Biles-Coleman Lumber Co.

National Labor Relations Board - Board Decisions

Dec 23, 1937

4 N.L.R.B. 679 (N.L.R.B. 1937)

In the Matter of BILES-COLEMAN LUMBER COMPANY and PUGET SOUND .
DISTRICT COUNCIL OF LUMBER AND SAWMILL WORKERS
Case No. C-197.Decided December 23,1937
Lumber Industry-Interference, Restraint, or Coerction: anti-union statements ;
attempts to defeat collectii e bargaining by the unlawful refusal to bargain ;
discrediting union leaders; questioning employees regarding union affiliation
and activity ; expressed opposition to labor organization ; distributing anti-
union literature among employees, direct appeals to employees by statements
and advertisements in newspapers in disregard of representatives of majority
of employees ; conducting a ballot by mail on question of returning to work
on basis of company policy which had been rejected by representatives of
employees : solicitation of individual employees to return to work on basis of-
rejected company policy ; notice that jobs of striking employees not returning.
to work by certain date would be filled with new men-Descrimznattion: dis-
charge; allegations in complaint dismissed-Unit Appropriate for Collective
Bargaining: production employees, excluding loggers ; organization of business ;
differences in work ; distance separating scenes of operation ; history of col-
lective bargaining-Representatives: proof of choice; signed petitions desig-
nating union as a bargaining representative ; membership in union-Collective'
Bargaining: refusal to recognize or deal with union as exclusive bargaining
representative ; refusal to bargain collectively in good faith as to substantive
terms of proposed agreement-Strike: caused and prolonged by employer's un-
lawful refusal to bargain collectively with union-Employee Status: during
strike-Reinstatement Ordered: strikers upon application for reinstatement;
preference list ordered-Back Pay: awarded strikers, from date of denial of
application for reinstatement.
Mr. John J. Babe, for the Board.
Weter, Roberts c0 Shefelman, by Mr. F. M. Roberts and Mr. Cha?les-
C. Hall, of Seattle, Wash., for the respondent.
Houghton, Cluck •& Coughlin, by Mr. Jack R. Cluck and Mr. Paul'
Coughlin, of Seattle, Wash., for the District Council.
Mr. H. E. Anderson, of Omak, Wash., and Mr. Harvey F. Davis,.
of Wenatchee, Wash., for the Petitioning Interveners.
Mr. Joseph Friedman, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Puget Sound District Council of-
Lumber and Sawmill Workers, herein called the District Council.
in behalf of Carpenters' Union No. 2570 of Omak, Washington,.
67573-38-vol iv-44 679
680 NATIONAL LABOR RELATIONS BOARD
Lumber and Sawmill Workers, herein called the Union, the National
Labor Relations Board, herein called the Board, by Charles W.
Hope, Regional Director for the Nineteenth Region (Seattle, Wash-
ington), issued its complaint dated April 28, 1937, against Biles-
Coleman Lumber Company, Omak, Washington, herein called the
respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1), and (3), and (5) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act.
Copies of the complaint and of notice of a hearing to be held on
May 10, 1937, at Omak, Washington, were duly served upon the
respondent and the District Council. On May 6, 1937, the Regional
Director issued and duly served upon the parties an order continuing
-the hearing to May 17, 1937. On May 7, 1937, the Regional Director
notified the respondent that the complaint was to be amended and
entered into a stipulation with the respondent whereby the respond-
ent's time for filing an answer was extended to a day five days from
the date of the service of the amended complaint. On May 8, 1937,
the Regional Director issued and duly served upon the parties an
amended complaint and notice of a hearing to be held on May 17,
1937, at Omak, Washington.
In respect of the unfair labor practices, the amended complaint
.alleged in substance (1) that on October 25, 1935, the respondent
discharged and thereafter refused to reinstate E. E. Hawes and
-Howard Lacy, and on June 15, 1936, discharged and thereafter re-
fused to reinstate 310 or more employees for the reason that they
had joined and assisted the Union and had engaged in concerted
.activities with other employees of the respondent for the purpose
.of collective bargaining and other mutual aid and protection;
(2.) that on April 27, 1937, and on various dates thereafter the
respondent refused to bargain collectively with the Union as the
.exclusive representative of the respondent's employees in its sawmill
and manufacturing plant, said employees constituting an appropri-
ate bargaining unit; (3) that as a result of the respondent's refusal
-so to bargain collectively with the Union a strike was called on
May 4, 1936, which has continued without interruption or abatement
-until the present time; and (4) that by various other acts the re-
spondent had interfered with, restrained, and coerced its employees
in the exercise of the rights,guaranteed by Section 7 of the Act, and
was continuing to do so.
On August 13, 1937, the respondent filed its answer, in which, in
-substance, it denied most of the allegations of the amended complaint
,and set forth' affirmative matter, including an averment that all its
DECISIONS AND ORDERS 681
employees, including those engaged in logging operations, constituted
a unit appropriate for the purposes of collective bargaining. The
respondent admitted in its answer, however, that "a very substantial
proportion of the products of its manufacture at its Omak plant are
sold for delivery in other States of the Union than the State of Wash-
ington, and that they are transported to such other States by common
carrier railroads."
At the same time the respondent filed a motion requesting that the
allegations of Paragraph X of the amended complaint, which set forth
the discriminatory discharges of 310 or more employees without spe-
cifically naming them, be made more definite and certain by stating
the names of all such employees either in an amendment to the
amended complaint or in a bill of particulars.
Pursuant to the notice of hearing attached to the amended com-
plaint, a hearing was held at Omak, Washington, commencing on
May 17, 1937, and concluding on July 14, 1937, before Walter Wilbur,
duly designated as Trial Examiner by the Board. The Board, the
respondent, and the District Council were represented by counsel and
participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to produce evidence bearing on the
issues was afforded all the parties.
At the commencement of the hearing the respondent made a motion
to strike out the allegations of Paragraph X of the amended com-
plaint which set forth the discriminatory discharges of 310 or more
employees, on the ground that the charge filed with the Regional
Director, a copy of which was attached to the amended complaint,
contained no reference to the 310 or more employees mentioned in
Paragraph X of the amended complaint. The Trial Examiner denied
the motion to strike, but in substance granted the respondent's motion
for a bill of particulars which it had filed prior to the commencement
.of the hearing. The ruling is hereby affirmed.
In accordance with the Trial Examiner's ruling there was 'added
to the charge an amendment setting forth the discriminatory dis-
,charges of 332 employees on June 15, 1937, accompanied by a list of
their names, designated as Exhibit I. At the same time Paragraph X
of the amended complaint was amended to incorporate by reference
the names of the 332 employees listed on Exhibit I, attached to the
amendment to the charge. The Trial Examiner granted the respond-
ent five days in which to answer the amendment to Paragraph X of the
amended complaint and ruled that no testimony on any issue raised
by such amendment should be introduced until the five-day period had
elapsed.. The ruling is hereby affirmed.
Thereafter the respondent filed an answer denying the allegations
-set forth in the amendment to Paragraph X of the amended com-
plaint. During the hearing, on June 6, 1937, the Trial Examiner
682 NATIONAL LABOR RELATIONS BOARD
permitted the respondent to amend its answer to include allegations
that of the 332 employees named as having been discriminatorily
O
discharged on June 15, 1936, eight had been convicted of violations
of the law growing out of the strike. The amendment concluded with
a prayer that the complaint be dismissed or, in the alternative, that
the above eight persons, together with any other employees who
should thereafter be found guilty of unlawful acts growing out
of the strike, should be excluded from reinstatement in the event
of the entry by the Board of an order of reinstatement.
On May 18, 1937, the second day of the hearing, 198 employees of
the respondent joined in a petition to intervene in the proceeding.
The petitioners in intervention alleged that they had been employees
of the respondent on and prior to April 29, 1936, and were employ-
ees of the respondent at the time of the hearing. They prayed leave
to intervene for the purpose of showing that an appropriate bar-
gaining unit should include all the employees of the respondent and
not merely the employees in the sawmill and factory at Omak and
that on the dates mentioned in the amended complaint the Union
did not represent a majority of the respondent's employees. The
Trial Examiner ruled that the petition in intervention had merit
only insofar as it suggested that there might be a question of repre-
sentation as of the time of the hearing and allowed the petition
merely as notice of the petitioners' claim that such a question existed.
