Cape Arago Lumber Co.

National Labor Relations Board - Board Decisions

Jul 18, 1946

69 N.L.R.B. 572 (N.L.R.B. 1946)

In the Matter of CAPE ARAGO LUMBER COMPANY and INTERNATIONAL
WOODWORKERS OF AMERICA, LOCAL 116, CIO
Case No. 19 C-1365.-Decided July 18, 1946
Mr. Erwin A . Peterson , for the Board.
Mr. George Browvn, of Portland, Oreg., and Mr. Marvin Berge, of
North Bend, Oreg., for the CIO.
Mr. Ralph T. Moore, of Coos Bay, Oreg. , for the respondent.
Mr. J. W . Mclnturff, of Coos Bay, Oreg., for Local 2573.
Mr. Nathan Saks, of counsel to the Board.
DECISION
AND
ORDER
On December 12, 1945, Trial Examiner Thomas S. Wilson issued
his Intermediate Report in the above-entitled proceeding, finding
that the respondent had engaged in and was engaging in certain un-
fair labor practices, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in a copy of
the Intermediate Report attached hereto. Thereafter, Lumber and
Sawmill Workers, Local Union No. 2573, filed exceptions to the Inter-
mediate Report and a supporting brief; no exceptions were filed by
the respondent.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rules are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modifications and addi-
tions hereinafter set forth.
1. The Trial Examiner found that the closed-shop contract between
the respondent and Local 2573, which was in effect from March 15,
1944, to March 15, 1945, was not renewed either automatically by its
terms, or in any other manner, for the succeeding year. The Trial
Examiner, therefore, found that the contract, under which the re-
69 N. L. R. B., No. 73.
572
CAPE ARAGO LUMBER COMPANY 573
spondent attempted to justify the discharges here involved, termi-
nated as of March 15, 1945, and accordingly, that by its discharges
of Max Leneve and Frank Phillips on March 21, 1945, and Jack
Krieschel and C. B. Wilson on March 22, 1945, the respondent dis-
criminated in regard to the tenure and the terms and conditions of
their employment, thereby discouraging membership in the CIO in
violation of Section 8 (3) of the Act.
In concluding that the contract did not automatically renew, the
Trial Examiner confined his reasons therefor to a finding that the
requests for revisions of articles in the contract made by Local 2573
on June 27, 1944, and by the respondent on July 22, 1944, were re-
quests in writing to the other party to the contract for termination
of or changes in the agreement made 60 days prior to its termination
date, and by the terms of its termination clause, such action pre-
vented the agreement from automatically renewing itself. In ef-
fect, therefore, the Trial Examiner based his finding that the con-
tract did not automatically renew on the ground that, since such
requests for revision represented technical compliance with the termi-
nation clause of the contract, they prevented automatic renewal under
the terms of that clause. Local 2573 in its brief contends in substance,
however, that although the requests for revisions by it on June 27,
1944, and by the respondent on July 22, 1944, may have represented
technical compliance with the termination clause of the contract,
both requests having been made 60 days prior to the anniversary date
of the contract, such requests for revisions also represented technical
compliance with the modification clause of the contract, both having
been written notices of a desire to revise the contract given 30 days
in advance of such contemplated changes, and that the parties in-
tended these requests for revisions to be operative only under the
modification clause, which would not have prevented the automatic
renewal of the contract.
We do not agree that such was the intent of the parties. We are
convinced that the entire course of conduct by both parties to the
contract from April 1944 through February 1945, displays a con-
tinuing and almost uninterrupted intent to terminate the contract
on or before March 15, 1945; that their requests for revisions of the
contract in June and July 1944, were merely parts of that course of
conduct and directed to the same end; and that the action taken by
the respondent subsequent to March 15, 1945, indicates a belief on the
part of the respondent at least that the contract had terminated on
March 15, 1945. Thus, from April 1944 to May 18, 1944, the parties
attempted unsuccessfully to replace their individual contract with an
area-wide agreement. After the negotiations for an area-wide agree-
ment had broken off, the parties made the requests for revisions in
question in June and July 1944, and pursuant thereto, attempted
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without success in August 19441 to negotiate changes in 17 out of
21 clauses in their individual contract.2 From September 1944
through February 1945, the parties again held negotiations to re-
place their individual contract with an area-wide agreement. An
area-wide agreement was in fact tentatively agreed upon between
the various unions and the member companies of the Association,
including Local 2573 and the respondent, in September 1944. How-
ever, before the agreement was executed, the unions made. further
demands, requiring a reopening of negotiations on February 21, 1945.
The resulting area-wide agreement was actually executed by all the
unions including Local 2573, and all the member companies of the
Association, except the respondent, on March 26, 1945. It was not
until March 16, 1945, which was after the expiration of the indi-
vidual contract, that Local 2573, for the first time since the various
negotiations had begun, expressed an intention to continue under that
old agreement and not to enter into an area-wide agreement insofar
as its contractual relations with the respondent were concerned ; and
it was not until March 19, 1945, that the respondent expressed a simi-
lar intention.3
Moreover, the record indicates that the respondent and the Associa-
tion both considered the individual contract as having already termi-
nated on March 15, 1945, and the respondent's mere expression on
March 19 of its intention to continue under that agreement as insuf-
ficient to restore it. This is borne out by the fact that on March 26,
1945, when the respondent sought the Association's advice as to what
the respondent should do in view of the filing with the Board of a peti-
tion for certification as bargaining agent by the CIO, it was advised
by Card, the secretary-manager of the Association, not to sign another
contract with Local 2573 until after the representation question had
"It is not stated by the Trial Examiner , but the evidence shows that the two negotia-
tion meetings between the respondent and Local 2573 pursuant to the requests for revisions
made in June and July were held on August 4 and about August 18.
