Firchau Logging Co., Inc.

National Labor Relations Board - Board Decisions

Mar 23, 1960

126 N.L.R.B. 1215 (N.L.R.B. 1960)

FIRCHAU LOGGING COMPANY, INC. 1215
or in a particular trade, craft, or class rather than to employees
in another labor organization or in another trade, craft, or
class... .
This dispute is clearly not the traditional jurisdictional dispute
between two unions, each of which wishes to have certain duties as-
signed to its members rather than to the members of its rival union.
Nor is this a dispute between the Employer and Local 292 over the
Employer's assignment of work to one group of employees rather than
to another group composed of members of Local 292. Instead, as
the facts set forth hereinabove establish, the dispute concerns only
the Employer's discharge of the technicians whom Local 292 repre-
sents, and the Employer's refusal to accede to the demand of Local
292 that it sign a new contract. The sole objectives of Local 292 are,
therefore, to obtain reemployment of the technicians whom the Em-
ployer discharged and to persuade the Employer to sign the contract
proposed by Local 292, objectives which the Congress, in enacting
Section 8(b) (4) (D), did not intend to proscribe.
Upon the basis of the foregoing, we conclude that the dispute in
this case is not over the assignment of work within the meaning of
Section 8(b) (4) (D). It is, therefore, not a dispute within the mean-
ing of Section 10 (k). Accordingly, we shall quash the notice of
hearing.'
[The Board quashed the notice of hearing.]
MEMBERS RODGERS and JENIiINS took no part in the consideration
of the above Decision and Order.
" Member Fanning agrees with his colleagues in the majority that the notice of hearing
issued in this case should be quashed . In his opinion , it is clear that the Union 's strike
was in protest of the Employer ' s unilateral action abolishing the jobs of the technicians
and was not for the unlawful purpose of compelling a particular assignment of the work
in question.
Firchau Logging Company, Inc. and Lumber and Sawmill
Workers, Local 2608, United Brotherhood of Carpenters &
Joiners of America, AFL--CIO. Case No. 20-CA-1654. March
23, 1960
DECISION AND ORDER
On November 12, 1959, Trial Examiner Martin S. Bennet issued
his Intermediate Report in the above -entitled proceeding , finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices and recommending that it cease and desist there-
from and take certain affirmative action , as set forth in the copy of
the Intermediate Report attached hereto . Thereafter , the Respond-
126 NLRB No. 149.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent filed exceptions to the Intermediate Report, a, supporting brief,
and a request for oral argument.'
Pursuant to the provision of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a three-member panel [Chairman Leedom and
Members Bean and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Firchau Logging
Company, Inc., Red Bluff and Lyman Springs, California, its officers,
agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Lumber and Sawmill
Workers, Local 2608, United Brotherhood of Carpenters & Joiners
of America, AFL-CIO, as the exclusive representative of all its em-
ployees in the following appropriate unit with respect to rates of
pay, wages, hours of employment, and other conditions of employ-
ment: All production and maintenance employees at the Respondent's
woods operation at Lyman Springs, California, excluding log scalers,
office clerical employees, professional employees, guards, and super-
visors as defined in the Act.
(b) In any like or related manner interfering with the efforts of
Lumber and Sawmill Workers, Local 2608, United Brotherhood of
Carpenters & Joiners of America, AFL CIO, to bargain collectively
with it on behalf of the employees in the aforesaid appropriate unit.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with Lumber and Sawmill
Workers, Local 2608, United Brotherhood of Carpenters & Joiners
of America, AFL-CIO, as the exclusive representative of all em-
ployees in the aforesaid appropriate unit with respect to rates of pay,
wages, hours of employment, and other conditions of employment,
1 Because in our opinion the record, exceptions , and brief adequately set forth the issues
and positions of the parties, this request is hereby denied
2 in adopting the Trial Examiner's conclusions , we rely on Uvite Gas Incorporated, 126
NLRB 494, and Royal Brand Cutlery Company, A Division of Brockelman Brothers, Inc.,
122 NLRB 901.
FIRCHAU LOGGING COMPANY, INC. 1217
and, if an understanding is reached, embody such understanding in
a signed agreement.
