Charles R Krimm Lumber Co.

National Labor Relations Board - Board Decisions

Feb 8, 1952

97 N.L.R.B. 1574 (N.L.R.B. 1952)

1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duty of laying out and assigning work to the cutters, is the only person
in charge of hiring cutters, and has the power to.discharge cutters.4
Although the head cutter may occasionally mark or grade materials,
he does no cutting. The majority of his time is spent in instructing,
directing, and assigning work to the other cutters. He is paid a weekly
salary whereas the cutters are hourly paid. Upon the entire record,
we find that the head cutter is a supervisor within the meaning of the
Act, and we shall exclude him from the unit hereinafter found
appropriate.
The patternmaker.-The Employer would include the patternmaker
in the unit as an employee of the cutting department. The Petitioner
would exclude her, but it stated that it is willing to accept her as part
of the proposed unit if the Board finds that she should be included.
The patternmaker is designated by the Employer as an assistant to the
designer. She works with and receives her orders from the designer,
but does no designing or sketching. Although her principal occupa-
tion is making patterns, she works in the cutting department when she
has no pattern-making to do. She can grade, mark, and cut materials,
but she cannot use all the cutter's tools. She is hourly paid, as are the
cutters, and receives approximately the same compensation. We find
that she has a close community of employment interest with the cutters,
and we shall therefore include the patternmaker in the unit.
We find that all cutters at the Employer's Los Angeles, California,
plant, including choppers, graders, markers, and the patternmaker, but
excluding all other employees and supervisors, constitute a unit ap-
propriate for the purposes of collective bargaining, within the mean-
ing of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
MEMBER HOUSTON took no part in the consideration of the above
Decision and Direction of Election.
* The present head cutter had occupied that position for only 4 months at the time of
the hearing , and had not during that period had any occasion to exercise the power to
discharge employees . His predecessor , however, had exercised the power to discharge
employees.
CHARLES R. KRIMM LUMBER COMPANY AND NORTHERN PINE CORPORA-
TION and UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF
AMERICA, AFL. Case No. 2-CA-1531. February 8, 1952 '
Decision and Order
On June 28, 1951, Trial Examiner Lloyd Buchanan issued his In-
termediate Report in the above-entitled proceeding, finding that the
97 NLRB No. 242.
CHARLES R. KRIMM LUMBER COMPANY 1575
Respondent, Charles R. Krimm Lumber Company, herein called
Krimm, had engaged in and was engaging in certain unfair labor prac-
tices in violation of Section 8 (a) (1) and (5) of the Act, and that
the Respondent Northern Pine Corporation, herein called Northern,
was jointly liable together with Krimm, for the said unfair labor prac-
tices. He recommended therefore that Krimm and Northern cease
and desist from the practices found and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter, both Respondents filed exceptions to the Intermediate
Report and supporting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions and modifi-
cations.
A. The Respondent Krionm's Z violations of Section 8 (a) (5) and (1)
of the Act
1. The appropriate unit
As is indicated in the Intermediate Report, the unit sought by the
Union and found generally appropriate by the Trial Examiner was
one extending, in scope, to all the production and maintenance em-
ployees of the Fort Edward, New York, lumberyard and mill. As
such a grouping is consistent with our unit findings in the industry of
which the Respondent is a part, it is unquestionably appropriate.
There is, however, some question as to whether three employees who,
at the time of the Union's request for bargaining, were carried on the
Respondent's payroll as "lumber graders" and/or "tally-men," per-
formed some duties which would bring them within the statutory
definition of "supervisors." These three were Pagano, Chapman, and
Barlow. The Trial Examiner found, consistent with the Respond-
ent's claim, that when performing "lumber-graders' " work, each of
these three employees "responsibly directed" the work of 10 to 12 em-
ployees, within the meaning of the Act. We do not adopt this finding.
For, from the record before us, it appears rather that these employees,
when acting as "lumber-graders," may merely have been acting as
"leadmen" of their respective crews, without possessing or exercising
1 Pursuant to the provisions of Section 3 (h) of the Act, the National Labor Relations
Board has delegated its powers in connection with this proceeding to a three-member panel
[ Chairman Herzog and Members Murdock and Styles].
2 The Respondent in Section A of this Decision refers to the Respondent Krimm.
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the degree of "supervisory" authority which would require their ex-
clusion from the unit.' In any event, we need not, and do not, defini=
tively determine the status of these employees here, because neither
their inclusion nor exclusion affects the majority status of the Union,
or the general scope of the unit. If they or any other. workers do in
fact possess the authority of a supervisor as defined in Section 2 (11)
of the Act at this time, they are, of course, within the group "excluded"
from the unit. If not, they are part of the Unit .4
We find that all production and maintenance employees of the Fort
Edward, New York, lumberyard and mill which is involved in this
proceeding, including tally-men, lumber handlers, lift operators,
truck drivers and helpers, but excluding office clerical employees,
at all times here material, and now constitute, a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (a) of the Act.
2. The Union's majority status
The Trial Examiner found , and we agree , that on March 7, 1950,
when the Union first requested recognition from the Respondent, and
at all times thereafter, the Union represented a majority of the em-
ployees in the appropriate unit .5 However, unlike the Trial Exam-
iner, we rely on the April 1 payroll as the basis for determining the
Union's representation in the unit at the time of its request to bargain,
for of the two payrolls submitted, April 1 and April 17, the former is
more closely related in time to the Union's request for bargaining, and
was also the payroll initially submitted by the Respondent to the
Board's office in aid of its attempt to investigate the Union' s represen-
tation claims.