2 As stated by the Trial Examiner , however, the action of E. H. Card, secretary -manager
of the Oregon Coast Operators Association , the employer association in which the respond-
ent is a member , and which handles labor relations on behalf of the respondent and a
number of other employers in the district in the same industry , in sending on behalf of
the respondent the request of July 22, 1944, to Local 2573 requesting revision of 15
articles in their individual agreement , was deliberately and concededly taken after full
consultation with the respondent and other members of the Association for the purpose
of "forcing" Local 2573 into negotiating a uniform area -wide agreement with the operators
and other locals in the district . Similar letters were sent by Card on behalf of other
operators in the Association for the same purpose. We are of the opinion, therefore, that
although the respondent 's request for revision of the individual contract was alleged to
be for the purpose of revising that contract, its real purpose was thereby to force Local
2573 into negotiating an area-wide agreement which was intended to replace the agreements
then existing at the individual operations . In the light of such purpose , it is obvious
that the respondent ' s request for revision in the individual contract on July 22, 1944,
actually represented a continuation of its preexisting intent to terminate that contract
on or before its next anniversary date, and not merely an intent to modify it.
3 And, as found by the Trial Examiner , there is no evidence that such intention , although
expressed, was ever communicated by either party to the contract to the other.
CAPE ARAGO LUMBER COMPANY 575
been settled by the Board. This advice was accepted by the respond-
ent without question. Clearly this indicates a belief on the part of
both the Association and the respondent, that the contract had termi-
nated on March 15, 1945, and that a new agreement by the parties was
required to reestablish contractual relationship.
We are of the opinion, therefore, that although the requests for
revisions in the contract by Local 2573 and the respondent in June and
July 1944, absent other circumstances, could possibly be construed as
having been made pursuant either to the modification clause or the
termination clause of the contract, there having been technical com-
pliance with both clauses, the entire course of conduct by the parties,
up to and after March 15, 1945, including the action of the respondent
on March 26, 1945, indicates that they intended these requests for revi-
sions to be operative under the termination clause of the contract.'
Moreover, we have held, in cases involving contracts with similar
modification and termination clauses where similar action was taken
by the parties thereto, that requests for substantial modification of
such a contract, followed by negotiations thereon, evidences an inten-
tion to terminate the contract rather than merely to modify it.' We
have so held, even where, unlike the instant case, the request is specifi-
cally stated to be only under the modification rather than the termi-
nation clause of the contract.' In the instant case, where the parties
between them have requested revision of 17 out of a total of 21 clauses
in their contract, including the closed-shop clause, they have obviously
made requests for substantial modification of the contract. Such re-
quests were followed by the two negotiation meetings thereon in
August 1944. Accordingly, we consider the negotiations for substan-
tial modification of the contract as further evidence that the parties
intended the requests for revisions in question to be operative under
the termination clause of the contract.
We find, therefore, that the requests for revisions in their contract
by Local 2573 on June 27, 1944, and by the respondent on July 22, 1944,
were, contrary to the contention of Local 2573, intended by the parties
to be operative under the termination clause of the contract, and, ac-
cordingly, that under the terms of that clause the contract terminated
on March 15, 1945.
We find further, that regardless of whether the parties may have
intended the June-July 1944 requests for revisions to be under the
° We do not consider the fact that the requests for revisions were made considerably in
advance of " sixty (60) days prior to expiration " as having been made at an illogical time
under the termination clause when viewed in the light of the other action taken both
prior and subsequent thereto to terminate the contract in favor of an area -wide agree-
ment , and in the light of our conclusion that the requests for revisions had the same under-
lying purpose.
See Matter of Great Bear Logging Company, 59 N. L. R. B. 701.
See Matter of Heat Transfer Products, Ine., 63 N. L. R. B. 1124.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
modification clause of the contract, the provisions of the termination
clause were such as to prevent an automatic renewal of the contract.
The termination clause provides for automatic renewal, absent request
in writing either for (1) "changes," or (2) "termination." The
written requests for revision made in June-July 1944 were obviously
requests for "changes" in the contract. They had a continuing
vitality because negotiations for a substitute agreement were still in
process on January 15, the automatic renewal date. Inasmuch as
a written request for "changes" was still outstanding on the automatic
renewal date, the provisions of the termination clause preclude an
automatic renewal of the contract regardless of the state of mind of
the parties.
2. In footnote 11 of that Section of the Intermediate Report en-
titled "The remedy," the Trial Examiner pointed out that there was
some testimony indicating that offers of reinstatement had been made
to and rejected by certain members of the "green chain gang," but
that the record was not sufficiently clear to make definitive findings
thereon. He made the observation that if, in fact, certain of these
employees did receive and reject offers of reinstatement by the respond-
ent subsequent to March 22, 1945, they would be entitled to back pay
only to the date such offers were made. In the absence of facts
showing the full circumstances surrounding the making of these
alleged offers of reinstatement, and the rejections thereof, we do
not deem it necessary or proper to attempt to lay down any principle
regarding the effect which such offers and rejections would have on
the back pay ordered herein.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Cape Arago Lumber Com-
pany, Empire, Oregon, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in International Woodworkers of
America, Local 116, CIO, or any other labor organization of its em-
ployees, or encouraging membership in Lumber and Sawmill Workers,
Local Union No. 2573, A. F. L., or any other labor organization of
its employees, by discharging or refusing to reinstate any of its em-
ployees or by discriminating in any other manner in regard to their
hire or tenure of employment or any term or condition of their
employment;
CAPE ARAGO LUMBER COMPANY 577
(b) By any like or related act or conduct interfering with, re-
straining, or coercing its employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist Inter-
national Woodworkers of America, Local 116, CIO, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Max Leneve, Frank Phillips, Jack Krieschel, C. B.