He refused to allow the petitioners to cross-examinee witnesses intro-
duced by the Board, but reserved decision on whether he would allow
the petitioners to introduce testimony after the Board and the re-
spondent had completed their presentation of evidence, until that
time. The petitioners duly excepted to the ruling. At the close of
the presentation of testimony by the Board and the respondent, the
Trial Examiner refused to allow the petitioners to introduce testi-
mony on the ground that his earlier ruling sufficiently safeguarded
the petitioner's interests and that the introduction of evidence by
the petitioners would serve no purpose other than to give further
color of merit to their claim that a question of representation existed
at the time of the hearing. The petitioners duly excepted to the
Trial Examiner's ruling.
While the grounds of the Trial Examiner's ruling may not have
been precisely responsive to the assertions of the petitioners in inter-
vention, his ruling was not prejudicial. We do not feel that under
the circumstances of this case, in a proceeding brought by the
Board upon its complaint issued against the respondent, individual
employees of the respondent had such an interest as to entitle them to
intervene in the proceedings for the purposes requested. The Trial
Examiner's ruling is hereby affirmed.
DECISIONS AND ORDERS 683
At the close of the introduction of testimony, counsel for the Board
moved to conform the complaint to the evidence. The Trial Exam-
iner denied the motion insofar as it was directed to bringing. within
the allegations of the complaint the discriminatory discharge of Pat
Mullen, who was not named in the complaint, but concerning whose
discharge testimony had been received ; but in other respects the mo-
tion was granted. The ruling is hereby affirmed.
At the close of the hearing the Trial Examiner heard argument by
counsel for each of the parties. Thereafter, the District Council filed
a brief with the Board.
By order of the Board, dated July 20, 1937, the proceeding was
transferred to and continued before the Board in accordance with
Article II, Section 37, of National Labor Relations Board Rules and
Regulations-Series 1, as amended. Pursuant to notice a hearing was
held before the Board on September 3, 1937, in Washington, for the
purpose of oral argument. Only the respondent appeared. It was
represented by counsel and presented its oral argument.
During the course of the hearing the Trial Examiner made a num-
ber of rulings on motions and on objections to the admission of evi-
dence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE RESPONDENT AND ITS BUSINESS
Biles-Coleman Lumber Company is a Washington corporation, hav-
ing its principal office and place of business in Omak, Washington. It
is engaged in the business of logging timber and operating a sawmill
and factory. The respondent's logging operations are carried on ex-
clusively for the purpose of supplying limber for its sawmill and
factory. After the lumber passes through tl^esawmill it is utilized in
the factory in the manufacture of fabricated products such as casket
shooks, boxes, window frames, ironing boards, and similar products.
Only a negligible amount of the lumber logged by the respondent is
not converted into manufactured products in its factory. The re-
spondent's principal product is lindermanized casket shooks, of which
it manufactures approximately 55 per cent of the total output in the
Northwest. Fifty-seven per cent of all its products are shipped annu-
ally to destinations outside the State of Washington, but since a large
proportion of the 43 per cent of its products which remain in the State
of Washington consist of sawdust and shavings, byproducts, at least
75 per cent of its total manufactured products are shipped to destina,
tions outside the State of Washington.
684 NATIONAL LABOR RELATIONS BOARD
The respondent's sales of its products during the period from March
31, 1936 to March 31, 1937 amounted to $1,210,481.81. The respondent
employs approximately 600 men and has a monthly pay roll of about.
$45,000.
H. THE UNION
Puget Sound District Council of Lumber and Sawmill Workers,,
the labor organization which filed the charges in this proceeding, is
affiliated with United Brotherhood of Carpenters and Joiners of
America, an affiliate of the American Federation of Labor, and has
jurisdiction of the various local unions of lumber and sawmill
workers situated in the area known as Puget Sound, Washington..
Carpenters' Union No. 2570 of Omak, Washington, Lumber and
Sawmill Workers, is a local union within the jurisdiction of the-
District Council and in whose behalf the District Council filed the-
charges in this proceeding. While membership in the Union is not
restricted to employees of the respondent, its membership is composed-
almost entirely of the respondent's employees.
III. THE UNFAIR LABOR PRACTICES
A. Background of organization of the Union and the respondent's
reaction to it .
The organization of the respondent's employees into a labor organi-
zation began in June 1934. At that time 40 or 50 employees of the-
respondent convened at the. stockyards alongside the railroad near
the respondent's plant for the purpose of discussing the advisability-
of calling in an American Federation of Labor organizer.
The following afternoon, Pat Mullen, one of the leaders in the
union movement, was summoned by R. L. McNett, the respondent's-
president, and questioned concerning the meeting on the preceding
evening. Mullen informed McNett that a substantial number of'
employees were interested in forming a union, had communicated
with an American Federation of Labor organizer, and had planned
a meeting open to all the respondent's employees in its sawmill or-
factory on the subject. McNett at first stated that he failed to see
the need of a union and then suggested that the men form a company
union or a union under Loyal Legion of Loggers and Lumbermen,
known as the Four L's, showing Mullen a Four L booklet. McNett
then admonished Mullen that the formation of a union affiliated with
the American Federation of Labor would involve the employees in
sympathy strikes, bloodshed and violence, and would only serve the-
purpose of supplying outside organizers with cigars to smoke at the
employees' expense. McNett offered the respondent's premises as a
place for holding meetings and asked Mullen if there was any
objection to his (McNett's) addressing the employees on the subject.
DECISIONS AND ORDERS 685
of unionization before the open meeting was held. Receiving a
favorable answer from Mullen, McNett called a meeting of all the
employees in the sawmill and factory the following afternoon and
addressed them in terms substantially similar to those he had ex-
pressed in his interview with Mullen, concluding, however, with an,
exhortation that all the employees attend the meeting and voice their
opinions on the question of calling in an American Federation of
Labor organizer.
On the following evening a meeting of the respondent's employees
was held at the respondent's retail shed. A majority of the approxi-
mately 500 employees in attendance voted to call in an American
Federation of Labor organizer. The next day, Pat Mullen was
laid off.
Shortly thereafter Leo Flynn, an organizer for the American Fed-
eration of Labor, arrived in Omak, collected dues from about 30
employees and placed Pat Mullen in charge of receiving applications
for membership. In July 1934, 30 or 40 members convened and voted
to apply for a charter from the American Federation of Labor.
Thereafter a number of the leaders of this group of employees were
discharged by the respondent. On July 30, 1934, the Union received
its charter from the American Federation of Labor, under the name
"American Federation of Labor Local Union No. 19763 of Sawmill
Workers and Loggers of Omak and Vicinity".
In August 1934 the respondent, by its foremen distributed an anti-
union pamphlet among its employees entitled, "Labor and Rackets".,
In October 1934, the Regional Labor Board of the old National Labor
Relations Board under the National Industrial Recovery Act ordered
the reinstatement of Mullen and several other union leaders whom it
found to have been discriminatorily discharged by the respondent.
The case was adjusted and Mullen and the other union men were
reinstated by the respondent.
Early in 1935 the Union had attained a membership of about 300
among the respondent's employees in its sawmill and factory. At
this time several officials of the Union made a trip into the loggers'
camps in order to interest the loggers in the Union. They found that
the loggers considered that their interests would not be adequately
represented by a union whose headquarters were situated in Omak,
which was about 15 to 20 miles distant from the logging camps.
In 1935 the American Federation of Labor conceded to United
Brotherhood of Carpenters and Joiners of America, herein called
the United, jurisdiction over the American Federation of Labor local
unions in the lumber industry. In April 1935, the Union received
its present charter and name from the United. In January 1936, the
Union affiliated with the District Council.
i Board's Exhibit No. 61.
1686 NATIONAL LABOR RELATIONS BOARD
In May 1935, Percy Mortemeyer, a straw boss, was discharged two
months after he had joined the Union. The Union contacted McNett
several times in its efforts to secure Mortemeyer's reinstatement, but
was unsuccessful in its negotiations with McNett. During the same
period, the respondent had returned to a 45-hour week after the
invalidation of the National Industrial Recovery Act. The Union
-then held a meeting with the respondent concerning the establish-
ment of a 40-hour week and the reinstatement of Mortemeyer. The
negotiations proved unsuccessful, however, and the Union voted to
strike in support of its demands. The strike was never called.