The April 1 payroll contains the names of 30 persons, 24 of whom
are clearly production and maintenance employees. Of the remaining
6, 3 are "supervisors" within the meaning of the Acts and 3 are in the
"lumber-graders-tallymen" group discussed above. On the basis of
a check of the membership application cards against the April 1 pay-
roll, the designation by 15 out of 27 employees is established, if the
3 persons in the disputed category are included; whereas if the same
s We agree with the Trial Examiner that the performance by these employees of "tally-
men's" work constitutes no basis for their exclusion from the production and maintenance
unit. See Veneer Products Co, 81 NLRB 492.
4 See Read -Canaday Co ., 93 NLRB No. 165, and Krantz Wire & Mfg. Co, 97 NLRB 971.
6 As is noted below, we agree with the Trial Examiner's implicit finding that the later
defection from the ranks of the Union is attributable to the Respondent 's unfair labor
practices and hence does not affect the Union 's representative status.
6 Sutphin, Hamblet , and McEwan.
CHARLES R. KRIMM LUMBER COMPANY 1577
3 persons are excluded, the designation of 13 out of 24 is established.
This evidence of majority status is supported, in both instances, by
testimony of certain other employees, whose names do not appear on
the application cards adduced in evidence that they had joined the
Union.
We find that on and after March 7,1959, the Union was the exclusive
representative of the employees comprising an appropriate unit, within
the meaning of Section 9 (a) of the Act.
3. The conduct violative of Section 8 (a) (5) and (1) of the Act
It is conceded, as the Trial Examiner found, that the Respondent
has never accorded the Union recognition. It is the Respondent's
claim, however, that its failure is excusable because it entertained a,
"good faith" doubt as to the Union's representative status in 2?i appro-
priate unit, which should have been resolved by a Board election, and
that accordingly the 8 (a) (5) allegations of the complaint should
be dismissed. Like the Trial Examiner, however, we find no merit
to this claim. For we are persuaded, as was the Trial Examiner,
that the Respondent's conduct as a whole between April 11 and July
13, 1950, demonstrates that the Respondent was not sincerely interested
in finding out whether it was obligated to recognize the Union, but
rather in finding ways to avoid dealing with it at all.
As noted in the Intermediate Report, the Respondent first indicated
that it entertained some doubt as to the propriety of granting the
Union's request on April 11, 1950, some weeks after the Union's claim
of recognition, when the parties met at the request of the Board's
Regional Office ° to discuss their respective positions on *the Union's
claim of representation, and to explore how any differences between
the parties could best be resolved. The Respondent's attitude at this
conference reflected a predetermination to object to any proposal
which might bring about a speedy termination of the Union's-right to
represent the employees. Thus, as the Trial Examiner notes, when
the Union indicated its willingness to capitulate to the Respondent's
varying demands for the exclusion' of lumber graders, inspectors,
and/or tallyrnen from a consent election voting group, the Respond-
ent's final proposal was that "lumber handlers" also be excluded. We
deem it significant in this connection that "lumber handlers" tradi-
° The Respondent acknowledged , on March 9 , the receipt of the Union 's letter requesting
recognition and a bargaining conference , but did not thereafter communicate with the
Union concerning the substance of the latter 's March 7 letter . Accordingly , on April 3,
the Union filed a petition with the Board for investigation and certification of its repre-
sentative status. The April 11 meeting as arranged by the Board thereafter.
1 578 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
tionally form the heart of a production and maintenance unit in the
industry (and in the Respondent's operations), and that 14 out of
27 workers employed by the Respondent in its mill and yard, and
claimed by -the Union_ in its petition, were classified as "lumber han-
dlers." Therefore, both union opposition to their exclusion and Board
determination that such a grpup forms part of the appropriate unit
could reasonably be anticipated. Indeed, the Respondent apparently
considered these employees , as well as the others whose exclusion
it had-proposed, to be in fact entitled to inclusion in the unit. For in
the "poll" which it subsequently conducted on its own, it permitted all
these very workers to vote on the question of union representation.
In these circumstances, including also the subsequent unfair labor
practices, we believe that the Respondent's objections to the unit were
not asserted in good faith, but were deliberately employed as a means of
gaining time within which to undermine the Union. The record
:shows, as the Trial Examiner found, that in the period beginning April
17, and continuing through July 22, the Respondent engaged in a
variety of activities designed to convince the employees that they
'Would get more by way of economic benefit from the Respondent by
abandoning the Union and by dealing with it directly on matters ap-
propriately the subject of collective bargaining. Thus, like the Trial
Examiner, we are persuaded from the record as a whole that, despite
the Respondent's contrary claim, Krimm's speeches to the employees
at two meetings called by him on April 17, and at one called by him
about May 15, both expressed his preference for "direct dealing," and
for the elimination of the Union, and his intent to increase wages if
the Union were removed from the "bargaining" picture. The credited
testimony of Wood and Pagana attributing to Krimm statements that
if the Union were "abolished" or "cleared up," he might be able to
increase the wages, is corroborated by the Respondent's conduct of a
"poll" to determine the employees' desires; by its "acceptance" of the
employees' offer, about 1 month later, to disaffiliate from the Union
formally if the Respondent would guarantee a wage increase; by the
direct participation of the Respondent's supervisors and its attorney
in the preparation of documentary evidence of disaffiliation which
the Respondent regarded as necessary before the increase could be
granted; and finally, by the actual grant of the increase when the docu-
mentary evidence of disaffiliation had been supplied 8
We have considered the Respondent's argument , made in support of its exceptions to
the Trial Examiner 's findings as to what Krimm told the employees at the April and May
meetings , that the transcript of the "speeches " adduced in evidence by the Respondent
provides a more reliable source of determining what was said by Krimm than the testimony
of the employees on this matter The "transcript" in question was made by the Respond-
ent's office girl-one inexperienced at "conference reporting " - Hence it presumably was
not regarded by the Trial Examiner to be a fully verbatim record of what was said. In
any event , whatever conflict that may be between the testimony of the employees as to the
CHARLES R. KRIMM LUMBER -COMPANY 1579