Wilson, and Marshall Rybin, Clyde Kuhn, Hawley Catfish, Marion
Nicholas, Ray A. Muetchler, and Wilfred D. Horton, immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and
privileges;
(b) Make Max Leneve, Frank Phillips, Jack Krieschel, C. B. Wil-
son, Marshall Rybin, Clyde Kuhn, Hawley Catfish, Marion Nicholas,
Ray A. Muetchler, and Wilfred D. Horton, whole for any loss of pay
they may have suffered by reason of the respondent's discrimination
against them, by payment to each of them of a sum of money equal to
the amount which he normally would have earned as wages from the
date of his discharge or refusal to reinstate to the date of the re-
spondent's offer of reinstatement less his net earnings during such
period ;
(c) Post at its plant at Empire, Oregon, copies of the notice at-
tached to the Intermediate Report marked "Appendix A." 7 Copies
of said notice, to be furnished by the Regional Director for the Nine-
teenth Region, shall, after being duly signed by the respondent's rep-
resentative, be posted by it immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the respondent
to insure that said notices are not altered, defaced, or covered by any
other material;
(d) Notify the Regional Director for the Nineteenth Region in
writing within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
4 Said notice , however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner " and substitut-
ing in lieu thereof the words "A Decision and Order" ; also by inserting in the second para-
graph thereof between the words "or any labor organization of our employees ," and "by
discharging or in any other manner discriminating in regard to their hire or tenure of
employment" the words "or encourage membership in Lumber and Sawmill Workers, Local
Union No . 2573 , A. F. L., or any labor organization of our employees."
701592-47-vol. 69-38
:578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Dlr. Erwin A. Peterson for the Board.
Mr. George Brown, of Portland, Oreg., and Mr. Marvin Berge, of North Bend,
Oreg., for the CIO.
Mr. Ralph T. Moore, of Coos Bay, Oreg., for the respondent.
31r. J. W. Mclnturff, of Coos Bay, Oreg., for Local 2573.
. STATEMENT OF THE CASE
Upon an amended charge duly filed on September 12, 1945, by International
Woodworkers of America, Local 116, CIO, herein called the CIO, the National
Labor Relations Board, herein called the Board, by its Regional Director for
the Nineteenth Region, issued its complaint dated September 13, 1945, against
Cape Arago Lumber Company, 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 Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
-Copies of the complaint and notice of hearing thereon were duly served upon
the respondent, the CIO, and Lumber and Sawmill Workers, Local Union No.
2573, herein called Local 2573.
With respect to the unfair labor practices the complaint alleged in substance
that: (1) the respondent on March 21, 1945, discharged Max Leneve, Frank
Phillips, Jack Krieschel, and C. B. Wilson and refused thereafter to reinstate
them because they assisted or became members of the CIO; (2) as a result thereof
and on the same day employees Marshall Rybin, Clyde Kuhn, Hawley Catfish,
Marion Nicholas, Ray A. Muetchler, and Wilfred D. Horton ceased work con-
certedly and went on strike; (3) on March 22, 1945, the last named group of
employees applied for reinstatement but respondent refused to reinstate them
for the reason that they had assisted or had become members of the CIO and
had participated in the said strike; and (4) by the discharge and refusal to
reinstate all the employees above named the respondent violated Sections 8 (1)
.and (3) of the Act.
Thereafter the respondent filed its answer wherein certain allegations of the
complaint were admitted but the commission of any unfair labor practices was
denied.
Pursuant to notice a hearing was held at Coos Bay, Oregon, from October 1
to October 4, 11,45, before the undersigned, the Trial Examiner duly designated by
the Chief Trial Examiner. At the opening of the hearing, Local 2573 moved to
intervene on the ground that it had a valid union shop agreement with the re-
spondent which was jeopardized by the allegations of the complaint. The motion
to intervene was granted without objection.
The Board, the respondent, and Local 2573 were represented by counsel and the
CIO was represented by its international representative and the business agent
of Local 116. All parties participated in the hearing and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues. At the conclusion of the evidence, counsel
for the Board moved to conform the pleadings to the proof. This motion was
granted without objection. The Board stated its position orally at the hearing
and Local 2573 thereafter filed a brief with the undersigned which has been duly
considered.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
CAPE ARAGO LUMBER COMPANY
FINDINGS OF FAVr
1. THE BUSINESS OF THE RESPONDENT
579
Cape Arago Lumber Company is an Oregon corporation having its principal
of ice and place of business in the City of Empire, Oregon, where it is engaged in
the manufacture and sale of lumber and lumber products. In the course of its
business operations, respondent manufactures such products valued in excess
of $500,000 annually, of which approximately 90 percent is transported in inter-
state commerce to and through the States of the United States from the State
of Oregon.
IL THE ORGANIZATIONS INVOLVED
International Woodworkers of America, Local 116, is a labor organization
affiliated with the Congress of Industrial Organizations, and admits to member-
ship employees of the respondent.