After its failure to secure the reinstatement of Mortemeyer, the
Union found its membership dwindling. By the end of 1935 the
number of its members in good standing had fallen'to 40 or 50. Early
in 1936, the Union commenced a campaign, described below, to rebuild
its organization.
B. The refusal to bargain collectively
1. The appropriate unit
The amended complaint alleged that the respondent's employees
in its sawmill and factory, excluding supervisory officials, foremen,
-salesmen, clerical and office employees, watchmen, and janitors, con-
stitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act. The respondent
maintains that the unit designated in the amended complaint is too
limited and should include also the respondent's employees engaged
in its logging operations. A description of the organization and op-
eration of the respondent's business will clarify the contentions of
the parties.
Situated in Omak, the respondent's plant consists of a sawmill,
factory, a small powerhouse, a retail shed, kilns, storage yards, and
a pond to which the logs cut in its logging operations are delivered.
The respondent owns and operates a railroad which commences at
its plant in Omak and runs 20 to 30 miles into the woods where the
logging operations take place. The respondent cuts and logs most
of its timber on the Colville Indian Reservation under contract with
-the Federal Government, but a substantial amount of timber is also
cut and logged on land. owned by the State of Washington and
private individuals. All the respondent's logging operations occur
at a distance of 15 to 30 miles from Omak.
At the hearing the Board showed that the expression, "employees
in the sawmill and factory", used to describe the unit in the amended
complaint, was generally understood to include all the employees
engaged in the sawmill, factory, powerhouse, the kilns, and the yards,
exclusive of certain types of employees listed in the amended com-
DECISIONS AND ORDERS 687'
plaint. The three employees in the retail shed were excluded as-
salesmen, and the respondent made no objection to their exclusion.-
The Union apparently considered that the lower end section railroad
crew was also a part of the unit and most of this crew had designated
the Union as their representative. The lower end railroad crew lived_
in Omak and began operations daily from the respondent's plant at
Omak, working on the railroad for a distance of about 15 miles and
returning to Omak at the close of work. Occasionally the respond-
ent engaged an upper end railroad crew which worked on the portion,
of the railroad furthest in the woods. This crew lived in the woods
and the Union claimed that they should be excluded from the appro--
priate unit along with the employees engaged in the logging
operations.
The respondent made no objection to the unit claimed by the Board-
and the Union insofar as concerned the exclusion of foremen, sales-
men, clerical and office employees, watchmen, and janitors, but con-
tended for the inclusion of the employees engaged in its logging
operations, chiefly on the ground that the respondent's business was-
an organic whole and its operations interdependent. While the evi-
dence clearly shows that the operations of the respondent's sawmill
and factory, as at present carried on, are dependent upon its logging
operations and vice versa, numerous other factors adduced by the
Board overcome this consideration in the determination of an appro-
priate unit.
It was shown that the principal logging operations of the respond-
ent are conducted by the respondent itself in a region called the
Disautel area, while the remainder of its logging operations are car-
ried on by "gypos," the operations being characterized as " gypo"
operations. The gypos own their own equipment, and are paid a flat
rate per 1,000 feet logged. They hire the gypo employees and deter-
mine their wages, except that the respondent requires that a certain
minimum be paid. The respondent's books show the respondent itself
as paying the wages of the gypo employees, with the amounts of wages
being deducted from the amount of money due the gypo himself,
with the consequence that the gypo is the person who takes the busi-
ness risk in conducting the gypo operation and is thus the person
chiefly concerned as to the wage rate of the gypo employees and the
quality of their work. It is unnecessary to determine whether the,
gypos are independent contractors or, as maintained by the respond-
ent, foremen. It is clear in any event that the gypo employees enjoy
a peculiar status and that their inclusion in a unit with the other em-
ployees might readily obstruct effective collective bargaining by the-
other employees. Moreover, the gypo operations are conducted at
various places 20 to 30 miles distant from the sawmill and factory.
Gypo operations are likely to be somewhat irregular, depending upon,,
,,688 NATIONAL LABOR RELATIONS BOARD
the contracts which the respondent happens to be able to make with
the State and with private owners of timber. The gypo employees
live in the woods and are not all gathered at one place.
Somewhat similar considerations are applicable to the employees
of respondent in the Disautel area. The operations take place more
than 15 miles from Omak and the men live in logging camps in the
woods. The only opportunity that these employees would have to
participate actively in a union at Omak would occur on Saturday
.night when they might come to town to purchase their weekly provi-
sions or to seek entertainment. Secondly, like the gypo employees,
they perform an entirely different type of work. They are loggers,
while the employees at the Omak plant are factory or mill employees.
A most important consideration in determining an appropriate unit
in this case is the history of collective bargaining among the respond-
ent's employees. The only employees of the respondent who have at
any time organized for the purpose of collective bargaining are the
-employees at the Omak plant. The Union has never.attempted to
organize the gypo employees and none of them are members of the
Union. In 1935 the Union's attempt to organize the loggers in the
Disautel area met with no success. Only a few such loggers have ever
belonged to the Union and they were never active. It is also signifi-
cant that the respondent did not object to the unit claimed by the
'Union during its negotiations with the Union, but has for the first
time raised the question in this proceeding.
We conclude that a unit composed of the employees in the sawmill,
factory, powerhouse, kilns, yards, and lower end section railroad
crew, excluding all the employees in the woods, supervisory officials,
foremen, salesmen, clerical and office employees, watchmen, and jani-
tors, would insure to those employees the full benefit of their rights
to self-organization and to collective bargaining, and otherwise effec-
tuate the policies of the Act, and constitute a unit which is appropri-
ate for the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
2. Representation by the Union of the majority in the appropriate
unit
The complaint alleged that on April 27, 1936, when the Union pre-
sented its proposed agreement to the respondent, and on various dates
thereafter until negotiations ceased on or about May 26, 1936, the
Union represented a majority of the employees in the appropriate
unit. The respondent submitted a list of its employees on April 27
and 29, 1936, and on May 2, 1936, the last working day before the
strike was called on May 4, 1936.2
2 Board 's Exhibits Nos. 48 and 48-A.
DECISIONS AND ORDERS 689
This list reveals that there are 443 employees in the appropriate
unit. The number includes employees in the retail department, some
foremen, and a few clerical employees, but it is unnecessary to elimi-
nate them from the count as the Union's majority is clear.
During March and April 1936 the Union circulated for signature
among the respondent's employees petitions designating the Union as
their collective bargaining agency. All of the 295 signatures appear-
ing on the petitions 8 were secured before April 27, 1936. The peti-
tions were signed by members of the Union in good standing, delin-
quent members, and by employees who had never previously joined
the Union. The Board submitted the petitions in evidence, and all
the signatures except two were identified by the Union officials who
secured the signatures and personally witnessed the signers affix their
signatures. Moreover, during the course of the hearing, which lasted
for two months, great numbers of employees were called to give testi-
mony by both the Board and the respondent and in every case an
employee whose signature appeared on the petitions identified it as
his own and as having been affixed of his own free will and with full
knowledge of its signficance.
Discounting the two signatures which were not identified, there are
signatures of 293 employees designating the Union as their collective
bargaining agency. Deducting from this number all signatures which
the respondent's list of employees shows do not represent employees on
the relevant dates, all duplications, and all signatures which were
asserted to represent employees not properly within the appropriate
unit, there remain 261 signatures representing employees of the re-
spondent within the appropriate unit on the relevant dates who had
designated the Union as their collective bargaining agency before
April 27, 1936. This number represents a clear majority of the 443
employees in the appropriate unit. In fact, the Union's position was
'even stronger, as the list of members 4 compiled from its membership
rolls discloses that 20 of its members in good standing prior to April
27, 1936, did. not take the trouble of signing the petitions. By May 5,
1936, the day after the strike was called, the Union had secured 10
additional members who' had not signed the petitions; and by May
12, 1936, had secured 9 more such members. The Union's strength
not only remained unimpaired but increased during the strike until
negotiations were terminated on May 26, 1936, and the plant reopened
on June 9, 1936, with the strike'still in continuance.
We find that on April 27,1936, and at all times thereafter the Union
was the duly designated representative of a majority of the employees
in the appropriate unit, and, pursuant to Section 9 (a) of the Act,
8 Board's Exhibit No. 38-A-N.
'Board's Exhibit No. 60.
690 NATIONAL LABOR RELATIONS BOARD
was the exclusive representative of all the employees in such unit for
the purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of employment.