We find, as did the Trial Examiner, that the foregoing activities
of the Respondent between April 17 and July 22 constitute independ-
ent violations of Section 8 (a) (1) of the Act; that its failure and
refusal to recognize the Union (as evidenced by its conduct) on and
after April 11, 1950, constituted a violation of Section 8 (a) (5)
of the Act; and that its grant of the wage increase on July 22, 1950,
constituted a further act of interference, and restraint and coercion of
the employees in the exercise of their right to bargain collectively, and
hence independently violated Section 8 (a) (5) and (1) of the Act9
In the light of the relationship between Respondent's unfair labor
practices, including its refusal to bargain and the subsequent dis-
affiliation by the employees, we find, further, that the Union' s loss of
majority representation constitutes no bar to the present entry of a
bargaining order-the affirmative remedy we, like the Trial Examiner,
feel would best effectuate the policies of the Act in the circumstances
here presented'°
2. The effect of the transfer of Respondent Krimm's assets to Respond-
ent Northern and the liability of Respondent Northern
We agree with the Trial Examiner's holding that, so far as the
record before us shows, the Respondent Krimm has not fully dis-
sociated itself from the lumber operations here involved. It is there-
fore clear that the purported transfer by Krimm of the Fort Edward
lumber business and the assets of such business to the Respondent
Northern is not an operative bar to the issuance of our order against
Krimm. Nor, on the facts before us, can we regard the Respondent
Northern as occupying the position of a purchaser having no notice
at the time of purchase of the seller's unfair labor practices or of its
obligation to the employees to eradicate the effect of such practices."
Accordingly, we shall adopt the Trial Examiner's recommendation that
Respondent Krimm and Respondent Northern shall be jointly and
severally responsible for compliance with the terms of our order.
statement made by Krimm , and the "transcript" adduced by the Respondent and Krimm's
testimony on the subject , has been resolved by the Trial Examiner As noted above, his
resolutions of the conflicts are wholly reasonable , and consistent with the Respondent's
objective acts They must accordingly be affirmed . See Unii, ersal Camera, Co. v. N. L.
R B , 190 F 2.d 429 (C A. 2)
° Medo Photo Supply Corp v. N. L R B , 321 U S. 678
10 Cf Franks Bros. v. N . L. R. B., 321 U. S. 702
In any event , as the Board pointed out in Alexander Milburn Company , 78 NLRB 747,
we believe that where, as is here the situation , a "successor 's" employees are the same as
those of the predecessor , and perform their work in the same place and under the same
supervision and conditions as those existing when the unfair labor practices were com-
mitted , the Board is authorized to requite the successor to cooperate in dissipating its
predecessor 's unfair labor practices , at least where such successor is properly before us
as a party
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Charles R. Krimm Lumber Com-
pany, and Northern Pine Lumber Corporation, and their officers-,
agents, successors, and assigns, shall jointly and severally:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Brotherhood of
Carpenters and Joiners of America, AFL, as the exclusive representa-
tive of the employees in the appropriate unit with respect to rates of
pay, wages, hours of employment, or other conditions of employment.
(b) Interfering with, restraining, or coercing its employees in the
exercise of the rights to bargain collectively by promising them eco-
nomic benefits conditioned upon their disaffiliation from their chosen
representative, by conducting a "poll" to determine their desires ,on
the questions of union representation, and by dealing with any person
or group of persons other than the chosen representative of its em-
ployees on wages, hours, and other conditions of employment.
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Brotherhood of Carpen-
ters and Joiners of America, AFL, or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities 'for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain from
any or all of such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8 (a)
(3) of the Act.
2. Take the following affirmative action, which the undersigned
finds will effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Brotherhood
of Carpenters and Joiners of America, AFL, as the exclusive repre-
sentative of the employees in the appropriate unit, and embody in a
signed agreement any understanding reached.
(b) Post at the lumber plant at Fort Edward, New York, copies
of the notice attached hereto and marked "Appendix A." 12 Copies
of said notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by representatives of Charles
R. Krimm Lumber Company and Northern Pine Corporation, re-
"In the event this order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
CHARLES R. KRIMM LUMBER COMPANY 1581
spectively, be'posted by them immediately upon receipt thereof, and
be maintained by them for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the said
Companies to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for the Second Region, in writing,
within ten (10) days from the date of this Decision and Order, what
steps they have taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL bargain upon request with UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL, as the exclusive rep-
resentative of all employees in the bargaining unit described
herein with respect to rates of pay, hours of employment, or other
conditions of employment, and embody in a signed agreement any
understanding reached. The bargaining unit is:
All production and maintenance employees at the Fort
Edward, New York, lumberyard and mill including tally-
men, lumber handlers, lift operators, and truck drivers and
helpers, excluding office and clerical employees, watchmen,
guards, and supervisors as defined in the Act.
WE WILL NOT promise our employees economic benefits condi-
tioned upon their disaffiliation with their chosen representative
or conduct any "poll" to determine their desires with respect to
union representation, or deal with any person or group of persons
other than the chosen representative of our employees on wages;'
hours, and other conditions of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist UNITED BROTH.
ERIIOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, or any
other labor organization, to bargain collectively through repre-
sentatives of their own chosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities
except to the extent that such right may, be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
980209-52-101
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of our employees are free to become, remain, or to refrain from
becoming or remaining; members in good standing of UNITED BROTH-
ERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, or any other
labor organization except to the extent that this right may be affected
1,y an agreement in conformity with Section 8 (a) (3) of the Act.
