Diamond National Corp.

National Labor Relations Board - Board Decisions

Sep 22, 1961

133 N.L.R.B. 268 (N.L.R.B. 1961)

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Diamond National Corporation and Local 3-119, International
Woodworkers of America, AFL-CIO. Case No. 19-CA-1829.
September 22, 1961
DECISION AND ORDER
On March 23, 1960, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in unfair labor
practices in violation of Section 8 (a) (5) of the Act and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the Intermediate Report attached hereto. The Trial
Examiner also found that the Respondent had not engaged in unfair
labor practices in violation of Section 8(a) (3) of the Act and recom-
mended that the complaint be dismissed with respect to these alle-
gations. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.
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 McCulloch and Members Rodgers and Leedom].
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 In-
termediate Report,' the exceptions and briefs, and the entire record
in this case, and finds merit in the Respondent's exceptions.
1. We agree with the Trial Examiner that the Respondent did not
violate Section 8 (a) (3) of the Act by its treatment of employees Sea-
graves and Gentry.
2. We do not agree with the Trial Examiner that the Respondent
refused to bargain with the Union in violation of Section 8(a) (5)
and (1) of the Act.
In 1941, when the plant in question was owned by Ohio Match Com-
pany, the Board certified the Union as bargaining representative of
the plant's production and maintenance employees. Thereafter, the
Union and Ohio Match were in continuous contractual relations until
April 17, 1959, when Ohio Match terminated its employees and sold
the facilities involved to the Respondent. The last collective-
bargaining contract between the Union and Ohio Match contained a
maintenance-of-membership clause.
Ohio Match and the Respondent are completely separate and dis-
tinct companies. In the purchase agreement, Respondent did not
assume responsibility for Ohio Match's accounts payable or other
1 The following inadvertence in the Intermediate Report is hereby corrected : Alex
Schierman was never employed by the Respondent as stated in section III, C, 4, c
133 NLRB No. 34.
DIAMOND NATIONAL CORPORATION 269
liabilities except as to certain timber cutting contracts; nor did Re-
spondent undertake to employ former Ohio Match personnel.
At the time of the sale to Respondent, Ohio Match was operating a
saw mill, a match block plant, a planing mill, and related facilities.
At this time there was 45 employees working in the match block plant
and 245 in the lumber manufacturing facilities.
In May 1959, Respondent began preparations to resume operations.
It hired a staff of 12 managerial officials, of whom only 5 had pre-
viously worked for Ohio Match. It also hired rank-and-file employees
without giving preference to former Ohio Match employees. In re-
activating the plant, Respondent did not put the match block facility
back into operation. Also, in resuming other operations Respondent
made certain improvements which enabled it to reduce the number
of employees in lumber manufacturing from 245 to 200. Accordingly,
when Respondent was in full operation by June 15, 1959, it had 200
employees in place of the 295 formerly employed by Ohio Match. Of
these 200 employees, 134 had formerly worked for Ohio Match.
The Union asked Respondent for recognition as bargaining repre-
sentative of the production and maintenance employees at various
times in April and May 1959. Respondent replied that the request was
premature. On June 4, while Respondent and the Union were con-
ducting collective-bargaining negotiations for other plants of Re-
spondent, the Union again requested recognition for the former Ohio
Match plant employees. The Respondent replied that it would not
grant recognition without an election by the Board. The Union then
said that it would file a representation petition with the Board; Re-
spondent indicated that this was acceptable and promised to agree to
a consent election. On June 12, Respondent sent letters to employees
informing them that it favored operating without a union. There is
no contention that this letter was unlawful. On June 16, the Union
wrote Respondent claiming to represent a majority of the employees
in the appropriate unit and suggesting that a cross-check by an
independent examiner would establish this fact. Respondent in reply
said that it would not recognize the Union without an election because
it did not believe that the Union represented the claimed majority.
However, it promised to abide by the results of such an election. The
Union thereafter filed refusal to bargain charges.
When, in June 1959, Respondent expressed doubt as to the Union's
majority and insisted upon a Board election to establish that fact,
certain material changes had taken place since the cessation of oper-
ations by Ohio Match. Thus, there had occurred a complete change in
ownership, a substantial change in management, a modification in
operations, a marked reduction in the number of employees, and an
even more marked reduction in the number of former Ohio Match
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees at work. In determining Respondent's state of mind in
insisting upon an election, we have considered not only the foregoing
but also the fact that the last election had been held approximately 1$
years previously; the willingness of Respondent to agree to a consent
election, which indicates that Respondent was not insisting upon an
election for purposes of delay; 2 the absence of any unfair labor prac-
tices either before or after the insistence upon an election which would
have made a free election impossible, and which also indicates that
Respondent was not motivated by a desire to gain time in which to
undermine the Union; the promise to abide by the results of the elec-
tion; and the indisputable fact that Respondent has been bargaining
amicably with the Union's parent International for other plants
which it owns, which indicates no opposition to the collective-
bargaining principle. In the light of all the foregoing circumstances,
we conclude and find that in insisting that the Union prove its ma-
jority in a secret election conducted by the Board, Respondent was
motivated by a good-faith doubt of the Union's majority status.
Accordingly, we further find that by refusing to accord recognition
to the Union without an election, Respondent did not violate Section
8(a) (5) and (1) of theAct3
Inasmuch as we have adopted the Trial Examiner's recommenda-
tions for the dismissal of other allegations of the complaint, we shall
dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
2 Clem D. Johnston , d/b/a Roanoke Public Warehouse, 72 NLRB 1281.
8 CP. Bthnska Sausage Manufacturing Company, Inc., 132 NLRB 229.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under the Labor-Management Relations Act, 1947, as
amended, 61 Stat. 136, herein called the Act. The complaint alleges violations of
Section 8( a)(3) and (5), with derivative violation of subsection (1). The Re-
spondent's answer denied the unfair labor practices and pleaded justification for its
undenied conduct.
Pursuant to notice , a hearing was held at Coeur d'Alene, Idaho, between Novem-
ber 17 and 19, 1959, before the duly designated Trial Examiner. At the opening
of the hearing, the General Counsel moved to amend the complaint in a few minor
matters and the motions were granted without opposition . Also, at the opening of
the hearing, counsel stipulated to a correction of the pleadings to show that the
Respondent , in the complaint entitled Diamond Gardner Corporation, had, in a
merger with another company in September 1959, become Diamond National Cor-
poration , and that the Union, in the complaint described as Local 10-119, had in
August 1959, become Local 3-119 . These corrections were, therefore , made on the
face of the pleadings . At the close of the Respondent's case, it moved to amend
the answer to delete an allegation that the Respondent gave preference to former
Ohio employees over other applicants than Respondent 's own employees in layoff
status. The motion was granted.
From my observation of the witnesses , and upon the entire record in the case,
I make the following:
DIAMOND NATIONAL CORPORATION 271
FINDINGS OF FACT
1. JURISDICTIONAL FACTS
The Respondent, a Delaware corporation with its principal office and place of
business in the city of New York, New York, is engaged in logging in the States of
Idaho, Washington, and Montana, and the manufacture of lumber and other timber
products near Coeur d'Alene, Idaho. The Respondent ships annually timber prod-
ucts from its Coeur d'Alene, Idaho, operation to points outside the State of Idaho
valued in excess of $100,000. No issue is raised as to the jurisdiction of the Board.
II. THE LABOR ORGANIZATION
Local 3-119 (and its predecessor Local 10-119 ), International Woodworkers of
America, AFL-CIO, herein called the Union , is a labor organization admitting to
membership employees of the Respondent . No issue is raised as to the Union's
status as a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
1. Ownership and operation of the plant
Before April 17, 1959, the Ohio Match Company, herein called Ohio , a wholly
owned subsidiary of Hunt Foods and Industries , Inc., owned and operated at Huetter,
Idaho , near Coeur d'Alene , a lumber and match block plant. ( It is sometimes re-
ferred to in the record as the Huetter plant and sometimes as the Coeur d'Alene
plant. ) The plant included a sawmill , match block plant, planing mill , and other
facilities . Ohio also owned certain timberlands and cutting rights to timber, pri-
marily in Idaho.
Before April 17, 1959, the Respondent ( at that time Diamond Gardner Corpora-
tion , which was , by merger in 1957, the successor to Diamond Match Company and
Gardner Board and Carton Company ) was in no way related to Ohio either in
ownership , directorship , or management . Like Ohio , it had timberlands and cutting
rights in the Northwest . It also had lumber and match manufacturing plants
throughout the United States. In the Northwest , it had lumber manufacturing plants
at Cusick , Washington , and Albeni Falls, Idaho , and a match block factory at
Spokane, Washington . The properties in the Northwest were known as the North-
west Lumber Division.
On April 17, 1959, the Respondent entered into an agreement with Ohio by which
the Respondent bought from Ohio certain timberlands , timber cutting rights, and
timber on hand ( about 22,000,000 board feet of timber was on hand ), the match
block and lumber manufacturing plants ( together with appurtenant chattels and
equipment ) at Huetter, Idaho, and Ohio 's logging operations . In September 1959,
Diamond Gardner Corporation merged with United States Printing and Lithograph
Company and took the name of Diamond National Corporation . The word "Re-
spondent" will be used to describe both Diamond Gardner and Diamond National-
2. Employees hired by Respondent
On April 17, 1959 , upon the sale of the aforesaid properties, Ohio terminated the
employment of all its employees at the Huetter plant . Between that date and the
time it began hiring in May, the Respondent did not operate the plant . In the agree-
ment of sale, Respondent assumed no liability for any accounts payable or any
other liabilities with one exception ; that was, in those instances where timber cutting
contracts were assigned , to complete the assigned contracts . The sale's agreement
also provided that Diamond Gardner did not undertake to employ any of the Ohio
personnel or, if it employed any, to keep them in its employ.