3. The refusal to bargain
Early in 1936 the Union began a campaign to rebuild its organiza-
tion by increasing its membership and by formulating an agreement
for presentation to the respondent. By the latter part of April 1936
the Union had been designated as the collective bargaining agency of
the respondent's employees in an appropriate unit and a proposed
agreement had been drafted and approved by the membership. The
respondent attempted to show that the proposed agreement had not
been properly ,approved at this time by the Union membership or by
the District Council which had jurisdiction over the Union. While
the Board has held that it will not concern itself with the operations
of the internal affairs of the Union in a case like this, we may add
nevertheless that the evidence fails to sustain the respondent's
contention.
The proposed agreement contained 17 articles, chief among which
were: (1) recognition of the Union as the exclusive bargaining repre-
sentative of the respondent's employees; (2) an eight hour day and
a forty hour week; (3) the establishment of a seniority rule; (4)
a ten cent hourly wage increase; and (5) the establishment of a closed
shop. 5
On April 27, 1936, the executive committee of the Union, headed by
Ralph Stout, held a conference with McNett, the respondent's presi-
dent, at which they presented the proposed agreement to McNett.
btout stated the substance of the agreement to McNett. McNett read
the agreement, requested explanations of several articles, objected to
certain other articles, and concluded the conference with a statement
that he would "look over" the agreement generally. ' Before the com-
mittee departed Stout pointed out that the last provision in the agree-
ment called for a written reply to the secretary of the Union within
five days.
That evening or on the evening of April 28 McNett d-ove to the
town of Leavenworth where he consulted Robert B. Field, a large
stockholder in the respondent and a banker who served as the re-
spondent's financial agent, in respect of the proposed agreement.
McNett and Field decided that they would not accept the agreement.
On April 29, 1937, McNett called a meeting of all the employees
in the factory and 'sawmill at 4 P. M., including both the day and
night shifts. He told them that a committee from the "so-called"
union had presented him with a proposed agreement and that he
6 Board's Exhibit No. 55.
DECISIONS AND ORDERS 691
desired all the employees to hear his answer, which was final. He
then remarked that a large portion of the stock in the respondent
was held by widows and orphans, that the respondent had not paid
dividends since 1929, that by insisting upon collective bargaining
the employees would lose their individualism, that outside organizers
would control them, and that most of the men had been satisfied until
the advent of outside organizers. He also referred to various articles
in the proposed agreement and said that the respondent would in
no event accept them. He concluded his address with a statement that
the answer was final and advised the men to go home and discuss the
matter with their wives.
The executive committee and the union members generally con-
strued McNett's address as a flat refusal further to negotiate con-
cerning the proposed agreement. We find that the contents of the
address itself and the circumstance that it was made. to all the
employees and not merely to the representatives of the Union, as
collective bargaining in good faith would require, fully justified their
construction.
The respondent maintained that McNett acted under the impres-
sion that the proposed agreement called for a yes or no reply and
precluded further negotiations. The evidence is clear that such an
interpretation of the Union demands was wholly unjustifiable and
we find it difficult to conceive that the president of a business like
that of the respondent should construe the initial presentation of its
demands by the Union as anything other than a basis for negotiations.
The respondent also contended that it thought the Union at this
date was attempting to bargain for all its employees, including the
loggers. Only one article in the proposed agreement might have
tended to convey such an impression, but McNett on April 27 ques-
tioned Stout concerning the meaning of that article and was in-
formed that it had reference only to the employees in the lower end
railroad crew. All the remaining articles in the proposed agreement
related to the employees at the Omak plant. Moreover, the fact that
the Union's specification of the unit in its letter to respondent on
May 8, opening negotiations during the strike, elicited no comment
and in fact hardly attracted the respondent's attention confirms the
Union's assertion that McNett was under no misconception concern-
ing the unit which the Union was representing. We 'find that on
April 29, 1936, the respondent refused to bargain collectively with
the representatives of a majority of its employees in an appropriate
unit.
At the union meeting held on the night of May 2, a vast majority
of the members present again voted to confirm the demands contained
in the proposed agreement, to strike in support of them, and author-
ized the executive committee to act as a strike committee. The strike
692 NATIONAL LABOR RELATIONS BOARD
was called on May 4 and picketing commenced at that time. The.
plant closed down and remained closed until June 9, 1936, when
the respondent reopened it with the strike still continuing.
On May 8 the strike committee dispatched a letter to the respondent
specifying that the Union represented a majority of the employees
in the sawmill and factory and that the strike committee was willing
to meet with the respondent and negotiate." This letter was received
on the same day by McNett during a conference with Field, A. M_
Aston, the respondent's secretary, F. M. Roberts, the respondent's
attorney, and John Fitzgerald, an employers' labor relations advisor
called in by the respondent to assist it in its difficulties and who was
representing 40 other lumber concerns in the Northwest involved in
similar situations. Fitzgerald ,testified that at this conference he-
recommended that recognition be limited to recognition for the
union membership only, and that the officials of the respondent said
that "they would follow that". Accordingly, on the same day the-
respondent sent a reply that it was willing to negotiate with the
Union as the representative of its membership only, in the following
terms :
This company is willing, as in the past, to meet with any of
its employees either singly or in groups to discuss any matters
of mutual interest, such as hours, wages, and working condi-
tions. The Company has negotiated in the, past with committees
representing the union membership on our operation, and ex-
pects to continue to do this if such practice is the desire of those,
belonging to the union.'
On May 9, 1936, the strike committee met with McNett, Field; and
Aston. Various articles of the proposed agreement were discussed
and explained. The respondent objected to the closed shop provision
and the union committee agreed to discard it. The respondent then
objected to the word "sole" preceding the words "collective bargain-
ing agency." The respondent maintained this objection throughout
the entire negotiations and insisted upon granting merely recogni-
tion of the Union for its membership. The respondent also indi-
cated that it was unable to grant any increase in wages or accept
the Union's proposals as to hours and seniority. The respondent
asked the committee to condense its proposals. At the close of the,
conference, arrangements were made for another meeting on May 11.
At this second conference the respondent presented the committee
with five clauses," which were concerned only with recognition and
seniority. We shall set forth clauses 2 and 3 because they indicate
Board's Exhibit No. 59.
+ Board's Exhibit No. 65. The italics do not appear in the original document.
Board ' s Exhibit No . 71. The italics in the subsequent excerpts do not appear in the
original document.
DECISIONS AND ORDERS 693
the respondent's attitude toward recognition, from which it never
receded. Clause 2 reads:
The plant committee will be elected by ballot so that the com-
pany will be assured that the committee is the selected spokesman
and committee for the union membership. This plant committee
shall have authority from the union to settle with the manage-
ment all matters concerning individual complaints or grievances.
affecting members of the union. One member shall be selected
by the committee as chairman, who shall be the usual spokesman
for the committee.
Clause 3 reads :
In dealing with its union employees through their elected com-
mitteemen, the Company is accepting the fact that its employees.
may organize a union to bargain collectively; in return the Com-
pany expects to have the cooperation of the union membership
and the plant committee in promoting harmony and efficiency.
The committee departed from the conference to study the proposed
clauses. Stout marked his objections and proposed corrections on
the drafts of the clauses. His comments and corrections thereon
indicate that he detected and objected to the fact that the clauses
did not grant exclusive recognition as required by the Act. At a
conference held on May 14 Stout pointed out that the clauses did not
grant the recognition to which the Union was entitled. McNett
stated that he thought Stout dominated the Union and was not truly
representing the desires of the members. He indicated that the re-
spondent would present its story to all its employees in the local
newspaper.
In the May 15 issue of The Omak Chronicle there appeared a state-
ment by the respondent which revealed both its conception of the-
meaning of recognition and its view that the union committee was.
insisting upon exclusive recognition to the detriment not only of the
union members but also of all the inhabitants of Omak.9 Almost at
the commencement of its statement there appears the following:
At the last conference your Committee asked that the Company
set out what it would do in the way of recognizing the Union as an
agency of its members in the Company's employ. As far as we
can tell, the first interest of the Committee is in recognition. The-
company, as we have explained before in several conferences, has.
a number of serious problems which must be considered. We
believe our employees, those who are members of the union and
those who are not, and the people of Omale have other problems
which must be considered.
6 Board's Exhibit No. 72. The italics in the subsequent excerpts do not appear in the-
original document.
