Diamond Lumber Co.

National Labor Relations Board - Board Decisions

Jan 29, 1957

117 N.L.R.B. 135 (N.L.R.B. 1957)

DIAMOND LUMBER COMPANY 135
Diamond Lumber Company, Portland Branch, Plywood Division
and Plywood , Box Shook and Door Council District #9, IWA,
AFL-CIO,1 Petitioner.' Case No. 36-RC-1f42. January 29, 1957
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 Arthur J. Hedges,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.2
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
The Employer and Intervenor contend that a 5-year contract
between them, effective from December 20, 1954, until December 20,
1959, is a bar to the instant petition. The Petitioner contends, inter
alia, that the contract is not one of 5-year duration but is terminable
at will, and assuming, arguendo, that the contract is effective for 5
years, it is of unreasonable duration and no longer a bar. The peti-
tion herein was filed on October 8, 1956.
The record discloses that on December 20, 1954, the Employer and
Intervenor executed a contract effective until December 20, 1959.
The contract provides for reopening of any provision of the contract
on 15 days' notice given by either party, but that all articles not
opened are to continue in effect. On December 31, 1954, and Decem-
ber 5, 1955, the agreement was reopened for wage adjustments. The
1955 supplement provided that subject to certain limited exceptions
"all wage and contract negotiations are closed until April 1, 1957."
The Employer contends that (1) the 1954 contract as supplemented is
a bar until December 20, 1959, because a substantial part of the
"Douglas Fir Plywood Industry" is covered by 5-year contracts, and
(2), in any event, the supplement of December 5, 1955, is a bar for at
least 2 years.
As to (1), the Employer contends that the record shows that Peti-
tioner has contracts with a substantial portion of the "Douglas Fir
Plywood Industry" in certain parts of Oregon and Washington,
where the bulk of that industry is located, and that 95 percent of these
i The names of the Employer and Petitioner appear as corrected at the hearing.
2 At the hearing , Plywood Workers Umon Local #1, Independent , herein called the In-
tervenor , was allowed to intervene on the basis of a contract interest
117 NLRB No. 29.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contracts are for 5 years. However, even if we agree with this view
of the record,3 we are aware of no basis for treating the "Douglas Fir
Plywood Industry" as a separate industry,' for purposes of applying
our contract-bar doctrine, rather than as a segment of the entire ply-
wood or lumber industry. Under these circumstances, we find that
it has not been sufficiently established that a substantial part of the
industry to which the Employer belongs is covered by contracts of
more than 2 years' duration. Accordingly, we find that the 1954 con-
tract as supplemented cannot be a bar for more than 2 years,5 which
period has already expired.
The Employer's second contention is that the 1955 supplement is
a bar, in any event, for 2 years from its date of execution, i. e., until
December 1957. As already stated, this supplement was executed
during the first 2 years of the term of the 1954 contract. It is well
settled that any supplement executed during the term of an existing
contract cannot normally operate as a bar to a petition which, as here,
is timely filed with respect to the original contract.6 This is the so-
called "premature extension" doctrine. An exception to this rule is
that such a supplement may operate as a bar if the original contract
was itself no bar at the time the supplement was signed.' The Em-
ployer seeks to invoke this exception, contending, as its alternative
position, that the 1954 contract was at no time operative as a bar
because that contract was merely a "stopgap" or interim arrangement.
While the Board has held that an interim contract, which the parties
intend to supersede with an agreement for a definite term, is not suffi-
ciently stabilizing to bar a petition,8 there is no evidence that such
was the intention here at the time of the execution of the 1954 con-
tract. Indeed, the fact that the 1954 contract expressly provided for
a 5-year term negatives any intention to use that contract merely as
a stopgap.
The Employer contends further that the 1954 contract was not a
bar at any time because of the reopening provision therein. As al-
ready stated, the 1954 contract provided for reopening any article on
15 days' notice, and that any articles not so opened would continue in
effect. The Employer contends that this clause is tantamount to the
type of unlimited modification clause which was found to remove
the contract as a bar in the Ketcitikan e and General Electric 10 cases.
8 As to the extent of organization of the "Douglas Fir Plywood Industry" by Petitioner,
the record shows only that the Petitioner represents "substantially less than half" of the
employees in that industry The record shows also that no other union in that industry
has 5-year contracts.
4 No such industry is listed in the Standard Industrial Classification Manual
6 Joseph Aronauer Incorporated, 106 NLRB 1382 ; Southeastern Greyhound Ltines, 115
NLRB 1135.
6 Congo leum-Nairn, Inc, 115 NLRB 1202.
t Pasco Packing Co., 106 NLRB 1223. Cf . Congo leum -Nairn, Inc , supra.
8 Bridgeport Brass Company, 110 NLRB 997.
9 Ketchikan Pulp Company, 115 NLRB 279.
11 General Electric Company, 108 NLRB 1290.
EKCO PRODUCTS COMPANY 137
However, we regard the instant clause as more nearly analogous to
a provision rendering the contract terminable at will. As a contract
terminable at will, the 1954 contract operated as a bar for 2 years,"
and the 1955 supplement is equivalent to a "premature extension" as
it was executed during the initial 2-year period and carried forward
the contract's term as modified into a further period when the original
contract would not otherwise have been a bar. Accordingly, we find
no contract bar here.12
4. We find that the following employees of the Employer constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act :
All production and maintenance employees at the Employer's Tilla-
mook, Oregon, plant, excluding office clerical employees, professional
employees, guards, and supervisors as defined in the Act.19
[Text of Direction of Election omitted from publication.]
11 Rohm & Haas Company, 108 NLRB 1285.
' In view of our decision herein , we find it unnecessary to pass upon other grounds urged
by the Petitioner for holding that there is no contract bar
Is The unit finding conforms to a stipulation of the parties.
Ekco Products Company (Sta-Brite Division ) and United Steel-
workers of America , AFL-CIO.' Case No. 8-CA-640. January
30,1957
DECISION AND ORDER
On June 15, 1955, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent,
the General Counsel, and the Charging Union filed exceptions to the
Intermediate Report, and the Respondent and the General Counsel
filed supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in
the case and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the exceptions, additions, and
modifications noted herein.
I The AFL and CIO having merged subsequent to the hearing in this proceeding, we are
amending the identification of the Union's affiliation.
117 NLRB No. 31.