Local 2573, Lumber and Sawmill Workers is a labor organization affiliated
with the American Federation of Labor, and admits to membership employees
of the respondent. -
III. THE UNFAIR LABOR PRACTICES
A. Tice sequence of events
The respondent began its operations at Empire, Oregon, oil May 7, 1941, with a
crew composed almost exclusively of members of Local 2573. On May 24, 1941,
the respondent and Local 2573 executed a working agreement covering wages,
hours, and conditions of employment at the plant.
On April 20, 1942, Local 2573 and the respondent executed a new working
agreement which superseded the above-mentioned agreement. Among other
things, this agreement provided for a check-off of dues. Paragraph XV of this
agreement entitled "Union Shop" provided in part as follows :
A. The Company agrees to retain in employment only persons who main-
tain continuous membership in good standing in Local 2573.
C. In event that any employee fails to maintain continuous membership
in good standing or make application to join the Union as herein provided,
or after making application is rejected by the Union, he shall be discharged
by the Employer within a reasonable time upon written notice from the
Union.
The "Duration and Termination" clause contained in Article XXI of this agree-
ment provided in part as follows :
This agreement is for a period of time extending from the date of execu-
tion to March 15, 1943. When either party to this agreement desires to
modify, add to or revise same, lie shall give written notice to the other party
at least thirty ( 30) days in advance of such contemplated changes .. .
. . . If neither party, sixty ( 60) days prior to expiration , requests in writ-
ing changes or termination , this agreement to continue from year to year.
Counsel for the Board conceded that this contract was automatically renewed on
March 15, 1944 , and continued in full force and effect to March 15, 1945. Neither
party requested changes or termination prior to March 15, 1944.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A number of the employers in the district, including the respondent, had formed
the Oregon Coast Operators Association for the purpose of handling labor rela-
tions on their behalf. In April 1944, this Association and Local 2,573, together
with other local unions who had individual contracts with the members of the
Association, attempted to negotiate a uniform "area wide" working agreement.
After three meetings had proved unfruitful, the negotiations were broken off on
May 18, 1944 ; they did not resume until September.
On June 27, 1944, Local 2573 addressed the following letter to the respondent:
I am instructed by the Union to request you to set a date for a meeting
to take up the matter of revising the present working agreement, to conform
to standard working agreements.
Several months ago the same matter was taken up with your Company, at
which time it was reported to the Union that you wished to negotiate a
uniform agreement for your branch of the industry.
The Union is asking to negotiate at this time, in as much as the negotiating
Committee of The District Council has been informed by Mr. E. H. Card,
Manager of the Oregon Coast Operators Association, that they think that
further negotiations will be useless.
The Union would like to revise two "articles" of the present working
agreement, the one being, the "hours of labor" article, the other being, the
"vacation" article.
The War Labor Board has written, standard forms which have been
or are being incorporated in all working agreements.
Please advise the Union when a meeting may be had, giving date and
hour.
The respondent turned this letter over to E. H . Card , secretary-manager of
the Association , who, under date of July 22, 1944, replied on behalf of the
respondent as follows :
This is in reply to your letter addressed to the Cape Arago Lumber
Company, Empire , Oregon, in which you ask for a meeting date to take up
the matter of revising the present working agreement . You specify two
"articles ," namely, "hours of labor" and "vacation ," as the particular articles
you wish to revise.
Please be advised the Company will be prepared to meet with your
Committee August 4, 1944, at 7:30 P . M., in the Company office at Empire.
This letter will serve as notice that the Company desires to revise Articles
I, II, III, IV, VIII, IX, X, XI, XII , XIII , XIV, XV, XVI, XX and XXI, of the
above-mentioned agreement.
The respondent and Local 2573 held two negotiation meetings as a result of
this correspondence but little , if anything , was accomplished and the attempt
was abandoned.
Beginning in September 1944, the Association and the local unions, including
Local 2573 , resumed their meetings . A number of such meetings were held,
at the end of which a proposed area-wide agreement was tentatively agreed upon.
D. H. Miller , Sr., respondent's general manager, was one of the Association's
representatives during these negotiations and Local 2573 was also present. How-
ever, before the agreement was executed , the unions made further demands
requiring a reopening of the negotiations on February 21, 1945.
Sometime in February or early March 1945, some of respondent 's employees
became dissatisfied with Local 2573 and began working secretly to organike the
' Similar letters were sent to each of the individual members of the Association by
Local 2573 or the other A. F. L. locals having contracts with such members.
CAPE ARAGO LUMBER COMPANY 581
employees into the CIO. Miller , Jr., knew of the CIO activity in the early part
of March through "grapevine reports." Local 2573 learned of the CIO activity
sometime in February.
On March 9, 1945, the respondent's employees met and decided that the terms
of the proposed area-wide agreement were unsatisfactory to them and that they
preferred to retain their present working agreement with the respondent' The
plant committee of the respondent's employees so notified D. H. Miller, Jr., the
respondent's plant manager, who had no authority to negotiate for the re-
spondent. Miller, Jr., told the committee that he "would notify the management
of their request and was positive that it would be acceptable."
About March 10, 1945, Marvin Berge, CIO organizer, called upon Miller, Jr.,
at respondent's plant and informed him that the CIO represented a majority of
the employees 3 Miller, Jr., acknowledged that there was some activity in favor
of the CIO. Berge stated that he did not want any trouble at the plant and
mentioned having heard a rumor that the respondent might discharge some of
the CIO adherents. According to Berge, Miller, J'r., stated that there would be
no discharges.'