(b) Post at its offices at Lyman Springs and Red Bluff, California,
copies of the notice attached hereto marked "Appendix." 3 Copies of
said notice, to be furnished by the Regional Director for the Twentieth
Region, shall, after being duly signed by the Respondent's repre-
sentative, be posted by the Respondent immediately upon receipt
thereof, and maintained by it for a period of 60 consecutive days
thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for the Twentieth Region, in
writing, within 10 days from the date of this Order, as to what steps
the Respondent has taken to comply herewith.
a In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with Lumber and
Sawmill Workers, Local 2608, United Brotherhood of Carpenters
& Joiners of America, AFL-CIO, as the exclusive representative
of all our employees in the appropriate unit with respect to rates
of pay, wages, hours of employment, and other conditions of
employment.
WE WILL NOT in any like or related manner interfere with the
efforts of Lumber and Sawmill Workers, Local 2608, United
Brotherhood of Carpenters & Joiners of America, AFL-CIO, to
bargain collectively with us on behalf of the employees in the
appropriate unit.
WE WILL, upon request, bargain collectively with Lumber and
Sawmill Workers, Local 2608, United Brotherhood of Carpenters
& Joiners of America, AFL-CIO, as the exclusive representative
of all employees in the following bargaining unit with respect to,
rates of pay, wages, hours of employment, and other conditions
of employment, and, if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is :
554461-60-vol. 126-78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees at our woods operation
at Lyman Springs, California, excluding log scalers, office clerical
employees, professional employees, guards, and supervisors as defined
in the Act.
FIRCHAU LOGGING COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard at Red Bluff, California , on August 25 and 26, 1959,
pursuant to a complaint of the General Counsel against Respondent , Firchau Logging
-Company, Inc. The issue litigated was whether Respondent on and after May 8,
1959, refused to recognize Lumber and Sawmill Workers, Local 2608 , United
Brotherhood of Carpenters & Joiners of America, AFL-CIO, herein called the
Union , as the duly designated representative of certain of its logging employees,
thereby engaging in unfair labor practices within the meaning of Section 8(a)(5)
and (1 ) of the Act . Oral argument at the close of the hearing was waived and ably
written briefs have been submitted by the General Counsel and Respondent.'
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Firchau Logging Company, Inc., is a Nevada corporation engaged in logging
.operations which maintains an office at Red Bluff, California . It is under contract
.dated February 17, 1959, with Diamond Gardner Corporation to supply logs which
have been logged and cut by Respondent in the Lyman Springs , California , area on
land either owned by Diamond Gardner or leased as to timber cutting rights, to the
Red Bluff, California , plant of Diamond Gardner. Through August 15, 1959,
pursuant to this contract , Respondent has delivered logs valued at $614,879 to
Diamond Gardner . The latter, in turn , annually ships lumber products valued in
.excess of $50,000 from its California plants to points outside the State of California.
I find, in view of the foregoing , that the operations of Respondent affect commerce.
II. THE LABOR ORGANIZATION INVOLVED
Lumber and Sawmill Workers, Local 2608, United Brotherhood of Carpenters &
Joiners of America, AFL-CIO, is a labor organization admitting to membership
,employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Diamond Gardner has conducted logging operations during the 1958 season and
,in previous years in the Lyman Springs, California, area. The Union undertook an
organizational campaign among the employees of Diamond Gardner at this Lyman
Springs logging operation and on October 23, 1958, pursuant to a Decision and
Direction of Election dated October 2, 1958, in Case No. 30-RC-3622 (unpub-
lished) a representation election was duly held. The Union won and was certified by
the Board on December 17, 1958, as the exclusive representative of "All production
and maintenance employees employed at the Employer 's woods operation at Lyman
Springs, California, excluding log scalers , offce clerical employees , professional em-
ployees, guards , and supervisors as defined in the Act."
'Pursuant to agreement by counsel , General Counsel ' s Exhibits Nos. 19 and 20 are
,hereby received in evidence
FIRCHAU LOGGING COMPANY, INC. 1219
This woods operation, it is to be noted, shut down on or about November 24 for
the winter and, as is apparent, there were no logging operations being carried on at
the time of the Board's certification.
Negotiations had been underway for some months between Diamond Gardner
and Respondent whereby Respondent was to take over the Lyman Springs logging
operations for the 1959 season. On February 17, 1959, Diamond Gardner entered
into an agreement with Respondent whereby the latter agreed to cut and deliver
logs to Diamond Gardner's Red Bluff mill. This cutting was to be done on Lyman
Springs land owned or leased as to timber cutting rights by Diamond Gardner.
