Manufacturing Company, Inc., 93 NLRB 1353.
6 Immediately prior to the filing of the instant petition , the Union's status as bargaining
representative of the employees at three different lumber companies located in the same
area as the Employer had been challenged by a rival labor organization , and elections
have been directed in all three cases. Blue River Lumber Company, 36-RC-567; Hansen
Pacific Lumber Company, 36-RC-585; Independence Lumber & Manufacturing Company,
supra. At least two of these three employers and the present Employer have bargained
jointly with the Union through the Association. Thus, the Employer had a reasonable
basis for questioning the continuing majority status of the Union at its plant . Further-
more, in Continental Southern Corporation , 83 NLRB 668, where the union moved to
dismiss the employer 's petition on the ground that no question of representation existed
as the employer did not in good faith question the union ' s majority status, the Board,
with Member Murdock concurring , denied the motion and stated : "It is immaterial whether
or not there may have been any reasonable basis in fact upon which the Employer might
question the Union ' s claim to majority representation."
J. P. O'NEIL LUMBER COMPANY 1301"
employer, under these circumstances, must cease bargaining in order
to determine a bargaining representative's continuing majority status
would work at cross purposes with the objective of the Act-to foster
and encourage collective bargaining-and might expose the employer
to a charge of refusal to bargain in violation of Section 8 (a) (5) of
the Act .6
Furthermore, if we were to treat the Employer's recognition of the
Union in this case as negating the existence of a question concerning
representation, we would be compelled to deny to the Employer the
opportunity to secure the benefits attendant upon dealing with a cer-
tified union.? In our opinion, the Employer is entitled to these benefits.
As to the second ground of the Union's motion to dismiss, we find
that the reopening for revision of the contract forestalled its automatic
renewal," and that the petition was therefore timely filed with respect
to the contract termination date of April 1, 1951. Accordingly, we
find that a question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:
All sawmill employees at the Employer's mill in Eugene, Oregon,
excluding all office and clerical employees, guards, ' professional em-
ployees, and supervisors, as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
MEMBER MURDOCK, dissenting :
I would not direct an election on the Employer's petition in this
proceeding for the following reasons :
Before the Board may direct a representation election, it must find
that a question of representation exists.9 Ordinarily, in a proceeding
such as this, the existence of the question' is attested by a specific
request for recognition made by the candidate bargaining agent which
is denied by the employer. The request and declination may occur
prior to the filing of the petition or at any time up to and including
the date of the hearing on the petition under the holding of a majority
of the Board in Advance Pattern.10 In this case the Employer cur-
rently recognizes and is bargaining with the Union as the exclusive
6 Cf. United States Gypsum Company, 90 NLRB 964.
7.Cf. General Bow Company , 82 NLRB 678.
Sterling Pulp and Paper Company , 77 NLRB 63.
° Section 9 (c) (1).
10 Advance Pattern Company , 80 NLRB 29.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of the employees covered by the petition 11 Thus, the
element of a declination to recognize is not present in this case. A
majority of the Board has held that, under certain circumstances, a
question of representation may exist in the absence of a request and
declination. Thus, where a recognized exclusive bargaining agent has
filed a petition for the express purpose of obtaining the privileges
and immunities that accompany certification under the Act, a majority
of the Board has found in the General Box case that a question of
representation existed and directed an election to resolve that ques-
tion12 The majority's decision in this case relies substantially upon
the General Box decision. While I am bound by the majority's de-
cision in that case, I submit that it is not applicable to the circum-
stances of the instant case. Here the Union is not seeking certification
and vigorously opposes the Employer's petition. Nor has the Em-
ployer expressed a desire to secure the benefits attendant upon dulling
with a certified union.13 Thus, the majority's finding that a question
of representation exists apparently rests solely on the fact that the
Employer has petitioned the Board to hold an election. Such a finding
goes far beyond that made in the General Box case.
The majority attempts to justify its decision on policy grounds.