In early May the Respondent hired some supervisors and office employees for
the newly acquired plant, and on May 6 it began taking applications for employ-
ment of production and maintenance employees . The taking of these applications
had been preceded on May 5 by a news release stating that the plant would start
operating on a one-shift basis on May 18, 1959, and that if operating efficiency
proved satisfactory , a second shift would be added on May 25 . This announcement
also stated that the planer department would start about 2 weeks after the first shift
and that the Respondent did not plan to produce match blocks at Coeur d 'Alene,
since it had a match book plant in operation in Spokane . It further stated that the
applications of its own employees in layoff status at other plants would be given
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consideration and that when the experienced personnel available from that group
was obtained, consideration would be given to former employees of Ohio and any
others who might apply.
Twelve management employees were hired to operate the plant. Of these, five
were former supervisors at Ohio, four were from the Respondent's other plants, and
two were from neither. The new superintendent, the top management representa-
tive in Coeur d'Alene, was Milfred Jones, who had been hired by the Respondent
as a consultant on a fee basis between December 1958 and May 4, 1959. Before
the sale of the plant by Ohio, he had consulted with the Respondent about the pur-
chase thereof. He testified that he made the recommendation to operate the Coeur
d'Alene unit on April 24 or 25, 1959 (which was a few days after the sale had
been consummated), although tentative plans had been discussed before that date.
Production and maintenance employees were hired for the first shift during the
second week of May. By May 18, the Respondent had hired 74 employees, of whom
59 were former Ohio employees and 6 had formerly been employed by the Re-
spondent, leaving 9 who had come from other sources. Between May 19 and 27,
an additional 71 employees were hired. Of this group, 55 were former Ohio em-
ployees, 5 were former employees of the Respondent, and 11 were from other
sources. Between May 28 and June 4, another 24 employees were hired, of whom
12 were former Ohio employees, 1 was a former Respondent employee, and 11
were from other sources. Between June 5 and 16, the Respondent hired another
group of 31 employees, of whom 8 were former Ohio employees, none were former
employees of the Respondent, and the remaining 23 were from other sources. By
July 13, another group of 14 employees had been added, all but 1 of whom were
from outside sources. A certain number of the foregoing employees hired in each
of the periods mentioned left the employ of the Respondent, but the evidence does
not give the dates of termination. It may be that some of the employees hired in
each of the periods starting after May 18 were replacements. Leonard Luby, the
Respondent's manager of industrial relations for the Northwest Lumber Division,
testified that the Coeur d'Alene plant did not have its full complement of employees
until June 15. I take this to mean that by June 15 the Respondent had hired the
full complement of employees and that employees hired after that date were prin-
cipally either replacements or temporary employees.'
3. Operations of the plant
Under the ownership of Ohio, the sawmill had been operated since about 1921.
A planing mill was added in 1934, and in 1949 Ohio built and began operating a
match block plant. At the time of the sale to the Respondent, Ohio was in full
production, having about 45 employees in its match block plant and about 245 in
its lumber manufacturing facilities. Ohio (including its successor, Hunt Foods)
acquired the timberlands and manufacturing facilities in Idaho as the primary source
of its match plank and match block in order to operate its match manufacturing
plant at Wadsworth, Ohio, described in a stipulation of the parties as the world's
largest. In addition to the match block produced from its own match plank, Ohio
also bought match plank on the market to produce match block at its Huetter plant.
About 35 to 40 percent of Ohio's production at the Huetter plant was Idaho white
pine and about 20 to 25 percent of the white pine used was cut to match plank.
According to a stipulation of the parties, Ohio, "coincidental with the manufacture
of match plank," produced "some" commercial lumber.2
The Respondent began operations of the sawmill of the Huetter plant on a one-
shift basis on May 19, 1959. The planing mill started on one shift on May 27 and,
on the same day, the sawmill began a two-shift operation. The planing mill followed
with a two-shift operation on June 15. The Respondent did not put the match block
plant into operation. The normal complement of production and maintenance
employees contemplated by the Respondent for its operations was 200. This may
be compared to the 245 who were being employed by Ohio on April 17, 1959,
exclusive of the employees in the match block plant.
1It may be observed that the majority of terminations came in the groups hired after
June 4 and that by far the majority of terminations were of employees hired from out-
side sources other than Ohio or the Respondent
2 The quoted words tend to subordinate the production of lumber to the production. of
match plank and match block. The latter may have been of prime importance to Ohio at
its Wadsworth plant, but both the comparative number of employees and the percentage'
of the total amount of timber used at the Huetter plant create the picture that the
match plank and match block production, although an important part of the operations,
was actually only a small part of the total operations.
DIAMOND NATIONAL CORPORATION 273
The record contains evidence in some detail comparing the operations of Ohio
and the Respondent and showing the changes effected by the latter. Such changes
as are shown, however, do not change the functions of the sawmill or planing mill
but merely effect changes in methods in the interests of efficiency. By such changes,
the Respondent was able to eliminate a number of jobs and, in consequence, to
reduce the total number of employees needed to operate the plant.
4. History of collective bargaining at Ohio
On December 5, 1941, the Union, then Local No. 2-119 (predecessor to Local
10-119 and Local 3-119), was certified by the Board as the collective-bargaining
representative of the production and maintenance employees of Ohio at the Huetter
plant. Thereafter, and until the time of the sale of the plant, Ohio and the Union
had a series of collective-bargaining contracts, with brief periods intervening in some
instances between contracts. In these periods, there were two minor strikes and one
major one. The latter occurred in 1957 and extended from July 25 to December 7
of that year. The last contract between the Union and Ohio, entered into on Decem-
ber 7, 1957, provided that it was subject to modification or termination at the notice
of either party given 60 days prior to the expiration date or anniversary thereof
but that the contract should continue in force pending negotiations. The reopening
date was June 1, 1959, and in March the Union gave notice of desire to amend
and Ohio gave notice of desire to terminate, "looking forward to a new agreement."
On April 17, 1959, the day of the sale, Ohio gave the Union written notice thereof
and notice that all employees coming under the Union's jurisdiction were being
discharged on the same day.
B. The refusal to bargain
1. The appropriate unit
The complaint, as amended, alleges and the answer denies that since June 15,
1959, the appropriate unit within the meaning of Section 9(b) of the Act is com-
posed of "all production and maintenance employees of the Respondent at its lumber
manufacturing plant at Coeur d'Alene, Idaho, excluding office and clerical employ-
ees, professional employees, supervisors, and guards as defined in the Act." The
Respondent, in its answer, affirmatively alleges that the appropriate unit is composed
of "all its production and maintenance employees at its Coeur d'Alene Unit, except-
ing and excluding all office and clerical employees, supervisors, independent con-
tractors and their employees, and guards and professional employees" as defined in
the Act. With the exception of the exclusion of guards (which exclusion was omitted
in the original complaint but was added to the allegation of the appropriate unit
by amendment thereto at the opening of the hearing), the only difference between
the units as described in the complaint and in the answer is the expressed exclusion,
in the latter, of independent contractors and their employees. As independent con-
tractors and their employees are not employees of the Respondent as described in the
complaint, there is no reason for expressly excluding them. If a dispute might arise
as to who is or is not an independent contractor, the dispute is as to matter of fact
which can be cleared up by definition in a collective-bargaining contract if one is
negotiated; independent contractors and their employees are not a classification that
requires exclusion as a matter of law. - Indeed, independent contractors are expressly
excluded from the definition of "employee" in Section 2(3) of the Act.
Accordingly, iI find the appropriate unit to be as alleged in the complaint as
amended and as is quoted therefrom hereinabove.
2. The Union's majority in the appropriate unit '
The Union's collective-bargaining agreement with Ohio contained a maintenance-
of-membership clause and a provision for voluntary checkoff of dues. As of
April 17, 1959, almost 100 percent of the employees in the collective-bargaining unit
at Ohio were members of the Union and most of these paid their dues by checkoff.
As of June 16, 1959, the Respondent had employed its normal complement of 200,
and of the 200 so hired by that date, 134 were former Ohio employees, all of whom
were very likely members of the Union. Of this 134, there were 117 who, as of
April 1, 1959, had signed authorizations for payroll deduction of their dues to the
Union. Unless there is evidence to show, therefore, that some of the 117 had sud-
denly resigned from the Union before they were hired by the Respondent, they were
-still members of the Union and the Union would have been their collective-bargaining
624067-62-voL 138-19
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agent. As of June 16, 1959, therefore, the Union was the exclusive representative
selected for the purpose of collective bargaining by the majority of the Respondent's
employees in a unit appropriate for such purposes as described in Section 9(a) of
the Act.
3. The request to bargain and the refusal
From the time that rumors of an impending sale of the Ohio plant were heard in
March 1959, the Union sought a commitment from the Respondent to recognize
the Union as the collective-bargaining representative of the employees. On March 13,
1959, the Union wrote to the Respondent in Spokane for the attention of Leonard
Luby, the manager of industrial relations for the Respondent's Northwest Lumber
Division, asking the Respondent to recognize existing contracts between Ohio and
the Union in the event that the Respondent purchased the Coeur d'Alene plant.
Luby replied to this request on March 17, stating that since the Respondent had not
purchased the Ohio Match Company, the Union's request for recognition was im-
proper and would be dismissed. The Union on March 18 stated that the Union's
request would remain before the Respondent until Ohio confirmed the fact that that
company had not been sold to the Respondent.