Furthermore, Respondent was to cut only logs marked and selected by Diamond
Gardner's staff of foresters consistent with Diamond Gardner's selective cutting
policy. Diamond Gardner also entered into a conditional sales agreement with
Respondent on or about April 9, 1959, whereby Respondent was to purchase cer-
tain logging equipment valued at approximately $120,000 which Diamond Gardner
had previously utilized in the Lyman Springs and adjacent areas. Payment for this
equipment was to be made by deductions by Diamond Gardner from sums accruing
to Respondent from deliveries of Lyman Springs logs.
As a result of this logging agreement, Diamond Gardner did not carry on any
logging operations in the Lyman Springs area in 1959 and Respondent commenced
operations pursuant to the contract on about April 1. Diamond Gardner did con-
tinue, however, to build or maintain logging roads in the area, retaining a road con-
struction crew of six or seven men for that purpose. Ultimately, on June 16, 1959,
Diamond Gardner and the Union executed a collective-bargaining agreement cover-
ing these road employees. It may be noted that Respondent did execute a sub-
^contract with a trucking company to haul the logs from the logging site to Red Bluff.
This was similar to an arrangement made by Diamond Gardner in the previous
year. In other words, both Diamond Gardner and Respondent, in 1958 and 1959,
respectively, subcontracted the log hauling from the Lyman Springs area to Red
Bluff.
On March 30, 1959, Diamond Gardner officially notified the Union that it had
contracted out the Lyman Springs logging operations for the forthcoming season,
thus substantiating previous reports brought to the attention of the Union. On May
8, 1959, the Union submitted an oral request to Respondent as well as a written
letter seeking recognition. In the letter, Respondent was informed that the Union
represented a majority of its employees at the Lyman Springs operation and recog-
nition was requested; the Union also offered to prove its majority by a card check.
President Albert Firchau of Respondent told Union Representative Glyn Cantrell
in their May 8 meeting that he would not recognize the Union until there had been
an election conducted by the Board. Cantrell responded that there had been such
an election and a resulting certification within the previous 12 months, that this was
the same work, and that it was substantially the same crew. Firchau adhered to his
position that recognition would be predicated only upon a new Board election and
certification and he has steadfastly adhered to this position in subsequent meetings
between the parties.
0
B. The appropriate unit and majority representation therein
The complaint alleges that all production and maintenance employees at Re-
spondent's woods operation at Lyman Springs, California, excluding log scalers,
office clerical and professional employees, guards, and supervisors constitute a unit
appropriate for the purposes of collective bargaining. This is the precise unit which
the Board found to be appropriate in the representation proceeding, Diamond
Gardner Corporation, Case No. 20-RC-3622, unpublished. I find, accordingly, that
the above-described unit constitutes a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
Respondent does not dispute that the Union was duly certified on December 17,
1958, as the representative of these employees at the Lyman Springs "woods opera-
tions of Diamond Gardner Corporation " It contends, inter aha, that the certifica-
tion was not binding upon Respondent at the time of the alleged refusal to bargain,
on and after May 8, 1959. This question of majority representation in the above-
described appropriate unit lends itself to treatment together with the other conten-
tions raised by Respondent and is accordingly disposed of hereinafter.
C. The refusal to bargain; contentions and conclusions
The basic question herein is whether Respondent is a successor employer to
Diamond Gardner and is therefore under a duty to bargain collectively, within the
certification year, with the Union as the duly certified representative of the em-
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in the appropriate unit. The theory of successorship is that the new opera-
tor of the business falls heir to the responsibilities and liabilities, if not privileges, of
the original employer that stem from the certification. This certification runs with
the employing industry and is normally not affected by a change in management or
ownership.
There is no hard and fast rule to be applied herein, however. The fundamental
approach and test is whether the employing industry is substantially unchanged
in terms of such factors as location, equipment, personnel, and mode of operation.
If so, the Board has long held that the certification runs with the employing industry
and that a change of ownership as well as possible minor changes in the nature or
operation of the business do not absolve a successor of the duty to bargain with
a certified labor organization. See Alamo White Truck Service, Inc., 122 NLRB
1174, and Boyce, Wallace, et al. t/a Investment Building Cafeteria, 120 NLRB 38.
(1) It is readily apparent that the logging operation at Lyman Springs in 1959
was substantially the same as when it was operated by Diamond Gardner. Of
course, the logging industry is sui generis in that the proprietor is not operating a
plant or a business at a fixed location but is rather performing operations in open
timberland. He will operate in a general area, as was the case here, although
from year to year he will perforce move to another portion of the area.