Thus, it claims that to require an employer to cease bargaining in order
to determine a bargaining representative's continuing majority status
would "work at cross purposes with the objective of the Act-to foster
and encourage collective bargaining-and would expose the employer
to a charge of refusal to bargain in violation of Section 8 (a) (5) of
the Act." I submit that if an employer has reasonable grounds to
"I find no support in the record for the finding of the majority that tile Employer
"questions" the Union ' s continuing majority status . On the contrary , the Employer's own
testimony would seem to compel the opposite conclusion . Thus, J. P. O'Neil , the partner
who is in charge of the Employer's labor relations , testified as follows :
Q. Now, referring back to the contract which is Board's Exhibit No. 2, I believe
by the terms of that contract you agreed to recognize the union as the sole collective
bargaining agency, per se, under the recognition clause?
A. Yeah.
Q. And I presume that you fulfilled the terms of that agreement up to the
present time?
A. I think so.
Q. And you still recognize them as the bargaining agent for the majority of the
employees?
A. That's correct.
In these circumstances the Continental Southern Corporation case cited by the majority
is inapposite because there the employer refused to continue to bargain with the incumbent
union on the ground that it believed that the union no longer represented a majority of
its employees.
12 General Box Company , 82 NLRB 678 . In that case , I dissented from what I believed
to be the unnecessary holding of an election , indicating my belief that under those
circumstances , if the record shows that the union and the employer have concluded a
contract that would bar a petition for certification or decertification for a fixed term,
the Board should proceed to issue a certification.
13 I find it unnecessary to decide in this case whether I would reach a different conclusion
were this factor present.
WHIZ FISH PRODUCTS COMPANY 1303
doubt a union's continuing majority status, it should cease bargaining
with that union. Indeed, if an employer bargains exclusively with a
union that does not in fact represent a majority of its employees, it may
be found guilty of illegal assistance in violation of Section 8 (a) (2) of
the Act. Moreover, its refusal to bargain, if based upon a good faith
doubt as to the union's majority status, would not constitute a viola-
tion of Section 8 (a) (5). Certainly it is not an objective of the Act
to foster and encourage exclusive bargaining relationships between
employers and minority unions. On the other hand, I believe the
Board would encourage voluntarism in collective bargaining and thus
effectuate a basic purpose of the Act by refusing to intervene in situa-
tions such as this where an election would appear to be wholly unneces-
sary. In addition it would avoid theneedless expenditure of Govern-
ment money and help to cut down on the Board's already heavy case
load. Our jurisdictional policy is based in part on the premise that
the Board is not equipped to handle all of the cases over which it has
legal jurisdiction and accordingly must exercise some selectivity. I
can see no more appropriate basis for conserving our funds and efforts
than to refuse to conduct elections where they are not necessary.
For the foregoing reasons, I would dismiss the Employer's petition
on the grounds that the record fails to support a finding that a question
exists concerning the representation of the employees covered by the
petition within the meaning of Section 9 (c) (1) of the Act and that it
would not effectuate the policies of the Act to direct an election in his
proceeding.
WHIZ FISH PRODUCTS COMPANY and LACONNER CANNERY WORKERS
LOCAL INDUSTRIAL UNION NO. 1765, CIO and INTERNATIONAL ASSO-
CIATION OF MACHINISTS, LOCAL LODGE 239
COLUMBIA RIvER PACKERS ASSOCIATION, INC. and BELLINGHAM CAN-
NERY LOCAL INDUSTRIAL UNION No. 1756, CIO
BURKE PACKING COMPANY and BELLINGHAM CANNERY LOCAL INDUS-
TRIAL UNION No. 1756, CIO. Cases Nos. 19-RC--710, 19-RC-783,
19-RC-711, and 19-RC-713. June 19, 1951
Decision and Order
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Howard A. McIntyre, hearing officer. The hearing officer's rulings
94 NLRB No. 198.