About this time, the CIO activity came into the open and its organizing was
no longer concealed.
About March 15, 1945,$ Max Leneve, respondent's boom foreman and an
active CIO adherent, walked into Miller, Jr.'s office where he was surreptitiously
informed by Miller, Jr., that Fritz Hagen, business agent for Local 2573, was
in another part of the office. Leaving the office, Miller, Jr., inquired if Leneve
was a member of the CIO. Leneve, apparently on very friendly terms with the
plant manager, replied that this was "none of [his] business."
On March 16, a meeting of Local 2573 was held at which the proposed area-
wide agreement was discussed and the members voted to "leave Cape Arago
as it is." This decision was made due to the opposition of the respondent's em-
ployees at the meeting to the terms of the area-wide agreement.
On March 19, Ralph T. Moore, respondent's vice-president, who was author-
ized to negotiate agreements with Local 2573, was informed for the first time
by Miller, Jr., that the plant committee had expressed its desire to continue
under the old agreement rather than the area-wide agreement. Moore testified
that he just wanted to know "where we stood" in regard to the working agree-
ment and that the employees' desire was "satisfactory" to the respondent.
Miller, Jr., testified that he believed that Miller, Sr., informed the plant com-
mittee of respondent's willingness to continue under the old agreement. The
date of this communication was not given in the testimony, but it could not
have been until March 19 or thereafter. The respondent was not informed of
the action of Local 2573 taken on March 16, nor is there any evidence that the
respondent communicated to Local 2573 its willingness to continue under the
terms of the old contract.
On March 19, at Hagen's request, Leneve met with him in Miller, Jr.'s office.
Hagen accused Leneve of having joined the CIO and presented him with the
option of signing either a statement that he had never joined the CIO and would
2It is to be noted that this was not a meeting of Local 2573, the holder of the con-
tract, but merely of respondent' s employees ; the membership of the Local included em-
ployees of other plants as well.
3 Neither Berge, witness for the Board, nor Miller, Jr., could definitely set the date of
this conference.
4 Although Miller, Jr., testified that Berge mentioned that he did not wish any trouble,
he could not recall whether or not the discharge rumor had been mentioned.
S This date was indefinite in the testimony but apparently occurred just prior to the
shut-down of March 16.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not assist that organization, or a statement promising never to aid the CIO
again. Leneve refused to sign either. Hagen then left the office to call in
the plant committee. During this interim, Moore saw Leneve and told him
to keep his temper for otherwise he would say something which he would
regret. When Hagen and the plant committee appeared, Hagen stated he had
in his possession the CIO card which Leneve had signed. After considerable
argument, Leneve executed the statement to the effect that he had never joined
the CIO .'
Later the same day, Hagen and the plant committee called Ralph Phillips,
green chain chairman, into the office of Miller, Jr., who left the room when this
conference began. Phillips was told that he had been passing out CIO cards and
admitted the truth of the accusation. Hagen then demanded that he sign one
of the two statements noted above in connection with the Leneve conference.
Phillips signed the statement, promising not to wort- c.n behalf of the CIO.
On the evening of March 19, 1945, the executive ooard of Local 2573 went on
record "as recommending a fine" of $500 be placed against Max Leneve, F. W.
Phillips, C. B. Wilson, and Jack Krieschel. On April 6, 1945, Local 2573 voted
to approve the minutes of the Executive Board meeting.
The above-mentioned employees worked as usual on March 20. None of them
were notified of the fines recommended against each of them. The first notice
any of them had of the fines carne some weeks later. Nor were any of them
notified of any charges placed against him by Local 2573 until May 1945.
At 2: 30 p. in. on March 21, Hagen handed five letters to Moore and Miller, Jr.
These letters were on the letterhead of Local 2573, signed by its secretary, and
contained a print of the seal of said local. One of the letters read as follows:
I am instructed to inform you that Max Leneve is not in good standing
with the Union.
According to the terms of our contract, we demand his immediate
discharge.
The other letters, identical in language, referred respectively to Jack Krieschel,.
C. B. Wilson, Frank Phillips, and a man named Crawford.7 Moore immediately
telephoned Miller, Sr., at Bandon, Oregon, the respondent's main office, and after
some discussion they determined to accede to the demand of Local 2573 on the
theory that their union shop agreement required such action.
Respondent was never specifically and directly told nor did it inquire why the
employees were no longer in good standing in Local 2573. It knew, however, that
the dues of the men were paid to date through the check-off. How much more
it was aware of is discussed hereinafter.
About 3 p. in., Miller, Jr., informed Leneve and Phillips that Local 2573 had
demanded their discharge because they were no longer in good standing with the
Union and that they therefore could not continue to work for the respondent
until they got "straightened out" with Local 2573. Phillips inquired whether
the respondent could discharge at the request of Local 2573 in view of the Wagner
Act. Miller, Jr., replied that he did not know, that all he was trying to do was
to keep the plant operating. He stressed the fact that the men's jobs would be
waiting for them as soon as they returned to good standing in Local 2573.
When Phillips reported these events to the men working in his green chain
gang, they decided to walk out in sympathy with him. Marshal Rybin, Clyde
Kuhn, Hawley Catfish, Marion Nicholas, Ray A. Muetchler, Wilfred D. Horton,
Byron Brown, and Mark Kinkart thereupon left the plant. Within 5 minutes
° Leneve had, In fact, signed a CIO application card.