Respondent logged only logs which Diamond Gardner's foresters had marked
for cutting, and as Diamond Gardner operated on a sustained yield program whereby
logging is planned for several years ahead, it would readily appear that Respondent
carried on its 1959 logging operations in precisely the area which Diamond Gardner
would have logged had it logged the Lyman Springs area in 1959. Moreover, it
cut the trees marked by Diamond Gardner's foresters and only those trees.
(2) Although it would be entirely understandable that Respondent could perform
these logging operations with equipment which differed from that of Diamond
Gardner, such was not the case here. For Respondent purchased $120,000 worth
of equipment from Diamond Gardner which the latter had used in its 1958 logging
operations. While this conditional sale, with payment made from sums accruing
to Respondent from deliveries of Lyman Springs logs, was a separate transaction,
as Respondent contends, it would readily seem that the transaction would not have
been carried out but for the logging lease. The fact is that Respondent with mini-
mum changes was utilizing substantially the same equipment as Diamond Gardner
used in the previous year, as supplemented by some of Respondent's own equipment.
That a significant and substantial portion of this equipment was identical with that
used in the previous year establishes another bond between the two logging operations.
(3) The record also warrants the finding that the mode of operation was sub-
stantially unchanged from that of 1958. That the basic functions of the logging
industry, viz, falling, skidding, and loading of logs are similar throughout the
industry is not disputed herein.
There is evidence of only a minor departure by Respondent from procedures
followed by Diamond Gardner in 1958, this involving the loading operation wherein
Respondent utilized a different piece of equipment for loading logs onto highway
trucks for transportation to the Red Bluff mill of Diamond Gardner. In addition,
there was a different loading procedure. The logs, hauled by an independent
contractor in 1959 as was the case in 1958, are generally loaded by Respondent
directly onto these trucks although, on occasion, Respondent follows the system,
utilized in 1958 by Diamond Gardner. The latter generally moved the logs from
the logging site to a so-called reload station, presumably adjacent to the highway,
where they were stacked and then reloaded onto trucks of the carrier.
This is manifestly a minor distinction, if it be that, and I fail to see how it affected'
the essential nature of the business. It could hardly be contended that the intrinsic
nature of a manufacturing business had been altered because it commenced a prac-
tice of having Railway Express Agency trucks pick up its small packages at the
plant for delivery in lieu of delivering them to a United States Post Office for parcel
post shipment.
(4) Respondent by way of defense has pointed to the turnover of employees as
well as supervisors in the bargaining unit. As for the latter group, it is undisputed
that Respondent, new to the Red Bluff area, hired several new supervisors to run its
operation. However, I fail to see how this affected the picture, because it is the
employing industry which is under consideration. Needless to say, the Board'
would not recognize the replacement of a department head in a plant with a certified
bargaining representative as a defense to a refusal-to-bargain charge covering that
department. The lack of common supervision or supervisors between the two con-
cerns does not seem essential. If the nonsupervisory employees have chosen a
bargaining representative, that choice ipso facto will normally carry over to the new-
FIRCHAU LOGGING COMPANY, INC . 1221
employer. A contrary conclusion would permit an employer to evade his bargaining
obligations by replacing his supervisory staff. Significantly, the supervisory staff per-
forms no part in the selection of the bargaining representative and it is the rights
of the employees represented by the latter in which we are interested.
As for rank-andfile employees, the record discloses, as Respondent contends,
that there had been a turnover. A consideration of the last 1958 payroll of
Diamond Gardner prior to the winter shutdown, that of November 14, with the
payroll of Respondent for May 8, 1959, the date recognition was requested, is
pertinent herein. On November 14, Diamond Gardner had 43 employees in
the bargaining unit .2 On May 8, 1959, Respondent had 62 employees on the payroll
of its logging operation. Of these 62, approximately 20 had been employees of
Diamond Gardner at Lyman Springs in the previous year and 42 newcomers, this
being a ratio of 47 percent.
But the Board has frequently held that a substantial if not complete turnover of
personnel subsequent to an election is not such a circumstance as to warrant setting
aside a certification. Indeed, in the Ray Brooks case, there was a repudiation of
the Union by a majority of the unit in the short period between the election and the
issuance of the certification. Nevertheless, the Supreme Court did not consider
this to be such a circumstance as to affect the ensuing certification. Ray Brooks v.