,694 NATIONAL LABOR RELATIONS BOARD
This excerpt clearly discloses the respondent's notion that recogni-
tion should relate only to the union membership, its declaration that
the Union was not asking for more than that, and its attempt to
circumvent the whole issue of recognition with assertions that there
were other and more pressing problems.
The respondent's statement concluded with the following para-
graph, in which it also brings home to its employees that the plant
might remain closed indefinitely:
The Company cannot plan, under present market conditions, to
start operations if further threats of strike and trouble are present.
At the same time, the Company will deal with a committee of the
Union for Union membership, which we understand is the
meaning of "recognition". However, under the present circum-
stances, due to the useless strike, the Company cannot plan to
resume operations until the men who might be required to operate
necessary departments or to ship stock have reported for work.
The Strike Committee and the Company, during a series of dis-
cussions, have come to a common understanding of how the Local
Union recognition could be worked out. But, before it can ap-
prove this, the Company must have some definite assurances
that this useless strike is behind both employers and employees
and that we can all work in the Future without such sudden,
unnecessary and costly interruptions. It is only fair to notify
all Union members that because of the financial condition of the
Company and the market situation there is not much inducement
for the Company to continue operations at this time.
On May 15 Charles W. Hope, Regional Director for the Nine-
teenth Region, arrived in Omak and held separate conferences with
the respondent and the Union. The respondent contended at the
hearing that Hope's visit stiffened the Union in their negotiations,
which the respondent claimed were progressing satisfactorily until
that time. The evidence fails to disclose that any particular prog-
ress had been made in the negotiations prior to Hope's arrival, other
than the discarding by the Union of its demand for a closed shop.
When the union committee met with the respondent on May 16, it
did not renew its closed shop demand. The committee asked the
respondent whether it would accept a provision whereby both parties
agreed to subscribe to the National Labor Relations Act. The re-
spondent refused, asserting that it was not subject to the Act. At
this conference or the one preceding it, the committee had indi-
cated that it might be willing to accept an eight-hour day and forty-
five-hour week and a five cent increase in wages, if its demands as
to recognition and other items were met. The conference on May
16, however, seems to have been devoted to a discussion of the Act
DECISIONS AND ORDERS 695
and nothing was accomplished. The conference closed with a request
by the respondent that the committee rewrite its demands in shorter
form.
The evidence is'quite clear that by May 16, the respondent had de-
cided that the union committee was not likely to yield without gain-
ing recognition as exclusive bargaining agency and something more
than was contained in the five hollow clauses offered by the respond-
ent on May 11. The respondent therefore determined to reopen its
plant by going ^ over the heads of the committee and dealing with
the union adherents individually-in short, to discard collective bar-
gaining as a means for settling the strike. On May 16 and 17, Fitz-
gerald; the' labor relations advisor, assisted the respondent in prepar-
ing a ballot.to"be sent employees to designate whether or not they
were willing to return to work at once on the basis of a statement
of the Company's policy with respect to Union members. Fitzgerald
aided in preparing both the accompanying literature which discred-
ited the strike committee and Hope, the Regional Director, and the
statement of the Company's policy, which consisted of substantially
the same five clauses presented to the committee on May 11, with the
addition of a sixth clause providing for an eight hour day and a 45
hour week, with time and a half for time over 4,5 hours per week."'
This material,was'printed by May 21 and received by the employees
on' May 25.
At a conference on May 18 the committee presented the respondent
with a redraft of- its demands, condensing its original 17 proposals
into seven articles- The chief proposals in this redraft were pro-
visions that both parties agree to subscribe to the National Labor
Relations Act,; that the respondent establish-an eight hour day with
a forty-five hour week if necessary to fill orders; and that the re-
spondent grant a five cent increase in wages. The respondent would
not accept, it and.'objected strongly to the chief provision relating
to recognition, and the provision for a five cent increase in wages.
On the front page of the May 19 issue of The Omak Chronicle
there appeared 'an advertisement by the respondent addressed to its
employees under the caption, "An Appeal to Our Employees"12 This
advertisement attempted to discredit 'the union committee and to
demoralize the strikers by instilling in them a distrust of their lead-
ers, a procedure quite inconsistent with the respondent's contention
that it was bargaining collectively in good faith. Several excerpts
from the respondent's advertisement will clearly disclose its technique
in seeking to avoid collective bargaining :
The Company feels that Mr. Stout is taking on considerable
responsibility when he undertakes to speak for the several hun-
10 Board's Exhibit No 77 A-E.
"Board's Exhibit No. 85.
12 Board's Exhibit No 75.
67573-38-vol. iv-45
696 NATIONAL LABOR RELATIONS BOARD
dred employees of the Company. The Company feels that it
has many loyal friends who will not sanction the decision Mr.
Stout has made. The Company believes that throughout this.
entire controversy, the rank and file of the men have not been
given a clear picture of the Company's position in the matter,
The Company believes that a great majority of the men feel that
the Company has stated its position truthfully and fairly. The,
Company feels that a minority are exerting an undue influence,
restricting hundreds of men from their rightful opportunity
to work, thereby dealing a serious blow to the entire com-
munity . . .
Are a few men tying up our plant and keeping hundreds from
work, or is the action, of the Strike Committee an expression of
the majority of our employees?
On May 21, 1937, the respondent paid the publisher of The Omak
Chronicle to issue a special edition of that paper, on the front page
of which appeared an advertisement addressed to the respondent's
employees, stating the terms to which the respondent would agree
to adhere, as embodied in its statement of "Company Policy for
Union Members" : '
(1) This Company will deal with a Plant Committee of not
less than three nor more than five employees for the, members
of the Sawmill and Timber Workers Union who are on the
Company payrolls at the time. Such Plant Committee members
must be American Citizens and have been in the employ of the
Company at least one year.
(2) The Plant Committee will be elected by ballot so the
Company will be assured that the Committee is the selected
spokesman and negotiator for the Union membership. This
Plant Committee shall have authority from the Union to settle
with the management all matters concerning individual com-
plaints or grievances affecting members of the Union. One
member shall be selected by the Committee as Chairman who
shall 'be the usual spokesman for the Committee.
(3) In dealing with its Union employees through their selected
Committeemen, the Company is accepting the 'fact that its em-
ployees may organize a Union to bargain collectively. In return,
the Company expects to have the cooperation of the Union mem-
bership and • the Plant Committee in promoting harmony and
efficiency.
(4) Some members of the crew may not wish to join the Union.
This is their right just as it is the right of those who do want to
join to' become members. Threats or intimidation to force indi-
viduals to become members who do not want to join will be a cause
DECISIONS AND ORDERS 697
for discharge by the management. During working hours no
member of the Union is to solicit any employee for Union mem-
bership.
(5) The Company retains the right to hire and discharge em-
ployees, but there will be no discrimination against any member
of the Union because of Union affiliation. The Company, as in
the past, will recognize the principle of seniority, but also must
recognize that efficiency and ability for the job by individuals is
the main consideration in production. In rehiring, it shall be the
policy of the Company to rehire from its list of employees laid off
by reason of work becoming slack, if such employees are immedi-
ately available, qualifications for the particular job considered.
The management will be the judge of ability and individual effi-
ciency on the plant.
(6) With.the exceptions below, the following holidays shall be
observed in the sawmill and factory : All Sundays, New Year's
Day, Memorial Day, July 4th, Labor Day, Armistice Day, Thanks-
giving Day, and Christmas Day : and all production work done, on
these days shall be considered as overtime and shall be paid for
at the rate of rate and one-half..The hours of labor in the saw-
mill and factory shall be as follows : Eight hours shall constitute
a day's work on production : The work week on production shall
be limited to 45 hours-all work on production in excess of 45
hours in any one calendar week shall be paid for at time-and-one-
half. On either production or shipping the Company will stagger
men or crews during the week in order to maintain, insofar as it is
practicable, the standard 45 hour week.
Other exceptions are as follows : Monthly employees, Engineers,
Firemen, Watchmen, men employed on maintenance or replace-
ment work, logging railroad and logging repair and maintenance,
crews, hauling and handling fuel to keep power plant operating.
In line with a long established custom of the industry, machine
tenders are to be on the job a few minutes in advance of the start-
ing whistle in order to see that everything is in readiness for pro-
duction; this is allowed for in their rates of pay.
It is an absolute impossibility for the Company to meet a
general increase in wages. However, we do feel that some wage
adjustments are in order and these will be made when the Com-
pany's financial condition permits.