7 The following day, Local 2573 withdrew the letter regarding Crawford and he con-
tinued to work unmolested.
CAPE ARAGO LUMBER COMPANY 583
the plant whistle blew in accordance with instructions previously given by
Miller, Jr.
On the morning of March 22, Miller, Jr., informed Krieschel and Wilson that
Local 2573 had demanded their discharge because they were not in good standing,
and hence he had to lay them off until they returned to good standing in the
local. Again lie informed them that their jobs would be waiting for them at
that time.
The members of the green chain gang reported for work as usual that morning.
They were informed by Miller, Jr., that they could not work as they were not
in good standing with Local 2573 and were advised by him to see their union
representative. When they saw Hagen, he explained the reason for their lay-off
as being the fact that they had lost their seniority rights by walking off the job
without good cause. Later Hagen determined that Myron Brown and Mark
Kinkart had not walked off the job the day before and allowed them to return
to work. None of the others were permitted to return.
Following the end of the night shift at 1 a. in. March 22, the respondent closed
down its night shift so that a reduction in force became necessary. It is con-
ceded that this shut-down was caused solely by a lack of logs and was not due
to any unfair labor practice.
The retention of employees was determined on the basis of plant-wide seniority.
Of the six men laid off from the green chain gang, the man with the least senior-
ity had been employed in November 1944. The records prove that the respond-
ent retained in its employ after the lay-off 14 men with seniority dating from
November 1944 or thereafter, and that 8 men retained had seniority from
December 1944 or thereafter.
On March 26, 1945, Local 2573, the other A. F. L. locals involved, and all the
operators with the exception of the respondent, executed the uniform area-wide
agreement. On this same day, Moore telephoned Card, informed him that the
CIO had just filed a petition for certification as the bargaining agent at the
respondent's plant, and asked advice as to what the respondent should do. Card
advised that, under the circumstances, the respondent should not sign another
contract with Local 2573 until after the representation question had been settled
for fear of getting "tangled up" with the Board. On this occasion, Card's ad-
vice was accepted and acted upon, and the respondent did not sign any other
contract with Local 2573.
B. Conclusions
Obviously Local 2573 requested the discharges of Max Leneve, Frank Phillips,
Jack Krieschel, and C. B. Wilson because each of these men had either joined the
CIO or was actively soliciting for that organization. Their activities were well
known to Local 2573 as indicated by Hagen's accusations and from the state-
ments which he requested them to sign. -
The respondent also had "grapevine reports" and knew that the men were
actively advocating on behalf of the CIO. Miller, Jr., "suspected," according
to his own testimony, the reasons for the request made by Local 2573. The
respondent, through Miller, Jr., had direct information that the CIO was attempt.
ing to organize the plant. Miller, Jr., had but little doubt as to the individuals
who were active on behalf of the CIO. The respondent knew at the time these
men were discharged that they were not in good standing with Local 2573
because they were members of or active on behalf of the CIO.
The respondent attempts to justify the discharge of these employees because
of the terms of the union shop clause in the working agreement which it thought
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it had with Local 2573. It is clear that, except for this agreement, the respondent
would not have discharged the employees.
The facts found raise the question whether or not the working agreement
between the respondent and Local 2573 with its union shop clause was in full
force and effect on March 21, 1945. This depends upon whether or not the
agreement automatically renewed itself by its own terms upon its termination
date of March 15, 1945, or was renewed in any other way. It is conceded
that said agreement was in full force and effect to March 15, 1945.
The termination and duration clause of the contract contains two paragraphs,
the pertinent parts of which follow :
When either party to this agreement desires to modify, add to or revise
same, lie shall give written notice to the other party at least thirty (30)
days in advance of such contemplated changes . . .
. . . If neither party, sixty (60) days prior to expiration, request
in writing changes or termination, this agreement to continue from year
to year.
The testimony is undisputed that, prior to June 27, 1944, neither the respondent
nor Local 2573 had requested either changes or termination of the agreement.
However, by letter dated June 27, 1944, Local 2573 gave the respondent
written notice of its desire to "revise" two articles of the agreement.
On July 22, 1944, the respondent, in turn, gave Local 2573 notice in writing of its
desire to "revise" 15 other articles in the agreement including both the union
shop clause and the termination and duration clause.
By July 22, 1944, the parties had opened up all but four of the articles of the
agreement for negotiation. Obviously, if changes were made in all the articles
thus opened for negotiations, the parties would have had a new agreement and
not merely a revision of the then existing contract.
The action of E. H. Card, secretary- manager of the Oregon Coast Operators
Association, in sending on behalf of the respondent the letter dated July 22,
1944, to Local 2573 requesting revisions of 15 articles in the agreement was
deliberately and concededly taken after full consultation with the respondent
and other members of the Association for the purpose of "forcing" Local 2573
into negotiating a uniform area-wide agreement with the operators and other
locals in the district. Similar letters were sent by Card on behalf of other op-
erators in the Association for the same purpose. The area-wide agreement was
intended to replace the agreements then existing at the individual operations.
It is obvious from the undisputed testimony of Card that the operators, including
the respondent, intended their notice to "revise" as notices to terminate or, at
the very least, to change the then existing agreements.