On April 17, 1959, Ohio notified the Union of the disposal -by Ohio of its timber
holdings and plant facilities in the Coeur d'Alene area and of the termination of the
employment of all employees coming under the jurisdiction of the Union. The
Union on April 24, 1959, again wrote the Respondent repeating its request for
recognition and requesting a meeting to discuss collective bargaining. To this last
letter, Luby, on behalf of the Respondent, replied, on April 30, stating that the
Respondent had bought certain assets of Ohio but had not bought that Company
nor assumed its liabilities nor Ohio's contract with the Union and that since the
Respondent had no production and maintenance employees at the Coeur d'Alene
plant, it still considered the Union's request for recognition to be improper.
On June 4, 1959, the Union was in collective-bargaining negotiations with the
Respondent concerning employees at several of the Respondent's plants at other
localities In one proposed clause of the proposed agreement the Respondent sug-
gested specific language to exclude the Coeur d'Alene unit The Union's repre-
sentative said that the exclusion was unnecessary since there was nothing in the
agreement to imply that the Coeur d'Alene unit was covered. In connection with
the discussion over this clause, the union representative asked if the Respondent would
recognize the Union at Coeur d'Alene. The Respondent's attorney replied that it
would if the employees voted on it in a secret ballot election, subject to agreement
on a unit. A little later in the meeting, the same union representative stated that the
Union would not make a claim that the "woods contract" (apparently covering the
logging operations represented by the Union at the various places for which the
agreement was being negotiated) included Coeur d'Alene. A witness for the
Respondent quoted the Union's representative as then saying, "We will file a petition
and if there are any woods employees in the Coeur d'Alene unit, we will include
them in the proposed unit We will petition and the petition will be for all employ-
ees in your Coeur d'Alene unit." 3
If, 'however, the Union at any time considered petitioning for a Board election,
it appears to have abandoned the intent following the sending by the Respondent to
its Coeur d'Alene production and maintenance employees of a letter stating reasons
why the Respondent favored operating without a union. No claim is made that the
letter was more .than privileged free speech.
On June 16, 1959, the Union's attorney-at-law wrote to the Respondent a lengthy
letter summarizing previous requests for recognition alleging that among former
Ohio employees who had been declined employment were "active members, repre-
sentatives and officers of the Union, who had good work references and who averaged
on the whole about 15 years of previous consecutive employment with Ohio.. . .
and continuing with the following paragraphs:
At the time you acquired the Ohio Match properties nearly all, if not all, of
the production and maintenance employees were members of the union. A
majority of those employees that had been hired by you have authorized the
union to represent them, and a cross-check by an independent examiner would
disclose this fact without question.
a This quote was made by Theodore Allison, an industrial relations representative for
Timber Products Manufacturing Association, which was assisting the Respondent in its
necufiations Allison took longhand notes at the meetings of verbatim statements to the
extent he was able to keep up with the speakers. g i i i
DIAMOND NATIONAL CORPORATION 275
Although you had indicated in your letter of April 30 , 1959 that a request
for recognition might be appropriate if the union , in fact, represented a major-
ity of the employees, you take the position apparently on June 12, 1959, in
printed matter which you sent all production and maintenance employees of
your Coeur d'Alene unit, that you did not intend under the present circum-
stances to deal or bargain with the union. The printed material of June 12,
1959, in fact, indicates that recognition under the present circumstances or
bargaining will not be entered into with the union which was the sole bargaining
representative prior to your purchase, and which now represents a wholesome
majority of your employees.
On June 26, 1959, Luby, on behalf of the Respondent, replied to the foregoing
letter, stating that the Respondent had not discriminated against former Ohio em-
ployees or members of the Union, and then saying:
In the absence of a secret ballot Representation Election conducted by the
National Labor Relations Board in accordance with their rules and regula-
tions, we do not feel at liberty to bargain with IWA Local No. 10-119, since we
do not believe that a majority of our employees in the Coeur d'Alene Unit wish
to be represented by that Union. However, we would abide by the results of
such an election.
4. Theories and conclusions respecting the refusal to bargain
The General Counsel advances a two pronged argument. First, he says, the
Respondent was, as a successor owner and operator of the plant, bound by the certi-
fication of the Union as the collective-bargaining representative of all employees in
the appropriate unit in that plant. Second (and this theory does not depend on the
validity of the first), he argues that the Union was, in fact, the majority representa-
tive, and that the Respondent had no good-faith doubt thereof. The Respondent
denies the validity of each of these contentions.
Since there is a possibility that exceptions will be filed by one or the other of the
parties, regardless of my decision, I believe it may be of assistance to pass on both
contentions, and I shall do so. Both the General Counsel and the Respondent filed
with the Trial Examiner helpful briefs which nearly exhaust the field of decisional
law on the subject involved, and I have thoroughly considered each brief before
reaching the conclusions set forth below.
a. Successorship
Because the words "successor" or "successorship" are used in relation to several
types of problems and are used in a different sense in each connection, the General
Counsel, in his brief, makes plain that the sense in which he uses the term in con-
nection with his first argument excludes any suggestion of devolvement of unfair
labor practices from prior to subsequent owner or operator and also excludes the
theory of alter ego. Since the alter ego theory is often applied to cases of transfers
more pretended than real, it might be well also to exclude cases involving bona fide
transfers • of stock in corporations or cases involving corporate merger or consolida-
tion . The Respondent does not, for example, dispute the continuation of its own
entity after the merger of Diamond Gardner Corporation and the United States
Printing and Lithograph Company into Diamond National Corporation, and it does
not contend that the successor corporation is not responsible for acts of its predeces-
sor. It contends only that it is not a successor to Ohio. The General Counsel con-
cedes that there is no affinity of legal entities between Ohio and the Respondent and
limits his theory to that of cases involving succession in ownership and operation of
a business enterprise . It will , therefore, be unnecessary to consider the cases in-
volving successorship in the sense of continuity of legal entity.
No question is raised concerning the bona fides of the purchase of certain of
Ohio 's properties . But this, in itself, is unimportant in determining successorship.4
It is the Respondent 's contention that it is not a true successor owner -operator
because of various factors, including its purpose in buying , the differences which it
effected in the physical plant, changes in job classifications , and changes in methods
of operating . In support of its contention , the Respondent reduces these factors to
the six points listed below which explain the Respondent 's position and are not set
forth as findings of fact:
4 Ugite Gas Incorporated, 126 NLRB 494 ; Royal Brand Cutlery Company, etc., 122
NLRB 901.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. That the Respondent's primary purpose in making the contract of purchase
with Ohio was to acquire timber and not merely to acquire the Coeur d'Alene
plant, and that this purpose is evidenced by the fact that the Respondent bought
at a price which would be a bargain for the timber alone without the Coeur
d'Alene plant; that the Respondent did not until after the consummation of the
sale, decide to operate this plant, but was investigaing the alternative of ship-
ping the timber to its other operations at places where it had already established
plants; that, when it did begin to operate, it chose to operate only a portion of
the plant facilities (i.e., it discontinued the match block factory, intending to
dismantle it).
2. That Ohio operated the plant to supply the world's largest match factory at
Wadsworth, Ohio, and that commercial lumber was a by-product, and in the
case of white pine was simply "side lumber," whereas the Respondent did not
manufacture match plank at the purchased plant and is emphasizing commercial
lumber manufacture only.
3. That the Respondent's operations are for commercial grade lumber and
that Ohio's lumber was not all commercial grade.
4. That the Respondent has devised the supervision and administration of the
Huetter (Coeur d'Alene) plant, using twelve supervisors, five of whom were
not Ohio supervisors but were transferred from other units of the Respondent
and two of whom were from neither Ohio nor the Respondent) as against
twenty-two used by Ohio, and using three office employees as against seventeen
used by Ohio.
5. That the Respondent has made changes in job classifications and job func-
tions, including the discontinuance of nineteen job classifications used by Ohio
and revision of eighteen, and that "although several Ohio employees were em-
ployed . to operate the same machinery" as was operated by Ohio, they are
being specially trained.
6. The Respondent did not restrict its hiring to former Ohio employees but
gave preference to its own laid-off employees and hired from applicants that
included outsiders as well as former Ohio employees.
The subjective intent of the Respondent in acquiring the Huetter operations is of
little importance in determining successorship. The important fact is that the Re-
spondent did operate the plant .5 Likewise it is of little importance that Ohio may
have had its own subjective reasons for owning and operating the plant. The im-
portant question is whether or not the business enterprise continued to operate sub-
stantially as it had before. The Respondent's discontinuance of operation of the
match block plant is not in my opinion so radical a change as substantially to alter
the nature of the business operated. This is like the discontinuance of but one de-
partment of a going business. The match block factory used only a fraction of the
total complement of Ohio employees (slightly more than 15 percent). The propor-
tion of commercial lumber produced by Ohio from wood other than white pine
exceeded that produced from white pine, the only timber used in the production of
match block. In spite of the importance of match block to Ohio's Wadsworth plant,
only a relatively small part of the total timber entering the Huetter plant under
Ohio's operations was used to produce match block (not more than 25 percent of
the white pine nor more than 10 percent of the total amount of timber processed).
The changes effected by the Respondent in the number of supervisors and job
classifications, as well as the elimination of certain jobs, were such as might have
• been made by Ohio if Ohio had hired a new superintendent and given him free
rein to make such changes in the interests of efficiency and economy as he felt
necessary. These changes would not change the essential character of the business.
The same is true with regard to the few minor changes effected in methods of
operations.