CHARLES R. KRIMM LUMBER COMPANY,
Employer.
By ------------------------------------------
(Representative ) ( Title)
Dated --------------------
NORTHERN PINE CORPORATION,
Employer.
By ------------------- ----------------------
(Representative ) ( Titles
Dated --------------------
This notice must remain posted for 60 days from the date hereof
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order -
The complaint herein , issued by the General Counsel of the National Labor
Relations Board,' and as amended at the hearing, alleged that Charles R. Krimm
Lumber Company, herein called Krimm, violated Section 8 (a) (1) and (5) of
the National Labor Relations Act, as amended, 61 Stat. 136, herein called the
Act, by interrogating, warning, and threatening its employees concerning union
membership and activities, offering, promising, and granting them wage increases,
bargaining directly with its employees, and refusing since on or about April 11,
1950, to bargain collectively with United Brotherhood of Carpenters and Joiners
of America, AFL, herein called the Union, as the representative of all employees
in an appropriate unit in which the Union represented a majority ; and that
Northern Pine Corporation, herein called Northern and jointly with Krimm the
Respondents, violated said sections by continuing after September 1, 1950, to
refuse to bargain collectively with the Union.'
The answer, as amended at the hearing, questioning the Union's majority,
and denying the appropriateness of the unit, any refusal to bargain, interference
with union activity, and Northern's responsibility as successor, denied that
either Respondent had committed any unfair labor practice.
A hearing was held at Glens Falls, New York, from April 2 to 5, 1951, inclusive,
and on May 22 and 23, 1951, before the undersigned. Decision was reserved on
the Respondent's motions, made at the close of the hearing, to dismiss the com-
plaint and to strike, on the ground that} no connection had been shown, all
testimony against Northern taken subject to connection. The motion to strike
is denied , and those to dismiss are now disposed of in accordance with the
conclusions and recommendations below. General Counsel availed himself of the
opportunity to argue orally ; pursuant to leave granted to all parties, briefs were
thereafter filed by the Respondents Krimm and Northern. -
' The General Counsel and his representative at the hearing are herein referred to as the
General Counsel , and the National Labor Relations Board as the Board.
' The issue as recognized and fully litigated at the hearing was Northern 's liability as
successor to Krimm. It was stipulated that Northern 's "responsibility is by ...
Inheritance."
CHARLES R. KRIMM LUMBER COMPANY 1583
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following : -
FINDINGS OF FACT
1. THE RESPONDENTS ' BUSINESS AND THE LABOR ORGANIZATION
It was admitted and it was found that until August 31, 1950, Krimm, a Penn-
sylvania corporation, maintained a lumber plant at East Street, Fort Edward,
New York, in the operation of which during the year ending April 1, 1950, it
manufactured products valued in excess of $150,000, of which approximately 50
percent was transported from the plant in interstate commerce to States other
than the State of New York ; that on or about September 1, 1950, Krimm under-
took to sell said plant to Northern ; that from the latter date until February 7,
1951, Northern there manufactured products valued in excess of $75,000, of which
approximately 50 percent was transported from the plant in interstate commerce ;
and that Krimm and Northern are engaged in commerce within the meaning of
the Act.
It was stipulated and the undersigned finds that the Union is a labor organi-
zation within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
Where there are conflicts in the evidence, the undersigned has resolved them;
findings are made herein on the basis of reliable, probative, and substantial
evidence on the record considered as a whole and the preponderance of the
testimony taken.
A. Statement of events'
After a short organizing campaign among Krimm's employees, 20-odd 4 met
with the Union's representative on March 6, 1950, and 24 applications for mem-
bership were turned over to him. A local charter was received and officers
elected on April 6.
In the meantime, the Union sent Krimm a letter claiming majority repre-
sentation and requesting a conference. During the 5 weeks which elapsed before
a meeting was held, the Union filed with the Board a petition for certification,
which was subsequently withdrawn.
At the meeting. which was held on April 11 in the office of McNerney, Krimm's
attorney, in Williamsport, Pennsylvania, McNerney questioned the Union's ma-
jority and called for a Board election. He maintained that inspectors ` should
be excluded from the unit, and the Union agreed. The Union agreed further to
exclude tallymen on condition that Krimm consent to an election. McNerney's
additional request that lumber handlers be excluded was rejected. Thereafter
and by letter, McNerney refused to consent to an election and suggested another
conference with regard to the unit. At no time, in haee verbs, did Krimm refuse
to bargain.
During the morning of April 17, Orwig, general manager of the plant, and
Sutphin summoned the yard employees to a meeting, which was addressed by
McNerney, Lawrence Krimm, and Orwig. A similar meeting was held among
8 Since various alleged violations of Section 8 (a) (1) of the Act are relied on to prove
violation of Section 8 (a) (5), and since some are intertwined with others , all of the perti-
nent events will be set forth in this subsection The questions of violation will likewise
be considered jointly in a later subsection.
' Sutphin and McEwan , supervisors,-were apparently invited and were present.
5 The testimony indicates that this term referred to graders The title was not applied
to any other classification.
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the mill employees. Again, about the middle of May, Krimm called a meeting
of-all of its employees, and he and Orwig polled the employees by closed ballot
on their interest in the Union e At these meetings and at other times, various
remarks were made concerning the possibility of a wage increase.
On a Tuesday or Wednesday early in June, the local Union scheduled a meet-
ing, but only five members appeared. On the following Friday morning, a meet-
ing of- all employees was.called in the yard. The undersigned credits -the testi-
mony of Pagana that the meeting was called on working time ; he was corrobo-
rated in this by several other employees ° In the presence of Sutphin and Hamblet,
yard -foreman and mill foreman respectively, the employees, by show of hands,
voted to disaffiliate from the Union and to deal directly with Krimm through
a committee of three which included Gifford, who had been the local's president.