Provided the men come back now, the Company is willing to
do all the things enumerated in the six numbered paragraphs
above, and, in addition, is willing to place each and every man
on the same job as he was performing on Friday, May 1st, if
i
698 NATIONAL LABOR RELATIONS BOARD
it has sufficient business left to furnish the same men employ-
ment at that time.
We ask that every employee make an effort to learn the
true facts and then decide in his own mind whether or not he
wishes,to return to work.13
This document reveals clearly and significantly that the' respond-
ent would not grant the Union recognition as the exclusive bargain-
ing agency of its employees in an appropriate bargaining unit.
The Union committee met in conference with the respondent on
May 21, at which the respondent's advertisement was discussed. In
answer to a question by Stout, McNett said he would sign no con-
tract with the Union, not even one embodying the respondent's state-
ment of policy. McNett requested that the committee allow the union
members to vote on the respondent's statement of policy. At the
union meeting on the following evening the committee brought the
matter before the members, but opposition was so great that it could
not reach a vote.
Realizing that the situation had become crucial, the Committee
prepared a redraft of its demands, making all 'the concessions which
it felt that it could make.14 This redraft follows the respondent's
statement of policy on such -points as were acceptable to. the com-
mittee. It accepted the 45-hour week on the condition that it should
apply only when necessary to fill orders, and provided for time and
one-half for overtime in all departments and not merely production
work. It provided for a five cent hourly increase in wages. The
first sentence of the first article reads : - -
The party of the first part recognizes the party of the second
part as the collective bargaining agency.
The word "sole" appearing in the origilial proposed agreement had
been' dropped. Stout testified that "sole" was omitted to avoid the
respondent's persistent objection to it, but that the committee did
not thereby intend to surrender its claim for recognition-as the ex-
clusive bargaining agency, as it considered that the words "the collec-
tive bargaining agency" signified the same. While the: evidenee is
somewhat confusing on this point, it is still reasonably convincing
that, in omitting the word "sole" the committee's intention accorded
with Stout's explanation at the hearing.
The committee presented this final redraft to the respondent at a
conference on May 23. The respondent said that it was still objec-
tionable and requested until, May 26 before giving a, definite answer.
"Board's Exhibit No. 73.
14 Board's Exhibit No. 74. The "Statement of Executive Committee" attached to the
tredraft of the Union 's demands was not presented to the respondent until May 26, 1936.
DECISIONS AND ORDERS 699'
On May 25 the respondent's employees received letters from the
respondent containing a statement of the respondent's policy as it
appeared in the May 21 issue of The Omak Chronicle, a ballot on
-which to indicate whether or not they desired to return to work on
the basis of the statement of policy, a stamped envelope addressed
to the respondent in which to return the ballot to the respondent, and
a form letter.15 This latter document sought to place the blame for
the failure to arrive at a settlement upon the strike committee, out-
side union officials, and the Board's Regional Director. As previ-
ously indicated preparation of the ballot and its accompanying liter-
ature had commenced at least as early as May 16.
The strike committee conferred again with the respondent on May
26. The respondent presented the committee with a copy of the
statement of its company policy, similar to that which had appeared
in the advertisement of the May 21 issue of The Omak Chronicle.
The committee stated that there was nothing further to negotiate
if the respondent had only its statement of policy to offer. 'Stout
asked McNett if he would sign the respondent's statement of policy
with the view of combining it with the committee's final redraft.
McNett answered that he would not sign anything. The committee
then presented McNett with a written statement that if the respond-
ent would not offer more than its statement of policy there was nothing
further to negotiate."" Negotiations thus ceased on May 26.
At a meeting of the Union held on May 25 it had been decided that
all the respondent's ballots received by union members should be
turned over to the strike committee instead of being mailed to the
respondent. Union officials testified that over 200 such ballots were
turned over to the strike committee. The respondent then had a new
batch of ballots printed, and instructed certain of its foremen and
supervisory officials to visit the employees who had not returned their
ballots to the respondent. The foremen solicited the employees at
their homes and on the streets to sign the ballots, in many cases ex-
plaining that voting in favor of returning to work at once, as stated
in the ballot, did not mean what it said, but that employees could
return at any time. In this way a number of employees who would
not consent to cross the picket line were induced to sign the ballot
and vote in favor of returning to work. This was done pursuant to
the respondent's plan to go over the heads of the representatives of
the union, to destroy collective bargaining and at the same time, by
announcing in the newspapers that a majority of its employees had
voted to return to work at once '17 mold public opinion in favor of
"Board ' s Exhibit No. 77 A-E.
16 Respondent 's Exhibit No. 84.
17 Board's Exhibits Nos. 86 and 79, May 26 and June 9 Issues of The Omak Chronicle,
respectively.
700 NATIONAL LABOR RELATIONS BOARD
reopening the respondent's plant on the basis of the respondent's
statement of policy.
On May 26 the respondent commenced the erection of a fence
around its property and at about the same time started arrange-
ments for opening its plants. Early in June the businessmen in Omak
and vicinity in a signed resolution indicated their desire to support
the respondent in reopening its plant. On June 9 the plant was re-
opened with a small number of men returning to work, crossing the
picket lines in caravans of cars. In the June 12 issue of The Omak
Chronicle there appeared an advertisement by the respondent that
the jobs of employees who had not returned to work by June 15
would be declared vacant and that the respondent would feel free to
fill their positions with new men.'8 A number of members and ad-
herents of the union returned to work by the deadline. After June
15 the respondent filled the jobs with new men and such union men
as returned to work from time to time. The bulk of the strikers had
not returned to work at the time of the hearing. The strike and the
picketing of the respondent's plant for 24 hours daily had continued
unabated until the time of the hearing.
Conclusions
An examination of the extensive documentary evidence and the
many hundreds of pages of oral testimony clearly reveals the follow-
ing facts :
1. That on April 29, 1936, the respondent refused to bargain collec-
tively with the Union.
2. That the above refusal to bargain collectively precipitated the
strike called on May 4, 1936, which had continued unabated at the
time of the hearing.
3. (a) That throughout the negotiations which took place during
the period from May 9, 1936, to May 26, 1936, the respondent delib-
erately and steadfastly refused to recognize or deal with the Union
as the exclusive bargaining agency of the respondent's employees
in the appropriate unit. (b) That such refusal by the respondent
was a primary factor in the prolongation of the strike.
4. That the respondent refused to bargain collectively in good faith
with the Union. This is clearly disclosed in the respondent's readi-
ness to destroy collective bargaining by going over the heads of
the strike committee and dealing directly with the individual
employees.
We find, therefore, that on April 29, 1936, and at all times there-
after, the respondent has refused to bargain collectively with the
Union as the representative of its employees in respect to rates of
11 Board's Exhibit No. 80. - ec _
DECISIONS AND ORDERS 701
pay, wages, hours of employment, and other conditions of employ-
ment.
We find that the respondent, by the acts above set forth, has inter-
fered with, restrained, and coerced its employees in the exercise of
their rights to self-organization, to form, join, or assist labor organ-
izations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of
.collective bargaining and other mutual aid and protection as guar-
anteed in Section 7 of the Act.
C. The alleged discriminatory discharges
1. The alleged discharge of 332 employees
The complaint, as amended, alleged that on June 15, 1936, the re-
spondent discriminatorily discharged, and thereafter refused to rein-
state, 332 named employees. The evidence adduced in support of this
allegation shows that the respondent, in its efforts to induce its em-
ployees to return to work after the plant had been reopened on June 9,
inserted in the June 12 issue of The Omak Chronicle an advertisement
containing the following notice to its employees :
All former employees of Biles-Coleman Lumber Co. who were
working May 1st will have to report to their foremen by 7:00
A. M. June 15, 1936.
After this date their jobs will be declared vacant and the Com-
pany will feel free to fill their positions with new men.19
It was the contention of counsel for the Board that all striking em-
ployees who failed to return to work on June 15, 1936, were thus
-automatically discharged on that date. We are unable to accept that
view. It is clear that, under the circumstances of this case, the re-
spondent issued the notice only as a threat of the loss of jobs for
the purpose of demoralizing the union membership in pursuance of
the respondent's unlawful refusal to bargain collectively with the
Union. The evidence reveals that the respondent intended the notice
only as a threat and that it was so construed by the striking employees.