The Respondent relies on Syncro Machine Company, Inc., supra, in support of its
contention that it should not be bound as a successor, and, to render this decision
more applicable, the Respondent adduced evidence intended to show that it required
employees of greater skill than Ohio required. In the Syncro case, the Board found
successorship but withheld the customary remedy of an order to bargain because,
5In Synchro Machine Company, Inc., 62 NLRB 985, the buyer bought the seller's plant
with the ultimate purpose of using the seller's buildings for its own operations to be
moved from another city and of manufacturing an entirely different product with em-
ployees of different skills. The buyer did not convert the plant for several months but
continued to operate it to complete the seller's contracts. The Board held that during
these months the buyer was bound to recognize the union which represented the seller's
.employees.
DIAMOND NATIONAL CORPORATION 277
several months after the purchase of the' plant the purchaser discontinued the
original use to which the plant was put and began making different products such as
it had, previous to the transfer, made at another location,6 and the Board specifically
noted the absence of evidence to show the number of employees represented by the
union who were capable of performing the new types of work. Although not men-
tioned by the Board, the buyer in the Syncro case actually brought in entirely new
machinery and brought in 116 employees (who were either new or had worked for
the buyer at another location) to perform the new work, and it retained about 50
of the seller's employees.
The case at hand is quite distinct from the Syncro case. Here the Respondent
manufactured lumber, using most of the same machinery as that used by Ohio, and
it employed a majority of its employees from among former Ohio employees?
Although the Respondent undertook to give some of these employees (Sawyer,
Edgerman, and Trimmerman) additional training, the result of this training would
not be to change the type of skill utilized but only to change the amount of skill
of the type they already possessed. This did not change the essential nature of
the business enterprise as did the changes in the Syncro case.
Cessation of business operations by the closing down of the plant for about a
month before starting up again is not, in itself, of significance in determining suc-
cessorship 8 Certain physical changes were effected, as in the substitution of carriers
for bugs and buggies in the shipping department. It does not appear whether the
few changes made required a period of downtime. Jones testified that he did not
recommend the operation of the Huetter plant until April 24, 1959, several days
after the purchase, suggesting that there was uncertainty until then as to whether or
not the plant would ever operate. If this uncertainty had, for a few days, been the
result of a very grave doutt, which does not appear here, I am of the opinion that,
in view of the short duration thereof, it would be unimportant in determining succes-
sorship. But the degree of uncertainty does not appear. It might have been one
dictated merely by ordinary business precaution without real anticipation of closing
permanently.
Although the Respondent did not retain all customers of Ohio, it did retain some,9
and it completed assigned timber cutting contracts of'Ohio. But the retention of all
customers is not essential to a successorship. Furthermore, the retention of some
Ohio customers by the Respondent indicated that, as to such customers, the Respond-
ent's product was much the same as Ohio's and this tends to prove a continuation of
the same business. On the entire record, I find that the Respondent is a successor to
Ohio in the operations at the Huetter plant.
b. Presumption of majority
(1) Effect of certification
Aside from the question of successorship, a union's certification gives it a reason-
able, undisturbed time in which to attain the object of collective bargaining-an
9 The Board in Its Decision and Order did not describe the difference between the prod-
ucts manufactured by the seller and, after the conversion, those manufactured by the
buyer, but they were described in the Intermediate Report. The seller had made ship
parts, such as pilot houses, conning towers, booby hatches,, splinter shields for invasion
craft, oil heater exchangers, rudders, and water tank bases ; whereas, after the conver-
sion, the buyer made machinery for wire processing, a centrifugal coupling, and elevator
parts and accessories. The seller's work had been principally welding and assembling,
whereas the buyer's had been mostly machine work. Hence the business no longer was
substantially the same one.
7 The Respondent did not bind itself by contract to hire any Ohio employees. In fact,
it expressly reserved the right to hire whom it pleased I do not attach any importance to
this fact because of the fact that it did hire a majority of its employees from among those
who had been working for Ohio.
8 The Northwest Glove Co., Inc, 74 NLRB 1697
6 A stipulation between the parties reads : "Lumber produced at Huetter was sold to
lumber brokers, wholesalers and retailers throughout the United States Since Diamond
has operated the lumber manufacturing facilities at Huetter it has succeeded in retaining
some of those lumber brokers, wholesalers and retailers who were customers for Ohio
lumber, but by no means all." I am uncertain as to what implication may have been
intended by the use of the word "succeeded " This could suggest that the Respondent,
through no lack of effort on its part, lost a certain amount of good will, but it could
also imply that Diamond was unable to supply all former Ohio customers because of its
own demands or the demands of its own customers.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement. To protect the union from encroachment of other unions or from
pressures tending to produce instability, the Board long ago created a conclusive
presumption that (barring exceptional circumstances) the union's majority remained
unimpaired during such reasonable period, usually, but not necessarily, 1 year from
the date of certification. During that period, the union's majority status may not
be attacked by a showing of any change of circumstances, 19 except an extremely
unusual one." But after the end of 1 year from the date of the union's certification,
the presumption becomes a rebuttable one.12 The Respondent does not dispute the
effect of a certification against the one who was the employer at the date of certi-
fication of the Union, and it even concedes that, within the 1 year's period after
certification, the certification would be binding on a successor; but it argues that the
certification is not binding on a successor after the lapse of 1 year from the date of
certification. In this, the Respondent generalizes too much. A successor is bound
on no different principle than his predecessor. The certification does not apply to a
particular owner but to the business operation, 13 and , therefore, it runs with the busi-
ness despite a change of ownership. This is not to be understood to mean that a
union's contract with the predecessor, as distinguished from certification, is neces-
sarily binding on the successor. As a matter of contract law, contract obligations do
not devolve upon the assignee as a result of an assignment ; the assignee is bound
only to such obligations of the seller as the former, by contract, assumes. There is
no question involved here of the Respondent's obligations under the Union's con-
tract wtih Ohio, for the Respondent did not assume such obligation. The question
is merely one of the Union's right to be recognized by the Respondent as the
collective-bargaining agent of the employees and to bargain concerning the terms of
a new agreement.
Although the lapse of 1 year from the date of certification may change the
presumption of a certified union's majority from a conclusive presumption to a
rebuttable presumption, the lapse of the year does not alone put the certified
union to new proof of its majority 14 whether the employer at that time is the
original employer 15 or is the successor thereto.16
The Respondent may, as is frequently done, have misunderstood the true legal
meaning of the word "presumption," which is often used to mean no more than an
inference of fact. But a presumption, although rebuttable, is nevertheless a pre-
sumption in the sense of a rule of law which attaches legal consequences as to the
duty of production of evidence by the one opposing the presumption,17 and this is
the sense in which the Board uses the term. It is not sufficient for an employer to
say to a certified union, "The year of certification is past, so I will presume that
you no longer represent a majority of the employees until you prove to the contrary
in a Board conducted election ." The employer, whether the original one or a
successor thereto, must come forward with evidence which justifies a genuine doubt as
to the certified union 's majority. The quantum of evidence required to do this may
not be precisely definable, but it must do more than suggest a mere possibility of
loss of majority which might create a state of hope in the mind of an employer who
does not wish to deal with a union; 18 it must raise a serious doubt as to the union's
majority. 19 In this case the presumption of majority arising from the Union's
18-year old certification may be rebutted, but it does not just expire from lapse of
time. If evidence sufficient to rebut the presumption is adduced, the presumption
arising from the certification is eliminated as a basis for the union's claim. In this
case, I find that the presumption has not effectively been rebutted.
10 See Public Service Electric and Gas Co., 59 NLRB 325.
u N.L R.B v. Sanson Hosiery Mills, Inc., 195 F. 2d 350 (C.A. 5) ; N L R.B. v. Brooks,
204 F. 2d 899 (CA 9), affd 348 U.S. 96; Arthur A. Borchert d/b/a West Fork Cut Glass
Company, 90 NLRB 944; Jersey City Welding & Machine Works, Inc., 92 NLRB 510.
12 N L R B. v. International Furniture Company, 212 F. 2d 431, 433-435 (C A. 5) ;
United States Gypsum Company, 90 NLRB 964; The Cincinnati Steel Castings Company,
86 NLRB 592, 602; Stoner Rubber Company, Inc, 123 NLRB 1440.
18 Royal Brand Cutlery Company etc, 122 NLRB 901 ; Alamo White Truck Service, Inc.,
122 NLRB 1174; Boyce Wallace at at., t/a Investment Building Cafeteria, 120 NLRB 38;
Cruse Motors, Inc., 105 NLRB 242.
14 Henry Heide, Inc, 107 NLRB 1160, 1164-1165
15 United States Gypsum Company, supra ; Stoner Rubber Company, Inc, supra.
16 Auto Ventshade, Inc., 123 NLRB 451.
17 See Wigmore on Evidence ( 3d ed , Little Brown and Company), section 2491.
1s See United States Gypsum Company, supra.