Card also testified from his considerable experience with contracts in the lumber
field that in his opinion the termination clause in the agreement under considera-
tion, as interpreted by the lumber industry in the area, itself required a definite
written notice of intent to terminate in order that the agreement would not auto-
matically renew itself by its own terms. The undersigned is unconvinced by such
testimony. In any event, such an interpretation does violence to the phraseology
of the agreement itself and would require the elimination of the word "changes"
from the second paragraph of the clause above quoted. Card himself had recog-
nized the language difficulties involved in the present termination clause when he
attempted to clarify that phraseology in the area-wide agreement which he as-
sisted in drafting. He also candidly acknowledged that the interpretation of the
industry as to the legal meaning of similar termination clauses had not been
adopted by others outside the industry itself, such as individual arbitrators, the
War Labor Board, and even this Board when they were called upon to determine
the legal meaning of such clauses.
CAPE ARAGO LUMBER COMPANY 585.
In view of the above, the undersigned believes, and therefore finds, that the
request for revisions of articles in the agreement made by Local 2573 on June 27,
1944, and by the respondent on July 22, 1944, were requests in writing to the other
party to the contract for termination of or changes in the agreement, made sixty
days prior to the termination date and by the terms of the termination clause
such action prevented the agreement from automatically renewing itself.
Local 2573 argues further in its brief that, assuming the fact that the contract
did not automatically renew itself, the respondent and Local 2573 nevertheless
agreed to be bound by the agreement and hence the union shop clause was in
effect after March 15, 1945.
The undisputed facts prove that the expressed desire of the plant committee
not of Local 2573 8-to continue under the old contract made on March 9, 1945, to
Miller, Jr., who had no authority to negotiate agreements and who only agreed
to submit the offer to respondent's management with the statement that he was
"positive" that it would be agreeable, was not transmitted to respondent's manage-
ment until March 19, 1945, or thereafter. The facts further prove that respond-
ent's assent thereto was never transmitted to Local 2573 but, at best, only to the
plant committee. Hence, at the very least, the requirement of communicated
assent required in the making of a contract is here lacking. As far as Local 2573,
the holder of the contract, is concerned, that organization did not act in regard
to the contract at the respondent's plant until March 16, 1945, when the local voted
to allow the Cape Arago operation to continue "as it is." At this point, the con-
tract had already expired. Further, there is no showing of any communication
between the respondent and Local 2573 of this action. No contract by mutual
assent came into being between these parties.
Local 2573 further argues that the parties indicated their assent to the con-
tinuation of the contract by their acts after March 15. The first act upon which
Local 2573 or the respondent can rely as indicating this assent is the act of dis-
charging employees Leneve, Phillips, Krieschel, and Wilson based upon the sup-
posed existence of the union shop clause. This line of argument, however, places
Local 2573 and the respondent in the peculiar position of creating an agreement
by one act and then attempting to justify that very same act by the agreement
which the act is alleged to have created.
Even the discharge of the employees on March 21 is not conclusive evidence of
the respondent's, intention to be bound by the old agreement. For the undisputed
evidence discloses that as late as March 26 the respondent felt free to execute the
area-wide agreement with Local 2573 except for Card's advice that respondent
should execute no new contract with Local 2573 until the representation question
raised by the CIO had been disposed of.
It is therefore found that the agreement between the respondent and Local
2573 containing the union shop clause under which the respondent attempted
to justify the discharges of Leneve, Phillips, Krieschel, and Wilson terminated
as of March 15, 1945, and that the respondent discriminated in regard to the
tenure and the terms and conditions of their employment by discharging them on
March 21, 1945, thereby discouraging membership in the CIO.`
As to the discharges of the members of the green chain gang , the evidence is
clear that these six employees walked off their jobs in concerted action protest-
ing the unfair labor practice of discharging the men named above. These men
therefore were entitled to reinstatement upon their application therefor on March
6 The membership of Local 2573, the holder of the contract, is not limited to the re-
spondent's employees, but includes employees of other operations.
6 See Boeckler Associates, et al., 60 N. L. R. B. 1208 ; Fischer Lumber Co., 62 N. L. it. B.
543.
586 DECISIONS OF NATIONAL LAI3OR RELATIONS BOARD
22, 1944, unless their positions had been eliminated by the shut-down of that
same day. Admittedly this shut-down was caused not by any unfair labor
practice by the respondent but by a lack of logs. The facts conclusively show
that Local 2573 dictated which of these green chain gang employees were en-
titled to reinstatement and that the respondent abided by the decision of Local
2573. As to the other employees in the plant, the evidence shows that the men
were retained in accordance with plant-wide seniority.
The facts show that of the six men laid off from the green chain gang the
man with the least seniority had been employed by the respondent since No-
vember 1944. The records of respondent also prove that the respondent re-
tained in its employ after the lay-off 14 men with seniority dating only from
November 1944 or thereafter. Of these 14 men, 8 enjoyed seniority from De-
cember 1944 or thereafter. It is therefore obvious that acting at the request
of Local 2573 the respondent discriminated against the six men on the green
chain gang by refusing to reinstate them upon application on March 22, 1945.
Local 2573 attempted to justify these refusals to reinstate on the ground that
the men had walked off the job without cause and thereby had lost all seniority
rights in accordance with a decision to that effect made by Local 2573. As it
has been found heretofore, there was no contract in effect at this time. It
is clear that Local 2573 had no justification for interfering with the reinstate-
ment of these individuals. The rule as promulgated by Local 2573 and applied in
these cases by it would in effect penalize employees for engaging in concerted
activity, a right guaranteed by the Act.