The committee met with Lawrence Krimm, Orwig, and Sutphin the following
morning, declared that the employees had disaffiliated themselves, and asked for
a wage increase ; no increase was forthcoming or promised at that time. At
some unknown date prior to this meeting, which was held on a Saturday morning,
Gifford and several other employees had spoken to Orwig about an increase, and
the latter promised to and did call Lawrence Krimm about it. Also prior to this
meeting, according to Lawrence Krimm, Gifford told him that the men wanted
to disaffiliate from the Union. At Gifford's request, Orwig prepared 8 a letter
addressed to the Union, with a copy to the Board, requesting withdrawal of the
certification petition. These letters were signed by Gifford and sent on or about
June 17. On July 1, Gifford sent another letter to the Board in which he inquired
concerning "steps taken to discontinue" the pending certification proceeding.
Whether, as Gifford testified, he dictated this second letter with Orwig's permis-
sion to a clerk in Krimm's office, or, as appears more likely from consideration
of his testimony and a letter which he wrote in longhand, it was dictated and
prepared by Orwig or at his direction, Krimm's connection is clear.
Various employees then asked Orwig, according to his testimony and Lawrence
Krimm, according to his, for information and assistance in preparing a petition
to the Union to terminate its representative status and to request withdrawal of
the petition filed with the Board; and a second petition, to Krimm, requesting
a wage increase. The petitions were prepared by McNerney, brought to the
plant by Lawrence Krimm, and there passed by the latter and Orwig among the
employees, who signed at the request and in the presence of the two company
officials. Among the signers were supervisors and employees who had not au-
thorized the Union to represent them.
Gifford then picked the petitions up at Krimm's office, told Orwig that he was
going to send them to the Union, and did so send them on August 8. (The peti-
tions are dated July 13, 1950.) Krimm maae an agreement of sorts with tl e
committee concerning wage increases for new employees, and an increase w is
put into effect the week ending July 22.
B. The appropriate unit and majority representation
With respect to the appropriate unit, the differences among the parties con-
tered around the classifications of tallymen and lumber graders. The complaint
6 The ballots were not counted in the employees' presence, and they were apparently not
advised of the result. Lawrence Krimm testified that the tally was 15 against and 11 for
the Union, with no blanks, although 1 employee, French, testified that he had deposftad
a blank ballot.
The undersigned has not overlooked such testimony as that given by French, who
declared that the meeting was not held on working time.-
$ The letter was not Gifford's composition ; it is evident, as he testified, that he only
"basically" prepared it.
CHARLES R. KRIMM LUMBER COMPANY 1585
alleged two units in the alternative, the first including both of these classifica-
tions, and the second omitting graders. At the hearing, General Counsel main-
tained the appropriateness of both classifications in the unit while the
Respondents questioned only the inclusion of either.
It appears that in April 1950 Pagana was a tallyman, that he gradually and in
increasing degree performed the duties of grader, and that he is now a grader
although still occasionally acting as tallyman. Some but not as detailed testi-
mony was received concerning the other employees who were listed as graders
and tallymen (there were four in all) ; one, McEwan, is concededly a supervisor.
The various employees perform multiple functions and there is an easy trans-
ferability among them as the need arises. While they perform their duties-
at this yard, however, graders can be identified as such, tallymen likewise, and
so on with other classifications. The need exists in each case to determine
whether and to what extent an employee serves as a tallyman or grader. Further
whether a classification is to be included in the unit depends on the duties as
indicated in the instant proceeding, and not on the designation employed.
Although their duties are largely clerical, tallymen are production and main-
tenance employees who work closely with and assist those employees who are ad-
mittedly in the appropriate unit. It was testified that a tallyman was on one
occasion told that he was "in charge of" two lumber handlers and that "he
had the right to turn those men in to (the foreman) for firing or whatever."
Such occasional and routine direction as a tallyman exercises does not approach
supervisory authority. It is found that tallymen are in the appropriate unit.
While the evidence is conflicting on the question of graders' right to hire and
fire, it is found that they do responsibly direct from 2 to 12 other employees
and are therefore to be excluded from the unit as supervisors.'
As noted, the difference between the classifications is clear enough even though
inquiry and specific information may be necessary before a given employee can
be properly classified. General Counsel's position at the hearing was, and it ap-
pears from the record, that, if all or any who were listed as tallymen and graders
were excluded from the unit, the Union's majority would not be impaired; it is
therefore unnecessary for present purposes to classify each of those employees.
Excluding Hamblet, Sutphin, and McEwan as supervisors from a list of 30
employees submitted by Krimm as of April 17, including Pagana as a tallyman
in April-1950, and leaving undecided the question whether Barlow and Chapman,
each listed as grader and tallyman, were one or the other, there were 25 or 27
employees in the unit. Comparable exclusion of any of the 24 membership appli-
cation cards indicates the Union's majority. (That majority is swelled by inclu-
sion of employees who testified that they were union members or had signed
application cards.)
It is found that the following classifications of employees at the Fort Edward
plant constitute an appropriate unit for the purpose of collective bargaining:
All production and maintenance employees, including tallymen, lumber han-
dlers, lift operators, and truck drivers and helpers, excluding office and clerical
employees , lumber graders, watchmen , guards, and supervisors as defined in the
Act.
Consideration has been given to the inference which General Counsel suggests may be
drawn from the inclusion of graders among those polled by Krimm in May as suggesting
the latter's estimate of the appropriate unit. Contrariwise, it must be noted that the
July 13 petitions were signed not only by those who might be classified as graders, but
also by Sutphin and McEwan, who were supervisors and admittedly outside the unit. It
is clear that on these occasions Krimm was concerned with numbers to the exclusion of
appropriateness of unit
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further found that since on or about March 7, 1950, when the Union notified
Krimm that it claimed 1° a majority, the Union has been the representative for
the purposes of collective bargaining of a majority of the employees in said unit."