19 See Stoner Rubber Company, Inc., supra.
DIAMOND NATIONAL CORPORATION 279
(2) Other evidence of majority status
Even if the presumption , itself, is rebutted, however, the General Counsel may
adduce evidence other than that of the ancient certification affirmatively to show the
the union 's majority still continues . Unless this evidence is of such character that
the employer may not be heard to say that he entertains a good -faith doubt of the
union's majority , the employer's refusal to recognize the union without being shown
by one of the Board's approved methods that the union has a majority will not be
an unlawful refusal. That the Union represented the employees at Ohio in April
1959 is an unquestionable fact. Ernest Randolph , who had been personnel manager
at Ohio and who was employed by the Respondent on May 4, 1959, and given the
title of personnel and office manager on May 15, 1959, testified that up to April 17,
1959 , when the sale was consummated , about 100 percent of the employees had
been members of the Union . Randolph was familiar with the check-off list under
the Union 's maintenance -of-membership contract and he made his estimate of the
total number of union members from that. Actually, about 20 Ohio employees,
more or less, paid their dues direct to the Union rather than by checkoff. By the
Union 's contract with Ohio , the latter was required to notify the Union when it was
hiring new employees and to give unemployed members of the Union 36 hours after
notification to the Union in which to make application. Ohio was, however, left
free to hire anyone who applied as long as it did not discriminate because of mem-
bership or nonmembership in the Union. Ohio also agreed to inform new employees
after 1 month 's time that it considered it desirable for all its employees to join
the Union.
It has been shown that, before June 17, 1959, the Respondent had hired 200
employees to gain its normal complement and that 134 of these were former Ohio
employees .20 From evidence of union membership of all the Ohio employees, it
might readily be assumed that all or practically all 134 were members of the Union.
But even if we take only those hired by the Respondent whose dues were estab-
lished to have been paid by checkoff at Ohio in April 1959, the Respondent would
have hired 117 union members before June 17, a clear majority of all its employees
in the appropriate unit.
Terminations would not have affected the Union's majority. J. G. Moore, a for-
mer Ohio employee among the 117, was shown in an exhibit as hired between
May 19 and 27 , 1959 , and as having terminated at an undisclosed date (sometime
before November 14, 1959, the date the exhibit was prepared) to go to another
job. But a J. G. Moore, a former Ohio employee, whether or not the same one
is not clear, was hired between May 28 and June 4_1959, and was terminated at
an undisclosed date before November 14, 1959, because of a bad back. E. L.
Hause, a former Ohio employee, hired by the Respondent between May 28 and
June 4, 1959, is shown as having terminated at an undisclosed date before November
14, 1959, because of ill health. These are the only former Ohio employees who had
been hired by the Respondent who were terminated or quit before November 14,
1959. The same exhibit shows that 20 employees hired by the Respondent before
June 17, who were not former Ohio employees , were terminated or quit on undis-
closed dates before November 14, 1959. If it be assumed that the employment of
the former Ohio employees who terminated, did so before June 17 and that the
non-Ohio employees who terminated , did so after June 16 , the date of the last re-
quest to bargain , there would still be a majority of former Ohio employees who had
had their dues to the Union deducted who were on the Respondent's payroll as of
June 16, 1959 , and thereafter.
The Respondent claims, however , that it had no knowledge of this fact and that
it had a good-faith doubt as to the Union's majority. Of course, such doubt, even
if it existed , is not sufficient to overcome the presumption of continued majority
created by the certification . Such good-faith doubt is material only when an uncerti-
fied union is involved. But if the certification is dismissed from consideration for
the sake of determining the alternative theory , it is here by no means certain that
the Respondent 's doubt was asserted in good faith. In order to have a good-faith
20 The General Counsel in his brief uses the figure 133 as the total number of former
Ohio employees hired by the Respondent and 116 as those of that number who had
authorized their , dues to be deducted under the checkoff system The summary of em-
ployees hired as shown on an exhibit in evidence , shows 134 former Ohio employees
hired before June 17, 1959 , and there are 117 red check marks indicating employees
who had authorized dues deduction . I note, however , that one name appears on two
lists of hirings If this is the same person , he cult and was rehired, and this would
make the General Counsel's figures correct . The difference does not affect the majority.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doubt, the facts should be such as to justify, not merely the Respondent, but any
reasonable man, in entertaining a doubt. Had the Union's majority never before
been shown, any reasonable individual might have entertained a doubt thereof, but,
once that majority is established (as it is here by a showing of membership), it takes
more than an assertion of doubt to make the doubt reasonable and, hence, one as-
serted in good faith. Ohio would not have been justified in saying that it had a
good-faith doubt of the Union's majority on April 17, 1959, and the Respondent
as successor operator has no ,greater justification. The manager and superintendent
of Ohio, upon whom devolved the duty to bargain would not have been heard to
say that Ohio doubted the majority of the Union in April 1959 because either of
them, personally, did not know that a majority of Ohio employees were dues paying
members of the Union where they did not bother to examine the records of dues
checkoff authorizations or otherwise to ascertain what they did not know. Knowledge
was imputable to Ohio's management because of Ohio's own records and because
their personnel manager, Randolph, knew the facts; so they had only to ask him
for the information. Similarly, the fact that Respondent's manager of industrial
relations, Leonard Luby, may not have had personal knowledge of the Union's
majority or the extent thereof is immaterial. Randolph still knew after he became
personnel manager for the plant under the Respondent and Luby could have ob-
tained the information from him. I do not deem it important that the Respondent,
unlike Ohio, did not handle its union dealings at a local level but handled them
on a district level. The Respondent is still chargeable with knowledge of the facts.
It knew that it had hired Ohio's personnel manager and should have known that
he was in possession of the facts 21
I conclude, therefore, that the Respondent had no doubt that on April 17, 1959,
the Union represented the Ohio, employees by virtue of an almost complete mem-
bership of the employees.
If a justifiable doubt were of importance here at all, the doubt must have arisen
because of something that occurred after April 17, 1959, since there was no room
for doubt before then. When a union has, in 1 month, such an overwhelming ma-
jority as it did here in April 1959, it is reasonable inference that the union would
not cease to have such members in 1 or 2 months. Human experience teaches that,
absent unusual circumstances not here present, such majority does not cease to exist
in as brief a time as 60 days. Unions do not normally expel members for nonpay-
ment of dues in so short a time, and, absent extraordinary circumstances, employees
do not in any appreciable number usually resign or become antiunion in so short a
period of time, especially when they were under no compulsion to join that union
in the first place. Here, it will be remembered, the Union did not have a union-shop
contract but only a maintenance-of-membership contract. It must be assumed,
therefore, that those who joined the Union (if they joined after being hired instead
of before) did so because they wanted to join and not because the contract required
them to join. Thus, there is added reason for supposing that their membership and
attitude toward the Union continued. It is only common sense, therefore, to say
that once the desire of the employees to be represented clearly appears, it will be
presumed to continue until the contrary is shown.22
Luby, the Respondent's manager of industrial relations, was the one who notified'
the Union that the Respondent would not recognize it without proof of its majority
in a Board-conducted election. He testified that the decision not to recognize the
Union without an election was made by Henry Kerr, general manager of the Re-
spondent's Northwest Lumber Division, on May 6, 1959, and that some of the
bases for that decision were: (1) the Respondent had no production and maintenance
employees, (2) the Board has ruled that it is an unfair labor practice to recognize
a union-security clause where it was later found that the union in question did not,
in fact, represent the employees of the employer, and (3) because of publicity given
to the Respondent's purchase of the Coeur d'Alene"plant, the extensive publicity
during 1957 at the time of the prolonged strike, and hearsay information which
Luby had received from employees of the Respondent who had friends and relatives
at the Coeur d'Alene plant that there was dissatisfaction with the Union at the latter
plant.
Only the first of these reasons has any merit, but lack of employees on May 6
is no reason for a persistence in refusing to recognize the Union after the employees
(a majority of whom were former Ohio employees) were hired, as the Respondent
did. The second ground given is without merit, because recognition of the Union
as bargaining agent has nothing to do with a union-security clause, and the Re-
21 See Lunder Shoe Corporation, etc, 103 NLRB 1322 ; Cousins Associates, Inc, 125
NLRB 73; Kollers Craft Plastic Products, Inc, 114 NLRB 990.
N.L.R.B. v. Whittier Mills Company, et at., 111 F 2d 474 (CA. 5).
DIAMOND NATIONAL CORPORATION 281
spondent was, not being required to recognize the Ohio contract with the Union in
any event. I' can see no bearing at all on proof of majority that there had been
extensive publicity concerning either the 1957 strike or the sale in 1959, and the
rumors of dissatisfaction mentioned by Luby apparently all related to the period of
the 1957 strike and had no value at all to create a doubt in 1959 in the face of the
overwhelming majority then enjoyed by the Union. Such hearsay, however, is an
insubstantial basis for doubt of majority even if it was heard in 1959, which does
not appear to be the case 23
The fact that the Respondent had hired employees other than from among former
Ohio employees (even if a partial change in personnel might, under some circum-
stances, do so), could not reasonably be said to justify a doubt as to majority here,
where the number of union members hired by the Respondent was known or at
least where knowledge was attributable to the Respondent. The changes effected in
job titles or descriptions or functions by the Respondent did not go so far as to
justify a belief that members of the Union would consider their skills or function
so different that they might feel that they could better be represented by another
type of union. The mere reduction in total number of union members employed
(assuming that only former Ohio employees and not those hired from other sources
were union members, an assumption that is by no means justified), would not justify
a belief that the members actually hired by the Respondent had changed their desire
to be represented by the Union.
The Respondent asserts that it was justified in waiting for the Union to petition
for an election because a statement of expectation to do so was made on June 4 by
Harvey Nelson, chairman of the Northwest Regional Negotiating Committee of the
Union's parent organization, while in contract negotiation involving plants other
than the Huetter plant. This followed a side talk with the Respondent's attorney,
in which Nelson asked if the Respondent would recognise the Union for the Coeur
d'Alene unit. The attorney's reply was that the Respondent would recognize the
Union if it was chosen in a secret ballot election, subject to agreement on the unit.
From this reply, it appears that the Respondent had already determined to follow
through on General Manager Kerr's May 6 decision and to wait for an election
before anyone for the Union had, himself, mentioned an election. The Union, then,
was hardly responsible for the Respondent's position, originally adopted on May 6.