The undersigned therefore finds that by refusing to reinstate Marshall Rybin,
Clyde Kuhn, Hawley Catfish, Marion Nicholas, Ray A. Muetchler, and Wilfred
D. Horton upon their request on March 22, 1945, the respondent discriminated
in regard to their hire and tenure and the terms and conditions of their em-
ployment, thereby discouraging membership in the CIO.1°
IV. THE EFFECT OF THELNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above , occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain action
necessary to effectuate the policies of the Act. It has been found above, that
the respondent's discharge of Max Leneve, Frank Phillips, Jack Krieschel, and
C. B. Wilson on March 21, 1945, and the refusal to reinstate Marshall Rybin,
Clyde Kuhn, Hawley Catfish, Marion Nicholas, Ray A. Muetchler, and Wilfred
D. Horton upon their application for reinstatement on March 22 constituted
unfair labor practices under the Act. It will therefore be recommended that
the respondent reinstate them to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and privileges, if
101n view of the basis for the finding that the ten men were illegally discriminated
against , it is unnecessary to consider whether the discharges and refusals to reinstate would
have been illegal for other reasons though the contract be considered as having been in
effect at the time of such discharges and refusals . See Wallace Corp., 323 U. S. 248 ;
Rutland Court Owners, Inc., 46 N. L. It. B. 1040 ; Portland Lumber Mills, 64 N . L. It. B.
159; Diamond T Motor Car Company, 64 N. L. R. B. 1225.
CAPE ARAGO LUMBER COMPANY 587
necessary dismissing other persons hired since the date of their discharge. It
will also be recommended that the respondent pay to each of them an amount
equal to that which he would normally have earned as wages from the date
of his discharge or refusal to reinstate to the date of the offer of reinstatement"
less his net earnings ' during such period.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Woodworkers of America , Local 116, CIO, and Local 2573,
Lumber and Sawmill Workers , A. F. of L., are labor organizations within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Max
Leneve, Frank Phillips, Jack Krieschel , C. B. Wilson , Marshall Rybin, Clyde
Kuhn, Hawley Catfish , Marion Nicholas, Ray A. Muetchler , and Wilfred D.
Horton, thereby discouraging membership in International Woodworkers of
America, Local 116 , CIO, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 ( 3) of the Act.
3. By said acts the respondent has interfered with, restrained , and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act
and has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law the
undersigned recommends that the respondent, Cape Arago Lumber Company,
Empire, Oregon, its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in International Woodworkers of America,
Local 116, CIO, or any other labor organization of its employees, by discharging
or in any other manner discriminating in regard to the hire and tenure of em-
ployment or any term or condition of employment of any of its employees ;
(b) In any like or related manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist International Woodworkers of America, Local
116, CIO, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection.
11 There is some testimony in the record tending to indicate that after the original refusal
on March 22, 1945, to reinstate the men on the green chain gang, the respondent thereafter
offered to reinstate certain of them, and that the offer was rejected on the ground that the
offerees had other jobs. The testimony on the subject is, however, not of sufficient clarity
to justify the undersigned in making a definitive finding thereon. If, in fact, certain of
the men did receive and reject such offers, they would be entitled to back pay only to
the date such offers were made. This question , if it arises , may be disposed of at the
time the matter of compliance with the recommendations is handled.
12 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and hoard, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company , 8 N, L. R . B. 440 . Monies received for work performed upon
Federal, State, county, municipal, or other work-relief projects shall be considered as earn-
ings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Max Leneve, Frank Phillips, Jack Krieschel, C. B. Wilson, and
Marshall Rybin, Clyde Kuhn, Hawley Catfish, Marion Nicholas, Ray A. Muetchler,
and Wilfred D. Horton, immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority and other
rights and privileges ;
(b) Make Max Leneve, Frank Phillips, Jack Krieschel, C. B. Wilson, Marshall
Rybin, Clyde Kuhn, Hawley Catfish, Marion Nicholas, Ray A. Muetchler, and
Wilfred D. Horton, whole for any loss of pay each of them may have suffered by
reason of the discrimination against him by payment to him of a sum of money
equal to an amount determined in the manner set forth in the section above en-
titled the Remedy ;
(c) Post at its plant at Empire, Oregon, copies of the notice attached hereto,
marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director for the Nineteenth Region, shall , after being duly signed by Cape Arago
Lumber Company's representative, be posted by it immediately upon receipt
thereof, and maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by other material.
(d) Notify the Regional Director for the Nineteenth Region in writing, within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Di-
rector in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
action aforesaid.
As provided in Section 33 of Article of the Rules and Regulations of the Na-
tional Labor Relations Board, Series 3, as amended, effective November 27, 1945,
any party or counsel for the Board may, within fifteen (15) days from the date
of the entry of the order transferring the case to the Board, pursuant to Section
32 of Article II of said Rules and Regulations, file with the Board, Rachambeau
Building, Washington 25, D. C., an original and four copies of a statement in
writing, setting forth such exceptions to the Intermediate Report or to any other
part of the record or proceeding (including rulings upon all motions or objec-
tions) as he relies upon, together with the original and four copies of a brief in
support thereof. Immediately upon the filing of such statement of exceptions
and/or brief, the party or counsel for the Board filing the same shall. serve a
copy thereof upon each of the other parties and shall file a copy with the Region-
al Director. As further provided in said Section 33, should any party desire
permission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10) days from the date of the order transfer-
ring the case to the Board.
THOMAS S. WILSON,
Trial Examiner.
Dated December 12, 1945.