C. The interference and' the refusal to bargain
Authority is not lacking to show that the "May poll" taken by Krimm consti-
tuted interference , restraint , and coercion , and violated Section 8 ( a) (1) of the
Act." Such interference is highlighted as, on the basis of this informal poll and
secret count , to quote Lawrence Krimm, "it got out among the men that they were
against the Union."
Before the several versions of. the statement concerning wage increases are
considered , it should be remembered that an employer 's denial of intent to inter-
fere is not determinative . The question is whether "statements may reasonably
be held to have tended to interfere." 13
Wood, a mill employee , testified that at the April 17 meeting which he attended
Lawrence Krimm "said that if the men wanted to abolish the Union, that he
thought he could go along on wage increases ; that at the present time his hands
were tied to make any increases but . . . if we abolish the Union , he might
be able to make increases ." Wood testified further that in June Lawrence Krimm
said, "I cannot make any wage increases at this time , due to the matter of the
Union before me." Pagana testified that at the May meeting , Lawrence Krimm
told all of the employees that they "would receive a raise as soon as the Union
was cleared up."
The testimony of these witnesses indicates that these remarks may not only
be reasonably held to have tended to interfere , but were in fact accepted and
regarded by the employees as threats and promises of benefit to induce dis-
affiliation.'4
Gifford testified that when he and several other employees asked Orwig for
an increase , they were told that "under the present circumstances , he would
be unable to advance any wages to anyone ." In the face of such evidence,
Gifford's testimony that Lawrence Krimm later told him that he could grant
no increase "until such time as we had either formed our union or did otherwise"
is at best cryptic" If it be claimed that such a statement was made in good
faith , Krimm is nevertheless responsible for its employees ' interpretation and
the interference which might reasonably , and actually did, result 18 But that the
discussion was premised on disaffiliation is further indicated by Wood's
uncontradicted testimony that Gifford asked Lawrence Krimm , "what guarantee
do we have that these wage increases will come about , if we abolish the Union?"
and that the reply was , "You have my word."
True, Pagana replied in the affirmative when asked whether Lawrence Krimm
,had explained that he could be charged with an unfair labor practice if he
10 The effect of Krimm's acts as validating that claim is hereinafter considered.
11 Such status is not affected by a showing of loss of majority attributable to an unlaw-
ful refusal to bargain. West Texas Utilities Company, Inc, 85 NLRB 1996.
12 E. g , Granite State Machine Company, Inc., 80 NLRB 79.
1s Goodall Company, 86 NLRB 814.
14 The actual effect on employees is considered not as proof of the tendency of any
statement but, the tendency noted, to determine the question of credibility and to find
what was actually said in view of the conflict in testimony.
15 The conversation between Gifford and Lawrence Krimm, the presidents of the local
and the Employer respectively, held before the meeting with the committee and presumably
before the disaffiliation vote and in which Gifford declared that the men wanted to dis-
affiliate, casts further light on the relationship between the two, on the former's protean
attitude, and on his impression of the latter's reaction to discontinuance of union
activities.
10 Minnesota Mining d Manufacturing Company , 81 NLRB 557.
CHARLES R. KRIMM LUMBER COMPANY 1587
granted an increase during an organization campaign. Further, Lawrence
Krimm testified that he mentioned both possibilities, affiliation and disaffili=
ation, when he refused a wage increase. But not only is such a statement
contrary to the other testimony in this connection and unlikely in any such
form in view of his purported knowledge that the employees had previously,
in his own poll, declared themselves as opposed to the Union, but the transcript
of remarks made at the meetings which was offered by Krimm indicates that
his words were : ". . . we don't know what we can do until this union matter
straightens out." Clearly his testimony that he stated both alternatives is
not reliable and was offered to counteract the proven promise of benefit.
Orwig testified to a similarly violative statement in his reply to Barlow
that he couldn't do anything about an increase "under the circumstances of the
possible unionization."
Realizing that the Union was "in the picture," Krimm could have recog-
nized it as majority representative, bargained, and granted an increase. On
the other hand, it could have refused to bargain until after a proper election,
provided that it did not interfere with its employees' union activities. But
Lawrence Krimm's and Orwig's statements that an increase was prohibited
and could not be granted, even while they referred to the organizing campaign
and refused to recognize the Union, were thinly veiled suggestions that the
Union be excised and a promise of benefit thereafter. It does not behoove an
employer under such circumstances to submit to employees an explanation of
the law so limited as to indicate not merely an expression of opinion but also
its preference and a benefit to be granted if that preference be favored.
It is found that these statements by Lawrence Krimm and Orwig in April,
May, and June were conditional promises of benefit contingent on disaffiliation,
and threats of withholding of benefit on failure of the condition, and were viola-
tive of Section 8 (a) (1) of the Act.
Lawrence Krimm's statement to his employees in May, "I doubt if you will
make as much money under a union in a year than you do now," appears to
skirt the border of violative remarks. As a promise of higher wages in case of a
union's defeat is a violation of the Act, so is a threat of loss of benefits in case
of victory. Expressed in terms of doubt, however, and inartistically phrased,
this remark may have referred only to a possible consequence, hereinafter men-
tioned, of the Union's anticipated demands or conceivably to loss by payment of
union dues. It is not found that this statement combined a threat of reprisal
with the otherwise lawful expression of opinion.