The Respondent appears to assume that it needs but to show a suggestion of doubt
of the Union's majority and that it then can compel an election. In this, the Re-
spondent is misinformed. In Brown Truck and Trailer Manufacturing Company,
Inc., et al., 106 NLRB 999, the Board said, "In the 18 years this Board has admin-
istered the Act, it has consistently-and with judicial approval and legislative ac-
quiescence-held that a union's majority status can properly be determined by
membership or authorization cards." The Board cited numerous decisions of the
United States Supreme Court and Federal circuit courts in support of this statement
and appended the following footnote to the statement about legislative acquiescence:
As initially proposed, the House would have limited an employer's obligation
to bargain to those cases wherein the employees' representative had previously
been certified by the Board or had been voluntarily recognized by the em-
ployer (See: H. R. Rept. 245, 80th Cong., 1st sess. 30 [1947] ). However, the
Act, as passed, clearly rejected this initial proposal and left unchanged the
obligation to bargain imposed by the Wagner Act as interpreted by the courts
(See: H. Conf. Rept. 510, 80th Cong., 1st secs. 41 [1947]).
In Safeway Stores, Incorporated, 110 NLRB 1718, the Board said:
The Respondent contends that it was under no obligation to bargain with the
Union unless the Union was first certified after a Board election inasmuch as it
had questioned the Union's proposed bargaining unit in good faith. We do
not agree. A certification is not an indispensable condition precedent to an
employer's obligation to bargain.
The cases just cited involved uncertified unions, it is true, but they are cited to re-
fute the notion that an employer necessarily has an option to put a union to proof
of majority by a Board-conducted election.24 Here, because the Union was certified
already, it was not obliged to offer proof of majority to the Respondent merely
because the latter expressed a doubt. But even assuming, for the sake of argument,
that the Union were not certified, the Respondent had evidence of the Union's ma-
23 Even where the employer heard of dissatisfaction with the union from employees, the
Board held this insufficient . Tooicraft Corporation, 92 NLRB 655.
24 See also N L.R B. V. Dahlstrom Metallic Door Company, 112 F. 2d 756 (C.A. 2) ;
N.L.R.B. v. Clearfield Cheese Co., Inc., 213 F. 2d 70 (C.A. 3).
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jority as recently as April 17, 1959. In the face of this, it was incumbent on the
Respondent to show good cause for believing that as of June 16, 1959, the Union
had lost its majority. It not only failed to do so but ignored the most convincing
evidence that the Union had not lost its majority.
The Respondent takes the position that it was not required to resort to a procedure
for determining the Union's majority other than by election because the Union did
not offer to prove its majority by any alternative means. This proposition in itself
presupposes the Union's duty to present more evidence than the Respondent already
possessed, which it was not. Furthermore, the Union's letter of June 16, in which
it said , ". . . a majority of those employees that had been hired by you have au-
thorized the union to represent them, and a cross-check by an independent examiner
would disclose this fact without question," I interpret to be a specific offer to prove
its majority by cross-check. The Respondent's assertion that it did not so under-
stand it and Luby's testimony that he did not know what the Union meant by
"cross-check" look like unrealistic naivete. By ignoring the proof alluded to by the
Union, the Respondent demonstrated that it was avoiding its own burden of proof
and was seeking to shift it to the Union. This is, in itself, evidence of lack of good
faith. It is the more so since the Respondent had within its own organization the
knowledge of the facts it was expecting the Union to prove.
On the entire record, I find that the Union was on June 16, 1959, the majority
representative of the Respondent 's employees and that, by thereafter refusing to
recognize, or negotiate with, the Union, the Respondent was refusing to bargain
within the meaning of Section 8(a) (5) of the Act.
C. Discrimination in hiring
1. General Counsel's theory
Although only two former Ohio employees are alleged to have been discriminated
against by reason of the Respondent's failure to hire them, the General Counsel's
theory appears to be that a discriminatory withholding of employment from these
two was merely a manifestation of a larger design to eliminate all the members of
the Union who, since the 1957 strike, were the most active in its behalf. He argues
that the recent officers, stewards, and members of the contract negotiating com-
mittee were for the most part not hired by the Respondent and were certainly not
hired in anywhere near the proportion that other former Ohio employees were hired.
All but 73 of Ohio's employees (including 34 in the match block factory) applied
for jobs at the Respondent. Of these 73, 6 were active in the union. With exception
of three or four committeemen who were hired, the other union officers and stewards
when Ohio shut down applied but were not hired. Although such facts may give rise
to a suspicion that the Respondent wished to eliminate union leaders, especially those
that took an active part in the 1957 strike at Ohio and in the contract negotiations
during that year. I believe such facts should not be considered as evidence of dis-
crimination inasmuch as only two of the active union leaders were alleged in the
complaint to have been discriminated against, and the question of discrimination
against the others was not fully litigated. I shall, therefore, consider the case only
of the two who are alleged in the complaint to have been discriminated against
K. J. Seagraves and Lonnie Gentry.
2. The Respondent's system of hiring
Superintendent Milfred Jones determined what occupations were needed, then
began to hire supervisors. He held several meetings with supervisors between
May 4 and 8, 1959, and even thereafter, to discuss with them their authority and pro-
duction responsibilities, the Respondent's policies respecting promotion from within,
its desire to get qualified, young men whenever possible (although in cases of skilled
jobs an exception was made), the factors to be considered in judging men for hire,
and other background information regarding personnel matters. The Union was not
discussed by Jones and no instructions were given to differentiate between union and
nonunion applicants. When it was time to start hiring in the several departments,
Jones gave each department head a list of positions for which men were to be hired.
Starting about May 6, Randolph, former Ohio personnel manager, began taking
applications. For each applicant who filed a written application he tape recorded
a personal interview, asking a set of questions prepared by Jones and Luby. The
applications, segregated by job classifications, and the interviews were made avail-
able to department heads when the latter were ready to hire.
Hiring began about May 14. Maintenance men and employees in, the depart-
ments first to handle lumber were hired first. Other departments followed later in
DIAMOND NATIONAL CORPORATION 283
hiring as the lumber was ready to be handled there. After a full complement had
been hired for the first shift, hiring began for the second shift toward the end of
May. Men for the maintenance department (Seagrave's department) were em-
ployed beginning May 14, 1959. Regular crew members in the planer department
(Gentry's department) were hired beginning on May 19, 1959.
3. The case of K. J. Seagraves
a. Employment history at Ohio
K. J. Seagraves had been with Ohio for approximately 11 years when the plant
shut down. He had been hired in 1948 as a pipefitter but with an understanding that
he would not receive such work until that job became available in the course of the
construction then going on. For a few months after he was hired, Seagraves did
miscellaneous jobs. Then he was put in the blacksmith shop and he began doing
blacksmith work, although he was occasionally called out of that shop to do various
classifications of work, including some work that could be classified as that of mill-
wright and pipefitter. For most of the time after the year 1948, Seagraves was
kept fairly busy at blacksmithing but he did assist the millwrights in repair of the
mill during the noon hour and on weekends in 1949. From 1950 to 1957, Seagraves
did little else than blacksmithing and welding. After the 1957 strike, he occasionally
was called out of the shop to do welding and sometimes did work of a kind that
would be done by millwrights and machinists.
b. Union activity
Seagraves was a member of the Union when hired by Ohio and he remained a
member throughout his employment there. During that time he held various union
posts. In 1955 he was head safety man, and once he was conductor (sergeant-at-
arms). More frequently, however, he was a department steward in the main-
tenance department, having been elected to that position three times, the last time
for the period 1956 to 1959. This position required him individually to process
grievances with foremen, and as a member of the plant committee to deal with the
superintendent and personnel director and ultimately perhaps, the manager. He was
once alternate head steward but did not meet with the management in that capacity.
During the strike which began on July 1, 1957, Seagraves was elected strike captain
to supervise the pickets and picketing. As a member of the plant committee, he
engaged in contract negotiations and was present at all but 1 of the 9 or 10 ne-
gotiating meetings, a few of which occurred before the strike. During the strike
Seagraves was called upon by the Union to meet with the conciliator in Spokane
and in the course of the meeting the latter telephoned a vice president of Ohio's
parent organization in southern California and had Seagraves talk with him about
the things that stood in the way of settlement.
As a steward, Seagraves took his job seriously. He took up grievances with
nearly every foreman, including Straight, wherever maintenance men worked.
When grievances from any department went to the second stage, before the super-
intendent and personnel manager, Seagraves, as a member of the shop committee,
would attend the meetings. Some grievances went to the third stage, with the plant
manager present. Following the settlement of the 1957 strike, relations were less
amicable and Ohio settled fewer grievances satisfactorily to the Union and almost
none at the foreman level. Seagraves testified that he processed only one grievance
that went to the superintendent. A list of grievances carried to the superintendent
or manager, introduced as a Respondent's exhibit, shows two between December 19,
1957, and November 28, 1958, that probably originated in Seagraves' department.
The first involved foremen doing the work of fuel tenders, of the machinist, and of
the blacksmith-welder. I deduce that the foremen involved were Straight and Wirch.