The record shows that striking employees, both those who had desig-
nated the Union as their representative and those who had not, who
applied for work during the period from June 15, 1936, to the date of
the hearing were. reinstated. We are unable to find that the notice
coupled with the failure of the 332 employees named in the complaint,
as amended, to return to work on June 15 constituted a discriminatory
discharge of such persons in violation of the provisions of Section
8 (3) of the Act.
The allegations of the complaint, as amended, with respect to the
discharge of the 332 employees named therein are hereby dismissed.
"Board's Exhibit No. 80.
702 NATIONAL LABOR RELATIONS BOARD
2. Hawes and Lacy
The complaint, as amended, alleged and the answer denied that on
October 25, 1935, the respondent discriminatorily discharged, and
thereafter refused to reinstate, E. E. Hawes and Howard Lacy. We
will first narrate separately the history of employment with the re-
spondent and the union activity of each of the men, and then discuss,
their discharges together.
Hawes. Hawes began work at the respondent's Omak plant'in 1929
as a lumber piler at the "green end" of a chain device upon which
lumber was carried. He continued in this position until the date of
his alleged discriminatory discharge. He was a competent workman
and his work was considered satisfactory by his foreman.
In the latter part of July 1934, Bob Smith, Hawes' foreman, in
distributing the pay checks, handed Hawes and the other employees
an antiunion pamphlet entitled "Labor and Rackets. 1120 Although
Hawes regarded this as a warning not to join the Union, he neverthe-
less became a member of the Union on August 10, 1934. Hawes did not
become especially active in the Union until July 1935 when Union
membership was beginning to dwindle after the Union's failure to
secure the reinstatement of Mortemeyer. During the period from July
1935 to October 25, 1935, the date of his alleged discharge, Hawes
frequently spoke from the floor at union meetings, stressing the neces-
sity for action to halt the falling off of membership and attendance at
union meetings. On July 10, 1935, Hawes was appointed to a com-
mittee which solicited the business men in Omak to display union
cards in their places of business. In general, the committee was un-
successful in this venture. On August 3, 1935, Hawes was nominated
for vice-president of the Union, but was defeated in the election.
As Hawes was politically active in Omak, he was appointed on Oc-
tober 16, 1935, to sound out the views on labor entertained by the can-
didates for mayor. He made a report to the Union on this matter
on October 23, 1935, at which time he was appointed to a committee
for the collection of delinquent dues. Two days later he was laid off.
Lacy. Lacy began work at the respondent's Omak plant in De-
cember 1925 as a "chain puller". Three months later he became a
lumber piler at the "green end" of the chain, in which capacity he con-
tinued until July 1934 when he was discharged. Subsequently the
Regional Labor Board of the old National Labor Relations Board
found that the respondent had discharged Lacy for union activity and
ordered the respondent to'reinstate him with back pay. The respond-
ent reinstated Lacy in November 1934. He then continued as a lum-
ber piler at the "green end" until October 24, 1935, when he was laid
off. Lacy was a competent workman and his work was considered sat-
isfactory by his foreman.
20 Board's Exhibit No. 61.
DECISIONS AND ORDERS 703
Lacy was a charter member and charter recording secretary of the
Union, having joined the Union in- May 1934. In April 1935 Lacy
was a member of a committee which presented to the respondent a
proposed agreement concerning wages and hours similar to the agree-
ments presented at that time to all the lumber companies in the
Northwest . In the latter part of June 1935 Lacy served on a . com-
mittee which . conferred with officials of the respondent concerning
the discharge of Mortemeyer . On August 10, 1935 , Lacy resigned as
recording secretary.
Their discharges . On October 24 and 25 , 1935 , Lacy and Hawes,
respectively , were laid off . Their foreman, Bob Smith , told them
that their layoff was caused by the recent installation of a resaw
and automatic stacker which had reduced the amount of work to
be performed by the men . The evidence reveals that a resaw and
automatic stacker had been installed within approximately a week
prior to the discharge of Hawes and Lacy and that the amount of
the work was thereby reduced , with the consequence that it was
necessary to lay off a number of the regular pilers . The respondent
laid off another regular piler, who was not a union member, along
with Hawes and Lacy. In fact, it appeared that almost all the
regular pilers at the "green end", among whom was the president
of the Union , belonged to the Union at this time , so that the re-
spondent could ' hardly . avoid laying off Union members in reducing
its force of regular pilers. Counsel for the Board attempted to prove
that pilers with less seniority than Hawes and Lacy were retained,
but was unsuccessful . The respondent showed that prior to the
latter part of 1933 or the early part of 1934, the piling was performed
for the respondent by independent contractors who hired their own
pilers. In 1933 or early in 1934 the respondent itself took over the
work of piling and retained the pilers who had been in the employ
of the independent contractors . Computing seniority only for the
period during which the pilers were in the respondent's employ,
Hawes and Lacy did not enjoy seniority over any of the pilers at
the "green end". It was shown that some of the pilers retained at
the "dry end" of the chain had less seniority than Hawes and Lacy,
but the respondent proved that those employees were Indians, whom
the respondent was under an obligation to retain in its employ under
the terms of its agreement with the Federal Government for the
logging of timber in the Colville Indian Reservation . Moreover,
Hawes admitted that when it was necessary temporarily to shift
pilers from the "green end" to assist the pilers at the "dry end" he
had requested his foreman not to send him to the "dry end" as he
disliked the work at the "dry end".
The respondent , also maintained that it had not discharged Hawes
and Lacy, but had merely laid them off, promising them work when-
704 NATIONAL LABOR RELATIONS BOARD
ever it should be available. The evidence shows that Hawes was
reemployed in November 1935 to pile lumber on the lower chain
and worked steadily until April 9, 1936, when he was again laid off
as the work slackened. While piling lumber on the lower chain
Hawes received an hourly wage of 59 cents, the same wage he had
received on the green chain, even though piling on the lower chain
was generally classified at about 40 cents an hour. After he was
laid off in October 1935 Lacy went to work on the Grand Coulee
Dam. It is clear, however, that if he had remained in Omak he
would have received the same amount of work as Hawes.
Although Hawes and Lacy were competent workmen and active
Union men, the evidence gives rise to a substantial doubt as to
whether they were discharged for Union activity.
The allegations of the complaint with respect to the discharges
of E. E. Hawes and Howard Lacy are hereby dismissed.
D. Interference, restraint, and coercion
The first eight numbered allegations of Paragraph XIII of the
Complaint, as amended, set forth specific acts or series of acts com-
mitted by the respondent in violation of Section 8 (1) of the Act.
Since the evidence introduced at the hearing sustains only the alle-
gations setting forth acts which we have found above were com-
mitted by the respondent as part of its unlawful conduct in refusing
and continuing to refuse to bargain collectively with the Union, we
will dismiss the other allegations.
The first eight numbered allegations of Paragraph XIII of the
Complaint, as amended, are hereby dismissed in so far as they set
forth acts other than those which we have found in Subsection B
of Section III above were committed by the respondent as part of
its unlawful conduct in refusing and continuing to refuse to bargain
collectively with the Union.
E. Respondent's defense to the reinstatement of certain employees
The respondent's answer, as amended, alleged that, in the event
that the Board ordered the reinstatement of the striking employees,
certain named employees should be excluded from the order of
reinstatement for the reason that they had been convicted of certain
offenses growing out of the strike. It was shown that six striking
employees had been charged by the police with throwing rocks at
the house of an employee who had returned to work after the
respondent reopened its plant. On being given assurance that they
would receive a suspended sentence, they pleaded guilty to the charge.
The employee at whose house the rocks were allegedly thrown testi-
fied that he was listening to the radio at the time and then proceeded
to state the exact locations on the lawn on which- he heard-the rocks
DECISIONS AND ORDERS 705
fall. Although one of the men admitted having thrown a stone
at the house, in view of the acts of violence, described below, com-
mitted by the respondent, we do not consider that the circumstances
of the incident, the subsequent plea of guilty, and the suspended
sentence are of sufficient gravity to warrant the exclusion of these
employees from our order of reinstatement.
It was also shown that three striking employees were sentenced
collectively to a fine of $100 and costs on a charge of placing nails
along a highway used by trucks engaged in the respondent's log-
ging operations. The officer who made the arrest testified that it
was made under the following circumstances : The police received a
telephone call from an unidentified person who stated that nails
had been found placed along a portion of a highway in the woods and
requested the police to arrest any persons found in that vicinity.