McNerney's statement that "the roof may tumble in" was a warning of result
if the Union should "force this Company to pay wages and give benefits that
its financial condition (would) not permit." As such, it was focused toward
possible demands by the Union and action which might be taken to enforce
such demands. It was not directed against the employees' rights to organize
or to engage in collective bargaining. These remarks, it is, found, did not con-
stitute interference or restraint within the meaning of the Act."
Wood testified that Lawrence Krimm, at the April meeting, said that he
favored a company union; but the witness later explained that he meant
an independent union. Any suggestion of interference in this connection is
insubstantial. Nor will a finding of threat be based on the isolated statement
attributed to Lawrence Krimm that if the Union were to come in, he might
be forced to close ; none of the other witnesses mentioned any such threat.
"Directed toward the demands which the Union might make, this was no anticipatory
and blanket refusal to deal with it and indication of the futility of designating it. Cf.
Salant & Salant, Incorporated, 92 NLRB 343.
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the disaffiliation petition, while it was testified that the
employees "had to do. something to get something done" and disaffiliated of
their own volition, and that Krimm did not bring about that decision, such a
conclusion by a witness does not preclude consideration of the events which
preceded the decision. This is especially so since acts are unlawful if their
natural consequence is to interfere with employees' statutory rights, and without
proof of such actual result.
An employer's desire to avoid such interference, as may be found in the grant
of an increase while a demand for recognition is pending, might manifest itself
in the speeding of recognition procedure. Without attempting to assess blame
for delay in the instant situation, there was certainly no evidence of effort to
hasten the proceedings. Whatever else Krimm might properly have done under
the circumstances, it did not show good faith when it interfered as hereinabove
noted and almost immediately followed its refusal to grant an increase with
its proven activities in connection with the disaffiliation petition.
Where employees desire disaffiliation, they may freely proceed to obtain such;
likewise, an employer may test a union's representative status by filing a peti-
tion under Section 9 (c) (1) (B) of the Act.'8 But an employer may not make
the remarks noted herein and sponsor, as it did here, a petition for disaffiliation
and letters of withdrawal of a petition for certification.19 Nor can we overlook
the fact that the vote to disaffiliate was taken on working time and in the presence
of supervisors.
While it was stated to Lawrence Krimm that the employees were dissatisfied
and wanted to disaffiliate, there was no more warrant for the Company to rely on
such declarations especially while the representation proceeding was pending
than there was compulsion on it to rely on the union-authorization cards as
establishing the Union's authorization. Having declared that the question of
affiliation and authorization should be determined in a Board-conducted elec-
tion, it should have been consistent and at least permitted, if not hastening,
determination in that manner.-
Where doubt is alleged concerning a union's majority, the commission of unfair
labor practices warrants a finding that such doubt was not bona fide but was
motivated "by a desire to gain further time in which to undermine (the Union's)
support." 2p It is therefore found that by the acts of interference described
above, Krimm refused to bargain collectively with the representatives of his
employees. Krimm's refusal to bargain is'established as of April 11, when the
parties met in Williamsport, and'6 days before the speeches of April 17.
Other instances of interference which under the circumstances pointed up and
were part of the refusal to bargain,;' were the negotiation of a wage increase
with the committee, the agreement with the committee concerning wage increases
for new employees, and the actual increase. Whether or not by agreement prior
or subsequent to the execution of its employees' petition for a wage increase,
which petition had been prepared by its attorney, Krimm, it is noted, made such
increase "effective the next pay period," as requested in the petition. The
members of the committee were thefirst to sign this petition.
III. NORTHERN' S RESPONSIBILITY FOR REMEDYING THE UNFAIR LABOR PRACTICES
The minutes of the July 1, 1950, meeting of Krimm's board of directors indi-
cate the decision to expand sawmill operations in the Fort Edward area "so as
18 Heider Manufacturing Company, 91 NLRB 1185.
19 Royal Palm Ice Company, 92 NLRB 1295.
90 Inter-City Advertising Company of Greensboro, N. C., Inc, 89 NLRB 1103, see also
Everett Van Kleeck & Company, Inc., 88 NLRB 785, affirmed 189 F. 2d 516 (C. A. 2).
11 Jasper National Mattress Company, 89 NLRB 75. -
CHARLES R. KRIMM LUMBER COMPANY 1589
to meet the increasing needs of this company." The proposed continued rela-
tionship between Krimm and any successor in the operation and ownership of
such sawmills is further indicated by the statement that "Within a reasonable
time after the erection or purchase of these mills, they should be sold, or a new
company formed to take over the manufacturing of lumber in New York State"
(which would include the instant plant).
At Lawrence Krimm's request, Northern was organized in August 1950, the
organizers being Lawrence Krimm, Orwig and his wife, and the attorney.
Krimm then submitted a letter proposal and an agreenient of sale, and on
September 1 Northern accepted them and "took over" the plant.
As a "temporary financing arrangement," Northern issued to Krimm a
6-percent demand promissory note which was to be picked up on issuance of
a series of bonds secured by a trust deed. Northern's attorney explained that
his work was then delayed by the absence of a stenographer and that the attorney
for the trustee was confined to the hospital in the meantime. The bonds had
not been issued at the time of the hearing, nor had any payment been made on
account of principal or interest on the promissory note.
Krimm acts as sales representative for Northern. As for the work at the
plant, Orwig testified that Krimm's and Northern's operations were "very
similar" and that his duties have been "essentially the same." ^ Further, the
employees of the one were retained by the other, and in the same capacity.
Although it followed the filing of the charge herein, there is no evidence
that Northern was injected into the situation to evade liability for unfair labor
practices. But, whatever the motive, the relationship between the old and the
new must be recognized. There was not and could not be any divorcement from
the knowledge n acquired by Krimm's officers and general manager, which was
attributable to Northern since virtually the same people held such posts in
both corporations ; or from the responsibility for such practices while the
ultimate legal and equitable interest continued with .little modification despite
the change in name."