Whether or not the second was a separate grievance does not appear, but it was
separately listed, although all were brought up at the same meeting. The second
was listed as "Loyal D. Anderson-claimed foreman doing machinist work." I note
that Seagraves was present at most of the plant committee meetings with manage-
ment and was in more regular attendance than any of the other stewards except the
chief steward, Gentry. Ohio's former superintendent, Harry "Don" Chase, testified
that proportionately more grievances emanated from the maintenance department,
of which Seagraves was steward, and that he thought Seagraves might have "had a
hand in it," meaning stirred up grievances. Foreman Straight expressed a similar
thought, although his may not have been intended to be so general, for it was tied to
a specific occasion when Straight went to the blacksmith shop and found Seagraves
missing . Because of Seagraves ' failure to give Straight an explanation of his
-284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absence when he returned and possibly from what Straight may have picked up by
hearsay, Straight entertained the belief that Seagraves was out stirring up grievances.
c. Failure of Respondent to hire Seagraves
On May 6, 1959, Seagraves filed an application for employment with the Re-
spondent. Under "position desired" he listed blacksmith and welder as his first
choice and pipefitter as his second choice. In a tape recorded oral interview by
Personnel Manager Randolph, Seagraves stated that in addition to the work listed
in his application he had also worked in maintenance and had repaired and in-
stalled machinery. Randolph told Seagraves that the plant would start up on May 18
and that if, after processing the applications, Seagraves was picked among those
selected as qualified men, he would be notified. Seagraves was not selected for
employment.
Loyal Anderson, a member of the Union and a former employee of Ohio, who
was hired by the Respondent as a machinist when selected by Maintenance Foreman
Straight (previously maintenance foreman at Ohio before it closed down in April),
testified that on a date which I fix as about May 6 or 7, 1959, he stopped in at
Joe's Club, saw Straight there, and they had a drink together; that he and Straight
left at the same time, and, as they were leaving, Straight asked Anderson if he would
be interested in a supervisory job. Anderson testified that he told Straight that he
did not want the added responsibility of a supervisory job, and that Straight com-
mented that he was going to try to have Anderson, Jim LeBarge (another machinist),
and Seagraves in the shop. Straight testified before Anderson testified and Straight
was not asked about the conversation with Anderson at Joe's Club. He was asked
only if before May 6 he had anyone in mind that he would pick and if, after May 6
and before he actually made his selections, he told anyone he was going to hire
Seagraves. Straight testified that he did not have anyone in mind in advance be-
cause he did not know what "they were going to run or what, or if they was, I
hadn't been told nothing," and he denied having told anyone that he was going to
hire Seagraves or anyone else.
The encounter at Joe's Club stands undenied and I find that it took place. With
respect to whether or not Straight was correctly quoted, I am less certain. I would
have more faith in the accuracy of the memory of either Anderson or Straight had the
alleged conversation taken place before they went in rather than as they left the
club. However, assuming that the conversation took place along the lines related
by Anderson, I find that the evidence redounds more to the Respondent's than to
the General Counsel's case, for it indicates that Straight was not prejudiced against
Seagraves because of his union activity as the General Counsel seeks to make out.
Before the week of May 11, Straight was not supplied with information as to what
jobs he would have to hire for. When he was given the list which was prepared by
Superintendent Jones, Straight found on it no job of blacksmith-welder such as Sea-
graves had had at Ohio. Jones told Straight that he wanted him to hire men who
could do all kinds of maintenance work rather than just one special type. There
were to be no separate carpenters, no separate blacksmith-welder. Instead there
were to be construction millwright carpenters who could also do welding and machine
work. There was one job of machine shop man to be filled, but the machinist had
to be capable of doing welding and blacksmith work, too, if not carpentry also.
The only job which did not appear to cross lines of other classifications was that of
pipefitter.
In making his selection of pipefitter, Straight chose the man 'who had been the
pipefitter at Ohio, W. O. Best. Best had worked for Straight as a construction mill-
wright and later as a pipefitter for a total of 11 years. Straight had found his work
satisfactory. For machine shop man, Straight chose Loyal Anderson, previously
mentioned. Anderson could also do welding and some carpentry work. In the
first batch of millwrights to be hired, Straight chose Keith Nelson, who had done
machinist, blacksmith, and welding (but evidently no carpentry) work for 4 years at
another of Respondent's plants and who was in layoff status (his layoff status at a
plant of the Respondent giving him priority of consideration), and W. B. Newcomb,
who had been employed at Ohio before it closed down. At some time, the date of
which was not shown, Newcomb was promoted to leadman. This, perhaps, made
a place for the hire of another millwright. In any event, in a second batch of mill-
wrights hired, Straight selected two men by the name of Borley, neither of whom
had worked for the Respondent or for Ohio. One of the Borleys showed no car-
pentry experience. Nelson and the two Borleys became the permanent millwrights.
Also there were some extra millwrights hired, presumably as temporary employees.
Straight had before him, among the applications he received, that of Seagraves.
He did not, however, consider Seagraves for millwright. Straight's explanation was
DIAMOND NATIONAL CORPORATION 285
that there was no job such as Seagraves' first choice (blacksmith-welder) and that
he had filled the job of pipefitter (Seagraves' second choice) by hiring the man who
had been doing that work satisfactorily at Ohio.
It is the General Counsel's contention that Straight should have, and, absent a
prejudice against Seagraves because of his union activities, would have, hired Sea-
graves as a millwright. Straight denied that he knew that Seagraves was capable of
doing carpentry work, and he testified that Seagraves could not run a lathe as could
all his millwrights.
In an attempt to show that Straight had deliberately passed over Seagraves, the
General Counsel adduced evidence of mechanical and millwright type of work that
Seagraves had done at Ohio and of carpentry work he had done when, during the
1957 strike, he had built his own home, an accomplishment which, according to
Anderson was "common knowledge." Even granting that Straight might have heard
this, I am not convinced that he passed over Seagraves from discriminatory motives.
Before he became a supervisor, Straight had been a member of the Union. He
recognized Seagraves as a very good man in his own line of work, and had he needed
a blacksmith or blacksmith-welder I am convinced that Straight would have hired
Seagraves. In spite of Seagraves' versatility, he had never had the classification of
millwright, and Straight did not impress me as the type to recognize potentialities
when he could find a man who had worked in the millwright classification, even
though the man with potential ability might in the long run surpass the other 25
If Seagraves was denied employment by design of the Respondent, it would appear
to me to be more logical to say that it occurred by means of eliminating the job of
blacksmith-welder altogether. However, there is too little evidence to justify more
than a suspicion that this was done with the design of eliminating Seagraves from
consideration.
On the entire record I find insufficient evidence to prove that the Respondent dis-
criminated against K. J. Seagraves in violation of the Act.
4. The case of Lonnie Gentry
a. Employment history at Ohio
Gentry was employed at Ohio for a period of between 12 and 13 years. For the
the first year and a half, Gentry worked in several positions but spent the last 11
years before Ohio closed the Huetter plant on April 17, 1959, as a puller on the
planer machines. While Ohio's Superintendent Chase described the work of Sea-
graves as above average, he described that of Gentry as average. Of course, Gentry's
work did not lend itself to ingenuity as did Seagraves' and, if each man on the planer
pulled his share, no one of them could be anything but average.
During part of the time he worked for Ohio, Gentry suffered from ulcers. He first
learned the cause in 1947 when he lost 3 days' time to see a doctor and have X-rays
taken. After that he lost no time from work because of his ulcers until 1958. In
February of that year, he was out for a week or two. In May he went to the hospital
to have an operation for removal of the ulcers. After he returned in June 1958, he
lost no further time because of ulcers. At some earlier period in his employment,
however, Gentry had lost about 3 weeks on two separate occasions because of a goiter
treatment and later its surgical removal. Aside from these two ailments, Gentry
lost no time for illness during his entire employment period except for a possible cold.
Following his return from the hospital in June 1958, Gentry lost a total of 5
days' and 5 hours' time from work up to April 17, 1959, when Ohio closed. Of that
time lost, 4 days' and 5 hours' time was on union business, and of the time lost in
union business, 3r days came between November 25 and December 5. According
to an exhibit in evidence which lists grievance meetings for the period between
December 19, 1957, and November 28, 1958, there was a grievance meeting on
November 25, 1958, between the plant manager and representatives of the Union,
including Gentry. The nature of the union business which caused the rest of
Gentry's absence is not otherwise suggested, but he could not have taken time off for
union business without being called in on a grievance or at least without Ohio's
approval.
b. Union activity
Gentry joined the Union in 1946 and in 1950 he was elected president. He served
in this capacity (except for two 1-year terms) from that time on. Except for a
25 The Respondent elicited testimony from Straight tending , argumentatively to weigh
against Seagraves . I believe that such incidents as were mentioned were minor and that
they did not influence Straight when he was hiring millwrights.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
year and a fraction , Gentry also was head job steward at Ohio until the plant closed
in April 1959. In the capacity of steward, it was his duty to participate in the at-
tempted settlement of grievances whenever he was called upon to do so. As head
steward he was usually the spokesman for the plant committee when it met with
management, sometimes being called in when the grievance was at the foreman level
and always when it went to higher management.
Gentry was active in the strike in 1957, helping with the pickets nearly every day
and attending contract negotiation meetings. He testified that, whereas before the
strike the company wanted the Union to settle grievances at the foreman level, after
the strike fewer such settlements were reached and the grievance would have to go
more frequently to higher management. This made additional time away from work
necessary for him.
c. Failure of the Respondent to hire Gentry
When the Respondent began to take applications for employment, Gentry filled
in a form and was interviewed by Randolph. On the application form, he listed
his first choice as lumber puller on the planer and his second choice as green chain
puller. In the tape-recorded interview by Randolph, Gentry was asked the stock
list of questions, among which was the question of whether, if he could qualify, he
would want to advance to a higher position than that of puller on the planer.
Gentry answered that he would like to advance to any position for which he could
qualify.