N.L.R.B., 348 U.S. 96. A fortiori, in the present case as will appear, the record is
not silent concerning the union views of the new employees. For it discloses that
on May 8, 1959, when the Union requested recognition of Respondent, it had in
its possession 43 union authorization cards which had been signed by 43 of the 62
employees in the unit on May 6 and 7, 1959.3
(5) Another point raised by Respondent in its brief remains for consideration.
It claims that the facts surrounding the road construction crew warrant a conclusion
that there has been a substantial change in the alleged appropriate unit. This refers
to the fact that when Diamond Gardner logged the Lyman Springs area in 1958,
it had six or seven employees on the payroll who were assigned to road construction
work.4 In contracting out the 1959 logging operation at Lyman Springs, Diamond
Gardner decided to retain the road-construction operations. The record is not
entirely clear, but it appears that the majority of the seven in the crew in 1959 were
new to the area or to the operation.
On March 30, 1959, C. L. Millman, California manager of industrial relations
for Diamond Gardner, wrote to the Union and stated, "As you know, the Company
has contracted all of its logging operations for the forthcoming season in the Lyman
Springs area. We will maintain only a small crew for road-building purposes during
the next few months, and it is proposed by the Company that we agree with your
organization that no collective bargaining agreement be established for this group."
Nevertheless, as noted, Diamond Gardner did execute a contract on June 16, 1959,
with Local 2608 covering this road crew.
This does not impress me as other than a minor change in the unit. In similar
cases, the changes have been as large or larger and the Board has found that this
was not an impediment to the certification carrying over to the new employer. In
Royal Brand Cutlery Company, A Division of Brockelman Brothers, Inc., 122 NLRB
901, the Board enforced a bargaining order where an entire warehouse department of
55 employees, as noted in the Intermediate Report, was retained by the predecessor
employer. And, in Alamo White Truck Service, Inc., supra, where the successor
employer discontinued a small department, the Board found that "this diminution
of the unit is not substantial enough to change either the certified unit or the
employing industry." I see no distinction in logic between that situation and the
9 This figure does not include three supervisors and six road construction crew per-
sonnel; a contention by Respondent involving the latter group is discussed hereinafter.
Nor does the May 8, 1959, complement of Respondent, totaling 62, include these categories.
s Respondent has attacked the fact that Local 2608 was the certified bargaining repre-
sentative and that the cards designate the Northern California District Council of the
parent union and not Local 2608. The fact is that a number of locals, including Local
2608, belong to the Council and a joint card is used for convenience and economy. There
is not an iota of evidence that any signers were confused thereby when approached for
their signatures by representatives of Local 2608 and by an international representative.
Indeed, 33 of the cards were personally obtained by the assistant business agent of
Local 2608.
'The unit found appropriate by the Board merely included all production and mainte-
nance employees at Lyman Springs and the customary exclusions therefrom do not touch
upon the road crew as such. The record does not disclose the precise type of road work
involved.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present case, for it is immaterial whether the diminution emanated from the
original or the successor employer.
Assume that Diamond Gardner did not subcontract the Lyman Springs operation
in 1959 and, as was the case, that it proceeded to sign a separate contract with Local
2608 for the road-construction crew. If Diamond Gardner were then to claim that
this had substantially altered the appropriate unit so as to relieve it of any respon-
sibility to bargain with Local 2608 as the representative of the Lyman Springs logging
crew, I am convinced that the Board would not sustain such a defense. As the
successor employer, Firchau, inherits the responsibilities of the original employer, in
logic it cannot be heard to raise a similar plea.
This also disposes of the further point raised by Respondent, viz, that Albert
Firchau, as he uncontrovertedly testified, was ignorant of the certification of the
Union at the time he signed the February 17 logging contract with Diamond Gardner.
Both he and timberlands manager, Charles Arment, of Respondent testified that in
their conversations relative to the logging contract Firchau asked only if there was
a union contract to which Arment replied in the negative. The topic of a certification
being in the picture was allegedly not raised.
It is noted that the testimony by Arment on this topic leaves much to be desired.
He is the timberlands manager in the area for Diamond Gardner, a large nationwide
corporation, and handled the Lyman Springs contract negotiations. I find it difficult
to believe, in the face of the fact that Diamond Gardner has an industrial relations
department staffed by labor specialists, that Arment was assigned to handle the
lease and knew only that there was no union contract. Indeed, Arment conceded
that he knew there was an election at Diamond Gardner's Red Bluff Mill, but claimed
that he did not know of any at Lyman Springs. However, an inspection of the
Board's Decision and Direction of Election dated October 2, 1958, discloses that it
set up two voting groups, group A for the Mill, not involved herein, and group B
for Lyman Springs. Arment also conceded that he knew that Diamond Gardner
was organized. But this stemmed from the same election proceeding in which the
Union and another labor organization were rivals in group A and which the other
organization won. Both elections, it is significant, were held on October 23 and the
Board's certification of the respective labor organizations issued on December
17, 1958, in the same document.