All of Northern's stock is owned 28 by Lawrence Krimm and his brother,
Harry, the two major stockholders in Krimm. Various details may be mentioned
as significant and as further indicating the less than arm's length nature of the
transaction since they would not normally be present in the sale of a business.
One such is the omission to endorse the fire insurance policies until January
29, 1951. Another, relating to the same insurance, is the fact that at the time
of hearing the accountants for both Companies were "presently working out"
the amount of the premiums, previously paid by Krimm , which was chargeable to
each 26 - -
But these latter are mere details in this transaction which In fact was cancel-
able at will by the putative seller. It was noted that as to the real property,
Krimm remained the record owner of title while Northern was a purchaser under
"See Indianapolis Wire-Bound Box Company , d/b/a Cleveland Veneer Company, 93
NLRB 875.
23 I bid
24 Southport Petroleum Co v. N. L R B., 315 U S. 100
25 Lawrence Krimm testified that it is customary in the trade to advance funds to other
firms and even to set companies up in business in order to obtain a supply of lumber at a
favorable price . While such a custom would not lessen the responsibility herein consid-
ered, the relationship with Northern was one of alter ego and different from that with all
other companies cited : only in Northern does Lawrence Krimm or his associate own stock.
20 Also , although insurance with slight unearned premiums on several automobiles was
transferred to Northern on September 1, 1950, the vehicles were transferred some time
later.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract. Since only a temporary financing arrangement was made Z' and con-
tinued, and a demand note issued for the entire consideration, the equity as well
as the legal title remained in Krimm. The stated purpose of "completely
divorcing the operations of Fort Edward from the Krimm Lumber Co." may
have been accomplished : there may have resulted a tax saving and bookkeeping
simplification as allegedly intended. But even if the Companies thereafter
dealt at arm's length and Krimm made no payments to Northern except for
materials and services rendered , the latter has merely been continuing Krimm's
operation at the yard as a convenience to Krimm, which retains legal title
and full security. There is no basis for absolving the successor from liability
for the unfair labor practices theretofore committed '
It is found that Northern is responsible jointly and severally with Krimm
for taking remedial action herein.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Krimm set forth in Section II, above, occurring in connection
with its operations 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 obstructing commerce and the
free flow of commerce.
V. THE REMEDY
It will be recommended that the Respondents jointly and severally cease
and desist from the unfair labor practices found and take certain affirmative
action in order to effectuate the policies of the Act.
It will be recommended that the Respondents cease and desist from refusing
to bargain collectively with the Union " and also that, upon request, it so
bargain with the Union with respect to wages, hours, and other terms and
conditions of employment, and embody in a signed agreement any understand-
ing reached.
It will be further recommended that the Respondents cease and desist from
interfering with, restraining, or coercing their employees in violation of Section
8 (a) (1) of the Act by interrogating, warning, and threatening their em-
ployees concerning their union affiliation, and offering, promising, and granting
them wage increases.
The refusal to bargain and the independent interference, restraint, and coer-
cion found herein indicate a purpose to limit and direct the organizational
efforts of the Respondent's. employees. Such purpose is related to other un-
fair labor practices, and it is found that the danger of their commission is
reasonably to be apprehended. A broad cease-and-desist order will therefore
be recommended, prohibiting infringement in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Brotherhood of Carpenters and Joiners of America, AFL, is a labor
organization within the meaning of Section 2 (5) of the Act.
2' The evidence to this effect overcomes reference to the note as "in payment of the
purchase price" In Northern 's acceptance of the proposal to sell.
28 The Alexander Milburn Company , 78 NLRB 747.
w The responsibility remains to bargain with the Union although the local may no lon"p,
be in existence . See Lancaster Foundry Corporation . 82 NLRB 1255.
BETHLEHEM STEEL COMPANY 1591
2. All production and maintenance employees at the Fort Edward, New York,
plant, including tallymen, lumber handlers, lift operators, and truck drivers
and helpers, excluding office and clerical employees, lumber graders, watchmen,
guards, and supervisors as defined in the Act, constitute a unit appropriate
for the purpose of collective bargaining within the meaning of Section 9 (b)
of the Act.
3. United Brotherhood of Carpenters and Joiners of America, AFL, was, on
or about March 7, 1950, and at all times since has been the exclusive repre-
sentative within the meaning of Section 9 (a) of the Act, of all employees
in the aforesaid unit for the purposes of collective bargaining.
4. By refusing to bargain collectively with United Brotherhood of Carpen-
ters and Joiners of America, AFL, as the exclusive bargaining representative
of the employees in the appropriate unit, Charles R. Krimm Lumber Company
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (5) of the Act.
5. By such refusal to bargain and by interrogating, warning, and threaten-
ing its employees concerning their union affiliation, and offering, promising,
and granting them wage increases, thereby interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed in Section 7 of the
Act, Krimm has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
7. Northern Pine Corporation is, and since September 1, 1950, has been, the
successor of Charles R. Krimm Lumber Company at the Fort Edward, New
York, lumber plant.
8. Northern is, and since September 1, 1950, has been, responsible for remedy.
ing the unfair labor practices engaged in by Krimm.
[Recommended Order omitted from publication in this volume.]
BETHLEHEM STEEL COMPANY ( SHIPBUILDING DIVISION) and PATTERN
MAKERS' ASSOCIATION OF BOSTON AND VICINITY, PATTERN MAKERS'
LEAGUE OF NORTH AMERICA, AFL, PETITIONER. Case No. 1-RC-
?514. February 11,195 '
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Raymond J. Smith, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
97 NLRB No. 205.