The foreman chosen by the Respondent for the planer department was Emil
Veltri, who had had the same position at another of the Respondent's plants. The
assistant foreman hired by the Respondent for that department was Robert Conley,
who had been planer foreman at Ohio. Veltri testified that Superintendent Jones
gave him instructions as to the kind of men to hire. Jones told Veltri that because
of the Respondent's program of promotions from within he should "watch the age
limit of each individual hired," although he did not state any age limit beyond which
men were not to be hired.26 Conley testified that in supervisors' meetings which took
place before hiring, the supervisors were reminded to get the best qualified men they
could, considering age, time lost on the job previously, and what could be expected
in the future. When Jones gave Veltri the list of jobs to be filled, Veltri asked Con-
ley to make up a list of former Ohio employees for the jobs to be filled. Conley
made up such a list from those who had applied, and Veltri and Conley together
looked over the applications of the men selected by Conley. Among the jobs to be
filled were eight planer offbearers (lumber pullers) for the first shift. Later there
were to be eight more for the second shift. Conley testified that the planer depart-
ment first hired five men for cleaning up. In making recommendations for these
jobs, Conley did not look at any applications. Next, according to Conley, was the
hire of men for one planer (there being two larger and one small planer), including
a feeder, a trimmerman, two graders, four pullers (i.e., offbearers), a carrier driver,
a checker, and two carloaders. Exhibits in evidence indicate that the first men
(other than cleanup men) hired in the planer department were hired between
May 10 and 27, 1959. Although I find men specifically hired for each type of
planer job in this period, only one man was hired specifically as an offbearer. In
the next period, May 28 to June 4, 1959, a second crew appears to have been hired,
except that in this batch, also, only one man was specifically hired as an offbearer.
The two offbearers hired up to this point were former Ohio employees. Another
crew for the planer department was hired between June 5 and 16. In this batch,
eight were hired as offbearers. Three of these were former Ohio employees. The
others were from outside employers 27 Three of these appear to have been tem-
porary employees only, since two of them quit to go back to school and one quit to
go back to teaching. One more offbearer, a former Ohio employee, was hired be-
tween June 17 and July 13. From this, I conclude that six men used as offbearers on
the first crew were not on the payroll as offbearers In fact, the full complement of
sixteen offbearers never was hired, at least, not before July 14, 1959. Veltri testified
that the number of men required for pulling in the planer department was not
altered after he had been given the initial list of jobs to be filled and that he "may
have" used men hired for other jobs "for a time" as pullers. At the hearing, Alex
Schierman, a former Ohio planer puller, testified that he was then employed by the
iS Men hired after they reached a certain age would not participate in the Respondent's
retirement plan. Retirement age under this plan was 65 years
z7 The former, employers of offbearers, other than Ohio, were listed as Potlatch Forests,
Bob Dilkins Movie, Richfield Station, Dr Hawkins, and Kaiser Aluminum.
DIAMOND NATIONAL CORPORATION 287
Respondent. He did not testify as to what his job with the Respondent was and he
did not give the date of his hire. He gave his age as 66 years. Conley's list of
recommendations for the first crew was not availaole. Whether or not he actually
had four off bearers on it and, if so, who they were, does not appear. The record
does not disclose the qualifications of those who were either hired as offbearers
from outside or who were hired for some other job but were used as offbearers.
The absence of such evidence for comparison with Gentry's qualifications makes it
difficult, if not impossible, to determine whether or not a discrimination occurred.
Conley intended not to select Gentry for work in the planer department. He gave
as reasons Gentry's health, that Gentry had lost a great deal of time from work be-
cause of his physical, condition, that Gentry had never sought advancement, that
there were other men who were better than Gentry, and that Gentry appeared awk-
ward in his movements. Since Gentry's operation for ulcers in May 1958, his
health had (been good and he had lost no time from work on account of it. In fact,
between the time of his return from the hospital in June 1948 and the close of the
plant, Gentry had lost a total of only 5 days and 5 hours, 4 hours of which was to
attend a funeral, and a half day of which was to "go to town," while the rest of the
absences were required by his union position (at least in part, if not entirely, for
dealings with management). His failure to apply for advancement probably
should not be taken as lack of desire for improvement or advancement. In his em-
ployment interview with Randolph, Gentry said that he would like to advance to any
position for which he could qualify. That he had not actively sought advancement
before may have been attributable to the mechanics of the Union's contract with
Ohio under which employees bid on job openings and, if qualified, they got prefer-
ence based on seniority. In the planer department, Gentry might have qualified for
certain jobs not requiring too much additional skill over that of an offbearer but his
chances of bidding successfully on such a job may not have been of the best because,
even at the time Ohio closed in April 1959, Gentry was still 58th in plant seniority
(of 323 employees in the plant) and 22d in departmental seniority (of 133 em-
ployees in the department). Although the evidence was not complete on the point,-
I deduce that the former Ohio planer pullers hired by the Respondent had no po-
tentiality for advancement,'and the use of this reason as one for not hiring Gentry
does not carry conviction. In May 1959, Gentry was 44 years old. Among those
hired in the first group in the planer department -on 'Conley's selection was Paul
Johnson, the only offbearer hired at that time. Johnson had pulled lumber on a
planer machine for 2 or 3 years,28 was 55 years old, and had back trouble that kept
him out of work for about a week a couple of times a year. Johnson was a slight
man of medium height and light weight. Another lumber puller who had been on
the planer with Genry at Ohio, Alex Schierman, was 66 years old when hired (after
July- 13, 1959) by the Respondent. Men who had worked with Gentry testified that
he had pulled his share and had pulled about like the rest of them. If Gentry were
awkward in his movements, of which I am skeptical, this did not affect production.
It is, the General Counsel's theory,,that Conley passed over Gentry for employ-
ment because of Genii-y'k union activities,, although, according to the General Coun-
sel, this is disclosed_'orily in Conley's testimony that Gentry was away from work
too frequently and that this was caused by Gentry's sickness and "other things also."
Conley testified that he was not aware of the reasons for Gentry's absences, whether
or not on union business. Because this testimony of Conley is difficult to credit,
the General Counsel suggests that the-only inference to be drawn is that Conley ob-
jected io,Gentry's absences for_ union activity and that this was his basis for not
recommending Gentry. There is much in the evidence that rouses a suspicion that
the Respondent avoided hiring most of the more -active -union members,29 including
Gentry. ,
as Johnson' had had' 24' years' experience altogether. In the lumber business, loading,
pulling, and piling lumber.
se For example, of the-22-Ohio committeemen who ,attended contract negotiations on
behalf of the union during the 1957, strike, at, most 4 were hired-by the Respondent before
mid-July 1959, and this,number depends on,the correctness of the assumption that those
shown on the Respondent's records (as shown on_ the list of hires) by 2 initials in lieu
of Christian names are the same as -those whose fitst name only, When shown at all was
shown on the list of those attending negotiating meetings-Kamlin, Buckmaster, Andgi son,
and B. I. Nelson Anderson is certain because he testified .'Nelson may or may no+ be
the same as Committeeman Bjarne Nelson None of the officers of the Union was shown
to have been hired and the head safety representative for the -Union as not hired although
he had applied. Only a couple of the committeemen had failed to apply.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But to find that Gentry was discriminated against, I should have to find that he
should have been hired in preference to other offbearers who were selected or that
he should have been hired although a full complement of offbearers may never have
been hired and although the Respondent was satisfied with the procedure of substi-
tuting, on a temporary basis, employees hired for other jobs. With respect to those
who were hired, I have observed only the two who were witnesses and I have no
information as to the qualifications of the rest. With respect to the non-Ohio men
hired, the fact that the Respondent passed by competent Ohio employees to take
untried men may arouse a suspicion, but on all of the evidence it does not justify a
finding that this hiring was done to avoid hiring active unionmen . Likewise, it ap-
pears peculiar to me that the Respondent did not hire a full complement of off-
bearers when it hired a full complement of other workers on the planar crews. But
this could also be consistent with legitimate management objectives ; so although I
may surmise that Gentry was passed over because of his union activities, I find that
the evidence, as a whole, does not preponderate in support of the General Counsel's
contention as to Gentry.
I find , in conclusion , that the Respondent has not discriminated in regard to the
hire of either Seagraves or Gentry.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connec-
tion with its business 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
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Because the Respondent has unlawfully refused to bargain with the Union as the
representative of its employees in an appropriate unit, it will be recommended that
the Respondent, upon request, bargain with the Union and, if an understanding is
reached , embody such understanding in a written and signed agreement.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent , Diamond National Corporation , is engaged in commerce
within the meaning of Section 2(6) and (7) of the,Act.
2. Local 3-119, International Woodworkers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of the Respondent at its lumber
manufacturing plant in Coeur d'Alene, Idaho, excluding' office and clerical em-
ployees, professional employees, supervisors, and guards as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
4. Local 3-119, International Woodworkers of America, AFL-CIO, was on June
16, 1959, and, at all times material thereafter, has been and now is the exclusive
representative of all employees in the aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section 9 (a) of the Act.
5. By failing and refusing on and after June 16, 1959 , to recognize and bargain
with the Union as the exclusive representative of the employees in the aforesaid ap-
propriate unit, Respondent has engaged in and is engaged in unfair labor practices
within the meaning of Section 8(a) (5) of the Act.
6. By the conduct described in paragraph numbered 5, above, 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 thereby engaged in and is engaging in un-
fair labor practices within the meaning of Section 8 ( a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. The Respondent has not discriminated with regard to the hire of K. J . Seagraves
and Lonnie Gentry because of their activities on behalf of the Union.
[Recommendations omitted from publication.]