Be that as it may, the fact is that the knowledge of Firchau, which is the true
criterion, is not established, but this, however, is of no import. As stated, the theory
of successorship is that the successor inherits the responsibilities and liabilities of the
original employer. This is not to say that he inherits a labor contract. It is to say
that if the employees have a certified bargaining representative, the status of the
bargaining representative carries over to the successor employer irrespective of his
knowledge.
In view of the foregoing considerations, I find that on and after May 8, 1959, and
at all times material herein, the Union was and is the majority representative of the
employes in the above-described appropriate unit, within the meaning of Section 9(a)
of the Act
It is undisputed that on May 8, 1959, the Union made a demand for recognition
upon Respondent; that Respondent was fully apprised on that date of the certification,
which I find to have been valid and outstanding; and that Respondent then refused
and still refuses to recognize and bargain with the Union unless it proceeds through
another election and achieves a new Board certification. As stated by the Court of
Appeals for the Seventh Circuit in N L.R.B. v. Albert Armato and Wire & Sheet
Metal Specialty Co., 199 F. 2d 800 (C.A. 7) :
. . . The very nature of a certification of a union as a bargaining agent for
a group of employees impels the conclusion that a mere change in employers
does not operate to destroy the effectiveness of the certification. It is an
official pronouncement by the Board that a majority of the employees in a given
work unit desire that a particular organization represent them in their dealings
with their employer. There is no reason to believe that the employees will
change their attitude merely because the identity of their employer has changed.
I find that the employing industry is substantially the same under Respondent as it
was under Diamond Gardner; that Respondent is a successor employer; and that
there are no circumstances present such as to release Respondent from its obligations
under the certification In view thereof, I find that by refusing to bargain with the
Union on and after May 8, 1959, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a) (5) of the Act. I further find that by such
conduct, Respondent has interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed by Section 7 of the Act, within the meaning of
SEALTEST SOUTHERN DAIRIES 1223
Section 8(a) (1) thereof. See N.L.R.B v. Lunder Shoe Corp. d/b/a Bruce Shoe Co.,
211 F. 2d 284 (C.A. 1); Ray Brooks v. N.L.R.B., supra; and Alamo White Truck
Service, Inc., supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with its business operations described in section 1, 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
thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent has refused to bargain collectively with the
Union as the exclusive representative of the employees in the appropriate unit. I
shall therefore recommend that Respondent, upon request, bargain collectively with
the Union as such representative and, in the event an understanding is reached,
embody such understanding in a 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. Lumber and Sawmill Workers, Local 2608, United Brotherhood of Carpenters
& Joiners of America, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
2. Firchau Logging Company, Inc., is an employer within the meaning of Section
2(2) of the Act.
3. All production and maintenance employees of Respondent at its Lyman
Springs, California, woods operation, excluding log scalers , office clerical and
professional employees, guards, and supervisors constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
4. Lumber and Sawmill Workers, Local 2608, United Brotherhood of Carpenters
& Joiners of America, AFL-CIO, was on May 8, 1959, and at all times 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 refusing on May 8, 1959, and thereafter to bargain collectively with
Lumber and Sawmill Workers, Local 2608, United Brotherhood of Carpenters &
Joiners of America, AFL-CIO, as the exclusive representative of its employees in
the aforesaid appropriate unit, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (5) of the Act.
6. By the aforesaid refusal to bargain , Respondent has interfered with restrained,
and coerced its employees in the exercise of the rights guaranteed by Section 7 of the
Act and has thereby engaged in unfair 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.
[Recommendations omitted from publication.]
Sealtest Southern Dairies, National Dairy Products Corpora
tion and Samuel M. Chambliss . Cases Nos.10-CA-3686,10-CA-
3958, and 10-CA-3960. March 23, 1960
DECISION AND ORDER
On July 13, 1959, Trial Examiner Eugene Dixon issued his Inter-
mediate Report in these cases, finding that the Respondent had en-
gaged and was engaging in violations of Section 8(a) (3) and (1)
126 NLRB No. 139.