The police found the three striking employees riding in an auto-
mobile in the vicinity. This was the sole ground for the arrest. Na
nails or tools were found in the car and the men protested their
innocence. It was shown that the three employees had, earlier in
the day, received permission from the civic authorities to gather wood
in that vicinity for the use of the striking employees. It was known
in Omak that they had secured such permission. Under such circum-
stances, it is not an unreasonable inference that the telephone call
may have originated from sources inimical to the Union and desirous
of injuring its members. Moreover, it does not appear that any
particular damage was done to the trucks. In view of the acts of
violence committed by the respondent, described below, we do not
deem the circumstances surrounding this entire incident warrant the
exclusion of these employees from our order of reinstatement.
We are less hesitant in denying the respondent's request to ex-
clude the foregoing men from our order of reinstatement in view of
the fact that the respondent's own president was convicted of assault
and fined $1.00 and costs as a result of his activities in the strike.
On the morning of July 2, 1936, the respondent's president assaulted
one of the Union's pickets, thereby causing a fight between a num-
ber of the pickets and a larger number of men who were at that
time working for the respondent and had congregated at the en-
trance to the plant in order to watch the pickets move their tents.
In view of this incident the respondent can hardly make its prayer
for the exclusion of particular employees from our order of rein-
statement in good countenance.
IV. EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and sub-
706 NATIONAL LABOR RELATIONS BOARD
stantial relation to trade, traffic, and commerce among the several
States, and have led and tend to lead to labor disputes burdening
and obstructing commerce and,the free flow of commerce.
V. THE REMEDY
We have found that the respondent's employees at its Omak plant
went out on strike on May 4, 1936, because of the respondent's re-
fusal to bargain collectively with the Union. We have also found
that the strike was prolonged by the respondent's refusal to bar-
gain collectively with the Union after its employees went out on
strike. Since the strikers ceased work and have remained out of
work as a consequence of, and in connection with a current labor
dispute, and because of the respondent's unfair labor practices, those
strikers,who have not obtained any other regular and substantially
equivalent employment have been employees of the respondent since
the date on which they went on strike, and still are employees of the
respondent, within the meaning of Section 2 (3) of the Act. After
the respondent reopened its plant on June 9, 1936, it employed a
number of individuals who were not so employed on May 2, 1936, the
last working day before the strike on May 4, 1936. The respondent is
under a duty to reinstate its striking employees i o their former posi-
tions and to restore the status quo existing prior to the strike.
Therefore, we shall order the respondent to offer to those employees
who went out on strike on May 4, 1936, and thereafter, and who
have not obtained regular and substantially equivalent employment,
immediate and full reinstatement to their former positions, with-
out prejudice to their seniority and other rights or privileges, dis-
missing if necessary employees hired after May 4, 1936; and place
those for whom work is not available on a preferred list to be offered
employment as it arises on the basis of seniority by classifications
before any other persons are hired.
Among the employees who are still out on strike are two of the
respondent's foremen, Philip G. Welter and Harry Perry. Both
men returned to their jobs when the plant reopened on June 9, 1936,
upon the respondent's assurance that a majority of the striking em-
ployees were returning to work. When it had become apparent that
most of the striking employees were not returning to work, the two
foremen, shortly after July 2, 1936, went out on strike and joined
the Union. Since they joined the other employees in a strike caused
by the respondent's unlawful conduct, we shall order the respondent
also to reinstate them to their former positions.
Our order will also provide that employees whose application for
reinstatement is refused by the respondent in violation of our order
herein shall be entitled to back pay accruing from the date of the
DECISIONS AND ORDERS 707
refusal of the application to the date of reinstatement, less any
amount earned during that period.'!
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following conclusions
of law :
1. Carpenters' Union No. 2570 of Omak, Washington, Lumber and
Sawmill Workers is a labor organization, within' the meaning of
Section 2 (5) of the Act.
2. The strike of the employees is a labor dispute, within the mean-
ing of Section 2 (9) of they Act.
3. The employees, inchiding Philip G. Welter and Harry Perry,
who went out on strike on May 4, 1936, and thereafter; are employees
of the respondent, within the meaning of Section 2' (3) ' of 'the Act;
4. All the respondent's employees in the sawmill, factory, power-
house, kilns, yards,' and lower end section railroad crew, excluding
all the employees 'in the woods, supervisory officials, foremen, sales-
men, clerical' and office employees, watchmen, and janitors, constitute
a unit appropriate for the pur'pose's of collective 'bargaining, within
the meaning of Section 9 (b) of the Act. " ' '
5. By virtue 'of Section 9 (a) of the Act, Carpenters', Union No.
2570 of Omak, Washington, Lumber and Sawmill, Workers,'having
been selected as their representative by a majority' of the employees
in an appropriate' unit;'was'on April 29, 1936, and at all times there-
after has' been, the exclusive representative of all 'the 'employees in
such unit for the purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, and other conditions of
employment:
. '
1 1 ' ' ,
6. The respondent; by refusing to bargain collectively' with Car-
penters' Union No'. 2570 of 'Omak, Washington, Lumbe'r' and Saw-
mill Workers as the exclusive representative of its employees in the
appropriate' unit, has 'engaged in,and is engaging in' unfair` labor
practices, within the meaning of Section 8 (5) of tlie` Act:
7. The respondent, by interfering with, restraining', and 'coercing
its employees in the exercise of the rights guaranteed ' iri Section
7 of the Act, has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (1) of the Act:
8.' The respondent has not engaged in an unfair ' labor practice
within the meaning of Section 8 (3) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6)' and (7) of
the Act.
2' Matter of Oregon Worsted Company and United Textile workers of,'America, Local'
2435, 3 N. L. R. B.
2435, 3 N. L. R. B. 36.
708 NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that Biles-
Coleman Lumber Company, its officers, agents, successors, and assigns
shall :
1. Cease and desist from refusing to bargain collectively with
Carpenters' Union No. 2570 of Omak, Washington, Lumber and
Sawmill Workers as the exclusive representative of all its employees
in its sawmill, factory, powerhouse, kilns, yards, and lower end
section railroad crew, excluding all the employees in the woods,
supervisory officials, foremen, salesmen , clerical and office employees,
watchmen, and janitors;
2. Cease and desist from interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid and protection, as guaranteed in Section 7 of the National
Labor Relations Act.
3. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
a. Upon application, offer to those employees, including Philip G.
Welter and Harry Perry, who went out on strike on May 4, 1936, and
thereafter, and who have not obtained regular and substantially
equivalent employment, immediate and full reinstatement to their
former positions, without prejudice to their seniority or other rights
or privileges, dismissing if necessary employees hired after May 4,
1936; and place those for whom work is not available on a preferred
list to be offered employment as it arises on the basis of seniority by
classifications before any other persons are hired;
b. Make whole all employees, including Philip G. Welter and Harry
Perry, who went out on strike on May 4, 1936, and. thereafter, for any
losses they may suffer by reason of any refusal of their application
for reinstatement in accordance with paragraph 3-a herein, by pay-
ment to each of them, respectively, of a sum equal to that which each
of them would normally have earned as wages during the period from
the date of any such refusal of their application to the date of rein-
statement, less the amount, if any, which each, respectively, earned
during said period;
c. Upon request, bargain collectively with Carpenters' Union No.
2570 of Omak, Washington, Lumber and Sawmill Workers, as the
exclusive representative of all its employees in its sawmill, factory,
powerhouse, kilns, yards, and lower end section railroad crew, ex-
DECISIONS AND ORDERS 709
cluding all the employees in the woods, supervisory officials, foremen,
salesmen, clerical and office employees, watchmen, and janitors, in
respect to rates of pay, wages, hours of employment, and other condi-
tions of employment;
, d.,Post immediately notices to its employees in conspicuous places
throughout its place of business, stating that the respondent will cease
and desist in the manner aforesaid, and maintain such notices for a
period of at least thirty (30) consecutive days from the date of
posting ;
e. Notify the Regional Director for the Nineteenth Region within
ten (10) days from the date of this order what steps the respondent
has taken to comply herewith.
And it is further ordered that the complaint be, and it hereby
is, dismissed, with respect to the discharge of 332 named persons and
E. E. Hawes and Howard Lacy, and insofar as it alleges that the re-
spondent has committed specific acts in violation of Section 8 (1) of
the Act which have not been sustained in this decision.